Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC143910A
Reardon, J.
A jury convicted appellant Arnoux Joseph of felony sexual battery by restraint. (See Pen. Code, § 243.4, subd. (a).) He was placed on probation for three years. Joseph appeals, contending that (1) the trial court should have given a sua sponte jury instruction on actual, reasonable mistake of fact on the sexual battery by restraint charge; (2) it should have admitted into evidence the full text of his statement to law enforcement officials explaining his pretext call; (3) it communicated a bias in favor of the complaining witness by ordering an interpreter for her in the middle of her cross-examination; and (4) an 11-day recess after the jury deadlocked several times deprived him of due process. We affirm the judgment.
All statutory references are to the Penal Code unless otherwise indicated.
I. FACTS
A. The Incident
On August 31, 2005, Patricia C.—a 24-year-old native of Peru—began working at Hillside Convalescent Hospital in San Rafael as a cook. She lived in Santa Rosa. When she worked the morning shift that began at 5:00 a.m., her supervisor Liliana Valencia picked up Patricia at 4:00 a.m. and gave her a ride to work. When Patricia worked the afternoon shift starting at 11:30 a.m., she had to commute to work, walking 30 minutes to the bus stop, riding the bus for an hour and 20 or 30 minutes, depending on the traffic, and walking another 10 or 15 minutes to get to work.
All dates refer to the 2005 calendar year unless otherwise indicated.
Valencia told Patricia that she was exhausted from getting up so early each time she took her to work. Sometimes, she was not due at work several hours later than Patricia began work. Patricia was also tired from working overtime and commuting such a long distance. Valencia advised Patricia to look for a new place to live that was closer to her new workplace in San Rafael. Patricia asked her hospital coworkers—including appellant Arnoux Joseph—if they knew of a nearby place to live.
One evening after work, Joseph took Patricia to see a room close to the hospital in Marinwood. Once there, she learned that Joseph also lived in the same house. He introduced her to the owner and she viewed the empty room. For about 40 minutes, Patricia and Joseph watched television in his room. He offered her some wine, but she declined, saying that she did not drink.
Joseph gave Patricia a ride home. During the drive, he offered to let her stay in his room overnight if she needed to do so. She could stay in his room and he would sleep in the living room. When Valencia could give her a ride, she went back to Santa Rosa at night. Once, Patricia arranged to stay at Joseph’s house, but cancelled the plan when Valencia offered her a ride. Joseph seemed upset about the change of plan.
As she later explained to a jury, Patricia finished work at Hillside about 1:30 p.m. on September 29. She took the bus home to Santa Rosa. That evening, she called Joseph on her cell phone to ask if she could spend the night at his room. He agreed. Patricia packed her backpack, walked to the bus stop, and took a bus back to San Rafael. During the ride, she called Joseph twice on her cell phone. He was waiting at the correct bus stop to meet her and drove her to the house.
Patricia did not see or hear anyone else in the house. She went into Joseph’s room and sat on the bed talking with him. Patricia let Joseph know that she intended to change her clothes and go to sleep—she expected that he would go to sleep on the living room couch. She went into the next door bathroom and, leaving on her bra and underpants, changed into a tee-shirt and yoga pants to sleep in. When she returned to his room, Joseph was still on the bed watching television. He told her that she was wearing too many clothes, but Patricia explained that she was comfortable sleeping in these clothes.
Patricia sat next to Joseph on the bed, with her legs dangling over the side of the bed. The television was at the foot of the bed, so that the bed was the only place where anyone could sit and see the television. Joseph moved closer and closer to her. He told Patricia that he was a man and she was a woman. Patricia became uncomfortable. She asked him why he was doing this, when they were just friends. Joseph told her that he wanted more than friendship—she was alone and neither of them had anybody to share things with. Patricia told Joseph that she was frightened—that she did not think if she came there that she would be expected “to do anything.” Joseph told her that he had given her a ride for free as a favor and now she owed him a favor.
By now, Patricia felt nervous and insecure. She went back to the bathroom, where she made a cell phone call to a friend, but he did not answer. Joseph knocked on the bathroom door, saying that he had to use the bathroom. Patricia let him in, planning to go to the bedroom, get her backpack and leave before he was finished. Joseph grabbed her and had his hand on her hip, asking why she was mad at him. Nervously, Patricia said that she wanted to leave and began to walk down the hall back to the bedroom, fighting to take his hands off of her.
Joseph pushed Patricia inside the bedroom. She picked up her backpack from the bedroom floor, but Joseph told Patricia that she could not leave. He locked the bedroom door. She told him that she just wanted to sleep there so she could get more rest and then get to work more easily. Joseph told her again that he was a man and she was a woman—that they could just have fun.
Patricia said no, but Joseph pushed her onto the bed. He took her cell phone out of her hand, angrily telling her that she could not leave the house. He got onto the bed, on top of her, holding her hands. Joseph said that he had been patient with her, but that he was going to do whatever he wanted. She saw that he had a knife on the dresser table next to the bed. Patricia lied, telling Joseph that her manager knew where she was, hoping that this might entice him to let her go. The ploy did not work.
Patricia testified that she was on the bed, not under the covers. Detective Sandra Scott of the Marin County Sheriff’s Department testified that when asked, Patricia reported that she believed that she was on top of the covers when she was assaulted.
Patricia tried another tactic. She said that they were friends, that she trusted him, likening herself to his sister and begging him not to do anything to her. Joseph replied that she was not his sister—that he was going to do whatever he wanted. He had done her a favor by giving him a ride and now, she had to do a favor for him. Seeing the anger in his eyes, Patricia feared for her life. She told him that she had to leave, but that she would come back another day and “we can do whatever you want.” She hoped to calm him down and to have a chance to escape with her life. This ploy did not work, either.
Patricia threatened to scream if he did not stop. Joseph put a hand over her mouth. He tried to remove her pants, while she closed her legs to prevent this. When her pants were down as far as her hips, Joseph’s hand was over her mouth and nose. Fearful and unable to breathe, Patricia could not stop Joseph from pulling her pants down. He licked her cheek, then put his hand inside her bra, stretching it and pulling it up so that Patricia’s breast was exposed. He touched her breast. He pulled her underwear down and tried to put his penis on her vagina, but did not immediately penetrate her.
Patricia asked Joseph to stop, but she saw from his expression and his eyes that he would not. Now convinced that he would force her to have intercourse, Patricia decided that it would be best if she pretended to cooperate with him. She said “if you got to do it,” please use a condom. Joseph took a condom from a bedside drawer and tried to put it on. He was rushing to have intercourse, so she offered to put on the condom, thinking that if she could not stop him from having intercourse, at least she could make sure that he used a condom. She got up, put the condom on him, and he penetrated her vagina with his penis. She thought that he ejaculated. When he was finished, he got off of her so that they were lying side by side, where he kept his arm across her body.
Patricia told Joseph that she needed to urinate. This was untrue, but she hoped to be allowed to use the bathroom, so that she could escape from the house. Joseph told her that she had to use a plastic container in his room. She moved the container closer to the door, but Joseph had locked the door. Eventually, Patricia used the container to urinate and so did Joseph. After she was raped, she heard other people inside the house, but she did not call out to them, fearing that Joseph would harm her again.
Joseph was angry, so Patricia tried to convince him “that nothing happen[ed] there.” She was trying to calm him down. She got back into bed lying next to him. Again, he put his arm over her; whenever she tried to get away, he kept holding her.
Patricia was unable to sleep at all that night. When it was time to go work, she got her backpack and changed into her work clothes. Joseph returned her cell phone to her. He walked out of the house with her and drove Patricia to work, dropping her off a block from the hospital. It was after 5:00 a.m. and she was late to work. Joseph did not have to go to work until later that morning.
B. The Investigation
Patricia’s cell phone rang as she left the car. She did not answer, but picked up the message from Valencia as she walked into the hospital. Her manager was asking where Patricia was. Inside the hospital kitchen, Valencia asked Patricia why she was late. After leading Valencia into her office, Patricia began to cry and explained what had happened. Valencia advised her to call the police. Patricia was nervous and uncertain about what to do—she was ashamed and was reluctant to have to explain all that had happened. Her manager asked if what Patricia had told her was true. When Patricia said that it was true, Valencia said that if Patricia did not call the police, she would, because no one was going to hurt the young woman.
Valencia called the San Rafael Police Department. Officers from that department spoke with Patricia at the hospital. The police drove her around the city to find Joseph’s house, without success. Later, she could not recall everything she told the police—she was in shock.
San Rafael police took Patricia to Marin General Hospital where she answered questions from a nurse and underwent a physical examination. She named Joseph as the perpetrator and reported that the assault took place on a bed in his room. Patricia told the nurse that Joseph had told her that she would have sex with him no matter what. The nurse collected some of her clothing as evidence.
The clothing was never sent for scientific testing, because there was no dispute that a sex act occurred.
When San Rafael police determined that the case was outside of their jurisdiction, the matter was transferred to the Marin County Sheriff’s Department, which arranged for Patricia to come in for an interview. During the transfer of the case, San Rafael police told Sheriff’s Detective Sandra Scott that Patricia had reported that a condom was used. The detective wrote in her report that it was unclear to the police whether Patricia had asked Joseph to wear a condom.
About 1:00 p.m., as Patricia was being interviewed by Detective Scott, she received a cell phone call from Joseph. At Scott’s direction, Patricia did not answer the call. Joseph left a message. By this time, Detective Scott saw that Patricia was exhausted and she opted not to complete a detailed interview at that time. Instead, she suggested that Patricia make a pretext call to Joseph, to get him to speak about the incident and perhaps make some admission of guilt.
About 3:20 p.m., Patricia made the pretext call to Joseph’s cell phone, which Scott recorded. Patricia asked Joseph why he acted the way he did toward her. He said that she knew that he liked her and wanted to be with her, that he needed “something done” and she did not want to. Patricia said that he forced her to have sex and that she deserved an apology. Joseph apologized “for what . . . I have done.” She accused him of tricking her into coming to his house and suggested that she should call to report this incident.
Joseph became more verbally aggressive—he said that Patricia had called him, that she had come over to his house to sleep in the same bed. He told Patricia that he was a man and that if she came to a man’s house—to his house—“you come in to do something.” She was not his sister or his cousin—Joseph said that if Patricia called him to come to his house, it meant that she intended for something to happen. He had been thinking about having sex with Patricia for a long time. When she protested that he did it the wrong way, he said “I don’t have time for that.” Again, Patricia demanded an apology and Joseph replied: “I’m sorry because . . . the way [you] planned to do it is not the way it happened.”
During the pretext call, Patricia asked if Joseph used a condom. He replied that she was the one who put it on. Patricia said that she did not put it on, that she held it because she was scared, but Joseph insisted that she put it on him. He asked why she was not at work that day. Patricia said that she was feeling very bad. “I told you I [had] a fever.” Toward the end of the call, Patricia asked why he locked the door, why he would not let her leave. He denied locking the door. The call ended shortly thereafter, when Joseph apparently hung up.
About 4:00 p.m., Detective Scott went to Joseph’s Marinwood home and spoke with him. Unbeknownst to him, she made an audiotape recording of their conversation. He admitted that he knew Patricia and they discussed the incident of the previous night. Joseph told Detective Scott that Patricia had accused him of forcing her to have sex, but he denied that he had. He told the sheriff that when he had first tried to touch Patricia, she said “Not yet,” and he stopped. Later, when she was more receptive, they had sex. He also said that Patricia was not related to him—that if she was going to come to his house, she should expect to do something. In his view, Patricia had agreed to have sex with him.
Joseph agreed to allow a search of his room—law enforcement officials found three used condoms in a trash can—one on top of the trash and two more lower down in the trash can. They also found unopened condoms in a credenza drawer next to the bed. No knife or plastic container with urine in it was found. Joseph was arrested on September 30. Patricia spoke with Detective Scott about the incident several more times over the next few months.
C. Pretrial Matters
In December, an information was filed charging Joseph with forcible rape, felony sexual battery by restraint and false imprisonment. (See §§ 236, 261, subd. (a)(2), 243.4, subd. (a).) The rape was alleged to be a violent, serious felony warranting a prison term rather than probation. (See § 1170.12, subds. (a)-(c); former §§ 667.5, subd. (c)(3) [as amended by Stats. 2002, ch. 606, § 2], 1192.7, subd. (c)(3) [as amended by Stats. 2002, ch. 606, § 3], 1203.065, subd. (a) [as amended by Stats. 1993-1994, 1st Ex.Sess., ch. 60, § 2, p. 8804].) Joseph pled not guilty to all charges. He was assisted by a Creole language interpreter during most pretrial and trial proceedings.
Sexual battery by restraint is a wobbler offense. (See § 243.4, subd. (a).) It was charged and found as a felony.
In March 2006, Joseph filed a motion in limine seeking to exclude evidence of the tape-recorded pretext call. He argued that the prejudicial effect of the tape was greater than its probative value. (See Evid. Code, § 352.) If the trial court admitted the pretext call into evidence, Joseph would seek admission of the tape-recorded statements he made during the search conducted shortly after the pretext call, to clarify what he said during that call. (See Evid. Code, § 356.) For their part, the People sought to admit the tape of the pretext call, but also sought a trial court ruling that Joseph’s subsequent statement about that call was inadmissible hearsay.
The trial court listened to an audiotape of the pretext call at the hearing on the motions in limine. It found that the tape was not prejudicial, noting that it recorded many comments that would be helpful to the defense. As it contained statements that could arguably constitute admissions by Joseph, the trial court rejected the Evidence Code section 352 challenge to its admissibility. It also found that his statements made during the search were inadmissible evidence.
D. Trial
A jury was impaneled and three alternate jurors were chosen on March 29, 2006. At trial, Patricia testified about the events of the night of September 29-30. She told the jury that she had never dated Joseph and had never had any other sexual contact with him. Before the incident, they were friends who worked together. The jury heard the recording of the pretext call that Patricia made to Joseph.
On cross-examination, Patricia testified that when the cost of renting a room at Joseph’s house seemed too expensive, he suggested that they could share his room. She did not offer any verbal response to this offer—she just smiled at him. She also testified that she mentioned this possibility to Valencia. Defense counsel also questioned Patricia about discrepancies in her testimony and about her memory lapses. Patricia said that Joseph never made any specific threats against her—he never threatened to kill her or spoke of the knife at all.
In her own testimony, Valencia told the jury that she had advised Patricia not to share a room with a man—that a female roommate would be better. She had a bad feeling about Joseph and she warned Patricia against rooming with him.
Valencia testified that she called Patricia on September 29 to see if Patricia needed a ride to work the following morning. Twice, she left messages, but Patricia did not call her back. She drove to work without Patricia, who was not at the hospital when she arrived at 4:45 a.m. When Patricia arrived, she told Valencia that Joseph had raped her. The young woman looked very sad. She cried and appeared to have been crying for some time. Patricia told Valencia that she was scared.
Patricia did not tell Detective Scott that she was afraid to call the police to report the rape—she said only that she was embarrassed and ashamed and did not want people to pity her because of it.
Valencia called her own supervisor, told him what had happened, and asked for advice about how to handle the situation. Her supervisor told her to call the police. Valencia called 911, spoke with the dispatcher, and passed the telephone to Patricia. Soon, two police officers arrived.
Detective Scott testified about taking the sexual assault report from Patricia at the hospital, the circumstances of the pretext call and statements that Joseph made during the search of his home. Defense counsel questioned Detective Scott about discrepancies in Patricia’s reports of this incident. For example, Patricia first reported that she believed that Joseph had put on the condom. This differed from her trial testimony that she put a condom on Joseph’s penis. Patricia did not report that she put on the condom until after he revealed this information in the pretext call. She said that she was worried that Joseph was rushing and would not put it on himself correctly, so she put it on. Patricia did not mention anything about using a second or third condom during her interviews with the sheriff. Defense counsel also questioned Detective Scott about Patricia’s cell phone records showing that a few minutes before she called her friend from the bathroom, she called her voicemail and played back her messages.
The jury did not hear the audiotape of the statements that Joseph made to her during the September 30 search of his room. The trial court excluded this evidence. (See pt. III., post.)
In her initial report, Patricia did not mention that at one point, she pretended to have to urinate after the sexual assault. This information only came out several days later. During one interview, Patricia told Detective Scott that after the sexual encounter, she had asked Joseph to give her back her cell phone. She told Joseph that her battery would die if it was not plugged into a power source, so he plugged it and an adapter into a wall outlet.
Joseph’s counsel also brought out other issues about Patricia’s testimony. She had reported that Joseph had locked the bedroom door, suggesting that she was not free to leave. However, when Scott went to Joseph’s room, she found that the bedroom door locked with a push button that would pop out if someone in the room wanted to leave. During the pretext call, Joseph denied locking the door.
Joseph did not testify at trial. In his defense, Joseph’s counsel questioned the nurse who examined Patricia on September 30. Patricia was tearful and very embarrassed about what had happened. She was shaking and scared. She was crying off and on and was soft spoken. She found no tears, swelling, redness or other suspicious circumstances in the sexual assault examination. The nurse testified that a woman could be raped without any physical injury. Patricia reported that there was a knife in a drawer, but did not suggest that the perpetrator threatened her with it. The nurse’s report indicated that a condom was used, but that the perpetrator did not put it on all the way when he put it on himself—the condom covered only the tip of the penis.
The owner of Joseph’s house also testified that he remembered Patricia coming to see the room he had available for rent. After checking out the room, she went into Joseph’s room with him and seemed to stay a long time. The bedroom door was closed. When Joseph’s friends came to the house, they did not spend time in the living room.
At the close of evidence, Joseph moved for an acquittal on all charges, arguing that Patricia’s testimony was inherently incredible such that no rational juror could find him guilty beyond a reasonable doubt. (See § 1118.1.) The motion was denied.
E. Argument, Deliberations, Verdict and Sentencing
During closing argument, defense counsel admitted that a sexual encounter occurred, but argued that it was consensual. He urged the jury to find that Patricia was a pathological liar. He argued that her testimony was incredible when she told the jury that she did not know before she went to check out a room for rent that Joseph lived in the same house; that she had no romantic interest in him although they had talked about the possibility of moving into his room together and she was in his bed the night of the incident; and that he locked her into his room when the door could not have locked her in. Defense counsel also asked the jury to consider why, from the safety of the bathroom, Patricia did not call 911 or respond to Valencia’s message about whether she wanted a ride to work the following day, but instead called a friend who lived too far away to help her.
During argument, Joseph’s counsel pointed out other facts suggesting that a consensual encounter occurred. He noted inconsistencies in Patricia’s reports about who put the condom on Joseph, observing that she only admitted that she put the condom on him after he said so during the pretext call. He argued that Joseph called Patricia the day after the incident, because he expected that she would return to see him that night, as he had heard her say that she would. Counsel noted that a rapist was unlikely to recharge a victim’s cell phone for her. He reasoned that all these facts undermined Patricia’s credibility, which should lead the jury to conclude that it was reasonable for Joseph to believe that she consented to the sexual encounter.
Argument was completed by the end of the day on April 6, 2006, and the jury began deliberating the next day. During its first day of deliberations, the jury listened to the pretext call again. It asked for clarification of the consent or lack of consent required for rape and false imprisonment. (See CALCRIM Nos. 1000, 1240.) In response, the trial court gave this special instruction to the jury: “The prosecution has the burden of proving two things regarding the defendant on the issue of consent or lack of consent: first, that the defendant did not believe that the alleged victim consented; and second, even if he did believe that she consented, that his belief was unreasonable under the circumstances.”
Later that day, the jury advised the judge that it was deadlocked on all three counts. The judge also learned that one juror was reluctant to convict Joseph based on Patricia’s testimony alone. The trial court instructed the jury to continue deliberating on the case. If the jury felt that further deliberations were fruitless, it was to advise the judge of this fact. The trial court also instructed the jurors to follow its instructions, even if a juror disagreed with them. The jury responded that it was deadlocked because one juror refused to deliberate further. Within minutes, the jury sent another note to the judge indicating that deliberations had resumed.
Within an hour, the jury was deadlocked again. When the trial court questioned the jury, its members concluded they might be able to reach a verdict if they had more time to deliberate, but many of them were feeling rushed because looming personal commitments prevented them from being able to come to court for some time. The trial court continued the trial until Wednesday, April 19, 2006, when the jurors indicated that they would be available to resume deliberations. Joseph’s motion for mistrial based on this continuance of deliberations—first raised on Tuesday, April 18, 2006—was denied.
We take judicial notice of the calendar days in the year 2006. (See Evid. Code, §§ 451, subd. (f), 459, subd. (a).)
On April 19, 2006, the jury returned to court. The trial court began by reinstructing the jury on its deliberations process. (See CALCRIM No. 3550.) Once it resumed deliberations, the jury asked for a transcript of Patricia’s testimony. It asked for instruction about how to view Patricia’s act of putting a condom on Joseph. The trial court advised the jury that there was no written jury instruction on how the jury should view this fact, but referred the jury to the instruction defining rape and instructed it to view this evidence in light of all the other evidence in the case. (See CALCRIM No. 1000.)
The jury also asked the trial court for clarification of the standard to be applied when it determined whether Joseph had an honest, but reasonable belief in consent jury instruction for purposes of rape. The trial court responded that the definition of rape jury instruction defined a “reasonable belief in consent” in specific terms. It instructed the jury that after reviewing all of the evidence, it had to decide if the People have proved that the defendant did not actually and reasonably believe that consent existed.
That afternoon, the jury advised the trial court that it had reached a verdict on one count but were deadlocked on the other two charges. It told the trial court that no further deliberations would be helpful. The jury found Joseph guilty of felony sexual battery by restraint, but was unable to reach a verdict on the rape and false imprisonment charges. (See §§ 236, 261, subd. (a)(2), 243.4, subd. (a).) The trial court declared a mistrial on those two counts. It suspended imposition of sentence and granted Joseph a three-year term of probation with a 10-month term in county jail as one condition of probation.
The trial court deemed that Joseph had already served this term because of his period of custody between September 2005 and April 2006.
II. JURY INSTRUCTION
A. Contention on Appeal
Joseph first contends that the trial court failed to instruct the jury on the defense of actual and reasonable mistake of fact to the charge of sexual battery by restraint as it did on the rape charge. He reasons that this instruction would have constituted a defense to sexual battery by restraint and that substantial evidence supported giving a sua sponte instruction relating to this offense. (People v. Mayberry (1975) 15 Cal.3d 143, 153-158 (Mayberry); see People v. Maury (2003) 30 Cal.4th 342, 423-425, cert. den. sub nom. Maury v. California (2004) 540 U.S. 1117 (Maury).) Joseph argues that this instruction would have influenced his jury on this charge; and that the trial court’s failure to give this instruction violated his due process rights, to his prejudice.
The record on appeal contains no list of the jury instructions that Joseph did request. We assume that he did not request that a reasonable honest mistake of fact jury instruction be given on the sexual battery by restraint count.
The trial court instructed the jury that Joseph would not be guilty of rape if he actually and reasonably believed that Patricia consented to sexual intercourse. It noted that the prosecutor had the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that she consented. If the People failed to meet this burden, the jury was instructed to acquit Joseph. (See CALCRIM No. 1000.) No mistake of fact defense instruction was given to the jury on the charge of sexual battery by restraint. The jury was instructed on the elements of the offense of sexual battery by restraint—unlawful restraint and touching of an intimate part of the body, accomplished against the victim’s will for the purpose of sexual arousal, gratification or abuse. It was instructed that a touching is done against a person’s will if the person does not consent to it—acting freely, voluntarily and knowing the nature of the touching. Finally, the trial court told the jury that this offense was a specific intent crime. (See CALCRIM Nos. 252, 935; see also § 243.4, subd. (a).)
B. Law of Mistake of Fact Defense
1. Negating Intent
One who commits a criminal act under a mistake of fact is incapable of forming a criminal intent and thus, cannot have committed a crime. (§ 26, par. Three; Mayberry, supra, 15 Cal.3d at p. 154; People v. Rivera (1984) 157 Cal.App.3d 736, 742.) A person does not act unlawfully if he or she commits an act under an honest, reasonable belief in the existence of facts and circumstances which, if true, would make that act lawful. (People v. Rivera, supra, 157 Cal.App.3d at pp. 742-743; see People v. Williams (1992) 4 Cal.4th 354, 362 (Williams).) When one commits an act based on a mistake of fact, the issue of guilt or innocence is determined as if the facts were as the actor perceived them to be. (People v. Rivera, supra, 157 Cal.App.3d at p. 743.)
If one entertains a reasonable and bona fide belief that a complaining witness voluntarily consented to engage in sexual intercourse, the defendant does not possess the wrongful intent required for forcible rape. (Mayberry, supra, 15 Cal.3d at p. 155; see Williams, supra, 4 Cal.4th at p. 360.) The defendant need not prove this defense by a preponderance of evidence, but need only raise a reasonable doubt about whether he entertained a reasonable, honest, but mistaken belief that the victim’s consented in order to warrant a mistake of fact defense instruction. (See Williams, supra, 4 Cal.4th at p. 361; Mayberry, supra, 15 Cal.3d at p. 157; see also People v. Simmons (1989) 213 Cal.App.3d 573, 579.)
2. Application to Sexual Battery by Restraint
In theory, the same principle applies to a charge of sexual battery by restraint. (See § 243.4, subd. (a).) We have found no cases determining whether mistake of fact is an affirmative defense to this offense. Appellate courts have held that the Mayberry defense applies in cases of forcible rape, kidnapping and assault with intent to commit rape. (See Mayberry, supra, 15 Cal.3d at pp. 153-157 [rape, kidnapping]; People v. Rivera, supra, 157 Cal.App.3d at pp. 741-743 [assault].) Each of these offenses requires the victim’s lack of consent as an element of the crime. (See §§ 207, 220, 261, subd. (a)(2).)
Sexual battery by restraint requires an intimate touching of another person accomplished against that person’s will. The victim’s lack of consent to the intimate touching is an essential element of the crime. (See § 243.4, subd. (a).) As sexual battery by restraint—like forcible rape and other offenses to which the Mayberry defense applies—requires a lack of consent as one of its elements, we assume arguendo that the defense of reasonable, good faith but mistaken belief in the victim’s consent is a defense that could logically apply to this offense, as well. (See ibid.; see also People v. Rivera, supra, 157 Cal.App.3d at pp. 742-743 [assault].)
3. Subjective and Objective Mistake Based on Victim’s Equivocal Conduct
The Mayberry defense has two components—one subjective, one objective. The subjective prong asks whether the defendant actually—although mistakenly—believed that the victim consented to sexual contact. The objective prong turns on whether the defendant’s mistake about consent was reasonable under the circumstances. (Maury, supra, 30 Cal.4th at p. 424; Williams, supra, 4 Cal.4th at pp. 360-361.)
To consent for purposes of rape and various other sexual offenses, the victim “must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.” (§ 261.6; see Williams, supra, 4 Cal.4th at p. 361 fn. 6.) The jury was similarly instructed on consent for purposes of sexual battery by restraint.
In order to warrant a Mayberry instruction, the defendant must produce some evidence of the victim’s equivocal conduct that led him to reasonably believe that she consented to the sexual contact. (Maury, supra, 30 Cal.4th at p. 424.) If the evidence of equivocal conduct—viewed in the manner suggested by the defendant—is a reasonable interpretation of the evidence, then it may be sufficient to warrant a Mayberry instruction even if a different interpretation of the same evidence might also be reasonable. (See Williams, supra, 4 Cal.4th at p. 361; Mayberry, supra, 15 Cal.3d at pp. 156-157.) It is not enough for the defendant to offer any evidence of equivocal conduct, no matter how weak. The evidence of a mistake of fact must be substantial to deserve jury consideration. (See Williams, supra, 4 Cal.4th at p. 361.)
The subjective prong of the Mayberry defense requires evidence of the defendant’s honest, good faith belief that the victim consented to the charged sexual contact. To satisfy this prong, the defendant must offer substantial evidence of the victim’s equivocal conduct that formed the basis of his erroneous belief that she consented. (Maury, supra, 30 Cal.4th at p. 424; Williams, supra, 4 Cal.4th at pp. 360-361.) This evidence may be direct or circumstantial, but it must show the defendant’s state of mind at the time that the offense was committed. The evidence must demonstrate that he actually believed that the victim consented to sexual contact. (Maury, supra, 30 Cal.4th at p. 425; People v. Simmons, supra, 213 Cal.App.3d at p. 581.)
In most cases in which a Mayberry defense is raised, the defendant testifies about his state of mind. (See People v. Simmons, supra, 213 Cal.App.3d at p. 579.) Joseph did not testify at trial and thus, did not offer any direct evidence on this issue. However, a defendant may also rely on circumstantial evidence of his state of mind at the time that the offense was committed. (See Maury, supra, 30 Cal.4th at p. 425; People v. Simmons, supra, 213 Cal.App.3d at p. 581.) That evidence may be part of the prosecution’s case, if it raises a reasonable doubt about whether the defendant held a reasonable, mistaken belief that the victim consented. (See, e.g., Williams, supra, 4 Cal.4th at p. 361; see also People v. Castillo (1987) 193 Cal.App.3d 119, 126 [victim’s testimony alone may form substantial evidence of equivocal conduct].)
If a defendant establishes his honest belief that the victim consented based on substantial evidence of her equivocal conduct, he must also provide objective evidence that his mistaken belief in her consent was reasonable under the circumstances. Thus, regardless of how strongly Joseph may have subjectively believed that Patricia had consented to sexual contact, that belief must be formed under circumstances that society will tolerate as reasonable in order for him to have adduced substantial evidence giving rise to a Mayberry instruction. (See Maury, supra, 30 Cal.4th at p. 424 [rape case]; Williams, supra, 4 Cal.4th at p. 361 [same].) The Mayberry instruction should not be given in the absence of substantial evidence of the victim’s equivocal conduct that could lead Joseph reasonably and in good faith to believe that consent existed when it did not. (See Williams, supra, 4 Cal.4th at p. 362.) If the defendant’s interpretation of the evidence of equivocal conduct is unreasonable, that evidence is insufficient to warrant a jury’s consideration of a mistake of fact defense. (See Williams, supra, 4 Cal.4th at p. 361; Mayberry, supra, 15 Cal.3d at pp. 156-157.)
C. Joseph’s Claims of Equivocal Conduct
1. Act Constituting Sexual Battery
Preliminarily, we consider what underlying act constituted sexual battery by restraint in the jury’s mind. The People contend that the jury’s verdicts compel the conclusion that the jury necessarily based its sexual battery by restraint verdict on the act of Joseph’s touching of Patricia’s breasts. Joseph argues that there were multiple acts that could have formed the basis of the guilty verdict and that we cannot draw any conclusion from the verdicts rendered and not rendered by the jury about which act constituted the touching necessary for sexual battery by restraint. A careful review of the record on appeal satisfies us that we can.
At trial, the prosecutor offered two acts that could constitute the conduct necessary for sexual battery. One act was Joseph’s fondling Patricia’s breasts as he disrobed her before intercourse. The prosecutor also argued that if the jury found that no penetration occurred to prove the alleged forcible rape, then Joseph’s touching of Patricia’s groin or vaginal area with his penis could constitute the conduct necessary for the sexual battery charge. The jury was given a unanimity instruction, requiring its members to agree on a single act constituting sexual battery by restraint in order to find Joseph guilty of this offense. (See CALCRIM No. 3500.) We presume that the jury followed this instruction. (People v. Fauber (1992) 2 Cal.4th 792, 823, cert. den. sub nom. Fauber v. California (1993) 507 U.S. 1007; People v. Bruce (1989) 208 Cal.App.3d 1099, 1106.) Defense counsel admitted that penetration occurred when he urged the jury to conclude that Joseph and Patricia had engaged in consensual sexual intercourse, effectively removing the element of penetration from issue on the forcible rape charge.
The jurors could not agree whether a forcible rape had occurred, but not because of any dispute about whether penetration—which had been admitted—occurred. Those same jurors were able to agree that Joseph was guilty of sexual battery by restraint. The juxtaposition of these facts convince us that the jury necessarily reached unanimous agreement that the act underlying the conviction for sexual battery by restraint was Joseph’s fondling of Patricia’s breasts. We analyze Joseph’s claim that the trial court should have given a Mayberry instruction on the sexual battery by restraint charge in light of our finding that the jury necessarily agreed on this underlying act.
2. Conduct Occurring After Completion of Sexual Battery
Joseph argues that certain of Patricia’s acts—including placing a condom onto his penis, holding his penis, deciding to allow him to attempt to have intercourse with her, telling him that she would come back for sex at another time, failing to call for help, and being initially reluctant to report a sexual assault—constitute substantial evidence of equivocal conduct on her part. However, each of these events occurred after Joseph had fondled Patricia’s breasts—the act that the jury necessarily concluded was the conduct satisfying the act element of the crime of felony sexual battery by restraint. (See pt. II.C.1., ante.) Logically, a victim’s conduct after an offense is completed cannot be relevant evidence of—much less constitute substantial evidence of equivocal conduct necessary to warrant a Mayberry instruction about—a defendant’s state of mind with regard to that already completed offense. That evidence was inadmissible to establish a mistake of fact defense to the charge of sexual battery by restraint because it had no tendency to prove or disprove the disputed fact—the defendant’s state of mind at the time of that offense. (See Evid. Code, §§ 210, 350; see also Maury, supra, 30 Cal.4that p. 425; People v. Simmons, supra, 213 Cal.App.3d at pp. 580-581.) Thus, we consider only the evidence of Patricia’s conduct before Joseph fondled her breasts to determine if there was substantial evidence of equivocal conduct with regard to the sexual battery by restraint charge.
In a rape case, the California Supreme Court has held that if there is substantial evidence of equivocal conduct, the Mayberry instruction must be given, even if the equivocal conduct occurs only after the defendant’s exercise or threat of force. Our state’s high court acknowledged that it might offend modern sensibilities to allow a defendant to assert a claim of reasonable and good faith mistaken belief in consent based on the victim’s behavior after the defendant exercised or threatened force, violence, duress, menace or fear of immediate bodily injury. However, it noted that a jury may credit some parts of a witness’s testimony but not others—and that a trial court cannot predict which evidence the jury will find credible. For this reason, the jury should be given a Mayberry instruction in an appropriate case, despite the alleged temporal context in which the equivocal conduct occurred. In such circumstances, the jury may also be instructed that a reasonable mistake of fact may not be found if the jury concludes that the victim’s equivocal conduct was the product of force, violence, duress, menace or fear of immediate bodily injury. (Williams, supra, 4 Cal.4th at p. 364.)
3. Conduct Occurring Before Completion of Sexual Battery
Joseph also characterizes certain of Patricia’s acts arising before he fondled her breasts as equivocal conduct. We consider each in turn, based on Patricia’s uncontradicted testimony about the circumstances leading to the sexual battery by restraint. First, he contends that she discussed the possibility of living with him. In fact, there was no evidence that she ever discussed such a possibility. To the contrary, Patricia testified that her friend Joseph had offered to let her stay overnight at his house if she did not have a ride from Valencia to her morning work shift. Patricia testified that Joseph told her that if she stayed with him, he would sleep in the living room. When asked on cross-examination if she discussed the possibility of moving in with Joseph, she specifically denied doing so. She testified that Joseph had earlier suggested to her that they share his room, but that she did not accept his offer. Thus, the record on appeal does not support Joseph’s claim that Patricia discussed the possibility of living with him.
The jury was properly instructed that counsel’s questions are not evidence. (See CALCRIM No. 222.)
Second, Joseph contends that Patricia called him twice to arrange to sleep in his bed, citing this as substantial evidence of equivocal conduct. Again, the record on appeal does not establish that she actually did as he asserts. Patricia testified that she asked on two occasions if she could stay overnight at his house—taking him up on his offer to give her his bedroom while he slept in the living room. The first time he agreed to allow this, she cancelled the arrangement when she learned that she could get a ride to work. Her testimony about these cancelled plans constituted evidence of unequivocal conduct, as it was consistent with her testimony that she planned to spend the night at Joseph’s house for practical, not romantic, reasons. Patricia specifically testified that she asked to spend the night at his house so she could get some sleep. She told the jury that she conveyed this to Joseph.
Patricia’s testimony established her willingness to spend the night at Joseph’s room by herself, not in his bed with him engaging in sexual conduct. The fact that a victim willingly accompanied a defendant to his home is not substantial evidence warranting a Mayberry instruction. The relevant inquiry under Mayberry is whether the victim consented to sexual touching—this evidence is relevant only to the question of whether the victim consented to come to the defendant’s home. To characterize this circumstance alone as a basis for a reasonable, good faith but mistaken belief in consent to sexual touching would revive the obsolete and repugnant idea that a woman loses her right to refuse sexual consent if she accompanies a man alone to a private place. (Williams, supra, 4 Cal.4th at p. 363.) Thus, Joseph’s proffered evidence does not constitute substantial evidence of equivocal conduct within the meaning of Mayberry.
This is precisely the outdated attitude that Joseph expressed to Patricia during the pretext call and to police.
Third, Joseph cites evidence that Patricia changed into her pajamas from her work clothes as substantial evidence of her equivocal conduct. The record on appeal does not support his implication that Patricia changed into clothing in preparation for sexual contact. To the contrary, Patricia testified that—as she expected that Joseph would sleep elsewhere and leave her free to sleep in his bedroom, she took off her outer clothing and put on a tee-shirt and yoga pants for sleeping. She did not remove her underpants and bra, but put her sleeping clothes on over them. The multiple layers of clothing formed a barrier to sexual touching, not an enticement to it—a circumstance that actually prompted Joseph to protest that Patricia was wearing too many clothes. A Mayberry defense cannot be raised without some evidence that the victim acted in a manner that could reasonably be misunderstood by the defendant. (People v. Romero (1985) 171 Cal.App.3d 1149, 1156.) Patricia’s testimony about the clothes that she wore to sleep in does not constitute evidence of equivocal conduct within the meaning of Mayberry and its progeny.
The last prefondling evidence that Joseph offers as substantial evidence of equivocal conduct is the fact that, dressed for bed, Patricia got on Joseph’s bed to watch a movie. She testified that she sat on the bed to watch television, which could only be seen if one was sitting on the bed. Patricia told the jury that she was on top of the covers, not under them. In our view, this evidence is too weak to rise to the level that a trial court should give a sua sponte jury instruction on the mistake of fact defense. (See Williams, supra, 4 Cal.4th at p. 361.) The evidence that Joseph cites, considered separately or collectively, does not constitute substantial evidence of Patricia’s equivocal conduct that could lead a reasonable defendant to have an honest belief that consent to engage in sexual conduct existed when it did not. (See Maury, supra, 30 Cal.4th at pp. 424-425.)
A trial court’s sua sponte duty to instruct on a specific defense arises only if it appears that the defendant is relying on the defense, or if there is substantial evidence of the defense and that defense is not inconsistent with the defendant’s theory of the case. (Maury, supra, 30 Cal.4th at p. 424 [defendant did not rely on mistake of fact defense at trial]; People v. Romero, supra, 171 Cal.App.3d at p. 1156.) In this matter, Joseph cannot point to substantial evidence of Patricia’s equivocal conduct from which a jury could find a mistake of fact defense to the charge of sexual battery by restraint. Thus, the evidence did not trigger a sua sponte duty to give a Mayberry instruction. (See, e.g., Maury, supra, 30 Cal.4th at pp. 424-425.) As Joseph was not entitled to a Mayberry instruction on the charge of sexual battery by restraint, the trial court did not err by failing to give one.
III. EXCLUSION OF EVIDENCE
A. Contentions on Appeal
Next, Joseph contends that the trial court should have admitted into evidence the full text of his interrogation by the sheriff. He reasons that the continuing nature of the dialogue between him and law enforcement officials during this interrogation required admission of his explanatory statements made after evidence of the pretext telephone call was admitted. He asserts both statutory and constitutional grounds for admission of this evidence, and argues that its exclusion constituted reversible error. (See U.S. Const., 6th & 14th Amends. [due process]; Evid. Code, § 356.)
Once the trial court ruled that it would allow the prosecution to admit evidence of the pretext call, Joseph sought to introduce evidence of the audiotaped statements he made to law enforcement officials during the subsequent search of his home. He estimated that no more than an hour and a half elapsed between the pretext call and the search. He challenged the admission of the evidence on statutory and constitutional due process, fair trial grounds.
For their part, the People sought to exclude the evidence as inadmissible hearsay and argued that Evidence Code section 356 did not apply to the two statements. (See Evid. Code, § 1200.) After hearing, the trial court found that Joseph did not satisfy the requirements of section 356, because the statements he made during the search were not part of the same conversation as the statements made during the pretext call. It cited the different circumstances of each set of statements—particularly the difference made in a telephone call between friends and that given to law enforcement officials—as evidence in support of its conclusion that these were two different conversations within the meaning of section 356.
B. Statutory Grounds
First, we consider Joseph’s claim that the proffered evidence should have been admitted on statutory grounds. He contends that his statement made to the sheriff was given shortly after the pretext call; that his apology in that call was ambiguous, and that his statement to the sheriff clarified that he was sorry that Patricia was upset, not that he apologized for any forcible conduct. According to the transcript of the audiotape, Joseph said that he did not force Patricia to have sex. When he apologized to her, he was sorry “because . . . I accepting that you come to my house. . . . [¶] . . . [¶] . . . [Patricia] act like she was upset . . . .”
When part of a conversation is given in evidence by one party, the whole on the same subject is a proper subject of inquiry by an adverse party. When a detached conversation is given into evidence, any other conversation necessary to make it understood may also be given in evidence. (Evid. Code, § 356.) This statute permits introduction of statements on the same subject or statements that are necessary for the understanding of a statement that has already been introduced. (People v. Harrison (2005) 35 Cal.4th 208, 239, cert. den. sub nom. Harrison v. California (2005) 546 U.S. 890; Maury, supra, 30 Cal.4th at pp. 419-420.) Its purpose is to prevent the use of selected aspects of a conversation to create a misleading impression. (People v. Williams (2006) 40 Cal.4th 287, 319, cert. den. sub nom. Williams v. California (Oct. 1, 2007, No. 06-11925) ___ U.S. ___ [2007 WL 1768464]; People v. Arias (1996) 13 Cal.4th 92, 156, cert. den. sub nom. Arias v. California (1997) 520 U.S. 1251.) There must be some showing that the second statement bears on or has some connection with the first to warrant admission into evidence. (People v. Arias, supra, 13 Cal.4th at p. 156.) If the second statement meets the requirements of admissibility under Evidence Code section 356 and is connected in some rational manner to the first statement, the hearsay rule will not preclude admission of the second statement. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 850.)
The determination of whether the two statements were part of the same conversation within the meaning of section 356 is a matter left to the discretion of the trial court. (See, e.g., People v. Williams, supra, 40 Cal.4th at p. 319.) On appeal, we review this trial court ruling for an abuse of discretion. (See ibid.; see also People v. Vieira (2005) 35 Cal.4th 264, 292, cert. den. sub nom. Vieira v. California (2005) 546 U.S. 984.) Given the lapse of time between the statements, the different locations in which they were made, and the different parties to whom they were made—one to a private citizen and one to law enforcement officials, we find that the trial court did not abuse its discretion when it ruled as it did. No misleading impression was created by admitting the statements Joseph made during the pretext call, but not the full text of those that he made to the sheriff during the search. (See, e.g., People v. Williams, supra, 40 Cal.4th at p. 319.) As the trial court acted within its authority when finding that Joseph did not meet the requirements for admission of this evidence pursuant to Evidence Code section 356, this evidence was properly excluded on statutory grounds.
C. Constitutional Grounds
Joseph also contends that the exclusion of evidence of the full text of his statement to law enforcement officials made during the search deprived him of his right to present a defense, in violation of his rights to a fair trial and to due process of law. (See U.S. Const., 6th & 14th Amends.) At a minimum, due process requires that a defendant be given a meaningful opportunity to present a defense and to be heard. (People v. Carlin (2007) 150 Cal.App.4th 322, 335.) The application of ordinary rules of evidence to bar unreliable hearsay evidence does not infringe on a defendant’s right to present a defense. Instead, it forms a limitation only to the form the evidence that the defendant may present and does not constitute a due process violation. (People v. Boyette (2002) 29 Cal.4th 381, 427-428; People v. Phillips (2000) 22 Cal.4th 226, 238, reversed in part on other grounds in Phillips v. Woodford (9th Cir. 2001) 267 F.3d 966, 976-986, 988; People v. Carlin, supra, 150 Cal.App.4th at p. 335.)
The trial court’s exclusion of this evidence did not implicate Joseph’s constitutional rights. Its ruling limited the manner in which Joseph could present evidence to explain statements he made during the pretext call. It did not preclude him from presenting this evidence in another manner, such as by testifying himself about them. (See, e.g., People v. Carlin, supra, 150 Cal.App.4th at p. 335.) Thus, the trial court’s ruling did not violate Joseph’s constitutional rights.
IV. BIAS
A. Facts
Third, Joseph contends that the trial court committed misconduct—demonstrating its bias in favor of Patricia—when it ordered that an interpreter be provided for her in the middle of her cross-examination to bolster her failing testimony. He reasons that by appointing an interpreter for her on its own motion, the trial court crossed the line from neutrality to advocacy for the prosecution. He argues on appeal that the trial court committed prejudicial error by this action, depriving him of his federal right to due process and to a fair trial. (See U.S. Const., 6th & 14th Amends.)
Before trial began, the prosecutor noted her intent to have Patricia testify in English without an interpreter. She asked the trial court to have an interpreter available in case one was needed. At the prosecution’s request, the trial court ordered that an interpreter be available on the morning of March 29, 2006. That court day was filled with jury selection, opening statements and preliminary jury instructions. On March 30, the jury heard its first witnesses in the case, including Patricia’s direct examination and the beginning of her cross-examination. At the close of that day’s proceedings, after the jury had been excused, the trial court suggested that an interpreter be provided for Patricia on the next court day, Wednesday, April 5. The prosecutor explained that she had arranged for one to be available that day and had no objection if the court wanted one to be made available for the next court day. Accordingly, the trial court ordered that an interpreter be available.
All subsequent calendar dates refer to the 2006 calendar year.
Before the jury returned to the courtroom on Wednesday, April 5, defense counsel objected to the provision of an interpreter during his cross-examination. He argued that having Patricia respond to his questions on cross-examination through an interpreter would give a different weight to her responses to his questions than her responses to direct examination. He feared that the jury would get the impression that Patricia, who had not seemed to need one during direct examination, had some problems during cross-examination. Defense counsel was concerned that the jury would conclude that Patricia’s difficulties during the initial stages of cross-examination that were conducted without an interpreter were merely language difficulties, not a lack of credibility. He feared that the jury would disregard the cross-examination that he had already conducted if the remainder of her responses to cross-examination were given through an interpreter.
The trial court disagreed with this assessment, stating that much time had been spent when Patricia required a question to be asked more than once in order to be able to respond to it. It offered to advise the jurors that the presence of an interpreter was intended to expedite the trial, and was done at the trial court’s request, not the request of either attorney. Joseph’s attorney objected to this plan, arguing that the jury might interpret this move as a court attempt to side with the prosecution in order to rehabilitate a witness that was not given a fair chance to present her testimony. The trial court denied this objection, ruling that it would tell the jury that it observed a need to ask repetitive questions during the earlier part of the trial, prompting the court to order an interpreter for Patricia. It did not believe that this change would signal its alliance with any side in the case. When the jury returned, the trial court explained that Patricia was being assisted by a Spanish language interpreter, at the trial court’s request. Although she appeared to be able to speak English, the trial court did not think that the trial went as smoothly as it could have on the previous day of trial, so it arranged to have an interpreter to assist Patricia.
B. Judicial Misconduct
On appeal, Joseph contends that the trial court communicated a bias in favor of Patricia when, after direct examination and much of his cross-examination was done, it ordered that an interpreter be provided for her over his objection. He suggests that Patricia’s credibility was faltering and the trial court acted to bolster it. Joseph urges us to find that the trial court committed misconduct and prejudicial error when it influenced the jury against him in this manner.
When a witness is incapable of understanding the English language or incapable of expressing oneself in English so that the witness can be understood directly by the court, the jury and counsel, an interpreter must be appointed for the witness. (Evid. Code, § 752, subd. (a).) The issue of whether an interpreter should be appointed is a matter for the trial court to determine, in its discretion. (People v. Augustin (2003) 112 Cal.App.4th 444, 450-451; see Cal. Law Revision Com. com., 29B pt. 2 West’s Ann. Evid. Code (1995 ed.) foll. § 752, p. 372.) Even if a witness can read, write or speak some English, the trial court retains the authority to appoint an interpreter. (People v. Santos (1933) 134 Cal.App. 736, 745.)
More generally, a trial court has a duty to provide for the orderly conduct of the proceedings before it. (People v. Alvarez (1996) 14 Cal.4th 155, 209, cert. den. sub nom. Alvarez v. California (1997) 522 U.S. 829; see Code Civ. Proc., § 128, subd. (a)(3).) It must control trial proceedings to promote the expeditious and effective ascertainment of truth regarding the matters involved. (§ 1044; People v. Pierce (1970) 11 Cal.App.3d 313, 321.) It has the specific duty to exercise reasonable control over the manner of witness examination; to make that examination as rapid, as distinct and as effective for the ascertainment of truth as may be; and to protect the witness for undue harassment or embarrassment. (Evid. Code, § 765, subd. (a).) We review the trial court’s exercise of its authority for an abuse of discretion. (People v. Alvarez, supra, 14 Cal.4th at p. 209.)
Even so, a trial judge must take care not to throw the weight of his or her judicial authority into a case, either for or against a criminal defendant. (People v. Mahoney (1927) 201 Cal. 618, 627.) In order that the public can have absolute confidence in the integrity and impartiality of our criminal justice system, judicial officers are required to avoid both impropriety and the appearance of impropriety. (People v. Carlucci (1979) 23 Cal.3d 249, 258.) We evaluate such issues on a case-by-case basis, depending on the content of the trial court’s comments to the jury and the circumstances under which the challenged act was made. (See People v. Melton (1988) 44 Cal.3d 713, 735, cert. den. sub nom. Melton v. California (1988) 488 U.S. 934; People v. Rodriguez (1986) 42 Cal.3d 730, 770 [judicial comment on evidence].)
In this matter, we find no trial court abuse of discretion. (See People v. Alvarez, supra, 14 Cal.4th at p. 209; People v. Melton, supra, 44 Cal.3d at p. 736.) Patricia was a native of Peru and spoke Spanish more fluently than English. The possibility that she might require the assistance of an interpreter had been noted even before she took the stand. Although Joseph characterizes her ability to respond to direct questioning as skilled and her answers on cross-examination as poor, the record shows ample evidence of her difficulty understanding the prosecutor’s questions and making coherent responses to the direct examination. Patricia’s similar difficulties with the English language continued—they did not first appear—on direct and cross-examination on her first day on the witness stand.
There is nothing inherently suspect about allowing a witness to begin without an interpreter and to appoint one later in that witness’s testimony, as the need appears. Courts have rejected claims of an abuse of discretion in cases in which the trial court first permits a witness to testify directly, and appoints an interpreter partway through that witness’s testimony when it becomes apparent that an interpreter would facilitate matters. (People v. Lacang (1931) 213 Cal. 65, 69; People v. Miller (1923) 64 Cal.App. 330, 335.) While some cases hold that it may be an abuse of discretion to refuse to appoint an interpreter, we have not been cited to any case in which the trial court abused its discretion by calling one to assist the jury’s understanding of a witness’s testimony. (See People v. Santos, supra, 134 Cal.App. at p. 745.)
The record on appeal supports our conclusion that the trial court did not align itself with the prosecutor in the minds of the jurors. (See, e.g., People v. Pierce, supra, 11 Cal.App.3d at p. 321.) The discussion of whether an interpreter was appropriate arose outside the hearing of the jury. The jury heard no discourteous or disparaging remarks made about any of the parties. (See, e.g., People v. Mahoney, supra, 201 Cal. at pp. 621-627.) The trial court explained to the jury that it made this decision on its own motion, in order to make the trial go more smoothly. This evidence supports the inference that the trial court was simply trying to meet its duty to control the proceedings. (See § 1044; Code Civ. Proc., § 128, subd. (a)(3); Evid. Code, § 765, subd. (a).) The record reveals no evidence of any partiality on the trial court’s part. Certainly, the split verdict in this case—which hung on two counts and found only one of three charges to be proven beyond a reasonable doubt—does not support any inference that the trial court exerted a prosecutorial bias that actually influenced the jury. All of these circumstances combine to satisfy us that the trial court’s appointment of an interpreter for Patricia did not indicate a bias in her favor. As the trial court committed no impropriety, Joseph’s claims that his trial was unfair and was conducted in violation of his due process rights are without merit. (See People v. Carlucci, supra, 23 Cal.3d at p. 259.)
V. RECESS
A. Trial Court Proceedings
Joseph also contends that the 11-day recess after the jury deadlocked twice deprived him of due process. He argues that there was no good cause for the extended recess, which deprived him of deliberations uninterrupted by outside influences. He reasons that the trial court erred when it denied his motion for mistrial urged on this ground and asserts that we must presume that prejudice arose from the delay in deliberations.
In fact, Joseph claims that the recess was 12 days. However, we calculate the recess to be 11 days. (See fn. 20, post.)
The court expected to select the jury and begin putting on evidence sometime between Tuesday, March 28 through Thursday, March 30, knowing that there would be a break of a few days after March 30 before the trial could resume on Wednesday, April 5. It planned that the trial would proceed for three court days, through Friday, April 7, when the trial court expected that it would be completed. The trial court asked the jurors to be available if needed on Tuesday, April 11, as well.
In fact, the jury began deliberating on Friday, April 7. Twice, the jury advised the judge that it was deadlocked on all three counts. The first time, the trial court instructed the jury to continue deliberating after reminding the jurors of their obligation to follow its instructions, even if they disagreed with them. Within minutes of the second notice of deadlock, the jury countered this notice, indicating that deliberations had actually resumed.
Before another hour passed, the jury notified the judge a third time that it was deadlocked again. In court, several members of the jury felt that their deliberations were being rushed because of time constraints. The jurors felt that they needed more time to deliberate. Some of them had trips planned and needed personal time for other reasons—the time for beginning those plans was looming. Many members of the jury believed that they might make more progress if they knew that those time constraints were removed. The judge asked the jury to discuss among themselves how long of a break they would need.
While the jurors discussed this matter among themselves, the trial court weighed the possibility of substituting alternate jurors for two jurors who seemed particularly concerned about time pressures because of their schedules. The prosecution favored this approach over a lengthy break in deliberations, but defense counsel objected to substitution of alternate jurors for these two jurors. By this time in the trial, one of the three alternate jurors had already been substituted in for a member of the original panel who had been excused during trial.
The jury returned with a request to resume deliberations on Wednesday, April 19, as long as one juror’s court conflicting appearance then scheduled for Wednesday, April 12 was resolved. The trial court continued the case until Wednesday, April 19, when the jury would resume deliberations. It instructed the jurors not to read newspaper articles and not to discuss the case with anyone during this break in the deliberations.
On Tuesday, April 18, the defense moved for a mistrial, arguing that the delayed deliberations prejudiced Joseph because of the prolonged exposure of jurors to outside influences, the fading of memory of the evidence and the instructions, and a subversion of orderly deliberation. During voir dire, the trial court had told the jury that the case might take as long as three weeks to try, although the trial might not be conducted on every day of the week. The court expected that it would substitute one or more of the three alternates for any jurors who could not participate beyond Friday of the third week. By the time that the issue arose, the trial court had only two alternates and the defense would have had to accept a jury of only eleven, which it was not required to do. Instead, the court ordered the jury to return after a break in the deliberations. There was never any discussion of an 11-day continuance in deliberations when the jury was impaneled, Joseph protested. The prejudice was keener, given the fact that the jury had twice announced that it was deadlocked.
The prosecutor opposed the motion for mistrial. It noted that the juror who appeared to be having some difficulty applying the trial court’s instructions—who was perceived as the holdout juror for the defense—was one of the jurors who would have had to leave the proceedings if they were not continued. The prosecutor noted that Joseph had affirmatively objected to a proposal to replace that juror with an alternate juror, as that juror appeared to be the one who was holding out for a defense verdict. She noted that the jurors chose the return date, which the trial court adopted and did not attempt to prolong. Finally, the prosecutor argued that there was no prejudice to Joseph from the procedure being used and that the trial court had good cause to use it.
The trial court denied the motion for mistrial. It distinguished the facts of Joseph’s cited cases, noting that in one of those cases, there was no good cause for delay. Joseph’s case was being tried shortly before Marin County schools had their spring break week, affecting at least two members of the jury. A third juror had a business trip scheduled for this same time. It also observed that Joseph used only three of his peremptory challenges, even though he knew that these three sitting jurors had potential scheduling issues. When the jury announced that it was deadlocked, the trial court intended to declare a mistrial, but—to its surprise—a majority of the jurors indicated that additional time might help them reach a conclusion. The jurors came up with a return date that worked for them. The trial court did not explore substituting alternative jurors, because Joseph had objected to that approach and had not objected to the continuance. It also noted that it admonished the jurors not to read the newspaper or talk about the case until they resumed deliberations. For all these reasons, the trial court denied the motion for mistrial.
The trial court counted that the People used five of its peremptory challenges.
When Joseph protested that he was not required to use a peremptory challenge if a hardship or challenge for cause should have been granted, the trial court observed that he did not make any request for hardship or challenge for cause.
On the morning of Wednesday, April 19, the jury resumed its deliberations. That afternoon, it advised the trial court that it had reached a verdict on one count but were deadlocked on the other two charges. The jurors did not believe that any further deliberations would be helpful. The jury found Joseph guilty of only one charge—felony sexual battery by restraint. (See §§ 236, 261, subd. (a)(2), 243.4, subd. (a).)
Thus, the jury deliberations were suspended for 11 calendar days, of which seven were court days.
The jury’s note to the trial court stated that the jury was deadlocked 10 to 2 on the rape charge, 11 to 1 on the sexual battery by restraint charge and 8 to 4 on the false imprisonment count.
This time, the jury included no numerical vote breakdown in this note.
B. Requirement of Timely Objection
Joseph contends that the delay of 11 calendar days—of which seven were court days—exposed the jurors to outside influences, to a fading of recollection of the evidence and instructions, and generally subverted the pattern of order deliberations. (See People v. Santamaria (1991) 229 Cal.App.3d 269, 277-283.) The People counter that Joseph forfeited his right to raise this issue on appeal when he made no timely objection to the trial court’s proposed continuance. For his part, Joseph argues that his objection made on the day before trial resumed was sufficient to preserve the merits of this issue for our determination on appeal.
Typically, objections to trial continuances that are not raised at trial are not considered for the first time on appeal. (People v. Bolden (2002) 29 Cal.4th 515, 561-562, cert. den. sub nom. Bolden v. California (2003) 538 U.S. 1016 [break in deliberations]; People v. Ochoa (2001) 26 Cal.4th 398, 440-441, cert. den. sub nom. Ochoa v. California (2002) 535 U.S. 1040 [midtrial continuance], disapproved on another point in People v. Prieto (2003) 30 Cal.4th 226, 263 fn. 14, cert. den. sub nom. Prieto v. California (2003) 540 U.S. 1008; People v. Harris (1977) 73 Cal.App.3d 76, 83 [break in deliberations]; see also People v. Gutierrez (2002) 28 Cal.4th 1083, 1162, cert. den. sub nom. Gutierrez v. California (2003) 538 U.S. 1001 [break in deliberations].) The Santamaria court did not allow the People to raise the defendant’s lack of objection for the first time on appeal after oral argument had been completed. When rejecting this late attempt to raise an issue on appeal, that court indicated that the magnitude of the error in that case was such that the defendant’s failure to object would have been irrelevant. (People v. Santamaria, supra, 229 Cal.App.3d at p. 279 fn. 7.) The cited language from Santamaria has also been rejected by at least one appellate court as “ambiguous and possibly misleading dictum” that is “clearly wrong.” (See People v. Johnson (1993) 19 Cal.App.4th 778, 792-794.) Appellate court dictum does not provide a strong basis for ignoring California Supreme Court authority.
A second reason undermines the applicability of the cited language to the case before us. In Santamaria, the trial judge recessed deliberations for its own convenience, rejecting the alternative of having another judge preside over the case during the deliberations phase. (See People v. Santamaria, supra, 229 Cal.App.3d at p. 275.) Our Supreme Court has distinguished Santamaria on its facts. (See People v. Ochoa, supra, 26 Cal.4th at pp. 440-441.) As in Ochoa, the situation in our case is less egregious than that presented in Santamaria, so we also find that this reason supports our decision not to apply its dictum to Joseph’s case.
Joseph also asserts that this result is contrary to the general rule that violations of fundamental constitutional rights are not waived by mere silence. (People v. Resendez (1993) 12 Cal.App.4th 98, 113-114.) Two reasons persuade us otherwise. First, the California Supreme Court has held that the failure to object in similar circumstances waives even constitutional claims. (See People v. Ochoa, supra, 26 Cal.4th at pp. 440-441.) Even if this were not the law, Joseph did more than merely remain silent—defense counsel objected to the trial court’s other option of substituting alternate jurors for two members of the empanelled jury whose schedules prevented more timely deliberations. (See People v. Bolden, supra, 29 Cal.4th at p. 561 [defendant opposed option of allowing jurors to deliberate on the last Friday before Christmas]; People v. Gutierrez, supra, 28 Cal.4th at p. 1162 [defendant agreed to recess and rejected proposal to continue deliberations before substitute judge].)
In his reply brief, Joseph also argues that we may not reach a result inconsistent with Santamaria—a decision of Division Three of this District—without a compelling reason for doing so. We find two compelling reasons. Factually, our case is different from one in which a defendant merely fails to object to a continuance because Joseph’s counsel actively opposed the alternative option of replacing some of the jurors with the two remaining alternates in order to avoid the delay about which the defendant now complains. Legally, we are satisfied that the repeated pronouncements of the California Supreme Court requiring a timely objection—cases that were announced after the appellate decision in Santamaria—provide just such a compelling reason for us. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; see also People v. Bolden, supra, 29 Cal.4th at pp. 561-562 [2002 case]; People v. Gutierrez, supra, 28 Cal.4th at p. 1162 [2002 case]; People v. Ochoa, supra, 26 Cal.4th at pp. 440-441 [2001]; People v. Santamaria, supra, 229 Cal.App.3d at pp. 277-283 [1991 decision].)
C. Ineffective Assistance of Counsel
Finally, Joseph contends that his trial counsel was ineffective because he failed to make a timely objection that preserved this issue for appeal. In order to demonstrate ineffective assistance of counsel, a defendant must establish both that counsel’s representation fell below an objective standard of reasonableness and that it is reasonably probable that, but for counsel’s error, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 686-688, 694-695; Maury, supra, 30 Cal.4th at p. 389.) To prevail, a defendant must establish incompetence by a preponderance of evidence. (People v. Ledesma (1987) 43 Cal.3d 171, 218.) Joseph cannot establish sufficient evidence to prove either prong of this test by a preponderance of evidence.
When evaluating whether defense counsel’s representation fell below an objective standard of reasonableness, we make a highly deferential review of counsel’s performance. (Strickland v. Washington, supra, 466 U.S. at p. 689.) Joseph must overcome the presumption that under the circumstances, the challenged action might be considered a sound tactical decision. (See ibid.) In this matter, there was an obvious tactical reason for defense counsel’s decision to prefer a delay over substitution of alternate jurors for the two jurors that the trial court identified as ones to be replaced in order to proceed more rapidly to a verdict. One of these two jurors was the one that defense counsel believed was the holdout juror for the defense. To replace that juror with an alternate who might not have entertained the same doubts about Joseph’s guilt was a wise tactical decision. Thus, Joseph cannot establish that trial counsel’s representation fell below an objective standard of reasonableness.
Even if he could do so, Joseph cannot demonstrate any prejudice resulting from this purported failing of counsel. If we addressed this issue on the merits, we would not find error. Five of the seven court days when deliberations were continued fell during a holiday season when the jurors were likely to be particularly inconvenienced by jury duty. (See People v. Bolden, supra, 29 Cal.4th at pp. 561-562.) The recess was for the convenience of the jurors, not the judge’s personal convenience. (See id. at p. 562.) Joseph actively opposed other means of addressing the possibility of delayed deliberations. His claim that the jury’s verdict convicting him of one of the three charges against him was the prejudicial result of the recess is mere speculation. (See People v. Gutierrez, supra, 28 Cal.4th at p. 1162.) For all these reasons, Joseph cannot establish the prejudice needed to prove ineffective assistance of counsel. (See Strickland v. Washington, supra, 466 U.S. at pp. 686-688, 694-695.)
Finally, Joseph contends that the cumulative effect of these errors requires reversal of the judgment, even if the errors do not warrant reversal on separate grounds. As we find no error occurred, this contention necessarily fails.
The judgment is affirmed.
We concur: Ruvolo, P.J., Sepulveda, J.
We find that our case is factually distinguishable from this authority. In Williams, the conduct asserted to be equivocal arose before penetration occurred. Thus, regardless of when the conduct occurred, it necessarily arose before the rape was completed. In our case, the only evidence before the jury of sexual battery by restraint was Patricia’s testimony that Joseph touched her breast. In Williams, the defendant testified about the events leading up to the charges, putting much of the victim’s testimony in dispute. (See Williams, supra, 4 Cal.4th at p. 362.) In our case, when there was no undisputed evidence of any equivocal conduct occurring until after the touching, then this evidence cannot have any tendency to support a defense to an intent to commit the crime of sexual battery by restraint after that offense had already been completed. (See Evid. Code, §§ 210, 350; see also Maury, supra, 30 Cal.4th at p. 425 [equivocal conduct must relate to defendant’s state of mind at time of commission of offense].) Thus, we conclude that the Williams “temporal context” language does not apply in a case such as the one before us.