People v. Weathersby CA1/3 ( 2023 )

Filed 3/8/23 P. v. Weathersby CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A163331
v.
KENNETH LEE WEATHERSBY, (Solano County
Super. Ct. No. VCR232498)
Defendant and Appellant.
A jury convicted defendant Kenneth Lee Weathersby of numerous sex
offenses and found true multiple-victim and kidnapping allegations under the
“One Strike” law. The trial court sentenced defendant to consecutive
indeterminate and determinate terms.
On appeal, defendant argues: (1) the trial court abused its discretion in
denying his requests for a continuance and for a mistrial; (2) the court erred
in denying his motion under Batson v. Kentucky (1986) 476 U.S. 79 (Batson)
and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); (3) the prosecutor
committed misconduct; (4) the court wrongly excluded evidence; (5) the court
erred in denying his post-trial motion to compel discovery; and (6) the matter
should be remanded for resentencing due to Senate Bill No. 567 and
Assembly Bill No. 518. We agree that a remand for resentencing is required
due to amendments made by Senate Bill No. 567, but reject the remainder of
1
defendant’s arguments. We also conclude that corrections to the abstract of
judgment must be made.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted defendant of the following offenses: kidnapping to
commit oral copulation and rape (Pen. Code, § 209, subd. (b)(1),1 counts 1 and
7); forcible rape (§ 261, subd. (a)(2), counts 2 and 10); forcible oral copulation
with a minor over the age of 14 (§ 288a, subd. (c)(2)(C), counts 3, 4, 5);
criminal threats (§ 422, count 6); and forcible oral copulation (§ 288a,
subd. (c)(2)(A), counts 8 and 9). Counts 1 through 6 involved victim P.B.,
while counts 7 through 10 involved victim S.S. The jury also found true the
following allegations: defendant personally used a firearm within the
meaning of section 12022.5, subdivision (a)(1) as to count 6, and within the
meaning of section 12022.53, subdivision (b) as to all the remaining offenses,
and One Strike multiple-victim and kidnapping allegations (§ 667.61,
subds. (d)(2), (e)(1) & (4)) as to the forcible rape and forcible oral copulation
counts. At a subsequent bench trial, the trial court found true that defendant
had one prior strike conviction (§ 667, subds. (b)–(i)) and one prior serious
felony conviction (§ 667, subd. (a)).
Pursuant to the One Strike law, the trial court sentenced defendant to
consecutive terms of life without the possibility of parole on counts 2 through
5, and 50 to life for counts 8 through 10. The court imposed a consecutive six-
year determinate term on count 6. The court imposed additional determinate
terms for the various firearm enhancements, but stayed all of them except for
20 years imposed on counts 2 and 8. The court imposed sentences for counts
1 All further statutory references are to the Penal Code unless otherwise
indicated.
2
1 and 7, but stayed them pursuant to section 654, and also stayed imposition
of the prior conviction enhancement under section 667, subdivision (a)(1).
The following briefly summarizes some of the trial evidence.
A. The Prosecution’s Case
The evidence against defendant included the following. S.S. was 19
years old and P.B. was 17 years old when they were separately attacked by
defendant. Both victims testified about the crimes and identified defendant
in lineups and in court. Defendant’s DNA was found on a condom in the alley
where he sexually assaulted S.S. and on the swab of S.S.’s clitoral hood. P.B.
took police to defendant’s home, where his car—the same one used during the
crimes against her—was parked in the driveway and found to contain P.B.’s
fingerprints. There was a video of P.B. escaping from defendant’s car. The
victims accurately described items belonging to defendant and his
appearance, and P.B. accurately described the appearance of tattoos and
moles on defendant’s body and bumps on his penis.
B. The Defense Case
The defense presented little evidence of its own and focused instead on
questioning witnesses about the police investigation and certain
discrepancies between the prosecution DNA analyst’s original and
“clarifying” reports.2 In particular, the defense questioned Detective Mathew
Mustard at length about the discrepancy in the DNA reports and suggested
he interfered with the analyst’s reporting of this information. The defense
2 Among other things, the defense questioned DNA analyst Kevin Gazlay
about reports that he wrote regarding a foreign minor contributor found on
P.B.’s lip swab, and why he did not state in his 2018 report, but only in a
clarifying report in 2020, that he had excluded the lip swab minor profile as
being the same contributor of the male DNA on S.S.’s clitoral hood swab
(which ultimately turned out to be defendant).
3
also questioned Mustard about prior criticism he received from the media for
not believing a sexual assault victim in a different case.
DISCUSSION
A. Defendant’s Requests for a Continuance and a Mistrial
Defendant contends the trial court abused its discretion in denying his
midtrial requests for a continuance and for a mistrial. The following are the
facts underlying this claim.
1. Additional Facts
The following events all occurred in 2020. Jury selection in this case
occurred in late February, and the evidentiary portion of the trial began on
March 4. On March 11, the trial court indicated there was not much evidence
left, but because of witness availability issues, the court would recess until
March 19. The court anticipated it would instruct the jury and hear closing
arguments the morning of March 20.
On March 18, expressing concern that proceeding with the trial would
be unsafe due to the unfolding COVID-19 pandemic, defense counsel asked
the court to recess the trial until a time when they could be “in a more stable
position,” or to declare a mistrial given that a recess “might have no known
duration.” The prosecutor asked the court to discuss the situation with the
jurors, and to proceed with trial if possible. On the record, the court called
each juror and discussed the prospect of proceeding with trial and the
precautions being taken at the court in relation to the pandemic. Two jurors
(one an alternate) expressed they were willing though uncomfortable coming
to court because of familial health concerns, but the remainder expressed
they were willing and comfortable with proceeding. Though it viewed both
parties’ requests as reasonable, the court tentatively ruled the trial would
proceed and it would excuse the two jurors who expressed health concerns.
4
The next day, March 19, the court and parties discussed the fact that
the prior evening, the Solano County Public Health Officer issued a
countywide shelter at home order that excluded essential court services. The
court denied defense counsel’s renewed request for a continuance, noting the
People wished to proceed, and it excused the two jurors who expressed health
concerns. Defense counsel asked the court to tell the jury that defendant was
not requesting a speedy trial; the court denied that request without prejudice.
On March 20, defense counsel again requested postponement of the
trial, and the court again denied it. The court indicated its decision was
based on its weighing various considerations, such as the fact that they were
on the last day of trial; the two young victims had come to testify about the
crimes; despite the shelter in place order, various businesses and
organizations were exempt; and the jurors were screened and wished to be
there, as did family members and the public. As the court predicted, the
evidentiary portion of the trial concluded that day, and the court instructed
the jury3 and heard closing argument from the prosecutor. Due to
insufficient time, the defense could not present closing argument, and the
court recessed for the weekend and until March 24.
On Monday, March 23, however, the Presiding Judge of the Solano
County Superior Court ordered the trial suspended until April 24. That same
day, the Chief Justice of California, in her capacity as Chairperson of the
Judicial Council, issued an order generally suspending jury trials statewide
for 60 days. On April 21, after the defense filed another motion to continue,
the parties stipulated to postponing further proceedings until May 20.
3 The court declined defense counsel’s request to instruct the jury that
defendant was not asserting his speedy trial rights.
5
On May 18, defense counsel moved to continue the proceedings to June
22, noting that on April 29, the Chief Justice issued an order permitting an
extension of the 60-day jury trial suspension for an additional 30 days.4 On
May 20, the trial court denied the request for a continuance. The court noted
it reached out to all the jurors on May 18 and discussed the precautions being
taken, and all the jurors indicated they were ready and available to proceed.
All but one of the jurors appeared on May 20, and the court replaced the
missing juror with an alternate. The court told the jury that trial was
proceeding because the work of the courts needed to go on. The court asked
the jurors if anything about the pandemic or the last 60 days would affect
their ability to be fair to the parties, and none indicated anything would. All
jurors also indicated they, and those close to them, had not tested positive for
COVID. Moreover, none of them felt they could not pay attention, none
wanted any extra safety measures, none were contacted to discuss the case,
none read about the case in the media, and none would hold their required
presence at the trial against either the prosecution or defendant.
Defense counsel then gave his closing argument, spending a lengthy
portion of it arguing that Detective Mustard had caused the late disclosure of
the fact that defendant’s DNA was excluded from P.B.’s lip swab minor
profile. The prosecutor gave her rebuttal, and after the jury retired to
deliberate, defense counsel moved for a mistrial based on “cumulative error.”
Defense counsel claimed, among other things, that the court would not allow
him to question the jurors or give them a questionnaire when the trial
4 The Chief Justice’s order also stated: “Courts are strongly encouraged
to collaborate with local justice partners to conduct a trial at an earlier date,
if a court may do so in compliance with applicable health and safety laws,
regulations, and orders, including through the use of remote technology,
when appropriate.”
6
resumed, and the jurors appeared frightened and tense while listening to
argument and could not have normal deliberations. The court denied the
requested mistrial, noting the jurors were appropriately screened and did not
appear frightened. The jury returned its verdict the next day.
2. Legal Principles and Standard of Review
“ ‘A continuance in a criminal trial may only be granted for good cause.
[Citation.] “The trial court’s denial of a motion for continuance is reviewed
for abuse of discretion.” ’ ” (People v. Hajek and Vo (2014) 58 Cal.4th 1144,
1181.) “The party challenging a ruling on a continuance bears the burden of
establishing an abuse of discretion, and an order denying a continuance is
seldom successfully attacked. [¶] Under this state law standard, discretion is
abused only when the court exceeds the bounds of reason, all circumstances
being considered.” (People v. Beames (2007) 40 Cal.4th 907, 920.) Though
“the denial of a continuance may be so arbitrary as to deny due process,”
there are no “ ‘mechanical tests’ ” for making that determination. (Id. at
p. 921.) “Instead, ‘[t]he answer must be found in the circumstances present
in every case, particularly in the reasons presented to the trial judge at the
time the request is denied.’ ” (Ibid.)
As to the mistrial motion, “[a] trial court should grant a motion for
mistrial ‘only when “ ‘a party’s chances of receiving a fair trial have been
irreparably damaged’ ” ’ [citation], that is, if it is ‘apprised of prejudice that it
judges incurable by admonition or instruction’ [citation]. ‘Whether a
particular incident is incurably prejudicial is by its nature a speculative
matter, and the trial court is vested with considerable discretion in ruling on
mistrial motions.’ ” (People v. Avila (2006) 38 Cal.4th 491, 573 (Avila).) The
moving party bears the burden of demonstrating an abuse of discretion.
(Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
7
3. Analysis
(a) The requested continuances
Defendant argues the trial court abused its discretion in denying the
requested continuances. We disagree. The record establishes the court
weighed numerous considerations in denying the motions, such as the
People’s desire to proceed, the jurors’ wishes, the fact that the young victims
had come in to testify, the health risks and precautions that could be taken,
the circumstance that trial was nearly complete, and the uncertainty in the
future as to where additional continuances might leave them. On this record,
the court did not act unreasonably or arbitrarily in proceeding with the trial.
Defendant contends the court ignored the health concerns posed by
COVID-19 and imperiled the health of the trial participants when it denied
the requested continuances in March 2020. To the contrary, the record
reflects that the court was deeply concerned about the unfolding pandemic
and was fastidious about protecting the jurors. Indeed, the trial judge
personally called each juror to speak about the pandemic, communicate the
precautions the court would take if trial were to proceed, and ask for each
juror’s input before making a decision whether to proceed. The court
indicated it understood that individual jurors might have different
circumstances warranting different decisions about continued service. When
jurors expressed health concerns, either on behalf of themselves or their
family members, the court did not pressure them and indicated it would not
order anyone to come in. And when the jury actually appeared in court on
March 20, the court again asked the jurors if they had any concerns with
moving forward, and none raised any.
The record also establishes that appropriate precautions were taken.
As discussed, the court telephoned the jurors to discuss the circumstances
8
rather than making them appear. Additionally, much of the courthouse was
shut down, so the proceedings were moved to a larger courtroom where
participants could socially distance and an empty courtroom was cleaned for
deliberations. Regular cleaning was occurring, and people entering the
courtroom were asked to sanitize their hands and maintain social distance.
The court also excused the jurors who expressed health concerns.
Next, defendant claims the denial of the requested continuances “posed
a serious risk of prejudice to [defendant] from the jurors’ understandable
assumption that trial was proceeding forward due to [defendant]’s exercise of
his speedy trial rights.” Defendant, however, fails to point to anything that
might support this claim, and the record contains no indication the jurors
were considering or speculating that defendant exercised his speedy trial
right. The fact that some media outlets were discussing the pandemic’s
impact on the judiciary does not suggest the topic was considered by any of
the jurors.
Only one juror, on the telephone with the court on March 18, made
passing mention of the right to a speedy trial.5 But it is speculative to
conclude the juror believed defendant was personally exercising his speedy
trial right. It is equally possible, for example, that the juror was referencing
the victims’ right to a speedy trial (Cal. Const., art. I, § 28, subd. (b)(9)) or
simply the general need for the judiciary to expeditiously conduct criminal
5 When talking to the judge over the phone, the juror stated: “[W]hat
you’re telling me is pretty much what I predicted. People are saying, ‘Are you
still going? Is court still going?’ And I said, ‘Well, probably they will just
have us spread out a little bit more.’ [¶] But I think with the speedy trial,
you know, rights and everything we are probably going to need to continue.
But, . . . this all sounds . . . good. It sounds like you are doing everything that
needs to be done to protect everyone. And I am in good health. So you can
count on me to show up.”
9
trials (§ 1050, subd. (a)). In any event, this juror never indicated any bias for
or against either side because of the situation and instead affirmed they
could render a fair decision.
Defendant also argues the trial court erred in denying his requested
continuances because (1) it was unlikely the trial could be concluded before a
recess was required for public health reasons, and (2) adjourning in the midst
of the prosecution’s case would have posed less risk of prejudice to the
defense than an interruption at a later and more crucial point in the
proceedings, such as here when trial was suspended after the prosecutor’s
closing argument. We disagree. There is no reason to believe the court here
suspected the case would be unlikely to conclude without a recess. First of
all, it would have been difficult to foresee that the Chief Justice would take
the unprecedented step of suspending all jury trials statewide. Even the
county’s shelter in place order had an exception that designated court
services as an “essential service,” and that county order had numerous other
exceptions, such as for gatherings where social distance could be maintained,
and for numerous other businesses categorized as “essential services” (e.g.,
banks, groceries, farmer’s markets, hardware stores, educational institutions,
businesses that supply other essential businesses).
Furthermore, though the trial court denied the requested continuances
in March, it was ultimately correct in its stated belief that the evidentiary
portion of the trial was nearly done—the evidence was in by March 20.
Indeed, as recounted, ante, the evidence at trial included the victims’
repeated identifications of defendant as their attacker and a plethora of
direct and circumstantial evidence linking defendant to the crimes. Because
the evidence was straightforward and overwhelming, the court could
reasonably have believed trial would be complete in short order.
10
Defendant contends the trial court compounded its error in denying the
March continuance requests by resuming trial in May rather than continuing
the case another 30 days or granting a mistrial because the same concerns
that existed in March were largely present. We disagree for the reasons
already articulated: the record does not reflect that the court ignored the
health concerns posed by COVID-19 or imperiled anyone’s health, nor does it
reflect that the jury entertained any bias against defendant due to the
resumption of the proceedings.
Defendant cites to Stanley v. Superior Court (2020) 50 Cal.App.5th 164,
which concluded a court did not abuse its discretion in continuing the last
statutory day for trial by 90 days due to the pandemic. (Stanley, at pp. 166,
168.) Defendant points to a passage in Stanley where, after describing the
impact of the pandemic, the court states: “Under these circumstances, the
trial court unquestionably was justified in finding that the COVID-19
pandemic constitutes good cause to continue defendant’s trial until July 13,
2020, with a statutory deadline of July 29. Given the grave risks to court
personnel, jurors, attorneys, and defendant himself that would be created by
proceeding in accordance with the normal timeline, any other conclusion
would have been unreasonable in the extreme.” (Id. at p. 170, italics added.)
Contrary to defendant’s apparent suggestion, Stanley did not purport to
consider whether courts necessarily abuse their discretion by denying a
requested continuance due to the pandemic. (Cf. Agnew v. State Bd. of
Equalization (1999) 21 Cal.4th 310, 332 [“ ‘It is axiomatic . . . that a decision
does not stand for a proposition not considered by the court’ ”].) That the
pandemic provided good cause to continue the beginning of a trial in Stanley
does not compel the conclusion that the court here abused its discretion in
denying the requested mid-trial continuances.
11
In sum, we reject defendant’s claim that the court erred in denying his
requested continuances.
(b) The mistrial motion
Next, defendant contends the trial court erred in denying his mistrial
motion due to the 60-day recess between March and May. He claims he was
prejudiced by the fact that the recess took place right after the prosecution’s
closing argument, and “the sheer duration of the interruption” was
“irremediably harmful due to the inevitable loss of recall of testimony that
had been given many weeks earlier.”6 Again, we find no error. Defendant
fails to identify anything in the record indicating that he was incurably
prejudiced by the delay or that the court acted unreasonably or arbitrarily in
denying the motion. Though he suggests he was prejudiced by the fact that
the recess occurred right after the prosecution gave its closing argument, we
note the defense gave its closing argument at the start of the resumed trial in
May, which was much closer in time to the jury’s deliberations. Thus, one
could speculate that the timing of the recess worked to defendant’s
advantage, because the prosecutor’s closing argument was more remote in
time. (See People v. Breceda (2022) 76 Cal.App.5th 71, 95 (Breceda).)
Defendant’s claim of prejudice resulting from “the sheer duration” of
the recess and the inevitable loss of recall of testimony is not supported by
the record. On this point, we note the presentation of evidence took place
over the course of only six days. The defense offered very little evidence of its
own, and the prosecution’s evidence was uncomplicated even though it
involved some DNA evidence. And as discussed, the evidence of guilt was
6 Acknowledging the tension between this argument and his earlier
argument concerning the motions for continuances, defendant clarifies in his
reply brief that his arguments concerning error in denying his requested
continuances and a mistrial are made in the alternative.
12
overwhelming. (See ante, at p. 3.) Moreover, the jury heard closing
argument from the defense and rebuttal argument from the prosecutor,
during which both sides discussed the evidence just before deliberations,
which likely mitigated any effect of the delay on the jurors’ recall. (People v.
Santamaria (1991) 229 Cal.App.3d 269, 282 (Santamaria) [“counsels’
recapitulation of the evidence during argument might have nullified or
minimized the effect of the delay on the jurors’ recall”].) Indeed, the jury
requested a readback only of the testimony of one of the victims and asked to
see one of defendant’s Facebook entries again. This suggests the jury had no
trouble recalling the evidence.
Defendant relies on People v. Dinsmore (1894) 102 Cal. 381,
Santamaria, supra, 229 Cal.App.3d 269, and People v. Engleman (1981) 116
Cal.App.3d Supp. 14 in arguing the claimed error was prejudicial. He also
cites United States v. Hay (9th Cir. 1997) 122 F.3d 1233 (Hay) in arguing the
error violated his rights to due process and a jury trial. We have reviewed
these cases and find them inapposite for similar reasons expressed by
another court that dealt with an even lengthier delay due to the pandemic.
(Breceda, supra, 76 Cal.App.5th at pp. 74–75, 95–97.) Unlike the cases relied
on by defendant, in this case there unquestionably was good cause for the
delay due to the pandemic. The trial judge was ordered by his presiding
judge to suspend the trial, and the Chief Justice of California had ordered a
statewide suspension of jury trials. Thus, the judge could not simply transfer
the case to another judge, and the court had no choice but to comply. (Id. at
pp. 96–97.)
Moreover, in contrast to the situations in defendant’s cases, when the
proceedings in this case resumed, the trial court confirmed that the jurors
had not been contacted about the case; they had not read about the case in
13
the media or spoken to each other; none would hold their required attendance
at trial against either party; and nothing impacted their ability to continue
the trial and be fair to both parties. Unlike Santamaria, the trial here was
not recessed in the midst of deliberations. And unlike Hay, this case did not
involve “complex, technical evidence against two defendants [presented] over
a period of nearly four months.” (Hay, supra, 122 F.3d at p. 1236.)
In sum, we reject defendant’s claim that the court erred in denying his
requests for continuances or for a mistrial.
B. Batson/Wheeler
Defendant argues the trial court erroneously denied his Batson/Wheeler
motion concerning the dismissal of Prospective Juror number 28. We
conclude the court did not err.
1. Additional Facts
Jury selection took place over two days. About 140 panelists reported
for jury service and, after excusals for hardship, 114 remained. On the first
day, Prospective Juror number 9 (No. 9), an African-American male,
expressed that he would prefer to be elsewhere, that he had issues with the
legal system, that he dislikes lawyers, and that as a father of four daughters
he would have problems with sexual crimes involving minors. No. 9 also
stated that if he were to give either attorney a “leg up,” it would be the
defense because he has a problem with institutions and “institutionalizing
stuff,” and his decision would be based on the attorneys’ performance.
Prospective Juror number 8 (No. 8), another African-American male,
reported he had been prosecuted for exploiting funds from his “mentally
challenged” sibling, for whom he was the guardian, but ultimately the case
was dismissed. He thought the prosecutor in his case was harsh and out to
get him, but later he realized the prosecutor was just doing their job. No. 8
14
said he initially had a negative perception of public defenders but changed
his opinion after he was represented by one who did good work.
Toward the end of the first day, the court invited the parties to exercise
peremptory challenges. The prosecutor exercised three peremptory
challenges without objection, including one against No. 9. Prospective Juror
number 28 (No. 28)—an African-American female—was among the seven new
panelists to replace those who had been excused from the jury box.
Upon entering the jury box, No. 28 indicated the food she ordered was
at the courthouse and she asked to retrieve it outside, which the trial court
permitted. The court began its examination of the new group of prospective
jurors apparently in No. 28’s absence. When finally questioned by the court,
No. 28 indicated she had never served on a jury, she works at an armored car
business where she “count[s] the money all day,” and there was no reason she
could not hear this case if chosen.
The following day, the prosecutor asked the jurors whether they would
require DNA or fingerprint evidence to convict, even if the prosecution
otherwise presented sufficient evidence to prove a charge beyond a
reasonable doubt, and No. 28 indicated she might. She indicated that
whether she would require such evidence depended on the evidence in the
case and how it was presented, and said she could keep an open mind but
could not commit one way or the other.
When the trial court called upon the attorneys to exercise their
peremptory challenges, the prosecutor eventually exercised a peremptory
challenge against No. 8, which the defense challenged under Batson. The
defense argued there was no race-neutral reason for dismissing No. 8 and,
given the dismissal of No. 9 the day before, there was a pattern of challenging
15
African-American jurors. The court ruled there was a prima facie case for the
motion, which shifted the burden to the prosecution.
Observing that one of the victims was African American, the prosecutor
said she was interested in having African-Americans on the jury. She argued
that, given No. 9’s statements, there was no pattern of race-based challenges.
She then noted that No. 8 had expressed negative feelings against the system
and the prosecutor in the embezzlement case involving his disabled brother.
The prosecutor also noted her excusal of a white male prospective juror who
had a history of being prosecuted and did not like the system, and explained
she was not interested in having jurors on the panel who had been prosecuted
and might hold it against her.
The trial court discussed the issue at length. The court indicated that
No. 9 was legitimately excused based on his voir dire statements, and that a
neutral, non-racial reason was arguably shown for No. 8’s excusal. But, the
court explained, it would seat No. 8 as a trial juror, because “defendants
should have some people that look like them on their jury” and keeping No. 8
served that interest. Immediately after the court seated No. 8, the prosecutor
exercised a peremptory challenge against No. 28, triggering the
Batson/Wheeler motion presently at issue. This was the exchange that
transpired:
“[The prosecutor]: The People would like to thank and excuse [No. 28].
Thank you.
[No. 28]: Yes.
[Defense counsel]: Judge, I have a motion.
[No. 28]: Oh, man.
16
THE COURT: Oh, we are going to clear the courtroom again. Sorry.
Actually, hold on. Hold on. Hold on. Stay where you’re seated.
Lawyers approach.
[No. 28]: Should I sit down? What should I do?
THE COURT: You can stay right where you are. Don’t move.
[No. 28]: All right.
(Discussion at the bench, not reported.)
[No. 28]: I was almost out of here.
THE COURT: Thank you, ma’am. You are excused.
[No. 28]: Yes, yes.
THE COURT: A double ‘yes.’ ”
Once jury selection was complete, the trial court addressed the
defense’s motion concerning No. 28 after clearing the courtroom. The court
began by stating, “[Defense counsel] is making a record as to the excusal of
[No. 28]. He claims, again, African-American female, which she was. So the
burden I believe shifts to the People.”
The prosecutor responded by first noting four African Americans were
seated on the trial jury: three males and one female. As to No. 28
specifically, the prosecutor asserted that she seemed very “flip” in response to
the whole process, i.e., she ordered food and felt it was more important to get
food than sit and listen to what the court was saying, and she wore what
appeared to be “fuzzy little slippers” to court. Observing that No. 28 was
young and appeared to lack life experience, the prosecutor stated, “I take into
consideration whether our jurors have life experiences and are able to
evaluate the evidence with those life experiences. I didn’t feel [No. 28] did.”
Last, the prosecutor said, “I believe she said she might take into
17
consideration that I did not provide scientific evidence to support my case; it
might affect her, and she might not be able to render a verdict.”
The trial court denied the Batson/Wheeler motion as to the excusal of
No. 28, indicating there was certainly a non-racial reason for excusing her.
The court recalled No. 28’s comment that her ability to render a verdict might
be affected if the prosecution failed to provide scientific evidence. Moreover,
noting that it did not recall ever having a prospective juror leave to get food
during the voir dire process, the court commented that having food delivered
to the court at 4:00 p.m. was “one of the more unusual circumstances that I
have seen.” The court further noted that it noticed No. 28’s slippers which,
along with the answers she gave, made it very concerned that such a person
might make “important decisions and sit[] on a case like this.” The court also
noted that when No. 28 was excused, she loudly said “yes” more than once,
and did not appear interested in participating in the process. Defense
counsel did not offer any further comment in regard to his motion.
2. Analysis
“ ‘ “Both the federal and state Constitutions prohibit any advocate’s use
of peremptory challenges to exclude prospective jurors based on race.” ’ ”
(People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 759.)
“ ‘ “[T]he burden is on the opposing party to demonstrate impermissible
discrimination.” [Citation.] “A three-step procedure applies at trial when a
defendant alleges discriminatory use of peremptory challenges. First, the
defendant must make a prima facie showing that the prosecution exercised a
challenge based on impermissible criteria. Second, if the trial court finds a
prima facie case, then the prosecution must offer nondiscriminatory reasons
for the challenge. Third, the trial court must determine whether the
prosecution’s offered justification is credible and whether, in light of all
18
relevant circumstances, the defendant has shown purposeful race
discrimination. [Citation.] ‘The ultimate burden of persuasion regarding
[discriminatory] motivation rests with, and never shifts from, the
[defendant].’ ” ’ ” (Id. at p. 760.)
Here, the trial court failed to make a first step determination whether
defendant made a prima facie showing that the prosecutor acted with
discriminatory purpose. Instead, when the defense made its motion, the
court “thought there was a non-discriminatory basis for excusing her” and
agreed to hear the motion later. Later, in addressing the motion, the court
started by indicating its belief that “the burden . . . shifts to the People.”
Neither party objected or asked for a clear ruling as to whether defendant
made a prima facie showing.
Where, as here, the trial court made no ruling on a prima facie showing
but “required the prosecution to state its reasons for exercising peremptory
challenges, we skip the first two steps and move straight to considering the
credibility of the prosecution’s stated reasons and whether the record as a
whole reveals a discriminatory motive for removing even a single prospective
juror.” (People v. Salinas (2022) 77 Cal.App.5th 20, 33; People v. Scott (2015)
61 Cal.4th 363, 393.) “This portion of the Batson/Wheeler inquiry focuses on
the subjective genuineness of the reason, not the objective reasonableness.”
(People v. Gutierrez (2017) 2 Cal.5th 1150, 1158 (Gutierrez).) This means that
“[t]he prosecutor’s justification does not have to support a challenge for cause,
and even a trivial reason, if genuine and race neutral, is sufficient.” (People
v. Hardy (2018) 5 Cal.5th 56, 76.)
A trial court’s determination that the prosecutor’s justification in this
third stage was genuine and credible is reviewed for substantial evidence, but
a reviewing court conducts its review with “ ‘ “great restraint” ’ ” and begins
19
from the presumption that “an advocate’s use of peremptory challenges
occurs in a constitutional manner.” (Gutierrez, supra, 2 Cal.5th at p. 1159.)
The court’s conclusions “are entitled to deference . . . when the court made a
‘sincere and reasoned effort to evaluate the nondiscriminatory justifications
offered.’ ” (Ibid.) “A court may make a sincere and reasoned effort to
evaluate a peremptory challenge even if it does not provide a lengthy and
detailed explanation for its ruling. [Citations.] Under our precedent, ‘[w]hen
the trial court has inquired into the basis for an excusal, and a
nondiscriminatory explanation has been provided, we . . . assume the court
understands, and carries out, its duty to subject the proffered reasons to
sincere and reasoned analysis, taking into account all the factors that bear on
their credibility.’ ” (People v. Baker (2021) 10 Cal.5th 1044, 1077–1078.)
That assumption, however, can be rebutted. “When ‘the proffered reasons
lack[] inherent plausibility or [are] contradicted by the record,’ the court’s
failure to probe, or to explain, may eliminate the basis for deference.” (Ibid.)
Here, the prosecutor provided the following reasons for excusing
No. 28: first, she was “flip” in her manner and attitude toward the jury
selection process, as illustrated by her having food delivered to the court and
going to retrieve it rather than listen to what the court had to say, and by
wearing fuzzy slippers to court; second, she was young, and the prosecutor
did not think she had the life experience to evaluate the evidence; and third,
she said that she might be unable to render a verdict if the prosecution did
not present scientific evidence. Defense counsel made no attempt to dispute
the accuracy of the prosecutor’s observations, nor the sincerity of her
justifications.
We conclude these justifications are supported by the record and are
not inherently implausible. First of all, the voir dire transcript plainly
20
reflects that No. 28 asserted her potential inability to convict absent DNA or
fingerprint evidence, even if the prosecution proved defendant’s guilt beyond
a reasonable doubt through other evidence.7 When a juror’s answers to voir
dire questioning create a plausible concern that the juror might not follow the
reasonable doubt standard, or might require something more from the
prosecution to convict, a race-neutral ground for a preemptory challenge
exists. (People v. Manibusan (2013) 58 Cal.4th 40, 84.)
Moreover, as recounted above, the reporter’s transcripts confirm that,
as soon as No. 28 was called into the jury box, she asked to leave the
courtroom to pick up a food delivery rather than participate in the jury
selection process. No. 28 wore what appeared to both the court and the
prosecutor to be fuzzy slippers, and when she was excused, she let out a
celebratory “yes,” followed by, “Oh, man,” when the defense attorney stated
he had a motion. Then, when the court ultimately excused No. 28, she let out
a celebratory “Yes, yes.” Together these circumstances reasonably support
the trial court’s conclusion that the prosecutor had valid race-neutral reasons
for exercising the peremptory challenge. (See People v. Watson (2008) 43
Cal.4th 652, 680 [excusing a potential juror who is “too immature [and]
irresponsible” to serve is a legitimate race-neutral action]; People v. Jones
(2017) 7 Cal.App.5th 787, 805 [“a prospective juror’s youth and corresponding
lack of life experience can be a valid race-neutral reason”]; People v. Barber
(1988) 200 Cal.App.3d 378, 396 [non-biased reasons for excusing juror
included fact that prospective juror was wearing a “Coors jacket,” which
7 Though No. 28 said at one point that whether she would require such
scientific evidence to convict would depend on the evidence presented, she
additionally stated she might need that type of scientific proof to convict even
if there was already proof beyond a reasonable doubt.
21
might suggest “a lack of respect for the dignity of the court or the court
system or, on the other hand, perhaps a general lifestyle or attitude”].)
Contrary to defendant’s claim, the trial court here made a sincere and
reasoned attempt to evaluate the prosecutor’s justifications. The court
inquired into the basis for No. 28’s excusal and, after the prosecutor set out
her justifications, the court recalled the juror’s comment that her ability to
render a verdict might be affected if the prosecution failed to provide
scientific evidence. The court also discussed its own in-court observations of
the prospective juror, which were in line with what the prosecution observed.
And notably, before addressing this particular Batson/Wheeler motion, the
court heard the defense’s first Batson/Wheeler motion regarding No. 8. The
court’s lengthy discussion and resolution of that issue—i.e., ultimately
seating No. 8 as a trial juror for the sake of “hav[ing] more people who look
like this defendant on the panel”—clearly showed that the court was
attentive to the issue at hand.8 This record stands in contrast to what
happened in People v. Allen (2004) 115 Cal.App.4th 542, where the prosecutor
justified a challenge to a potential juror merely by stating, “ ‘her very
response to your answers, and her demeanor, and not only dress but how she
took her seat,’ ” and the trial court prejudicially erred in failing to conduct
further inquiry into the proffered reasons. (Id. at pp. 546, 552–553.)
In sum, we conclude that substantial evidence supports the trial court’s
determination regarding the prosecutor’s justifications for excusing No. 28.
Contrary to defendant’s assertions, the record does not establish that the
prosecutor’s justifications for excusal were pretextual or that the court failed
8 We express no opinion as to the propriety of the trial court’s decision to
seat No. 8 after indicating the prosecutor offered a valid race-neutral reason
for exercising a peremptory challenge.
22
to make a sincere and reasoned effort to evaluate the prosecutor’s
justifications.
C. Prosecutorial Misconduct During Closing Argument
The prosecutor began her closing argument by thanking the jury then
stating: “(S.S.) was kidnapped, raped and forced to perform oral cop on July
16th, 2018. (P.B.) was kidnapped, raped, and forced to perform oral cop on
July 30th, 2018. Like we said at the beginning of this case: Two separate
girls. Two separate dates. One worse nightmare. And Kenneth Weathersby
is their monster.” Later, transitioning from discussing the evidence with
respect to the incident involving S.S. to the incident involving P.B., the
prosecutor stated: “What about (P.B.)? Let’s now talk about what happened
to (P.B.). Because about two weeks go by, and then her worst nightmare
happens. Right? The monster strikes again.” Finally, after showing the
video of P.B. running from defendant’s car, the prosecutor stated: “See her
coming around towards the building. Look at her run, afraid for her life,
trying to get away from her monster.”
Defendant now argues the prosecutor committed misconduct by
referring to him as a “monster” during closing argument, which he claims
dehumanized him in front of the jury. He also contends that word has “racial
overtones” which violated section 745, subdivisions (a)(1) and (a)(2), a statute
recently added by the California Racial Justice Act (CRJA). The People
respond that defendant forfeited the claim of misconduct by not objecting or
requesting an admonition and that in any case he fails to show error or
prejudice. We agree with the People.
“ ‘ “ ‘A prosecutor’s . . . intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct “so egregious that it
infects the trial with such unfairness as to make the conviction a denial of
23
due process.” ’ ” [Citations.] Conduct by a prosecutor that does not render a
criminal trial fundamentally unfair is prosecutorial misconduct under state
law only if it involves “ ‘ “the use of deceptive or reprehensible methods to
attempt to persuade either the court or the jury.” ’ ” ’ ” (People v. Suarez
(2020) 10 Cal.5th 116, 175 (Suarez).) When a claim of misconduct is based on
the prosecutor’s remarks to the jury, the defendant must show a reasonable
likelihood that the jury construed or applied the challenged remarks in an
objectionable fashion. (People v. Centeno (2014) 60 Cal.4th 659, 667.) “ ‘To
preserve a misconduct claim for review on appeal, a defendant must make a
timely objection and ask the trial court to admonish the jury to disregard the
prosecutor’s improper remarks or conduct, unless an admonition would not
have cured the harm.’ ” (People v. Davis (2009) 46 Cal.4th 539, 612.)
The Supreme Court has had at least two occasions to address claims
where the defense did not object to prosecutorial argument referring to a
defendant as a “monster.” (People v. Chatman (2006) 38 Cal.4th 344, 407;
People v. Sully (1991) 53 Cal.3d 1195, 1249–1250.) In both cases, the
Supreme Court rejected the claims, reasoning that any harm caused by the
remarks could have been cured by an objection and admonition. (Ibid.) We
see no reason to conclude differently here. Had the defense in this case
objected at the beginning of the prosecutor’s closing argument, then the court
could have admonished the prosecutor and likely prevented any further
references, and the jury could have been instructed to disregard the
comment.
People v. Herring (1993) 20 Cal.App.4th 1066 (Herring) does not compel
a different result. During closing argument in that case, the prosecutor
attacked defense counsel, stating things like: “ ‘I chose this side and he chose
that side. My people are victims. His people are rapists, murderers, robbers,
24
child molesters.’ ” (Herring, at p. 1073.) The prosecutor also leveled a series
of ad hominem attacks at a biracial defendant who was charged with various
sex crimes. (Id. at pp. 1070–1071, 1074.) Among other things, the prosecutor
said: “ ‘[the defendant] wants to have sex with her again. I mean this is
primal man in his most basic level. He’s [sic] idea of being loved is sex. He
wouldn’t know what love was. He’s like a dog in heat. . . .’ ‘This is primal
man. He thinks all I have to do is put a little force on her. . . .’ ‘He’s like a
parasite. He never works. He stays at people’s homes. Drives people’s cars.
He steals from his own parents to get anything. He won’t work for it.’ ” (Id.
at pp. 1073–1074.) On that record it was determined that further admonition
would not have cured the harm, in part because the “primal man” remarks
were both in bad taste and were unwarranted by the evidence of the crimes,
which did not reveal undue violence or infliction of injury. (Id. at p. 1074.)
The remarks at issue in Herring do not compare to the prosecutor’s
brief and isolated uses of “monster” here. More to the point, whereas the
remarks in Herring were unwarranted, here, the prosecutor reasonably
described defendant as the monster in the worst nightmares of the two young
victims. Considering the evidence of defendant’s violent sex crimes against
these teenaged victims, we cannot say that description was unwarranted.
In any case, were we to set aside the forfeiture, we would nonetheless
conclude the misconduct claim lacks merit. The California Supreme Court
has routinely held that “[c]losing argument may be vigorous and may include
opprobrious epithets when they are reasonably warranted by the evidence.”
(People v. Sandoval (1992) 4 Cal.4th 155, 180; see, e.g., People v. Farnam
(2002) 28 Cal.4th 107, 168 [no misconduct where “the prosecutor referred to
defendant as ‘monstrous,’ ‘cold-blooded,’ vicious, and a ‘predator’ ”]; People v.
Harrison (2005) 35 Cal.4th 208, 246 [referring to defendant as “evil” was
25
within the permissible scope of closing argument].) Again, the description of
defendant as the monster in the worst nightmares of these two young women
was warranted by the evidence. Moreover, these brief and isolated alleged
epithets could not have been prejudicial under any standard in light of the
record and the overwhelming evidence of guilt. (People v. Sanders (1995) 11
Cal.4th 475, 527.)
Finally, we reject defendant’s argument that the prosecutor’s remarks
violated section 745, subdivisions (a)(1) and (a)(2) of the CRJA. While
“monster” is a race-neutral term, we acknowledge its use could, under certain
circumstances, be employed to invoke racist tropes. (People v. Thompson
(2022) 83 Cal.App.5th 69, 129 [conc. opn. by Lie, J.].) In the context of this
case, however, there is nothing in the closing arguments suggesting the
prosecutor used the term in a way so as to implicate defendant’s race. (Id. at
pp. 95–96 [maj. opn. by Bamattre-Manoukian, J.].) Indeed, defendant
provides not a single record citation to support the perceived CRJA violation.
That one of the victims was African American and multiple African-American
jurors sat on the jury are additional circumstances that belie the claim.
Nevertheless, we join the call for courts and counsel to “be aware of explicit
and implicit racial biases” and “to be vigilant in their efforts to ensure
compliance with the Racial Justice Act and the provision of fair trials.” (Id.
at p. 96.)
In sum, we reject the claim of prosecutorial misconduct.
D. Prosecutor’s Failure to Prevent a Witness’s Disclosure
In a second prosecutorial misconduct claim, defendant argues that the
prosecutor failed to prevent a witness from disclosing defendant had spent
time in jail, and that the trial court abused its discretion in denying his
mistrial motion based on that disclosure. We are not persuaded.
26
1. Additional Facts
Prior to trial, the defense moved to exclude evidence of defendant’s
2008 convictions for first degree residential burglary (§ 459) and possession of
controlled substances for sale (Health & Saf. Code, §§ 11351.5 & 11378).
Noting defendant’s criminal history was sparse and remote, the court ruled
that evidence of his prior convictions was inadmissible, but that the
prosecutor could cross-examine defendant with his prior felony convictions if
he testified.
During trial, the prosecution called defendant’s significant other, K.T.,
to the stand. The prosecutor began her direct examination of K.T. by asking
questions concerning her relationship with defendant, e.g., how she knew
him, how many children they shared, and how long they had been together.
K.T. indicated she and defendant were together for roughly 15 years. The
prosecutor then asked, “During that period of time were you in a substantial
relationship with him? Like did you guys live together for that whole 15
years?” K.T. responded, “As long as he wasn’t in jail, yeah.” The prosecutor
immediately moved on to question K.T. about other topics, such as about his
appearance around the time of the offenses in July 2018.
When the prosecutor completed her direct examination, defense counsel
asked to approach the bench and objected to K.T.’s remark about defendant
spending time in jail. Defense counsel acknowledged it did not appear, and
he could not credibly argue, that the prosecutor intended to elicit that
information, but he thought the prosecutor should have admonished K.T. not
to discuss such things before testifying. In terms of remedy, defense counsel
stated: “What I am asking for at this point is a mistrial, which the Court will
deny. And . . . when the Court denies that, I would ask for the Court to
instruct them that whatever his prior arrests were, the involvement that
27
caused him to be in jail did not consist of any sex offenses, which is the
truth.”
The prosecutor responded that she was surprised by the answer, had
not meant to elicit that information, and tried to move on immediately. The
trial court agreed the prosecutor had moved on immediately and K.T.’s
response was “completely unsolicited.” The court disagreed with the
suggestion that the prosecutor should have admonished K.T. not to mention
defendant’s prior time in custody because defendant had very little of it to
speak of, so the answer really “came out of left field.” With the parties’
agreement, the court admonished the jury: “[K.T.] had mentioned on direct a
comment about her living conditions with [defendant]. [¶] First, ladies and
gentlemen, none of that is relevant to the case. But, secondly, any time
[defendant] spent incarcerated was brief and was for issues that were
nonviolent, non-sexually related.”
2. Analysis
Defendant argues the prosecutor failed to prevent K.T.’s disclosure of
his time in custody, K.T.’s statement was incurably prejudicial, and the court
abused its discretion in denying his mistrial motion.
A prosecutor who intentionally elicits inadmissible testimony is guilty
of misconduct. (Suarez, supra, 10 Cal.5th at p. 175.) “ ‘A prosecutor has the
duty to guard against statements by his witnesses containing inadmissible
evidence. [Citations.] If the prosecutor believes a witness may give an
inadmissible answer during his examination, he must warn the witness to
refrain from making such a statement.’ ” (People v. Sanchez (2019) 7 Cal.5th
14, 65.)
Here, the prosecutor’s question was singular, and she immediately
moved on to a different topic after K.T. gave the answer at issue. On this
28
record, defendant fails to show a “ ‘pattern of conduct so egregious that it
rendered the trial fundamentally unfair’ ” in violation of the federal
Constitution. (Suarez, supra, 10 Cal.5th at p. 175.) Moreover, no state law
misconduct appears because the question was innocuous, and even defense
counsel acknowledged he could not credibly argue the prosecutor intended to
elicit that information. (Ibid.; see, e.g., People v. Leonard (2007) 40 Cal.4th
1370, 1405.) We find no merit to defendant’s claim of misconduct.
As for defendant’s mistrial claim, a trial court should grant a motion for
mistrial only “if it is ‘apprised of prejudice that it judges incurable by
admonition or instruction.’ ” (Avila, supra, 38 Cal.4th at p. 573.) “A witness’s
volunteered statement can, under some circumstances, provide the basis for a
finding of incurable prejudice.” (People v. Ledesma (2006) 39 Cal.4th 641,
683.) Though “exposing a jury to a defendant’s prior criminality presents the
possibility of prejudicing a defendant’s case and rendering suspect the
outcome of the trial” (People v. Harris (1994) 22 Cal.App.4th 1575, 1580),
“[i]mproper evidence of prior offenses results in reversal only where the
appellate court’s review of the trial record reveals a closely balanced state of
the evidence.” (People v. Stinson (1963) 214 Cal.App.2d 476, 482.) We review
the denial of a mistrial for abuse of discretion. (People v. Cox (2003) 30
Cal.4th 916, 953.)
Here, K.T.’s remark indicated that defendant spent time in jail, but not
what he had been in jail for, nor for what length of time. The prosecutor did
not dwell on the remark and immediately turned to another topic. After the
prosecutor’s examination of K.T.—which was not particularly lengthy—the
court admonished the jury that K.T.’s mention of defendant’s incarceration
was irrelevant to the case and that the period of incarceration was brief and
for nonviolent and non-sexual matters. We presume this admonition cured
29
any perceived harm. (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404.)
Moreover, the record discloses overwhelming evidence of guilt, which the
defense did little to offset. No basis for reversal appears.
Defendant’s authorities are unavailing, as they align with our
conclusion that a mistrial is inappropriate where, as here, the case against
the defendant is not a close one. (E.g., People v. Parsons (1984) 156
Cal.App.3d 1165, 1171–1172; People v. Bentley (1955) 131 Cal.App.2d 687,
689–690.)
In sum, we reject the claim of misconduct.
E. Exclusion of Evidence
On direct examination of K.T., the prosecutor asked what transpired on
July 31, 2018. K.T. testified that after work, she went to the home of
defendant’s cousin because she knew defendant’s car was there. The
prosecutor asked how K.T. knew that, and K.T. responded she knew because
defendant had called her. The prosecutor moved on to ask what occurred
after she went to the home of defendant’s cousin.
Cross-examination consisted of the following: defense counsel asked
whether, during the aforementioned conversation, defendant said that
“somebody was lying on him.” K.T. responded, “He said he didn’t rape
nobody.” The prosecutor objected on hearsay grounds and moved to strike.
The court sustained the objection and granted the motion to strike, declining
defense counsel’s request to approach the bench or go outside the presence of
the jury.
The following day defense counsel argued that because the prosecutor
elicited evidence that defendant had switched cars with his cousin—from
which the jury could infer that defendant was fleeing and evading law
enforcement—the prosecutor opened the door to defendant’s rape denial
30
statement under Evidence Code section 356’s rule of completeness. After
hearing from the prosecutor, the court excluded the rape denial statement.
Defendant contends his rape denial statement was wrongly excluded
because it was admissible under Evidence Code section 356 and the rule of
completeness to counter what he perceives as the prosecution’s attempt to
characterize the exchange of vehicles with his cousin as evidence of flight and
consciousness of guilt.
Evidence Code section 356 provides: “Where part of an act, declaration,
conversation, or writing is given in evidence by one party, the whole on the
same subject may be inquired into by an adverse party; when a letter is read,
the answer may be given; and when a detached act, declaration, conversation,
or writing is given in evidence, any other act, declaration, conversation, or
writing which is necessary to make it understood may also be given in
evidence.” This statutory provision is often referred to as “the rule of
completeness.” (People v. Armstrong (2019) 6 Cal.5th 735, 786 (Armstrong).)
As the Armstrong court explained, Evidence Code section 356 operates
“ ‘to prevent the use of selected aspects of a conversation, act, declaration, or
writing, so as to create a misleading impression on the subjects addressed.
[Citation.] . . .’ The rule reflects the ‘ “ ‘equitable notion’ ” ’ that a party
seeking introduction of one part of a statement cannot selectively object to
introduction of other parts necessary to give context.’ ” (Armstrong, supra, 6
Cal.5th at pp. 786–787.) We review a ruling under Evidence Code section 356
for abuse of discretion. (People v. Johnson (2022) 12 Cal.5th 544, 605
(Johnson).)
Here, the trial court did not abuse its discretion in excluding
defendant’s statement. As the prosecutor explained to the court, she inquired
why K.T. went to the home of defendant’s cousin because the police reports
31
noted defendant had called K.T. from his cousin’s phone, which K.T. thought
was odd. The prosecutor did not elicit any statements made by defendant
during that phone call. Moreover, because defendant’s cousin had already
testified to the fact that she and defendant had switched phones and cars, the
prosecutor indicated she would rely on the cousin’s testimony to make her
argument about evasion. Finally, defendant’s rape denial statement was not
necessary to understand why K.T. went to the home of defendant’s cousin;
nor did the exclusion of defendant’s statement create a misleading impression
about why K.T. went to the home of defendant’s cousin. (Evid. Code, § 356;
Armstrong, supra, 6 Cal.5th at p. 787.) On this record, it was reasonable for
the court to exclude defendant’s rape denial statement.
We also reject defendant’s claim that the trial court’s exclusion of his
statement violated his rights to due process, to present exculpatory evidence,
and to confrontation. “ ‘ “[A]s a general matter, the ordinary rules of evidence
do not impermissibly infringe on the accused’s [state or federal constitutional]
right to present a defense.” ’ ” (People v. Prince (2007) 40 Cal.4th 1179, 1243
(Prince); see, e.g., Johnson, supra, 12 Cal.5th at pp. 606–607 [where court
acted within its discretion to exclude portions of statements under Evidence
Code section 356, claim that court violated defendant’s due process rights by
excluding relevant evidence fails].) Here, application of ordinary evidentiary
rules did not impermissibly infringe on defendant’s right to present a defense,
and the proffered evidence lacked significant probative value to implicate his
due process rights. (People v. Cunningham (2001) 25 Cal.4th 926, 998–999.)
Indeed, defendant’s statement was self-serving and perhaps even more
incriminating than exculpating insofar as it indicated defendant’s suspicion
that law enforcement was pursuing him for a sexual offense.
We reject the claim that the court erred by excluding his statement.
32
F. Post-Trial Discovery
Defendant contends the trial court abused its discretion in denying his
post-trial motion to compel discovery because the items sought were material
and exculpatory within the meaning of Brady v. Maryland (1963) 373 U.S. 83(Brady). We cannot agree.
1. Additional Facts
Several months after the jury verdict but before sentencing, allegations
of misconduct in the Vallejo Police Department came to light. Specifically, a
former police captain told the media there was a longstanding tradition
among Vallejo P.D. officers to commemorate fatal shootings by bending the
tips of their police badges. The former captain also reported police
misconduct during the investigation of a kidnapping case involving Denise H.
Detective Mathew Mustard, who testified at defendant’s trial, had worked on
and received criticism in the media for his work in the Denise H. case.
Defense counsel also learned after defendant’s trial that Detective Mustard
was possibly being investigated for calling an African-American detective
“ ‘boy.’ ”
Defendant filed a post-trial motion to compel discovery, arguing the
reports of misconduct bore on the credibility of Detective Mustard and the
other police officers who worked on his case, which had been a central issue
at trial for the defense. Defendant sought information regarding the badge
bending allegations, including the concealment and investigation of those
allegations; misconduct by officers in the Denise H. case; and the credibility
of Detective Mustard, including his alleged use of racial epithets.
The prosecutor opposed the motion on the following grounds. First,
there was no discoverable evidence concerning the badge bending or other
misconduct allegations because these were only allegations in the media.
33
Second, the defense could not cite to any reliable evidence supporting the
badge bending allegations or evidence that such allegations concerned the
officers in defendant’s case, or any reliable evidence in those allegations. Nor
did the defense identify any reliable evidence supporting the racial slur
allegation, or the supposition that the police involved in defendant’s case
were among those who allegedly committed misconduct in the Denise H. case.
Additionally, the prosecutor emphasized that the strength of the evidence in
the instant case rested in the credible testimony of the victims, rather than
law enforcement. She also noted that Detective Mustard was assigned only
to S.S.’s case, not P.B.’s case, and that patrol officers had collected the
condom and underwear from the alley in the S.S. case.
The trial court denied the motion. In finding the requested discovery
was neither relevant nor material, the court observed the police involvement
in this case was minimal and the evidence of guilt overwhelming. The court
further noted that Detective Mustard’s credibility was not particularly
relevant in terms of what was at issue in the case.
2. Analysis
“Discovery in criminal cases is governed by section 1054.” (People v.
Thompson (2016) 1 Cal.5th 1043, 1093; § 1054, subd. (e).) Section 1054.1,
subdivision (e), requires disclosure of “exculpatory evidence” to the defense “if
it is in the possession of the prosecuting attorney or if the prosecuting
attorney knows it to be in the possession of the investigating agencies.” This
statute “requires the prosecution to disclose ‘[a]ny exculpatory evidence,’ not
just material exculpatory evidence.”9 (Barnett v. Superior Court (2010) 50
9 For purposes of establishing a Brady violation, evidence is material “ ‘if
there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.’ ” (Strickler
v. Greene (1999) 527 U.S. 263, 280.)
34
Cal.4th 890, 901.) A defendant can discover evidence under section 1054.1
without showing the same materiality for establishing a Brady violation.
(Ibid.) We review a court’s ruling on a discovery motion for abuse of
discretion. (Prince, supra, 40 Cal.4th at p. 1232.)
Here, the People point out that section 1054.1—the statutory provision
governing information to be disclosed by the prosecution—authorizes only
pretrial discovery. (§§ 1054, subd. (a), 1054.7; People v. Superior Court
(Pearson) (2010) 48 Cal.4th 564, 570.) The People also point out that while
there is a mechanism for postconviction discovery in section 1054.9, it can
only be utilized when a defendant is sentenced to 15 years or more in prison
(§ 1054.9), and, in this case, defendant had not been sentenced at the time he
made his motion to compel, so the trial court could not consider discovery
under section 1054.9. However, the California Supreme Court has made
clear that the obligation to disclose favorable and material evidence under
Brady continues after trial (In re Lawley (2008) 42 Cal.4th 1231, 1246), so the
trial court properly did not rest on the timing of defendant’s motion.10
Setting aside the timing of defendant’s motion, defendant fails to
establish prejudicial error under People v. Watson (1956) 46 Cal.2d 818.
(People v. Deleoz (2022) 80 Cal.App.5th 642, 658; see People v. Gonzalez
(1990) 51 Cal.3d 1179, 1258 [noting the federal Constitution does not confer a
general right to criminal discovery].) That is, we see no abuse of discretion in
the trial court’s determination that the requested discovery was not
10 During oral argument, the People agreed that until sentencing occurs,
a prosecutor must comply with the disclosure requirements in Brady. But
citing District Attorney’s Office for Third Judicial Dist. v. Osborne (2009) 557
U.S. 52, the People claim that a prosecutor’s Brady disclosure obligations do
not continue after judgment. This is a contention that should be made to the
California Supreme Court in the appropriate case. Again, here, defendant
filed his motion to compel prior to sentencing.
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particularly relevant or material to the issues in the case. But even
assuming—generously—that the court committed state law error in denying
the requested discovery, the evidence of guilt was overwhelming, and the
strength of that evidence rested mainly in the testimony of the victims. (See
ante, at p. 3.) This is not a case where the evidence of guilt turned in major
part on the credibility of the police officers involved. The discovery that
defendant sought after his conviction—assuming it existed at all—would
have been for impeachment on collateral issues that would not have
materially affected the evidence of guilt in this case.
We reject defendant’s claim concerning the denial of his post-trial
motion to compel.
G. Assembly Bill No. 518 and Senate Bill No. 567
Finally, defendant argues the matter should be remanded for
resentencing pursuant to Assembly Bill No. 518 (Assembly Bill 518) and
Senate Bill No. 567 (Senate Bill 567). We address these claims in turn.
1. Assembly Bill 518
Section 654 prohibits multiple punishment for a single act or omission.
(People v. Delgado (2017) 2 Cal.5th 544, 570.) Former section 654,
subdivision (a), provided that “[a]n act or omission that is punishable in
different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in
no case shall the act or omission be punished under more than one provision.”
Effective January 1, 2022, Assembly Bill 518 amended section 654,
subdivision (a), to provide trial courts with the discretion to select which
provision a defendant will be punished under. The statute now reads, in
part: “An act or omission that is punishable in different ways by different
36
provisions of law may be punished under either of such provisions, but in no
case shall the act or omission be punished under more than one provision.”
There is no dispute, and we agree, that Assembly Bill 518 is retroactive
under In re Estrada (1965) 63 Cal.2d 740, and that it applies to nonfinal
judgments. (People v. Jones (2022) 79 Cal.App.5th 37, 45 (Jones).) But we
disagree with defendant that he is eligible to benefit from the amended law.
Defendant claims that by staying the sentences on counts 1 and 7
under section 654, the trial court implicitly found those kidnapping offenses
arose out of the same course of conduct as the sex offense counts, for which it
imposed longer indeterminate sentences. Thus, he argues, he is entitled to
resentencing so the court can exercise its new discretion and consider staying
one of the sex offense sentences rather than the kidnapping sentences.
Defendant’s claim fails. The trial court imposed One Strike sentences
for the sex offenses in this case. The One Strike law provides:
“Notwithstanding any other law, probation shall not be granted to, nor shall
the execution or imposition of sentence be suspended for, a person who is
subject to punishment under this section.” (§ 667.61, subd. (h).)
In People v. Caparaz (2022) 80 Cal.App.5th 669, Division Two of this
court held that a trial court is prohibited under section 667.61,
subdivision (h), “from suspending or staying the imposition of a One Strike
law sentence notwithstanding any other law, including section 654.”
(Caparaz, at p. 689, review denied Sept. 28, 2022, S275894.) We agree with
this holding and reject defendant’s contention that Caparaz was wrongly
decided because legislative exceptions to section 654 must be express. The
phrase “[n]otwithstanding any other law” in section 667.61, subdivision (h), is
typically understood as signaling the Legislature’s intent for the statute to
prevail over all contrary law, including section 654. (Caparaz, at p. 689,
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quoting In re Greg F. (2012) 55 Cal.4th 393, 406 [“ ‘When the Legislature
intends for a statute to prevail over all contrary law, it typically signals this
intent by using phrases like “notwithstanding any other law” or
“notwithstanding other provisions of law” ’ ”].)
Because the trial court is prohibited from staying the One Strike sex
offense sentences, lifting the stays on the kidnapping counts to seek that
result would be contrary to law and futile.
2. Senate Bill 567
Senate Bill 567 amended section 1170, subdivision (b) (1170(b)), to
require that when a statute specifies three potential terms of imprisonment,
a court must presumptively impose the middle term. (§ 1170(b)(1), as
amended by Stats. 2021, ch. 731, § 1.3.) Moreover, a court may not impose
the upper term unless aggravating circumstances “justify the imposition of a
term of imprisonment exceeding the middle term, and the facts underlying
those circumstances have been stipulated to by the defendant, or have been
found true beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.” (§ 1170(b)(2), as amended by Stats. 2021, ch. 731, § 1.3.) Under
section 1170(b)(3), however, “the court may consider the defendant’s prior
convictions in determining sentencing based on a certified record of
conviction without submitting the prior convictions to a jury.” Senate
Bill 567 also amended section 1170(b) to require imposition of the lower term
when one of several enumerated contributing factors to the commitment
offense exists, such as the defendant “experienced psychological, physical, or
childhood trauma,” “unless the court finds that the aggravating
circumstances outweigh the mitigating circumstances that imposition of the
lower term would be contrary to the interests of justice.” (§ 1170(b)(6).)
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Defendant identifies his conviction for criminal threats (count 6) as the
sole count to which Senate Bill 567 might apply. On that count, the trial
court sentenced defendant to the upper term of three years, doubled to six
years under the Three Strikes Law.
Again, there is no disagreement, and we agree, that the amendments
apply retroactively. (Jones, supra, 79 Cal.App.5th at p. 45.) Instead, the
focus of the parties’ dispute is whether defendant is entitled to remand for
resentencing to try to reap the benefits of the new law. In defendant’s view,
because the trial court did not identify the aggravating factors it relied on to
impose the upper term, he is entitled to try to establish that circumstances
warrant a lesser term pursuant to amended section 1170(b). Conversely, the
People argue that remand for resentencing is unnecessary because the
sentence is lawful under the revised statute, and there is no doubt the court
would impose it again if resentencing occurred.
“ ‘Defendants are entitled to sentencing decisions made in the exercise
of the “informed discretion” of the sentencing court. [Citations.] A court
which is unaware of the scope of its discretionary powers can no more
exercise that “informed discretion” than one whose sentence is or may have
been based on misinformation regarding a material aspect of a defendant’s
record.’ [Citation.] In such circumstances, we have held that the appropriate
remedy is to remand for resentencing unless the record ‘clearly indicate[s]’
that the trial court would have reached the same conclusion ‘even if it had
been aware that it had such discretion.’ ” (People v. Gutierrez (2014) 58
Cal.4th 1354, 1391.)
In this case, the record fails to show what aggravating factors the trial
court relied on, whether the jury found such factors true beyond a reasonable
doubt, and whether the aggravating factors that the court could consider
39
under the amended statute would cause the court to re-impose the upper
term. Though the trial court remarked at sentencing that defendant
“literally forfeited his ability to live in a free society for the rest of his life,”
the court did not express an intention to impose the maximum possible
sentence, and indeed, it exercised its discretion to stay the five-year prior
serious felony conviction enhancement. (Stats. 2018, ch. 1013, §§ 1–2.) Thus,
the court’s statement does not reflect a clear and fixed intent to impose the
upper term on count 6, irrespective of shifting legislative directives
concerning the proper term.
We recognize the practical effect of a resentencing on count 6 is largely
academic because of the multiple indeterminate sentences the court imposed
here. Nevertheless, defendant seeks and is eligible for resentencing on this
record. Accordingly, we will remand the matter for further consideration of
the recent amendments to section 1170(b).
H. Abstract of Judgment
The People point out, and we have found, some errors in the abstract of
judgment that require correction. We enumerate them here for the benefit of
the trial court on remand.
First, with regard to count “6A,” the abstract indicates that the court
imposed a three-year rather than a six-year term, and it fails to reflect that
the court stayed the firearm enhancement on count 6, as orally pronounced.
Second, with regard to count “1A and 7A,” the reporters transcript
indicates the court orally imposed then stayed indeterminate terms for those
counts, yet these counts are listed in the abstract for determinate rather than
indeterminate terms. The People also correctly point out that the
punishment for counts 1 and 7 was life with the possibility of parole (§ 209,
subd. (b)(1)), and the court correctly orally imposed that sentence for count 1,
40
but apparently misspoke when it imposed a sentence of life without the
possibility of parole for count 7. The court should ensure the correct sentence
for both counts appears on the amended abstract.
Third, as to counts 2, 8, and 10, the terms are not designated as
consecutive on the abstract, but should be.
Fourth, as to counts 8, 9 and 10, the court imposed terms of 50 years to
life, not 25 years to life as indicated on the abstract.
Last, the court orally imposed then stayed firearm enhancements as to
various counts except counts 2 and 8, but the abstract reflects the court
instead stayed the firearm enhancement as to all counts except counts “6A”
and “8A.”
DISPOSITION
The matter is remanded for resentencing in light of section 1170(b), as
amended by Senate Bill 567. Whether or not the trial court orders a change
in the sentence for count 6, the court should correct the abstract of judgment
as discussed herein and the clerk of the court should send the amended
abstract to the Department of Corrections. In all other respects, the
judgment is affirmed.
FUJISAKI, J.
WE CONCUR:
TUCHER, P.J.
RODRÍGUEZ, J.
People v. Weathersby (A163331)
41