Opinion
B230112
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. GAYLAND DANDRE WHITE, Defendant and Appellant.
Walter L. Gordon III for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Eric Reynolds and Colleen M. Tiedemann, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TA110055)
APPEAL from a judgment of the Superior Court of Los Angeles County, Arthur M. Lew, Judge. Affirmed.
Walter L. Gordon III for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Eric Reynolds and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Gayland Dandre White appeals from a judgment of conviction entered after a jury trial. The jury found defendant guilty on two counts of rape (Pen. Code, § 261, subd. (a)(2)). With regard to the second count, the jury found true the deadly weapon allegation (id., § 12022, subd. (b)(1)).
Defendant was sentenced to prison for a total term of 17 years. On appeal, defendant contends that the trial court erred in admitting evidence of uncharged acts pursuant to Evidence Code section 1101, subdivision (b), the trial court coerced the jury into a unanimous verdict, and the trial court failed to properly instruct the jury. We affirm.
FACTS
A. Prosecution
1. The Charged Crimes
On December 23, 2009, at approximately 1:00 a.m., Monique R. was working as a prostitute near Long Beach and Alondra Boulevards. It was an area where prostitutes gather to work. She was wearing a purple shirt as a dress, gold sandals, and a purple and black jacket. Defendant was driving a car, which he parked behind a bus stop. He got out of his car and started talking to Monique. She said she was working and defendant asked her to get in his car. She declined to get in his car. Defendant drove and Monique walked to a nearby motel.
The parties met in the parking lot behind the motel. Monique told defendant to get in the back seat of the car to discuss prices. She showed defendant her vagina and bottom to prove that she was not a police officer. Defendant asked her if she had a pimp, and this made her feel uncomfortable. She tried to leave the car. She was able to get her right leg out of the car, but defendant tackled her and she ended up on the ground. Defendant told her that he would pay her later. He bent Monique over the hood of his car, and she asked him to put on a condom because she was pregnant. Defendant took a condom from her, put it on his penis and penetrated her vagina. Monique was able to get away after defendant penetrated her twice.
Defendant tackled her a second time and brought her back to the car. Defendant said he had a gun. When he tried to penetrate her vagina with his penis, she reached in the sleeve of her jacket and pulled out a screwdriver she had for protection. Defendant grabbed the screwdriver. He then penetrated Monique's vagina while she was struggling. She broke free again, jumped on the hood of a car and defendant ran. She got off the car, ran down the street and called the police on her cell phone. When the police arrived, Monique was taken to the hospital for examination.
Deputy Sheriff Gabriela Hernandez and her partner, Deputy Kurinij, responded to the scene. Monique was crying, appeared disheveled and indicated that she had been raped. She described defendant's car and showed where the rapes had occurred. Deputy Hernandez searched the area and found a used condom, a flip-flop sandal, earrings, and a wig. Defendant was detained during a traffic stop, and a screwdriver was found. Monique identified defendant in a field identification.
Leanne Matheny, a forensic nurse, examined Monique at the hospital. Monique told her that defendant held her against a car and penetrated her vagina with his penis. A condom was used the first time, but not the second. Monique had scratches and bruises to her knees, breast, and lip. She had two tears in her vaginal area that were consistent with the history given by her. DNA evidence was collected from Monique and defendant. The evidence confirmed sexual contact between the two.
2. Uncharged Acts Evidence
On December 11, 2007, Afton G. was working as a prostitute on 110th Street between Denver Avenue and Figueroa Street. At approximately 10:45 p.m., a van, driven by defendant, stopped near her. Defendant asked if she wanted a ride. She said yes and got into the car. Defendant asked her if she wanted a date, which meant sex for money. Afton said yes and told defendant to drive to a nearby motel. He drove by the turnoff street to the hotel and sped up. Afton asked him to pull over. He continued to speed, driving through stop signs. He kept going until a marked police car pulled up behind the van and ordered defendant to pull over. While the van was rolling to a stop, Afton jumped out and ran to the police. She did not tell them that she was a prostitute because she thought it was obvious based on the way she was dressed.
Officer Kevin McNamee, a vice officer for the Los Angeles Police Department, testified that the Figueroa Street corridor is referred to as the track where prostitutes hang out. On December 11, 2007, he was working undercover and saw Afton, wearing a pink dress with pink high-heeled shoes, waving at motorists. Defendant stopped, had a brief conversation with Afton and she got into his van. Officer McNamee followed the van as it ran several stop signs. When the van was eventually stopped, he approached Afton, who was screaming something like, "Help, I was kidnapped." Officer McNamee believed that Afton was working as a prostitute that evening. B. Defense
Defendant testified that he had consensual sex with Monique. He did not know she was a prostitute. He had seen her at a gas station sitting in a black Yukon or Tahoe with a male. When the man drove away, he saw Monique sitting on a bench at a bus stop.
Defendant denied asking Monique for a date and testified that she did not tell him she was a prostitute. Monique directed him to the motel. He said he did not have money to get a room and she directed him to the back of the motel. Monique then asked him if he wanted to have sex. She gave him a condom and they had sex outside the vehicle.
While defendant and Monique were having sex, he saw the black Tahoe he had seen at the gas station drive by twice. After the second time, the driver yelled out, "Bitch, you better be getting my money." Monique told defendant, "You owe me some money." When he refused, Monique jumped on his car and tried to flag down the man in the Tahoe. When she ran around the car, she slipped and fell. She then ran down the street. He noticed a screwdriver on the hood of his car. He grabbed it because he had misplaced his own. He was pulled over as he was driving home.
Defendant testified that he lied to police when he said he told Monique he was going to pay her when he had no intention of doing so. He also initially denied knowing Monique. It was not until the end of the interview that he admitted having sex with her.
During cross-examination, defendant admitted that he knew there was prostitution activity along the Figueroa Street corridor. He admitted he never told police that Monique was sitting in a black Tahoe at the gas station when he first saw her. He had heard there was a lot of prostitution in the area. He and Monique had sex outside the car. He said he told Monique that he would give her some money after she started yelling and trying to flag down the man in the Tahoe.
With regard to the incident with Afton, defendant said he was leaving a gas station when she asked for a ride. She never said she was a prostitute. He agreed to take her to a friend's house. While driving, he thought he was being followed and was afraid of gang activity, so he sped up. He asked Afton if she knew who was following and she said no, but he did not believe her. When he saw he was being followed by law enforcement, he stopped his car.
DISCUSSION
A. Evidence of Uncharged Crimes
Initially, the People contend that defendant has forfeited any constitutional claim based upon the evidence allowed of uncharged crimes by failing to object to the admission of evidence on these grounds at trial. Regardless, we find that there was no error in allowing evidence of uncharged crimes.
Evidence Code section 1101, subdivision (a), prohibits, with specified exceptions, admission of "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) . . . when offered to prove his or her conduct on a specified occasion." Subdivision (b) of Evidence Code section1101 provides: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act."
Evidence of uncharged offenses is admissible and "relevant to prove a material fact other than defendant's criminal disposition [when] the similarity between the circumstances of the [uncharged offenses] and the charged offenses supports the inference that defendant committed the charged offenses pursuant to the same design or plan defendant used to commit the uncharged misconduct." (People v. Ewoldt (1994) 7 Cal.4th 380, 393.) The requisite similarity is "'not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.' [Citation.] . . . [¶] To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual." (Id. at pp. 402-403; accord, People v. Balcom (1994) 7 Cal.4th 414, 423-424.)
Admission of evidence pursuant to Evidence Code section 1101, subdivision (b), is confided to the sound discretion of the trial court. (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1609.) Its decision to admit such evidence will not be disturbed on appeal absent an abuse of discretion. (Id. at p. 1610; see, e.g., People v. Ewoldt, supra, 7 Cal.4th at p. 405.)
The People offered the evidence regarding Afton to show evidence of motive, intent, and common plan or scheme. The Afton incident was relevant. There were similarities between the charged offense and the uncharged offense. Both incidents occurred late at night in areas common for prostitution. Both women were prostitutes. Defendant refused to pay the women and refused to let them leave when they requested it. While it is true that in the Afton incident there was no completed sexual act, this does not preclude a finding that the incidents were similar and admissible.
Defendant also contends that the admission of evidence violated Evidence Code section 352, and the trial court did not conduct an Evidence Code section 352 analysis. Evidence Code section 352 gives the trial court the discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
While the trial court did not specifically state that it found that admitting the evidence did not violate Evidence Code section 352, the record is clear that it was not an abuse of discretion in allowing the admission of the Afton incident. It did not result in an undue consumption of time and the evidence was not unduly prejudicial. The Afton incident was not as inflammatory as the charged offenses. (People v. Sullivan (2007) 151 Cal.App.4th 524, 559.) The jury was also instructed not to consider the evidence to prove that defendant was a person of bad character or had a disposition to commit crime. The jury is presumed to have followed the instructions given it. (People v. Holt (1997) 15 Cal.4th 619, 662; People v. Delgado (1993) 5 Cal.4th 312, 331.) The nature of the charged and uncharged offenses was not such that the jury would have been confused as to the issues. (Evid. Code, § 352, subd. (b).) B. Alleged Coercion of Jury
On December 9, 2010, the jury sent a note to the court indicating that it was hung on count 1. Although the jury had been given the standard instruction to not reveal how the vote stood on the question of guilt, unless asked to do so by the court, the note stated that 11 jurors were in favor of a guilty verdict and one juror was in favor of a not guilty verdict. The note also indicated that the jury had reached a verdict on count 2. The court admonished the jury not to reveal the vote in court in the future as it violated his earlier instruction. The court also proceeded to take a guilty verdict on count 2.
The trial court addressed the jurors individually as to count 1, and asked the jurors individually if there was anything it could do to help the jury reach a verdict. The majority of jurors indicated that a further explanation of the law might help. The court sent the jurors back for further deliberations and asked them to submit written questions if they had any.
Shortly thereafter, the jury sent out a note stating that it was still hung on count 1 and none of the jurors had any questions. The foreperson stated that the jury believed one of the jurors did not understand the law. Some of the jurors stated that the juror in question had made up his mind and was no longer deliberating. The court then had the jurors raise their hands if they felt the hold out juror had made up his mind and was not deliberating anymore. All of the jurors raised their hands except juror number 7.
The court then sent the jurors back to the jury room, telling counsel that it needed to interview each juror individually. Defense counsel requested a mistrial, which was denied. The trial court stated, "If in fact someone is not deliberating, that's misconduct. And then the People I think you're probably going to move that that juror be excused. And I would be inclined under those circumstances to grant that motion. But we're not going to know that until we talk to them individually."
After each individual juror was interviewed, the trial court stated, "Okay. It sounds to me like most of the jurors, based on what they've said, this may not be their opinion, but their factual observations appear to be that he saw the evidence. They saw the evidence. He heard the testimony. They heard the testimony. But he's not convinced beyond a reasonable doubt, even though he heard the same testimony."
The trial court and both counsel agreed that there was no reason to remove this juror. The court granted a prosecution motion to allow reargument for 20 minutes over defense objection. Defense counsel again requested a mistrial, based in part on the fact that defendant was handcuffed in front of the jury after the first verdict. The motion was denied. The following day, the people briefly reargued the case. Defense counsel waived further argument. The jury then returned a guilty verdict on count 1.
Defendant claims that the trial court coerced the jury into a unanimous verdict on count 1, in violation of defendant's rights to due process and an impartial jury under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, requiring reversal of his conviction. The People assert that because defendant failed to object on these grounds at trial, this claim has been forfeited. Regardless, we find the trial court did not coerce the jury into reaching a verdict on count 1.
Initially, defendant claims that the first act of coercion was asking each juror whether further deliberations would be helpful, and then sending the jurors back to the jury room for further deliberations without giving the jury any further instructions on the law. While a majority of the jurors indicated that a further explanation of the law might have been helpful, the court, in sending the jurors back to the jury room for further deliberations, advised them to send out any specific questions they had. We find no abuse of discretion in this procedure.
Next, defendant claims that the court's inquiry whether a juror had stopped deliberating by asking for a show of hands amounted to coercion. While this may not have been the best approach in questioning the jury, there was no abuse of discretion or coercion in this procedure. There was no indication that the trial court knew which juror was in favor of acquittal. When questioned, Juror No. 7 never indicated that he was the holdout juror.
Likewise, we reject defendant's claim that the trial court was "aggressive" in the questioning of Juror Number 7. The record belies this claim.
"The Court: Hi, Juror number 7.
"Juror Number 7: Hi, your honor.
"The Court: Some of the jurors have said in open court that they thought one particular juror wasn't openly deliberating and had already come to a conclusion. And I'm not sure if you said you agreed with that or not. Do you agree with them, or do you disagree with them?
"Juror Number 7: I disagree, your honor.
"The Court: Okay.
"Juror Number 7: I think we have an opportunity to discuss about almost everything we need to discuss.
"The Court: Okay.
"Juror Number 7: So I disagree on that.
"The Court: Okay. Now, this one particular juror, he's openly discussed the facts and the evidence with the other jurors?
"Juror Number 7: Yes, he did.
"The Court: And apparently he's of one opinion, and the other jurors are of another opinion. But this one juror — okay. He has an opinion as to what his verdict should be. I guess my question would be, has he told the other jurors, yes, feels that way?
"Juror Number 7: He
"The Court: I mean, is there something to the evidence or the law that he pointed to and says well because of this, that's why I feel this way?
"Juror Number 7: No, he just base[d] everything on all of the evidence.
"The Court: Okay. Did he point to a particular part of the evidence and say well because there is this evidence that this is how I feel?
"Juror Number 7: Not specifically, but mostly to all of the evidence.
"The Court: Okay. So he mentioned different parts of the evidence?
"Juror Number 7: Yes.
"The Court: And he also said because of all of these different things that came out in the testimony, I'm voting the way I'm voting.
"Juror Number 7: That's right, your honor.
"The Court: Okay. And he did listen to the other jurors talk to him?
"Juror Number 7: Yes, your honor.
"The Court: He listened and he stated his position and gave his reasons for his position; is that right?
"Juror Number 7: Yes, your honor.
"The Court: Okay. I'm going to ask you not to discuss with any of the other jurors what you and I have just talked about. Okay?
"Juror Number 7: Yes, your honor.
"The Court: Thank you.
"Juror Number 7: You're welcome."
The court asked basic questions that one would expect a trial court to ask given the factual setting of the case. The questions were not accusatory; there was no attempt to determine if Juror Number 7 was the holdout juror. We find nothing improper in the court's questioning of this juror.
Defendant also contends that the trial court allowing further argument amounted to coercion because the jury returned a unanimous guilty verdict shortly thereafter. While a quick verdict following a trial court's intervention may suggest "the possibility of coercion," (Lowenfield v. Phelps (1988) 484 U.S. 231, 240 [108 S.Ct. 546, 98 L.Ed.2d 568]), this factor alone does not suggest coercion. California Rules of Court, rule 2.1036(b)(3) permits the trial judge to allow the attorneys to make additional closing arguments if the court determines that further action might assist the jury in reaching a verdict.
In support of defendant's claim that allowing counsel to reargue when the jury was deadlocked resulted in coercion, defendant cites two recent federal cases. We note that although lower federal court decisions on federal questions are persuasive and entitled to great weight, they are not binding on state courts. (Flynt v. California Gambling Control Com. (2002) 104 Cal.App.4th 1125, 1132; Smith v. County of Los Angeles (1994) 24 Cal.App.4th 990, 997, fn. 2.)
In United States v. Evanston (9th Cir. 2011) 651 F.3d 1080, 1091, the court found coercion when the trial court, after giving an Allen charge, inquired into the reasons for the trial jury's deadlock and permitted supplemental argument focused on those issues. In the instant case, while allowing reargument, the trial court did not give an Allen charge instruction and did not have counsel argue on the factual issues dividing the jury.
An Allen (Allen v. United States (1896) 164 U.S. 492, 501-502 [17 S.Ct. 154, 41 L.Ed. 528]) charge is a supplemental instruction given by the court to encourage the jury to reach a verdict after the jury has been unable to do so after some period of deliberation. Such a charge is one which "encourages jurors to consider the numerical division or preponderance of opinion of the jury in forming or reexamining their views on the issues before them." (People v. Gainer (1977) 19 Cal.3d 835, 852.) The California Supreme Court has disapproved of the use of such a charge. (Ibid.)
In United States v. Della Porta (9th Cir. 2011) 653 F.3d 1043, the trial court never gave an Allen charge or inquired into the reasons for the jury deadlock. The appellate court distinguished Evanston and held that the district court's decision to permit supplemental closing argument did not result in impermissible coercion or constitute an abuse of discretion requiring reversal. (Id. at pp. 1049-1050.) C. Failure to Instruct on Lesser Included Offense
Defendant contends that the trial court erred when it failed to instruct the jury sua sponte on the lesser included offenses of assault with intent to commit rape, attempted rape, and assault. The People again assert that defendant has forfeited this claim by failing to object on these grounds at trial. Again, even if the claim of error was not forfeited, we find that there was no error in the failure to instruct the jury on the lesser offenses.
In general, the trial court has the duty to instruct the jury sua sponte as to the principles of law relevant to the issues raised by the evidence. (People v. Wims (1995) 10 Cal.4th 293, 303; People v. Saddler (1979) 24 Cal.3d 671, 681.) This duty extends to "instructions on lesser included offenses when the evidence raises a question as to whether all the elements of the charged offense" have been established, but instructions on lesser included offenses are not required if "there is no evidence that the offense [is] less than that charged." (People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Barton (1995) 12 Cal.4th 186, 200-201.) Instructions on lesser included offenses must be given whenever there is "'"evidence from which a jury composed of reasonable [persons] could have concluded"' that the particular facts underlying the instruction did exist." (People v. Wickersham (1982) 32 Cal.3d 307, 324, disapproved on other grounds in Barton, supra, at p. 201; People v. Flannel (1979) 25 Cal.3d 668, 684.) In the absence of such evidence, no instruction on the lesser included offenses need be given. (Wickersham, supra, at pp. 324-325; Flannel, supra, at p. 684.)
"Rape is an act of sexual intercourse" "accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." (Pen. Code, § 261, subd. (a)(2).) "Any sexual penetration, however slight, is sufficient to complete the crime." (Id., § 263.)
Attempted rape is a lesser included offense of rape. (People v. Atkins (2001) 25 Cal.4th 76, 88; People v. Holt (1997) 15 Cal.4th 619, 674.) Assault is "an unlawful attempt, coupled with [the] present ability, to commit a violent injury on the person of another." (Pen. Code, § 240.) Assault with intent to commit rape requires an assault plus the specific intent to commit rape. (Id., § 220; People v. Dixon (1999) 75 Cal.App.4th 935, 942-943.)
Defendant contends that there was sufficient evidence to support instruction on the lesser included offenses. He relies in part on the statement in Monique's 911 call that defendant "tried to rape me." She explained during her testimony that she only said that she was not sure the acts were considered rape because she was a prostitute and because defendant did not ejaculate. That Monique was unaware of the legal definition of rape does not support a finding that there was no rape. Ejaculation is not required for completion of the crime of rape, and a prostitute may be the victim of a rape if the sexual intercourse is against her will.
Defendant further argues that there was substantial evidence to warrant the instructions on lesser included offenses because only one condom was recovered, and he admitted only one act of intercourse. If anything, this evidence would support a finding that only one crime occurred, not that a crime less than rape was committed.
Additionally, defendant characterizes Monique's "testimony on the second penetration was equivocal, stating that there was one momentary penetration." Her testimony was not equivocal. Momentary penetration is rape. (Pen. Code, § 263.)
Based upon the testimony presented at trial, there was no substantial evidence that warranted the instructions on assault with intent to commit rape, attempted rape, and assault as lesser offenses of rape. Consequently, the trial court did not err in failing to give those instructions.
DISPOSITION
The judgment is affirmed.
JACKSON, J. We concur:
PERLUSS, P. J.
WOODS, J.