Opinion
B302046
06-19-2020
THE PEOPLE, Plaintiff and Respondent, v. ANDRE MOORE, JR., Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Joseph P. Lee and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA474117) APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen A. Marcus, Judge. Affirmed. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Joseph P. Lee and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Andre Moore, Jr. was convicted of two counts of forcible rape, as defined by Penal Code section 261, subdivision (a)(2). The trial court imposed an aggregate prison sentence of 30 years to life, which is comprised of two consecutive sentences of 15 years to life in state prison for each rape conviction.
Undesignated statutory citations are to the Penal Code.
On appeal, Moore claims that the trial court erred in instructing the jury on witness credibility and inferences the jury could draw from any pretrial false or misleading statements by Moore regarding the offenses before the jury. Moore also contends the trial court erred in refusing to instruct the jury that a person—here, one of the victims—is guilty of a misdemeanor if she knowingly falsely reported to any peace officer that a felony or misdemeanor had been committed. We conclude that the trial court's instructions on credibility and inferences to be drawn from any false or misleading statements by Moore were not erroneous. We also conclude that the trial court's refusal to give Moore's pinpoint instruction regarding the victim's false statements to law enforcement was harmless. We thus affirm.
PROCEDURAL BACKGROUND
On June 10, 2019, the People filed an amended information charging Moore with three counts of forcible rape, as defined by section 261, subdivision (a)(2) (counts 1, 2, and 4), and one count of sodomy by use of force, in violation of section 286, subdivision (c)(2)(A) (count 3). Count 1 alleged that Moore committed forcible rape against Katrina on or about January 2, 2019. Counts 2 and 4 alleged that Moore committed forcible rape against Esmeralda on or about June 25, 2018. Count 3 alleged that Moore committed sodomy by use of force against Esmeralda on or about June 25, 2018. The People further alleged that for purposes of section 667.61, subdivisions (b) and (e)(4), Moore committed an offense specified under section 667.61, subdivision (c) against more than one victim. Moore later pleaded not guilty to all counts and denied any and all special allegations.
Near the conclusion of the trial, Moore's counsel requested the following jury instruction: "Every person who reports to any peace officer that a felony or misdemeanor has been committed, knowing the report to be false, is guilty of a misdemeanor." The defense argued that the instruction was appropriate because Esmeralda admitted that when the investigating officers first interviewed her, she falsely reported that she had been kidnapped by two Black men and was raped by one of them in a car. The People countered that the instruction was unnecessary and that it would confuse the jury because the charges before the jury were brought against Moore, and not against Esmeralda.
The trial court rejected this pinpoint instruction, reasoning that Esmeralda did not possess "criminal intent" when she made the false report to police, the instruction was unnecessary, and it could suggest the court believed that Esmeralda committed a crime. The court informed Moore's trial counsel that he would "be permitted to argue as to her credibility that she filed this report, . . . and make the jury aware of that." It also opined that Moore would "not be harmed . . . in any way if" this instruction was not provided to the jury because Moore's attorney could argue that Esmeralda's "filing a false police report reflects on her credibility."
The jury found Moore guilty of counts 1 and 2, and found true the allegation that there was more than one victim for the purposes of section 667.61, subdivisions (b) and (e)(4). The jury found Moore not guilty of count 3 and was unable to reach a unanimous verdict on count 4. At the People's request, the trial court later dismissed count 4.
On October 23, 2019, the trial court sentenced Moore to an aggregate prison term of 30 years to life, comprised of 15 years to life on count 1 and a consecutive sentence of 15 years to life on count 2, both of which the trial court imposed pursuant to section 667.61, subdivisions (b) and (e)(4). Later that day, Moore appealed the judgment of conviction.
FACTUAL BACKGROUND
At trial, the People's principal witnesses were Esmeralda and Katrina. Moore testified in his own defense. Below is a summary of the People's and the defense's respective theories of the case.
1. The People's Theory of the Case
A. Moore's rape of Esmeralda
Several days before June 25, 2018, Moore approached Esmeralda near her place of employment, a shoe store in downtown Los Angeles. Moore introduced himself and asked for Esmeralda's cellular telephone number; although she did not initially provide Moore with her number, he used her cellular telephone to call himself. Subsequently, the two of them sent "flirtatious" text messages to one another.
On June 25, 2018, Esmeralda and Moore met at a restaurant for lunch. During the lunch, Moore behaved rudely and made Esmeralda feel uncomfortable by making certain remarks concerning her body. After lunch, Moore escorted Esmeralda to his apartment building; Esmeralda entered the building because she felt intimidated by him.
Moore and Esmeralda entered Moore's apartment. Moore began kissing Esmeralda, and Esmeralda pulled away from him. Moore thereafter became more aggressive.
Moore told Esmeralda that she was going to be the mother of his children, and Esmeralda stated that he was crazy and that he should not do anything that he would regret. Moore picked Esmeralda up and tossed her onto his bed. He told Esmeralda to take off her clothing and, after she refused to do so, he undressed her. As Esmeralda began to cry, Moore told her to shut up.
Moore penetrated Esmeralda with his penis for approximately 20 minutes and ejaculated inside her. Moore flipped Esmeralda over and touched her anus with his penis. Moore flipped Esmeralda over again, put his penis inside her vagina, and ejaculated in her once more.
On the evening of June 25, 2018, a registered nurse collected swabs of biological material from certain parts of Esmeralda's body. The swab of Esmeralda's anus contained Moore's DNA.
Moore told Esmeralda to forget her family and that she was going to have a family with him. Moore threw Esmeralda's pants at her but kept her underwear. Moore later walked with Esmeralda to a bus stop and gave her a kiss before she got onto a bus.
After she arrived at her home, Esmeralda told her mother that she had been raped. At Esmeralda's mother's urging, Esmeralda contacted the police. Initially, Esmeralda told investigating officers and a nurse who examined her that two Black men took her into a car by force, and that one of the two men raped her in the vehicle. Esmeralda lied to law enforcement because she "freaked out," she blamed herself for meeting Moore, and Esmeralda believed that she betrayed her boyfriend. Esmeralda later told the police that Moore was the person who actually raped her.
Esmeralda and Katrina do not know each other.
B. Moore's rape of Katrina
On the afternoon of January 2, 2019, Katrina went to Moore's apartment building for the purpose of visiting her ex-girlfriend, L.G., who lived on the third floor of the building. At that point, Katrina was feeling the effects of the brandy and the four 16-ounce cans of malt liquor beer that she had recently consumed. As Katrina attempted to enter an elevator, a security guard asked Moore if Katrina was with Moore, and Moore told the security guard that she was with him. Katrina had never seen Moore before and did not know him.
Moore entered the elevator with Katrina. When Katrina attempted to press the button for the third floor, Moore stated that she could not go to that floor and that she needed to go upstairs with him because cameras were recording them. Katrina accompanied Moore so that the building's management would not discover that Moore had lied by claiming that Katrina was his guest. After the elevator arrived at the ninth floor, Moore told Katrina that she needed to go into his apartment because cameras were still recording them.
Moore and Katrina entered Moore's apartment and, for the next 10 to 15 minutes, Katrina told Moore about her lesbian relationship with L.G. Moore was "acting weird" and walking behind her. Katrina responded by telling Moore that she was gay and that he should stop that behavior.
Moore grabbed Katrina by her hair and threw her onto his bed. Moore took Katrina's pants and underwear off, and penetrated her vagina with his penis. Moore removed Katrina's tampon, threw it out the window, and once again inserted his penis into her vagina. Katrina unsuccessfully tried to push Moore away, and Moore bit Katrina's breast, leaving a mark. Moore ejaculated on Katrina's left leg and told her to leave his apartment.
A nurse examiner later took swabs of biological material from certain parts of Katrina's body. Male DNA was detected on the left back thigh swab; the male DNA profile generated from that sample was consistent with Moore's DNA profile.
Katrina went to L.G.'s apartment and told L.G. that Moore raped Katrina. L.G. telephoned the police and reported the rape. Katrina and L.G. left L.G.'s apartment so that they could speak with the building manager. At that time, Moore approached Katrina and L.G., and Katrina hit Moore. Moore then punched Katrina's face and left.
2. The Defense's Theory of the Case
At trial, Moore attempted to undermine Esmeralda's and Katrina's credibility. Moore also contended that Esmeralda and Katrina went to Moore's apartment voluntarily, and that Moore had consensual sex with both women. He argued that Esmeralda falsely claimed Moore had raped her to conceal the fact that she had been unfaithful to her boyfriend. Moore further argued that Katrina had sex with him in order to get revenge against L.G. because L.G. had cheated on Katrina. He also contended Katrina lied when she told L.G. that Moore had raped her so that L.G. would have sympathy for Katrina.
DISCUSSION
Moore argues we should reverse his judgment of conviction because the trial court committed instructional error. Specifically, he contends that "the particular amalgam produced by the general instruction regarding witness credibility [(CALCRIM No. 226)], the particular instruction regarding the specific effect of the defendant's false statements [(CALCRIM No. 362)], and the refusal to give [Moore's requested] pinpoint instruction regarding the false police reports, worked to violate [Moore's] constitutional rights to due process and a fair trial." For the reasons discussed below, we conclude the trial court did not err in instructing the jury with CALCRIM Nos. 226 and 362, and Moore has not shown that the trial court's refusal to issue his pinpoint instruction was prejudicial.
First, Moore contends that CALCRIM Nos. 362 and 226 prevented the jury from deciding whether to disbelieve all or only part of Moore's trial testimony if the jury believed that he deliberately lied about the rapes in statements he had made before trial. The pertinent portion of CALCRIM No. 362 that the trial court read to the jury provided: "If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
Moore's assertion that CALCRIM No. 362 precluded the jury from deciding whether to disbelieve only part of his testimony (as opposed to its entirety) is unavailing. The text of the instruction explicitly allows the jury to decide the meaning and importance of a finding that the defendant intentionally or knowingly made a false or misleading pretrial statement relating to the charged crime. In addition, in giving CALCRIM No. 226, which governs witness credibility generally, the trial court instructed the jury that it "may believe all, part, or none of any witness's testimony," an instruction that would cover Moore's testimony as well. (Italics added.) Thus, Moore has not demonstrated that the trial court erred in giving CALCRIM Nos. 226 and 362. (See People v. Johnson (2009) 180 Cal.App.4th 702, 707 [" ' " 'In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]' " [Citation.] "Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." [Citation.]' [Citation.]"].)
Next, Moore contends the trial court should have given the jury his proposed pinpoint instruction, which would have provided: "Every person who reports to any peace officer that a felony or misdemeanor has been committed, knowing the report to be false, is guilty of a misdemeanor." Moore argues that this instruction was significant to his defense because (a) the instruction could have persuaded the jury that Esmeralda was not trustworthy because her initial false report about being raped in a car by a Black man constituted "a misdemeanor that goes to the very heart of [her] credibility"; and (b) "the jury should also have understood that Esmeralda's potential misdemeanor liability for lying to police would encourage her to stick by her second story" that Moore raped her. As discussed below, even assuming arguendo the trial court erred in refusing to give this instruction—an issue we do not decide—Moore has failed to show that any such error was prejudicial.
As noted in our Procedural Background, Esmeralda initially told the police that two unidentified Black men kidnapped her and forced her into a car, and that one of the two men raped her in the vehicle. Later, Esmeralda claimed that Moore, who is Black, coerced her to accompany him to his apartment and raped her therein.
Moore contends we should measure the prejudice flowing from the trial court's failure to give his pinpoint instruction by the federal standard announced in Chapman v. California (1967) 386 U.S. 18 (Chapman). "The beyond-a-reasonable-doubt standard of Chapman 'requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' " (People v. Neal (2003) 31 Cal.4th 63, 86, quoting Chapman, at p. 24.) We disagree that Chapman controls.
People v. Murillo (1996) 47 Cal.App.4th 1104 (Murillo), is instructive on the applicable standard of review. There, the court held that the standard announced in People v. Watson (1956) 46 Cal.2d 818, governs a claim of error arising from a trial court's failure to give an instruction on witness credibility because that error does not constitute a violation of the federal constitution. (Murillo, supra, 47 Cal.App.4th at pp. 1107-1108.) Under the Watson standard, Moore must make an " 'affirmative showing' " that it is " 'reasonably probable' [he] would have obtained a more favorable outcome had the [alleged] error not occurred." (See People v. Breverman (1998) 19 Cal.4th 142, 178; Conservatorship of Maria B. (2013) 218 Cal.App.4th 514, 532-533.)
Moore's invocation of the Chapman standard appears to rest on his claim that the omission of the pinpoint instruction "violate[d] [his] constitutional rights to due process and a fair trial" because "it is a violation of the fundamental due process principle of reciprocity to mitigate the false accusations and reporting offenses of a Government witness while isolating and underscoring the defendant's prior inconsistencies." None of the cases Moore cites in support of this reciprocity principle holds that the instructional error he raises constitutes a federal due process violation. (See Wardius v. Oregon (1973) 412 U.S. 470, 471-472 [holding that Oregon's rule requiring a criminal defendant to disclose his alibi defense without authorizing reciprocal discovery against the state violated the Fourteenth Amendment's due process clause]; People v. Tillis (1998) 18 Cal.4th 284, 287 [concluding that the prosecution did not violate due process by impeaching a witness with evidence that had not been disclosed to the defendant before trial]; Brodit v. Cambra (9th Cir. 2003) 350 F.3d 985, 989-990 [reviewing a state court's decision that certain hearsay exceptions did not violate Wardius because these exceptions were available to the prosecution and the defense].) It is telling that Moore's reply does not counter the People's contention that Watson supplies the applicable standard of review for prejudice here.
On the merits, Moore has not demonstrated that the trial court's refusal to give Moore's pinpoint instruction on false reports of a crime to law enforcement was prejudicial under Watson. At trial, defense counsel conveyed to the jury the substance of Moore's requested pinpoint instruction. In particular, defense counsel contended that Esmeralda made "a false claim of rape and kidnapping" when she told officers "an elaborate story about what happened to her being kidnapped in broad daylight in downtown Los Angeles." Trial counsel further pointed out that under section 148.5, "[a]ny person who files a false police report with any peace officer, knowing that the report is false, is guilty of a misdemeanor." (See also § 148.5, subd. (a) [providing that such conduct constitutes a misdemeanor].) The attorney also argued that after the police had discovered Esmeralda's lie, Esmeralda continued to claim falsely that she had been raped. The defense attorney reasoned Esmeralda did so to avoid admitting to officers they had wasted time investigating a serious offense that had not occurred. Because the People did not lodge an objection to any of these arguments, nothing prevented the jury from considering them.
Further, in giving CALCRIM No. 226, the trial court told the jury that it "may consider anything that reasonably tends to prove or disprove the truth or accuracy of [the witness's] testimony," and that one of the factors a jury may consider is whether "the witness ma[de] a statement in the past that is consistent or inconsistent with his or her testimony." This instruction allowed the jury to adopt Moore's theory that Esmeralda was not credible because she had initially lied to the police about the rape.
Moore concedes his trial counsel "argued that Esmeralda was guilty of violating . . . section 148.5." Nonetheless, Moore seems to argue he was prejudiced by the omission of his pinpoint instruction because the jury was also told that "such an argument [on the part of defense counsel] is subject to the rule that arguments 'are not evidence.' " Instructions are not evidence either and we fail to discern how instructing the jury on the truism that argument is not evidence was prejudicial. As set forth above, defense counsel emphatically argued to the jury the negative impact of Esmeralda's lie to law enforcement on her credibility as to her rape claim, and the trial court instructed the jury that it could take a witness's prior inconsistent statement into account in evaluating the witness's credibility.
Moore further contends that this was a "close case" because "[t]here was a massive amount of readback requested, seeming to target the . . . [alleged victims'] testimony [regarding] the sexual encounters"; "the deliberations were relatively lengthy"; and "the jury acquitted [Moore] on count 3, and was unable to reach a verdict on count 4, belying any wholesale belief in the two complainants' accounts." Even if this were a "close case" for the reasons Moore identifies, Moore has failed to link those reasons to prejudice under the Watson standard where defense counsel argued to the jury that Esmerelda's lie was a crime and that the jury could take that lie into account in discounting her testimony that Moore raped her.
Accordingly, Moore has failed to demonstrate that had the trial court given his pinpoint instruction, there is a reasonable probability that the jury would have acquitted him on one or both of the counts of rape for which he was ultimately convicted. (Cf. People v. Wharton (1991) 53 Cal.3d 522, 569-572 [holding that the failure to provide a defendant's requested instruction on provocation was harmless in part because the defendant's trial counsel argued that theory to the jury and "no instruction preclud[ed] the jury from" adopting that theory]; Murillo, supra, 47 Cal.App.4th at pp. 1106-1109 [holding that the failure to provide a defendant's requested instruction on witness credibility was harmless in part because the defendant's counsel argued the principle from the requested instruction to the jury and the instructions given were consistent with the requested instruction].)
DISPOSITION
The judgment of conviction is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J. We concur:
ROTHSCHILD, P. J.
CHANEY, J.