Opinion
A157179
05-27-2021
THE PEOPLE, Plaintiff and Respondent, v. DONALD ZECHARIAH HARRY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 17CR015130)
Defendant Donald Zechariah Harry appeals from a judgment after a jury convicted him of numerous sexual offenses against Jane Doe occurring on or about May 14, 2017. He argues on appeal that the trial court erred in excluding evidence under Evidence Code section 782, that defense counsel rendered ineffective assistance, and that multiple errors caused cumulative prejudice. We affirm, but we will direct the court to correct the abstract of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged and convicted of two counts of oral copulation of an intoxicated person (former Pen. Code, § 288a, subd. (i), now § 287, subd. (i)), two counts of sexual penetration of an intoxicated person (id., § 289, subd. (e)), and one count of rape of an intoxicated person (id., § 261, subd. (a)(3)). The trial court sentenced him to eight years for the rape count and imposed concurrent middle terms for the remaining counts. The following is a brief summary of the trial evidence.
The victim, referred to as Jane Doe, testified she went to a party with her boyfriend. They arrived sometime around 9:30 p.m. Over the course of the night, Doe drank approximately five shots of liquor, three mixed drinks, and a cup of sangria. This is more than she normally drinks and, progressively, she became unable to talk and walk straight and had black outs with her memory going "in and out for most of the night." Doe's boyfriend had left the party earlier than her; and Doe left alone at around 2:00 a.m.
After taking an Uber back to her apartment near the U.C. Berkeley campus, Jane Doe realized she did not have her keys. She tried calling her boyfriend and buzzing the apartment through the intercom to no avail. At some point she gained entry into the apartment building and banged on her apartment door, again to no avail.
The victim lived with her boyfriend who was attending Berkeley City College.
Eventually, Jane Doe accepted the invitation of three people—a male neighbor, the neighbor's girlfriend, and defendant—to enter the neighbor's apartment. At the time, Doe was crying, ranting, her vision was blurry, and everything seemed to be moving. Doe sat on a bed in the neighbor's living room and talked to the girlfriend and defendant while the neighbor was in the kitchen. The girlfriend offered her a vaporizer pen with marijuana, from which she inhaled about three times. This made Doe feel very tired and more incoherent.
After some time, the neighbor and his girlfriend left the apartment. Jane Doe followed them out and laid on the ground near a staircase, intending to sleep until her boyfriend woke up. Doe thereafter accepted defendant's invitation back into the neighbor's apartment. The two sat on the same bed as before while Doe cried and ranted angrily about wanting to leave her boyfriend for locking her out. Defendant put his arm around Doe, which she perceived as him trying to comfort her, then she fell asleep.
When Jane Doe woke up, she felt confused and slowly realized defendant was performing oral sex on her. She could not think clearly and felt too drunk to get up. She opened her eyes and saw defendant but felt afraid and thereafter kept her eyes closed. Doe testified she slipped in and out of consciousness and sleep as defendant performed other sex acts on her, like digitally penetrating her, opening her mouth to make her orally copulate him, and engaging in vaginal intercourse. Doe testified she did not move or speak and pretended to be asleep during all of these sex acts. She felt terrified that defendant might become violent, and she was afraid because she felt incapable of fighting in her condition. Doe also had a heart problem, which meant she was too weak to fight.
Afterwards, Jane Doe asked defendant for her clothes and left. Outside, she screamed, cried, and banged on her apartment door until her boyfriend finally answered. Doe told her boyfriend she had been raped and it was his fault. Doe got in her car and tried to drive away, but realized she was too intoxicated, so she parked and called 911. Doe was taken to the hospital for a sexual examination, during which defendant's DNA was collected from her body.
A woman living in the neighbor's apartment where the incident occurred testified she awoke around 2:00 or 3:00 a.m. the night of the incident and saw Jane Doe sitting near the stairs in the hallway. Doe appeared inebriated, and this was obvious to the woman because of Doe's general facial features and because she was slurring her words. When the woman tried to go back to sleep, she heard what sounded like two people coming into the apartment, then soft, sporadic sexual moaning from a female.
Thereafter, this woman and defendant conversed via text message. When the woman suggested she heard her male roommate and his girlfriend having sex, defendant said it had been him. Defendant said the roommate and his girlfriend had left him with " 'the girl across the hall who was drunk' " and "said watch her." The woman asked if he meant Jane Doe, and defendant confirmed he did. When asked if Doe was still there, defendant said, "She passed out." Defendant told the woman that Doe's boyfriend left her sleeping outside their apartment, and that Doe got "frisky" with him and left him with "blue balls." Defendant said that Doe "passed the fuck out mid . . . uh," and ended that text message with a smiley face. The woman interpreted that text message as saying Doe "had passed out mid whatever sexual activity they were engaging in."
Jane Doe's boyfriend testified and generally corroborated her account of how much she drank at the party they attended. Doe was "definitely not sober" the next morning, and he could smell the alcohol on her breath. Doe's eyes were bloodshot, and she did not seem in control of herself.
The People also presented testimony from the physician's assistant who examined Jane Doe at the hospital after the incident, and expert testimony about symptoms of alcohol and marijuana intoxication.
Defendant testified on his own behalf. He admitted engaging in the sex acts Jane Doe described, though he denied digitally penetrating her anus. He testified he knew she drank at a party but she did not appear overly intoxicated when the sexual acts occurred, that is, she never slurred or appeared to lose consciousness, and she seemed rational. He indicated Doe expressed her consent by conduct, e.g., they kissed, she helped him take her shorts and underwear off, and she pulled down his pants. Defendant's explanations for his text messages with the woman who lived in the apartment included the following. When he texted saying Doe was "drunk," he meant she had a "buzz going on" and "had been drinking" but it did not appear to him she was actually drunk. Defendant's text saying Doe "passed the fuck out mid . . . " meant he had expected a second round of sex but she fell asleep.
The male neighbor in whose apartment the incident occurred was defendant's cousin, and he and his girlfriend testified Jane Doe did not appear intoxicated. The defense also presented a psychological expert who found that defendant was "well-adjusted" and had "no remarkable history of anything that would suggest that he would be abusive toward another person."
DISCUSSION
Defendant argues the trial court abused its discretion and violated his constitutional rights to present a complete defense and to confrontation by excluding evidence of a prior alleged sexual assault against Jane Doe pursuant to Evidence Code section 782. We conclude there was no error.
All further statutory references are to the Evidence Code unless otherwise indicated.
1. General Principles and Standard of Review
"Evidence of the sexual conduct of a complaining witness is admissible in a prosecution for a sex-related offense only under very strict conditions. A defendant may not introduce evidence of specific instances of the complaining witness's sexual conduct, for example, in order to prove consent by the complaining witness. (Evid. Code, § 1103, subd. (c)(1).)" (People v. Fontana (2010) 49 Cal.4th 351, 362 (Fontana).) That said, in a prosecution for enumerated sex crimes, a defendant may seek to admit evidence of the complaining witness's prior sexual conduct to attack the witness's credibility pursuant to section 782. (§§ 782, subds. (a), (c)(1), 1103, subd. (c)(5).)
Section 782 sets out a specific procedure to admit such evidence. First, a defendant must file a written motion with a sealed offer of proof addressing the relevance of the evidence, including its relevance in attacking the complaining witness's credibility. (§ 782, subd. (a)(1), (2).) If the court finds the offer of proof is sufficient, then it must order a hearing to allow questioning of the complaining witness regarding the offer of proof. (§ 782, subd. (a)(3).) If the court finds the proffered evidence is "relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352," then it may specify the evidence the defendant can introduce and address the scope of permissible questioning. (§ 782, subd. (a)(4).)
A trial court's decision whether to admit evidence under section 782 is reviewed for abuse of discretion. (People v. Bautista (2008) 163 Cal.App.4th 762, 782 (Bautista).)
The parties filed redacted briefs which are publicly accessible and which omit references to portions of a sealed record that are addressed in the unredacted briefs they filed. While we have fully considered the arguments and record citations in the unredacted briefs, this opinion avoids discussion of the sealed material.
(a) Applicability of section 782
Defendant first argues the trial court erred because section 782 did not apply to the evidence of the prior incident. Defendant suggests the court could and should have permitted him to impeach Jane Doe based on her reaction to the prior incident, while precluding evidence concerning specific sexual conduct.
This argument, however, was forfeited because defendant never made it below. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846.) Instead, defense counsel filed a motion to admit the evidence pursuant to section 782.
In any case, there was no error. As used in section 782, the term sexual conduct "encompasses any behavior that reflects the actor's or speaker's willingness to engage in sexual activity. The term should not be narrowly construed." (People v. Franklin (1994) 25 Cal.App.4th 328, 334 (Franklin).) Defendant suggests that Jane Doe's reaction to the sexual conduct in the prior incident fell outside the scope of section 782 because it was not evidence of sexual conduct itself. But any reaction exhibited by Doe in the prior incident that reflected her willingness (or unwillingness) to engage in sexual activity fell squarely within the definition of sexual conduct.
Relying on Bautista, supra, 163 Cal.App.4th 762, defendant contends the court should have somehow separated and admitted evidence of Jane Doe's reaction while excluding evidence of specific sexual acts. In Bautista, the defendant was a church pastor accused of molesting two teenagers. (Id. at pp. 765-766.) The defendant sought to present evidence that he interfered in a sexual relationship between one of the complaining witnesses and another male, which the defense argued was motivation for the complaining witness to falsely accuse him. (Id. at p. 782.) The trial court permitted the defendant to present evidence of the source of animosity between the defendant and the complaining witness, but prohibited the defendant from asking questions about the complaining witness's sexual conduct with the other male. (Ibid.) The Court of Appeal found no error, explaining the repercussions of the complaining witness's sexual conduct with the other male, not the sexual conduct itself, was relevant to the jury's understanding of the complaining witness's alleged bias against the defendant. (Id. at p. 783.)
Bautista bears no resemblance to the case at hand. In this case, the proffered evidence did not implicate any potential motivation for Jane Doe to file a false report against defendant. (Cf. Bautista, supra, 163 Cal.App.4th at pp. 782-783.) Furthermore, the evidence of the complaining witness's animosity toward the defendant in Bautista could be presented without divulging specifics about the complaining witness's sexual conduct. (Id. at p. 783.) Here, defendant fails to explain how evidence of Doe's reaction during the prior incident would have been relevant apart from the sexual scenario that caused it. As defendant acknowledges, the relevance of Doe's reaction during the prior incident to the case at hand depended on the similitude between what occurred in the two incidents.
Defendant also relies on Franklin, supra, 25 Cal.App.4th 328, as support for his position. In Franklin, the appellate court concluded that evidence of an alleged child molestation victim's prior false accusation of sexual misconduct against a third person did not fall within section 782. (25 Cal.App.4th at p. 335.) In distinguishing between evidence of sexual conduct and evidence of prior false claims of sexual misconduct, the court reasoned: "[e]ven though the content of the statement has to do with sexual conduct, the sexual conduct is not the fact from which the jury is asked to draw an inference about the witness's credibility." (Ibid.)
Defendant's reliance on Franklin is misplaced. Here, the excluded evidence did not concern a false accusation. To the contrary, it bolstered Jane Doe's veracity. Further, defendant's position is, in essence, that the jury should have been permitted to infer Doe was lying about not consenting to sex with defendant based on her conduct during the prior incident. Thus, unlike in Franklin, Doe's past sexual conduct was "the fact from which the jury [was] asked to draw an inference about [her] credibility." (Franklin, supra, 25 Cal.App.4th at p. 335.)
Last, we address defendant's reliance on language in Fontana, supra, 49 Cal.4th 351, that evidence of sexual conduct may be admissible under section 782 if it is relevant under section 780 and is not barred by section 352 because "[i]n such circumstances, 'it is not the fact of prior sexual activity as such that is important, but something about the special circumstances under which that prior sexual activity took place that renders it important.' " (49 Cal.4th at p. 363.) Fontana involved a victim who had consensual sex shortly before the defendant allegedly raped her, and the consensual sex could have provided an alternative explanation for injuries the defendant allegedly caused. (Id. at p. 366.) The Fontana court concluded the offer of proof was thus sufficient for a further hearing under section 782, subdivision (a)(3), but found the error harmless. (Fontana, at pp. 366-368.) In contrast to Fontana, here the proffered evidence provided no alternative explanation for the physical evidence in this case. Nor did the evidence suggest a motive for Jane Doe to lie or bear negatively on her credibility in and of itself.
(b) Section 782 , subdivision (a)(3)
Next, defendant contends the trial court erred in refusing to hold a hearing under section 782, subdivision (a)(3). We see no error.
The sufficiency of an offer of proof is a matter within the trial court's discretion. (§ 782, subd. (a)(3); People v. Rioz (1984) 161 Cal.App.3d 905, 916.) The court must consider whether the evidence is relevant and whether the probative value is outweighed by the probability of undue prejudice or the undue consumption of time. (People v. Blackburn (1976) 56 Cal.App.3d 685, 691.) In assessing defendant's claim, we bear in mind that "section 782 is designed to protect victims of molestation from 'embarrassing personal disclosures' unless the defense is able to show in advance that the victim's sexual conduct is relevant to the victim's credibility." (Bautista, supra, 163 Cal.App.4th at p. 782, italics added.)
We cannot say the trial court abused its discretion in finding the offer of proof insufficient for a hearing under section 782, subdivision (a)(3). At a hearing on the same day that he filed the written offer of proof, defense counsel, in substance, conceded the only allegation in his written offer of proof as to how the prior incident bore on the victim's credibility was insufficient.
While defense counsel also made an oral argument about how Jane Doe's reaction to the prior incident tended to impeach her claim that she did not consent to sex with defendant in this case, defense counsel did not argue this in his written offer of proof, as required by section 782, subdivision (a)(2). This is reason enough to reject a claim that a hearing should have been held based on this offer of proof. But even without this procedural defect, we would still conclude the trial court did not abuse its discretion in finding the offer of proof insufficient. As the court touched upon, the offer of proof was devoid of facts suggesting that Doe's level of intoxication during the prior incident was comparable to her level of intoxication during the charged offenses.
Not only could the trial court reasonably conclude defense counsel had not established the relevance of the evidence, the court could also reasonably conclude the balance between probative value and prejudicial effect weighed in favor of excluding the evidence. (People v. Blackburn, supra, 56 Cal.App.3d at pp. 691-692.) As the court indicated, the proffered evidence had the potential to create confusion. We cannot say the court acted outside the bounds of reason.
In sum, the trial court did not abuse its discretion in finding the offer of proof insufficient to hold a hearing under section 782, subdivision (a)(3).
(c) The Right to Present a Complete Defense and to Confront Witnesses
Having concluded the trial court did not err in excluding the evidence under section 782, we reject defendant's argument that the exclusion violated his federal constitutional rights to present a defense and to confrontation. " ' "[A]pplication of the ordinary rules of evidence generally does not impermissibly infringe on a . . . defendant's constitutional rights." ' " (People v. Eubanks (2011) 53 Cal.4th 110, 143.)
We are unpersuaded by defendant's reliance on Davis v. Alaska (1974) 415 U.S. 308 and Olden v. Kentucky (1988) 488 U.S. 227. In contrast to the situations in those cases, the evidence excluded here had no tendency to show that Jane Doe had a motive to fabricate her identification of a perpetrator or to fabricate the occurrence of the charged crimes. (Davis, at p. 317; Olden, at p. 232.) Given the statements of the suspect in the prior incident to the police, defendant's suggestion that the excluded evidence would have given the jury a " 'significantly different impression' " of Doe's credibility is baseless. (Olden, at p. 232.)
B. Ineffective Assistance of Counsel
Defendant next argues that he suffered from ineffective assistance of counsel. We reject this.
During trial, the defense presented expert testimony from Dr. Jeremy Coles, a clinical and forensic psychologist with experience evaluating whether prisoners qualify for commitment as sexually violent predators. (Welf. & Inst. Code, § 6600 et seq.) Dr. Coles obtained defendant's historical information (e.g., regarding his relationships with his parents and former romantic partners, criminal history, education, substance use) and administered two psychological tests. Finding no evidence that defendant had a significant mental illness, antisocial behavior, or anything concerning, Dr. Coles issued a report and concluded that defendant was "well-adjusted" and had "no remarkable history of anything" suggesting "he would be abusive toward another person."
On cross-examination, Dr. Coles acknowledged that only one of the articles in his report dealt with "campus related or alcohol related rape," and that particular article stated " 'multiple studies have found that underreporting to law enforcement is a significant issue with as few as five to 20 percent of sexual assault cases being reported.' " Dr. Coles was unfamiliar with an article stating that most rapists are not serial rapists. When questioned how one could draw a profile of someone predisposed to commit rape in college environments given the low victim reporting rates, Dr. Coles acknowledged the research that he relied on could not account for rapists who are never reported.
The prosecutor then asked Dr. Coles whether rape on college campuses is underreported "because the process after reporting a rape is as demeaning as the rape itself in many ways." The prosecutor asked: "In fact, most women who actually report rape and follow through feel as if the system sort of raped them again, right?" The prosecutor also inquired about an article reporting that 54 percent of the women studied experienced some form of sexual assault in college. That article indicated that both male and female college students perceived that a male perpetrator who rapes a female college student is less responsible if he was intoxicated and that the female student is more responsible if she was intoxicated.
Defendant now argues his attorney rendered ineffective assistance by failing to object to the foregoing line of questioning under section 352. Specifically, he argues counsel should have objected when the prosecutor asked questions that effectively told the jury the incidence of victims reporting sex crimes was low because of the system's poor treatment of victims and people's tendency to disbelieve and blame victims who have been drinking. He claims this was improper cross-examination because the information was irrelevant to the reliability of Dr. Coles's opinion testimony.
Defendant also argues that, while it was permissible to inquire whether campus rapists have a predictable profile, the thrust of the prosecutor's questions was to foster sympathy for women, such as Jane Doe, who were intoxicated when assaulted, and so his attorney should have asked for a limiting instruction directing the jury to consider this line of questioning only as it pertained to the expert's credibility. We reject these claims.
To prove ineffective assistance, a defendant must show both that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and the deficient performance prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687.) "A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. 'If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.' " (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
Here, defendant fails to demonstrate deficient performance by counsel. The record is silent as to counsel's omissions, and it cannot be said there could be no satisfactory explanation. Defense counsel might reasonably have believed the questions were fair cross-examination that called into question Dr. Coles's ability to accurately profile a person who commits rape by intoxication on or near a college campus. Parties traditionally have wide latitude when cross-examining an expert to test their credibility, and " ' "a broader range of evidence may be properly used on cross-examination to test and diminish the weight to be given the expert opinion than is admissible on direct examination to fortify the opinion." ' " (People v. Pearson (2013) 56 Cal.4th 393, 459-460.) " 'It is common practice to challenge an expert by inquiring in good faith about relevant information, including hearsay, which he may have overlooked or ignored.' " (Id. at p. 460; see People v. Bell (1989) 49 Cal.3d 502, 532.)
Rather than calling attention to the line of questioning, counsel also could reasonably have deemed it best to address the questions during closing argument, as he did. "Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight. . . . A reviewing court will not second-guess trial counsel's reasonable tactical decisions." (People v. Kelly (1992) 1 Cal.4th 495, 520.)
And even assuming counsel performed deficiently, defendant fails to show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S. at p. 694.) Here, the trial evidence pointing to defendant's guilt was ample and strong. Witnesses corroborated Jane Doe's account of the amount of alcohol she consumed and her objective signs of intoxication around and after the sex acts. Expert testimony established the physiological effects of the substances Doe consumed. Defendant's text messages directly after the sex acts were patently incriminating. Finally, the now-challenged cross-examination of Dr. Coles was relatively brief. On this record, defendant fails to show a reasonable probability of a more favorable outcome had counsel objected or asked for a limiting instruction regarding Dr. Coles's cross-examination.
C. Cumulative Prejudice
Defendant claims reversal is warranted because of cumulative prejudice from the claimed errors. Because defendant has failed to demonstrate any error, the claim is rejected.
D. Correcting the Abstract of Judgment
The trial court sentenced defendant to eight years for the rape count and imposed concurrent middle terms for the remaining counts. The middle terms for those counts are six years. (Former Pen. Code, § 288a, subd. (i), now § 287, subd. (i)); id. § 289, subd. (e).) The abstract of judgment, however, states the court imposed two-year concurrent terms for the remaining counts. We notified the parties that we proposed to correct this apparent error in the abstract of judgment, and offered them an opportunity to file supplemental letter briefs in response. Although the People filed a simple letter agreeing that our proposed correction of the record is appropriate, defendant did not file a letter brief or otherwise respond to our inquiry. We will order the court to correct the abstract.
DISPOSITION
The trial court is directed to correct the abstract of judgment in accord with this opinion and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
/s/_________
Fujisaki, Acting P.J. WE CONCUR: /s/_________
Petrou, J. /s/_________
Wiseman, J.
Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------