Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF104390A.
RAYE, P. J.
Following a jury trial, defendant Wayne Laverne Rose was convicted of three counts of forcible sexual penetration with a foreign object (Pen. Code, § 289, subd. (a)(1)), two counts of forcible rape (§ 261, subd. (a)(2)), three counts of forcible oral copulation (§ 288a, subd. (c)(2)), two counts of burglary (§ 459), and a single count of attempted rape (§§ 664/261, subd. (a)(2)), along with one-strike enhancements for committing the sex offenses during the commission of a residential burglary (§ 667.61, subd. (d)(4)). He was sentenced to 127 years to life in state prison.
Subsequent undesignated statutory references are to the Penal Code.
On appeal, defendant contends (1) stationing a support person next to the victim while she testified violated his Sixth Amendment right to confrontation; (2) it was error to instruct the jury with CALCRIM No. 362; (3) CALCRIM No. 1190, given by the court, is unconstitutional; and (4) there is insufficient evidence to support several of the one-strike enhancements and one of his burglary convictions. We shall affirm.
FACTS
Forty-eight-year-old Joy D. lived alone in her Stockton apartment and worked in the mailroom and another department of a school. According to her supervisor, Joy was a “special needs” person. A police officer who interviewed Joy described her as “[v]ery simple, somewhat slow. Child like, I guess.”
In the early morning of December 27, 2006, Joy was awakened by banging on her front door. She went to the living room to investigate and heard a man talking through the front door. The man said there had been a break-in at the apartments, he worked for the apartment owner, and he had to check all of the apartments to make sure everything was okay.
Joy opened the door slightly and said everything was okay. The man reiterated his claim and told Joy he had to come into her apartment. The man, whom Joy identified at trial as defendant, entered the apartment even though Joy told him to come back in the daytime.
Joy then told defendant to get out and tried to push him back. Defendant grabbed Joy by the right hand and took her to the bedroom. Defendant pushed Joy onto the bed and said, “I want to just touch your breasts for a few moments before I leave.”
Defendant touched Joy’s breasts and removed her clothes, overpowering her efforts to fight back. Next, defendant licked her breasts and put his penis in her mouth. When Joy began gagging, defendant got angry, told her to “shut up, ” and moved his penis to her vagina. Defendant put his penis partially in Joy’s vagina while she was on her back. He then put Joy on top of him, and repeated the act. Defendant also placed Joy on all fours and had intercourse with her again. He also put his fingers in Joy’s vagina. Defendant did not dress and leave until the sun was coming out.
Joy had never had sex before. She was nervous and upset. Joy did not tell her neighbors because she did not want to scare them, did not call the police because she did not have change to use a pay phone, and did not tell her parents because she wanted to stop thinking about it.
After the attack, Joy started placing a garbage can in front of her apartment door so she could hear any intruders. On the evening of January 8, 2007, Joy was awakened by noises from outside the apartment. She went into the bathroom “frightened, but quietly, ” locked the door, and placed her body against it.
Joy heard noises coming from the area by her apartment’s front window. She heard walking, then saw, through the space under the bathroom door, the bedroom light turn on. Her bathroom door was opened, and Joy saw defendant, who grabbed Joy and took her to the bedroom.
As before, defendant disrobed Joy over her protests. Defendant put his penis in Joy’s mouth, had her pull on his penis with her hand, put his finger in her vagina, and penetrated her with his penis while she was on her back, her stomach, and all fours, and with her on top of defendant. Defendant held her down so she could not move, and blocked the door when he let her go to the bathroom.
Defendant pulled Joy into the living room, where he made her sit on his lap while he watched “Girls Gone Wild” on the television. He had Joy touch his penis; he placed his penis in her mouth, and touched her vagina and breasts; and he penetrated her vagina with his penis. He then forced Joy back to bed, put his fingers in her vagina, and had intercourse with her again.
Defendant went to sleep with his arm across Joy. At some point he opened her refrigerator and commented she did not have very healthy food. He left in the morning.
Joy bathed and went to work, where she told her coworker and law enforcement what had happened. She had vaginal soreness and a black-and-blue mark. A sexual assault examination discovered no sperm. There were two small abrasions in the upper exterior area of her vagina, which were consistent with attempted penetration by a penis.
The screens over the front windows of Joy’s apartment were removed, and her front window was cracked; neither the screens nor the window was damaged when she went to bed before the second assault. Defendant’s fingerprints and a palm print were found in six places, including the windows, the exterior sides of the windows, the window frame or screen frames, and the freezer door. Defendant’s DNA profile matched DNA from a semen stain on the comforter of Joy’s bed. The possibility of a random match was one in 2.6 sextillion for African-Americans, one in 3.8 quintillion for Caucasians, and one in 21 quintillion for Hispanics.
Defendant testified on his own behalf. In December 2006 he was homeless and living with his fiancée. In the summer of 2006 he visited friends who lived in Joy’s apartment complex. He met Joy at this time and saw her on other visits. Prior to December 2006 they spoke “quite a few times, ” and defendant had gone into her apartment five or six times to talk. Joy voluntarily performed oral sex on him during one visit. Defendant denied being inside her apartment complex in December 2006 or forcing his way into her apartment.
Defendant admitted falsely telling a police officer that he was in custody in December 2006 and thus could not have committed the December 27 assault. He admitted to lying when telling the officer he was in Joy’s apartment only once. Defendant also lied when he told the officer he never had sexual contact with Joy.
Defendant said he might have tried to replace Joy’s screens two or three times. The comforter on Joy’s bed was always on her when she was in her living room; defendant could not explain how his semen got on it.
DISCUSSION
I. The Complaining Witness’s Support Person
Citing section 868.5, subdivision (a), the People moved in limine to allow a support person, Joy’s victim advocate, to accompany Joy during her testimony. The motion was granted over defendant’s objection.
Defendant contends the court’s ruling violates due process and his Sixth Amendment right to confrontation. We disagree.
Section 868.5 authorizes prosecuting witnesses in cases involving particular offenses, including sections 261, 288a, or 289, to have up to two support people during their testimony. (§ 868.5, subd. (a).) If the support person is also testifying, the prosecution must present evidence that the person’s attendance is both desired by and helpful to the prosecuting witness. (§ 868.5, subd. (b).) After making such a showing, the court must grant the request unless information presented by the defendant or noticed by the court establishes that the person’s attendance “pose[s] a substantial risk of influencing or affecting the content of that testimony.” (§ 868.5, subd. (b).) If the support person does not testify, there is no requirement of showing that the support person is desired or helpful to the prosecuting witness. (§ 868.5, subds. (a) & (b); People v. Johns (1997) 56 Cal.App.4th 550, 554-555 (Johns); People v. Adams (1993) 19 Cal.App.4th 412, 434 (Adams).)
Defendant argues that stationing a support person while the complaining witness testifies on the stand violates due process by endorsing the victim witness and thereby undermining the presumption of innocence. As he admits, California courts have consistently rejected this argument. (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1076-1079; Adams, supra, 19 Cal.App.4th at pp. 435-436; People v. Patten (1992) 9 Cal.App.4th 1718, 1725-1727 (Patten).) We agree with those decisions; allowing a support person to accompany the complaining witness to the stand as specified in section 868.5 does not deprive defendant of his due process right to a fair trial.
As to defendant’s Sixth Amendment claim, we agree with the Attorney General that the claim is forfeited because defendant failed to raise it before the trial court.
Following his objection to the support person, counsel informed the court that the defense was that Joy was not a victim. He claimed: “[I]n light of the nature of the charges, in light of the perceived victim-hood of the -- of Miss [D.], I’m concerned that a person sitting beside her will just support, bolster that continuing victim-hood -- appeared victim-hood of -- of Miss [D.]”
Defendant’s objection on appeal is based on Adams, which found that the presence of a witness support person at the stand “has an effect on jury observation of demeanor, ” an aspect of the Sixth Amendment right to confrontation. (Adams, supra, 19 Cal.App.4th at pp. 441.) Relying on Coy v. Iowa (1988) 487 U.S. 1012 [101 L.Ed.2d 857] (Coy) and Maryland v. Craig (1990) 497 U.S. 836 [111 L.Ed.2d 666], the Adams court found this element of the confrontation clause was violated by the presence of the support person, and a trial court is required to make a “showing of need” before a support person can accompany the victim to the witness stand. (Adams, at pp. 443-444.)
Defendant’s trial objection did not mention the Sixth Amendment, and did not assert that the support person improperly affected the jury’s ability to observe Joy’s demeanor. Rather, defense counsel argued the support person’s presence next to Joy effectively endorsed her testimony. This asserts an alleged violation of the due process right to the presumption of innocence, not the confrontation clause violation addressed in Adams.
Defendant’s claim that a Sixth Amendment objection would have been futile is without merit. Had the trial court been presented with a Sixth Amendment objection based on Adams or even Coy, it could have made a finding on the showing of need required by those decisions. Since the support person did not testify, a necessity finding was not required under section 868.5. Defendant’s claim is precisely the sort of contention that should be subject to forfeiture -- one that could be rectified if first brought to the trial court’s attention. Defendant’s failure to object on Sixth Amendment grounds forfeits his contention on appeal. (People v. Lord (1994) 30 Cal.App.4th 1718, 1722 (Lord).)
Forfeiture aside, we would also reject defendant’s contention on the merits. Other appellate courts addressing this issue have not required a finding of necessity under section 868.5. The Court of Appeal for the Fifth Appellate District held that allowing a support person to be in the gallery in “the absence of a requirement of a case-specific showing of necessity does not... make this statute unconstitutional per se.” (Patten, supra, 9 Cal.App.4th at p. 1727.) The Patten court noted there were procedures available in utilizing support persons that would not infringe on a defendant’s confrontation rights. (Ibid.) The Court of Appeal for the Fourth Appellate District found that the presence of a support person at the witness stand impacted demeanor evidence but “not significantly, at that.” (Johns, supra, 56 Cal.App.4th at p. 554.) The First District Court of Appeal held that the requirement of a showing of necessity was “debatable.” (Lord, supra, 30 Cal.App.4th at p. 1721.) The Lord court noted that the required showing is set forth in the statute, which requires that “the support person’s attendance ‘is both desired by the prosecuting witness for support and will be helpful to the prosecuting witness.’” (Id. at p. 1722, quoting § 868.5, subd. (b).)
Just before Joy testified, the trial court instructed the jury as follows: “The presence of a second person on the witness stand should not in any way cause you to conclude they endorse the witness’ testimony. [¶] Furthermore, their presence should not be considered by you in any way during the trial, nor during the first trial of deliberations in this matter. In other words, they’ll just be, we call them witness advocate, sitting behind Joy for her testimony.”
The trial court’s instruction told the jury to focus its attention on Joy and not to consider the support person’s presence. The placement of the support person behind Joy diminishes any impact she may have had on the jury’s consideration of Joy’s demeanor. In Adams, the support person sat either “next to or behind” the victim when she testified. (Adams, supra, 19 Cal.App.4th at p. 434.) There is no indication that the trial court in Adams instructed the jury on the support person, although the prosecutor briefly commented on it. (Id. at pp. 434-435.) Finally, in Adams the support person, the victim’s father, testified at trial and was alleged to have physically abused her. (Id. at pp. 424, 435.)
Adams is inapposite. The trial court’s instructions neutralized any possible prejudice from the support person’s presence.
II. CALCRIM No. 362
The trial court instructed the jury with a prior version of CALCRIM No. 362 regarding false and misleading statements by defendant as follows:
“If the defendant made false or misleading statements 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 the guilt by itself.” (CALCRIM former No. 362 (Jan. 2006).)
Defendant contends the court in People v. Beyah (2009) 170 Cal.App.4th 1241 (Beyah) correctly determined the instruction is erroneous. He argues CALCRIM former No. 362 improperly singled out his testimony for special scrutiny, and in his case, the giving of the instruction requires reversal.
Defendant did not object to the giving of CALCRIM No. 362 in its then current form, which “forfeits the objection on appeal unless the defendant’s substantial rights are affected. [Citations.]” (People v. Mitchell (2008) 164 Cal.App.4th 442, 465; accord, § 1259.) We conclude the instruction did not deprive defendant of his substantial rights.
“On review, we examine the jury instructions as a whole, in light of the trial record, to determine whether it is reasonably likely the jury understood the challenged instruction in a way that undermined the presumption of innocence or tended to relieve the prosecution of the burden to prove defendant’s guilt beyond a reasonable doubt. [Citation.]” (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.)
Here, defendant was interviewed after his arrest; he admitted at trial that several of his statements to the police were lies. The prosecution argued defendant’s lies to the police completely undermined his credibility. The jury was instructed with CALCRIM former No. 362 relating to defendant’s statements. It is unlikely the jury would have understood the instruction to apply to defendant’s testimony, as defendant now argues, given the wording of the instruction, his testimony, and the prosecution’s argument.
But even if the jury did apply the instruction in part to defendant’s trial testimony, we would find no prejudice.
In Beyah, CALCRIM former No. 362 was given, over the defendant’s objection, based entirely on the defendant’s trial testimony. (Beyah, supra, 170 Cal.App.4th at pp. 1247-1248.) The Court of Appeal found CALCRIM former No. 362 was probably not “intended to be used when the basis for an inference of consciousness of guilt is disbelief of a defendant’s trial testimony.” (Beyah, at p. 1248.) However, the court ultimately found the defendant was not prejudiced by the instruction “because California law makes clear that a defendant’s false trial testimony may, in proper circumstances, be considered as evidence of consciousness of guilt.” (Id. at p. 1249.)
Although the court in Beyah did “not endorse the use of CALCRIM No. 362 when the basis for an inference of guilt is false or misleading statements in a defendant’s trial testimony” (Beyah, supra, 170 Cal.App.4th at p. 1251), it rejected the very argument defendant makes here regarding CALCRIM former No. 362’s improperly singling out his testimony for special scrutiny. The Beyah court stated: “As applied to this case, CALCRIM No. 362 did nothing more than state this principle, i.e., that if the jury concluded that defendant intentionally gave false or misleading testimony, it may infer that defendant is aware of his guilt and may consider that inference -- along with other evidence -- in determining defendant’s guilt. And although it might be said that the instruction singles out a defendant’s testimony as subject to heightened scrutiny compared to other witnesses, that is true only because the principle involved is uniquely applicable to the defendant. That is not, however, a legitimate ground for concluding that the instruction unconstitutionally burdened defendant’s choice to testify or resulted in any improper inference of guilt based on the jury’s evaluation of his testimony.” (Id. at p. 1250, fn. & italics omitted.)
Finally, Beyah is distinguishable on its facts. In Beyah the instruction was given because the defendant allegedly lied on the stand. (Beyah, supra, 170 Cal.App.4th at pp. 1247-1248.) By contrast, defendant here admitted on the witness stand that he had lied to the police about being in custody during the first attack, and lied regarding whether he ever had sex with the victim. These lies were much more obvious to the jury, and were within the intended scope of CALCRIM former No. 362. Thus, the risk of prejudice is even further attenuated than in Beyah.
The trial court did not err here in instructing the jury with CALCRIM former No. 362.
III. CALCRIM No. 1190
The trial court instructed the jury with CALCRIM No. 1190, which states that “[c]onviction of a sexual assault crime may be based on the testimony of a complaining witness alone.”
Defendant contends this instruction violates due process by singling out a single witness’s testimony for consideration, and by diminishing the People’s burden of proof.
As defendant admits, this contention was rejected by the California Supreme Court in the context of the predecessor to CALCRIM No. 1190, the substantially identical CALJIC No. 10.60. (People v. Gammage (1992) 2 Cal.4th 693, 700-701 (Gammage).) Thus, we reject it as well. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The instruction upheld in Gammage read as follows: “‘It is not essential to a conviction of a charge of rape that the testimony of the witness with whom sexual intercourse is alleged to have been committed be corroborated by other evidence.’ [Citation.]” (Gammage, supra, 2 Cal.4th at pp. 696-697.)
IV. The December 27 Enhancements
The jury sustained allegations that defendant committed the charged sex offenses during the commission of a burglary. This enhancement applies when the defendant “committed the present offense during the commission of a burglary of the first degree... with intent to commit” one of the sex offenses specified in subdivision (c) of section 667.61. (§ 667.61, subd. (d)(4).)
Defendant contends there is insufficient evidence to support the enhancements pertaining to the December 27 incident, because no rational trier of fact could find he intended to commit the charged sex crimes before he broke into Joy’s apartment. Defendant is wrong.
“[I]n reviewing the sufficiency of the evidence, an appellate court must draw all inferences in support of the verdict that reasonably can be deduced and must uphold the judgment if, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. [Citation.]” (People v. Estrella (1995) 31 Cal.App.4th 716, 724-725.)
Defendant’s argument centers on Joy’s testimony that defendant told her, “I want to just touch your breasts for a few moments before I leave” as he took her to the bedroom during the December 27 attack. Defendant asserts this shows he intended to commit only a sexual battery (§ 243.4, subd. (a)) when he entered Joy’s apartment. Sexual battery was not charged, and it is not a one-strike offense. (§ 667.61, subd. (c).) To find otherwise, defendant claims, “required a conclusion that [defendant] was misrepresenting his intent to Joy herself when there was no reason or motive for such dissembling.”
Defendant’s absurd contention is contrary to logic and turns the substantial evidence test on its head. Defendant had ample reason to lie to Joy about his intentions on December 27, 2006, when he forced his way into her apartment over her protestations and repeatedly sexually assaulted her. Although what defendant said he was going to do to Joy was both offensive and injurious to her, the sexual battery he said he would limit himself to was far less harmful than the multiple forcible sex crimes he perpetrated on Joy. By falsely minimizing his intent, defendant gave Joy less reason to resist than had she known his true intentions.
Generally, a person’s intent in committing certain acts must be inferred from all the evidence, since there rarely is direct evidence of the person’s intent. (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) This is not a case where a defendant breaks into a home for one purpose, like theft, only to commit another crime, such as rape, when the opportunity presents itself. The evidence shows defendant had only one purpose when breaking into Joy’s apartment that morning -- sexually assaulting her. Although defendant said he was only going to touch Joy’s breasts and leave, soon after his statement he subjected her to the numerous sexual assaults supporting the one-strike allegations. A jury could reasonably infer that the minimal passage in time between his statement and the other assaults, and the similar nature of the offenses, demonstrated defendant intended to commit all of the charged sex offenses before he forcibly entered Joy’s apartment on December 27.
We conclude the one-strike enhancements are supported by substantial evidence.
V. The December 27 Burglary
Defendant contends there is insufficient evidence to support his burglary conviction for the December 27 incident because the evidence only supports a finding that he intended to commit sexual battery before breaking in, and the burglary charge did not allege this offense. This is the same claim as his contention regarding the one-strike enhancements, which we reject for the same reasons.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J., HULL, J.