People v. Paschall CA1/2 ( 2021 )

Filed 6/28/21 P. v. Paschall CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A155545
v.
LAMAR S. PASCHALL, (San Francisco County
Super. Ct. No. 221383-02)
Defendant and Appellant.
Defendant Lamar Paschall and Kenneth Babers committed a brutal
series of sexual crimes against Amber S. (Amber) and then robbed her by
forcing her to withdraw money from an ATM. A jury found Paschall guilty of
numerous crimes arising out of the incident, including kidnapping to commit
robbery. Paschall argues that substantial evidence does not support the
jury’s guilty verdict on the kidnapping to commit robbery charge, specifically
that two separate elements of that crime are not supported. He also argues
that the trial court erred by refusing to allow his counsel to cross-examine
Amber regarding whether she had a mental or psychological disorder that
would have interfered with her ability to perceive or recall the incident. We
reject the arguments, and affirm.
1
BACKGROUND
The General Setting
At around 1:30 a.m. on January 5, 2002, Amber—then 20 years old—
finished working her shift at Trader Joe’s on Bryant Street in San Francisco.
She then had donuts and tea with a coworker, Phoebe Hunter, at a donut
shop at 11th and Market Street. After a couple hours, Amber left and began
walking home alone up Polk Street.
As she walked, Amber encountered two men, whom she later identified
as Paschall and Babers. Amber began talking with the men and agreed to
smoke marijuana with them. Amber and the men then went to a more
secluded location, a loading dock in a nearby alley, Elm Street. They smoked
marijuana and talked for 10 or 15 minutes.
After they finished smoking, Paschall grabbed Amber’s face and forced
her to perform oral sex on Babers. Paschall told Amber that Babers had a
gun. Paschall and Babers went on to commit a series of sexual crimes
against Amber, both individually and jointly, the details of which are not
germane to the issues here, and need not be set out in detail. Suffice to quote
the trial court’s description in ruling on an issue at trial: “Amber was
sodomized, orally penetrated, anally penetrated, and vaginally penetrated
many times by two men at the same time.” At one point during the attacks,
Paschall told Amber “[s]hut up or I’ll kill you.” At another point, Amber
vomited.
As discussed in greater detail below, after the attacks ended Paschall
and Babers “decided that [the three of them] should walk specifically back to
the little plaza area in between the quad and City Hall.” Paschall and
Babers were discussing “should they kill me, what should they do with me,”
Paschall at one point saying they would “off” her. At some point Paschall
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“indicated” that they should go to an ATM. Amber chose a Wells Fargo ATM
next to the library that she knew was closed. She tried two ATMs at that
location but was unable to withdraw any cash because the ATMs there do not
work at night.
Amber and the two men then went to a Washington Mutual ATM near
Market and Eighth Street. Paschall hung “behind a little bit” while Babers
accompanied Amber to the ATM, where she withdrew $80. After giving the
men the $80, Paschall told her to go back to the ATM and get more. Amber
returned to the ATM and withdrew another $60. The three then continued to
walk on Market Street toward Sixth Street so that Paschall and Babers could
buy drugs. After an unsuccessful attempt to buy cocaine, the men purchased
marijuana and went to a donut shop on Sixth Street to buy rolling papers.
Amber and Babers went inside the shop while Paschall waited outside.
Inside the shop, Amber was able to signal to another customer that she had
been raped and needed help. Employees of the shop brought Amber behind
the counter and called the police, who arrived and took Amber to the hospital.
Meanwhile, Babers left the shop and he and Paschall evidently left the area.
Later that year, Amber was walking around San Francisco with Hunter
when she saw Paschall and Babers. Described as “shocked and frozen,”
Amber alerted Hunter and they ducked into a store. As Hunter put it at
trial, she and Amber were walking when Amber, “scared, anxious, upset,
[and] jittery,” pulled Hunter into a coffee shop and said she “had seen the
guys, that was them.”
Over the following years, Amber failed to respond to repeated attempts
by investigators to contact her. However, in 2011, after receiving a letter
stating that the statute of limitations was approaching, she spoke with the
3
police, and following Amber’s identification in a line-up, Paschall was
arrested.
The Proceedings Below
On December 10, 2013, the San Francisco District Attorney filed an
indictment charging Babers and Paschall with numerous crimes arising out
of the incident. Paschall was charged with oral copulation by acting in
concert with force (Pen. Code, § 288a, subd. (d)(1))1 (count 2), four counts of
forcible rape in concert (§ 264.1) (counts 3, 4, 9, and 10), forcible digital
penetration in concert (§ 264.1) (count 6), forcible sodomy in concert (§ 286,
subd. (d)(1)) (count 8), kidnapping to commit robbery at the Wells Fargo ATM
(§ 209, subd. (b)(1)) (count 12), kidnapping to commit robbery at the
Washington Mutual ATM (§ 209, subd. (b)(1)) (count 13), attempted first-
degree robbery at the Wells Fargo ATM (§§ 212.5, subd. (b), 664) (count 14),
and two counts of first-degree robbery at the Washington Mutual ATM
(§ 212.5, subd. (b)) (counts 15 and 16). And with respect to the seven sexual
assault charges (counts 2–4, 6, and 8–10), the indictment alleged that
Paschall kidnapped Amber (§ 667.61, subd. (e)(1)).2
Jury trial was held in January of 2018, presided over by the Honorable
Jeffrey Ross, in advance of which counts 14, 15, and 16 were dismissed as
barred by the statute of limitations. The parties stipulated that Babers had
raped Amber on Elm Street in the early morning hours of January 6, 2002,
1 Further statutory references are to the Penal Code.
2Babers was charged individually in counts 1, 5, 7, 11, and 17–34. He
accepted a plea bargain prior to trial and Paschall was subsequently tried
alone.
4
and later pleaded guilty to that rape. The jury found Paschall guilty on seven
counts: 2–4, 6, 8, 9 and 12. The jury found Paschall not guilty on count 10,
but guilty of the lesser-included offense of assault with intent to commit rape
(§ 220). The jury deadlocked nine-to-three in favor of guilt on count 13, as to
which Judge Ross declared a mistrial. The jury also found not true the
kidnapping allegations as to the sexual assault charges.
Paschall moved for a new trial in part on the basis that there was
insufficient evidence to support the kidnapping conviction because the
evidence showed he formed the intent to rob Amber only “after the inception
of the movement away from the loading dock.” Judge Ross denied the motion,
noting among other things that there was “a lot of evidence presented
showing clear intent to rob Amber prior to relevant asportation. This robbery
was not an afterthought. . . . They knew of her ATM card, and they
specifically took her to an ATM machine.” And he later added, “[w]ith regard
to the kidnapping, the evidence is clear that upon first abducting her—excuse
me—first attacking her, the defendants obtained various ATM cards. And
when they finished their sexual assault, then used the ATM cards to
transport her to the banks whose ATMs could be accessed by use of those
cards—clearly, circumstantial evidence to support each of the prerequisites of
1203 CALCRIM and the charge for which Mr. Paschall was convicted in
Count 12.”
Judge Ross sentenced Paschall to 36 years 4 months to life in prison,
calculated as follows: seven years on count 2, seven years on count 3, 28
months on count 4, 28 months on count 6, seven years on count 8, 28 months
on count 9, 16 months on count 10, and seven years to life on count 12, all to
run consecutively.
5
DISCUSSION
The General Law and the Standard of Review
The aggravated offense of kidnapping with intent to commit robbery
(§ 209) requires six elements, two of which are at issue here: (1) “that the
defendant have the specific intent to commit a robbery at the time the
kidnapping begins” (People v. Davis (2005) 36 Cal.4th 510, 565–566), and
(2) the movement must have increased the risk of harm to the victim beyond
that necessarily present in the robbery. (See CALCRIM No. 1203; People v.
Tribble (1971) 4 Cal.3d 826, 832.)
In People v. Tribble, supra, 4 Cal.3d 826, our Supreme Court elaborated
on this intent element, explaining that under section 209 it is “ ‘necessary for
the trier of fact to determine whether the kidnap[p]er intended to commit
robbery at the time of the original seizing. In this respect the crime is similar
to burglary where it is necessary to show that the entry was with the intent
to commit larceny or any felony. An illegal entry but without such an intent
is not a burglary [citation]; similarly since the 1951 amendment to section
209, kidnapping without intent to rob constitutes kidnapping but not
kidnapping for purpose of robbery; and a robbery during a kidnapping where
the intent was formed after the asportation is a robbery and not a kidnapping
for purpose of robbery.’ ” (People v. Tribble, supra, 4 Cal.3d at p. 832; see
People v. Davis, supra, 36 Cal.4th at pp. 565–566.) And the jury was
instructed that one element of kidnapping to commit robbery was that
“[w]hen th[e] movement began, the defendant already intended to commit
[]robbery.” (See CALCRIM No. 1203.)
6
Paschall first contends that there was not substantial evidence to
support that he had the specific intent to commit robbery at the time he and
Babers moved Amber from the loading dock after the sexual assaults.
“In addressing a challenge to the sufficiency of the evidence supporting
a conviction, the reviewing court must examine the whole record in the light
most favorable to the judgment to determine whether it discloses substantial
evidence—evidence that is reasonable, credible and of solid value—such that
a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The appellate court
presumes in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence. (People v. Reilly (1970) 3 Cal.3d
421, 425; accord, People v. Pensinger (1991) 52 Cal.3d 1210, 1237.) The same
standard applies when the conviction rests primarily on circumstantial
evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124.) Although it is the
jury’s duty to acquit a defendant if it finds the circumstantial evidence
susceptible of two reasonable interpretations, one of which suggests guilt and
the other innocence, it is the jury, not the appellate court that must be
convinced of the defendant’s guilt beyond a reasonable doubt. (Ibid.) ‘ “If the
circumstances reasonably justify the trier of fact’s findings, the opinion of the
reviewing court that the circumstances might also reasonably be reconciled
with a contrary finding does not warrant a reversal of the judgment.
[Citation.]” ’ (People v. Thomas (1992) 2 Cal.4th 489, 514.)” (People v. Kraft
(2000) 23 Cal.4th 978, 1053–1054.)
Substantial Evidence Supports That Paschall Intended to Rob
Amber Before the Kidnapping Began
Amber testified that Paschall and Babers had taken her driver’s
license, and that once the attacks concluded, they told her “if you tell anybody
7
about this we’ll go after the people at this address.” Her testimony continued
as follows:
“Q. Did you think that you were going to be left there and that they
were done, that your experience was almost done?
“A. No, far from it. So after that little speech about the ID, they
decided we should walk specifically back to the little plaza area in between
the quad and City Hall.
“And there like I think first Babers goes on about how he was like
molested, assaulted by aunties in his family, so now it was my turn.
“[Proceedings interrupted by court reporter.]
“MR. TALAI [prosecutor]: Q. You said ‘crazy rationalization.’
“A. Of the experience he had, as far as this happened to me. All that
shit. And now it’s your turn.
“And then after the confrontation there was talking with each other,
should they kill me, what should they do with me.
“Q. I’m sorry, let me stop you.
“Who was it that decided that you’re going to go with them and walk?
“A. Him [indicating].
“Q. I see you pointing to him. Are you referring to the defendant in
court right now?
“A. Yes.”
After showing Amber a photograph of the jeans she was wearing on the
night of the incident, the prosecutor’s questioning continued as follows:
“MR. TALAI: Q. Now, as you and the defendant and Mr. Babers
are now walking, are you walking in these pants that are shown in People’s
8?
“A. Yeah.
8
“Q. And so you’re walking around with—let me ask it this way: Is
the shirt you were wearing, was that wet?
“A. Yeah, the white t-shirt.
“Q. And the pants that you were wearing had vomit on them?
“A. Yes.
“Q. So you’re walking with these two men in clothing that is either
wet or has vomit on it?
“A. Well, wet because of my shirt and the alcohol, and then the lovely
combination of barf on my pants.
“Q. And they are having a conversation about what they should do
with you. Specifically the defendant said ‘we should kill’ or ‘should we kill
her,’ something to that effect?
“While you are walking with these two men where were they in relation
to you as you’re walking around?
“A. Very close, like walking together.
“Q. Is one of them always on one side of you or not?
“A. I feel like the defendant was probably more on my right side, but
I can’t remember exactly them walking on either side. Once we were walking
I’m like, fuck, I need to get away from these guys.
“[Proceedings interrupted by court reporter.]
“THE WITNESS: Are they going to keep me like they said.
“MR. TALAI: Q. At some point in time did either the defendant
or Mr. Babers decide what to do, where to go?
“A. Yes, the defendant said to keep me, keep me walking with him.
“And then he decided that we were going to go to the ATM machine and
pull money out of my account.
9
“MR. WISE [defense counsel]: I’ll object, speculation, move to
strike as far as what they decided.
“THE COURT: Motion to strike is granted.
“Ask a different question.
“When I strike an answer please disregard it as I indicated earlier.
“MR. TALAI: That’s great. I would like to make it more specific.
“Q. It’s important, Amber, that we figure out which one of these men
decided to take you to an ATM.
“THE COURT: The objection is to the word ‘decided.’ You can ask
her what they said.
“MR. TALAI: Q. Which one of them indicated to you let’s go to
an ATM?
“A. The defendant.
“Q. And once the defendant said let’s go to an ATM, is that what you,
he and Kenneth Babers next did?
“A. Yes.
[Objection overruled.]
“MR. TALAI: Q. Once the defendant indicated to you that you’re
going to go to an ATM, what happened next?
“A. We started walking. I chose a Wells Fargo that I knew was
closed.”
Later, during cross-examination, defense counsel questioned Amber
regarding her California driver’s license and referred her to the transcript of
her grand jury testimony:
“Q. And on the page, page 27, in reference to your testimony earlier
that you thought the shorter man had your card, starting on line 16, the
question was:
10
“Where did they get your cards from?
“Your answer: From where I [inaudible] or something. My cards
were in the pocket. I don’t carry a wallet.
“Q. They went through your pockets?
“A. Yeah.
“Q. Who had your cards, do you know?
“A. The taller one.
“And the taller one is the one you identified as Mr. Babers; is that
correct?
“A. Yes.”
As noted, Paschall moved for a new trial, arguing that there was
insufficient evidence to support the element of the requisite intent on the
kidnapping for robbery charge. Judge Ross denied the motion, observing in
part as quoted above that: “With regard to the kidnapping, the evidence is
clear that upon . . . first attacking her, the defendants obtained various ATM
cards. And when they finished their sexual assault, then used the ATM cards
to transport her to the banks whose ATMs could be accessed by use of those
cards—clearly, circumstantial evidence to support each of the prerequisites of
1203 CALCRIM and the charge for which Mr. Paschall was convicted in
Count 12.”
We agree, and conclude that viewed in the light most favorable to the
judgment, there is substantial evidence to support the jury’s conclusion that
Paschall had the requisite intent to commit robbery at the time the
kidnapping began.
As Judge Ross noted, Amber’s grand jury testimony showed that
defendants had Amber’s “cards,” which the jury could infer must have
included the ATM card she later used to attempt to withdraw money at the
11
Wells Fargo ATM. Amber also testified that just after defendants threatened
to “go after” the people at the address on her driver’s license, Paschall
“decided we should walk specifically back to the little plaza area in between
the quad and City Hall,” close to where the Wells Fargo ATM was located.3
And when asked “what happened next” “[o]nce the defendant indicated to you
that you’re going to go to an ATM,” Amber answered “[w]e started walking.”
From this evidence, the jury could permissibly conclude that Paschall had the
specific intent to rob Amber at the time the movement from the loading dock
began.
As Paschall asserts, other parts of Amber’s testimony suggest that
defendants were undecided about what to do with Amber even after they had
started walking, and that the decision was not made to go to an ATM until
after the movement had begun. However, it was for the jury to resolve any
inconsistencies in Amber’s testimony and to find the facts, and in considering
whether substantial evidence supports their verdict, we disregard any
evidence supporting a contrary conclusion. (See People v. Aguilar (2019) 41
Cal.App.5th 1023, 1026 [when reviewing jury verdict for substantial evidence
we “accept all evidence supporting the judgment, disregard contrary
evidence, and draw reasonable inferences in favor of the verdict”].) Put
slightly differently, “ ‘if the circumstances reasonably justify the jury’s
findings, the judgment may not be reversed simply because the
circumstances might also reasonably be reconciled with a contrary finding.’ ”
(People v. Brown (2014) 59 Cal.4th 86, 106.) Reversal is required only if “ ‘it
appears “that upon no hypothesis whatever is there sufficient substantial
3Amber later explained: “Since we were in the quad area of City Hall,
right next to the library, which was across from the quad area, there’s a
Wells Fargo Bank branch that has a teller right across from the library. And
the other teller is on Market Street. So we started on the one closest to us.”
12
evidence to support [the conviction.]” ’ ” (People v. Cravens (2012) 53 Cal.4th
500, 508, citations omitted.)
Substantial Evidence Supports That the Movement Increased
the Risk of Harm
Paschall also argues that a second element of kidnapping for robbery
was not supported by substantial evidence, the requirement that “the
movement must have increased the risk of harm to the person beyond that
necessarily present in the robbery.” (CALCRIM No. 1203; see § 209, subd.
(b)(2) [“This subdivision shall only apply if the movement of the victim is
beyond that merely incidental to the commission of, and increases the risk of
harm to the victim over and above that necessarily present in, the intended
underlying offense”].) Paschall argues that because he and Babers moved
Amber from the loading dock to a more public place, the only reasonable
inference the jury could draw from the evidence is that the movement
decreased Amber’s risk of harm.
In determining whether the movement increased the victim’s risk of
harm, the jury should consider “ ‘ “such factors as the decreased likelihood of
detection, the danger inherent in a victim’s foreseeable attempts to escape,
and the attacker’s enhanced opportunity to commit additional crimes.
[Citations.] The fact that these dangers do not in fact materialize does not, of
course, mean that the risk of harm was not increased.” ’ ” (People v. Vines
(2011) 51 Cal.4th 830, 870.) In People v. Nguyen (2000) 22 Cal.4th 872, the
defendant forced the victim from her house at gunpoint, drove her to a bank
and forced her to withdraw money, and then drove her to a convenience store,
then to a remote wooden area, and then to a second bank. (Id. at pp. 874–
876.) Along the way, the defendant told the victim to drink juice she feared
was drugged, and threatened to kill her. (Id. at p. 875.) Our Supreme Court
13
concluded that the increased risk of harm requirement could be “satisfied by
a substantially increased risk of either physical or mental harm,” because
“substantial movement of a victim, by force or fear, which poses a substantial
increase in the risk of psychological trauma to the victim beyond that to be
expected from a stationary robbery, seems an entirely legitimate basis for
finding a separate offense.” (Id. at p. 886.)
These principles, we conclude, demonstrate that substantial evidence
supports an increased risk of harm in this case.
First, the fact that Amber was moved from the loading dock to more
public streets does not categorically mean that the jury could not conclude
that the increased risk of harm element was satisfied, because the test for
that element does not obey “rigid” rules. As the court put it in People v.
James (2007) 148 Cal.App.4th 446, 456, “There is no rigid ‘indoor-outdoor’
rule by which moving a victim inside the premises in which he is found is
never sufficient asportation for kidnapping for robbery while moving a victim
from inside to outside (or the reverse) is always sufficient.” Rather, whether
the movement entails an increased risk of harm in a particular case “will
necessarily depend on the particular facts and context of the case,” and “must
be considered in the context of the totality of its circumstances.” (People v.
Dominguez (2006) 39 Cal.4th 1141, 1152–1153.)
Second, Amber’s testimony undermines Paschall’s claim that the
movement decreased the risk of harm simply because Amber was taken to a
more public place. Amber testified that there were not “a lot of people out
and about,” that it was still dark out, and that after she withdrew money she
and the defendants headed down Market Street toward Sixth Street, which
“felt like an unsafe area”; it was, she described, “a street where people cop
drugs and a lot of people smoke crack.” Amber unsuccessfully tried to “signal
14
with [her] eyes” to a passerby to get help, and concluded that “it [did not]
seem like anybody in the environment could help me.”
Finally, substantial evidence supports that the movement increased
Amber’s risk of harm because the movement increased Amber’s risk of
psychological harm. Amber testified that Paschall and Babers threatened to
“go after” the people at the address on her driver’s license, “repeatedly
threatened [her] life,” “made very clear that if I did not cooperate [Paschall]
would kill me,” told her that Babers had a gun, and as the movement was
ongoing, debated whether or not they should kill her in her presence. Later
on, they decided that Amber’s “name was going to be changed, and [she] was
going to be used for sex.”
Indeed, Amber’s testimony provides substantial evidence from which
the jury could conclude that “[t]he movement not only increased the risk of
harm to [Amber], but it also caused additional harm in fact.” (People v.
Simmons (2015) 233 Cal.App.4th 1458, 1472.) After hearing Paschall and
Babers discuss whether to kill Amber or use her for sex, Amber was “very
scared,” “felt like my life as my own was over,” “didn’t know if I would ever
see my friends or family again,” and “didn’t know what my future would look
like outside of potentially more unwanted brutal sex with them or other
people.” Some of the psychological harm in fact also lasted beyond the
incident, as Amber testified that while she used to love going on long walks,
“[i]t was definitely a long time [after the incident] before I would walk around
at night.”
Given all this context, substantial evidence supports the conclusion
that the movement substantially increased the risk of psychological harm to
Amber “beyond that to be expected from a stationary robbery.” (People v.
Nguyen, supra, 22 Cal.4th at p. 886.)
15
The Trial Court Did Not Abuse Its Discretion in Refusing to
Permit Defense Counsel to Cross-Examine Amber Regarding
Mental or Emotional Disorders
Paschall argues that the trial court violated his rights under the
confrontation clause by refusing to permit his counsel to cross-examine
Amber about whether she had a mental or emotional disorder that may have
affected her ability to perceive or recall the incident.
By way of additional background, at one point during Amber’s
testimony, the court reporter interrupted the proceedings, telling the court:
“Judge, I’m having a really hard time understanding. We may need to get
another reporter in here.” The reporter’s transcript shows that at six other
times during Amber’s testimony the proceedings were interrupted by the
court reporter. And although the reasons for those interruptions do not
appear in the record, after the last of these interruptions, Judge Ross said: “I
understand that some people may be having difficulty hearing or
understand[ing] what the witness is saying. [¶] Anybody have any
difficulty? The court reporter and I have some difficulty, so I’m going to ask
you to speak as distinctly as you can. [¶] If you do have any problem with
any witness or at any time, please raise your hand and we’ll address the
issue.”
During a break in Amber’s cross-examination, outside the presence of
the jury, Judge Ross noted that defense counsel had “indicated that they
wanted to ask [Amber] whether she had any mental health issues at the time
of this event in January of 2002.” A hearing was held on the request, at
which defense counsel indicated he had “previously subpoenaed any
psychiatric records from S.F. General for Ms.—for Amber S. and received
nothing.” But, defense counsel explained, his current request was based on
“seeing [Amber’s] demeanor and how she spoke during her examination
16
yesterday,” including her “very rushed” manner of speaking, her “flat affect,
which from my experience can suggest sometimes a symptom of mental
disorder,” and the fact that “[s]ome of her comments seemed somewhat
tangential.”
After the parties presented argument, Judge Ross denied the request
with this lengthy—and thoughtful—explanation:
“[Amber] testified yesterday and I observed her throughout her
testimony, and I found her testimony to be extraordinarily clear, competent,
remarkably calm in light of the fact that she was testifying about having
been sodomized, orally penetrated, anally penetrated, vaginally penetrated
many times by two men at the same time and yet her demeanor was calm
and collected. I saw no evidence in her testimony of any mental health issues
either now or any indication that she had any at that time. Her description
of her life and her circumstances when she was 20 years old in January of
2002 was completely consistent with that of a normal healthy person. So
there was nothing that I observed which would have given rise to a new and
unanticipated issue that couldn’t have been raised before. [¶] . . . [¶]
“So I weighed the question which the defense wanted to ask of Amber,
gave consideration, of course, as Mr. Wise has argued to the defendant’s
confrontation clause rights protected by the Federal and State Constitution
rights. I also conducted [an Evidence Code section] 352 analysis.
“Here, first, there was nothing disclosed by Amber during her two days
of testimony that suggested any mental health issues.
“Second, to simply ask those questions of someone who had already
been victimized, at least by Mr. Babers, who testified to having raped her, . . .
sodomized her and forced her to perform oral sex upon him, she’s been
victimized by one defendant who I sentenced to state prison for 21 years, to
17
force her in front of a jury of 18 people to answer mental health questions
where there was no evidence whatsoever in the discovery or in her testimony
yesterday to suggest that, in my view would have violated her constitutional
rights under article 1, Section 1 and article 1, Section 28 of the California
Constitution.[4]
“Again, also under Evidence Code [section] 352 I weighed any possible
probative value of that question as against the possibility of prejudice to the
People and to the victim and concluded in that balance, given what I had
observed with regard to her demeanor, her thoughtful and considered answer
to all of the questions by both the People and the defense under the most
excruciating circumstances one could imagine, I struck that balance in favor
of denying the request to ask those questions where there was no evidence
that there was anything other than a fishing [expedition] and possibly in an
effort to intimidate her in front of the jury, which would have in my view
violated her constitutional rights and was not required by California or
Federal constitutional law.
“For those reasons the request was denied.”5
4 Article I, section 28, subdivision (b)(1) of the California Constitution
provides victims of a crime the right to “be treated with fairness and respect
for his or her privacy and dignity, and to be free from intimidation,
harassment, and abuse, throughout the criminal or juvenile justice process.”
And article 1, section 28, subdivision (b)(4) provides the right to “prevent the
disclosure of confidential information or records to the defendant, the
defendant’s attorney, or any other person acting on behalf of the defendant,
which could be used to locate or harass the victim or the victim’s family or
which disclose confidential communications made in the course of medical or
counseling treatment, or which are otherwise privileged or confidential by
law.”
5 Our observation about Judge Ross’s explanation in support of his
ruling leads us to comment on the exemplary way he handled this case. It is
refreshing indeed to review an appeal in a case such as this—lengthy, highly
18
Later, Sally Holland, a physician’s assistant who examined Amber after
the incident, testified that during her examination Amber “had rapid speech,
which indicated to me a level of trauma, that she was talking very quickly.”
On cross-examination, defense counsel asked Holland about a report on
which she had written “rapid speech” under the heading “neurological”:
“Q. So what if Amber S. always spoke that way even before this
incident happened? What would that indicate to you?
“And I’m asking you because you put it down in the neurological
section.
“A. That’s where it would be because neurological—it could also be in
the psychological speech. Could be under psychiatry as well.
“It’s possible in my experience in this type of work and in my
experience as a clinician for more than 20 years one can identify rapid speech
as being part of perhaps something else that’s going on.
“Q. Something neurological?
“A. More psychiatric than neurological.
“Q. And I think you noted elsewhere, and I can show you in the
transcript if need be, that this is not a typical finding, rapid speech, it’s
significant?
“A. It is an indicator that someone is trying to get something out
without bearing a lot of emotion or with—or being able to speak and get the
information out without having to really feel what’s going on.
charged, and vigorously contested—and read an appellant’s brief that asserts
one claim of error by the trial court. There is no claim of error in jury
selection, in evidentiary rulings, in the handling of witnesses, in jury
instructions, in responding to questions from jurors, in post-trial motions, in
sentencing. Nothing. Judge Ross’s performance here is to be commended.
And we commend it.
19
“Q. And if that’s not—if somebody speaks that way, say, before a
traumatic incident happens or trauma is not an issue and they still speak
that way, I think you said it could be an indication of something else going
on?
“A. Uh-huh.
“Q. Such as?
“A. There are very few people who speak rapidly, very rapidly. And
that may be who they are and part of their make up.
“Q. I understand that, but I think when you’re saying something
psychiatric or neurological, I was asking you on that level not just—
“A. I guess I’m not sure what you’re trying to ask me.
“Q. Is that a symptom of something, potentially?
“A. Potentially, my—because she was alert and cooperative and
coherent and she was talking very rapidly, I believed that was significant.
“Q. Understood. And did you consider whether that was, since you
noted it and I see that you didn’t—on this form that I keep talking about, you
didn’t write ‘rapid speech due to trauma’?
“A. Of course not. I wouldn’t—this is an objective finding. That
would be the assessment or the plan. So this is just documenting an objective
finding.
“Q. Okay. So you didn’t really—your job was not to consider whether
her rapid speech was a symptom of some other kind of disorder or psychiatric
issue she had?
“A. Right, it was just an objective finding.”
Later, defense counsel sought to cross-examine Holland regarding
whether she “observed any mental health symptoms.” Judge Ross denied the
request: “The defense request is denied. Not only for all the reasons that I
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stated previously, but I listened to and observed the testimony of Ms.
Holland. And when you sought to raise an issue with regard to Amber’s
mental health, Ms. Holland was steadfast in saying that to the extent she
observed rapid speech she attributed it to the trauma and stress of the rape
that Amber had just been subjected to. [¶] While she certainly stated from
her resume and her experience that she is in a position to identify symptoms
of mental health issues, she didn’t identify any with regard to Amber. So I
don’t think the factual predicate has changed whatsoever from when I denied
the previous defense request pursuant to California Constitution article 1,
Section 28.”
Finally, after the jury returned its verdict, Paschall moved for a new
trial on this same ground. Judge Ross denied the motion. First, he held that
in order to properly raise the issue, defense counsel should have alerted the
court to it before the jury was dismissed, “at which time the court could have
and would have allowed [an Evidence Code section] 402 hearing on that
limited issue without subjecting Amber S. to that questioning in front of the
jury to determine whether there was any predicate upon which to cross-
examine her in front of the jury on any mental illness issues.”
Second, he found that “contrary to defense counsel’s allegations in the
motion, that Amber S. was not difficult to understand, that she did not have
a halting, digressive and rapid pattern of testimony, that the statements with
regard to what Nurse Hollins [sic] observed immediately after the events . . .
do not in any way provide a factual predicate for an indication of mental
health issues that goes to her ability to perceive, remember, describe events
about which she was testifying.” Indeed, he went on, it was “[q]uite the
contrary”: “[t]he court found then and the court recalls now and reiterates
that her demeanor was remarkably appropriate, calm, and evidence of a
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person who had gone through an extraordinarily traumatic event yet
perceived clearly and remembered it well, notwithstanding 16, 17 years had
elapsed between the time of events to the time of her testimony . . . .”
“The Confrontation Clause of the Sixth Amendment gives the accused
the right ‘to be confronted with the witnesses against him.’ This has long
been read as securing an adequate opportunity to cross-examine adverse
witnesses.” (United States v. Owens (1988) 484 U.S. 554, 557.) Nevertheless,
a trial court may “impose reasonable limits on counsel’s inquiry,” and “the
court’s ‘limitation on cross-examination . . . does not violate the confrontation
clause unless a reasonable jury might have received a significantly different
impression of the witness’s credibility had the excluded cross-examination
been permitted.’ ” (People v. Williams (2016) 1 Cal.5th 1166, 1192.)
It is true that “the mental illness or emotional instability of a witness
can be relevant on the issue of credibility, and a witness may be cross-
examined on that subject, if such illness affects the witness’s ability to
perceive, recall or describe the events in question. (People v. Herring (1993)
20 Cal.App.4th 1066, 1072; People v. Anderson (2001) 25 Cal.4th 543, 608
(conc. opn. of Kennard, J.).)” (People v. Gurule (2002) 28 Cal.4th 557, 591–
592.) And although a trial court is expected to allow cross-examination on
any factor “ ‘which could reasonably lead the witness to present less than
reliable testimony,’ ” when dealing with questioning designed to impeach a
witness, “[t]he constitutional right to confront and cross-examine adverse
witnesses does not include the right to ask wholly speculative questions
ungrounded in factual predicate even when posed in the quest to discredit a
witness.” (People v. Schilling (1987) 188 Cal.App.3d 1021, 1032–1033.)
When a confrontation clause claim is premised on the trial court’s
restriction of the scope of cross-examination, we review for an abuse of
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discretion. (People v. Peoples (2016) 62 Cal.4th 718, 765.) And we find none,
as there was no such factual predicate here, nothing to support the conclusion
that Amber had any mental health issues, never mind issues that could have
“affect[ed] [her] ability to perceive, recall or describe the events in question.”
(People v. Gurule, supra, 28 Cal.4th at p. 592.)
Although the court reporter interrupted Amber’s testimony several
times, the record does not explain why those interruptions took place. As
indicated, the record in places suggests that the reason may have simply
been that Amber was soft-spoken, with Amber at one point stating “I want to
make sure the jury can hear me. I talk softly,” and Judge Ross later
observing that, “I think the court reporter may be having trouble hearing and
distinguishing your words. If you could speak louder and more clearly.”
Certainly there is nothing in the record to suggest that the way Amber spoke
was indicative of any sort of mental or psychological disorder.
Moreover, as defense counsel acknowledged, there was no evidence
produced in discovery—including in response to a defense subpoena to San
Francisco General Hospital for Amber’s medical records—that Amber had
ever had any such disorder. And with respect to Holland’s testimony, she
ultimately clarified that although she wrote “rapid speech” under the heading
“neurological,” that was simply an “objective finding” about the way that
Amber spoke and not intended as any diagnosis or opinion about any kind of
disorder. Finally, Judge Ross was able to observe Amber and listen to her
testimony, and repeatedly disagreed with defense counsel’s assertion that
there was anything about her testimony that was abnormal or indicative of
any kind of disorder. Under these circumstances, Judge Ross did not abuse
his discretion in concluding that there was no factual predicate to cross-
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examine Amber regarding whether she had a mental or psychological
disorder at the time of the incident.
DISPOSITION
The judgment is affirmed.
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_________________________
Richman, Acting P. J.
WE CONCUR:
_________________________
Stewart, J.
_________________________
Miller, J.
A155545
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