Opinion
No. C062668.
2011-08-24
The PEOPLE, Plaintiff and Respondent, v. Mark Wayne GRAY, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, R. Todd Marshall and Larenda Delaini, Deputy Attorneys General, for Plaintiff and Respondent.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, R. Todd Marshall and Larenda Delaini, Deputy Attorneys General, for Plaintiff and Respondent.
BUTZ, J.
Defendant Mark Wayne Gray met his wife S. when she was only 17 years old. The couple had three children, but the marriage fell apart and she moved out of their house. Rather than get on with his life, defendant turned hers into a living hell. He embarked on a course of conduct calculated to terrify her, drive her crazy, or both. As a result of misdeeds committed both before and after the separation, defendant was convicted by a jury of the felonies of spousal rape of unconscious or sleeping victim (Pen.Code, § 262, subd. (a)(3)), genital penetration with a foreign object ( id.,§ 289, subd. (d)) through use of a controlled substance ( id., § 12022.75), four counts of first degree residential burglary ( id., § 459), attempted first degree residential burglary ( id., §§ 664, 459), sexual battery ( id., § 243.4, subd. (e)(1)), stalking ( id., § 646.9, subd. (a)) and attempted stalking ( id., §§ 664/646.9, subd. (b)), as well as a host of misdemeanors. He was sentenced to an aggregate term of 20 years and two months in state prison.
Defendant appeals, arguing that the trial court erred in denying his pretrial motion to suppress evidence. He also challenges several other convictions on procedural grounds. In the published parts of this opinion, we reject two of his arguments: (1) that the trial court committed reversible error in ordering disclosure to the prosecutor of documents defendant brought with him to the witness stand, over his objection that they were protected by the attorney-client privilege; and (2) that the enhancement for administering a controlled substance for the purpose of committing sexual penetration (Pen.Code, § 12022.75) must be vacated because the prosecution introduced no evidence that “Ambien” was a controlled substance.
As for the rest of defendant's claims, we find no reversible trial error, but shall strike two of the misdemeanor convictions, modify the sentence in minor respects, and otherwise affirm the judgment.
FACTUAL BACKGROUND
Prosecution's Case
S. and defendant met when she was 17 years old and he was 30. They dated, moved in together, got married in 1999, and had three children.
During their marriage defendant began to videotape them having sex, which made S. uncomfortable. A couple of times S. discovered that he had been secretly videotaping her. However, when she confronted him with it, he became angry.
In the fall of 2006, S. began to feel the marriage was not working out. In early 2007, she enrolled in some college classes, which made defendant unhappy.
One night in August 2007, an incident occurred where, after S. rebuffed defendant's sexual advances, he pinned her down on the bed so she could not breathe and assaulted her sexually. She fled the house, stayed at a friend's place and eventually moved into her own residence.
At the time of trial, S. and defendant were still legally married.
Once S. moved into her own house in September 2007, she told defendant he was not allowed inside. From then on, unusual and suspicious events began to occur.
The tires in S.'s minivan kept going flat, despite the efforts of the car shop to reinflate them. In November, roofing nails were found in the center of her tires, and in December, two new tires that she had received for her birthday were found slashed.
Various small items that S. kept in her minivan turned up missing, such as work shirts, CD's (compact discs), a phone charger and various items of personal clothing. Lights inside the van that she was sure she had turned off were turned back on.
Unusual occurrences also began happening around S.'s house. The electrical circuit breaker box was turned off mysteriously. Several articles of clothing were found with slits in them. Decorative pumpkins put outside the house repeatedly disappeared. On Thanksgiving Day 2007, the main water valve to the house was turned off. Single shoes of S.'s were missing and numerous items of personal clothing had disappeared. All of the thefts were reported to the police.
After the pumpkins kept disappearing, S. bought a security camera and installed it outside her home. The camera caught a videotape of defendant near her home at a time when she and the children were away. In December 2007, a PC-based video surveillance system S. had purchased was stolen out of her garage.
A private investigator hired by S. recorded two surveillance videos showing defendant entering her locked minivan and removing items from it, including panties, a purse and several CD's. One night in April 2008, S. heard a loud noise upstairs and discovered that a window had been broken. In June 2008, S. suspected that someone had placed spyware on her cell phone. Police subsequently recovered from defendant's house video footage indicating that he had scrolled through S.'s contacts on her cell phone with a gloved hand.
These events left S. shaken and afraid. On September 12, 2008, she obtained a restraining order against defendant.
On September 18, 2008, police obtained an arrest warrant for defendant and a search warrant for his house and car. When the officer read charges of theft or burglary, defendant responded that any items he took were under the belief they were his property.
In the trunk of defendant's car, police found S.'s CD's that had been reported stolen. Under the floor mat, they found a duplicate key to S.'s minivan.
Inside defendant's house, police found a set of keys to S.'s house before she had the locks changed. They also found numerous items S. had reported stolen from her home, including the single shoes that were taken from S.'s closet and her cell phone charger. During the same search, police discovered a VHS tape showing defendant having sex with S. while she was sleeping or unconscious. Numerous other videotapes taken by a hidden camera were discovered, some containing footage showing S. in various states of undress, and another showing defendant digitally penetrating her vagina while she was asleep.
Officers also found surreptitiously filmed videotapes depicting defendant's next door neighbors engaging in sexual activity.
A bottle of sleeping pills with the trade name “Ambien” was also recovered. Some of the pills had been crushed into a powder and placed in a paper bindle.
Defendant's criminal misconduct did not end with his arrest. Defendant used his mother as an intermediary to tell S. that he would agree to whatever child custody arrangement she wanted if she would drop the charges against him. A secretly taped jailhouse conversation indicated defendant and his mother collaborated in trying to avoid a subpoena so that she would not have to testify at trial.
Defendant's former cellmate, Courtney Jones Botta, testified that defendant offered him money to commit acts of petty theft and vandalism against S.'s property. Defendant wanted these acts done while he was in custody, so as to make it appear he was not the perpetrator of the charged crimes.
Defense
Defendant took the stand in his own defense. He testified that he and his wife had a “great sex life.” He admitted he used a camera to videotape S. in states of undress and recorded footage of them having sex, but insisted that “90 percent of the time” S. knew about it and did not object.
Defendant stated that he started secretly videotaping S. in June 2007 after their relationship became rocky, because she started acting “suspicious” and “paranoid,” like she was hiding something from him. He also believed she was spending time with other men and taking some of his things.
Defendant explained the digital penetration video by stating that he had been massaging his wife to see if he could motivate her to have sex, and was shocked to realize that she had fallen asleep. He videotaped the episode to prove to her what a sound sleeper she was. He denied giving her narcotics or sleep medication. He claimed that he took the Ambien himself to help him fall asleep.
Explaining the video that formed the basis of the spousal rape by intoxication charge, defendant claimed that he filmed S. asleep, paused the video to obtain her consent to have sex with him, and then restarted the filming. He insisted his wife was awake during the entire act of intercourse.
Defendant denied ever breaking into S.'s house, stealing items of personal property, or committing acts of vandalism directed at her. He admitted taking things out of her van, but claimed he was exercising his community property rights. He also admitted videotaping his neighbors having sex on several occasions. He claimed that they were having sex in their backyard, and was concerned that his children would see them. The purpose of the taping was to gather evidence for the police.
Jury Verdict and Sentence
The table below summarizes the jury verdict on defendant's felony convictions and the court's sentence on each one.
+-------------------------------+ ¦CT.¦FELONY† ¦TERM¦YRS.¦MOS.¦ +-------------------------------+
+-----------------------------------------------------------------------------+ ¦1 ¦Sexual ¦6 years (midterm) plus 5–year enhancement ¦11¦0¦ ¦ ¦penetration—foreign ¦(use of controlled substance (§ 12022.75(b)))¦ ¦ ¦ ¦ ¦object (§ 289(d)) ¦ ¦ ¦ ¦ +--+-----------------------+---------------------------------------------+--+-¦ ¦2 ¦Burglary (§ 459) ¦1/3 midterm—consecutive ¦1 ¦4¦ +--+-----------------------+---------------------------------------------+--+-¦ ¦3 ¦Burglary (§ 459) ¦1/3 midterm—consecutive ¦1 ¦4¦ +--+-----------------------+---------------------------------------------+--+-¦ ¦4 ¦Spousal rape (§ 262(a) ¦1/3 midterm—consecutive ¦2 ¦0¦ ¦ ¦(3)) ¦ ¦ ¦ ¦ +--+-----------------------+---------------------------------------------+--+-¦ ¦5 ¦Stalking (§ 646.9(a)) ¦1/3 midterm—consecutive ¦0 ¦8¦ +--+-----------------------+---------------------------------------------+--+-¦ ¦6 ¦Burglary (§ 459) ¦1/3 midterm—consecutive ¦1 ¦4¦ +--+-----------------------+---------------------------------------------+--+-¦ ¦7 ¦Attempted burglary (§§ ¦1/3 midterm—consecutive ¦ ¦0¦ ¦ ¦664/459) ¦ ¦ ¦ ¦ +--+-----------------------+---------------------------------------------+--+-¦ ¦8 ¦Burglary (§ 459) ¦1/3 midterm—consecutive ¦1 ¦4¦ +--+-----------------------+---------------------------------------------+--+-¦ ¦29¦Attempted stalking (§§ ¦1/3 midterm—consecutive ¦0 ¦6¦ ¦ ¦664/646.9(b)) ¦ ¦ ¦ ¦ +-----------------------------------------------------------------------------+
+------------------------+ ¦¦TOTAL PRISON TERM ¦20¦2¦ +------------------------+
+---------------------------------------------------------------------+ ¦† NOTE: STATUTORY REFERENCES IN THIS CHART ARE TO THE PENAL CODE.¦ +---------------------------------------------------------------------+
The jury also convicted defendant of numerous misdemeanors,
each of which garnered a six-month jail term, to be served concurrently with his state prison sentence.
The misdemeanor convictions were: two counts of sexual battery (Pen.Code, § 243.4, subd. (e)(1)—counts 10 & 24), dissuading a witness/victim from prosecuting a crime ( id., § 136.1, subd. (b)(2)—count 20), contempt of court/disobeying a court order ( id., § 166, subd. (a)(4)—count 22), three counts of petty theft ( id., §§ 484, subd. (a), 488—counts 24, 25, 26), eight counts of invading privacy by means of video ( id., § 647, subd. (j)(3)—counts 11–18), and peeking ( id., § 647, subd. (i)—count 19). A misdemeanor conviction for inducing false testimony ( id., § 166, subd. (a)(1)—count 21) was dismissed on the court's own motion for lack of a factual basis.
DISCUSSION
I. The Motion to Suppress Evidence
See footnote *, ante.
II. Disclosure of Defendant's Notes
Defendant argues that it was reversible error for the trial court to order him to surrender 18 pages of notes that he brought with him to the witness stand. He asserts that such compelled disclosure was a violation of the attorney-client privilege, and that the prosecutor's use of the notes severely damaged his defense. We do not agree.
A. Factual Background
In the middle of defendant's testimony, the prosecutor asked for a bench conference. Out of the presence of the jury, the trial judge, the Honorable Monica Marlow, stated on the record that defendant had taken certain notes with him to the witness stand and that the prosecutor had asked to review them. Defense counsel's initial reaction was, “That would be fine. I don't know what he's taken with him.” Defendant, however, asked, “What if I have a problem with that?” A recess was then taken to allow defendant to consult with his attorney.
At the conclusion of the conference, defense counsel Amy Babbits explained that the notes were communications defendant made with his prior attorney and with her. Judge Marlow asked why defendant had the notes with him on the witness stand, to which Attorney Babbits had no ready reply. The judge then ordered the notes placed in a sealed envelope until an Evidence Code section 402
hearing could be held regarding their disclosure. Defendant objected to this turn of events, stating “I would like my notes. I've worked on the notes for eight months.” Judge Marlow asked Attorney Babbits whether she explained to her client that if he took the notes to the witness stand the prosecutor would have a right to review them. She responded, “I've told him that. Yes.”
Undesignated statutory references are to the Evidence Code.
Judge Marlow explained to defendant that if he chose to have the notes with him on the witness stand, they would be “discoverable to the prosecution.” Defendant replied, “That damages my case.” The judge stated that the decision was his, but if he chose to take the notes with him, “you may end up with a court ruling you don't agree with....” Defendant responded that he would testify without the notes.
Subsequently, a section 402 hearing was held on the discoverability of the notes.
The prosecution's investigator testified that he saw defendant consulting the notes “at least four times” during his testimony. Defendant admitted that he took the notes to the stand, but claimed that he referred to them only a couple of times, to check on dates.
The notes hereinafter referred to consist of a six-page document and a 12–page document. Each begins with the salutation “Dear Josh,” a reference to defendant's former attorney, Josh Lowery.
Attorney Babbits took the position that the documents were privileged attorney-client communications and were therefore protected from disclosure. The prosecutor argued that by taking the documents with him to the witness stand to refresh his memory, defendant had waived any privilege and subjected them to discovery under section 771.
When his trial testimony resumed, the prosecutor elicited defendant's admission that he had taken the notes with him to the witness stand the previous day. At a resumption of the section 402 hearing, defendant testified that the notes were “letters and summaries to [his] attorney” since November of 2008. He admitted that he reviewed them to refresh his recollection just prior to testifying. Under questioning by Attorney Babbits, defendant stated that the notes were reviewed during conversations between him and his present and former attorneys, that some were prepared at his attorney's request, and that some were written by his attorney.
Judge Marlow then took a recess to view the documents in camera. Afterward, she announced that she was satisfied they contained no attorney work product and thus were not protected by that privilege. Judge Marlow also determined that the documents were “simply a summary of [defendant's] recollection of events,” the primary purpose of which was to refresh his memory. The court concluded that, even though the notes might have been protected initially as attorney-client communication, defendant had waived the privilege by bringing them to the witness stand to refresh his memory during his trial testimony. Accordingly, the court ordered disclosure of the notes to the prosecutor.
In a later exchange, Attorney Babbits clarified that she did not object to a one-page summary that defendant concededly looked at while testifying, but did object, on grounds of attorney-client privilege, to disclosure of the six- and 12–page documents he had brought with him to the witness stand. Judge Marlow ruled, however, that under section 771, the prosecutor had a right to review any writing defendant actually used to refresh his memory.
During cross-examination, the prosecutor used the notes to elicit defendant's admission that he lied to his attorney when he wrote that he never saw the video of someone scrolling with S.'s cell phone. With respect to the spousal rape charge, the prosecutor got defendant to admit that the notes failed to mention his current claim that he paused the video to obtain S.'s consent before having intercourse with her.
B. Analysis
Defendant contends that the trial court violated the attorney-client privilege by allowing the prosecutor to see the notes he used while testifying. He asserts that the documents were absolutely privileged as confidential communications and that, notwithstanding section 771, the mere fact that he took them to the witness stand did not constitute a waiver of the privilege.
Section 954 states in relevant part: “Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer....” (§ 954, 1st par.) Section 912 states in pertinent part: “[T]he right of any person to claim a privilege provided by Section 954 ... is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege.” (§ 912, subd. (a), italics added.)
Section 771 states, with inapplicable exceptions, that “if a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which he testifies, such writing must be produced at the hearing at the request of an adverse party and, unless the writing is so produced, the testimony of the witness concerning such matter shall be stricken.” (§ 771, subd. (a), italics added.)
We shall assume for purposes of argument that the two documents in question were confidential communications between defendant and his attorneys and thus presumptively privileged. The decisive question is whether Judge Marlow correctly ruled that defendant's use of these notes to refresh his memory constituted a waiver of that privilege.
Cases addressing the interplay between section 771 and the attorney-client privilege are few. In Kerns Construction Co. v. Superior Court (1968) 266 Cal.App.2d 405, 72 Cal.Rptr. 74, the defendant's employee used certain investigation and accident reports to refresh his testimony at a deposition. When the plaintiff's attorney demanded disclosure of the reports, defense counsel objected on grounds of attorney-client privilege. ( Id. at pp. 408–409, 72 Cal.Rptr. 74.) The Court of Appeal, Fourth Appellate District, Division Two, held that the reports were properly subject to disclosure. “Having no independent memory from which he [the witness] could answer the questions; having had the papers and documents produced by [defendant] Gas Co.'s attorney for the benefit and use of the witness; [and,] having used them to give the testimony he did give, it would be unconscionable to prevent the adverse party from seeing and obtaining copies of them. We conclude there was a waiver of any privilege which may have existed.” ( Id. at p. 410, 72 Cal.Rptr. 74.)
However, in Sullivan v. Superior Court (1972) 29 Cal.App.3d 64, 105 Cal.Rptr. 241,( Sullivan ), a conference between the plaintiff and her attorney regarding the facts of an automobile accident was tape recorded and then transcribed. The plaintiff reviewed the transcript to refresh her memory before giving deposition testimony. After ascertaining that the plaintiff had used it to refresh her memory, defense counsel demanded disclosure of the transcript under section 771. ( Sullivan, at p. 67, 105 Cal.Rptr. 241.)
The Court of Appeal, First Appellate District, Division Four, held that the privilege was not waived under these circumstances. Although it recognized an apparent conflict between section 771, which requires the production of all writings used to refresh testimony, and section 954, which protects confidential communications between attorney and client ( Sullivan, supra, 29 Cal.App.3d at p. 72, 105 Cal.Rptr. 241), the court, as a matter of statutory interpretation, held that the word “writing” in section 771 was never intended to include a verbatim transcript of a confidential interview between attorney and client with respect to the core issues in the case ( Sullivan, at p. 73, 105 Cal.Rptr. 241). In light of the “age and sanctity” of the privilege, the Sullivan court found it doubtful that the Legislature intended the word “writing” in section 771 to cover such a unique document as a transcript of a confidential attorney-client conversation. ( Sullivan, at pp. 73–74, 105 Cal.Rptr. 241.)
Much more recently, in People v. Smith (2007) 40 Cal.4th 483, 54 Cal.Rptr.3d 245, 150 P.3d 1224, the California Supreme Court had no trouble deciding that the mandate of section 771 prevailed over a claim of psychotherapist-patient privilege. There, defense-retained psychologist, Dr. Oliver Glover, administered numerous psychological tests to the defendant and used the results to refresh Dr. Glover's recollection before testifying. The prosecution moved to discover Dr. Glover's notes, raw data and test materials under sections 771 and 721, subdivision (a), criterion (3) (providing that an expert witness may be fully cross-examined as to “the matter upon which his or her opinion is based and the reasons for his or her opinion”). ( People v. Smith, supra, 40 Cal.4th at pp. 507–508, 54 Cal.Rptr.3d 245, 150 P.3d 1224.)
Smith held that the foregoing statutes required production of the materials. Noting that Dr. Glover relied on the documents to refresh his memory and to formulate his opinion, the Supreme Court ruled that the trial court “did not abuse its discretion” in ruling that the prosecution was entitled to disclosure of the doctor's tests and notes. ( People v. Smith, supra, 40 Cal.4th at pp. 508–509, 54 Cal.Rptr.3d 245, 150 P.3d 1224.)
Applying the foregoing principles and interpreting the relevant statutes, we uphold the trial court's determination that the attorney-client privilege was waived under the circumstances here.
It is the function of the trial court to resolve any factual dispute upon which a claim of privilege depends ( Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1619, 56 Cal.Rptr.2d 341) and the court's resolution of such factual conflicts will not be disturbed if supported by substantial evidence ( Sierra Vista Hospital v. Superior Court for San Luis Obispo County (1967) 248 Cal.App.2d 359, 364–365, 56 Cal.Rptr. 387). Moreover, discovery orders are reviewed for abuse of discretion. ( People ex rel. Lockyer v. Superior Court (2004) 122 Cal.App.4th 1060, 1071, 19 Cal.Rptr.3d 324.)
Unlike the situation in Sullivan, the prosecutor was not seeking to discover the contents of a pretrial attorney-client communication. She merely sought notes that were being employed by a witness during the course of his testimony.
Section 954 declares that the attorney-client privilege may be waived by any conduct on the part of the privilege holder manifesting consent to the disclosure. Evidence adduced at the section 402 hearing revealed that defendant's “Dear Josh” letters actually consisted primarily of notes he prepared in computer class during his incarceration. They contained a count-by-count response to the criminal charges. Defendant brought the documents with him to the witness stand, referred to them on several occasions while testifying, and admittedly used them to refresh his memory.
A person “who exposes any significant part of a communication in making his own case waives the privilege with respect to the communication's contents bearing on discovery, as well.” ( Samuels v. Mix (1999) 22 Cal.4th 1, 20–21, fn. 5, 91 Cal.Rptr.2d 273, 989 P.2d 701; see also § 912, subd. (a); People v. Barnett (1998) 17 Cal.4th 1044, 1124, 74 Cal.Rptr.2d 121, 954 P.2d 384.) By bringing the notes to the witness stand and using them to refresh his memory, defendant made their contents fair game for examination and inquiry. Such conduct is inconsistent with an intent to preserve them as confidential attorney-client communications.
“The doctrine of waiver of the attorney-client privilege is rooted in notions of fundamental fairness. Its principal purpose is to protect against the unfairness that would result from a privilege holder selectively disclosing privileged communications to an adversary, revealing those that support the cause while claiming the shelter of the privilege to avoid disclosing those that are less favorable.” ( Tennenbaum v. Deloitte & Touche (9th Cir.1996) 77 F.3d 337, 340–341, citing 8 Wigmore, Evidence (McNaughton ed. 1961) § 2327, p. 636.)
It would be unjust to allow a party to use written materials on the witness stand to enable him to present his case to the jury and then hide behind a claim of attorney-clientprivilege when his adversary seeks to review the same materials.
The trial court reasonably found that, by using the documents as a memory-refreshing device and visual aid in presenting his testimony, defendant waived any claim of attorney-client privilege. Accordingly, the court properly required their disclosure to the prosecution pursuant to the mandate of section 771. We find no abuse of discretion in the disclosure order.
Section 771 provides an alternative—striking defendant's testimony—but that apparently was not requested by the parties.
Defendant also claims the trial court's in camera review was itself error, citing Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 101 Cal.Rptr.3d 758, 219 P.3d 736. In Costco, the Supreme Court noted that section 915, subdivision (a) prohibits information claimed to be protected by the attorney-client privilege from disclosure to a presiding officer. ( Costco, at p. 736, 101 Cal.Rptr.3d 758, 219 P.3d 736.) Although the statute allows in camera review to enable a trial court to rule on a claim of work product privilege, it has no counterpart with respect to the attorney-client privilege. Thus, the trial court erred by conducting an in camera review of the subject attorney-client letter. ( Id. at pp. 736–737, 101 Cal.Rptr.3d 758, 219 P.3d 736.)
Unlike the situation in Costco, Judge Marlow conducted an in camera review for the stated purpose of ascertaining whether any attorney work product privilege applied, which is expressly permitted by section 915, subdivision (b). Defense counsel lodged no objection to the court's procedure. Accordingly, any claim of error has been forfeited.
III.–IV.
See footnote *, ante.
V. The Penal Code Section 12022.75 Enhancement
Defendant was charged and convicted of sexual penetration with a foreign object (Pen.Code, § 289, subd. (d)), with a special finding that he administered a controlled substance in the course of committing this felony ( id.,§ 12022.75, subds. (a), (b)(2)(D)). The enhancement drew a five-year prison term and was proved by evidence that defendant used Ambien to render S. unconscious, enabling him to film and perform the act of digital penetration.
Defendant contends that the enhancement must be stricken because the prosecution introduced no evidence that Ambien was a controlled substance. We do not agree.
Defendant's argument frames a false issue. The question is not whether the prosecution failed to prove an element of the offense (that Ambien was a controlled substance) because the jury instruction given by the trial court completely removed that issue from the jury's consideration.
The court instructed the jury as follows: “If you find defendant guilty of the crime charged in count one [digital penetration,] you must then decide whether the People have proved the additional allegation that defendant administered a controlled substance to [S.] during the commission of that crime. [¶] ... To prove this allegation, the People must prove two things; number one, in the commission of sex penetration with a foreign object when [the] victim [was] unconscious, [defendant] administered Ambien to [ S.] [¶] And, number two, [defendant] did so for the purpose of committing the crime of sex penetration with a foreign object when the victim was unconscious.”
Prior to this instruction, the court twice referred to the special allegation relating to count one as “administering Ambien,” not “administering a controlled substance.”
Thus, the instruction conclusively presumed that Ambien was a controlled substance, rather than asking the jury to determine it as a factual issue. Because the instruction completely removed the issue from the jury's consideration, it makes no sense to ask whether that element of the crime was supported by substantial evidence. “ ‘When proof of an element has been completely removed from the jury's determination, there can be no inquiry into what evidence the jury considered to establish that element because the jury was precluded from considering whether the element existed at all.’ ” ( People v. Flood (1998) 18 Cal.4th 470, 533, 76 Cal.Rptr.2d 180, 957 P.2d 869( Flood ), quoting United States v. Gaudin (9th Cir.1994) 28 F.3d 943, 951.) Instead, the issue on appeal devolves into one of instructional error.
An instruction that forecloses jury inquiry into an element of the offense and relieves the prosecution from the burden of proving it violates the Fourteenth Amendment. ( Carella v. California (1989) 491 U.S. 263, 266, 109 S.Ct. 2419, 105 L.Ed.2d 218, 222.) Such an instruction does not require automatic reversal, however. An instruction which misdescribes, omits or presumes an element of an offense is subject to harmless error review under Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705, 710–711, i.e., whether the error was harmless beyond a reasonable doubt ( Flood, supra, 18 Cal.4th at p. 499, 76 Cal.Rptr.2d 180, 957 P.2d 869). Stated another way, we must ask whether we can say beyond a reasonable doubt that the error did not contribute to the jury's verdict. ( Flood, supra, 18 Cal.4th at p. 504, 76 Cal.Rptr.2d 180, 957 P.2d 869, citing Yates v. Evatt (1991) 500 U.S. 391, 402–403, 111 S.Ct. 1884, 114 L.Ed.2d 432, 448, overruled on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4, 112 S.Ct. 475, 116 L.Ed.2d 385, 399.)
“One situation in which instructional error removing an element of the crime from the jury's consideration has been deemed harmless is where the defendant concedes or admits that element.” ( Flood, supra, 18 Cal.4th at p. 504, 76 Cal.Rptr.2d 180, 957 P.2d 869.)
Here, the jury instruction presuming Ambien was a controlled substance was given without objection and was never the topic of discussion in chambers. At trial, defendant did not dispute that Ambien was a controlled drug. His defense was that he procured a prescription for Ambien for himself, because he had trouble sleeping. In their summations, both attorneys argued their case as if it were a given fact that Ambien was a controlled substance. The prosecutor argued, “There's an enhancement here. And that's for the administration of Ambien to commit the crime.” (Italics added.) Defense counsel retorted, “She has no proof that at the time of that video [S.] was given Ambien.” (Italics added.) The record thus establishes that the trial was conducted by the court and all parties as if Ambien's status as a controlled substance was a presumed fact.
There is a sound basis for judicially noticing the truth of the fact presumed in the instruction. Judicial notice is commonly taken of well-known medical and scientific facts. (See 1 Witkin, Cal. Evidence (4th ed. 2000) Judicial Notice, § 33, pp. 128–129 (Witkin) [and cases collected therein].) Although “Ambien” is not listed as a controlled substance in the Health and Safety Code section 11057, subdivision (d) provides that controlled substances include “any material, compound, mixture, or preparation which contains any quantity of the following substances, including its salts, isomers, and salts of isomers whenever the existence of those salts, isomers, and salts of isomers is possible within the specific chemical designation: [¶] ... [¶] (32) Zolpidem.”
The Physicians' Desk Reference (PDR) states that “Ambien” is the chemical compound “zolpidem tartrate.” (Ambien, Physicians' Desk Reference, Prescription Drugs (63d ed. 2009) p. 2692, italics added.)
Judicial notice is a substitute for formal proof of facts. (1 Witkin, supra, Judicial Notice, § 1, p. 102.) Section 452 provides that judicial notice may be taken of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (§ 452, subd. (h).) The PDR has been recognized in other jurisdictions as an authoritative source for indisputably accurate information. (See Commonwealth v. Greco (Mass.2010) 76 Mass.App.Ct. 296, 301, 921 N.E.2d 1001, 1006;Kollmorgen v. State Bd. of Med. Examrs. (Minn.Ct.App.1987) 416 N.W.2d 485, 488;U.S. v. Dillavou (S.D.Ohio 2009) 2009 WL 230118;Wagner v. Roche Labs. (Ohio 1996) 77 Ohio St.3d 116, 120, fn. 1, 671 N.E.2d 252, 256 [“The PDR is considered an authoritative source for information.”].)
An appellate court may take judicial notice of any fact judicially noticeable in the trial court. (Evid.Code, § 459, subd. (a).)
Therefore, we take judicial notice, by reference to the PDR, that Ambien contains zolpidem, which is specifically listed as a controlled substance in Health and Safety Code section 11057, subdivision (d)(32).
In a letter requesting supplemental briefing, we informed the parties that we were considering the propriety of taking judicial notice of the PDR entry for Ambien, and afforded them an opportunity to brief the issue.
“The United States Supreme Court has admonished that, ‘[h]armless-error analysis addresses ... what is to be done about a trial error that, in theory, may have altered the basis on which the jury decided the case, but in practice clearly had no effect on the outcome.’ ” ( People v. Harris (1994) 9 Cal.4th 407, 431, 37 Cal.Rptr.2d 200, 886 P.2d 1193, quoting Rose v. Clark (1986) 478 U.S. 570, 582, fn. 11, 106 S.Ct. 3101, 92 L.Ed.2d 460, 473.)
Our review of the trial record, coupled with undisputed facts of which we take judicial notice, convinces us beyond a reasonable doubt the instructional error here played no part in the jury's true finding on the enhancement of administering a controlled substance. Indeed, to overturn a verdict due to the absence of proof of an undisputedly true and judicially noticeable fact would be an abdication of our constitutional duty to reverse only where the error complained of resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.)
VI. Penal Code Section 654
See footnote *, ante.
DISPOSITION
The misdemeanor convictions for sexual battery (counts 10 & 24) are stricken. The sentence is modified by staying the punishment for counts 19 (peeking) and count 22 (violating a restraining order), such stays to become permanent upon completion of the jail terms for counts 15 and 20, respectively.
The trial court shall prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.