People v. Elkins CA4/1 ( 2021 )

Filed 2/9/21 P. v. Elkins CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D075724
Plaintiff and Respondent,
v. (Super. Ct. No. SCD274583)
JARED DANIEL ELKINS,
ORDER MODIFYING OPINION
Defendant and Appellant. AND DENYING REHEARING
NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on January 20, 2021, be
modified as follows:
1. On page 40, insert the following new footnote 9 following the first
sentence of the last paragraph:
In a petition for rehearing, Elkins asserts that “[t]he trial court
stated it did not base its removal order on this allegation”
regarding the insult. The trial court, however, simply stated that
it did not take the insult “personally” and it was not “the sole
basis for his exclusion.” (Italics added.)
There is no change in judgment.
The petition for rehearing filed by appellant is denied.
McCONNELL, P. J.
Copies to: All parties
2
Filed 1/20/21 P. v. Elkins CA4/1 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D075724
Plaintiff and Respondent,
v. (Super. Ct. No. SCD274583)
JARED DANIEL ELKINS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Charles G. Rogers, Judge. Affirmed.
Laura Schaefer, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Robin
Urbanski and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff
and Respondent.
INTRODUCTION
A jury found appellant Jared Elkins guilty of forcible rape (Pen. Code,
§ 261, subd. (a)(2)),1 two counts of forcible oral copulation (§ 288a, subd.
(c)(2)(A)), and forcible sexual penetration (§ 289, subd. (a)). Elkins’s
convictions arise from an incident in which he and his wife spent the night
with his wife’s relatives and, after a night of drinking, Elkins forced himself
on his wife’s young cousin, Samantha.2 Samantha testified that despite her
attempts to push Elkins away and repeated pleas to Elkins to stop assaulting
her, Elkins threatened to kill her if she made any noise. Samantha feared for
her life, knowing that Elkins, a police officer, was carrying his off-duty
firearm and could easily overpower her. Thereafter, Elkins used force to
orally copulate Samantha and force her to orally copulate him, penetrated
her anus and vagina with his fingers, and ultimately raped her. After his
arrest and in his own testimony at trial, Elkins did not dispute that he had
sex with Samantha, but claimed that not only did she consent to having sex,
she initiated the encounter by flirting with him.
Thus, the central issue at trial was whether Samantha or Elkins was
telling the truth regarding Samantha’s consent or lack thereof. To bolster
Samantha’s testimony, the prosecutor called Elkins’s now ex-wife as a
witness, who testified that when Elkins was drunk, he often aggressively
sought anal sex from her despite her disinterest. Another woman testified
regarding her own experience with Elkins, who accompanied her home after
1 All further undesignated statutory references are to the Penal Code
unless otherwise specified.
2 Throughout this opinion, we refer to the victim and other witnesses by
their first names out of respect for their privacy. (See Cal. Rules of Court,
rule 8.90(b).)
2
a night out drinking and attempted to forcibly have anal sex with her, despite
her requests for him to stop and attempts to escape.
On appeal, Elkins contends that the trial court erred in failing to
exclude the evidence regarding his actions toward the other women on
different occasions. He also asserts the trial court erred in instructing the
jury and allowing police officers and the prosecutor to “vouch” for Samantha’s
credibility. Additionally, he faults the trial court’s handling of a situation
during trial in which one of his friends engaged in a conversation with a juror
and then interfered with the trial, leading the trial court to discharge the
juror and exclude Elkins’s friend from the remainder of the trial.
Considering each of Elkins’s contentions in turn and cumulatively, we
find no error. Accordingly, we affirm the judgment. However, the Attorney
General notes a clerical error in the abstract of judgment, which erroneously
states that Elkins’s prison terms are to run concurrently rather than
consecutively. We therefore remand with instructions that the trial court
correct the error and forward a corrected abstract of judgment to the
Department of Corrections and Rehabilitation.
FACTUAL AND PROCEDURAL BACKGROUND3
On appeal, Elkins does not challenge the sufficiency of the evidence to
support the jury’s verdict. Accordingly, we provide only a brief recitation of
the evidence at trial. Additional facts will be discussed where relevant in the
following sections.
3 For purposes of this section, we state the evidence in the light most
favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690;
People v. Dawkins (2014) 230 Cal.App.4th 991, 994.)
3
The Prosecution Case
Elkins and his wife, Jennifer, lived in Yuma, Arizona. Elkins was
employed as a police officer for the Yuma Police Department and always
carried a gun with him, even when he was off duty. In September 2017,
Elkins and Jennifer travelled to San Diego to attend a music festival together
as part of an effort by Jennifer to improve a “tough time” in their
relationship. Elkins and Jennifer drove to San Diego the day before the
music festival and planned to stay at Jennifer’s aunt’s house for the night.
Jennifer’s aunt, Kellie, lived in the house with her daughter, Samantha, who
had recently graduated from college and returned to San Diego.
After Elkins and Jennifer arrived at the house, they walked with Kellie
and Samantha down the street to have dinner. Elkins began drinking beer at
the house and continued to drink at dinner. After dinner, they returned to
Kellie’s house to watch a movie together. Kellie and Jennifer sat together on
one couch and Elkins and Samantha were on the other couch. During the
movie, Elkins continued to drink more beer.
Jennifer fell asleep during the movie and went to bed in another room.
After the movie ended, Kellie also went to bed. Elkins insisted that
Samantha watch another movie with him and she felt obligated to do so.
After the other two women went to bed, Elkins started to move closer to
Samantha and brush his arm against her arm. Samantha tried to move
away from Elkins, but he continued to move closer to her and grabbed her
hand. Samantha was hesitant to accuse Elkins of anything improper given
he was a family member, but she told him that she loved Jennifer and “would
never, ever, ever do anything to put her in a situation or . . . disrupt her life.”
Samantha stood up, walked to the kitchen to get a glass of water, told Elkins
she was going to sleep, and went into her bedroom.
4
Samantha heard Elkins walk into the kitchen and pour himself another
beer. Elkins entered her bedroom and asked if he could get her a drink,
which Samantha interpreted as an attempt to get her to drink more alcohol.
Samantha tried to get him to leave by asking for a glass of water and
pretended to be asleep when he returned. Rather than leave, Elkins started
to “tuck her in” and proceeded to grope Samantha’s body. When Samantha
did not respond, Elkins began pacing and then walked out.
However, Elkins quickly returned, shut the door behind him, took off
his shorts, and began fondling his penis. He approached Samantha, who was
still pretending to be asleep, and forced his penis into her mouth. Samantha
protested and told Elkins “no,” leading Elkins to offer her a choice: either
have sex with him or let him watch her put her fingers into her anus.
Samantha refused to do either and threatened to yell. Elkins responded by
telling Samantha he would kill her if she yelled. Samantha was terrified
because she knew Elkins had his gun. She testified that at that moment, she
realized that if Elkins was capable of raping her, he was also capable of
killing her and the other two women sleeping in the house.
Elkins pulled the covers off the bed and took off Samantha’s shorts.
Samantha again pretended to be asleep, but Elkins forcefully flipped
Samantha over, forced her legs apart, and started to touch her genitals with
his hand. Samantha tried to push him off and told him to stop, but Elkins
overpowered her and put his fingers up her anus. Elkins orally copulated
her, put his fingers inside her vagina, and then inserted his penis and raped
her. Elkins continued for several minutes and then ejaculated on
Samantha’s abdomen. Elkins stood up, got dressed, and left Samantha’s
room.
5
Samantha was still scared that Elkins might return and kill her, so she
stayed silent and did not move. She sensed that Elkins was watching her
from the other room to see what she would do, but eventually heard him get
into bed. Samantha quietly left her room and went into her mother’s
bedroom. Samantha woke Kellie and told her that Elkins had raped her.
Still in fear that Elkins would kill them, Samantha and Kellie climbed out of
a window and sprinted away from the house.
After they had fled to a safe distance, Kellie called 911 and the police
responded. Samantha was taken to a hospital for an examination, which
revealed injuries consistent with sexual assault and sperm and other cells
with DNA matching Elkins’s DNA.
Other police officers went to Kellie’s house and arrested Elkins. Elkins
was taken to a police station for questioning.
The Defense Case
Elkins testified in his own defense to offer his version of events in
which he claimed Samantha initiated the encounter by flirting with him and
then consenting to have sex. He testified that while they were watching the
second movie after the other women left, Samantha asked for sips of his beer,
which he found unusual because she could have easily poured herself her own
beer. He claimed as the night progressed, Samantha moved closer to him and
eventually placed her right breast, through her clothes, on top of his hand.
Elkins claimed that as he began to fondle her breasts, Samantha continued to
cuddle with him and did not ask him to stop. Elkins testified that in the
middle of the movie, Samantha left and walked into her bedroom. Elkins
followed her and asked her to perform oral sex, which she agreed to do.
Elkins testified that they continued to have consensual sex, after which
Samantha told him not to tell his wife. Elkins claimed he left her room, went
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to the restroom, and then fell asleep in the bedroom he was sharing with his
wife.
Jury Verdict and Sentencing
On the fourth day of deliberations, the jury reached its verdict. Of the
eight counts alleged in the information, the jury found Elkins guilty of
forcible rape (count one), two counts of forcible oral copulation (counts three
and six), and forcible sexual penetration (count seven). The jury found him
not guilty on the remaining charges relating to committing the sexual
offenses on an intoxicated person. The trial court sentenced Elkins to a total
term of 20 years, consisting of the upper term of eight years for count one, the
lower term of three years for counts three and six, and the middle term of six
years for count seven. The court ordered that the terms be served
consecutively.
Elkins filed a timely appeal.
DISCUSSION
I. The trial court did not err in finding Caroline B.’s testimony to be
admissible under Evidence Code section 1108
A. Background
While Elkins was released on bail awaiting trial, a woman in his
hometown of Yuma, Arizona, saw a local television news story about his trial.
The woman, Caroline B., recognized Elkins as the man that she had met at a
bar a few weeks earlier. She decided to contact the San Diego District
Attorney’s office to share information about her encounter with Elkins, who
she believed had attempted to sexually assault her. Caroline feared
retaliation by local police if she reported the offense given that Elkins worked
for the local police department, but she ultimately was interviewed by the
San Diego District Attorney’s office and the Arizona State Department of
Public Safety.
7
Before trial, the People filed a motion in limine seeking a ruling that
Caroline’s testimony regarding the uncharged sexual offense committed by
Elkins was admissible under Evidence Code section 1108 (hereinafter
referred to as section 1108) as propensity evidence. The People suggested
that Caroline would testify that after meeting Elkins at a bar while he was
released on bail, he went home with her and after engaging in consensual
vaginal and oral sex, he held her down and attempted to have anal sex with
her even though she expressed her nonconsent. In opposition, defense
counsel suggested that such evidence was not admissible, largely because
Caroline’s testimony would not establish any unlawful sexual conduct. As
characterized by defense counsel, “Caroline’s is a story of consensual sex, or
at least attempted consensual sex, consensual oral copulation and then only
later a dispute about consent to engage in additional sexual acts the next
morning while the two are laying in her bed together.”
The trial court noted the conflicting characterizations regarding the
incident and indicated it would have to review the police reports and
interviews before making a ruling on admissibility. After reviewing the
materials, the trial court granted the motion in limine and found Caroline’s
testimony to be admissible.
Before Caroline was called as a witness at trial, the court indicated to
counsel, outside the presence of the jury, that it would apply the “reiteration
rule” to not require defense counsel to object to Caroline’s testimony to
preserve the objection for appellate review. Thereafter, defense counsel did
not object during Caroline’s testimony regarding the general admissibility of
her testimony.
At trial, Caroline testified that in March 2018, she went out for dinner
and drinks with her mother and brother. She met Elkins at the bar and
8
talked to him for several hours while they both had multiple drinks. Caroline
left with Elkins and his relatives to go to another bar, where they both
continued to drink. Later, Elkins’s cousin gave Caroline a ride home, where
she went inside alone. Caroline testified that when she got home, she was
“feeling my drinks,” so she got ready for bed and dozed off at about 2:30 a.m.
About a half an hour later, Caroline heard the doorbell and answered
the door to find Elkins had returned. Caroline testified that she was
confused as to why he had returned, but she let him into the house. Caroline
lived with her mother and to get Elkins away from her, Caroline took him to
her bedroom. Elkins locked the bedroom door and starting kissing Caroline.
They started to have vaginal sex and Elkins aggressively pulled Caroline’s
hair and wanted to have anal sex. Caroline told him to stop pulling her hair
and that she would not engage in anal sex. Caroline testified that she had to
tell Elkins “a few times” that she would not have anal sex. Elkins eventually
stopped trying to have sex because he could not stay erect and they both fell
asleep.
In the morning, they began to kiss again and progressed to Caroline
performing oral sex after Elkins asked her to “go down” and pushed her
“down there.” Elkins started to act more aggressively by putting his hand on
top of Caroline’s head and pushing her mouth very forcefully down onto his
penis. Caroline reacted by trying to lift her head and Elkins eventually let
go. Elkins then turned Caroline over onto her stomach and held her down
with his hand on her back. Elkins immediately tried to sodomize Caroline
and she began to “squirm” away while telling him “no.” Elkins tried several
times to insert his penis into her anus while forcefully holding Caroline down
with his hand. Caroline testified that she struggled against Elkins while he
attempted to sodomize her for “more than a few minutes.” Elkins eventually
9
gave up and started to get dressed. Caroline asked Elkins, “Why in the world
would you want to do anything that is going to hurt somebody else?” Elkins
replied by asking Caroline, “Why wouldn’t you want to do it if it brings me
pleasure?” Elkins seemed frustrated and angry and walked out the door.
B. Relevant Legal Principles
“As a general rule, evidence that is otherwise admissible may be
introduced to prove a person’s character or character trait. ([Evid. Code,]
§ 1100.) But, except for purposes of impeachment (see § 1101, subd. (c)), such
evidence is inadmissible when offered by the opposing party to prove the
defendant’s conduct on a specified occasion (§ 1101, subd. (a)), unless it
involves commission of a crime, civil wrong or other act and is relevant to
prove some fact (e.g., motive, intent, plan, identity) other than a disposition to
commit such an act (§ 1101, subd. (b)).” (People v. Falsetta (1999) 21 Cal.4th
903, 911 (Falsetta).)
Section 1108 creates an exception to this general rule by expanding the
admissibility of disposition or propensity evidence in sex offense cases.
(Falsetta, supra, 21 Cal.4th at p. 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 Section 352.”
As the Supreme Court explained in Falsetta, “section 1108 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, 21 Cal.4th at p. 911.) “As the Court
of Appeal stated in one earlier case, ‘Our elected Legislature has determined
10
that the policy considerations favoring the exclusion of evidence of uncharged
sexual offenses are outweighed in criminal sexual offense cases by the policy
considerations favoring the admission of such evidence. The Legislature has
determined the need for this evidence is “critical” given the serious and
secretive nature of sex crimes and the often resulting credibility contest at
trial.’ ” (Id. at pp. 911-912.)
“[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, 21 Cal.4th at p. 915.)
Section 1108 requires the prosecution to disclose the evidence it intends
to admit before trial. (Id. at subd. (b); see also § 1054.7.) If the evidence is
challenged by the defendant before trial, the trial court must make a
threshold legal determination regarding whether the proffered evidence
alleges a “sexual offense,” as defined by section 1108. (People v. Cottone
(2013) 57 Cal.4th 269, 282 (Cottone).) The prosecution does not have to
establish that the defendant was convicted of a sexual offense for the
underlying conduct; as long as the evidence, if believed, establishes the
conduct would constitute a criminal sexual offense, evidence of the uncharged
offense is admissible under section 1108. (People v. Lopez (2007) 156
Cal.App.4th 1291, 1298-1299.)
This threshold inquiry limits the possible prejudice under the section
1108 exception. Section 1108 “reflects a policy choice striking a balance
11
between the general ban on character evidence to prove conduct, and an
exception permitted in strictly limited circumstances. The trial court ensures
that the policy choice is honored by performing its screening function under
[Evidence Code] section 405.” (Cottone, supra, 57 Cal.4th at pp. 285-286.)
When making this determination, the trial court applies the preponderance of
the evidence standard of proof. (Id. at pp. 286-287.)
If the trial court determines the evidence, if believed by the jury, is
sufficient to establish the defendant committed the uncharged sexual offense,
it must also determine whether the evidence is inadmissible pursuant to
Evidence Code section 352. (Evid. Code, § 1108, subd. (a), see generally
Falsetta, supra, 21 Cal.4th at pp. 916-918.) “The court’s ruling under section
1108 is subject to review for abuse of discretion.” (People v. Loy (2011) 52
Cal.4th 46, 61 (Loy).)
C. Analysis
As an initial matter, Elkins contends that this court should focus on the
evidence considered by the trial court—i.e., Caroline’s pretrial interviews—at
the time it considered the People’s motion in limine rather than her trial
testimony to determine whether the trial court erred in finding the evidence
to be admissible. Elkins contends this distinction is critical, asserting that
“[a]lthough Caroline’s trial testimony was somewhat consistent with the
proferred pretrial interviews, the two diverged in several respects.” This
argument, however, is premised on a mistaken understanding of the effect of
the order granting the motion in limine and the scope of our review regarding
the admissibility of evidence.
“Motions in limine are a commonly used tool of trial advocacy and
management in both criminal and civil cases. Such motions are generally
brought at the beginning of trial, although they may also be brought during
12
trial when evidentiary issues are anticipated by the parties. In either event,
they are argued by the parties, either orally or in writing or both, and ruled
upon by the trial judge.” (People v. Morris (1991) 53 Cal.3d 152, 188 (Morris);
overruled on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830,
fn. 1.)
A ruling on a motion in limine does not foreclose a new consideration of
the admissibility of the evidence actually introduced at trial. Thus, to
preserve the issue of admissibility for appellate review, the party opposing
admission of the evidence must ensure one of three steps is taken: (1) object
at trial when the evidence is introduced; (2) stipulate with the opposing party
regarding the effect of the trial court’s pretrial ruling; or (3) rely on the trial
court to “make it clear to counsel . . . not only what the ruling on the motion
is, but whether further objection or argument is desired when the evidence is
presented.” (Morris, supra, 53 Cal.3d. at p. 190; see also People v. Brown
(2003) 31 Cal.4th 518, 547 [motion in limine challenging admissibility of
evidence under Evid. Code, § 352 must generally be renewed at trial], People
v. Karis (1988) 46 Cal.3d 612, 634, fn. 16.)
Here, the trial court made clear that defense counsel did not have to
object when Caroline testified to preserve his objection to the evidence.
Based on the trial court’s representation that the objection was preserved,
which the People did not oppose, we treat Elkins’s opposition to the motion in
limine as “a continuing objection to admission.” (People v. Jennings (1988) 46
Cal.3d 963, 975, fn. 3.)
However, to the extent there were variations between the prosecution’s
pretrial offer of proof and Caroline’s actual testimony, Elkins was required to
raise a new objection to any “new” evidence and, by failing to do so, “may not
now complain of any such variations.” (People v. Champion (1995) 9 Cal.4th
13879, 925.) “[I]f the evidence presented during trial is substantially different
from that presented at the hearing on the motion in limine or included in an
offer of proof, it is incumbent on the party who made the motion to renew the
objection to the evidence.” (Summers v. A.L. Gilbert Co. (1999) 69
Cal.App.4th 1155, 1184.)
Here, Elkins did not object at trial despite his claim on appeal that
Caroline’s testimony was different than her statements made in the pretrial
interviews. Instead, Elkins argues that Caroline’s pretrial interview
statements would have been inadmissible. But the People did not introduce
her pretrial statements as evidence at trial.4 Because such evidence was not
introduced at trial, whether or not it would be admissible is not a question we
need consider. On appeal, we must consider whether “the admitted evidence”
should have been excluded, not whether some hypothetical evidence that was
not admitted would have been inadmissible. (Evid. Code, § 353, subd. (b),
italics added.)
Regardless, having reviewed both Caroline’s pretrial statements and
her trial testimony, we conclude they are sufficiently similar to not alter our
analysis or require Elkins to raise a new objection at trial to preserve the
issue for appeal. Given the substantial similarity, we review the evidence
actually presented to the jury rather than statements made in untranscribed
interviews not presented to the jury to determine whether the admission of
Caroline’s testimony resulted in a miscarriage of justice. (See, e.g., Evid.
Code, § 353, subd. (b) [appellate court may only reverse judgment if it is of
4 The defense introduced a small portion of the transcript regarding
Caroline’s answer to a question regarding what happened the night before
that is not relevant to her testimony regarding Elkins’s attempt at forcible
sodomy in the morning.
14
the opinion that the admitted evidence should have been excluded “on the
ground stated and that the error or errors complained of resulted in a
miscarriage of justice.”].)
On appeal, Elkins first contends that Caroline’s testimony does not
establish that he committed a sexual offense. In response, the People
contend that Caroline’s testimony establishes the sexual offense of attempted
forcible sodomy (Pen. Code, § 286.) Evidence Code section 1108’s definition of
sexual offense includes such an offense. (Evid. Code, § 1108, subds. (d)(1)(A)
& (d)(1)(F).) The question, therefore, is whether Caroline’s testimony, if
believed, is sufficient to establish the elements of attempted forcible sodomy.
In arguing the evidence was insufficient, Elkins relies primarily on the
discussion in In re John Z. (2003) 29 Cal.4th 756 (John Z.), which involved
the difficult factual scenario where a consensual sexual encounter turns into
a forcible criminal sex offense after the victim withdraws her consent. In
John Z., the defendant and victim began to have sexual intercourse and,
while the evidence of the victim’s consent was inconclusive, the court
assumed, for purposes of argument, the victim had “impliedly consented to
the act, or at least tacitly refrained from objecting to it, until defendant had
achieved penetration.” (Id. at p. 760.) However, the victim then withdrew
her consent by struggling to get away from the defendant as he grabbed her
and pushed her down. (Id. at p. 763.) The victim also repeatedly asked
defendant to stop, but defendant continued the sex act for at least four or five
minutes. (Ibid.) Although the Supreme Court rejected the defendant’s
argument that a man must be given a reasonable amount of time “to quell his
primal urge,” it concluded that the defendant “was given ample time to
withdraw but refused to do so despite [the victim]’s resistance and
objections.” (Ibid.) The court held that “the offense of forcible rape occurs
15
when, during apparently consensual intercourse, the victim expresses an
objection and attempts to stop the act and the defendant forcibly continues
despite the objection.” (Id. at p. 760.)
Relying on John Z., Elkins argues that the evidence “established that
Elkins tried to penetrate Caroline during consensual sex, she objected and he
abandoned his effort. Elkins should not be branded a sexual offender for
merely trying to engage a woman in a different sex act during consensual sex,
where he stopped and did not force himself on her after she objected and
moved away from him.”
Elkins’s argument, however, is betrayed by the evidence. Caroline
testified that after engaging in consensual oral sex, Elkins turned Caroline
over, held her down, and attempted to have anal sex. Caroline then began to
“squirm away” and told Elkins “no.”
If, as Elkins suggests, the encounter had stopped at the point Caroline
first objected or quickly thereafter, Caroline’s testimony may not have been
admitted. But Elkins did not stop. Instead, after Caroline said “no” and
attempted to squirm away, Elkins repeated his attempts to sodomize
Caroline while he held her down with his hand. Caroline testified that
Elkins continued his attempt for “more than a few minutes” while she
continued her struggle.
This evidence, if believed by the jury, was sufficient to establish the
criminal offense of attempted forcible sodomy. Elkins’s forcible attempt
satisfied the standard set forth in John Z. because “during apparently
consensual intercourse, the victim expresse[d] an objection and attempt[ed]
to stop the act and the defendant forcibly continue[d] despite the objection.”
(John Z., supra, 29 Cal.4th at p. 760.) Thus, the trial court did not err in
16
determining that the evidence alleged a “sexual offense,” as defined by
section 1108. (Cottone, supra, 57 Cal.4th at p. 282.)
Elkins also contends that even if the evidence is generally admissible
because it meets the definition of “sexual offense” in section 1108, it is
inadmissible under Evidence Code section 352. In exercising its discretion to
determine whether evidence of a sexual offense that would be admissible
pursuant to section 1108 should nevertheless be found inadmissible under
section 352, “trial judges must consider 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.” (Falsetta, supra, 21 Cal.4th at p. 917; see also Loy, supra, 52
Cal.4th at p. 61.)
Considering the trial court’s admission of Caroline’s testimony under
Evidence Code section 352, we see no abuse of discretion. The Legislature
enacted section 1108 as an expression of its belief that evidence of other
sexual offenses committed by the defendant are “ ‘particularly probative’ ” in
cases involving other sexual offenses. (People v. Story (2009) 45 Cal.4th 1282,
1293.) Here, Elkins primarily argues the evidence is not probative because
even if the jury believed Caroline, her testimony fails to establish that he
committed any criminal sexual offense. As discussed ante, we disagree with
Elkins’s characterization of Caroline’s testimony.
17
Considering the similarity of the charged offense involving Samantha
and the uncharged offense involving Caroline, “ ‘[i]t is enough the charged
and uncharged offenses are sex offenses as defined in section 1108.’ ” (Loy,
supra, 52 Cal.4th at p. 63.) Moreover, beyond both being sex offenses, the
two offenses bear other similarities. In both instances, Elkins took
advantage of women, after drinking heavily with them, by using his physical
strength and an abuse of the trust they placed in him to force them to
perform various sexual acts, including a focus on anal sex. These similarities
heighten the probative value of Caroline’s testimony.
Elkins also focuses on the uncertainty that any sexual offense occurred
by noting that law enforcement in Arizona did not file charges against Elkins
and that Caroline’s testimony was not corroborated by an independent
source. While being charged and ultimately convicted would bolster the
certainty that Elkins committed these offenses, the fact that he was not
charged does not limit the admissibility of Caroline’s testimony. (Lopez,
supra, 156 Cal.App.4th at pp. 1298-1299.) Moreover, the differing burdens of
proof must be considered in this context: although a criminal conviction
requires the defendant’s guilt to be established beyond a reasonable doubt,
section 1108 permits admission of evidence under the more lenient
preponderance of the evidence standard. (Lopez, at p. 1299.) “A defendant
may avoid conviction of a sexual offense because of the more stringent burden
of proof, either because the prosecutor may not feel he or she can meet the
burden, or because the jury concluded the prosecution failed to meet the
burden. When the evidence is introduced at a subsequent trial as evidence of
a prior sex offense, however, the jury may conclude the same evidence meets
the preponderance of the evidence standard and utilize the evidence as
permitted by law.” (Ibid.) While the trial court should consider the issue of
18
certainty when considering admissibility, any vestigial uncertainty
surrounding Caroline’s testimony did not require the trial court to find the
evidence to be inadmissible under section 352.
Elkins also contends Caroline’s testimony was confusing to the jury
because it “resulted in a distracting mini-trial on the encounter between
Caroline and Elkins.” Certainly, the potential for confusion and distraction is
increased when the prosecution seeks to admit evidence of an uncharged
offense, rather than an offense for which the defendant was convicted, under
section 1108. (See, e.g., People v. Ewoldt (1994) 7 Cal.4th 380, 405.)
However, when the evidence of the uncharged offense is “no more
inflammatory than the testimony concerning the charged offense,” the
potential for prejudice is decreased. (Ibid.) Here, Caroline’s testimony was
no more inflammatory than the multiple witnesses testifying about Elkins’s
offense involving Samantha. While the “mini-trial” led to some potential for
confusion and caused a greater burden on Elkins and his counsel to defend
himself against Caroline’s testimony, the circumstances here mirror those
seen in many trials where evidence of uncharged sexual offenses is admitted
pursuant to section 1108.
At most, Elkins establishes that the jury was likely influenced by
Caroline’s testimony to support its verdict finding Elkins guilty, but this is
the point of section 1108 evidence. Evidence Code section 352 is focused on
preventing undue prejudice, not any prejudice at all by unfavorable evidence.
“ ‘ “Prejudice” as contemplated by [Evidence Code] section 352 is not so
sweeping as to include any evidence the opponent finds inconvenient.
Evidence is not prejudicial, as that term is used in a section 352 context,
merely because it undermines the opponent’s position or shores up that of the
proponent. The ability to do so is what makes evidence relevant. The code
19
speaks in terms of undue prejudice. Unless the dangers of undue prejudice,
confusion, or time consumption “ ‘substantially outweigh’ ” the probative
value of relevant evidence, a section 352 objection should fail. [Citation.]
“ ‘The “prejudice” referred to in Evidence Code section 352 applies to evidence
which uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues. In applying section
352, “prejudicial” is not synonymous with “damaging.” ’ [Citations.]” [¶] The
prejudice that section 352 “ ‘is designed to avoid is not the prejudice or
damage to a defense that naturally flows from relevant, highly probative
evidence.’ [Citations.] ‘Rather, the statute uses the word in its etymological
sense of “prejudging” a person or cause on the basis of extraneous factors.
[Citations.] In other words, evidence should be excluded as unduly
prejudicial when it is of such nature as to inflame the emotions of the jury,
motivating them to use the information, not to logically evaluate the point
upon which it is relevant, but to reward or punish one side because of the
jurors’ emotional reaction. In such a circumstance, the evidence is unduly
prejudicial because of the substantial likelihood the jury will use it for an
illegitimate purpose.’ ” (People v. Doolin (2009) 45 Cal.4th 390, 438-439.)
Considering the entirety of the circumstances, we conclude that the
trial court did not abuse its discretion in finding Caroline’s testimony to be
admissible pursuant to section 1108 and Evidence Code section 352.
Caroline’s testimony was directly relevant to the central issue at trial
regarding whether the jury should believe Samantha’s testimony that Elkins
would force himself on her without consent. While some factors suggested a
potential for heightened prejudice, the trial court carefully weighed all of the
factors and reasonably exercised its discretion to find the evidence
admissible.
20
II. The trial court did not err in instructing the jury regarding the offense of
attempted forcible sodomy
Elkins also challenges the jury instructions regarding the uncharged
sexual offense against Caroline of attempted forcible sodomy. Relying on
John Z., discussed ante, he contends the instructions permitted the jury to
wrongly find he committed the offense of attempted forcible sodomy even if he
abandoned his efforts after Caroline objected. As characterized by Elkins, he
asserts the instructions permitted the jury to “find Elkins criminally liable if
he tried to commit sodomy without Caroline’s consent, even if he abandoned
his effort after he realized she objected.” We disagree.
A. Background
The trial court instructed the jury using the standard form jury
instructions. For the offense of sodomy by force, the court instructed that to
find Elkins committed the offense of sodomy, “the People must prove the
following: 1. The defendant committed an act of sodomy with another person;
2. The other person did not consent to the act; And 3. The defendant
accomplished the act by force.”
Recognizing the People were alleging only that Elkins committed
attempted forcible sodomy, the court also instructed the jury regarding
attempt. The court instructed that “[t]o prove that the defendant committed
an attempt to commit a crime, the People must prove the following: 1. The
defendant took a direct, but ineffective step towards committing the crime of
sodomy by force; And 2. The defendant intended to commit the crime of
sodomy by force.”
Elkins did not object to these instructions despite his numerous
opportunities to do so.
21
B. Relevant Legal Principles
“ ‘In considering a claim of instructional error we must first ascertain
what the relevant law provides, and then determine what meaning the
instruction given conveys. The test is whether there is a reasonable
likelihood that the jury understood the instructions in a manner that violated
the defendant’s rights.’ [Citation.] We determine the correctness of the jury
instructions from the entire charge of the court, not from considering only
parts of an instruction or one particular instruction.” (People v. Smith (2008)
168 Cal.App.4th 7, 13.) “ ‘Errors in jury instructions are questions of law,
which we review de novo.’ ” (People v. Fenderson (2010) 188 Cal.App.4th 625,
642.)
A defendant’s failure to object to an alleged instructional error results
in a forfeiture of the issue unless the error affects the defendant’s substantial
rights. (§ 1259; see, e.g., People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.)
C. Analysis
The Attorney General correctly argues that Elkins forfeited his claim of
instructional error by not objecting below. Regardless, even assuming Elkins
did not forfeit his claim, we see no error.
Elkins contends, and we do not necessarily disagree, that it was
possible for the jury to find that “Elkins stopped trying to have anal sex with
Caroline after she communicated her objection to Elkins.” Elkins correctly
argues, relying on John Z., that if he stopped his attempt when Caroline
communicated her objection, the evidence would not support that he
committed any criminal offense. (John Z., supra, 29 Cal.4th at p. 760 [“the
offense of forcible rape occurs when, during apparently consensual
intercourse, the victim expresses an objection and attempts to stop the act
and the defendant forcibly continues despite the objection.”].)
22
However, Elkins then incorrectly contends that the trial court erred in
instructing the jury because in this situation, the instructions would have
permitted a finding that he committed the offense. This contention is
premised on a misunderstanding of the relevant instructions, which correctly
stated the law.
To constitute an attempt, the prosecution must establish two elements:
“a specific intent to commit the crime, and a direct but ineffectual act done
toward its commission.” (§ 21a.) “When a defendant acts with the requisite
specific intent, that is, with the intent to engage in the conduct and/or bring
about the consequences proscribed by the attempted crime [citation], and
performs an act that ‘go[es] beyond mere preparation . . . and . . . show[s] that
the perpetrator is putting his or her plan into action’ [citation], the defendant
may be convicted of criminal attempt.” (People v. Toledo (2001) 26 Cal.4th
221, 230.)
As applied here, in the hypothetical described by Elkins, his attempt to
have anal sex before Caroline’s objection would include “a direct and
ineffectual act done” toward the commission of sodomy, but it would not
include the necessary element that Elkins have the specific intent to commit
forcible sodomy, i.e., an attempt to engage in sodomy by means of force
without the victim’s consent. At that point, Elkins would not have any intent
to commit the offense because he believed he was acting with Caroline’s
consent. Thus, assuming the jury followed its instructions, it would not be
able to find that Elkins committed the offense in that hypothetical
circumstance.
Instead, the jury was instructed that it could find Elkins committed
attempted forcible sodomy only if it found Elkins “took a direct, but
ineffective step towards committing the crime of sodomy by force; And 2. The
23
defendant intended to commit the crime of sodomy by force.” As instructed
by the companion instruction regarding the elements of sodomy by force, the
jury could find that Elkins intended to commit the offense of sodomy by force
only if it also found he intended to have anal sex without Caroline’s consent.
In this scenario—supported by Caroline’s testimony at trial—the jury would
have to find Elkins took a direct step toward having anal sex after Caroline
withdrew her consent. Although Elkins contests the factual basis for that
finding, as discussed ante, the jury instructions correctly stated the
applicable law. Thus, the trial court did not err in instructing the jury in this
regard.
III. The trial court correctly found Jennifer’s testimony regarding Elkins’s
practice of seeking anal sex to be admissible under Evidence Code
section 1101
Elkins contends the trial court erred in allowing his ex-wife, Jennifer,
to testify regarding her past sexual experiences with Elkins. He contends
that her testimony regarding his pattern of seeking anal sex while
intoxicated was inadmissible character evidence that was more prejudicial
than probative. We conclude, guided by the deferential standard of review,
that the trial court did not abuse its discretion in allowing the admission of
this evidence under Evidence Code section 1101. Moreover, even if we were
to conclude the trial court abused its discretion, we nevertheless conclude
that any minimal prejudice to Elkins was insufficient to warrant reversal of
the judgment.
A. Background
When the prosecution called Jennifer to testify, Elkins raised an
objection to any testimony regarding “the nature of their sexual
relationships, the acts they engaged in and how they engaged in those acts.”
The prosecution indicated it intended to elicit testimony regarding Elkins’s
24
fixation on anal sex, which it explained was relevant to explain Elkins’s
command to Samantha to either perform oral sex or put her fingers in her
anus. The trial court ruled that such evidence was admissible under
Evidence Code section 1101, suggesting that such evidence “[goes] to motive.”
Jennifer testified primarily about the events preceding the offense and
her relationship with Samantha. She also testified that Elkins enjoyed
having anal sex and although she was not comfortable with it and did not
enjoy it, she obliged on occasion out of a sense of marital duty. She later
stated that when Elkins had been drinking, he was more “direct or forceful”
about having sex. Jennifer clarified that Elkins was only interested in anal
sex or putting his fingers in her anus on nights when he had been drinking.
During closing argument, the prosecution briefly referred to this
testimony, reminding the jury that “you heard from his ex-wife, when the
defendant drinks, he is more forceful, aggressive and obsessed with anal.”
B. Relevant Legal Principles
As we discussed in relation to propensity evidence under section 1108,
the general rule under Evidence Code section 1101 is that character evidence
is inadmissible to prove the defendant’s conduct on a specific occasion except
in limited circumstances. (See, e.g., Falsetta, supra, 21 Cal.4th at p. 911.)
Such evidence is admissible if “relevant to prove some fact (e.g., motive,
intent, plan, identity) other than a disposition to commit such an act (§ 1101,
subd. (b)).” (Falsetta, at p. 911.) Here, the admissibility of Jennifer’s
testimony is governed by Evidence Code section 1101, not section 1108,
because no criminal act is alleged.
“Cases sometimes describe Evidence Code section 1101(b) evidence as
‘prior offenses’ or ‘prior bad acts.’ Both shorthand formulations are
imprecise. Evidence Code section 1101(b) authorizes the admission of ‘a
25
crime, civil wrong, or other act’ to prove something other than the defendant’s
character. (Italics added.) The conduct admitted under Evidence Code
section 1101(b) need not have been prosecuted as a crime, nor is a conviction
required.” (People v. Leon (2015) 61 Cal.4th 569, 597.) “The relevance
depends, in part, on whether the act is sufficiently similar to the current
charges to support a rational inference of intent, common design, identity, or
other material fact. [Citation.] ‘The least degree of similarity (between the
uncharged act and the charged offense) is required in order to prove intent.
[Citation.] . . . In order to be admissible to prove intent, the uncharged
misconduct must be sufficiently similar to support the inference that the
defendant “ ‘probably harbor[ed] the same intent in each instance.’ ” (Id. at
p. 598) “Greater similarity is required to prove the existence of a common
design or plan. In such a case, evidence of uncharged misconduct must
demonstrate ‘ “not merely a similarity in the results, but such a concurrence
of common features that the various acts are naturally to be explained as
caused by a general plan of which they are the individual manifestations.”
[Citation.]’ ” (Ibid.)
We review the trial court’s decision to admit evidence under Evidence
Code section 1101 for abuse of discretion. (People v. Harris (2013) 57 Cal.4th
804, 841.) Although some evidentiary rulings may be a “rather close call”
where an appellate court may disagree with the ruling, such a ruling should
nevertheless be upheld where the appellant fails to show the trial court
abused its discretion “ ‘ “in an arbitrary, capricious or patently absurd
manner that resulted in a manifest miscarriage of justice.” ’ ” (People v.
Nguyen (2010) 184 Cal.App.4th 1096, 1119; see also Avant! Corp. v. Superior
Court (2000) 79 Cal.App.4th 876, 881-882 [“We could therefore disagree with
the trial court’s conclusion, but if the trial court’s conclusion was a reasonable
26
exercise of its discretion, we are not free to substitute our discretion for that
of the trial court.”].)
C. Analysis
Considering Jennifer’s testimony as a whole, in the context of the entire
trial, we conclude the trial court did not abuse its discretion by admitting the
evidence under Evidence Code section 1101, subdivision (b). Although the
admissibility of this evidence may be a “close call” subject to disagreement,
we do not believe the trial court’s decision was arbitrary, capricious, or
patently absurd. Instead, the trial court made a reasonable decision on a
complex question that we will not disturb on appeal.
The trial court could reasonably determine that Jennifer’s testimony
was not introduced, as Elkins suggests, simply to suggest that because he
enjoys anal sex, he is a deviant with a propensity to commit criminal sexual
offenses. Instead, the evidence was relevant to establish Elkins’s motive,
intent, and common design of forcefully seeking anal sex or digital anal
penetration after he has been drinking, regardless of the woman’s interest in
participation. The trial court did not abuse its discretion in finding this
evidence to be admissible as relevant evidence under subdivision (b) of
section 1101.
Elkins further contends that even if the evidence was admissible under
Evidence Code section 1101, subdivision (b), it was nevertheless inadmissible
under Evidence Code section 352 because it was unduly prejudicial. We
disagree. “The prejudice that section 352 is designed to avoid is not the
damage that naturally results from highly probative evidence, but rather the
prospect of leading the jury to prejudge a person or focus on extraneous
factors.” (People v. Merchant (2019) 40 Cal.App.5th 1179, 1192.) Jennifer’s
brief comment regarding Elkins’s common sexual practices did not “consume
27
too much time, cause undue prejudice, confuse the issues, or mislead the
jury.” (Ibid.)
Perhaps most importantly, even assuming the trial court abused its
discretion in permitting Jennifer to testify in this regard, Elkins was not
prejudiced by the admission of this evidence. Jennifer’s passing reference to
this issue was not of sufficient weight to support the conclusion that if this
evidence was not admitted, the jury would have reached a different result.
(People v. Thomas (2011) 52 Cal.4th 336, 356 [applying test for prejudice
under People v. Watson (1956) 46 Cal.2d 818 to admission of evidence
pursuant to Evid. Code, § 1101].) Because Elkins fails to establish error or
prejudice under the standards of review that govern our review, his argument
for reversal on this ground has no merit.
IV. Elkins fails to establish any improper “vouching” by the testifying
police officers or the prosecutor
Elkins contends the trial court erred in allowing the prosecutor and
police officer witnesses to “bolster” Samantha’s testimony by “vouching” for
her credibility. Having reviewed the record, we conclude Elkins fails to
establish any improper vouching by the witnesses or the prosecutor.
A. Background
During his cross-examination of Samantha, defense counsel asked
Samantha to admit that, despite her testimony, she truly consented to having
sex with Elkins and that she was not actually “victimized in this case.” When
Samantha denied she consented and claimed that she “was absolutely
victimized in this case,” defense counsel sought to impeach her by introducing
a short portion of a video from a police officer’s body worn camera recorded
shortly after her rape. In the video, Samantha tells the officer that “I’m not a
28
victim.” Samantha confirmed that she made that statement but complained
that “[i]t was so out of context.” Defense counsel asked no further questions.
The People responded by asking Samantha to put her comment that
she was “not a victim” into context. During her redirect examination,
Samantha explained that when she made that statement, she was
“hysterical” and “humiliated that I was just raped. And I think anyone who
has ever been violated like that is embarrassed.”
The People also questioned Police Officer Diego Usma, who recorded
the video, about Samantha’s statement. He testified that although he did not
understand what Samantha meant when she said she was “not a victim,”
Samantha was visibly upset and her actions did not “give . . . the impression
that she was not a victim.”
Police Sergeant Garrick Nugent, who had extensive experience working
as a detective in the sex crimes unit, testified that he spoke to Samantha
immediately after she made her statement that she was “not a victim.”
Sergeant Nugent testified that when Samantha said she was not a victim, he
expressed that he agreed she was not a victim; confirming that she was a
“survivor.” Nugent explained that the terms “victim” and “survivor” were
interchangeable but that “[o]ften individuals find the label of victim to be
unpalatable. It implies . . . a hopelessness kind of feeling. And there are
some people who take great exception to being labeled a victim.” Nugent
testified that based on his conversation with Samantha, he believed her
comment that she was not a victim was aligned with her rejection of that
label rather than a suggestion that the sex was consensual. Nugent testified
based on his conversation with Samantha and her behavior, he “suspected”
the sex was not consensual. He further testified that based on her behavior,
“she portrayed as a typical victim would have.” As to this last statement, the
29
trial court sustained defense counsel’s objection pursuant to Evidence Code
section 352 and instructed the jury to disregard the testimony. Later,
Sergeant Nugent reiterated that if he believed Samantha was suggesting the
sex was consensual, he would have noted that in his report, but he has no
reason to suspect it was a consensual encounter.
During closing argument, the prosecutor argued that Samantha “told
the truth” when talking to the police, tried to “give as many details as she
could” and was “trying to do the best she could do and tell what happened to
her.” The prosecutor also referenced Samantha’s mother’s belief that
Samantha “was telling the truth.”5
B. Relevant Legal Principles
Elkins challenges the officers’ testimony and the prosecutor’s comments
as improper vouching. He characterizes the officers’ testimony as opinion
testimony that Samantha was telling the truth regarding Elkins’s criminal
acts. He further contends the prosecutor could not opine in closing argument
regarding the truthfulness of Samantha’s testimony.
As Elkin correctly asserts, an expert witness is generally prohibited
from offering opinion testimony regarding whether another witness is telling
the truth or is otherwise credible. (See, e.g., People v. Long (2005) 126
Cal.App.4th 865, 871.) Similarly, a witness “cannot express an opinion
concerning the guilt or innocence of the defendant.” (People v. Torres (1995)
33 Cal.App.4th 37, 46-47.) In the context of testimony regarding the
statements and behavior of rape victims, an expert may dispel common
misperceptions by testifying that the victim’s actions are not irreconcilable
with her claim to have been raped, but the expert may not specifically testify
5 At trial, Samantha’s mother testified that she “knew my daughter was
telling the truth” without objection by defense counsel.
30
that he or she believes the offense occurred in the case at issue. (See, e.g.,
People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82.) We apply the abuse
of discretion standard of review to the trial court’s rulings regarding the
admissibility of such evidence. (People v. Prince (2007) 40 Cal.4th 1179,
1222.)
Similarly, a prosecutor may not “vouch” for a witness. (People v.
Rodriguez (2018) 26 Cal.App.5th 890, 905 (Rodriguez).) The rule against
“vouching,” however, does not prohibit the prosecutor from generally
commenting on a witness’s credibility, but only from informing the jury that
he or she thinks the witness is credible based on evidence outside the record.
(Ibid.) “ ‘[S]o long as a prosecutor’s assurances regarding the apparent
honesty or reliability of prosecution witnesses are based on the “facts of [the]
record and the inferences reasonably drawn therefrom, rather than any
purported personal knowledge or belief,” her comments cannot be
characterized as improper vouching.’ ” (People v. Fernandez (2013) 216
Cal.App.4th 540, 561; quoting People v. Frye (1998) 18 Cal.4th 894, 971.)
“Misconduct arises only if, in arguing the veracity of a witness, the prosecutor
implies she has evidence about which the jury is unaware.” (Fernandez, at
p. 561.)
C. Analysis
Elkins’s challenge to the admissibility of the police officers’ testimony is
premised on a faulty premise. Rather than offering expert opinion testimony
regarding whether Samantha was telling the truth and, by extension,
whether Elkins was guilty of rape, the officers were merely offering their
belief regarding the meaning of Samantha’s statement that she was “not a
victim.” Elkins’s own counsel opened the door to this testimony by playing a
selective snippet of the video that included only this statement. As
31
Samantha immediately remarked, she believed this statement was taken out
of context.
Evidence Code section 356 permits the whole of a conversation to be
admitted to provide the necessary context when a party introduces only part
of a conversation. The purpose of the rule “is 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.] Thus, if a
party’s oral admissions have been introduced in evidence, he [or she] may
show other portions of the same interview or conversation, even if they are
self-serving, which ‘have some bearing upon, or connection with, the
admission . . . in evidence.’ [Citations.]” (People v. Arias (1996) 13 Cal.4th
92, 156.)
Here, in addition to admitting the entirety of Samantha’s statement to
provide the necessary context, the prosecution sought to avoid any
misunderstanding about her meaning by asking the officers who heard the
statement to testify regarding their understanding of her statement that she
was “not a victim” considering the entire context of her statement. The
officers were not opining that Samantha was telling the truth or that Elkins
was guilty, but merely that they did not perceive Samantha’s statement that
she was “not a victim” to be an admission that she consented to having sex
with Elkins.
Such testimony is admissible. A percipient witness may offer opinion
testimony when the “witness’s impression of what he or she observes
regarding the appearance and demeanor of another rests on ‘subtle or
complex interactions’ between them [citation] or when it is impossible to
otherwise adequately convey to the jury the witness’s concrete observations.”
(People v. DeHoyos (2013) 57 Cal.4th 79, 130.) A percipient witness’s
32
testimony regarding his or her own observations about the intended effect of
another person’s statements is admissible opinion testimony. (People v.
Seumanu (2015) 61 Cal.4th 1293, 1310-1311; see also In re Automobile
Antitrust Cases I & II (2016) 1 Cal.App.5th 127, 145-147.)
Elkins attempted to use the plain meaning of Samantha’s statement
that she was “not a victim” to suggest to the jury that she was admitting that
Elkins committed no crime. The officers’ testimony regarding what they
observed when talking to Samantha was introduced to support the conclusion
that Samantha’s statement should not be taken at face value. As Sergeant
Nugent testified, a woman who has been raped often rejects the “victim” label
and would rather consider herself to be a “survivor.” In other words, he was
informing the jury, based on his experience, that the statement that “I’m not
a victim” from a woman who was recently raped should not be interpreted as
suggesting the sex was consensual. The officers’ testimony regarding
Samantha’s statement, which they interpreted as conveying a complex
meaning beyond the plain language of her words, was proper opinion
testimony. Thus, the trial court did not abuse its discretion in finding the
testimony to be admissible.
Similarly, Elkins mistakenly characterizes the prosecutor’s statements
as improper vouching.6 Although the prosecutor told the jury that Samantha
6 As the Attorney General argues, Elkins did not object at the time the
prosecutor made the challenged statements and has therefore forfeited the
issue. (See, e.g., People v. Rundle (2008) 43 Cal.4th 76, 157.) However,
Elkins contends that any objection would be futile or, if the issue is forfeited,
his trial court was ineffective. Accordingly, even if we agree the issue is
forfeited, we exercise our discretion to consider the merits of his argument on
appeal. (Rodriguez, supra, 26 Cal.App.5th at p. 904 [appellate court may
exercise its discretion to review a forfeited claim].)
33
was telling the truth, she did not rely on any outside evidence, her personal
experience, or other improper matters in making the claim. Accordingly, no
improper “vouching” occurred. (Fernandez, supra, 216 Cal.App.4th at p. 561.)
In the absence of any misconduct or error, Elkins does not establish a basis
for relief.
V. Elkins’s claim of cumulative error at trial has no merit
Elkins also contends that even if any of these individual errors was not
sufficiently prejudicial to warrant reversal of the judgment, the cumulative
effect was prejudicial. However, as discussed ante, we conclude that no error
occurred. In the absence of any error, there can be no cumulative error.
(People v. Bradford (1997) 15 Cal.4th 1229, 1382.) Thus, Elkins’s claim of
cumulative error fails.
VI. The trial court properly discharged a juror and excluded Elkins’s
friend from attending trial following an improper conversation between
the juror and the friend
A. Background
In the middle of the trial, the prosecutor informed the court of an
incident that occurred outside the courtroom. As relayed by the prosecutor,
one of the jurors was seen having a loud discussion with a person related to
Elkins in the hallway outside the courtroom. Samantha’s boyfriend, who
observed the conversation, informed the court that the juror and the person
talked for about five minutes in front of all the other jurors. At that time, a
member of the audience stood up and told the court that he was the person
who spoke to the juror. The person (T.W.) told the court he was a friend of
Elkins’s family. T.W. told the court he was a fireman from Yuma and
admitted he spoke to the juror for about five minutes. T.W. stated that they
spoke about directions to a local shopping center, firefighting, and sports
team mascots, including the mascot for T.W.’s school in Yuma.
34
The court then questioned the juror, Juror No. 1. The juror admitted to
having the conversation. The juror’s version of events mirrored the version
offered by T.W.: the juror approached T.W. to ask for directions to lunch and
the two had a conversation for a few minutes about a variety of topics not
directly related to the trial. Juror No. 1 acknowledged that T.W. told him he
was from Yuma.
The prosecutor moved to dismiss the juror, finding it prejudicial that
Juror No. 1 had a conversation with a person obviously connected to Elkins.
The prosecutor also noted that the act of questioning the juror about this
incident caused additional prejudice. Defense counsel opposed the motion,
suggesting the conversation was “innocuous” and resulted in no prejudice.
The trial court indicated it was “real unhappy about this” and
reprimanded T.W. for speaking to the juror. T.W. interrupted the court to
defend himself, leading the trial court to direct T.W. to “sit down.” The court
explained that as a public safety officer, T.W. should have known to not talk
to a juror. The trial court also believed Juror No. 1 should have known better
based on the instructions the court gave the jury to not talk to any person
they believed may be associated with the case. The court found “by
demonstrable reality” that Juror No. 1 should no longer serve, excused the
juror, and replaced him with an alternative juror.
After the court excused Juror No. 1, T.W. left the courtroom and yelled
“what an idiot,” apparently in reference to the trial judge. The prosecutor
later informed the court about this incident and asked the court to not allow
T.W. to return to the courthouse. Defense counsel informed the court that he
believed T.W. had left the state, but the court informed the parties that if
T.W. returned, he would not be permitted to enter the courtroom.
35
Later in the trial, the court memorialized on the record that during a
witness’s testimony, T.W. tried to reenter the courtroom. The trial court
signaled to the bailiff that T.W. should be excluded from the courtroom. T.W.
left the courthouse and did not return. Defense counsel expressed concern
over whether any jurors observed T.W.’s removal and what effect that may
have had on the jury, but also objected to the exclusion of T.W. from the
courtroom based on insulting the trial judge. The court indicated that T.W.’s
exclusion was based on more than the insult and invited Elkins to file a
formal motion.
Elkins raised the issues of the discharge of Juror No. 1 and the
exclusion of T.W. from the courtroom in a subsequent request for a mistrial,
which the trial court denied.
B. Analysis: Discharge of Juror No. 1
Pursuant to section 1089, a trial court has the discretion to discharge a
juror if “upon good cause shown to the court [the juror] is found to be unable
to perform his or her duty.” “Although we have long held that the decision to
discharge a juror under section 1089 is committed to the trial court’s
discretion [citation], assessing the breadth of that discretion, at least with
regard to the decision to discharge a seated juror, is more complex than it
otherwise might appear. (People v. Fuiava (2012) 53 Cal.4th 622, 711
(Fuiava).) While an earlier Supreme Court held that trial courts possessed
limited discretion to discharge a juror, “ ‘[t]he more modern rule provides
that, under section 1089, a trial court “has broad discretion to investigate and
remove a juror in the midst of trial where it finds that, for any reason, the
juror is no longer able or qualified to serve.” ’ ” (Ibid.) Regardless of the
scope of the trial court’s discretion, we review the trial court’s discretion not
under the typical abuse of discretion standard, “but rather under the
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‘demonstrable reality’ test.” (Ibid.) Under this test, the appellate court
applies a less deferential review, which “requires a showing that the court as
trier of fact did rely on evidence that, in light of the entire record, supports
its conclusion that bias was established. It is important to make clear that a
reviewing court does not reweigh the evidence under either test. Under the
demonstrable reality standard, however, the reviewing court must be
confident that the trial court’s conclusion is manifestly supported by evidence
on which the court actually relied.” (Id. at p. 712.)
Here, the trial court discharged the juror based on a concern that the
juror flagrantly disregarded the trial court’s instructions. Before the start of
trial, the court instructed the jurors regarding their duty to refrain from
having conversations with people connected to the trial. The court instructed
the jury that if someone attempted to have a conversation, “I don’t expect
anybody to be rude. Please feel free to say good morning or good afternoon,
and you can smile, if you wish to do so. However, nothing beyond that.
Certainly nothing connected with the case, but also if you need to know
where the restroom is or where’s a good place to eat or something like that,
don’t ask them, ask a bailiff or somebody else.”
Juror No. 1 blatantly disregarded this instruction. It is improper for
jurors to converse with anyone associated with the defendant during trial.
(People v. Cowan (2010) 50 Cal.4th 401, 507 (Cowan).) A juror’s violation of
the court’s instructions, even if the misconduct does not suggest a bias toward
either side, is a sufficient basis for the removal of that juror. (People v.
Daniels (1991) 52 Cal.3d 815, 863-864.)
To support his claim for error, Elkins relies on a series of decisions that
conclude a trial court did not commit error by not discharging jurors who may
have communicated with a person associated with the defendant. (Cowan,
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supra, 50 Cal.4th at pp. 504-506; People v. Cobb (1955) 45 Cal.2d 158, 161;
People v. Woods (1950) 35 Cal.2d 504, 511-512.) At most, these cases
establish that a trial court may exercise its discretion to not discharge a juror
in this situation. This, however, does not require that we conclude the trial
court erred here by reaching the opposite conclusion. The record is
undisputed that Juror No. 1 spoke with Elkins’s friend in violation of the trial
court’s clear rule against such contact. Under the demonstrable reality test,
this is sufficient to support the trial court’s decision to discharge Juror No. 1.
(Fuiava, supra, 53 Cal.4th at p. 711.) Accordingly, we conclude the trial court
did not err in discharging the juror.7
C. Analysis: Discharge of T.W.
Relatedly, Elkins contends that the trial court’s exclusion of T.W. from
the trial violated his Sixth Amendment right to a public trial.8 The
requirement of a public trial is for the benefit of both the defendant and the
public. (Waller v. Georgia (1984) 467 U.S. 39, 46 (Waller).) “The term ‘public
trial’ has no single description, but is used in a relative sense and its meaning
depends largely upon the circumstances of each particular case.” (People v.
Esquibel (2008) 166 Cal.App.4th 539, 552 (Esquibel).) “Due to its
7 Elkins further contends that even if Juror No. 1 acted improperly, the
trial court was required to take “lesser steps to ameliorate the situation,”
instead of discharging the juror. Elkins cites the decision in People v. Allen
and Johnson (2011) 53 Cal.4th 60 (Allen) to support this contention. Allen
does not support such a contention. At most, Allen suggests the trial court
may consider less drastic measures to address juror misconduct.
8 Elkins also contends he had a right to a public trial under the
California Constitution. (People v. Woodward (1992) 4 Cal.4th 376, 382.) His
rights in this regard under both constitutions appear coextensive and Elkins
offers no basis to consider them as separate issues.
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constitutional significance and the difficulty of proving prejudice, when a
violation of the right to a public trial has occurred, there is no requirement to
prove any specific prejudice to the appellant.” (Id. at p. 551.)
Elkins asserts this court must apply a four-part test, set forth by the
United States Supreme Court in Waller, to determine whether the trial court
erred in excluding T.W. from the trial. The test discussed in Waller and
relied upon by Elkins, however, is applied only when a trial court orders a
complete closure of the courtroom to all spectators during trial, not when the
court orders only a partial closure. (People v. Baldwin (2006) 142
Cal.App.4th 1416, 1421, fn. 1; see also United States v. Sherlock (9th Cir.
1992) 962 F.2d 1349, 1356-1357 (Sherlock).) The trial court did not order a
full closure of Elkins’s trial and we decline to apply the four-part test found in
Waller.
Moreover, a sub-category of partial closures applies when the court
excludes “only certain identified spectators.” (Esquibel, supra, 166
Cal.App.4th at pp. 552-553.) In that circumstance, the identity of the
excluded spectator is highly relevant, and the trial court may exclude a
spectator to protect some “higher value.” (Id. at p. 552.) So long as the trial
court has a substantial reason for the exclusion and the exclusion is narrowly
tailored, the defendant suffers no violation of his constitutional rights.
(Sherlock, supra, 962 F.2d at p. 1357.)
A trial court’s need to maintain court security and orderly courtroom
proceedings is a substantial reason to justify a partial closure. (Woodward,
supra, 4 Cal.4th at p. 385.) In Esquibel, the appellate court upheld the
exclusion of two spectators that the prosecutor believed to be gang members
who could later find witnesses in the neighborhood. (Esquibel, supra, 166
Cal.App.4th at p. 554.) In People v. Pena (2012) 207 Cal.App.4th 944, the
39
Court of Appeal held that a trial court did not err in excluding members of
two defendants’ families after some family members were following jurors
around and making them uncomfortable. (Id. at pp. 947-949.)
Here, the trial court excluded T.W. after (1) he spoke with a juror
during a break when it was apparent that he was affiliated with Elkins, (2)
interrupted the court during proceedings to interject his opinion, and (3)
yelled an insult at the judge regarding a ruling. The trial court reasonably
concluded that Elkins’s right to a public trial had to be balanced against his
right to a fair trial while also maintaining order in the courtroom. The court
narrowly tailored its exclusion to only T.W. and allowed Elkins’s family and
other supporters to remain for the entire trial. Although T.W. was a
supporter of Elkins, nothing in the record suggests he carried any special
importance to Elkins, his family, or the public in general necessitating his
involvement in the trial. The trial court properly balanced the competing
interests and decided to narrowly exclude one spectator that threatened to
interfere with jurors and the completion of trial. Seeing no error, we conclude
that Elkins’s rights, and the rights of T.W. and the public broadly, were not
violated in this circumstance.
VII. The trial court must correct a clerical error in the abstract of judgment
In the respondent’s brief, the Attorney General notes that although the
trial court imposed consecutive sentences at the sentencing hearing , the
abstract of judgment reflects that the sentences are to run concurrently with
the principal term. Elkins does not dispute this error in his reply brief.
The oral pronouncement of judgment reflects the true sentence, not the
abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)
When clerical errors in the abstract of judgment are discovered on appeal, the
appellate court may order the trial court to correct the abstract of judgment
40
to accurately reflect the oral pronouncement of judgment. (Id. at p. 185.)
Accordingly, we direct the trial court to amend the abstract of judgment to
reflect that Elkins is to serve his prison terms consecutively, as determined
by the trial court at the sentencing hearing.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the
abstract of judgment to reflect the oral pronouncement of judgment and
forward the corrected abstract of judgment to the Department of Corrections
and Rehabilitation.
HALLER, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
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