People v. Flowers CA1/4 ( 2022 )

Filed 12/16/22 P. v. Flowers CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
A163739
v.
MICHAEL DENNIS FLOWERS, (Humboldt County
Super. Ct. No. CR2001175B)
Defendant and Appellant.
Defendant Michael Dennis Flowers appeals the judgment convicting
him of rape, sexual penetration and acquiring a prostitute, and sentencing
him to a total term of 160 years to life in prison. He contends, among other
things, that the trial court violated his right to a public trial, unlawfully
restricted his right to cross-examine the complaining witness, abused its
discretion in admitting evidence of his prior sexual offenses, improperly
instructed the jury on the use of propensity evidence, and erred in concluding
the prosecution had no duty to subpoena the complaining witness’s cell
phone. He also contends two 5-year terms imposed under Penal Code section
667, subdivision (a), must be stricken and the matter must be remanded for
resentencing because he was not properly advised of the penal consequences
of his admission to the three-strike sentence enhancement allegations. We
agree that the two 5-year prison terms must be stricken, but affirm the
judgment in all other respects.
1
Background
Defendant was charged by amended information with forcible rape
(Pen. Code,1 § 261, subd. (a)(2)), sexual penetration by foreign object (§ 289,
subd. (a)(1)(A)), and acquiring a prostitute (§ 266e). With respect to the first
two counts, the information alleged that defendant had suffered a prior sex
offense that resulted in a prior prison term (§ 667.6, subd. (a)); was a habitual
sex offender (§ 667.71); and had previously committed a serious or violent
felony while on state parole (§ 1203.085, subd. (b)). Regarding the final count,
the information charged that defendant committed the offense while on
parole following a term of imprisonment imposed for having committed an
earlier serious or violent felony (§ 1203.085, subd. (a)). As to all three counts,
the information alleged that defendant had suffered a prior conviction within
the meaning of section 1203, subdivision (e)(5), and had suffered three prior
serious or violent felony convictions within the meaning of section 667,
subdivision (b).
At trial, Jane Doe testified that in February 2020 she was living with
George Feack at his home.2 On February 21, 2020, Jane Doe was inside
Feack’s home when she overheard a phone conversation between Feack and
defendant in which they discussed her prostituting herself. When she
indicated that she was not a prostitute, Feack told her to shut up and
continued his conversation with defendant.
Later that day, she went for a drive with Feack and ended up at
defendant’s home. She asked Feack what they were doing there and told him
that she “ ‘[didn’t] want to do this,” but Feack reassured her that the visit had
1 All statutory references are to the Penal Code unless otherwise noted.
2At trial, Jane Doe testified that she was being kept in Feack’s trailer
against her will. Witnesses called by the defense challenged her testimony.
2
nothing to do with the earlier phone call and that defendant just wanted to
have dinner with them. Once inside, the three talked for a while and then
Feack asked her if she wanted to take a shower while she was there because
the water did not work at his home. While she was showering, defendant
came into the bathroom and gave her some clean clothes to wear. When she
returned to the main room, she saw that Feack was gone and that the couch
had been pulled open to a bed.
Jane Doe told defendant that she was not “a hooker or a prostitute or
anything like that.” Defendant did not care and told her to get on the bed.
She complied because she felt “scared” and “defeated,” and she thought it was
“a losing battle” at that point. She “already knew what he wanted to happen,
so [she] knew what was [going to] happen.” Once Jane Doe was on the bed,
defendant raped her and placed his hand into her vagina and anus. She did
not consent to any of these sexual acts, and she repeatedly told defendant
“No.” Afterward, defendant gave her $40 and told her to give the money to
Feack as the remainder of his payment for her. He told her that he had given
Feack $60 before Feack had left as partial payment. Defendant then drove
her back to Feack’s home. Before she got out of defendant’s truck, he asked
her to send him pictures of her. After Feack also reminded her about sending
the pictures, she sent the pictures to defendant. The next morning, she
received an unwanted “good morning” text message from defendant. At
Feack’s direction, she responded with “good morning.”
Jane Doe did not immediately report the assault to the police because
she did not want to be embarrassed about what happened. Later, however,
she told another male friend about it, who then reported it to the police.
When she first spoke with the police, she lied and denied that the assault had
3
occurred. Later the same day, after prompting by her friend, she returned to
the police station and gave her account of the assault.
On cross-examination, Jane Doe acknowledged that she had engaged in
consensual sexual relations with Feack both before and after defendant’s
assault. She also admitted that she used heroin and had at times been
addicted. Finally, she acknowledged that it was possible that defendant gave
Feack $40 and her $60, but that either way she was told to give Feack the
second payment when she returned to Feack’s home.
Police detectives testified regarding their interviews with Jane Doe,
defendant, Feack, and other witnesses.
The prosecution also introduced evidence that defendant had been
convicted in the early 1990s of three counts of continuous sexual abuse of a
minor arising from his molestation of three of his four stepdaughters (Doe M.,
Doe V., and Doe C.) who were all ages 10 or under at the time of the abuse.
Over defendant’s objection, each stepdaughter testified to the molestation
that occurred during the time defendant lived with them.
Defendant did not testify on his own behalf. He did call multiple
witnesses to support his defense that the assault was part of a consensual
encounter between himself and Jane Doe, who he asserted was a prostitute.
Sadie E., who had been a good friend of Feack for over 40 years, testified that
Jane Doe told her prior to the assault that she was interested in becoming a
prostitute and that she had exchanged sex for money previously. Feack
testified that Jane Doe had told him about having sex with another
unidentified man for money. He further claimed that Jane Doe had wanted
him to drive her to defendant’s trailer so she could prostitute herself. He
claimed that defendant gave him $40 for gas for driving Jane Doe to
defendant’s home.
4
The jury found defendant guilty of all three charges. In a bifurcated
proceeding, defendant admitted all of the enhancement allegations.
Defendant was sentenced to prison for an aggregate term of 160 years
to life and timely filed a notice of appeal.
Discussion
1. The court did not violate defendant’s right to a public trial.
Defendant’s trial, which occurred during the covid pandemic, was live
streamed via YouTube. Over defendant’s objection, during the testimony of
Jane Doe and the three victims of defendant’s prior sexual offenses, the video
portion of the broadcast was adjusted so that only the judge was visible. On
appeal, defendant contends his convictions must be reversed because the
court violated his right to a public trial by broadcasting only the audio
testimony of these witnesses. We disagree.
A criminal defendant has a right to a public trial that is guaranteed by
the Sixth and Fourteenth Amendments to the United States Constitution and
by article 1, section 15 of the California Constitution. (Waller v. Georgia
(1984) 467 U.S. 39, 46; People v. Woodward (1992) 4 Cal.4th 376, 382.)
“ ‘ “ ‘The requirement of a public trial is for the benefit of the accused; that
the public may see he is fairly dealt with and not unjustly condemned, and
that the presence of interested spectators may keep his triers keenly alive to
a sense of their responsibility and to the importance of their functions.’ ” ’ ”
(Waller, supra, at p. 46.) “In addition to ensuring that judge and prosecutor
carry out their duties responsibly, a public trial encourages witnesses to come
forward and discourages perjury.” (Ibid.) The right to a public trial creates a
“presumption of openness” that “ ‘may be overcome only by an overriding
interest based on findings that closure is essential to preserve higher values
and is narrowly tailored to serve that interest.’ ” (Id. at p. 45.) When such a
5
“‘higher value” is advanced, it must be “ ‘articulated along with findings
specific enough that a reviewing court can determine whether the closure
order was properly entered.’ ” (Ibid.)
Here, prior to opening argument, the prosecutor requested that “each of
the confidential victims during the course of the jury trial not be filmed
during the course of their testimony and broadcast via YouTube.” The
prosecutor acknowledged that “what they’re saying will be heard” but argued
that “to have their physical appearance broadcast is clearly something that
would violate their confidentiality interests.” The court did not initially place
a ruling on the prosecutor’s request on the record. Prior to Jane Doe’s
testimony, the court confirmed with the prosecutor that the request extended
to both the prior victims and Jane Doe. At the first break in Jane Doe’s
testimony, the court indicated that it needed “to put some matters on the
record then, and specifically those are as to the bench conferences with the
court.” The court explained that the trial was being livestreamed but that, at
the prosecutor’s request, Jane Doe was not being shown on the video. The
court allowed the parties to make a statement for the record and explained
its ruling.
The prosecutor argued, “Clearly, Mr. Flowers is being provided his
confrontation rights. He is present here represented by counsel. The witness
is testifying within the usual course. Jane Doe is a victim of rape and she
does have statutorily recognized confidentiality rights . . . . The impact on a
rape victim of having his or her testimony live streamed, just the verbal
aspect is significant in itself. To also have live stream via YouTube of his or
her physical presentation is a direct violation of their confidentiality rights.
[¶] . . . I recognize that we’re dealing with very unusual circumstances and
the court does have a need to address the public aspect of a trial. I think that
6
is clearly being met via the YouTube live streaming of the oral testimony
being provided. However, under unusual circumstances, which certainly
wouldn’t have anyone absent a significant weighing of various factors in the
particular request, there wouldn’t be any sort of recording or live streaming
or photography, anything of that nature, in particular of a rape victim. [¶] So
the People made the request that the Jane Does in this matter, both those for
the adjudicated offenses and for the ones that are presently being addressed
via this trial, not be subjected to the live streaming of their female
appearance during the course of the trial.”
Defense counsel acknowledged that Jane Doe is an alleged rape victim
but argued that “there’s a presumption that the courts in this country are
open. I think it’s a core value of our judicial system. It only seems appropriate
that all aspects of the trial be available to the public. It just so happens we’re
under unusual circumstances. And, yes, there’s a certain level of
intrusiveness. But as I indicated at bench, I think that is a small part of a
larger equation.”
The court responded that it was going to continue to maintain the
camera angle so that Doe and the prior victims could not be seen. The court
explained, “I’ll start here. That the courtroom is presumed to be open. It is a
public courtroom, and the court needs to honor any transparency that’s
appeared to the public in viewing the proceedings, and so that’s what we’re
doing. We’re . . . in somewhat unusual circumstances permitting the viewing
of the proceedings to the public. And we’re continuing to maintain that
because we have an open mic and we also have viewing of the courtroom. It’s
a limited viewing of the courtroom, and unfortunately right now it’s just me
pretty much. But my intent also would be to balance that with the impact
upon the victim. The victim in this particular matter is statutorily entitled to
7
confidentiality. That’s why we refer to the victim as Jane Doe. And as far as
that -- the necessity of placing her visage before the public by way of a live
streaming, I don’t have any request for any kind of filming or otherwise that
would be requiring a Rule 1.150 kind of filing or request. I don’t have
anything like that. We are live to the public, and I think the means by which
the court has positioned the camera continues to, with that in mind, maintain
the confidentiality of the victims who have requested their statutory right to
confidentiality.”
Initially, defendant contends that his public trial rights were violated
during Jane Doe’s testimony because “the court unilaterally and without
notice to the defense controlled and directed the camera and live feed to itself
so that when Jane Doe began her testimony the public could not view her but
only hear her testimony.” The record refutes his claim. As set forth above, the
court, prosecutor and defense counsel all acknowledged that the prosecutor’s
request regarding the live stream was discussed off the record prior to Jane
Doe’s testimony. That the matter was put “on the record” after Jane Doe
started her testimony does not establish that the decision was made
unilaterally and without notice to defendant.
Defendant also argues that while the court “recognized a ‘presumption’
of openness,” the court’s comments demonstrate its “ignorance” of the
principles that support that presumption. In support of his argument,
defendant relies on the following colloquy between the court and defense
counsel: “[DEFENSE COUNSEL]: . . . First and foremost, Ms. Doe is an
alleged rape victim. I’ll make that clear for the record. . . .[¶] [THE COURT]:
And just so that’s clear, we’re not referencing her in front of the jury as a
victim or a rape victim. So making that clear. [The prosecutor] is doing that
only before the court for the purpose of this argument. [¶] But, yes, go ahead.
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[¶] [DEFENSE COUNSEL]: Sure. At the same time, we’re live streaming, so
it’s significant for Mr. Flowers. [¶] [THE COURT]: They’re not the jury.
[¶] [DEFENSE COUNSEL]: That’s true.” Contrary to defendant’s suggestion,
the court’s comment that the viewers are “not the jury” does not demonstrate
a misunderstanding of the import of defendant’s public trial right. The court
was merely noting that referring to Jane Doe as a victim before anyone
watching the livestream was not the same as referring to her as a victim in
front of the jury.
Finally, defendant argues that the court erred in concluding that the
witnesses’ confidentiality rights outweighed his right to a public trial. In
United States v. Allen (9th Cir. 2022) 34 F.4th 789, 797, the court explained
that the test for “determining whether a particular closure order violates a
defendant’s public trial right changes depending on whether the courtroom
closure is total or partial. A total closure of the courtroom means that ‘all
persons other than witnesses, court personnel, the parties and their lawyers
are excluded for the duration of the hearing’ [citation]. A partial closure
means the court has excluded only a limited number of persons from the
courtroom, either for the duration of the proceeding or for a limited period of
time (such as during one witness’s testimony). [Citation]. [¶] Before ordering
a total closure, the court must determine that there is ‘an overriding interest
based on findings that closure is essential to preserve higher values.’
[Citation.] If there was only a partial closure, there must be a substantial
interest, rather than an overriding interest, for the closure.”
In United States v. Allen, supra, 34 F.4th at page 797, the court held
that the trial court’s decision to preclude the public from attending the trial
as a result of the Covid-19 pandemic and to allow only audio access of the
trial resulted in the total closure of the defendant’s trial. The court explained
9
that “[f]or purposes of the public trial right, an audio stream is not
substantially different than a public transcript,” which has consistently been
found insufficient to protect a defendant’s public trial right. (Id. at p. 796,
citing Waller v. Georgia, supra, 467 U.S. at p. 43 [holding that a defendant’s
public trial right was violated even though the district court released a
transcript of the closed proceedings to the public].) We disagree that there is
no significant difference between livestreamed oral testimony and a
transcript. “[T]ranscripts of testimonial evidence” fail to “fully reflect what
was communicated by the testifying witness” because they “cannot capture
the sweaty brow, the shifty eye, the quavering voice.” (In re Schoenfield (2d
Cir. 1979) 608 F.2d 930, 935.) Livestreaming oral testimony, however, allows
the listener to hear the witness’s voice, any pauses or sobs and to evaluate
the volume and confidence with which she testifies. Thus, we question
whether it is accurate to characterize the courtroom as closed when all
testimony was contemporaneously livestreamed to the public. 3 In any event,
3 The Attorney General’s argument that the closure was only partial
since it applied only to the testimony of certain witnesses mischaracterizes
the distinction. Whether a closure is total or partial turns on whether some or
all of the public is excluded from the courtroom. (People v. Esquibel (2008)
166 Cal.App.4th 539, 552 [“[T]here are two types of exclusions: a total closure
where all spectators are directed to leave the courtroom and a partial closure
where some, but not all, spectators are asked to leave.”].) In each of the cases
cited as examples of partial closures only some members of the public were
excluded. (See People v. Woodward, supra, 4 Cal.4th at p. 381 [exclusion of
“additional spectators” but not preexisting spectators]; People v. Bui (2010)
183 Cal.App.4th 675, 679 [exclusion of “three spectators, including two family
members”]; People v. Esquibel, supra, at p. 552 [exclusion of two spectators].)
In this case, if livestreaming audio is deemed the closure of the courtroom,
the closure would be considered total as all members of the public were
excluded.
10
even if so considered, the order was narrowly tailored and essential to protect
the witnesses’ overriding privacy interests.
Jane Doe and the prior victims have certain rights under the Victims’
Bill of Rights Act of 2008. (Cal. Const., art. I, § 28, subd. (a)(3) [enumerated
rights are “personally held and enforceable” by victims].) Victims of crimes
are “[t]o be treated with fairness and respect for his or her privacy and
dignity, and to be free from intimidation, harassment, and abuse, throughout
the criminal . . . justice process” and “[t]o be reasonably protected from the
defendant and persons acting on behalf of the defendant.” (Cal. Const., art. I,
§ 28, subd. (b)(1) & (2).) Ordinarily the assertion of these witnesses’
“confidentiality rights” would not shield the witnesses from testifying in open
court. (See, e.g., People v. Baldwin (2006) 142 Cal.App.4th 1416, 1421 [closing
courtroom during testimony of 14-year-old molestation victim based only on
prosecutor’s assertion of victim’s discomfort violated defendant's Sixth
Amendment right to public trial.) The circumstances in which this ruling
were made, however, are far from ordinary.
Defendant’s trial was held in March 2021. At that time, the trial court
remained under orders restricting in-person access by members of the public
to trial proceedings and permitting the use of available technology to conduct
remote judicial proceedings. (See ;
;
;
[all links as of Dec. 16, 2022].)4 The decision to livestream
defendant’s trial on YouTube was a reasonable means of protecting
defendant’s right to a public trial under these circumstances. Livestreaming,
however, undeniably expands the potential audience, permanence, and
reproducibility of the testimony, and limits the judge’s ability to manage the
courtroom. As the trial court observed, there are rules that govern when
cameras may be used in a courtroom. (See Cal. Rules of Court, rule 1.150;
People v. Dixon (2007) 148 Cal.App.4th 414, 440 [“Although the public has a
legitimate interest in these cases, its interest can be protected without the
additional intrusion of a camera in a proceeding that invokes mostly sensitive
information, including . . . testimony from adult and minor victims of sex
crimes.”].) The court has no such control over a livestream. The court
expressly noted that it “knows that there have been instances of recording —
an unauthorized recording of YouTube videos of court proceeding[s].”5
Defendant contends the court erred by failing to conduct a hearing at
which the witnesses could personally express their privacy concerns
regarding the livestream. He argues that the witnesses “never asserted that
they could not physically or mentally testify” if their appearance was
broadcast on YouTube or that they would refuse to testify if the court denied
4Effective June 23, 2021, the Humboldt County Superior Court
reopened for public trials and ended its practice of broadcasting trials on
YouTube.
5 The court’s comment was made in connection with its ruling closing
the livestream during the pretrial hearing on the admissibility of the prior
victims’ testimony under Evidence Code section 1108. The court and parties
agreed that the testimony should not be live streamed because it might taint
the jury pool should the evidence ultimately be excluded. The potential
unauthorized recording of trials livestreamed on YouTube is thus relevant to
the privacy concerns being balanced by the court.
12
the prosecutor’s request. There is, however, no requirement the trial court
hold an evidentiary hearing before closing proceedings. (People v. Baldwin,
supra, 142 Cal.App.4th at p. 1422.) Nor is there a requirement that the court
make findings that the witness would be unable or unwilling to testify absent
the restriction. Rather, the court must identify the compelling interest that
would likely be prejudiced if the proceedings were open without restriction,
and articulate the reasons for its ruling sufficient to permit appellate review.
The protection of victims of sex crimes “from further trauma and
embarrassment” is a compelling interest deserving of protection. (Baldwin,
supra, at p. 1421, citing Globe Newspaper Co. v. Superior Court (1982) 457
U.S. 596, 607.) The court found that interest was likely to be prejudiced as a
result of the court’s inability to control certain aspects of the livestream. No
further evidence was necessary for the court to evaluate the competing
interests at stake. In the circumstances of this case, the court did not err in
failing to hold a separate evidentiary hearing.
The increased intrusion into the witnesses’ privacy occasioned by the
livestreaming of their testimony was an overriding interest that made limited
closure essential. This is undoubtedly true with respect to defendant’s prior
victims. Because defendant was convicted of the prior offenses, any concern
regarding their truthfulness was negligible but their interest in protecting
their privacy was significant. While the balance may be somewhat closer with
regard to Jane Doe, we nonetheless agree that her interest in protecting her
privacy was sufficient to overcome defendant’s interest in a fully public trial.
Contrary to defendant’s argument, the closure was narrowly tailored.
Although the oral livestream had its limitations, it was undoubtedly
preferable to a transcript because, as discussed above, it offers listeners
significant means of evaluating the credibility of the witnesses. (See Lappin
13
v. State (2021) 171 N.E.3d 702, 707 [limiting livestream of trial proceedings
during voir dire to audio only in order to protect the privacy interests of the
venire panel was reasonable accommodation in light of global pandemic].)
Defendant faults the court for failing to consider sua sponte other
alternatives, including the use of closed-circuit video to broadcast the
witnesses’ testimony in an unused courtroom. Because this alternative was
not raised, it is not possible on this record to determine the feasibility of this
suggestion. Given the circumstances, the court implemented a reasonable
and narrowly tailored alternative to the traditional public trial.
Accordingly, the trial court did not violate defendant’s right to a public
trial.
2. The court did not prejudicially limit defendant’s cross-examination of
Jane Doe.
“A criminal defendant’s constitutional right to confront witnesses is
violated when the court prohibits the defendant from conducting otherwise
appropriate cross-examination designed to show a prototypical kind of bias on
the witness’s part, and thereby provide the jury with facts from which it could
appropriately draw inferences regarding the witness’s reliability.” (People v.
Sanchez (2016) 63 Cal.4th 411, 450.) This includes cross-examination
regarding whether and to what extent the witness “expected or hoped” to
benefit from his or her testimony. (Id. at p. 451.)
Here, prior to trial, defendant filed a motion to confirm that Jane Doe
would be subject to cross-examination regarding an incident that occurred in
September 2020 during which she was detained by the police based on a
report that she had been shoplifting and that during that incident the police
seized methamphetamine and heroin from her purse. Defendant sought to
cross-examine her regarding, among other things, “[t]he existence or
nonexistence of a bias, interest, or other motive.” (Evid. Code, § 780,
14
subd. (f).) The motion explained, “The People advised that no charges were
filed, but the de facto arrest at Ray’s Food is still within the one-year time
period in which charges could be brought. Defense counsel is entitled to
ascertain whether any member of the prosecutorial team made any promises,
assurances, or inducements to Ms. Doe (however described) regarding
whether or not she was effectively given a ‘pass.’ ” In arguing the motion,
defense counsel emphasized, “I’m not pointing fingers at anybody here or
saying I know what happened. Frankly, it didn’t happen. The prosecution
didn’t happen. And I think a jury should have the ability to know about that
in order to infer whether or not there’s an attempt to sanitize Ms. Doe and,
therefore, have her credibility more impacted before . . . Mr. Flowers come[s]
before a jury.” The court ruled that Jane Doe could be cross-examined
regarding the theft incident and her related possession of heroin. The court,
however, prohibited defense counsel from asking Jane Doe whether she was
ever prosecuted for those possible crimes. The court explained, “I’m not going
to allow some kind of foray into speculation about the People’s motivation in
charging or not charging this particular incident. . . . [¶] I would assume that
if there’s some consideration given for not prosecuting her on that, [the
prosecution would] comply with [its] discovery obligation and let [the defense]
know. And that’s not the case here, so we’re not going to go into it for some
kind of exploration of the People -- the People providing her some undue
consideration or consideration whatsoever for her testimony.”
Prior to commencing his cross-examination of Jane Doe, defense
counsel sought to make a record of his objection. Counsel stated, “I was
intending to inquire of her a very simple point-blank question without detail,
which is whether she was ever prosecuted for that crime. And the court has
indicated that it would preclude me from asking that question, and I just
15
want to lodge my objection on the record.” The court reiterated its ruling
noting, “Well, obviously the question, the added question, would be for the
purposes of inferring at least that Ms. Doe is receiving some sort of
preferential treatment or otherwise by the People. I simply don’t have any
evidence of that. [¶] And in balancing the inquiry under Evidence Code
section 352, I do think that misapprehension given the fact that there’s no
evidence and there’s no indication that she's receiving any other kind of
dispensation for her testimony, obviously that would be discoverable. People
would be duty bound, ethically bound, to disclose that if there was some sort
of remuneration or dispensation given for her testimony. So they have not
done that. [¶] And so I’m weighing the prejudicial value versus the probative
effect of that particular question. I am permitting -- and there was an inquiry
-- and I appreciate that -- an inquiry whether we would be -- defense would be
allowed to go into the theft incident and the discovery of heroin, and I
indicated that, yes, we -- that defense would be able to inquire into both of
those areas. I think we’ve made a record of that already. . . . So I’m gonna
leave it at that, and I’ll preclude the inquiry relative to any kind of
prosecution for those offenses.”
Despite the court’s ruling, the fact that Jane Doe was never prosecuted
came out during the course of cross-examination. Doe testified that, in
September 2020, she “came in contact” with the police because she was
suspected of shoplifting. On cross-examination, when defense counsel
attempted to question her about her “arrest,” Doe responded that she had
“never been arrested. There was a citation.” When counsel sought to confirm
that she received a citation for petty theft, Doe replied, “Yes. It was thrown
out.” She then repeated, “It was thrown out.” She added, “I was never
charged” and have “never been arrested in my life.” Defense counsel then
16
confirmed that when the police issued the citation, they found heroin and
methamphetamine in her purse. When asked if she was prosecuted for that,
Doe replied, “No, sir.”
On appeal, defendant contends the trial court impermissibly restricted
his cross-examination of Jane Doe by prohibiting “inquiry into Doe’s
motivation to accuse and testify that [he] sexually assaulted her.” The
Attorney General reasonably responds that any possible error in the court’s
pretrial ruling “was harmless because the question was ultimately asked and
answered anyway.” In his reply, defendant suggests the Attorney General is
reading the court’s ruling too narrowly and that “the court’s ruling was much
broader.” He argues that the court “prohibited inquiry of Doe as to the reason
for the failure-to-charge and whether the failure to charge acted as an
inducement to testify and affected the content of her testimony.” He
continues, “The fact counsel specifically objected to not being able to ask a
specific question does not constitute adoption of the court’s entire ruling
which not only prohibited the question but cut-off inquiry as to how the
failure to prosecute affected Doe’s decision to testify and her actual
testimony.”
For the most part, we agree with the Attorney General’s interpretation
of the record. The record contains no indication that defense counsel
expressed a desire to ask Jane Doe whether she subjectively believed the lack
of prosecution was related to her testimony in this case. As set forth above, in
arguing the in limine motion to the court, defense counsel focused on the fact
that the case was referred by police to the prosecutor’s office, but the
prosecution decided not to charge the case. The prosecutor explained that she
was not the “reviewing deputy” on the shoplifting report and that the matter
would have been reviewed and rejected by someone with “no independent
17
knowledge of Jane Doe’s involvement” in defendant’s case. The trial court
correctly noted that the prosecution would have been required to disclose any
promises made by the prosecution in relation to Jane Doe’s testimony. Absent
a factual basis to believe some inducement had been made by the prosecutor,
the court reasonably limited the scope of cross-examination under Evidence
Code section 352.
3. The court did not abuse its discretion in admitting testimony regarding
defendant’s prior sex offenses.
As noted above, evidence was introduced that defendant had three
prior convictions for the continuous sexual abuse of a minor and his three
victims were permitted to testify as to the details of defendant’s abuse.
Defendant does not challenge the admission of his prior convictions but
claims that the trial court committed reversible error when it allowed the
victims to testify as to the details of the abuse. He argues that the victims’
testimony was erroneously admitted under Evidence Code sections 1108 and
352 because it was irrelevant, remote and inflammatory propensity evidence.
As a general rule, evidence of a person’s character is inadmissible to
prove conduct on a specific occasion. (Evid. Code, § 101, subd. (a).); People v.
Ewoldt (1994) 7 Cal.4th 380, 393.) Thus, evidence of other crimes or bad acts
is generally inadmissible when offered to show a defendant had the criminal
disposition or propensity to commit the crime charged. (Ibid.)
Evidence Code section 1108 creates an exception to this general rule by
expanding the admissibility of disposition or propensity evidence in sex
offense cases. (People v. Falsetta (1999) 21 Cal.4th 903, 911.) Subdivision (a)
of section 1108 provides that “[i]n a criminal action in which the defendant is
accused of a sexual offense, evidence of the defendant’s commission of another
sexual offense or offenses is not made inadmissible by Section 1101, if the
evidence is not inadmissible pursuant to [Evidence Code section] 352.” As the
18
Supreme Court explained in Falsetta, section 1108 of the Evidence Code “was
intended in sex offense cases to relax the evidentiary restraints section 1101,
subdivision (a), imposed, to assure that the trier of fact would be made aware
of the defendant’s other sex offenses in evaluating the victim’s and the
defendant’s credibility.” (Falsetta, supra, at p. 911.) “[T]he Legislature’s
principal justification for adopting section 1108 was a practical one: By their
very nature, sex crimes are usually committed in seclusion without third
party witnesses or substantial corroborating evidence. The ensuing trial often
presents conflicting versions of the event and requires the trier of fact to
make difficult credibility determinations. Section 1108 provides the trier of
fact in a sex offense case the opportunity to learn of the defendant’s possible
disposition to commit sex crimes.” (Falsetta, supra, at p. 915.)
In determining whether to admit Evidence Code section 1108
propensity evidence, trial courts “must engage in a careful weighing process
under section 352” of the Evidence Code by “consider[ing] such factors as its
nature, relevance, and possible remoteness, the degree of certainty of its
commission and the likelihood of confusing, misleading, or distracting the
jurors from their main inquiry, its similarity to the charged offense, its likely
prejudicial impact on the jurors, the burden on the defendant in defending
against the uncharged offense, and the availability of less prejudicial
alternatives to its outright admission, such as admitting some but not all of
the defendant’s other sex offenses, or excluding irrelevant though
inflammatory details surrounding the offense.” (People v. Falsetta, supra, at
p. 917 [Evidence Code section 1108 does not violate due process principles
and, thus, is constitutionally valid, because it subjects evidence of uncharged
sexual misconduct to the weighing process of Evidence Code section 352 in
19
sex crime prosecutions].) The court’s ruling under section 1108 is subject to
review for abuse of discretion. (People v. Loy (2011) 52 Cal.4th 46, 61.)
Initially, defendant contends and the People concede that the
prosecutor failed to timely disclose the three prior victims as witnesses.
Under Evidence Code section 1054.7, witness disclosures shall be made 30
days before trial. If a party fails to comply with its discovery obligations, a
trial court may issue any order necessary to enforce the discovery statutes,
including, but not limited to “delaying or prohibiting the testimony of a
witness or the presentation of real evidence [or] continuance of the matter.”
(Evid. Code, § 1054.5, subd. (b).) The court, however, may not prohibit the
testimony of a witness unless “all other sanctions have been exhausted.”
(Evid. Code, § 1054.5, subd. (c).) Here, the prosecution disclosed the probation
report from defendant’s prior convictions on February 19 and included a
request to admit evidence regarding the prior convictions in its February 26
trial brief. Jury selection commenced on March 8 and the court ruled on the
admissibility of the evidence on March 11. The witnesses testified on March
29. Although defendant objected to the timeliness of the request in written
opposition filed on March 5, he indicated that he was not seeking a
continuance of the trial, as such would interfere with his right to a speedy
trial, and argued the proper remedy was exclusion of the witnesses’
testimony. At no point, however, has defendant explained how he was
prejudiced by the delayed disclosure of the Evidence Code section 1108
evidence. In fact, the witnesses did not testify until well after the trial had
commenced. The trial court did not abuse its discretion in impliedly rejecting
defendant’s request to exclude the testimony because of a delay in discovery.
Nor did the trial court abuse its discretion in admitting the witnesses’
testimony. There is no dispute that the prior offenses qualified as sexual
20
offenses within the meaning of Evidence Code section 1108. The court
reasonably concluded that the probative value of the prior offenses
outweighed the potential prejudice under Evidence Code section 352. Noting
that this was a “a difficult, difficult call” with “similarities and
dissimilarities,” the trial court found the sexual offenses similar in that they
involved digital penetration with significant pain and bleeding and in both
the prior and current offenses, defendant ignored the victims when they told
him to stop. The court found that due to these similarities, the evidence was
probative of the issue of consent in the present case. The court reasonably
concluded that the propensity evidence would not confuse or distract the
jurors from their main inquiry. Defendant pled guilty to three counts of
continuous sexual abuse of a minor (§ 288.5) and although he was not
convicted of the underlying forcible sexual acts to which the prior victims
testified, there is nonetheless certainty that the acts were committed, if not
forcefully. Having been convicted and served time in prison, there is little
likelihood the jury would wrongly convict him in the present case in
retribution for the prior offenses. The presentation of the evidence did not
result in undue consumption of time. The victims’ testimony combined spans
only 30 pages in the transcript. While the convictions are arguably remote,
defendant was in custody for almost all of the intervening time and re-
offended shortly after his parole. Finally, the trial court noted that while the
age of the prior victims is something the jury might consider, the testimony
did not rise to the level of inflammatory when compared to the acts on trial.
Recognizing that this is a close case, we cannot say that the trial court
abused its discretion in admitting the evidence.
21
4. Defendant’s illegal conduct came within the meaning of section 266e.
Under section 266e, “Every person who purchases, or pays any money
or other valuable thing for, any person for the purpose of prostitution as
defined in subdivision (b) of Section 647, . . . is guilty of a felony punishable
by imprisonment in the state prison for 16 months, or two or three years.”
Section 647 states in relevant part that “ ‘prostitution’ includes any lewd act
between persons for money or other consideration.” (§ 647, subd. (b)(4).) The
jury was instructed, “To prove that the defendant is guilty of acquiring a
person for the purpose of prostitution the People must prove that: [¶] 1.) The
defendant purchased or paid any money or other valuable thing for a person;
and [¶] 2.) The defendant did so for the purpose of prostitution . . . .”
Defendant contends that he could not be found guilty of violating
section 266e because, under the prosecution’s theory, Jane Doe was not a
prostitute. He argues, “On its face section 266e contemplates two separate
and distinct acts of payment. The first act involves the statutory element of
‘purchases, or pays any money or other valuable thing for any person.’ The
second act, which is necessarily part of the definition of ‘prostitution’ as
defined in . . . section 647, subdivision(b)(4), includes ‘any lewd act between
persons for money or other consideration.’ While this second act which is
necessary for prostitution is not an element of [section] 266e, the intent to
commit an act of prostitution – a lewd act between persons for money – is an
essential element. It is this element, which necessarily includes a ‘prostitute’
who is acting for money, that is omitted by the People’s and court’s
construction of section 266e.” (Italics omitted.)
Contrary to defendant’s argument, whether Jane Doe was actually a
prostitute or engaged in acts of prostitution is irrelevant to defendant’s
violation of section 266e. The relevant inquiry is as to defendant’s intent in
22
making the payment. In People v. Lewis (1904) 141 Cal. 543, 545 the court
held, under former section 267, which made it unlawful to take away a
female under the age of 18 years from a person having the legal charge of her
person “for the purpose of prostitution, that “the actual placing in a house of
prostitution is not made an essential element of the crime by the statute. It is
the taking from the parent or other person having the legal charge of her
person, for the prohibited purpose, that constitutes this crime.” The court
added, “ ‘The gravamen of the offense is the purpose or intent with which the
enticing and abduction is done, and the offense is complete whenever the
abduction for the prohibited purpose is complete, no matter whether any
sexual intercourse result or not.’ ” (Ibid.) Here, Jane Doe’s testimony
established that defendant paid Feack for her and defendant’s witnesses
established that he intended the payment to be for purposes of prostitution.
When Jane Doe clarified that she was not a prostitute, he indicated that he
did not care and sexually assaulted her. The crime was complete once the
first payment was made to Feack.
5. Any instructional error regarding the use of propensity evidence to prove
defendant’s violation of section 266e was harmless.
Defendant contends the jury was incorrectly instructed that it could
use his prior convictions, admitted under Evidence Code section 1108, to help
prove he was guilty of acquiring a prostitute in violation of section 266e. As
defendant notes, the use of his prior convictions in this manner would not
have been permissible because section 266e is not a sexual offense under
Evidence Code section 1108, subdivision (d).
“We independently review whether the trial court accurately
instructed the jury. [Citation.] We review the allegedly erroneous instruction
in the context of the evidence presented at trial. [Citations.] We review the
instructions as a whole [citation], with the assumption that jurors are
23
‘capable of understanding and correlating’ all of the instructions given
[citation]. [¶] . . . Our duty is to determine ‘whether there is a reasonable
likelihood that the jury misunderstood and misapplied the [allegedly
erroneous] instruction.’ ” (People v. Martinez (2019) 34 Cal.App.5th 721, 728.)
The jury was given two instructions regarding the use of propensity
evidence. First, with respect to the use of defendant’s prior convictions as
propensity evidence, the jury was instructed in relevant part, “The People
presented evidence that the defendant committed the crimes of continuous
sexual abuse of a child, Doe C; continuous sexual abuse of a child, Doe V; and
continuous sexual abuse of a child, Doe M that were not charged in this case.
. . . [¶] . . . [¶] If you decide that the defendant committed the uncharged
offenses, you may, but are not required to, conclude from that evidence that
the defendant was disposed or inclined to commit sexual offenses, and based
on that decision, also conclude that the defendant was likely to commit and
did commit rape and/or penetration with a foreign object as charged here.”
(CALCRIM No. 1191A.) The jury was instructed regarding the use of the
charged offenses as propensity evidence as follows: “The People presented
evidence that the defendant committed the crimes of rape and penetration
with a foreign object charged in counts one and two. [¶] If the People have
proved beyond a reasonable doubt that the defendant committed one or more
of these crimes, you may, but are not required to, conclude from that evidence
that the defendant was disposed or inclined to commit sexual offenses, and
based on that decision, also conclude that the defendant was likely to commit
and did commit the other sex offenses charged in this case.” (CALCRIM No.
1191B.) (Italics added.) The jury was not instructed that a violation of section
266e is not a sex offense.
24
Defendant contends that based on the above instructions, the jury
could use his prior convictions to find he committed the charged rape and/or
sexual penetration and then use his guilt as to the charged rape and/or
sexual penetration to conclude he committed the charged section 266e
offense. He argues that absent a clarifying instruction, the jury would
necessarily have understood the violation of section 266e, and the lesser
included offense of soliciting another person to engage in an act of
prostitution in violation of section 647, subdivision (b),6 to be “the other sex
offenses charged in this case.”
The Attorney General agrees that “some of the wording of CALCRIM
No. 1191B, as given in this matter . . . is somewhat vague and not the model
of clarity,” but argues that it is not likely that the jury believed it could use
defendant’s guilt for the crimes of rape and penetration with a foreign object
as propensity evidence to help prove that he was also guilty of a violation of
section 266e. We disagree with the Attorney General’s argument. Indeed, the
most reasonable interpretation of “the other sex offenses charged in this case”
is that the instruction refers to crimes charged under count 3. While neither
of the crimes charged under count 3 are sex offenses within the meaning of
Evidence Code section 1108, given their references to prostitution, a
reasonable jury would likely characterize them as sex offenses. The reference
in the instruction to “other charged sex offenses” confirms that
understanding.
The error, however, was harmless. (People v. Watson (1956) 46 Cal.2d
818, 836.) Defendant admitted the necessary elements of the offense.
Defendant did not dispute that he paid a total of $100 for the purpose of
A violation of section 647 is also not an enumerated sex offense under
6
Evidence Code section 1108, subdivision (d).
25
prostitution. It is also undisputed that he directly paid Feack $40 at a
minimum for bringing Jane Doe to his home. While Feack characterized the
$40 payment as “gas money” it was, nonetheless, a payment intended to
secure a person for purposes of prostitution.
6. The prosecution did not commit Trombetta/Youngblood 7 error by
failing to obtain Jane Doe’s phone.
As part of the investigation in this matter, the police seized defendant’s
cell phone and the data obtained from the phone was disclosed to the defense.
The court denied, however, defendant’s motion to compel discovery of Jane
Doe’s cell phone and related data and records. The trial court explained,
“what defense is requesting here is that the court order prosecution to seize a
person unsuspected of a crime’s phone and do a digital dump and then turn
that over. I -- that is beyond discovery.”
At trial, defense counsel argued that because the police did not obtain
the data from Jane Doe’s phone, it was difficult to get a full understanding of
what happened between defendant and Jane Doe. He suggested, “if the law
enforcement had simply asked for [her phone] and had been able to extract
[the data], . . . we would have been able to show that Jane Doe had an
independent communication with Mr. Flowers for the transaction, an
exchange of money for sex.” Defense counsel explained that it was
“infuriating” that he was unable to subpoena the phone and its data without
cooperation of law enforcement.
7California v. Trombetta (1984) 467 U.S. 479, 489 (Trombetta) and
Arizona v. Youngblood (1988) 488 U.S. 51, 57 (Youngblood) collectively
recognize that law enforcement agents have a constitutional duty to preserve
evidence that might be expected to play a significant role in a suspect’s
defense.
26
After his conviction, defendant filed a new trial motion in which he
reasserted his contention that the prosecution’s failure to seize and search
Jane Doe’s cell phone violated his due process rights. The court denied the
motion and defendant now challenges the denial. He contends his conviction
must be reversed because law enforcement failed to collect and preserve Jane
Doe’s cell phone, which they knew contained “material exculpatory evidence
(defendant’s cellphone number) and may reasonably have contained
additional exculpatory evidence—i.e., the alleged victim may be a prostitute
who consented to the sex acts.” We review the trial court’s factual
determinations regarding the potential exculpatory value of the evidence
under the substantial evidence standard of review by “viewing the evidence
in the light most favorable to the superior court's finding.” (People v. Roybal
(1998) 19 Cal.4th 481, 510.) Whether the police had a constitutional duty to
gather the potentially exculpatory evidence we review independently. (See
People v. Uribe (2008) 162 Cal.App.4th 1457, 1473 & fn. 19.)
The Attorney General points out that, without dispute, the phone was
never in the possession of the police, and contends the police had no
obligation to obtain the phone, with or without Jane Doe’s consent. We agree.
Although the United States Supreme Court held in Trombetta and
Youngblood that the failure to preserve evidence can violate due process
under some circumstances, it has not held that due process requires the
collection of evidence. (People v. Frye (1998) 18 Cal.4th 894, 942–943,
overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22.) Likewise, although the California Supreme Court “has suggested that
there might be cases in which the failure to collect or obtain evidence would
justify sanctions against the prosecution at trial, [the court has] continued to
recognize that, as a general matter, due process does not require the police to
27
collect particular items of evidence.” (People v. Frye, supra, 18 Cal.4th at
p. 943; see also People v. Montes (2014) 58 Cal.4th 809, 837 [reiterating that
“[g]enerally, due process does not require the police to collect particular items
of evidence”]; see also People v. Hogan (1982) 31 Cal.3d 815, 851 [“police
cannot be expected to ‘gather up everything which might eventually prove
useful to the defense’ ”] disapproved on different ground in People v. Cooper
(1991) 53 Cal.3d 771, 836, 809.) Defendant has cited no case to the contrary.
Even if Trombetta and Youngblood’s reasoning could be extended to
include collection of evidence, it would be the defendant’s burden to
demonstrate that the evidence would have been exculpatory and that the
failure of investigators to collect the evidence was in bad faith. (People v.
Frye, supra, 18 Cal.4th at pp. 943–944; People v. Montes, supra, 58 Cal.4th at
pp. 835–838.) Here, as the prosecutor argued, insofar as defendant was
seeking to discover communications between Jane Doe and defendant, “the
communications of back and forth, both the receiving and the sent
communications, would likely be contained within the extraction from
[defendant’s] phone.” Defendant had access to that information without
seizure of Jane Doe’s phone. To the extent that defendant was seeking
communications between Jane Doe and others that might reveal whether
Jane Doe was a prostitute, his argument is entirely speculative.
7. There is no cumulative prejudice.
Defendant contends that the errors discussed above collectively
resulted in cumulative prejudice that requires reversal of all convictions.
However, we have concluded there was only a single instructional error that
was not prejudicial. There were no other errors to cumulate and defendant is
not entitled to relief. (See In re Reno (2012) 55 Cal.4th 428, 483 [without a
28
showing of legal error, no relief on cumulative error, as “there was no error to
cumulate”].)
8. Defendant’s sentence must be corrected.
The trial court imposed prison terms of 75 years to life on counts 1 and
2 based on defendant’s admission to the section 667.71 and three-strike
sentence enhancement allegations.8 The court ordered the terms to run
consecutively because “these are separate events, sexual events, and . . . a
consecutive term is appropriate in those circumstances.” On count 3, the
court sentenced defendant to a term of 25 years to life, which was stayed
pursuant to section 654. Finally the court imposed two consecutive, five-year
terms under section 667, subdivision (a).
Defendant contends that the two 5-year terms imposed under
section 667, subdivision (a) must be stricken because no section 667,
subdivision (a) enhancements were pled in the first amended complaint. The
Attorney General agrees. Accordingly, we shall strike the two 5-year terms.
Defendant also contends that the sentences imposed on counts 1 and 2
should be vacated and the matter remanded for resentencing because the
trial court misstated the consequences of his admissions to the three-strike
enhancement allegations. As to the three-strike enhancement allegations, the
court advised defendant before he admitted the allegations that if the
allegations were found true, that “would make your conviction for either of
the felonies in this particular matter susceptible to a term of 25 years to life
in state prison.” The court never advised defendant that his three strikes law
8 As relevant here, section 667.71 required that defendant be sentenced
to terms of 25 years to life on his convictions for rape and sexual penetration.
Under the three strikes law, section 667, subdivisions (b)-(i), those terms
were tripled. In People v. Murphy (2001) 25 Cal.4th 136, 154, the court held
that sentencing under both the three strikes law and section 667.71 is proper.
29
admissions would triple the 25-year-to-life term as required by section
667.71. The Attorney General concedes that the court misstated the
consequences of those admissions but argues that “a fair reading of the record
reveals that appellant’s admissions were still made knowingly and
voluntarily.”
In In re Yurko (1974) 10 Cal.3d 857, 864, the court held, “as a judicially
declared rule of criminal procedure,” that an accused, before admitting a
prior conviction allegation, must be advised of “the precise increase” in the
prison term that might be imposed, the effect on parole eligibility, and the
possibility of being adjudged an habitual criminal. “The failure to so advise
an accused in the enumerated instances will constitute error which, if
prejudice appears, will require the setting aside of a finding of the truth of an
allegation of prior convictions.” (Ibid.) In People v. Cross (2015) 61 Cal.4th
164, 171, the court confirmed that failure to advise a defendant as to the
penal consequences of this admission to a prior conviction is not reversible
error per se. Rather, “the test for reversal is whether ‘the record affirmatively
shows that [the guilty plea] is voluntary and intelligent under the totality of
the circumstances.’ ” (Ibid.)
In People v. Wrice (1995) 38 Cal.App.4th 767, 770–771, the court noted
that “unlike the admonition required for a waiver of constitutional rights,
advisement of the penal consequences of admitting a prior conviction is not
constitutionally mandated. Rather, it is a judicially declared rule of criminal
procedure. [Citations.] Consequently, when the only error is a failure to
advise of the penal consequences, the error is waived if not raised at or before
sentencing.” (See also People v. Walker (1991) 54 Cal.3d 1013, 1023 [when the
only error is a failure to advise of the consequences of the plea, “[u]pon a
timely objection, the sentencing court must determine whether the error
30
prejudiced the defendant, i.e., whether it is ‘reasonably probable’ the
defendant would not have pleaded guilty if properly advised”], overruled on
different point in People v. Villalobos (2012) 54 Cal.4th 177, 183; People v.
Villalobos, supra, at p. 182 [“we have held that because ‘advisement as to the
consequences of a plea is not constitutionally mandated,’ ‘the error is waived
absent a timely objection’ ”].)
In this case, defendant has forfeited his claim because he did not raise
it at or before sentencing. The record establishes that defendant was aware of
the consequences of his plea in advance of his sentencing but failed to object.
The probation department recommended two 75-year-to-life terms and cited
the relevant statutory authority. Defendant refused to participate in the
proceedings after his conviction, insisting that that he has “no criminal
liability for this matter.” As the court observed in Wrice, “[h]ad the imposition
of sentence on the enhancement allegations ‘come as a genuine surprise, it
would have been a simple matter to bring the issue to the attention of the
trial court.’ ” (People v. Wrice, supra, 38 Cal.App.4th at p. 771.)
Even had defendant not forfeited his claim, the record is clear that the
error did not prejudice him. There is no reasonable probability that defendant
would not have admitted the truth of his prior convictions if the court had
correctly advised him of the penal consequences. (People v. Wrice, supra, 38
Cal.App.4th at p. 771 [“ ‘Upon a timely objection, the sentencing court must
determine whether the error prejudiced the defendant, i.e., whether it is
“reasonably probable” the defendant would not have pleaded guilty if
properly advised.’ ”].) Defendant was aware before his trial began that he
faced the possibility of a de facto life term in prison. Notice that the term
would be 150 years to life rather than 50 years to life was not likely to have
impacted his decision to admit the three strike enhancement allegations. His
31
contention that the record does not show his admissions were voluntary and
intelligent is thus without merit. Moreover, defendant makes no suggestion
that the convictions to which he admitted could not have been readily
established in the absence of his admission.
Disposition
The two 5-year terms imposed under section 667, subdivision (a) are
stricken. The judgment is affirmed in all other respects.
POLLAK, P. J.
WE CONCUR:
STREETER, J.
BROWN, J.
32