IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
November 22, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
LEONARD MICHAEL KING, DEFENDANT AND APPELLANT.
(Super. Ct. No. 06F02788)
The opinion of the court was delivered by: Robie , J.
P. v. King
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Leonard Michael King took S. on a car ride against her will. He stopped the car at the house of his uncle, Cornelius Poon. Poon got in the car, and defendant told S., "you're gonna have to fuck him." Poon then raped S. while defendant laughed. Poon gave defendant $10.
A jury found defendant and Poon*fn1 guilty of rape in concert and sexual battery. The court sentenced defendant to 32 years in prison.
On appeal, defendant raises an evidentiary issue, an instructional issue, and a number of sentencing issues. Agreeing there was mistake in the presentence custody credits and error in the abstract of judgment, we modify the judgment and order the trial court to amend the abstract.
FACTUAL AND PROCEDURAL BACKGROUND
S. was 22 years old, "mild[ly] mental[ly] retard[ed]," and pregnant when she was raped in January 2006. That day, S. had gone with her friend Shenel Simmons to the apartment of Simmons's boyfriend. Simmons's boyfriend was defendant's brother, and the brothers shared an apartment. While Simmons went to the apartment, S. waited in Simmons's still-running car. Before Simmons returned to her car, defendant got inside and began driving (without Simmons's permission) around Sacramento with S.
Defendant drove to Poon's house. Poon came out of the house, and defendant told S. to get in the backseat of the car because they were all going to the store. When she did, Poon joined her. Defendant drove a short distance from the house. Poon started "feeling [her] all over," and she started crying and told him, "no." Defendant, who was in the driver's seat, told her, "shut up, B[itch]." Poon "kept on pushing his weight on [her]." "He kept on feeling on [her], and [she] kept on pushing him away." Eventually, she "just gave up" because she "couldn't fight no more." Poon then pulled her pants down and started having sex with her. She was still crying and saying "no." While Poon was raping S., defendant was "[s]itting in the front laughing." Defendant then dropped Poon back at his house, and Poon gave defendant $10 and told him, "Make sure [S.] don't holler rape."
Defendant drove S. back to the apartment. Simmons was there when S. returned, and she thought S. looked upset and uncomfortable. S. told Simmons she was ready to go, and once they were alone, S. told Simmons what had happened. S. called her family, and police were summoned.
S. went to the hospital and to the University of California at Davis Medical Center. At the medical center, nurse practitioner Penny Miller conducted a sexual assault exam. S. told the nurse one of the assailants held her down with the weight of his chest, fondled and kissed her, and then put his penis in her vagina. Although S. told the nurse she had "vaginal discomfort," the nurse did not find any injuries on S.'s genitals. The nurse explained that in a third of patients, there was no finding of any physical injury, even though a sexual assault occurred. The nurse could not tell from her examination of S. if the sex was consensual. But, her examination of S. was "consistent with the history of sexual assault" S. had recounted to her.
At trial, defendant testified he had read up on the subject of pimping and had approached S. about "ho-ing" for him. She eventually accepted his offer. S. voluntarily had sex with Poon. It was a "spur of the moment thing" that turned out to be a source of money for defendant.
There Was No Error In Admitting The Nurse's Testimony
Defendant contends he was denied his federal and state due process right to present a defense by the nurse's testimony, which he claims did "no more than vouch for the strength of the prosecution's case and the veracity of [S.]'s allegations." He singles out her opinion testimony that her examination of S. was "consistent with the history of sexual assault." He claims his counsel was deficient for failing to object.
We begin by putting defendant's argument in context.
On direct examination, the nurse testified she did not find any injuries on S.'s genitals. In the nurse's experience, in a third of patients, there was no finding of any physical injury, but "[the patients] still experience the sexual assault." She explained as follows: "the vagina is an organ that's designed to have a penis inserted in it. It naturally, physiologically is designed to be elastic. [¶] Even if a woman's not consenting to the activity, your body is your body, and there still maybe some lubrication that occurs. [¶] So the absence of injury doesn't mean that nothing occurred."
The complained-of testimony came during cross-examination:
DEFENSE COUNSEL: "Can you tell from your examination whether or not the sex was consensual?"
NURSE MILLER: "No. [¶] I can -- [¶] Simply it's consistent with the history of sexual assault." (Italics added.)
DEFENSE COUNSEL: "Okay. But if the sexual contact was consensual, would that be consistent with these findings?"
NURSE MILLER: "It could be, but that's not the history I was given."
DEFENSE COUNSEL: "I know. [¶] But I asked you if it -- if that was the history you were given, would it be consistent with these findings?"
NURSE MILLER: "It could be. [¶] We're not sure really what happens in consensual sex. We don't. There's not data."
This testimony did not vouch for the strength of the prosecution's case or the veracity of S.'s allegations. Rather, this testimony explained the nurse could not tell if the sex here was consensual, but the nurse's finding of no injury still was consistent with what S. told the nurse had happened. This evidence was relevant expert testimony. It was relevant because it had a "tendency in reason" to prove a disputed fact, namely, whether the sex was consensual. (Evid. Code, § 210.) It was the proper subject of expert testimony because it would be beyond common experience why a woman who claimed to be raped might have no injuries on her vagina and why that lack of injury could still be consistent with the woman's statement she had been raped. (See People v. Chapple (2006) 138 Cal.App.4th 540, 547 [the purpose of expert testimony is to provide an opinion beyond common experience].)
Further, contrary to defendant's claims, there is no case that limits a medical expert from testifying that a lack of physical injury is consistent with a history of rape. Rather, the cases to which defendant points establish that rape trauma syndrome can be used to rebut misconceptions about the presumed behavior of a rape victim but cannot be used to show the rape occurred in a specific case. (See, e.g., People v. Bledsoe (1984) 36 Cal.3d 236, 247-248; People v. McAlpin (1991) 53 Cal.3d 1289, 1301.)
Here, the expert testimony was not an opinion on defendant's guilt; rather, as we have explained, it was relevant evidence and the proper subject of expert testimony. Given that the nurse's testimony was relevant and a proper subject of expert testimony, there was no violation of defendant's constitutional rights in its admission, and trial counsel was not deficient for failing to object. (People v. Falsetta (1999) 21 Cal.4th 903, 913 ["[t]he admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair]"; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] [the first prong of an ineffective assistance of counsel claim is deficient performance].)
The Court's Instruction Relating To
Defendant's "Statements" Was Not Constitutional Error
Defendant contends the trial court violated his federal constitutional right to testify on his own behalf and his right to present a defense by failing to instruct the jury that while false or misleading "statements" by a defendant may show consciousness of guilt, those statements were limited to pretrial statements (as opposed to trial testimony).
The complained-of instruction was the then-current version of CALCRIM No. 362 which read here as follows:
"If defendant Leonard Michael King or defendant Cornelius Lawrence Poon made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. You may not consider the statement in deciding any other defendant's guilt. [¶] If you conclude that the defendant made the statement, it us up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
As pointed out in People v. Beyah (2009) 170 Cal.App.4th 1241, 1248-1249, this version of CALCRIM No. 362, permitted the jury to infer a defendant's consciousness of guilt based on false statements made during trial as well as those made before trial. In August 2009, the CALCRIM committee revised the first paragraph of former CALCRIM No. 362 to read: "If [the] defendant . . . made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show (he/she) was aware of (his/her) guilt of the crime and you may consider it in determining (his/her) guilt." (CALCRIM No. 362 (Fall 2009 ed.).) Defendant's trial took place before this revision.
Beyah rejected the defendant's challenge to former CALCRIM No. 362 as follows: "CALCRIM No. 362 did nothing more than state this principle, i.e., that if the jury concluded that defendant intentionally gave false or misleading testimony, it may infer that defendant is aware of his guilt and may consider that inference--along with other evidence--in determining defendant's guilt. And although it might be said that the instruction singles out a defendant's testimony as subject to heightened scrutiny compared to other witnesses, that is true only because the principle involved is uniquely applicable to the defendant. That is not, however, a legitimate ground for concluding that the instruction unconstitutionally burdened defendant's choice to testify or resulted in any improper inference of guilt based on the jury's evaluation of his testimony." (People v. Beyah, supra, 170 Cal.App.4th at p. 1250, fn. omitted.) Beyah characterized its holding both as rejecting the defendant's challenge to the instruction and as a finding of lack of prejudice to the defendant. (Id. at pp. 1249, 1251.)
Beyah persuasively demonstrates there was no constitutional error here. The language used in former CALCRIM No. 362 was permissive, not mandatory, and allowed the jury to compare defendant's testimony with other evidence to determine whether any of his statements were "false or deliberately misleading, and if so, what weight should be given to that evidence." (People v. McGowan (2008) 160 Cal.App.4th 1099, 1104.) The jury could properly infer defendant was aware of his guilt and could consider that inference along with other evidence to reach a verdict. (People v. Showers (1968) 68 Cal.2d 639, 643 [jury may properly infer consciousness of guilt from defendant's false trial testimony regarding incriminating circumstances].) The instruction did not pinpoint specific statements made by defendant. Furthermore, the instruction explicitly stated that defendant's making a false or misleading statement could not prove guilt by itself. We presume the jury understood and followed the instruction given. (People v. Yeoman (2003) 31 Cal.4th 93, 139.) In sum, there was no constitutional error in this instruction.
There Was No Cumulative Prejudicial Error
Defendant contends cumulative prejudicial error based on his first two arguments. We have found no errors, so there are none to accumulate.
The Trial Court Did Not Impose Two Restitution Fines
Defendant contends the court erroneously imposed two restitution fines: one for $4,800 and second for $600. Defendant is wrong.
The $4,800 was a parole restitution fine pursuant to Penal Code section 1202.4. The $600 was part of the punishment for sexual battery itself that was provided for in the statute defining the crime.*fn2
The Trial Court Must Amend The Abstract Of
Judgment To Reflect Defendant Was Sentenced
Under The Three Strikes Law For Both Offenses
Defendant argues the abstract of judgment incorrectly lists the doubling of the term for each offense (i.e., nine additional years for the rape in concert and four additional years for the sexual battery) in section 3 of the abstract of judgment that is reserved for enhancements. Defendant contends the abstract must be amended. He is correct.
To correct the abstract, in section 3, the reference to the strikes law "PC 667(e)(1) CT1" for "9" years and "PC 667(e)(1) CT2" for "4" years must be deleted. Then, in section 1, the reference to "time imposed" must be amended to show "18" years (instead of "9" years) for count 1 (rape in concert) and "8" years (instead of "4" years) for count 2 (sexual battery).
The Trial Court Must Amend The Abstract Of Judgment
To Reflect The Accurate Number Of Presentence Credits
The trial court awarded defendant presentence credits as follows: "709 actual days plus an additional 118 days calculated at 15 percent. Total credits are 907 days." Defendant correctly contends this calculation was wrong.
Defendant was in custody from March 15, 2006, to the day of sentencing, May 16, 2008. The actual days are 794 and 15 percent of this is 119 days, for a total of 913 days. The abstract of judgment must be amended to reflect these numbers.
The judgment is modified to reflect defendant is entitled to 794 actual days and 119 local conduct days, for a total of 913 days. As modified, the judgment is affirmed.
The trial court is directed to prepare an amended abstract of judgment reflecting the corrected credits in section 14 of the abstract and the proper placement of the strikes sentence in section 1 of the abstract. The trial court is further directed to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: BLEASE , Acting P. J. NICHOLSON , J.