Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM022376
RAYE , J.K.Z. (the victim) met defendant Brandon Lee Wolcott over the Internet. Since both the victim and defendant planned to enroll at a local university, the victim agreed to accompany defendant to the campus to find out more about the registration process. After the visit, the pair drank some rum and cola in a secluded area of a park, and defendant sexually assaulted the victim. An information charged defendant with forcible rape. (Pen. Code, § 261, subd. (a)(2).) The information further alleged defendant had suffered a prior conviction for rape, which constituted a serious or violent felony.
All further statutory references are to the Penal Code unless otherwise indicated.
A jury found defendant guilty of forcible rape, and in a bifurcated court trial, the court found defendant had suffered a prior rape conviction. Sentenced to life without possibility of parole for 50 years, defendant appeals, contending: (1) the court erred in failing to give CALJIC No. 10.65, under which an honest and reasonable belief in consent precludes a guilty verdict; (2) the court erred in admitting expert evidence; (3) the court erred in excluding evidence that it is illegal to drive with a blood alcohol level of .08 percent; (4) the trial court committed a variety of evidentiary errors; (5) prosecutorial misconduct; (6) ineffective assistance of counsel; (7) Evidence Code section 1108 violates due process; (8) sentencing error; and (9) he was entitled to custody and conduct credits. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The district attorney filed an information charging defendant with forcible rape and alleging that defendant had suffered a prior conviction for rape, subjecting him to enhanced punishment under section 667, subdivision (a)(1). The information further alleged the prior rape conviction constituted a serious or violent felony within the meaning of section 667. Finally, the information alleged that an aggravated circumstance applied: defendant had been previously convicted of the same offense, subjecting him to 25 years to life under section 667.61, subdivisions (a) and (d)(1).
A jury trial followed. The victim testified about the events leading up to the assault.
In winter of 2004 the victim moved to Butte County and planned to enroll at a local university. Since she did not know anyone, she used an instant message service to chat on her computer with other people.
One afternoon, defendant contacted the victim via an instant message. The victim replied, saying she was new in the area and felt isolated. Defendant said he wanted to meet her and asked if she “liked to party.” The victim responded that the question made her uncomfortable since she had just met him on line.
Defendant told the victim he was coming to town to register that afternoon at the university. The victim agreed to go with defendant to find out about the university’s registration process. Defendant and the victim exchanged telephone numbers, and defendant planned to pick up the victim at home that afternoon.
Defendant and the victim visited the campus for about half an hour and figured out the registration process. The victim felt comfortable with defendant; he “seemed like a nice guy.” She asked defendant if he would like to get a drink.
Because the victim had lost her driver’s license and did not have identification, she could not “get into an establishment.” Defendant suggested they drink in a nearby park, so the couple went to a liquor store and purchased a pint of rum and two one-liter bottles of Pepsi Cola. By the time they got to the park, it had started to get dark. The pair proceeded to a secluded picnic table, sat down, and talked as they drank.
About half an hour later, defendant began to kiss the victim. They kissed on and off for a while. Defendant attempted to touch the victim’s breasts, but she pushed his hands away and told him to stop. Defendant persisted and the victim told him, “Cut it out. I don’t want you to do that.”
Defendant then tried to remove the victim’s pants, but she again pushed his hands away. Defendant tried to touch the victim under her shirt. His attempts became increasingly forceful. The victim continued to tell defendant to stop and that she wanted to go home.
In response to her protests, defendant put his hands around her neck and squeezed. She pulled his hands away. Defendant put his hands around her neck over a dozen times. Every time the victim pushed his hands away, defendant tried to take off her clothes.
The victim became terrified and repeatedly asked, “Why are you doing this to me?” She attempted to hit defendant in the head with the rum bottle, but defendant grabbed it. Defendant asked: “What the hell do you think you’re trying to do? You’re not going to get out of this. You’re not going to get away. You started this; you have to finish it.” The victim continued to struggle.
Defendant threw the victim into a blackberry patch and lay on top of her, pinning her down. The victim feared she could not get away, “[t]hat he was going to do it regardless. And I didn’t want to -– it was going to be worse if it was on the ground.” After the victim told defendant, “All right, I’ll give you what you want,” he let her get up.
The victim tried to formulate some sort of plan and again tried to hit defendant with the rum bottle. When defendant grabbed the bottle, the victim screamed “Rape!”
The victim believed her life was in danger and began to cry. She told defendant to “get it over with” and asked him to use a condom. The victim unfastened her pants and made sure defendant had a condom on. Defendant had sexual intercourse with her as she cried.
Afterward, the victim pulled up her pants and tried to calm down. As defendant searched for something under the picnic table, the victim began to slowly walk away. As she moved down the path, defendant began following her. The victim began to run.
The victim spotted a security guard’s car with a rotating yellow light. She ran toward the guard and told him she had been raped and the man was following her down the path.
The security guard who testified corroborated the victim’s testimony. She was crying hysterically and the guard put her in his car. The victim pointed to defendant’s car in the parking lot, and the guard parked behind the vehicle, blocking it from leaving. The victim told the guard she feared defendant was going to kill her. The guard then called the police, who arrived within minutes.
Officer Todd Lefkowitz testified that he responded to the guard’s call. He saw defendant standing behind the guard’s car. When defendant saw Lefkowitz he approached the officer. According to the officer, defendant “was cooperative, but he appeared like somebody that needed to get his side of the story heard. [¶] He was -- he was very talkative.” The victim would not speak with the male officers, but later spoke with a female officer.
About an hour later the victim spoke with Detective Cesar Sandoval at the police department. Sandoval testified that the victim was still upset and appeared to have been crying for quite a while. The victim’s statement to Sandoval comported with her testimony at trial.
Sandoval requested blood alcohol tests for both defendant and the victim. The victim’s blood alcohol level was .11 percent; defendant’s was zero.
Later on the evening of the incident, the victim went to the hospital for a sexual assault examination. Family nurse practitioner Sally Vertolli testified that her examination of the victim revealed a small laceration over her left breast and lacerations on her left buttock. In addition, Vertolli found abrasions and lacerations on the victim’s neck. Redness on the victim’s neck appeared to be from pressure on the skin causing broken blood vessels. In addition, the examination revealed an abrasion just below the vaginal opening “consistent with vaginal penetration with struggle.”
Vertolli also examined defendant. Vertolli found lacerations on the back of defendant’s hands and scrapes on his shins. Defendant had a red area on his neck that Vertolli believed was a pressure injury, possibly a “hickey.” In addition, there was a small area of redness on the underside of defendant’s penis. The clothing of both victim and defendant was muddy and wet.
Officers who investigated the crime scene testified they recovered a condom wrapper, an artificial fingernail, and a plastic soda bottle on the night of the incident. The following day they found a rum bottle and the other soda bottle. Inside the soda bottle was a used condom.
The prosecution also introduced evidence of a prior rape committed by defendant against a 15-year-old girl. R.V. testified she met defendant in January 2000 at a friend’s house. After she left to walk home, R.V. took a shortcut through a park. When she entered the park, defendant walked up and R.V. realized he had been following her. R.V. told defendant she needed to go home; he continued to follow her.
Defendant pushed R.V. against a cabin in the park and began to kiss her. She pushed him away and told him again she needed to go home. Defendant continued to follow R.V. He pushed her against a bridge railing and tried to kiss her. Once again she rebuffed him.
Defendant responded by pushing R.V. to the ground. As she began screaming, defendant grabbed her and slammed her head against the ground until she stopped yelling. He dragged her under a nearby bridge as she begged him to leave her alone. Defendant hit her in the face, pulled down her pants, and began having sexual intercourse with her.
R.V. asked defendant what his children would think if they knew what he was doing. Defendant got up and called her obscene names. R.V. pulled on her clothes and began to leave. Defendant followed and told R.V. he would kill her if she told anyone. The parties stipulated that defendant pled guilty or no contest to rape.
Defendant testified in his own behalf. According to defendant’s version of events, he and the victim met on line. The victim was new in town, and she asked defendant to take her to the university to register. After they registered, defendant asked the victim what she wanted to do. The victim responded: “Well, is it too early to drink?”
The victim told defendant that when she drank she had a tendency to black out or become belligerent. Since the victim would need identification to get into a bar but did not have any, they purchased rum at a liquor store. The victim wanted to “get somewhere fast” and begin drinking, so the pair went to a nearby park. The victim began drinking as they were walking into the park.
The victim and defendant sat on a picnic table. Defendant had only a couple of sips of rum; the victim finished the bottle. They began to kiss, and the victim sucked on defendant’s neck. She put her hands under his clothing as she continued to drink.
The victim asked defendant if he had a condom and he said he did. They had intercourse on the picnic table. During the act of intercourse, the victim told defendant she really liked him and wanted them to be together. However, when defendant demurred and said he considered it a “one-night stand,” the victim became angry. She shoved him off and defendant scraped his shins on the table’s bench.
As they dressed, the victim said she did not “just do this with anybody” and she was “not that kind of girl.” She became angry and told defendant she was going to yell “rape.” When defendant looked at her as if she were crazy, the victim grabbed him by the throat and yelled rape. Defendant grabbed the victim by the throat to “get her off” him and they began wrestling. Defendant fell into some thorny bushes.
The victim appeared to calm down, so defendant let her up. She grabbed the rum bottle and tried to hit defendant in the head. Defendant fended off the blow. The victim said she wanted to leave, and defendant let her go.
As they proceeded up the path, defendant saw flashing lights and the victim began to run. Defendant went to “talk to whoever was up there, because [he] knew where this was going.” After the police officer arrived, defendant told him “I’m pretty sure I’m the guy you’re looking for.” He identified himself and said, “She’s accusing me of raping her.”
Defendant admitted the prior assault on R.V. He had been drinking that night and had been under the influence of alcohol.
Defendant’s former girlfriend, Athena Breitenstein, testified she met him on the Internet in 2003. Eventually they met in person. When defendant made a sexual advance, Breitenstein told him she did not want to become intimate. Defendant never tried to force her. They later became romantically involved. Although they are no longer involved, Breitenstein still cares for defendant as a friend.
Defendant’s mother also testified. As she sat outside the courtroom, she heard prosecution witness Miars, the security guard, tell someone: “This guy’s done this before. Somebody should just take him behind the barn and shoot him.”
The jury found defendant guilty of forcible rape. Defendant waived a jury trial on the prior conviction. The court found the prior allegation true.
The court sentenced defendant to 25 years to life for rape under section 667.61, subdivision (a). The court doubled the sentence as a result of the prior strike to 50 years to life imprisonment under sections 667, subdivision (c)(1) and 1170.12, subdivision (c)(1). The court stayed the five-year enhancement under section 667, subdivision (a)(1). In sum, the court sentenced defendant to life imprisonment with no possibility of parole for 50 years. Defendant filed a timely notice of appeal.
DISCUSSION
I. Instructional Error
Defendant argues the court erred in failing to instruct that a reasonable, though mistaken, belief that a victim consented to sexual intercourse is a defense to rape. The Attorney General contends there was no evidence of equivocal conduct by the victim that could have led defendant to mistakenly believe she consented to sexual intercourse. We agree with the Attorney General.
Background
At trial, defendant did not request, and the trial court did not give, CALJIC No. 10.65. CALJIC No. 10.65 states, as pertinent in the present case: “In the crime of unlawful forcible rape criminal intent must exist at the time of the commission of the [alleged crime]. [¶] There is no criminal intent if the defendant had a reasonable and good faith belief that the other person voluntarily consented to engage in sexual intercourse. Therefore a reasonable and good faith belief that there was voluntary consent is a defense to such a charge. [¶] However, a belief that is based upon ambiguous conduct by an alleged victim that is the product of conduct by the defendant that amounts to force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of the alleged victim or another is not a reasonable good faith belief. [¶] If after a consideration of all of the evidence you have a reasonable doubt that the defendant had criminal intent at the time of the accused sexual activity, you must find him not guilty of the crime.”
CALJIC No. 10.65 is also known as the “Mayberry instruction,” after People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry). The Mayberry defense is a mistake of fact defense.
“The Mayberry defense has two components, one subjective, and one objective. The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse. [Fn. omitted.] In order to satisfy this component, the defendant must adduce evidence of the victim’s equivocal conduct on the basis of which he erroneously believed there was consent. [¶] In addition, the defendant must satisfy the objective component, which asks whether the defendant’s mistake regarding consent was reasonable under the circumstances. Thus, regardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction.” (People v. Williams (1992) 4 Cal.4th 354, 360-361 (Williams).)
The defendant bears the burden of showing evidence of “equivocal conduct” on the victim’s part that led the defendant to a subjective, good faith belief in consent. (Williams, supra, 4 Cal.4th at p. 361.)
Discussion
Defendant claims that substantial evidence supports giving CALJIC No. 10.65 in the present case. In support, defendant relies on Williams.
In Williams, the Supreme Court further refined Mayberry, considering a scenario where the victim accompanied the defendant to his hotel room, where he raped her. The defendant testified that the victim seduced him. The court found the evidence insufficient since the relevant inquiry under Mayberry is whether the defendant believed the victim consented to have intercourse, not whether she consented to spend time with him. (Williams, supra, 4 Cal.4th at p. 363.) In Williams,the facts created “no middle ground” from which the defendant could argue he reasonably misinterpreted the victim’s conduct. (Id. at p. 362.)
However, defendant takes solace in the court’s observation that “a trier of fact is permitted to credit some portions of a witness’s testimony, and not credit others. Since a trial judge cannot predict which evidence the jury will find credible, he or she must give the Mayberry instruction whenever there is substantial evidence of equivocal conduct that could be reasonably and in good faith relied on to form a mistaken belief of consent, despite the alleged temporal context in which that equivocal conduct occurred.” (Williams, supra, 4 Cal.4th at p. 364.)
Defendant argues, via Williams, that substantial evidence of the victim’s equivocal conduct supports giving CALJIC 10.65. According to defendant, the victim provided evidence of substantial, consensual sexual conduct with defendant. In addition, the primary area of disagreement between the victim and defendant was “‘temporal,’ in the sense that she described a struggle followed by her acquiescence in [an] act of nonconsensual intercourse, while he described an act of consensual intercourse followed by a struggle.” Defendant also states the victim was “severely intoxicated,” and the jury was entitled to credit portions of defendant’s testimony and conclude the victim had not protested as vociferously as she claimed.
The Attorney General argues that a “temporal” conflict is insufficient to support the giving of CALJIC No. 10.65. Instead, defendant must point to substantial evidence of equivocal conduct before he used force. Here, the Attorney General argues, there was no such “equivocal conduct” on the victim’s part. We agree.
The jury heard two radically different versions of the events leading up to the rape. Defendant’s scenario presented the victim as a willing sexual partner who erupted in anger when he told her he was not interested in a long-term relationship. According to defendant’s testimony, the victim never told him not to touch her or refused his sexual advances.
The victim testified that she willingly kissed defendant but began resisting when he tried to touch her breasts. She met his frequent attempts to remove her clothing with further protests. Defendant repeatedly put his hands around her throat and squeezed. After the victim unsuccessfully tried to hit defendant with a bottle, he threw her to the ground. After another unsuccessful attempt to hit defendant, the victim began crying and screaming rape. Feeling trapped, the victim told defendant to get it over with.
Neither of these two starkly different scenarios reveals equivocal conduct by the victim. Instead, as the Attorney General notes, the jury had to determine which of the two witnesses was telling the truth. If the jury believed defendant, it would have concluded the victim consented, not that defendant misunderstood the victim’s equivocal words or conduct. If the jury believed the victim, it would have concluded defendant ignored the victim’s entreaties and forced her to have sexual intercourse. Mayberry permits the jury to conclude both the victim and the accused are telling the truth, but because of equivocal conduct by the victim, the defendant mistakenly believed the victim had consented. Since neither witness’s version of events reveals any equivocal conduct by the victim, Mayberry does not apply.
We are not persuaded by defendant’s arguments to the contrary. Defendant claims the victim was severely intoxicated. However, defendant fails to explain how intoxication translates into equivocal conduct. At trial, defendant testified he did not notice the victim’s level of intoxication.
Defendant also argues the victim participated in “substantial” consensual sexual contact with defendant. The victim testified she willingly kissed defendant. Such consensual contact hardly qualifies as “substantial” sexual contact.
Finally, defendant argues the jury was free to accept portions of his testimony as credible. However, as we have explained, neither witness testified as to any equivocal conduct by the victim.
In sum, the evidence did not support an instruction under CALJIC No. 10.65 and the trial court did not err in failing to so instruct.
II. Admission of Expert Testimony
Defendant argues that family nurse practitioner Vertolli was not qualified to render an expert opinion. In addition, defendant contends the court erred in allowing Vertolli to testify that, in her opinion, the sexual intercourse between defendant and the victim was not consensual and there had been quite a struggle. We will conclude that Vertolli qualified as an expert but that her opinion on whether the intercourse was consensual was improper expert opinion. However, the error was cured by Vertolli’s later testimony.
Background
Vertolli testified regarding her examination of the victim the evening of the assault. She recounted the abrasions, lacerations, and redness she observed on various parts of the victim’s body.
During Vertolli’s testimony, the prosecutor asked: “In your experience, would somebody have injuries such as what [the victim] had if she had consensual intercourse? [¶] A. It’s possible. [¶] Q. In your experience, is it possible that [if] somebody had used a condom, [the victim] would have these injuries and it not be consensual?”
Defense counsel objected, arguing a lack of foundation. The court stated: “She is an expert and qualified as such. [¶] You may answer.” The prosecution repeated the question and Vertolli answered: “I have an opinion that it was not consensual.” Vertolli further testified that her opinion was based on the number of injuries to the victim’s body.
The prosecution then asked: “In addition to the injury you described in the vagina; is that correct? [¶] A. That’s evidence she had been penetrated. And the evidence of the injuries to her body, I was convinced there was quite a struggle.”
Defense counsel objected, arguing the testimony was improper opinion, and asked that Vertolli’s response be stricken. The court overruled the objection and denied the motion to strike, noting, “I’m sure you will go into that on your cross-examination.”
The prosecution asked: “Ms. Vertolli, when somebody has consensual sex, would you expect the woman would be injured?” Defense counsel objected and the court again overruled the objection. Vertolli responded: “Not usually.” The prosecution then asked: “Why is that?” Vertolli responded: “Well, there’s lots of things that happen to the anatomy that minimize injury to the genital area. The vaginal area, introitus, the opening, vaginal area, there’s changes that happen when you are aroused and agreeing consensual. [¶] And the injuries on the rest of her body are in unusual places. She had injuries on the back of her buttocks, four -– scratches that are not normally consensual.”
During a break, defense counsel renewed his objections to Vertolli’s testimony. Defense counsel argued Vertolli could not testify as to the mental state of another person regarding whether that person was consenting to sexual intercourse. Vertolli could only testify, defense counsel argued, as to whether the injuries were consistent or inconsistent with consensual sex.
The trial court agreed defense counsel had raised a “salient point” and sustained the objection. The trial court instructed the prosecution to clarify Vertolli’s testimony when the jury returned.
When trial resumed, Vertolli conceded she could not determine what someone else had been thinking. The prosecution asked Vertolli whether she had formed an opinion, based on her clinical findings of the injuries and history provided by the victim, as to whether the injuries were “[c]onsistent or not consistent with consensual sex.” Vertolli replied: “My, from what I observed and from what I was told, I concluded that she had had vaginal penetration with a struggle, with -- with injury.”
Discussion
Defendant challenges Vertolli’s qualifications to testify as an expert. In particular, defendant claims Vertolli was not qualified to give expert testimony as to the cause of the victim’s injuries.
Preliminarily, we note defendant never objected at trial to Vertolli’s general qualifications as an expert. Instead, defendant specifically objected to Vertolli’s qualifications to testify as to the cause of the injuries suffered by the victim.
In any event, the trial court did not abuse its discretion in allowing Vertolli to testify as an expert regarding her examination of the victim. Vertolli, a nurse practitioner for 23 years, has performed sexual assault examinations since 1998. Over the years, Vertolli performed approximately 160 adult examinations. She received special training in sexual assault examinations at U.C. Davis and the SANE (Sexual Assault Nurse Examiner) Institute.
To qualify as an expert, a witness must possess special knowledge, experience, training, or education sufficient to qualify the witness as an expert on the subject. (Evid. Code, § 720.) A court abuses its discretion in allowing expert testimony only if the witness clearly lacks qualifications as an expert. (People v. Panah (2005) 35 Cal.4th 395, 478.) Vertolli possessed special knowledge, experience, and training sufficient to qualify as an expert on sexual assault examinations.
Defendant also argues Vertolli lacked qualifications to render an opinion that the victim’s injuries were caused by nonconsensual intercourse; the opinion was beyond her expertise as a SANE nurse and was not supported by citations to scientific studies that correlate specific injuries to sexual assault.
However, as the People note, “‘“[w]here a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than its admissibility.”’” (People v. Bolin (1998) 18 Cal.4th 297, 322.) Vertolli gave her opinion as a SANE nurse. Defense counsel vigorously challenged Vertolli’s opinion. During cross-examination, Vertolli admitted the victim’s physical injuries could also have resulted from consensual sexual intercourse.
Although defendant faults Vertolli’s lack of scientific studies to support her opinion, he fails to cite any authority, statutory or otherwise, that requires such support. Instead, defendant cites cases involving testimony by experts regarding application of a new scientific technique. Vertolli testified regarding her medical examination of the victim, not about a new scientific method.
Finally, defendant argues Vertolli intruded upon the province of the jury when she testified that, in her opinion, the sexual intercourse was not consensual and there had been “quite a struggle.” The People contend the trial court cured any possible error by requiring Vertolli to clarify her testimony.
We agree. After Vertolli’s initial testimony, the trial court agreed with defense counsel that the nurse practitioner could not testify as to what was in the victim’s mind regarding whether she consented to sexual intercourse. The trial court instructed the prosecution to clarify Vertolli’s testimony. Subsequently, Vertolli testified she could not “get into somebody’s mind.” Vertolli then gave her opinion, based on her clinical findings and the history given by the victim, that the victim “had vaginal penetration with a struggle, with -- with injury.”
Defendant claims Vertolli’s clarification was also inadmissible as improper expert opinion on guilt and credibility. We disagree.
An expert may not testify as to the truthfulness of a witness, the guilt or innocence of the defendant, or to the subjective knowledge or intent of the defendant. (People v. Coffman & Marlow (2004) 34 Cal.4th 1, 82; People v. Torres (1995) 33 Cal.App.4th 37, 46-48; People v. Killebrew (2002) 103 Cal.App.4th 644, 658.) An expert may offer an opinion related to a subject sufficiently beyond common experience that the expert would assist the trier of fact “[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” (Evid. Code, § 801.)
Here, Vertolli’s clarified opinion testimony related to her expertise as a SANE nurse. Vertolli testified that based on her clinical findings and interview of the victim, a struggle and injury accompanied the sexual intercourse between the victim and defendant. Vertolli did not opine as to the victim’s or defendant’s veracity, defendant’s guilt, or to the subjective knowledge of either the victim or defendant. Vertolli’s clarified testimony was not improper expert testimony.
III. Evidence of Blood Alcohol Level
Defendant contends the trial court erred in excluding evidence that it is illegal to drive with a blood alcohol level of .08 percent or more. According to defendant, the court should either have taken judicial notice of the relevant statute or allowed expert testimony on the issue. We disagree.
Background
As the Attorney General acknowledges, both defendant and the victim were drinking prior to the incident. The victim testified she was under the influence of alcohol. However, the victim testified: “. . . I don’t feel like I was intoxicated in some sense that I would lose any incredibly important detail from the incident.” The victim described her condition as “a slight buzz” but “not drunk in any sense.”
Detective Sandoval testified the victim’s speech was slurred and he smelled alcohol on her breath when he spoke with her after the incident. He requested alcohol tests for the victim and defendant. The parties stipulated that the tests revealed the victim’s blood alcohol level was 0.11 percent and defendant’s was zero.
Defendant sought to introduce evidence that it is illegal for anyone with a blood alcohol level above 0.08 percent to drive a vehicle. Defendant filed a motion requesting the court to take judicial notice of the relevant statute, Vehicle Code section 23152, subdivision (b). The court denied the motion.
During trial, defense counsel sought to introduce testimony of a witness, Ed Smith, “to give a context to the .11.” According to defense counsel, judicial notice of the Vehicle Code or testimony pertaining to blood alcohol content and driving impairment was necessary to place the victim’s blood alcohol level in context.
The court denied the request, noting: “There is really no issue as to intoxication. The victim admitted she was intoxicated. She admitted it more than once. She admitted that she was drunk. She later qualified what the level of intoxication, and I believe made reference to being not that drunk. Both counsel went into this issue on direct as well as cross-examination. [¶] I don’t feel Mr. Smith’s testimony would add anything. In fact, would probably consume an undue amount of time, as well as open the door to other issues that the jury could be misled on.”
Discussion
A court may take judicial notice of “[t]he decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state.” (Evid. Code, § 452, subd. (a).) However, a court may only notice material relevant to the case. (American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 441, fn. 7.)
In addition, the trial court possesses broad discretion to admit or exclude expert testimony. To be relevant and admissible, the expert’s testimony must be related to a subject sufficiently beyond common experience that the expert’s opinion would assist the trier of fact. We review a court’s ruling on the admissibility of expert testimony for an abuse of discretion. (People v. Valdez (1997) 58 Cal.App.4th 494, 506; Evid. Code, § 801, subd. (a).)
Defendant argues the court abused its discretion in excluding the evidence of the statutory prohibition against driving with a blood alcohol content above .08 percent and in excluding expert testimony that would have placed the victim’s blood alcohol test results of .11 percent in context. The Attorney General counters that the trial court properly excluded the evidence as both irrelevant and time consuming.
The court, in excluding the evidence, noted that the victim had admitted she was intoxicated. The court also acknowledged that the victim later qualified her level of intoxication and “I believe made reference to being not that drunk.” The court also stated both parties had extensively questioned the victim about her intoxication during trial.
Defendant takes issue with the trial court’s recollection of trial testimony, arguing the victim “specifically denied she had been intoxicated. The trial court’s misrecollection of her testimony undermines entirely the court’s ‘probative value’ analysis and its [Evidence Code] section 352 ‘balancing.’” Defendant claims the victim never admitted being intoxicated.
Defendant is mistaken. The victim admitted being under the influence and admitted drinking prior to the rape. The victim testified she was frightened, so she did not really feel intoxicated. She also stated she did not believe her thinking was impaired by alcohol, because they had not been drinking for very long before the rape. Although the victim admitted she was not completely sober, she stated she was not so intoxicated that she would have lost any important details. The trial court did not mischaracterize the victim’s testimony in denying defendant’s request.
Nor did the trial court exercise its discretion in an arbitrary, capricious, or absurd manner resulting in the miscarriage of justice. (People v. Rodriquez (1999) 20 Cal.4th 1, 9-10 (Rodriquez).) The court found that both judicial notice of the blood alcohol content for drunk driving and expert testimony on blood alcohol content would not add anything to the testimony at trial. We agree.
The victim testified extensively about her alcohol consumption, admitting she was under the influence but denying it impaired her memory. Officer Sandoval testified he smelled alcohol on the victim’s breath and her speech was slightly slurred when he interviewed her the night of the rape. Sandoval testified that given his training and experience, he believed the victim was under the influence of alcohol. Defendant testified he did not pay attention to the victim’s level of sobriety during the incident, but stated the victim alone drank most of the bottle of rum. Defendant took only a few sips. Defense counsel reiterated the victim’s alcohol consumption during closing argument, pointing out her blood alcohol content and stating: “She drank the whole bottle. She should be [.11].”
Given the extensive discussion of the victim’s drinking, the court determined any introduction of the statutory definition of drunk driving or expert testimony would consume an undue amount of time and open the door to potentially confusing side issues. The ruling was not arbitrary or capricious and did not exceed the bounds of reason. (Rodriguez, supra, 20 Cal.4th at pp. 9-10.)
IV. Impeachment and Rehabilitation Evidence
Defendant challenges three other evidentiary rulings by the trial court. First, defendant argues the court erred in not allowing him to impeach the victim with her refusal to speak with the defense. Second, defendant faults the court for not allowing him to impeach the victim with her former boyfriend’s opinion of her sexual promiscuity. Finally, defendant contends the trial court should have allowed a defense witness to testify that defendant expressed remorse about the prior rape. We agree that the trial court erred in excluding evidence of the victim’s refusal to speak with defense counsel but find the error harmless. We reject the other two assignments of error.
We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. The court’s determination will not be disturbed unless we find the court exercised its discretion in an arbitrary, capricious, or patently absurd manner resulting in a miscarriage of justice. (Rodriquez, supra, 20 Cal.4th at pp. 9-10.)
The Victim’s Refusal to Speak With the Defense
During cross-examination, defense counsel asked the victim if she recalled counsel’s visit to her home. The prosecution objected and, out of the jury’s presence, stated he had not received any discovery about such a contact. The trial court sustained the objection, a ruling defendant contends is an abuse of discretion.
The People concede the trial court erred in excluding evidence of the victim’s refusal to speak with defense counsel, but argue defendant has failed to show how the error prejudiced him. We agree.
A witness may decline to speak with a party’s representative. However, “[a] witness’s refusal to talk to a party is relevant to that witness’s credibility because it shows the possibility of bias against that party.” (People v. Hillhouse (2002) 27 Cal.4th 469, 494; People v. Pitts (1990) 223 Cal.App.3d 606, 872-873.)
Defendant does not argue that the trial court’s exclusion of this evidence prejudiced him. We cannot find the admission of this evidence would have changed the outcome of the case. The victim testified in great detail about the rape, identifying defendant as her assailant. There is no reason to believe the victim’s testimony that she refused to speak with defense counsel would have dissuaded the jury from determining that defendant was guilty of the rape charge.
He argues any prejudice was cumulative.
Evidence of the Victim’s Prior Sexual Conduct
The prosecution moved to exclude evidence of the victim’s prior sexual conduct. Defense counsel had obtained information from Mr. Peterson, the victim’s former boyfriend, about the victim’s willingness to engage in sexual behavior early in their relationship. Peterson also recalled an incident in which the victim had sexual intercourse with another person in front of him. This evidence would be relevant, defense counsel argued, if the victim testified she would not have had sexual intercourse on her first date with defendant. The trial court granted the prosecution’s motion, subject to further review.
After the victim testified, defense counsel again raised the issue. Defense counsel noted the victim testified she felt uncomfortable “partying” with defendant, since she only did that with close friends. The victim also testified she did not intend to become intimate with defendant and felt “very vulnerable.” Defense counsel again offered evidence that “for many years” the victim had consumed alcohol and had sex with men with whom she was not on a date. Defense counsel argued the victim had opened the door with her own testimony.
The prosecution opposed the testimony under Evidence Code sections 1103, subdivision (c)(1) and 782. The trial court found “the door” had not been opened and offered to review the request at the conclusion of the victim’s cross-examination.
Defendant argues the trial court erred in refusing to admit evidence about the victim’s prior sexual experience. The Attorney General contends the evidence was inadmissible under Evidence Code sections 1103 and 782.
Evidence Code section 1101, subdivision (a) provides that in trials of sexual offenses, evidence of specific instances of the complaining witness’s sexual conduct is not admissible by the defendant in order to prove consent by the complaining witness. However, under Evidence Code section 1103, a victim’s prior sexual conduct may be admissible to attack the credibility of the complaining witness. Evidence Code section 782 requires the defendant to file a written motion explaining the relevance of the evidence of sexual conduct in attacking the victim’s credibility.
As the People point out, defendant failed to comply with section 782, even after the prosecution pointed out the necessity of a written motion during oral argument on the issue. By failing to comply with section 782, defendant has forfeited the issue. (People v. Sims (1976) 64 Cal.App.3d 544, 553-554.)
Defendant’s argument fails in any event. Defendant makes far too much of the victim’s testimony. In sum, the victim simply recalled a telephone conversation in which she expressed to defendant her discomfort at his suggestion that they go “partying.” Later, after defendant started pulling her pants down and strangling her, she had a “vulnerable feeling.” Under defendant’s theory, any testimony by the victim suggesting that she had no plans or desire to engage in sex with him would have “opened the door” to testimony about her promiscuity. If that were the law, then investigations into a victim’s sexual history would become standard procedure in the defense of every rape prosecution on the chance that evidence of promiscuous behavior could be used for impeachment if a victim hinted at a chaste background. The court did not err in excluding such testimony. For that reason, defendant’s related assertion of ineffective assistance of counsel for failing to preserve the issue also fails.
Evidence of Defendant’s Statements of Remorse Regarding a Prior Rape
Defendant contends the court erred in refusing to allow defendant’s former girlfriend, Breitenstein, to testify regarding defendant’s remorse over a rape he committed in 2000. R.V. testified regarding the 2000 rape. She stated defendant did not appear remorseful.
Defense counsel proffered testimony by Breitenstein that defendant had told her of the previous rape conviction. According to Breitenstein, defendant had been “very remorseful and crying at the time that he told her about it.”
The trial court allowed Breitenstein’s testimony regarding her relationship with defendant. However, the trial court excluded testimony about defendant’s expression of remorse. The court found the probative value of the evidence outweighed by the potential to mislead the jury. The testimony would veer into “areas of the witness’s connection to and association with the defendant. [¶] . . . [The] possibility that we will have to go into . . . where, when, and how this alleged remorseful statement was made, I think it will add to an undue consumption of time and adds nothing material to this case.”
Defendant contends Breitenstein’s testimony would not have misled or confused the jury. In effect, defendant challenges the trial court’s exercise of its discretion under Evidence Code section 352.
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) We may not disturb the court’s exercise of its discretion except on a showing that the court acted in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (People v. Jones (1998) 17 Cal.4th 279, 304 (Jones).)
Given the fact that defendant expressed his remorse to Breitenstein three years after his conviction for raping R.V., Breitenstein’s testimony had little probative value. In addition, defendant himself testified he felt remorseful about the rape. In excluding the evidence, the trial court did not act in an arbitrary or capricious manner resulting in a miscarriage of justice. (Jones, supra, 17 Cal.4th at p. 304.)
Ruling on Motion to Strike
In a related argument, defendant contends defense counsel performed ineffectively in failing to obtain a ruling on a motion to strike R.V.’s testimony that defendant did not appear remorseful about raping her in 2000. After R.V.’s testimony, defense counsel unsuccessfully moved to present the testimony of defendant’s former girlfriend that defendant was very remorseful about the rape. Defense counsel moved to strike R.V.’s testimony. The court took the request under submission. The matter was not raised again.
Defense counsel’s reason for not requesting a ruling does not appear in the record. We will reverse on appeal on the ground of ineffective assistance only if the record affirmatively discloses no rational tactical purpose for defense counsel’s act or omission. (People v. Zapien (1993) 4 Cal.4th 929, 980.)
Defense counsel could have chosen to abandon the issue in light of subsequent developments in the case, including defendant’s own testimony, and his assessment that the request would fail.
Or, as the Attorney General points out, defense counsel could have decided that revisiting anything concerning the prior rape would cause the jury to focus on R.V.’s testimony about the rape. Since defense counsel may have had a tactical purpose in not requesting a ruling, defendant’s claim of ineffective assistance fails.
V. Prosecutorial Misconduct
Defendant argues the prosecution committed misconduct during closing argument by referencing evidence it had successfully excluded from trial. According to defendant, the prosecution “elected to take unfair advantage of the absence of such evidence.” We disagree.
Background
During closing argument, defense counsel argued that the credibility of the victim and defendant formed a central issue in the case. Defense counsel reasoned: “How can you say that you think [the victim] is any more credible than [defendant] when you don’t know a darn thing about her? Do you know who her best friend is? Do you know what she studies in school? Do you know anything about that woman at all other than what she let you see during her testimony for what was maybe less than two hours total? That’s all you know. [¶] So I don’t see how under this circumstance any human being who’s being truthful and honest about the situation could say that with the limited information you have on these two people, that you can say one or the other is much more reliable, and that she’s much more reliable than not, to prove it to you beyond a reasonable doubt, the highest burden in the world.”
The prosecution, during closing argument, responded: “You were asked, well, do you know her? Do you know [the victim], who her friends are, who her family is? You’re being asked to assume facts not in evidence. And I’m sure Counsel didn’t mean for you to do that, because you’re not allowed to do that. [¶] Your object, your sworn duty is to say: What is the evidence? What do we know? What did we hear? And then apply that to the law. [¶] [The victim] did take the stand. She was unfortunately asked questions upon questions upon questions of a personal nature upon something very personal about something that hurt her deeply. She could have been asked about her social background, her friends, but she wasn’t. Because it’s not something that they didn’t ask then but they want you to consider now.”
Defense counsel objected to the prosecution’s argument as improper, stating: “Your Honor makes the rulings.”
Discussion
Defendant contends the prosecution committed misconduct because it had previously successfully moved to exclude evidence of the victim’s sexual proclivities. A prosecutor’s misconduct violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render the trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Prieto (2003) 30 Cal.4th 226, 260.)
Defendant focuses on the prosecutor’s statement that “[the victim] could have been asked about her social background, her friends, but she wasn’t. Because it’s not something that they didn’t ask then but they want you to consider now.” However, the prosecution was responding to defense counsel’s closing argument, which questioned why the jury wasn’t told more about the victim’s background. The prosecution did not suggest defense counsel should have presented evidence concerning the victim’s sexual history. The prosecution did not bring up the lack of information; defense counsel raised the issue.
In addition, the trial court ruled only that evidence of the victim’s prior sexual conduct could not be broached. The trial court’s ruling did not prevent defense counsel from introducing evidence regarding other aspects of the victim’s background, including friends and social activities, the very evidence defense counsel stated was lacking in closing argument. We find no misconduct.
VI. Ineffective Assistance of Counsel
Defendant argues he received ineffective assistance of counsel in connection with three evidentiary rulings. We have already concluded above that trial counsel did not perform ineffectively in failing to preserve the evidentiary issue related to the victim’s prior sexual conduct and in failing to obtain a ruling on a motion to strike testimony that defendant did not appear remorseful for an earlier rape. Defendant also contends his counsel’s failure to impeach the victim with her prior conviction for lewd conduct constituted ineffective assistance of counsel.
To establish ineffective assistance, defendant must show counsel’s performance was deficient and the deficient performance resulted in prejudice to defendant. (People v. Weaver (2001) 26 Cal.4th 876, 925.) Defendant can prevail on his ineffective assistance claim only if there is no satisfactory explanation for defense counsel’s action or omission. (People v. Kipp (1998) 18 Cal.4th 349, 367.) Measured by this standard, defendant’s claim of ineffective assistance fails.
Impeachment With the Victim’s Prior Misdemeanor
Prior to trial, the prosecution acknowledged the victim had previously pled guilty to misdemeanor lewd conduct in connection with appearing on a beach topless. The prosecution moved to exclude the evidence.
Defense counsel stated it did not intend to pursue the prior conviction unless the victim’s testimony made it relevant. The trial court granted the prosecution’s motion, subject to reconsideration.
Defendant contends defense counsel performed ineffectively in failing to argue that the victim’s prior citation for lewd conduct was admissible as conduct amounting to moral turpitude. In support, defendant cites People v. Wheeler (1992) 4 Cal.4th 284 (Wheeler).
In Wheeler, the Supreme Court found “nonfelony conduct involving moral turpitude” admissible to impeach a witness’s credibility. (Wheeler, supra, 4 Cal.4th at p. 295.) However, the Attorney General contends the victim’s prior misdemeanor conviction did not amount to moral turpitude.
The parties agree the victim pled guilty to a violation of section 647, which provides that anyone “[w]ho solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view” is guilty of disorderly conduct, a misdemeanor. (§ 647, subd. (a).)
As the Attorney General points out, no California case has found that a misdemeanor violation of section 647 is a crime of moral turpitude for impeachment purposes. “‘Whether the trial court admits evidence of past misconduct should be determined solely on the basis that that conduct evinces moral turpitude. The label is not important [i.e., what type of statutorily defined offense, if any, the conduct constitutes] -- the conduct is.’” (People v. Ayala (2000) 23 Cal.4th 225, 273.) Defendant cites three cases involving violations of section 647 as a predicate for professional disciplinary proceedings in which the underlying conduct involved more than simple indecent exposure. He makes no effort to demonstrate that the conduct underlying the victim’s conviction demonstrates moral turpitude. Defense counsel cannot be found to be ineffective in failing to pursue an unsupportable argument that the victim’s prior conviction was admissible for impeachment purposes.
VII. Admission of Uncharged Sexual Offense
Defendant argues the admission of evidence of a prior rape under Evidence Code section 1108 violated his due process rights. According to defendant, section 1108 dilutes the prosecution’s burden of proof to establish the elements of the offense beyond a reasonable doubt.
However, the Supreme Court has determined that Evidence Code section 1108 does not violate due process. The court noted: “‘While the admission of evidence of the uncharged sex offense may have added to the evidence the jury could consider as to defendant’s guilt, it did not lessen the prosecution’s burden to prove his guilt beyond a reasonable doubt.’” (People v. Falsetta (1999) 21 Cal.4th 903, 920.) We are bound by the Supreme Court’s decision.
VIII. Waiver of Jury Trial on Prior Conviction
Defendant claims trial counsel performed ineffectively in failing to insist upon a jury trial for the prior conviction allegation after the jury was discharged. Defendant argues that had counsel insisted upon a jury trial, the priors could not have been found after discharge of the jury. The argument is at odds with Supreme Court authority.
Background
The information charged defendant with rape and alleged he had suffered a prior conviction for forcible rape in May 2000. The trial court granted defense counsel’s motion to bifurcate the trial of the prior conviction.
At trial, R.V. testified about the 2000 rape. The parties stipulated that defendant pled guilty or no contest to rape. Following the verdict, defense counsel stated: “Your Honor, I have no objection to you doing a formal waiver [admonition].” The court advised defendant of his right to a jury trial on the truth of the prior conviction allegation. Defendant waived his right to a jury trial.
The prosecution submitted a certified abstract of judgment reflecting the prior conviction, a photograph, and fingerprints. The court found the prior conviction true and sentenced defendant to 25 years to life for rape under section 667.61, subdivision (a). The court doubled the sentence as a result of the prior strike, yielding a sentence of 50 years to life under sections 667, subdivision (c)(1) and 1170.12, subdivision (c)(1).
Discussion
Defendant contends defense counsel performed ineffectively in waiving a jury trial on the prior conviction allegation. According to defendant, since the jury had been discharged before he personally waived a jury trial, had he instead insisted on a jury trial, the jury could not have been reconvened. The court could not have proceeded and the enhancement allegation could not have been found true. Therefore, defense counsel was ineffective in not taking advantage of a procedural gaffe.
When a defendant is charged with having suffered a prior conviction, “the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty.” (§ 1025, subd. (b).) Defendant argues that once the court dismissed the jury, it was powerless to reconvene the jury had he asserted his right to a jury trial on the prior convictions. Defendant is mistaken.
In People v. Saunders (1993) 5 Cal.4th 580 (Saunders), the Supreme Court confronted a similar issue. The trial court had bifurcated trial on the prior conviction allegations on the defendant’s motion. After the jury found the defendant guilty of burglary, the court discharged the jury. The following day, the defendant waived his right to a jury trial on the prior conviction allegations. (Id. at p. 586.) Defense counsel, who was not present when the jury returned its verdict, argued she would not have advised the defendant to waive a jury trial had she known the court had already discharged the jury. The trial court allowed the defendant to withdraw his waiver and impaneled a new jury to try the prior conviction allegations. (Id. at pp. 586-587.)
The Supreme Court found no error in the trial court’s impaneling of the second jury. According to the court: “We do not believe that the Legislature, in enacting sections 1025 and 1164, intended to create a procedural trap that would enable defense counsel to ambush the trial judge and deprive the People of their statutory right to prove one or more alleged prior convictions for the purpose of enhancing the punishment of the repeat offender. Nor should the law place a defense attorney in the untenable position of having to choose between honoring counsel’s commitment to the court (that jury trial on the prior conviction allegation would be waived) and counsel’s duty to his or her client (to offer all available defenses to the charges and allegations contained in the accusatory pleading).” (Saunders, supra, 5 Cal.4th at pp. 590-591.)
Defendant’s argument thus rests on the erroneous premise that the trial court would have been powerless to act had he requested a jury trial. Under Saunders the court could have impaneled a second jury had defendant asserted his right to a jury trial on the prior conviction. Therefore, defense counsel did not perform ineffectively in failing to insist on a jury trial.
IX. Custody Credits
Finally, defendant contends he was entitled to 395 days’ credit against his sentence for time spent in custody. The Attorney General argues that defendant was subject to a parole hold and has failed to show that the conduct resulting in his conviction was the sole cause of his custody. The Attorney General has the better argument.
Background
Defendant was convicted of rape on May 10, 2000. The court sentenced him to three years in state prison. Defendant was released on parole on August 19, 2002, and was on parole when he committed the second rape in January 2005.
Attached to the probation officer’s report is a document prepared by the Red Bluff Parole Unit and directed to the Board of Prison Terms, seeking a parole hold on defendant as of January 3, 2005. The request lists two reasons for the parole hold: “Charge 1,” based on defendant’s postarrest telephone admission to his parole officer that he had had a couple of drinks in violation of a “no alcohol special condition of parole,” and “Charge 2,” based on the rape of the victim.
The probation report also noted: “According to Parole Agent . . . [defendant] was given permission to travel to Butte County, however he was to return to Lassen County immediately after completing his planned business. [Defendant] failed to return to Lassen County as directed by his Parole Agent, and therefore violated the conditions of parole, as he was 50 miles from his county of commitment without permission.”
The probation officer recommended that defendant be awarded custody credits because “the issue of People v Bruner would be somewhat excessive,” since defendant was facing a lengthy sentence.
People v. Bruner (1995) 9 Cal.4th 1178 (Bruner), discussed post.
The Red Bluff Parole Unit placed a parole hold on defendant, which remained in effect at the time the presentence report was prepared by the probation department. The parole unit found defendant had been arrested for rape and had committed two parole violations on January 3, 2005, apart from the rape itself. Defendant had been granted permission to travel from Lassen County to Butte County for a day but was to return immediately to Lassen County after completing his business at the university.
Defendant failed to comply with this requirement, violating a condition of parole by being 50 miles away from his county of commitment without permission. The probation officer recommended that defendant be awarded custody credits.
Defendant was in custody in the Butte County jail from January 3, 2005, until December 5, 2005, or 344 days. Defendant accrued credit for 51 days under section 2933.1. During sentencing, the prosecution argued that section 2900.5 and Bruner, supra, 9 Cal.4th 1178 precluded award of custody credits against his sentence for the current rape conviction. The trial court agreed and awarded no credits.
Discussion
A defendant convicted of a felony or misdemeanor is entitled to have the sentencing court award credit on his or her term of imprisonment for days already spent in custody, up to and including sentencing. However, credit is given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted. (§ 2900.5, subds. (a), (b), (d); In re Marquez (2003) 30 Cal.4th 14, 19.)
A defendant in custody on multiple causes, such as parole violations and new charges, bears the burden of establishing that he is entitled to presentence custody credits. (Bruner, supra, 9 Cal.4th at pp. 1193-1194; People v. Shabazz (2003) 107 Cal.App.4th 1255, 1257-1258.)
As the Supreme Court in Bruner explained: “[A] prisoner is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period.” (Bruner, supra, 9 Cal.4th at p. 1191.) A defendant’s sentence may not be credited with presentence custody time attributable to a parole or probation revocation based in part upon different criminal conduct. The Bruner court concluded: “[W]here a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a ‘but for’ cause of the earlier restraint.” (Id. at pp. 1193-1194.)
Here, defendant argues his alcohol consumption was part of his “‘conduct’” leading to the rape charge and “by no means an ‘unrelated’ incident.” As for his failure to return to Lassen County, defendant contends his “‘tardiness’ . . . clearly played no part in the decision to seek revocation.”
The Attorney General contends that neither the drinking of alcohol nor the failure to return, both of which violated his parole, constituted elements of the new offense. As the Attorney General points out, even if the drinking had not been followed by defendant’s rape of the victim, he still would have violated parole.
We agree. A defendant is entitled to presentence conduct credit if the defendant “shows that the conduct which led to his conviction was the sole reason for his loss of liberty.” (Bruner, supra, 9 Cal.4th at p. 1191.) Here, the Red Bluff Parole Unit sought a parole hold based on defendant’s drinking in violation of his parole. The unit also noted a further violation of parole: defendant’s failure to return immediately after completing his business at the university. Both defendant’s drinking and his failure to return are “unrelated incidents of misconduct” not connected to his rape of the victim. Therefore the court correctly denied defendant presentence custody credits.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON , Acting P.J., HULL , J.