P. v. Linderman CA4/2 ( 2013 )

Filed 3/19/13 P. v. Linderman CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E053371
v. (Super.Ct.No. FVI701945)
MATTHEW LINDERMAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Jules E. Fleuret,
Judge. Affirmed in part; reversed in part with directions.
Law Offices of Mark J. Werksman, Mark J. Werksman and Kelly C. Quinn for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting, and Tami
Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
1
I
INTRODUCTION
While carrying out his law enforcement duties as a San Bernardino County
Sheriff‟s deputy, defendant Matthew Linderman preyed on numerous vulnerable women
by exhorting sexual favors in exchange for prosecutorial leniency. Defendant appeals
from judgment entered following jury convictions for sexual battery by restraint (Pen.
Code, § 243.4, subd. (a)1; count 2); 11 counts of soliciting a bribe (§ 68, subd. (a); counts
3, 4, 5, 7, 9, 11, 13, 15, 17, 19, 24); two counts of solicitation to engage in lewd conduct
(§ 647, subd. (a); counts 6, 18); and oral copulation under color of authority (§ 288a,
subd. (k); count 8).2 The trial court sentenced defendant to a 20-year prison term.
Defendant contends the trial court erred in denying his motion to quash a search
warrant, and abused its discretion in excluding drug expert testimony and Internet
postings and photographs. Defendant also argues there was insufficient evidence to
support his convictions as to counts 6, 8, and 18, and as to the 11 counts of soliciting a
bribe. Defendant further argues the prosecutor committed prosecutorial error and the trial
court improperly sentenced defendant.
We reject defendants‟ contentions and we therefore affirm the judgment, except
for defendant‟s conviction as to count 18, which is reversed on the ground it is barred by
the statute of limitations.
1 Unless otherwise noted, all statutory references are to the Penal Code.
2Count 1 resulted in a hung jury and the jury found defendant not guilty as to the
remainder of the counts.
2
II
FACTS
Christina (Counts 1, 2, and 3)
On July 30, 2007, a Mervyn‟s security officer apprehended Christina for
shoplifting. The security officer took Christina to the mall security office, where she
remained until law enforcement arrived. Defendant, who was a San Bernardino County
Sheriff‟s deputy, responded to a call for law enforcement. Defendant told Christina she
was going to jail, handcuffed her, and placed her in his patrol car. Defendant permitted
Christina to call her friend, Vanessa, to ask her to post bail. Defendant then drove
Christina to the police station.
While at the station, Christina was upset about being arrested and told defendant
she was concerned her arrest would affect her future prospects of becoming a teacher.
Defendant told Christina she was being charged with a felony and could not go home.
Defendant offered to reduce her charge to a misdemeanor and release her if she did him
“a favor.” Christina agreed because she did not want to go to jail. Defendant drove
Christina to a secluded area of the shopping mall and asked her if she had seen “Girls
Gone Wild,” which consists of a series of videos of women exposing themselves and
committing sexual acts. Christina said she had not. Defendant responded, “So are you
gonna do me that favor?” When Christina said, “What favor?,” defendant looked at her
and she became very scared. Christina feared something bad was going to happen to her.
Defendant drove Christina to another location at the mall and led her through the
mall, handcuffed, to an empty room, that said “Sheriff” on the door. Defendant removed
3
Christina‟s handcuffs. As defendant was writing up the citation, Christina asked
defendant if he was citing her for a misdemeanor or a felony. Defendant again asked
Christina, “So what are you gonna do?” Christina said she did not know. Defendant put
a camera on the desk and told Christina to remove her shirt and bra. Christina complied
out of fear he would hurt her. Defendant was armed with a gun. Defendant said, “Those
are nice,” picked up his camera, and said “I‟m gonna take pictures of you.” Defendant
told Christina to pose for him while he photographed her chest. He then put his mouth on
her breasts and said, “they tasted good” and his penis was “hard.” Defendant asked
Christina what she “was going to do about it.” Christina said, “I don‟t know.”
Defendant told her to put her clothes back on, handcuffed her, and walked her out
to the patrol car. After they both got in the car, defendant asked Christina, “How do I
know that you‟re not going to tell on me?” Christina promised not to tell anyone. While
driving Christina back to the jail, defendant asked Christina to pull up her shirt. She
complied because she was afraid. Defendant also asked Christina to call him later and
gave her his number. At the jail, Christina did not report what defendant had done
because she was scared. Christina was booked and released by a different officer. A few
days later, Christina told her husband what defendant had done. Christina‟s husband
reported the incident to the police.
Sheila and Cassie (Counts 4, 5, and 6)
On April 18, 2007, Sheila, Cassie, and Cassie‟s sister, Yvette, went to a shopping
mall. Sheila and Cassie shoplifted items from a Target store while Yvette was shopping
at another store. The Target store security apprehended Sheila and called the police.
4
Defendant responded to the call and apprehended Cassie in the Target parking lot.
Defendant told her if she lied to him, he would take her to jail and tow her car.
Defendant put Sheila and Cassie in the back seat of his patrol car. Meanwhile, Yvette
went home and received a text message from Cassie stating, “He wants us to take dirty
pictures.” Yvette texted Cassie to call 911. Cassie responded, “I can‟t. [Defendant] said
that if I take the pictures, he will let me go.”
While talking to the women, defendant learned that Cassie was a stripper.
Defendant drove the two women to an alley behind the Target store, noting where there
were no cameras. He told them he could release them without taking them to jail, but he
would need “something in return.” Defendant suggested taking “dirty pictures” and told
the women he would let them go if they took photographs of their bare breasts and
genitalia. The women flirted with defendant, hoping they would be released. Defendant
handed Sheila a camera. The women took photographs of each other‟s breasts and
buttocks, to avoid going to jail. Defendant told the women he would not take them to jail
because they took photographs for him. He issued them tickets and let the women go.
Jill (Counts 7 and 8)
On May 2, 2007, mall security apprehended Jill for shoplifting at a Mervyn‟s
store. Defendant responded to the scene, handcuffed Jill, and placed her in the back of
his patrol car. Jill mentioned to defendant that she was a stripper. While Jill was in the
patrol car, defendant transported two other shoplifting suspects to jail and the juvenile
detention center. After dropping off the two other suspects, defendant drove Jill to a dark
isolated location and removed Jill‟s handcuffs. Defendant told her she would probably
5
go to prison for three years because she had prior theft offenses. Defendant asked Jill if
he could take pictures of her exposed breasts and to lift up her shirt. Jill complied
because she was scared and afraid to go to prison.
Defendant then drove Jill to a secluded area in the desert and asked what he would
get in exchange for “cite-releasing” her. It was about 11:00 p.m. Jill asked what
defendant wanted her to do. Defendant unzipped his pants and Jill orally copulated him
because she was afraid to go to prison. Defendant released Jill with a ticket, instead of
taking her to jail. On two subsequent occasions, defendant showed up at Jill‟s work and
asked her to take more photographs of herself. He gave her a camera, which Jill used to
photograph.
Carrie (Counts 9, 10, and 11)
On September 1, 2006, Carrie called the police and requested a welfare check on
her children, who were with her estranged husband. Carrie‟s husband had been calling
her while drunk. Carrie was reluctant to call the police because she had an outstanding
arrest warrant for an unpaid ticket. In response to Carrie‟s request for a welfare check,
defendant called Carrie and said her children were okay but he needed to meet with her.
Defendant picked up Carrie in his patrol car and drove her around the corner and parked.
They talked about Carrie‟s husband. Carrie told defendant her husband got very jealous.
Defendant replied, “Well, you‟re hot. Do you blame him?” Defendant told Carrie he
could help her with her custody dispute paperwork, and then told her he would have to
take Carrie to jail because of her warrant.
6
Carrie pleaded with defendant to release her because she was in the middle of a
custody battle. Defendant said he would be “putting [his] job on the line” by not taking
her to jail. He asked Carrie what she could do for him, since he needed “to get something
out of this.” Carrie cried and begged defendant not to take her to jail. Defendant told her
she would have to spend four days in jail. Defendant again asked Carrie what she would
do for him if he helped her out. Carrie asked what he wanted. Defendant said, “How
about a little Girls Gone Wild?” Carrie knew this referred to women flashing their bare
breasts. Defendant said, “I want to see it now” because he was “putting [his] job on the
line” for her. He added, “I‟m doing this for you, you‟ve got to do something for me.”
Carrie refused. Defendant said he would have to arrest her and took her telephone.
Defendant looked at nude photographs of Carrie on her telephone, rubbed his genitals,
made grunting noises, and said she was “hot.” Carrie was scared “[o]ut of [her] mind.”
Eventually defendant released Carrie without arresting her. Defendant called Carrie the
next day, offering to help her with her custody dispute paperwork. Carrie told him she
could not talk to him at that time. Defendant continued to call Carrie over the next few
days but Carrie did not answer or return his calls.
A month later, defendant pulled Carrie over during a traffic stop and did not
initially recognize her. Defendant said she looked familiar and then remembered who she
was. Defendant asked if Carrie had taken care of her warrant. Carrie said she had not.
Defendant said he might have to take her to the police station. Carrie‟s nine-year-old
daughter was in the car crying. Defendant told Carrie to go over to his patrol car and
give him her cell phone. Carrie complied. Defendant used his digital camera to take
7
photos of pictures on Carrie‟s cell phone. Defendant also took pictures of Carrie‟s chest.
He told Carrie to promise to call him to take pictures of her another day, and let her go.
Carrie never called defendant. Carrie reported the incident to the police and received
$75,000 from the sheriff‟s department in a civil settlement.
Christina D. (Count 12)
In March or April 2007, defendant arrived at Christina D.‟s home and arrested her
for an outstanding $250,000 warrant. He drove Christina D. to a Burger King, bought her
a milkshake, and then drove her to somewhere in the desert and parked the car.
Defendant told Christina D., “now I want to see all your tattoos. And just think of it as
Girls Gone Wild.” Christina D. assumed defendant wanted her to show him her breasts.
She was in “shock.” Christina D. showed defendant her tattoos on her chest and stomach
but not on her breasts. Defendant drove Christina D. to the courthouse and then home.
Jennifer and Jaime (Counts 13, 14, 15, and 16)
In early September 2006, Jennifer and her friend, Jaime, called for a sheriff‟s
deputy to assist with the custody transfer of Jaime‟s children to her husband. Jaime
wanted an officer present to “keep the peace” during the custody transfer. Defendant
responded to the call. He discovered Jaime had an outstanding warrant for failing to
appear for a traffic ticket. Defendant told Jaime he was taking her into custody. Jaime
started crying and Jennifer pleaded with defendant not to take Jaime into custody.
Defendant responded, “Well, if this were Girls Gone Wild, then it didn‟t have to be this
way.” Defendant referred to “Girls Gone Wild” several times and said he needed “a
visual,” which Jennifer believed meant, that if she showed him her breasts, he would let
8
Jaime go. Jennifer refused to comply. She told defendant she “had morals.” Jennifer
cried and pleaded with defendant not to arrest Jaime. Jennifer overheard defendant make
a telephone call, during which he said, “She didn‟t want to make a deal, so I have to take
her in.” Defendant placed Jaime in his patrol car. Jennifer stood outside the car and
watched defendant drive off with Jaime. Jennifer called her fiancé and told him about the
incident. She also reported the incident to defendant‟s watch commander. Later that
night at about midnight, defendant called her and apologized for putting her in an
uncomfortable position.
Defendant drove Jaime to a secluded area and told her to get in the front seat. He
told her, “We could have just made a deal,” “you wouldn‟t be going to jail.” As
defendant stood in front of the open front passenger door where Jaime was sitting, he
unzipped his pants. Defendant told Jaime she could “still make a deal,” and he wanted
her to orally copulate him. Jaime refused and told him to take her to jail. Defendant
pulled Jaime toward him. She was really scared. Defendant said, “[a]ll right, get in
back,” and drove Jaime to jail. Jaime did not report the incident. The following day,
after Jaime‟s release, defendant called her and asked if there was anything he could do to
assist with her ex-husband and offered to take her out to lunch. Jaime declined his offers.
Dana (Counts 17, 18, 19, and 20)
In May 2005, Dana and her boyfriend, Robert, drove to the grocery store. They
were both under the influence of methamphetamine. Robert remained in the car while
Dana went inside the market. Robert was on parole, with a warrant out for his arrest.
When Dana exited the store, a patrol car was parked behind Robert‟s car. Dana saw
9
Robert sitting in the back of the patrol car. Dana did not walk back to Robert‟s car. She
went into a video store because she feared Robert would be angry with her since it had
been her idea to go to the store and Robert‟s arrest warrant arose from Dana accusing
Robert of stealing her car.
As Dana walked out of the video store, defendant drove up to her, with Robert in
the backseat. Defendant exited the patrol car and approached Dana. Defendant told her
he wanted to discuss the drugs found in Robert‟s car, and told her to get in the backseat
of his patrol car. When Dana got in the back seat with Robert, defendant told Dana to
“keep [her] clothes on,” which surprised her. When she asked Robert what was going on,
he said, “This cop is cool.” “Don‟t worry, he‟s not going to take [you to] jail, he‟s going
to let you get the car.”
Defendant drove back to the market with Dana and Robert. He searched Robert‟s
car and Dana‟s belongings. He looked through photographs on Dana‟s digital camera,
which included nude photographs of Dana. Defendant gave Dana‟s friend, Lisa, the keys
to Robert‟s car. Defendant asked Dana and Robert, “What do I get out of it? What do I
get out of it?” Dana thought Robert had arranged for her to do something sexual for
defendant. Dana was afraid. Defendant drove the patrol car into a church parking lot.
Dana said she would not do anything in the church parking lot.
Defendant drove down a dirt road to another location and parked the car. While
defendant sat in the front seat looking in the rear view mirror, Dana attempted orally
copulating Robert. Several times while Dana was in the patrol car, defendant said, “What
am I going to get out of it?,” and Dana showed him her breasts. Dana feared that if she
10
did not, she would be arrested. Dana performed the sexual acts because of defendant‟s
position of authority. Defendant told Dana he would not impound Robert‟s car or take
Dana to jail if defendant could take nude pictures of Dana later on. Defendant then
dropped off Dana and Robert at Lisa‟s house, where they were staying. He told them that
if they told anyone about the incident or if Dana did not let him take photographs of her,
he would kill them.
Immediately after defendant dropped off Dana and Robert, Dana told Lisa what
had happened. Dana later called defendant and told him she did not want him to take
nude photographs of her. He said she could think about it and call him if she changed her
mind.
Dana encountered defendant again when she was arrested for shoplifting at
Mervyn‟s in 2007. She was extremely scared because she knew defendant would be the
officer who would apprehend her and she had not let him take nude photographs of her.
When defendant arrived, he asked her if he knew her from somewhere. She said yes.
Defendant placed Dana in the back of his patrol car, handcuffed, and made a stop at a
motel parking lot to look for a suspect. After talking to the suspect, defendant returned to
the car and twice asked Dana to show him her chest. She complied, and defendant said,
“those are nice.” Defendant issued Dana a citation, dropped her off at her home, and said
he wanted to see her again. Dana did not report the 2005 and 2007 incidents until later in
2007, when she was arrested again for theft.
11
Jessica (Count 21)
On November 6, 2005, Jessica got into an argument with her parents. Jessica
called the police and reported that her father slapped her. Defendant responded to the
call. When defendant told Jessica he was sending her home with her parents, Jessica
threatened to kill herself because she knew defendant would then have to take her into
custody. Defendant transported Jessica to Arrowhead Regional Medical Center. On the
way, defendant asked Jessica multiple times to show him her breasts. He said, “[c]ome
on, can‟t you just flash me like Girls Gone Wild?” Jessica refused to comply. After
arriving at the hospital, Jessica reported the incident to hospital social workers.
Andrea (Counts 22, 23, and 24)
In early 2005, Andrea and her boyfriend, Skoti, were fighting at a Howard
Johnson Hotel. Skoti hit Andrea and fled. The police were called. Defendant was one of
the officers who arrived. He told the other officers to go look for Skoti while he took
care of the situation at the hotel. Defendant inspected Andrea‟s hotel room, shut the
door, and closed the blinds. He then asked Andrea, “What is such a fine woman like you
doing with a man like that?,” and repeatedly asked Andrea if he could see her breasts.
She eventually complied because she was scared and felt intimidated. She feared she
would go to jail because, when Skoti hit her, she hit him back. Defendant offered to pay
for a room for Andrea at Green Tree Motel and said he wanted to see her there when he
got off work. Andrea agreed to whatever he said and gave him her telephone number.
After defendant left, Andrea did not go to the Green Tree Motel. Andrea did not
report the incident. When the police arrested Skoti, Andrea told the deputies that they
12
had better release Skoti or she would report that defendant had asked to see her breasts.
Andrea later reneged on her accusation because she was afraid she would be arrested and
would not be believed. Defendant called her and asked why Andrea was complaining.
She told him he better release Skoti or she would report defendant‟s behavior. Skoti was
released.
Andrea had further contact with defendant on August 13, 2006, at the Days Inn.
Andrea was with a different boyfriend, Jason, and a friend, Julie, when the police arrived
and arrested Jason and Julie for outstanding arrest warrants. Andrea testified that Jason
and Julie were under the influence of methamphetamine and Andrea was under the
influence of Ecstasy. However, the police tested her for drugs and she “passed the test”
and was not arrested. The police searched Andrea‟s vehicle and found sex toys. Andrea
asked the officers if they knew defendant because, although she was afraid of him, she
thought he might help her avoid being arrested.
Twenty minutes later defendant arrived at the scene and told the other deputies
that he would handle the matter. He walked Andrea across the street to her hotel room to
search for drug paraphernalia. Defendant found methamphetamine pipes in Andrea‟s
room and advised her that each pipe carries a 10-year sentence. Defendant told Andrea
she could avoid this by orally copulating him. Andrea complied because she was scared
and feared being arrested. Defendant then smashed the pipes. Defendant released
Andrea without arrest. Andrea reported the incident in December 2008.
13
Defendant’s Testimony
Defendant testified that, as to Christina, she flirted with him and surprised him by
taking off her shirt and bra. When she did this, his “instinct was just to take pictures.”
Defendant denied putting his mouth on Christina‟s breasts.
As to Sheila and Cassie, defendant testified that the women asked him about his
hobbies and he told them he was interested in photography. Cassie asked to see his
camera so she could take pictures of Sheila and Cassie in the back of the patrol car.
Defendant gave Cassie his camera. While defendant was doing paperwork, he heard her
taking photographs. He did not watch in his rear view mirror or see the women taking
pictures of themselves. There was no discussion about the women taking revealing
photographs. When defendant finished his paperwork and the women were done taking
photographs, they returned the camera to defendant. Defendant denied asking the women
to take revealing pictures of themselves or to take photographs of themselves in exchange
for leniency.
With regard to Jill, defendant testified that she may have offered to provide him
with drug-related information in order to avoid being arrested. Defendant permitted her
to sit in the front seat of the patrol car and they flirted with each other. Jill asked
defendant if he wanted to see her breasts and, before he knew it, she was exposing her
breasts to him. Defendant took two or three photographs of her chest. He did not offer
Jill leniency in exchange for the photographs. He just liked taking photographs.
Defendant denied asking Jill to perform oral sex or having oral sex with her.
14
As to Carrie, defendant testified that she offered to show him nude photographs of
herself. She “just seemed proud to show herself off.” Defendant denied asking her to lift
her shirt, reveal her chest to him and allow him to take photographs of her. He also
denied offering to treat her leniently by not arresting her on her warrant in exchange for
Carrie lifting her shirt, exposing her breasts, allowing him to take photographs of her, or
providing him with sexual favors.
Defendant denied asking Christina D. to show him her tattoos. He claimed he
only asked her where they were. Defendant also denied asking Jaime to show him her
breasts and orally copulate him. Defendant denied assisting Dana and Robert in
exchange for sexual favors or for Dana exposing her breasts. Defendant denied that Dana
exposed her breasts in his patrol car or that Dana and Robert had intercourse in the back
of his patrol car. Defendant also denied asking Jessica or Andrea to lift up their shirts or
for any sexual favors. Defendant testified that the only sexual conduct that he
participated in with women in his custody involved the women whose nude pictures were
found in his possession. Those women were Christina, Cassie, Sheila, and Jill.
III
MOTION TO QUASH OR TRAVERSE THE SEARCH WARRANT
Defendant contends the trial court erred in denying his motion to quash and
traverse the search warrant authorizing a search of defendant, his personal locker at the
police station, defendant‟s personal vehicle, and his residence. Defendant challenges the
search warrant on the ground the supporting affidavit contained misleading and omitted
material facts, and the remaining contents of the affidavit were insufficient to establish
15
probable cause. The trial court rejected this contention, explaining: “[The trial] Court
finds there‟s a substantial basis to support the probable cause for the warrant. And
although there‟s a summary that is not 100 percent accurate, the Court does not find that
there‟s been deliberate false – falsehoods or wreckless disregard for the truth.”
We agree defendant has not met his burden of establishing that the supporting
affidavit contained deliberate falsehoods and omissions or constituted a reckless
disregard for the truth. (People v. Luttenberger (1990) 50 Cal.3d 1, 14-15 & fn. 4;
People v. Bradford (1997) 15 Cal.4th 1229, 1297.) In reviewing the issuance of the
search warrant, “[o]ur task, as a reviewing court, is to determine whether „the magistrate
had a “substantial basis for . . . conclud[ing]” that a search warrant would uncover
evidence of wrongdoing.‟ [Citation.]” (People v. Tuadles (1992) 7 Cal.App.4th 1777,
1784.)
The search warrant in the instant case was supported by Detective Jiles‟ affidavit
summarizing defendant‟s conversation with Christina during a recorded pretext telephone
call. Jiles stated in his supporting affidavit that, “During the call, the victim asked
Linderman what he did with the pictures depicting her breasts. He does not deny taking
them and told her he destroyed the pictures that weren‟t pertinent to the investigation and
that she did not have to worry about anything on „his end.‟” Jiles concluded in his
affidavit that, “Based on the investigation, I feel that Linderman is in possession of
electronic media that has pictures of the victim exposing her bare breasts.”
When taking into consideration the pretext telephone call conversation as a whole,
the court could reasonably conclude that defendant did not expressly deny taking nude
16
photographs of Christina. When Christina asked defendant, “But nobody‟s going to find
out about those pictures that were [taken] at the mall?,” defendant said “No. Everything
in the case is confidential, and that‟s it.” When Christina asked defendant what he did
with the nude photographs, he abruptly ended the conversation, without expressly
denying he took the photographs. Defendant merely said he did not understand what
Christina was talking about and then said he had to hang up because of his telephone
battery. This conduct could reasonably be construed as defendant being evasive in order
to avoid directly discussing Christina‟s accusations. Under such circumstances, Jiles did
not make a clear misstatement of the facts and Jiles‟s interpretation of the conversation
was reasonable. We therefore conclude Jiles did not knowingly or intentionally misstate
the facts in his supporting affidavit.
Furthermore, there were more than sufficient other facts to support the search
warrant and the factual omissions in the affidavit were not sufficiently material to defeat
a finding of probable cause to search, when considering the totality of the circumstances.
(People v. Bradford, supra, 15 Cal.4th at p. 1297.) Defendant complains that Jiles
omitted from the affidavit that Christina told defendant during the pretext call that her
husband made up the allegations against defendant and defendant had said he did not
understand what Christina was talking about regarding the nude photographs. Even
assuming the alleged misstatements were excised from Jiles‟s supporting affidavit and
the factual omissions were taken into account, the affidavit provided probable cause to
search defendant‟s residence. We therefore conclude the trial court properly denied
17
defendant‟s motions to quash and traverse the search warrant. (People v. Aho (1985) 166
Cal.App.3d 984, 989-993.)
IV
EXCLUSION OF EXPERT WITNESS TESTIMONY
Defendant contends the trial court abused its discretion and violated his
constitutional rights to due process and to present a defense, by excluding expert
testimony by Dr. Thomas Streed, on the effects of ecstasy and methamphetamine use to
refute Andrea, Collin, and Dana‟s testimony. During the prosecution‟s case, Andrea,
Collin, and Dana testified they used methamphetamine and ecstasy around the time of the
charged incidents.
After the prosecution rested its case, the trial court conducted an Evidence Code
section 402 hearing (402 hearing) to determine the admissibility of Dr. Streed‟s expert
testimony. Dr. Streed testified during the 402 hearing that methamphetamine‟s affects
differed from person to person. Even in small doses, it can affect a person‟s sensory
perceptions but there is no certainty as to how an individual is going to react to a specific
amount of methamphetamine. Methamphetamine distorts reality and time. The effects of
ecstasy are similar. Dr. Streed agreed that, “depending on the person, depending on the
amount of usage, depending on how chronic their usage is, depending upon the nature
and the extent under which they‟re using, these are all variables that can factor in as to
what level of the drug, if any, might alter their perception of an event.” Dr. Streed did
not interview Andrea, Skoti and Dana or review their statements. He also did not have
any information regarding the amount of drugs Andrea, Skoti and Dana ingested. He
18
therefore was unable to determine how much of an influence the drugs had on the
witnesses in the instant case. The prosecution objected to Dr. Streed‟s testimony on the
basis of Evidence Code section 352. The trial court agreed and excluded the evidence.
Evidence of the use of narcotics is admissible if it “tends to show that the witness
was under the influence thereof either (1) while testifying, or (2) when the facts to which
he testified occurred, or (3) that his mental faculties were impaired by the use of such
narcotics.” (People v. Hernandez (1976) 63 Cal.App.3d 393, 405.) Such evidence may
be excluded, however, under Evidence Code section 352 “if its probative value is
substantially outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” “A claim that expert opinion evidence improperly has
been admitted is reviewed on appeal for abuse of discretion.” (People v. Catlin (2001) 26
Cal.4th 81, 131.)
In the instant case, the trial court found that Dr. Streed‟s testimony regarding the
effects of methamphetamine and ecstasy was in a broad sense relevant to witnesses‟
ability to perceive and recollect what occurred, but the probative value was substantially
outweighed by the probability the jury would be confused or mislead. We agree. There
was no abuse of discretion in excluding Dr. Streed‟s generic testimony on the properties
and general effects of methamphetamine and ecstasy because there was insufficient
evidence of Andrea, Skoti and Dana‟s actual state of intoxication and ability to perceive
and recollect the facts of the charged offenses. Skoti testified both he and Andrea were
using methamphetamine the day of the charged offense, but Andrea testified that she had
19
not used any methamphetamine the day of the charged offense in August 2006, and she
tested negative for drugs. Skoti also testified that his use of methamphetamine did not
influence his perception or affect his memory at the time of the charged offense. Dana‟s
testimony also indicated that she was not actually under the influence of
methamphetamine. She said she had not recently used drugs and, by the time defendant
picked her up in his patrol car, she was not feeling the effects of methamphetamine.
There was no testimony as to how much methamphetamine or ecstasy Andrea, Skoti and
Dana ingested or what their reaction was to taking the drugs.
Furthermore, according to Dr. Streed, the effects of methamphetamine and ecstasy
can vary from person to person. Dr. Streed‟s testimony thus would lead to the jury
speculating about the impact of the drugs on the witnesses. “„[E]xclusion of evidence
that produces only speculative inferences is not an abuse of discretion.‟” (People v.
Cornwell (2005) 37 Cal.4th 50, 81, quoting People v. Babbitt (1988) 45 Cal.3d 660, 684.)
Here, the trial court acted within its discretion in concluding that, even if relevant, the
very limited and speculative relevance of the evidence and its marginal probative value
was outweighed by the potential that the evidence would confuse the jury and lead to
unsubstantiated speculative findings.
V
INTERNET POSTINGS
Defendant contends the trial court erred in not allowing defense counsel to
authenticate three Internet postings, including three photographs and writings, and then
excluding the evidence because it was not properly authenticated. The proposed Internet
20
postings showed a person, who appeared to be Dana, soliciting individuals to participate
in or watch Dana and another individual engage in sexual intercourse.
The trial court excluded the Internet postings on the grounds they were not
relevant and there was insufficient foundation for the photographs because it was
unknown who posted the photographs and whether Dana consented to the postings. The
admissibility of the Internet postings and photos “„has two components: (1) whether the
challenged evidence satisfied the “relevancy” requirement set forth in Evidence Code
section 210, and (2) if the evidence was relevant, whether the trial court abused its
discretion under Evidence Code section 352 in finding that the probative value of the
[evidence] was not substantially outweighed by the probability that its admission would
create a substantial danger of undue prejudice.‟” (People v. Heard (2003) 31 Cal.4th
946, 972, quoting People v. Scheid (1997) 16 Cal.4th 1, 13.) We apply the abuse of
discretion standard of review when determining the admissibility of the Internet postings
and photographs. (People v. Crittenden (1994) 9 Cal.4th 83, 134.)
Defendant argues the Internet postings were relevant to show that Dana initiated
engaging in lewd conduct in front of defendant in his patrol car. But at trial, Dana
testified she would not have engaged in sex with Robert in defendant‟s patrol car and
flashed her breasts, had defendant not been a law enforcement officer in a position of
authority. The Internet postings therefore had very little, if any, relevance because the
photographs were not relevant to defendant‟s defense. Defendant denied requesting or
receiving any sexual favors from Dana. Rather, defendant argued the alleged sexual acts
did not happen at all.
21
Because the Internet postings had very little, if any relevancy, their probative
value was far outweighed by their prejudicial nature under Evidence Code section 352,
and therefore it is not reasonably probable that had the Internet postings been admitted,
the trial outcome would have been more favorable to defendant. (People v. Watson
(1956) 46 Cal.2d 818, 836.)
VI
SUFFICIENCY OF EVIDENCE AS TO COUNTS 6 AND 18
Defendant argues there was insufficient evidence to support his convictions for
solicitation to engage in lewd conduct in public (§ 647, subd. (a); counts 6, 18).
A. Count 18
Defendant argues, and the People agree, count 18 is barred by the statute of
limitations because the statute of limitations expired before the initial complaint was filed
on September 7, 2007. The information, as amended, alleges in count 18 that defendant
committed the misdemeanor offense of violating section 647, subdivision (a), in May
2006. The statute of limitations for a misdemeanor offense is one year (§ 802, subd. (a)).
Accordingly, defendant‟s conviction on count 18 is barred by the statute of limitations
and must be reversed.
B. Count 6
Defendant contends, as to count 6, that there was insufficient evidence of a
touching or that the act occurred in a public place under section 647, subdivision (a).
Subdivision (a) of section 647 proscribes two types of conduct in a public place: (1)
soliciting another to engage in lewd conduct and (2) engaging in lewd conduct. “The
22
Supreme Court has construed „lewd or dissolute conduct‟ to mean „conduct which
involves the touching of the genitals, buttocks, or female breast for the purpose of sexual
arousal, gratification, annoyance or offense . . . .‟ [Citation.]” (People v. Meeker (1989)
208 Cal.App.3d 358, 362; Prior v. Municipal Court (1979) 25 Cal.3d 238, 256.) There
thus must be evidence the solicitation was for a touching and the touching was done for
the purpose of arousal.
Defendant argues there was insufficient evidence of a touching because his
conviction for count 6 was based on Sheila‟s testimony that defendant asked her to flash
her breasts and touch them herself. Defendant acknowledges there was incidental
touching when Sheila lifted her shirt to expose her breasts, but defendant argues he did
not ask her to touch her breasts for his sexual satisfaction. Even if the touching was
incidental, the jury could have reasonably found that defendant knew that Sheila could
not have exposed herself without touching her breasts and defendant intended to watch
for the purpose of sexual gratification. Section 647, subdivision (a), only requires the
defendant, by words or conduct to solicit another person to engage in touching her own
genitals or breasts. There is no defined requisite level of touching.
There also was ample evidence the section 647, subdivision (a), offense occurred
in a public place. The touching incident occurred in a patrol car parked behind a Target
store, where nearby there were other department stores and businesses, including a Kaiser
hospital and fast food restaurants. In such a location, defendant reasonably should have
known that someone was likely to be present in the area and would be offended by
viewing the women taking nude pictures of themselves in defendant‟s patrol car.
23
VII
SUFFICIENCY OF EVIDENCE OF REQUESTING OR TAKING A BRIBE
Defendant contends there was insufficient evidence of each conviction for
requesting or taking a bribe (§ 68, subd. (a); counts 3 (Christina), 4 (Cassie), 5 (Sheila), 7
(Jill), 9 (Carrie), 11 (Carrie), 13 (Jennifer), 15 (Jaime), 17 (Dana), 19 (Dana), and 24
(Andrea)).
Section 68 requires proof that the defendant requested, took, or agreed to take a
bribe. (§ 68.) In the instant case, the trial court instructed the jury that: “To prove that
the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant
was an executive officer . . . ; [¶] 2. The defendant requested, took, or agreed to take a
bribe; [¶] 3. When the defendant requested, took or agreed to take the bribe, he
represented that the bribe would unlawfully influence his official act or decision. The
representation may have been express or implied; AND, [¶] 4. The defendant acted with
the corrupt intent that his public or official duty would be unlawfully influenced.”
(CALCRIM No. 2603.) The court further instructed that “Requesting or agreeing to take
a bribe does not require specific words or behavior, as long as the language used and the
circumstances clearly show that the person is seeking a bribe from someone else. The
People do not need to prove that the other person actually consented to give a bribe.”
With regard to the term, “bribe,” section 7 states: “The following words have in
this code the signification attached to them in this section, unless otherwise apparent from
the context: . . . [¶] 6. The word „bribe‟ signifies anything of value or advantage, present
or prospective, or any promise or undertaking to give any, asked, given, or accepted, with
24
a corrupt intent to influence, unlawfully, the person to whom it is given, in his or her
action, vote, or opinion, in any public or official capacity.” Section 68 does not define
the term, “bribe.”
The court instructed the jury that the term, “bribe,” “means something of present
or future value or advantage, or a promise to give such a thing, that is requested or taken
with the corrupt intent that the public or official action, vote, decision, or opinion of the
person who is requesting, taking, or agreeing to take the bribe, will be unlawfully
influenced.”
Collectively, sections 68 and 7 “thus define bribery as the giving or receipt of
something of value, with the intent that the recipient be influenced in his or her vote,
action, or opinion, in an official capacity (and in the case of the recipient with respect to
„any matter then pending or which may be brought before him . . .‟ (§ 68)).” (People v.
Gaio (2000) 81 Cal.App.4th 919, 928.)
Defendant argues there was insufficient evidence to support his convictions for
requesting or taking a bribe, because soliciting the victims to expose their bare breasts did
not constitute “a thing of value” or “advantage” within the meaning of sections 68,
subdivision (a), and 7. Defendant asserts that, considering section 68 as a whole, the
terms, “a thing of value” and “advantage,” were intended to have an ascertainable value.
We disagree.
In construing a statute, this court must ascertain the intent of the Legislature so as
to effectuate the purpose of the law. (People v. Coronado (1995) 12 Cal.4th 145, 151.)
In determining that intent, we first examine the words of the statute, applying “„their
25
usual, ordinary, and common sense meaning based upon the language . . . used and the
evident purpose for which the statute was adopted.‟” (People v. Granderson (1998) 67
Cal.App.4th 703, 707, quoting In re Rojas (1979) 23 Cal.3d 152, 155.) “. . . „If there is
no ambiguity in the language of the statute, “then the Legislature is presumed to have
meant what it said, and the plain meaning of the language governs.” [Citation.] “Where
the statute is clear, courts will not „interpret away clear language in favor of an ambiguity
that does not exist.‟ [Citation.]”‟ [Citation.]” (Coronado, at p. 151.) If the words of the
statute are ambiguous, a court may resort to “extrinsic sources, including the ostensible
objects to be achieved and the legislative history.” (Ibid.) Applying these rules of
statutory interpretation, a court “„must select the construction that comports most closely
with the apparent intent of the Legislature, with a view to promoting rather than defeating
the general purpose of the statute, and avoid an interpretation that would lead to absurd
consequences.‟ [Citation.]” (Ibid.)
The plain language of sections 68 and 7, collectively, is unambiguous. In
construing these statutes collectively we look to the plain meaning of the words, “bribe”
and “thing of value.” As commonly understood, a bribe is “1. money or favor given or
promised in order to influence the judgment or conduct of a person in a position of trust”
or “2. something that serves to induce or influence.” (Merriam-Webster‟s Collegiate
Dict. (10th ed. 1999) p. 142.) This definition is consistent with the legal definition of
bribe as set forth in section 7, subdivision (6), which states: “[t]he word „bribe‟ signifies
anything of value or advantage, present or prospective, or any promise or undertaking to
give any, asked, given, or accepted, with a corrupt intent to influence, unlawfully, the
26
person to whom it is given, in his or her action, vote, or opinion, in any public or official
capacity.” (§ 7, subd. (6).) The common meaning of the term, “value,” as defined in the
dictionary, is: “a fair return or equivalent in goods, services, or money for something
exchanged.” (Merriam-Webster‟s Collegiate Dict. (10th ed. 1999) p. 1305.)
Here, the victims exchanged sexual favors for prosecutorial leniency. The sexual
favors constituted a “bribe” and were a “thing of value” to defendant. Although the
victims‟ sexual favors had no ascertainable monetary value, they were a favor or service
of value to defendant, requested by him, in exchange for something else, leniency. The
sexual favors were something he desired because they provided him with sexual
gratification.
We conclude section 68 is sufficiently clear and therefore its plain meaning should
be followed, without reading unspecified restrictions into it, such as limiting the term,
“bribe,” to only that which has a quantifiable value. Evidence that defendant exhorted
the victims to exchange sexual favors in return for defendant providing leniency was thus
sufficient to support defendant‟s convictions for soliciting a bribe.
VIII
SUFFICIENCY OF EVIDENCE OF ORAL COPULATION
Defendant contends there was insufficient evidence to support his conviction in
count 8 for oral copulation under color of authority (§ 288a, subd. (k)). Specifically, he
argues there was insufficient evidence that the victim, Jill, did not consent to committing
oral copulation.
27
Under section 288a, subdivision (k), the crime of oral copulation under color of
authority is committed when a person “commits an act of oral copulation, where the act is
accomplished against the victim‟s will by threatening to use the authority of a public
official to incarcerate, arrest, or deport the victim or another, and the victim has a
reasonable belief that the perpetrator is a public official, . . .” The trial court instructed
the jury that, in order to find defendant guilty of committing oral copulation under color
of authority, the People must prove: “1. The defendant committed an act of oral
copulation with someone else; [¶] 2. The other person did not consent to the act; AND [¶]
3. The defendant accomplished the act by force, violence, duress, menace or fear of
immediate and unlawful bodily injury; or, [¶] threatening to use the authority of a public
office to incarcerate, arrest or deport someone . . . . The other person must have [reason
to believe] that the defendant was a public official even if he was not. [¶] . . . [¶] In order
to consent, a person must act freely and voluntarily and know the nature of the act.”
In count 8, defendant was charged with oral copulation against Jill‟s will by
threatening to arrest, incarcerate and deport her. There was evidence presented at trial
that, after Jill was caught shoplifting, defendant drove Jill to a dark isolated location and
told her she would probably go to prison for three years because she had prior theft
offenses. After Jill complied with defendant‟s request to take pictures of her exposed
breasts, defendant drove Jill to a secluded area in the desert and asked her what he would
get in exchange for “cite-releasing” her. Defendant unzipped his pants and pulled his
penis out. Jill testified she orally copulated defendant because she did not want to go to
jail.
28
Jill‟s testimony established that she did not consent to orally copulating defendant,
and therefore there was sufficient to support defendant‟s conviction on count 8.
IX
PROSECUTORIAL ERROR
Defendant argues that the prosecutor committed numerous instances of prejudicial
prosecutorial error. Because defendant did not object in the trial court to the misconduct
raised on appeal, defendant forfeited his prosecutorial misconduct objections. (People v.
Stanley (2006) 39 Cal.4th 913, 952; People v. Samayoa (1997) 15 Cal.4th 795, 841.) In
any event, defendant‟s claims are not meritorious.
A. Relying on Facts Outside the Record
Defendant asserts the prosecutor erred in making the following statement during
closing argument: “It is very likely that you‟re going to go back in the jury room and
wonder why there aren‟t more charges about some of these victims. Well, in some cases
there may be a technical reason, in other cases it may be – maybe there should be another
charge. But that‟s not the question before you. The question before you is, is the
defendant guilty of the charges with which he is facing.” Defendant contends this
argument was improper because the prosecutor referred to there being “technical
reasons” why charges might not have been brought and this concerned facts outside the
record. Defendant asserts it was improper to tell the jury the prosecution could or should
have been able to file additional charges but, for some unknown reason, did not do so.
29
Such remarks were not improper. They constituted fair comment on the evidence
presented at trial and were benign. “Prosecutors have wide latitude to discuss and draw
inferences from the evidence at trial.” (People v. Dennis (1998) 17 Cal.4th 468, 522.)
The prosecutor‟s comments were founded on the state of the evidence and the potential
for the jury to question why certain charges were not filed. The prosecutor merely noted
the obvious and appropriately admonished the jury that it should not be concerned with
this. Furthermore, even if the remarks were improper, such error was harmless.
B. Misstating the Evidence
Defendant argues the prosecutor committed prosecutorial misconduct when,
during closing argument, the prosecutor mischaracterized Dana‟s trial testimony by
stating: “Almost a year later she had contact with him again when she got arrested at the
Mervyn‟s, again for shoplifting. Remember there was some testimony that she became
very scared when she saw it was him. She said that she actually wet her pants.”
Defendant asserts this was a misstatement of Dana‟s testimony because she actually
testified that she wet her pants earlier, when she was apprehended by loss prevention
officers.
The People acknowledge this was a misstatement, since Dana testified she wet her
pants when she was apprehended by store security, before defendant arrived. But this
was a minor inaccuracy, as to one particular fact, which in all probability had little, if
any, impact on the outcome of the trial. Furthermore, there is no indication that the
misstatement was intentional. Because it did not amount to “„“use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury,”‟” it does not
30
constitute prejudicial prosecutorial misconduct. (People v. Espinoza (1992) 3 Cal.4th
806, 820.)
C. Disparaging Defense Counsel and Defendant
Defendant contends the prosecutor improperly disparaged defense counsel by
telling the jury that defense counsel had misled them on the facts and law. Defendant
argued during closing argument that there was no evidence defendant asked Jill to orally
copulate him. During rebuttal, the prosecutor gave the jury a hypothetical, in which a
high school freshman was asked to recall an event. The prosecutor stated: “Now, if you
were a defense attorney looking to tear apart that high school freshman, who‟s now a
high school senior, would you focus on some things they don‟t remember? Sure. What
can you do to try and disprove that person‟s experience? You can mislead about the
facts.” The prosecutor added that “you can emphasize the things that should be there. . . .
[¶] You can mislead about the law. Well, for example, when counsel was talking to you
about the instruction for oral copulation with relation to [Jill], he stood up here and told
you that if he didn‟t ask for it [oral copulation], . . . , or words to that effect, that it‟s not a
crime.”
These statements were proper because they were in response to defense counsel‟s
argument the prosecution had not proved defendant asked Jill to orally copulate him.
Under the law, an express request was not necessary for a conviction. The prosecutor
appropriately noted various ways the defense could discredit witnesses and refute the
charges, and cautioned the jury to wary of defense‟s arguments on the law and facts.
“[T]he prosecutor has wide latitude in describing the deficiencies in opposing counsel‟s
31
tactics and factual account.” (People v. Bemore (2000) 22 Cal.4th 809, 846.) Here, the
prosecutor did not commit misconduct by urging the jury not to be misled by defense
counsel‟s incorrect suggestion that an oral copulation conviction required evidence that
defendant specifically asked Jill to orally copulate defendant, when such evidence was
not required.
Defendant also argues the prosecutor improperly argued defense counsel misled
the jury as to facts regarding photographs Jill took of herself and sent to defendant a
month after the oral copulation incident. Defendant argued Jill willingly sent the
photographs to defendant‟s cell phone. The photographs show her posing and smiling,
and defendant was not present when they were taken. The prosecutor argued Jill was
coerced into taking the photographs. During rebuttal, the prosecutor argued that the
photographs did not come off defendant‟s cell phone and suggested defense counsel had
misled the jury as to the facts. The prosecutor‟s argument constituted fair comment as to
reasonable inferences based on the evidence.
Defendant also argues the prosecutor committed prosecutorial misconduct by
making inflammatory remarks about defendant. Defendant objects to the prosecutor‟s
statement characterizing defendant as a predator and analogizing him to a pack of lions
preying on weak, old, young, and infirm gazelles that cannot defend themselves and
easily flee. The prosecutor argued defendant preyed on the victims because he knew they
were weak, emotional, had criminal histories, and would not make credible witnesses.
Defendant argues the prosecutor‟s argument that defendant preyed on the victims
because he knew the jury would not believe the victims, was improper because it was
32
unsupported by the evidence. We disagree. The record supported such a finding. Most
of the victims had been caught committing crimes, such as shoplifting, having
outstanding warrants, or drug offenses, or needed assistance with a domestic violence
incident or contentious child custody matter. One victim was a teenager and several
disclosed to defendant that they were strippers. The evidence supports the prosecutor‟s
argument that defendant preyed on his victims, knowing that the victims had criminal
records, would likely not make credible witnesses, and were very vulnerable to being
manipulated by bribes of prosecution leniency.
We conclude the prosecution‟s statements during rebuttal were well within the
realm of acceptable argument. Even if the prosecution‟s statements were improper, we
cannot say they constituted prejudicial error. It is not reasonably probable that the
outcome would have been any different, had the prosecutor‟s statements not been made.
(People v. Watson (1956) 46 Cal.2d 818, 836.)
D. Misstating the Law
Defendant complains of four instances of the prosecution misstating the law and
burden of proof. Misstatement of the law during closing argument is misconduct.
(People v. Huggins (2006) 38 Cal.4th 175, 253, fn. 21.) “„[I]t is improper for the
prosecutor to misstate the law generally [citation], and particularly to attempt to absolve
the prosecution from its prima facie obligation to overcome reasonable doubt on all
elements. [Citation.]‟ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 829-830, 832.)
Defendant argues that, during closing argument, the prosecutor improperly
referred to the elements of count 6 (solicitation to engage in lewd conduct; § 647, subd.
33
(a)) as very technical. The prosecutor argued: “There is a Count 6, the instruction is
1162, that pertains to the charge specific to [Sheila], and that is soliciting another to
engage in lewd conduct. Of all the crimes the defendant is charged with, this one has the
most elements. It has a lot of requirements to it. [¶] You recall when defense counsel
was talking to you at the very beginning of the case about being concerned about the
defendant getting off on a technicality. Well, this one‟s pretty technical.”
Defendant argues this discussion of the elements of count 6 undermined the
deliberative process. We disagree. The prosecutor‟s statement could reasonably be
construed as conveying the caveat that the count 6 offense had numerous elements. As a
consequence, evaluating the evidence and defendant‟s liability would be a very technical
process for the jury with consideration of the sufficiency of evidence as to each element.
Any failure to satisfy each element would result in the charges being dismissed. There
was no misstatement of the law in this regard or trivializing of the prosecution‟s burden
of proof.
Defendant next argues that the prosecutor improperly argued several times during
closing argument that evidence of a lie establishes guilt. Defendant objected to the
prosecutor arguing that it was the jury‟s job to discern the truth and this should be
reflected in the verdict. If the jury found defendant “to be a liar, ask yourself why he‟s
lying. And the only reason is because he is guilty.”
Defendant asserts that this statement misstates the law because it incorrectly
suggests that if one side is lying about something, the other side‟s version is necessarily
true. We do not find merit in this objection. The instant case turned on who was telling
34
the truth, defendant or the victims. The prosecutor appropriately reminded the jury that
the jury‟s determination of whether defendant was guilty turned on who was telling the
truth. The prosecutor‟s statement in question appropriately emphasized the jury‟s
responsibility to discern who was telling the truth, and to consider that, if the jury found
defendant was lying, he was likely doing so because he was guilty. There was no
misstatement of the law or trivializing of the burden of proof.
Defendant contends the prosecutor improperly argued during closing argument
that the victims did not have a motive to lie, whereas he did have a motive to lie, because
he was facing criminal charges for victimizing 11 women. Defendant argues this
argument was improper because the prosecutor urged the jury to find defendant‟s
testimony not credible solely because of his status as a criminal defendant. But this is not
what the prosecutor was arguing. The prosecutor was arguing that defendant had a
motive to lie because he was being charged with a crime and therefore had a motive to lie
in order to avoid being convicted. There was no impropriety in the prosecutor arguing
this.
Finally, defendant argues that the prosecutor improperly argued that the
prosecution was not required to prove separately each element of each count. Defendant
objects to the prosecutor‟s argument to the jury that it should not consider the victims‟
testimony in isolation. Rather, the jury should compare and consider as a whole the
testimony of each victim. Defendant argues that the prosecutor‟s discussion of synergy
was an incorrect statement of the law because it advocated finding defendant guilty of
each crime without finding proof of each element of each crime.
35
We do not consider the prosecutor‟s argument improper or a misstatement of the
law. The prosecutor did not tell the jury that the prosecution was not required to prove
separately each element of each count. The prosecution merely suggested the jury
compare the victims‟ testimony and consider it as a whole when making the required
findings. There was nothing improper about such argument.
E. Asking Defendant if Witnesses Were Lying
Defendant contends the prosecutor committed misconduct when on numerous
occasions he asked defendant on cross-examination whether defendant was saying the
victims were wrong or lying during their testimony. Such questions are commonly
referred to as asking “were they lying” questions. In People v. Zambrano (2004) 124
Cal.App.4th 228 [Fourth Dist, Div. Two], this court held, citing People v. Melton (1988)
44 Cal.3d 713, 744, that “were they lying” questions are improper because they serve no
purpose other than to elicit the irrelevant lay opinion of one witness about the veracity of
another witness. (Zambrano, at pp. 240-241.) We further held that a prosecutor who
repeatedly asks such questions commits misconduct because the only purpose of the
questioning is to berate the defendant in front of the jury and inflame the passions of the
jury by forcing the defendant to call other witnesses liars. (Zambrano, at p. 242.) “Were
they lying” questions are impermissible when argumentative or designed to elicit
testimony that is irrelevant or speculative. A court may permit such questions, however,
if the witness to whom they are addressed has personal knowledge that allows him to
provide competent testimony that may legitimately assist the trier of fact in resolving
credibility questions. (People v. Chatman (2006) 38 Cal.4th 344, 384.)
36
Defendant objects for the first time on appeal to over 14 instances of the
prosecution asking defendant if the victims‟ testimony regarding defendant‟s conduct and
statements to the victims was false. Defendant argues these questions were improper
because the victims and defendant did not know each other personally, other than from
defendant apprehending the victims. Defendant therefore did not know why they would
lie. But defendant had personal knowledge that allowed him to provide competent
testimony as to the veracity of the victims‟ testimony. Defendant was present and
directly involved in the matters which were the subject of the prosecutor‟s inquiries
regarding whether the victims had accurately testified to the facts. It therefore was not
improper for the prosecutor to ask defendant if the victims‟ versions of the charged
offense were correct. (People v. Chatman, supra, 38 Cal.4th at p. 384.)
“[I]n its discretion, a court may permit such questions if the witness to whom they
are addressed has personal knowledge that allows him to provide competent testimony
that may legitimately assist the trier of fact in resolving credibility questions.” (People v.
Chatman, supra, 38 Cal.4th at p. 384.) Here, defendant had personal knowledge that
allowed him to testify as to whether or not the victims‟ versions of what occurred were
correct. There was no prosecutorial misconduct in asking defendant on numerous
occasions whether the victims‟ testimony regarding the charged offenses was correct.
X
SENTENCING
Defendant argues the trial court made several sentencing errors. The trial court
denied probation and sentenced defendant to 20 years in state prison.
37
A. Imposing the Upper Term for the Base Offense
Defendant contends the trial court improperly imposed the upper term of eight
years for the base offense of oral copulation under color of authority (§ 288a, subd. (k);
count 8). We disagree.
Under section 1170, “[w]hen a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the choice of the appropriate term shall rest within
the sound discretion of the court.” (§ 1170, subd. (b).) “The court shall select the term
which, in the court‟s discretion, best serves the interests of justice.” (Ibid.) A fact
charged as an enhancement or that is an element of the crime may not be used to impose
the upper term. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(c), (d).) “When a trial
court has given both proper and improper reasons for a sentence choice, a reviewing
court will set aside the sentence only if it is reasonably probable that the trial court would
have chosen a lesser sentence had it known that some of its reasons were improper.”
(People v. Price (1991) 1 Cal.4th 324, 492.) The court‟s decision is subject to review for
abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
When imposing the upper term of eight years on count 8, the trial court noted that
the trial court had “previously stated the reasons for adopting the aggravated term.” The
trial court had previously discussed aggravated factors when denying probation. When
denying probation, the court stated that it “considered the circumstances in aggravation,
which the court believes apply to all of the offenses. The victims in this case were
particularly vulnerable, and the defendant took advantage of a position of trust or
confidence to complete the offenses.” The trial court also found that “defendant did
38
induce others to commit crimes” and “did inflict emotional injury on the victims.” The
only mitigating factor the trial court found was that defendant had no prior record.
Defendant argues that the trial court failed to state any actual facts upon which it
was relying in finding that the victim was particularly vulnerable. But the trial court had
discretion to select among the lower, middle, and upper terms “without stating ultimate
facts deemed to be aggravating or mitigating under the circumstances and without
weighing aggravating and mitigating circumstances.” (People v. Jones (2009) 178
Cal.App.4th 853, 866.)
Defendant concludes that most likely the court based its finding on the facts that,
when defendant committed the oral copulation crime, the victim was under arrest, the
victim was under defendant‟s control, defendant was taking advantage of his position of
authority, and he was inducing the victim to commit the crime (bribery). Defendant
argues that these facts were already inherent in the commission of the crime and therefore
could not support an upper term. Although the trial court could not impose the upper
term based on a fact that was an element of the crime under California Rules of Court,
rule 4.420(c), the trial court was not prohibited from imposing the upper term based on
facts inherent in the crime. Also, factors the trial court relied upon in imposing the upper
term, were not elements of the crime of oral copulation under color of authority (§ 288a,
subd. (k)). We therefore conclude the trial court did not abuse its discretion in imposing
the upper term on count 8.
39
B. Sentencing Barred by Section 654
Defendant contends the trial court was barred under section 654 from imposing
sentences on counts 2 (sexual battery by restraint), 3 (soliciting a bribe), 7 (soliciting a
bribe), and 8 (oral copulation under color of authority).
Section 654 proscribes multiple punishments for a course of conduct that violates
more than one statute but constitutes an indivisible transaction. (People v. Beamon
(1973) 8 Cal.3d 625, 637.) Whether a course of conduct is indivisible under section 654
depends on the intent and objective of the actor. (Neal v. State of California (1960) 55
Cal.2d 11, 19.) “If all of the offenses were incident to one objective, the defendant may
be punished for any one of such offenses but not for more than one.” (Ibid.) Therefore,
to permit multiple punishments, the evidence must support a finding that the defendant
formed a separate intent and objective for each offense for which he was sentenced.
(Ibid.) A defendant‟s intent and objective are factual questions for the trial court (People
v. Adams (1982) 137 Cal.App.3d 346, 355), which may properly infer a defendant‟s
intent from the circumstances surrounding his act. The standard of review for
defendant‟s appeal is substantial evidence. (People v. Blake (1998) 68 Cal.App.4th 509,
512.)
In the instant case, the probation report concludes sentencing on counts 3, 6, 7, and
18 should be stayed under section 654 because the crimes occurred during the
commission of counts 2, 5, 8, and 17. The trial court stayed sentencing only on counts 6
and 18 (solicitation to engage in lewd conduct). But contrary to the probation report
40
recommendation, the trial court did not stay sentencing on counts 3 and 7. The court
found that the counts 2, 3, 7, and 8 constituted “separate completed offenses.”
Defend argues that counts 2 (sexual battery by restraint) and 3 (soliciting a bribe),
as to Christina, were part of a single objective. While at the police substation, defendant
asked Christina what she was going to do for him, pulled out a camera, put it on the desk,
asked her again what she was going to do for him, and told Christina to take off her shirt.
When Christina complied, defendant took pictures of her breasts and put his mouth on
her breasts. As to counts 7 (soliciting a bribe) and 8 (oral copulation under color of
authority), defendant was convicted of asking Jill for sexual favors in return for leniency
and receipt of sexual favors, that of oral copulation.
Defendant asserts that the act of asking Christina and Jill what he would receive
and the sexual touching of the victims‟ breasts had the same objective of defendant
receiving sexual favors. Therefore the acts were an indivisible transaction, requiring
application of section 654. We conclude otherwise. There was evidence that the
soliciting a bribe offense (count 3) as to Christina occurred in defendant‟s patrol car,
when defendant told her he would not take her to jail if she did him a personal favor.
Christina agreed to do a favor for defendant. On the other hand, count 2, sexual battery
by restraint, occurred after commission of the bribery offense, when defendant drove
Christina to a mall, took her inside the substation, asked her to take her shirt off, took
pictures of her breasts, and put his mouth on Christina‟s breasts. The bribery offense
occurred at a different location than the battery offense and was completed before
defendant took Christina to the mall substation and put his mouth on her breasts.
41
We also conclude count 7 (soliciting a bribe) involved a separate objective and
course of action than count 8 (oral copulation under color of authority). Count 7 is based
on evidence that defendant drove Jill around in defendant‟s patrol car for about an hour
and told her she might go to prison because she had prior theft offenses. Defendant then
asked Jill to take pictures of her breasts. Jill complied because she thought it would help
her avoid custody. Count 8 was committed afterwards, when defendant drove Jill to
another location and defendant, through suggestive behavior, urged Jill to orally copulate
him. She did so out of fear of going to prison.
Because the bribery counts (counts 3 and 7) occurred at different times and
locations than the crimes in counts 2 and 8, we conclude the trial court did not err in
sentencing defendant separately for counts 2, 3, 7, and 8.
C. Consecutive Sentencing
Defendant contends the trial court abused its discretion in imposing all of the
felony sentences consecutively, rather than concurrently. In doing so, the trial court
explained: “As far as whether the sentences should be concurrent or consecutive, all of
the crimes were predominantly independent of each other and crimes – although they did
not involve separate acts of violence or threats of violence, there were some suggestions
of retaliation and possible violence. I disagree with that conclusion by the probation
department. [¶] The crimes were committed at different times and different places and
were not committed so close in time that it would be considered to be situational or just a
single period of aberrant behavior. It was a continuing course of conduct over a
significant amount of time involving a number of victims. There were numerous victims
42
in the case. [¶] Considering the circumstances in aggravation and circumstances in
mitigation, court finds that the circumstances in aggravation outweigh any mitigating
factors that may exist. [¶] Court also finds that consecutive sentencing is appropriate for
the reasons stated.”
Defendant argues, as he did regarding section 654, that counts 2 and 3, and counts
7 and 8 were not crimes of separate objectives or committed at separate times and places.
Therefore sentencing should have been imposed concurrently, rather than consecutively.
We disagree.
A trial court‟s imposition of consecutive terms is reviewed for an abuse of
discretion. California Rules of Court, rule 4.425(a) lists factors for a trial court to
consider when deciding to “impose consecutive rather than concurrent sentences.” The
factors are: “(1) The crimes and their objectives were predominantly independent of each
other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶]
(3) The crimes were committed at different times or separate places, rather than being
committed so closely in time and place as to indicate a single period of aberrant
behavior.”
When the trial court imposed consecutive sentences, it relied on the factors listed
in California Rules of Court, rule 4.425(a). The trial court explained the offenses were
independent of each other. They were committed at different times and different places.
The crimes were not committed so close in time that it would be considered to be
situational or just a single period of aberrant behavior. The court concluded defendant‟s
crimes constituted a continuing course of conduct over a significant amount of time
43
involving numerous victims. We conclude the trial court did not abuse its discretion in
imposing consecutive sentences.
XI
DISPOSITION
The judgment is affirmed, except as to count 18, which is barred by the statute of
limitations. Defendant‟s conviction and sentence on count 18 is reversed. The judgment
is affirmed in all other respects. The judgment accordingly is modified by reversing
defendant‟s count 18 conviction and dismissing that charge. The trial court is directed to
prepare an amended abstract of judgment that reflects the modified judgment and to
forward a certified copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
44