People v. Bunn CA1/5 ( 2022 )

Filed 10/13/22 P. v. Bunn CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A165857
v.
CLIFFORD LAMONT BUNN, (Kern County
Defendant and Appellant. Super. Ct. No. MF013335A)
This is an appeal from judgment after a jury convicted defendant
Clifford Bunn of seven felony rape and other sexual assault crimes against
Angelle C., his stepdaughter, a child under age 11.1 Defendant received a
total sentence of 145 years to life in prison. On appeal, defendant contends
the trial court prejudicially erred by excluding evidence relating to the
alleged infidelity of Ruby B., his former wife and Angelle’s mother, and
Angelle’s alleged behavioral issues at school. Defendant also contends the
trial court abused its discretion by imposing consecutive sentences on all
seven counts, rather than concurrent sentences. We reject these contentions
and affirm.
This matter was transferred by California Supreme Court order on
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August 9, 2022, from the Fifth Appellate District to the First Appellate
District.
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FACTUAL AND PROCEDURAL BACKGROUND
On January 13, 2020, an amended information was filed charging
defendant with four counts of sexual intercourse or sodomy with a child
under age 11 (Pen. Code, § 288.7, subd. (a); counts 1, 3, 5, and 7),2 and three
counts of oral copulation or sexual penetration with a child under age 11
(§ 288.7, subd. (b); counts 2, 4, and 6).
Trial began January 13, 2020, and revealed the following.
I. The Prosecution’s Case.
Defendant and Ruby were married and had lived together since 2017.
Ruby had a daughter from a previous relationship, Angelle, born in 2009,
who had lived with the couple since 2018. Defendant and Ruby’s marriage
was marred by tension. Ruby became suspicious of defendant after once
finding an opened condom and, another time, finding what appeared to be a
second cell phone. Defendant denied being unfaithful or having another
phone.
A. Discovery of Defendant’s Sexual Abuse.
On March 4, 2019, Ruby left for the morning, leaving Angelle, age 10,
with defendant, age 49 or 50. However, Ruby returned home unexpectedly,
after discovering she left behind some needed items. Ruby was surprised to
find her bedroom door locked. Ruby pounded on the door, hearing shuffling
inside the bedroom. Finally, defendant, naked, unlocked the door before
running back across the bedroom, throwing something in the trash can, and
jumping into bed. Ruby went to the trash can and found a blue ring with a
condom wrapped around it.
2 Unless otherwise stated, all statutory citations herein are to the Penal
Code.
2
Ruby then went to the bathroom door, which was closed. After opening
the door, Ruby saw her daughter, Angelle, sitting on the toilet. As Ruby
approached, Angelle quickly flushed but not before Ruby saw blood in the
water. Extremely upset, Ruby grabbed a knife from the kitchen and cut
defendant’s arm. She then called 911.
B. The Investigation and Angelle’s Statements.
Officer Brian Hansen, trained in responding to sexual assaults,
responded to Ruby’s 911 call. When Officer Hansen first arrived, Ruby told
him that she caught her husband “ ‘having sex’ ” with her daughter and gave
him the condom and blue ring that she found in the trash. The condom,
which had a red substance on it, was booked into evidence. Defendant was
arrested and received medical treatment for the cut on his arm before being
booked into jail.
Angelle was taken to a hospital for a sexual assault exam. Angelle told
the examining nurse that her “dad” had been “having sex” with her for about
a year. She further stated that he would kiss her all over and that she would
orally copulate him. Angelle also said that she had some bleeding that day
but that she did not always bleed during intercourse. Consistent with her
statements, the nurse found abrasions, lesions and tenderness consistent
with penile penetration and sexual assault. The nurse took several swabs
and collected Angelle’s underwear for testing.
Officer Hansen interviewed Angelle later that day. Angelle told him
that defendant, wearing a condom, was having sex with her that morning
when Ruby came home and started banging on their bedroom door. Angelle
explained she and defendant had been engaging in sexual intercourse several
times a week since March 2018, about 100 times in total, and that she orally
copulated him each time. Mostly, this occurred in defendant and Ruby’s bed.
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Once, they had sexual intercourse while her sister and Ruby were also in bed.
The family had been watching a movie together in the bed, and Ruby and
Angelle’s sister fell asleep. Angelle did not tell anyone about defendant’s
abuse because she loved him and did not want him to get in trouble. Angelle
also told Officer Hansen that Ruby and defendant had been arguing that
morning before Ruby discovered them together. When Ruby confronted her,
Angelle first denied having sex with defendant, prompting Ruby to
repeatedly hit her.
A few days later, Angelle was interviewed at a child assessment center.
Again, Angelle described having sexual intercourse with defendant regularly
since March 2018. Angelle further stated that defendant went to jail for
“having sex” with her after Ruby caught them. On that particular morning,
she was getting ready for school when defendant went to get a condom and to
check to make sure Ruby had left. When Ruby unexpectedly knocked on the
bedroom door, defendant told Angelle to go to the bathroom.
Angelle further stated that the day before they were caught, defendant
told Angelle to “suck on [his penis]” (which she did) while they were in his
truck driving home. They had sex in defendant’s truck many times and
sometimes had to stop when Ruby called defendant on his cell phone.
Generally, defendant would tell Angelle to “ ‘[g]et ready,’ ” which meant he
wanted to have sexual intercourse. Once, they had sexual intercourse in
defendant and Ruby’s bed while her sister and Ruby were also in the bed,
sleeping. Angelle also specifically remembered having sexual intercourse
with him in February 2019, two days before her birthday.
Angelle described defendant as her friend and said she did not want
him to go to jail. Defendant told her not to tell anyone about their sexual
relationship. Angelle also had sexual intercourse twice with “Phillip” in
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Las Vegas when she lived with her biological father before moving in with
defendant and Ruby. Angelle was able to mark on a drawing where a
female’s vagina and a male’s penis are located.
Angelle’s trial testimony was generally consistent with her previous
statements, although she initially denied remembering anything about the
day that defendant’s crimes came to light, or knowing what “ ‘sex’ ” is.
Angelle testified that she and defendant had sexual intercourse regularly for
about a year, from March 2018 to his arrest in March 2019. Usually, they
had sexual intercourse in defendant’s bed or his truck, including the day
before Ruby discovered them together. Defendant forced Angelle to orally
copulate him every time they had sexual intercourse. They also had sexual
intercourse once while Ruby and Angelle’s sister were also in bed. Angelle
did not report defendant’s abuse because she did not want defendant to get
into trouble. Before Angelle moved in with defendant and Ruby, “Uncle Phil”
had sexual intercourse with her at her biological father’s house in Las Vegas.
C. DNA Evidence.
The swabs from Angelle’s sexual assault evidence kit and the condom
from the trash can were tested. A mouth (buccal) swab from defendant was
also tested, sealed and booked into evidence. The red substance on the
condom tested positive for blood.
The buccal swabs from defendant and Angelle were used as known
reference samples for the DNA testing of the condom and Angelle’s sexual
assault kit. Angelle could not be excluded as a potential contributor for the
red substance on the condom, whereas defendant could be excluded. As to
the swabs from the sexual assault kit, neither defendant nor Angelle could be
excluded as potential contributors.
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II. Defense Case.
Several friends and relatives testified that the crimes alleged against
defendant were inconsistent with his character.
Defendant’s mother, Barbara B., lived with Angelle, Ruby, and
defendant. Defendant had been around children his whole adult life, and
Barbara never saw defendant behave inappropriately with Angelle or any
other child. If she had, Barbara would have reported it. Barbara did not
believe the charged allegations were consistent with her son’s character.
After defendant’s arrest, she allowed Ruby and Angelle to continue living at
the home because they had nowhere else to go.
Defendant’s sister also lived with defendant, Ruby, Angelle and
Barbara, for about a year and a half, and never saw defendant act
inappropriately or suspiciously. She did not believe defendant would have
committed the charged offenses.
Marva B. had known defendant since 2016. She had seen defendant
around children in the past and never saw him behave inappropriately. In
her opinion, the charged allegations were inconsistent with defendant’s
character. Marva further testified that defendant and Ruby frequently
argued. She had seen defendant attempt to ignore Ruby’s phone calls.
However, Ruby would keep calling him until he answered.
Deshawnia P. had known defendant for about 20 years. Deshawnia
had seen defendant interact with children before, including her own, and
never saw him act inappropriately. Deshawnia also testified that the
charged allegations were not consistent with defendant’s character.
Anthony R., a close friend of defendant since 2012, had also seen
defendant interact with children before, including his own. Anthony was
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certain defendant would not commit the charged acts, and he questioned
whether the DNA evidence was accurate.
III. The Verdict, Sentencing, and Appeal.
On February 4, 2020, the jury found defendant guilty as charged. The
trial court sentenced him to a total term of 145 years to life, consisting of
consecutive 25 years to life sentences on the sexual intercourse or sodomy
counts and consecutive 15 years to life sentences on the oral copulation or
sexual penetration counts.
On June 12, 2020, defendant filed a timely notice of appeal.
DISCUSSION
Defendant raises three primary grounds for reversal: The trial court
prejudicially erred by excluding evidence relating to (1) Ruby’s alleged
infidelity and (2) Angelle’s alleged behavioral issues at school and (3) abused
its discretion by imposing consecutive rather than concurrent sentences. We
address each one in turn.
I. The trial court’s evidentiary rulings stand.
A. Evidence of Ruby’s Infidelity.
Defendant contends his state and federal constitutional rights to due
process, confronting adverse witnesses and presenting a defense were
violated when the trial court barred him from cross-examining Ruby about
posting on social media regarding her new boyfriend and changing her profile
status to “new relationship” just after his arrest, and from questioning
defense witness Anthony about Ruby’s social media activity and witnessing
her having sex with another man in November 2017 while still married to
defendant. Defendant claims this evidence was admissible to prove Ruby’s
bias and motive to lie and to coach Angelle to lie about his sexual abuse.
Moreover, he claims this evidence was vital to his defense given that Ruby
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reported his crimes and turned over key DNA evidence (the condom and blue
ring) to the police. (See Evid. Code, § 785 [“The credibility of a witness may
be attacked or supported by any party”]; People v. Pearson (2013) 56 Cal.4th
393, 433–434 [a party may ask questions of a witness on cross-examination
for the purpose of attacking the witness’s credibility as long as the questioner
has a good faith basis for asking the question].) The following legal
framework applies.
“All relevant evidence is admissible, but only relevant evidence is
admissible. (Evid. Code, §§ 350, 351.)” (People v. McCurdy (2014) 59 Cal.4th
1063, 1095 (McCurdy).) Under Evidence Code section 352, the court has
broad discretion to determine relevant evidence should nonetheless be
excluded because its probative value is substantially outweighed by its
prejudicial effect. (People v. Champion (1995) 9 Cal.4th 879, 922; Evid. Code,
§ 352.) “ ‘Prejudice,’ as used in Evidence Code section 352, is not synonymous
with ‘damaging.’ [Citation.] Rather, it refers to evidence that uniquely tends
to evoke an emotional bias against [a victim, witness or party], and has little
to do with the legal issues raised in the trial.” (McCurdy, at p. 1095.)
On appeal, a trial court’s decision to admit or exclude evidence is
reviewed for abuse of discretion. (People v. Brown (2003) 31 Cal.4th 518, 547;
People v. Avitia (2005) 127 Cal.App.4th 185, 193.) “The trial court’s ruling
will not be disturbed in the absence of a showing it exercised its discretion in
an arbitrary, capricious, or patently absurd manner that resulted in a
miscarriage of justice.” (People v. Avitia, supra, at p. 193; see People v. Dyer
(1988) 45 Cal.3d 26, 73.)
Here, the trial court excluded this proffered evidence under Evidence
Code section 352 on the grounds that it was confusing, irrelevant and, as to
the alleged 2017 infidelity, too remote in time to be probative. We find
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nothing arbitrary, capricious, or patently absurd about these rulings. (People
v. Avitia, supra, 127 Cal.App.4th at p. 193.)
First, there was no evidence Ruby was romantically involved with the
man identified on her social media page at the time defendant’s crimes were
committed, which renders defendant’s proposed line of questioning
speculative, irrelevant and confusing to the jury. Moreover, while defendant
contends this information was vital to his theory that Ruby made up his
crimes to get back at him, the trial court permitted him to present testimony
from friends and family depicting Ruby as jealous and their marriage as
troubled. Ruby herself testified that she had recently found an opened
condom and what appeared to be a photograph of defendant with a second
cell phone. As such, this theory was before the jury notwithstanding the
court’s evidentiary ruling.
Further, as to Ruby’s alleged infidelity in 2017, we agree with the trial
court that admission of this evidence, given its remoteness in time, would be
significantly more prejudicial and confusing than probative of Ruby’s bias or
motive to lie. Angelle consistently testified defendant’s sexual abuse did not
begin until March 2018. Further, Ruby did not discover and report his abuse
until March 2019, two years after the alleged infidelity. As such, the
evidence would do little more than “evoke an emotional bias” against Ruby
despite having “little to do with the legal issues raised in the trial.”
(McCurdy, supra, 59 Cal.4th at p. 1095.)
We also reject defendant’s argument that exclusion of this evidence
implicated his constitutional rights to due process and a fair trial.
“ ‘Although we recognize that a criminal defendant has a constitutional right
to present all relevant evidence of significant probative value in his favor
[citations], “ . . . the proffered evidence must have more than ‘slight-
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relevancy’ to the issues presented.” ’ ” (People v. Homick (2012) 55 Cal.4th
816, 865.) Thus, while defendant may be correct Ruby’s bias was of vital
importance to his case, “this does not mean the trial court constitutionally
was compelled to permit [him] to introduce all possibly relevant evidence on
these subjects despite its marginal relevance, the possible effect upon the
jury’s ability to remain focused on the issues before it (rather than becoming
sidetracked on collateral questions), and the potentially significant amount of
time entailed in admitting the evidence in a manner fair to both sides. (See
People v. Cornwell (2005) 37 Cal.4th 50, 82 [citations] [‘a state court’s
application of ordinary rules of evidence—including the rule stated in
Evidence Code section 352—generally does not infringe upon’ the
constitutional right to offer a defense]; [citations].)” (People v. Fuiava (2012)
53 Cal.4th 622, 665–666.) As mentioned, the trial court admitted testimony
from defendant’s friends and family regarding Ruby’s jealousy and the
troubled state of their marriage. Evidence was also presented that Ruby was
so enraged that she repeatedly hit Angelle after the child initially denied
having sex with defendant and that she then stabbed defendant before
calling 911. All of this evidence was helpful to defendant’s theory that Ruby
was motivated to lie and to coach Angelle to lie about his abuse. Under these
circumstances, the court did not abuse its discretion in refusing to admit
further evidence of Ruby’s 2017 infidelity notwithstanding its slight
relevance.
Finally, even assuming for the sake of argument this evidence should
have been admitted, given its minimal relevance, it is not reasonably likely
admitting it would have led to a different verdict. (People v. Cudjo (1993) 6
Cal.4th 585, 611–612 [exclusion of evidence, even if erroneous, is harmless if
it does not appear reasonably probable the verdict was affected].) The
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evidence of defendant’s guilt was overwhelming. Angelle consistently
described his crimes to multiple people, from the time the police were first
summoned until the trial was complete. Moreover, both medical and DNA
evidence supported her descriptions. Under these circumstances, the court’s
rulings provide no grounds for reversal.
B. Evidence of Angelle’s Behavioral Issues.
We apply this same reasoning to reject defendant’s contention that the
trial court prejudicially erred by excluding evidence relating to Angelle’s
behavioral issues at school. Specifically, defense counsel requested to
question Angelle or Ruby about information counsel received about Angelle’s
having been in trouble at school for “issues of misconduct, fighting with other
people, and potentially not being completely honest.” The trial court denied
this request on grounds of irrelevance, improper character evidence and lack
of foundation. As before, defendant claims the court’s ruling was prejudicial
error because the excluded evidence was vital to his defense in that it tended
to impeach his accuser Angelle’s credibility. We disagree.
Putting aside the fact that the record contains no offer of proof as to
any specific incident of Angelle’s alleged behavioral issues, which itself is
grounds for rejecting defendant’s challenge (People v. Foss (2007) 155
Cal.App.4th 113, 127), we, as did the trial court, question the excluded
evidence’s relevance. “The law no longer recognizes a distrust of the
testimony of someone based on having been a victim of unwanted sexual
advances.” (People v. Foss, supra, at p. 130.) The trial court could have
reasonably determined Angelle’s behavior at school was too tangential and
unrelated to the charged crimes to warrant questioning.
Defendant responds that said evidence would have added to the
reasons to be skeptical of Angelle’s truthfulness given that she made some
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inconsistent statements regarding the number of times the abuse occurred,
initially testified she did not remember the March 4, 2019 incident and
denied knowing what sex is. Perhaps. But the issue for purposes of Evidence
Code section 352 is whether the prejudicial value of the evidence
substantially outweighs its probativeness. Here, the trial court reasonably
found this weak evidence was likely to evoke an emotional bias against
Angelle despite being minimally probative on the issues at hand, such as
whether she credibly reported defendant’s crimes after Ruby found defendant
naked with an opened condom in a just-unlocked bedroom with Angelle
hiding in the bathroom. Under these circumstances, defendant failed his
burden to prove the court’s ruling was an abuse of discretion. (McCurdy,
supra, 59 Cal.4th at p. 1095; see Santillon v. Roman Catholic Bishop of
Fresno (2012) 202 Cal.App.4th 708, 727.)
Finally, given the appropriateness of the trial court’s refusal to allow
questioning on the issue of Angelle’s school behavior, there was no violation
of defendant’s federal constitutional rights. As stated ante, generally, a
court’s application of ordinary rules of evidence does not impermissibly
infringe on a defendant’s fundamental right to present a defense. (People v.
Fuiava, supra, 53 Cal.4th at pp. 665–666.)
C. No Cumulative Error.
Relatedly, defendant contends the cumulative effect of the claimed
errors in excluding his proffered evidence was prejudicial, warranting
reversal. Under the “cumulative error” doctrine, we reverse a judgment if
there is a “ ‘reasonable probability’ ” that the jury would have reached a
result more favorable to defendant absent a combination of errors. (E.g.,
People v. Williams (2009) 170 Cal.App.4th 587, 646; In re Avena (1996) 12
Cal.4th 694, 771, 772, fn. 32.) Here, however, as discussed ante, the court’s
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exclusion of his proffered evidence was not error, much less prejudicial error.
And, in any event, even assuming for the sake of argument that defendant’s
trial was less than perfect, there is no basis for concluding he did not receive
due process and a fair trial. (People v. Cuccia (2002) 97 Cal.App.4th 785, 795
[“The ‘litmus test’ for cumulative error ‘is whether defendant received due
process and a fair trial’ ”].)
II. No Sentencing Error.
Lastly, defendant contends the court abused its discretion by imposing
consecutive life sentences on all seven counts rather than concurrent life
sentences. He is wrong.
When a defendant has been convicted of two or more offenses, including
offenses punishable by indeterminate life sentences,3 the sentencing court
generally has discretion to impose the sentences consecutively or
concurrently. (§ 669; People v. Woodworth (2016) 245 Cal.App.4th 1473, 1479
[“ ‘Absent an express statutory provision to the contrary, section 669 provides
that a trial court shall impose either concurrent or consecutive terms for
multiple convictions’ ”].)
On appeal, we review a trial court’s discretionary sentencing decision
for an abuse of discretion. (People v. Superior Court (Du) (1992) 5
Cal.App.4th 822, 831.) As such, we will not reverse absent a clear showing of
abuse. (People v. Bradford (1976) 17 Cal.3d 8, 20.) A judgment is presumed
correct on appeal, and it is the appellant’s burden to prove the trial court
committed error. (People v. Booth (2018) 25 Cal.App.5th 450, 452 (Booth).)
3 A person found guilty under section 288.7, subdivision (a) “shall be
punished by imprisonment in the state prison for a term of 25 years to life.”
(§ 288.7, subd. (a).) A person found guilty under section 288.7, subdivision (b)
“shall be punished by imprisonment in the state prison for a term of 15 years
to life.” (§ 288.7, subd. (b).)
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Here, the trial court’s sentencing decision was consistent with the
recommendation in the probation report calling for consecutive sentences
rather than concurrent sentences on three grounds: (1) the crimes and their
objectives were predominantly independent of each other; (2) the crimes were
committed at different times or separate places; and (3) the crimes involved
separate acts of violence or threats of violence. The prosecution also sought
consecutive sentences for counts 1–7 in its sentencing brief, arguing: “It is
the People’s position that the Court does not have discretion in sentencing
due to the nature of the acts, the multiple different acts and the sentencing
scheme for each charge.” Defendant, in his sentencing brief, argued for 25
years to life on count 1 with the remaining counts stayed or, alternatively, for
concurrent sentences.
At the sentencing hearing, the prosecutor again argued for consecutive
sentences, insisting that because defendant committed numerous separate
offenses, “the Court does not have the authority to run all the counts
concurrent.” Defendant, in turn, requested clemency and objected to
imposition of consecutive sentences. Following argument by counsel, the trial
court observed that Angelle’s trial testimony was “easily the worst testimony
I’ve had to sit and listen to and to observe the effect on a young person at
such a young age based on what happened.” The court then confirmed it read
and considered everything presented by the parties before indicating it would
follow probation’s recommendation. Accordingly, the court imposed
consecutive sentences on all seven counts.
On appeal, defendant speculates the trial court was unaware of its
discretion to impose concurrent terms, reasoning the court must have
adopted the prosecution’s mistaken position that consecutive sentences were
mandatory. Defendant’s mere speculation does not meet his burden to
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affirmatively demonstrate error on appeal. (See Booth, supra, 25 Cal.App.5th
at p. 452 [rejecting the contention that the court erroneously believed it had
no discretion to run § 288.7 sentences concurrently].) Moreover, it runs
counter to the well-established appellate rule that “[a]bsent evidence to the
contrary, we presume that the trial court knew and applied the governing
law.” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1390.)
We also note that, contrary to defendant’s claim, the trial court had no
obligation to “[make] clear [on the record] that it understood it had discretion
to impose concurrent sentences.” Under our statutory law, “a trial court is
not required to state its reasons for ordering one indeterminate term to run
consecutively to another indeterminate term. Section 1170, subdivision (c),
which requires the trial court to ‘state the reasons for its sentence choice on
the record at the time of sentencing,’ applies only to sentences imposed
pursuant to section 1170, i.e., determinate sentences.” (People v. Arviso
(1988) 201 Cal.App.3d 1055, 1058; see Cal. Rules of Court, rules 4.403,
4.406(b)(5).)
Finally, defendant’s case People v. Billingsley (2018) 22 Cal.App.5th
1076 is inapposite. Billingsley involved the retroactive application of an
ameliorative change in the law that granted trial courts new discretion to
strike firearm enhancements. At issue was whether, when the appellate
court applied the new law retroactively, the record made it clear the trial
court “would not have stricken the firearm enhancement . . . even if it had
that discretion . . . .” (Id. at pp. 1080–1081.) It was under that very different
circumstance that the appellate court held: “ ‘ “Defendants are entitled to
sentencing decisions made in the exercise of the ‘informed discretion’ of the
sentencing court.” ’ ” (Id. at p. 1081.)
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Here, there is no dispute on appeal the law at the time of sentencing
afforded the trial court discretion to impose concurrent or consecutive
sentences. Accordingly, for the reasons stated, we presume in the absence of
contrary evidence that the trial court’s sentencing order was a valid exercise
of discretion.4
DISPOSITION
The judgment is affirmed.
_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Simons, J.
_________________________
Wiseman, J.*
A165857/People v. Clifford Lamont Bunn
4Given this holding, we need not address defendant’s ancillary claim
that he received ineffective assistance based on his counsel’s failure to object
to the sentencing order. In any event, he appears mistaken. The record
reflects that defense counsel raised an objection to the imposition of
consecutive sentences at the hearing.
*Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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