People v. Byers ( 2021 )

Filed 3/1/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B302061
(Super. Ct. No. 18CR03793)
Plaintiff and Respondent, (Santa Barbara County)
v.
KAHLIL AKHELLIE BYERS,
Defendant and Appellant.
Kahlil Akhellie Byers appeals from the judgment
after the jury convicted him of kidnapping to commit rape, oral
copulation, or sodomy (Pen. Code,1 § 209, subd. (b)(1)), sodomy by
use of force (§ 286, subd. (c)(2)(A)), and two counts of commercial
burglary (§ 459), and found true allegations that he inflicted
great bodily injury (§§ 667.61, subd. (d)(6), 1203.075, 12022.8),
committed kidnapping for sexual purposes (§ 667.8, subd. (a)),
and substantially increased the risk of harm of sodomy by
kidnapping the victim (§ 667.61, subd. (d)(2)). The court
sentenced Byers to 17 years and eight months in state prison,
1
All subsequent undesignated statutory references are to
the Penal Code.
followed by an indeterminate term of 32 years to life.
Byers contends the trial court: (1) abused its
discretion when it admitted evidence he watched pornographic
videos, (2) improperly refused to allow jury voir dire midtrial, and
(3) erroneously instructed the jury regarding mental impairment
of a witness. He further contends: (4) he received ineffective
assistance of counsel, (5) cumulative errors require reversal, and
(6) a great bodily injury enhancement was improper. We modify
the great bodily injury enhancement and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Early one morning at 2:18 a.m., Byers shattered the
glass door of a shoe store, entered, and took merchandise.
Twenty minutes later, he broke the display window of a pawn
shop and took jewelry.
At approximately 3:40 a.m., Byers approached the
victim, Jane Doe, who was homeless and sleeping outside. He
woke her and said he wanted to “smoke something.” Doe did not
know Byers. She gathered her belongings and ran away.
Byers ran after Doe, grabbed her by the hair and
wrists, and dragged her down an alley. He pinned her against a
wall behind a trash dumpster and began assaulting her.
During the next hour, Byers repeatedly struck Doe’s
face. He touched her vagina with his penis. He forcibly
penetrated her anus three times with his penis and finger.
Byers stopped his attack when a van entered a
nearby parking lot. Byers and Doe ran away in different
directions. She left behind her backpack and other belongings.
In a 911 call minutes later, Doe said she was “beaten and raped
[¶ . . . ¶] behind a dumpster off of Carrillo.”
Byers returned to the homeless shelter where he was
2
staying at 5:51 a.m. He was wearing Doe’s backpack. Later that
morning, he texted and phoned a fellow resident of the shelter,
C.F., to ask if police were searching his belongings. Byers said he
committed a “smash-and-grab” burglary the night before. He
showed C.F. a woman’s wallet and keys and tried to sell them to
him.
Investigation
Surveillance video showed Doe being dragged down
the alley and running away one hour, 39 minutes later. Police
found her bloodstained backpack containing her bank card under
Byers’s bunk at the homeless shelter. Jeans in the backpack had
Doe’s driver’s license in the pocket. Her wallet and keys were in
his locker. Blood stains on his shirt contained DNA that matched
Doe. His right hand was swollen and bruised.
Doe’s knees, neck, back, and left wrist were injured in
the assault. Her nose and cheek bone were fractured. Her eyes
were bruised and swollen, and blood was in her left eye. She
received approximately 25 sutures to repair lacerations to her lip
and two sutures for her eye.
A Sexual Assault Response Team (SART) nurse
examined Doe. Doe described the assault, including being
dragged by her wrists and hair and being forced to have oral and
anal intercourse. Because Doe’s anus was so painful and swollen,
the nurse was unable to swab far enough to recover specimens,
but concluded that the physical examination was consistent with
the history Doe gave.
A swab from Doe’s left wrist matched Byers’s DNA
profile. A small amount of male DNA was found in her perianal
swab.
Near the dumpster, police found a bag belonging to
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Doe, and socks and a hat stolen from the shoe store. Blood
smears were found on the dumpster, and blood splatter on a wall
behind it. Fluid at the crime scene contained Byers’s DNA.
Pornography evidence
On cross-examination, Byers testified he was “[n]ot
into anal sex at all” and had “never been interested in anal sex.”
The prosecution then filed a motion to allow admission of
evidence of oral and anal sex pornography accessed on Byers’s
phone. Byers opposed the motion. The court ruled that the
search history from the day before and the day of the crime was
admissible. The court ordered that a printout of the search
history be sanitized to include only the time the videos were
accessed and their general topics (e.g., “oral” or “anal”) and
excluded the titles of the videos. The court did not permit the
jury to view the videos.
The court denied Byers’s request to reopen voir dire
and question the jurors about whether they had concerns about
pornography. Before the evidence was introduced, the court read
the jury an instruction that evidence of searches for, or views of,
67 pornographic videos on Byers’s cell phone could be considered
only if the prosecution proved by a preponderance of the evidence
that he searched for or viewed the videos. The court instructed
that the activity was not criminal, and could be considered only
for limited purposes: to determine whether Byers acted with the
intent or motive to commit kidnapping, sodomy, or oral
copulation; whether he had a reasonable good faith belief that
Doe consented; or to determine Byers’s credibility. The
instruction stated, “Do not conclude from this evidence that the
defendant has bad character or is predisposed to commit crime.
[¶] And if you conclude that the defendant committed these
4
searches as indicated, that conclusion is only one factor to
consider, with all of the other evidence, and I want to emphasize
it’s not sufficient by itself to prove that the defendant is guilty
. . . .”
The court then permitted the defense to call Byers
out of order to ask him about the pornography. He admitted
viewing pornography on his cell phone. He denied typing a
search for combined anal and oral sex. He testified that he let
others use his phone without monitoring them.
In rebuttal, the prosecutor presented evidence that in
the hours before the incident, Byers texted three other women
attempting to make plans with them, and viewed pornographic
sites between the messages. The search for combined anal and
oral sex appeared on his phone seven hours before the assault.
The parties stipulated to admission of a printout with the times
and general topics of the pornography sites.
The trial court repeated the jury instruction
regarding pornography at the conclusion of the evidence. During
closing argument, the prosecutor stated, “It’s not a crime to look
at pornography. [¶] This isn’t about being against pornography
at all.” The prosecutor argued that the pornography contradicted
Byers’s claim that he did not plan on having sex with the victim,
and showed “what he was looking for,” and “what his intent was
and his motive was.”
DISCUSSION
Admission of pornography evidence
Byers contends that the trial court abused its
discretion when it admitted evidence that he watched
pornography shortly before committing the assault. We disagree.
We review a trial court’s ruling admitting evidence
5
for abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786,
864.) Possession of pornography is properly admitted when its
relevance to motive or intent is not outweighed by undue
prejudice. (Id. at p. 865.) In Memro, the defendant was charged
with felony murder during commission of a lewd act on a child.
Our Supreme Court held that magazines and photographs of
children in sexual poses were properly admitted as relevant to his
motive and intent to perform lewd acts on the victim. (Id. at p.
864.) Although the evidence included material that “would
undoubtedly be disturbing to most people,” the court found the
probative value outweighed the prejudicial effect. (Id. at p. 865.)
Byers relies on People v. McCurdy (2014) 59 Cal.4th
1063 (McCurdy), which affirmed convictions for murder and
kidnapping for the purpose of committing a lewd act on a child.
The trial court admitted the titles of adult-oriented magazines
the defendant possessed that “focus[ed] on teenage women who
were staged to appear younger than their actual ages.” (Id. at p.
1072.) The trial court also admitted the titles of nine “adult-
oriented videotapes” defendant had rented the day the victim was
abducted as “relevant to demonstrate his interest or
preoccupation with ‘his sexual passions at the time in question.’”
(Id. at p. 1100.) Our Supreme Court held the evidence was
relevant to the defendant’s intent and motive when he abducted
the victim. (Id. at p. 1102.)
The trial court here did not abuse its discretion.
Videos depicting oral and anal intercourse were relevant to
Byers’s motive and intent when he kidnapped Jane Doe. They
also impeached his testimony that he was not “into” or
“interested in” the type of sexual contact the victim testified he
committed. The court went further than McCurdy to avoid undue
6
prejudice by allowing admission of only the topics and not the
titles of the material, and by giving a limiting instruction before
the evidence was admitted and again at the conclusion of the
evidence. We presume the jury followed this instruction. (People
v. Davis (2005) 36 Cal.4th 510, 537.)
That the evidence did not show that the videos
depicted forced anal intercourse did not make them irrelevant.
The lowest degree of similarity between a charged crime and
uncharged misconduct evidence is required in order to establish
relevance on the issue of intent. (People v. Kipp (1998) 18 Cal.4th
349, 371.)
We do not agree that the prosecutor’s questions about
Byers’s interest in anal sex were an improper “trap” or “trick” to
“set up” his impeachment. The prosecution had the burden to
prove that Byers kidnapped Doe with the intent to commit
sodomy, oral copulation, rape, or sexual penetration. (CALCRIM
No. 1203, modified.) Whether he had an interest in sodomy was
thus a fair question.
This is not a case in which irrelevant or otherwise
inadmissible evidence was introduced for the sole purpose of
impeaching the credibility of the witness with contradictory
evidence. (Cf. People v. Lavergne (1971) 4 Cal.3d 735, 743-744
[witness asked where he obtained car in attempt to introduce
evidence he stole it]; Marocco v. Ford Motor Co. (1970) 7
Cal.App.3d 84, 93-94 [evidence of vehicle defects unrelated to
accident introduced to impeach discovery responses].) Here, the
questions regarding sodomy and the pornography evidence were
relevant to Byers’s motive and intent.
Nor did admission of pornography evidence violate
Byers’s right to due process. “[T]he Due Process Clause
7
guarantees the fundamental elements of fairness in a criminal
trial.” (Spencer v. State of Texas (1967) 385 U.S. 554, 563-564.)
Spencer held that evidence to the jury of prior convictions did not
violate due process in light of state procedures to weigh the
usefulness of the evidence against its prejudicial effect, the
purpose of recidivist statutes, and limiting instructions to the
jury. (Id. at pp. 562-563.)
Here too, the court weighed the probative value of the
evidence against its prejudicial effect, admitted the evidence on
relevant issues of motive and intent, and gave limiting jury
instructions. (See People v. Falsetta (1999) 21 Cal.4th 903[admission of propensity evidence of prior sex crimes did not
violate due process].) This is not “one of those rare and unusual
occasions where the admission of evidence has violated federal
due process and rendered the defendant’s trial fundamentally
unfair.” (People v. Albarran (2007) 149 Cal.App.4th 214, 232
[admission of “extremely inflammatory gang evidence” that had
“no legitimate purpose” was not harmless and violated due
process]; see People v. Partida (2005) 37 Cal.4th 428, 439
[improper admission of gang evidence did not render trial
fundamentally unfair].)
Voir dire
Byers contends that after the trial court ruled the
pornography evidence admissible, it erred in refusing to reopen
voir dire to inquire into the jurors’ views on pornography. There
was no error.
Reopening voir dire of seated jurors requires a
showing of good cause; speculation that good cause exists is not
sufficient. (People v. Clark (2011) 52 Cal.4th 856, 966 (Clark).)
We review a trial court’s decision whether to reopen voir dire for
8
abuse of discretion. (Ibid.)
Here, Byers received pretrial discovery of the
pornography evidence but did not request that jurors be
questioned about it until after the prosecution presented its case-
in-chief. Byers has cited no authority for the proposition that a
court may reopen voir dire during the presentation of evidence on
a topic counsel had not contemplated during jury selection. (See
People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 314 [no right
to reopen voir dire regarding racial bias after jury sworn].) But
any discretion the court may have had was not abused here.
Limitations on voir dire are not reversible unless “the resulting
trial was rendered fundamentally unfair.” (People v. Bell (2019) 7
Cal.5th 70, 92.) That did not occur here.
This case is not like People v. Chapman (1993) 15
Cal.App.4th 136, where the court denied a request to question
prospective jurors whether they would harbor prejudice against
the defendant based on his prior felony conviction. There, the
“failure to test the jury for impartiality . . . constituted an abuse
of discretion” and violated the “Sixth Amendment right to an
impartial jury.” (Id. at p. 141.) But the request for voir dire in
Chapman was made before jury selection was completed, not in
the middle of trial. Chapman is inapposite.
Jury instruction
Byers contends there was insufficient evidence to
warrant a jury instruction regarding evaluation of a witness with
a mental or communication impairment. We again disagree.
CALCRIM No. 331 tracks section 1127g, which
requires an instruction, upon request, if a witness has “a
developmental disability, or cognitive, mental, or communication
impairment.” Byers agreed to the instruction regarding a
9
communication impairment based on Doe’s speech impediment.
But he objected to language regarding a developmental,
cognitive, or metal disability.
The court modified CALCRIM No. 331 and instructed
the jury that if it “determine[d] that a witness has a mental or
communication impairment,” it may “consider all of the factors
surrounding that person’s testimony, including his or her level of
cognitive development.” Even though the person “may perform
differently as a witness . . . that does not mean he or she is any
more or less credible than another witness. [¶] You should not
discount or distrust the testimony of a person with a mental, or
communication impairment, solely because he or she has such a
disability or impairment.”
“A trial court must give a requested instruction only
if it is supported by substantial evidence, that is, evidence
sufficient to deserve jury consideration.” (People v. Marshall
(1997) 15 Cal.4th 1, 39.) “[T]here need only be some evidence in
the record that, if believed by the jury, would sufficiently support
the suggested inference.” (People v. Alexander (2010) 49 Cal.4th
846, 921.)
The evidence here was sufficient to warrant the
instruction. Some of Doe’s statements in court were erratic. She
refused at first to be sworn as a witness. When the prosecutor
asked if she wanted to be called by her first name, she responded,
“Is that a threat?” She testified that she did not want to be in
court “[b]ecause this doesn’t have anything to do with me, really.
I guess I was a witness.” She testified that after the preliminary
hearing, “I think my PTSD was even worse. . . . I’d like to get
better mentally.”
In chambers, the prosecutor said Doe “has some
10
severe mental health problems, which I’m sure we can all tell just
by her behavior and her demeanor.” The trial court stated that
Doe has “obviously got mental health issues.” Near the end of the
trial, the court stated, “just observing her behavior, I think her
cognitive disabilities were fairly obvious.”
Giving CALCRIM No. 331 did not lower the
prosecution’s burden of proof. The instruction does not “‘“unduly
inflate the testimony’”” of the witness. (People v. Catley (2007)
148 Cal.App.4th 500, 507 (Catley).) Instead, it advises the jury to
consider the impairment with “all of the factors surrounding that
person’s testimony,” and states that the impairment “does not
mean he or she is any more or less credible than another
witness.” (CALCRIM No. 331, italics added.) A defendant
“cannot complain of an instruction the necessary effect of which is
to increase the likelihood of a fair result.” (Catley, at p. 507.)
In People v. Keeper (2011) 192 Cal.App.4th 511, the
Fourth District concluded that section 1127g applies only “to
persons whose developmental disability, or cognitive, mental, or
communication impairment, causes them to be dependent on
others for care.” (Id. at p. 521.) We do not read section 1127g as
being so limited. The plain language of section 1127g applies to a
witness with a “developmental disability, or cognitive, mental, or
communication impairment,” without limitation to dependent
persons. Keeper relied on the statement of legislative intent to
“protect[] the rights of developmentally disabled persons and
other dependent persons who are witnesses in criminal cases.”
(Stats. 2004, ch. 823, § 1, quoted in Keeper, supra, 192
Cal.App.4th at p. 521.) But some sections of the legislation that
added section 1127g do not involve, or are not limited to,
11
dependent persons.2
“CALCRIM No. 331 ‘provides sound and rational
guidance to the jury in assessing the credibility of a class of
witnesses as to whom “‘traditional assumptions’” may previously
have biased the factfinding process.’” (Catley, supra, 148
Cal.App.4th at p. 508.) This guidance is appropriate for
witnesses whose impairments may affect their testimony,
whether or not they are dependent on others.
The jurors were not instructed that Doe had a mental
or communication impairment. Instead, they were to apply the
instruction if they determined she had such an impairment. The
trial judge noted that Doe’s disabilities were “obvious” after
observing her behavior in court. The jurors could consider their
observations of her demeanor. (Conservatorship of E.B. (2020) 45
Cal.App.5th 986, 996, review granted June 24, 2020, S261812
[conservatorship jury trial finding grave disability]; People v.
Ghobrial (2018) 5 Cal.5th 250, 269 [denial of competence hearing
2 For example, one section of the legislation authorized
courts to make reasonable accommodations for “adults and
children with disabilities” who were victims of sexual offenses.
(Stats. 2004, ch. 823, § 16, amending Pen. Code, § 1347.5, subds.
(a) & (b).) For purposes of section 1347.5, “disability” was defined
as “any mental or psychological disorder or condition . . . that
limits a major life activity,” i.e., that “makes the achievement of
the major life activity difficult,” or is included in the broader
protections of the Americans with Disabilities Act. (§ 1347.5,
subd. (a)(1), incorporating former Gov. Code, § 11135, subd. (c)(1)
& (2) (Stats. 2003, ch. 784), which in turn incorporated former
Gov. Code, § 12926, subds. (i)(1), (i)(1)(B) & (l) (Stats. 2003, ch.
164, § 1) (now subds. (j)(1), (j)(1)(B) & (n).) Dependency is not
required.
12
based on judge’s observations of defendant].)
And the instruction did not suggest that the jury
could ignore other factors regarding Doe’s credibility. “‘“[T]he
correctness of jury instructions is to be determined from the
entire charge of the court, not from a consideration of parts of an
instruction or from a particular instruction.”’” (People v. Wilson
(1992) 3 Cal.4th 926, 943.) The jury was given standard
instructions on assessing the credibility of witnesses. (CALCRIM
Nos. 105 & 226, modified.) The jury was also instructed
regarding evaluating conflicting evidence (CALCRIM No. 302)
and prior statements of a witness (CALCRIM No. 318, modified).
Taken together, the instructions did not mislead or confuse the
jury. (People v. Jaspar (2002) 98 Cal.App.4th 99, 111.)
Ineffective assistance of counsel
Byers contends that his attorney rendered ineffective
assistance when he failed to object to evidence that he refused to
answer questions by the SART nurse. We are not persuaded.
When police told Byers that a SART nurse would
examine him pursuant to a search warrant, Byers disputed his
obligation to be examined. The nurse testified without objection
that he refused to answer her questions regarding his address,
telephone number, and “hygiene information” regarding whether
he urinated, defecated, showered, brushed his teeth, or changed
clothes after the incident. She testified, “He didn’t seem that he
felt like he needed to—to cooperate with all—with everything
that I was asking him.”
On cross-examination, the nurse agreed that other
than his address and hygiene questions, Byers answered all
questions, including his date of birth, medical conditions, and
recent injuries. She testified that he cooperated with her taking
13
his blood pressure, pulse, and temperature. She agreed that she
did not know he was homeless and it “would not be strange” for a
homeless person to refuse to answer a question about their
address. Defense counsel asked if she knew if he had access to a
place to bathe or conduct other hygiene activities, but the court
sustained objections to those questions.
To establish ineffective assistance of counsel,
defendant must show that “‘counsel’s performance was deficient,
in that it fell below an objective standard of reasonableness under
prevailing professional norms,’” and there is “‘a reasonable
probability that, but for counsel’s deficient performance, the
outcome of the proceeding would have been different.’” (People v.
Hoyt (2020) 8 Cal.5th 892, 958.) “‘If the record does not shed
light on why counsel acted or failed to act in the challenged
manner, we must reject the claim on appeal unless counsel was
asked for and failed to provide a satisfactory explanation, or
there simply can be no satisfactory explanation.’ [Citation.]”
(People v. Hernandez (2004) 33 Cal.4th 1040, 1053.) “An attorney
may choose not to object for many reasons, and the failure to
object rarely establishes ineffectiveness of counsel.” (People v.
Kelly (1992) 1 Cal.4th 495, 540.)
Byers has not established ineffective assistance of
counsel. The jury already knew he did not want to be examined.
On cross-examination of the nurse, counsel suggested
explanations for Byers refusing to answer questions including
embarrassment at being homeless and lack of access to a
bathroom. Byers has not negated the possibility that counsel had
a tactical reason to allow the evidence as a means to elicit
sympathy for his homelessness. There is no reasonable
probability the outcome would have been different without the
14
evidence that Byers refused to answer some of the nurse’s
questions.
Cumulative prejudice
Byers contends the combination of the asserted trial
errors “created a negative synergistic effect” that deprived him of
a fair trial. (People v. Hill (1998) 17 Cal.4th 800, 847.) Because
we have rejected Byers’s claims of error, “we likewise conclude
that the cumulative effect of these asserted errors was not
prejudicial and does not require reversal.” (People v. Bonilla
(2007) 41 Cal.4th 313, 360.)
Great bodily injury enhancement
As to kidnapping (count 1), the court imposed a five-
year great bodily injury enhancement (§ 12022.8). The parties
agree that by its terms, section 12022.8 does not apply to
kidnapping, and ask that it be replaced by the three-year
enhancement for infliction of great bodily injury in the
commission of any felony (§ 12022.7, subd. (a)). (People v.
Strickland (1974) 11 Cal.3d 946, 961.) We accept their
stipulation and order the judgment be modified accordingly.
DISPOSITION
The judgment is modified as to count 1 to strike the
five-year great bodily injury enhancement (§ 12022.8) and replace
it with a three-year enhancement (§ 12022.7). The trial court is
directed to prepare an amended abstract of judgment reflecting
15
the modification and to forward the amended abstract to the
Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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James E. Herman, Judge
Superior Court County of Santa Barbara
______________________________
Matthew Alger, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Joseph P. Lee and Jaime L. Fuster,
Deputy Attorneys General, for Plaintiff and Respondent.