PEOPLE v. WELCH

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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Christopher Shawn WELCH, Defendant and Appellant.

No. H014843.

Decided: December 19, 1996

J. Frank McCabe, Under Appointment by the Sixth District Appellate Program, for Defendant/Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Asst. Atty. General, Ronald A. Bass, Senior Asst. Atty. General, Ronald S. Matthias, Supervising Deputy Atty. General, Martin S. Kaye, Deputy Atty. General, Richard Rochman, Deputy Atty. General, for Plaintiff/Respondent.

Defendant was convicted of rape (Pen.Code, § 261, subd. (a)(2)) and penetration with a foreign object (Pen.Code, § 289, subd. (a)), and allegations that he had suffered a prior serious felony conviction (Pen.Code, § 667, subd. (b) to (i)) and two prior felony convictions for which he had served prison terms (Pen.Code, § 667.5, subd. (b)) were found true.   He was committed to state prison for thirty-four years.   On appeal, he claims that the trial court prejudicially erred when it allowed the prosecution to utilize his admission, during a polygraph examination, that he had had consensual sex with the victim and refused to allow defendant to introduce evidence of the results of that polygraph examination.   Defendant also challenges his sentence.1  We affirm the judgment.

FACTS

Defendant is married to the victim's mother.   The victim did not usually live with her mother, but she lived with defendant and her mother in defendant's apartment for a couple of months in the summer of 1994.   The victim was fourteen years old at the time of the charged offenses.   These offenses occurred in the morning.   The victim woke up and went into the living room which defendant and her mother used as a bedroom.   Defendant was lying in the sofabed.   The victim asked defendant where her mother was, and he replied that her mother had gone out.   The victim sat on the edge of the sofabed and began watching television.   Defendant said to her “you're so pretty.”   This statement scared the victim because defendant had sexually molested her seven years earlier.2  She got up to leave, but defendant grabbed her arm and pulled her back down on the bed.   Defendant stuck his hands down her pants and placed his fingers in her vagina.   He told her that “he would hurt my mother if I told anybody.”   Defendant then pulled her pants down, pulled his underwear down, got on top of her and had sexual intercourse with her.   After he was done, he repeated his threat to hurt her mother if she told anyone.   The victim did not tell anyone about these offenses immediately.   Several months later, she told her aunt what defendant had done to her.   A police officer spoke with defendant, and defendant denied that he had had sex with the victim or even touched her or been alone with her in the summer of 1994.   Defendant subsequently told a polygraph examiner hired by his attorney that he had had consensual sex with the victim on three occasions.

Defendant was charged by information with rape (Pen.Code, § 261, subd. (a)(2)) and penetration by a foreign object (Pen.Code, § 289, subd. (a)), and it was further alleged that he had suffered a prior serious felony conviction (Pen.Code, § 667, subd. (b) to (i)) and multiple prior felony convictions for which he had served prison terms (Pen.Code, § 667.5, subd. (b)).  The priors were bifurcated.   The jury returned guilty verdicts on both counts.   Defendant waived his right to a jury trial on the priors, and the court found the prior serious felony allegation and two prison prior allegations true.   The trial court selected the upper term for each count, doubled each term pursuant to Penal Code section 667, subdivision (e)(1), imposed fully consecutive terms pursuant to Penal Code section 667.6, subdivision (d) and imposed two one-year consecutive terms for the prison priors.   Defendant's trial attorney objected to the sentence on constitutional grounds.   Defendant was committed to state prison for a total term of thirty-four years, and he filed a timely notice of appeal.

DISCUSSION

A. ADMISSION AND POLYGRAPH RESULTS

The prosecutor brought an in limine motion to determine the admissibility of the testimony of a polygraph examiner that defendant had admitted having sex with the victim.   The prosecutor also sought a ruling that the results of the polygraph examination were inadmissible.   Defendant opposed the prosecutor's motion.   He claimed that, if the prosecution was permitted to use his admission, he should be allowed to introduce evidence of the results of the polygraph examination.   Defendant asserted that Evidence Code section 356 permitted him to admit the examiner's “report” to put his admissions “in context.”   The court ruled that the prosecutor could introduce evidence of defendant's admission, and it refused to allow defendant to adduce evidence of the results of the polygraph examination.   The polygraph examiner thereafter testified before the jury that defendant had admitted having sex with the victim on three occasions and had claimed that these acts were consensual.3  Defendant claims that the trial court's ruling was prejudicially erroneous.   We disagree.

Defendant submitted to a polygraph examination at his own behest.   During the defense-employed polygraph examiner's “pretest interview” with defendant, defendant told her that he had had sex with the victim on three occasions.   However, he claimed that these sexual acts were consensual, and he denied that he had forced the victim to have sex with him.   The polygraph examiner expressed the opinion that defendant had been telling the truth when, during the polygraph examination which followed this admission, he denied forcing the victim to have sex with him.   The examiner prepared a written report based on her examination and submitted it to defendant's attorney.   After receiving this report, defendant and his attorney decided that the report should be turned over to the prosecutor “in order to try to settle the case.”   The prosecutor did not agree not to use the report against defendant.   Defendant never offered to plead guilty to any specific charge.   Instead, his attorney proposed that defendant would admit his “culpability” in exchange for a fifteen-year prison term.   Defendant's attorney gave a copy of the examiner's report to defendant, and the victim thereafter received a copy of the examiner's report in the mail.

 Defendant claims that his admission “was made during plea negotiations” and therefore was inadmissible under Penal Code section 1192.4 and Evidence Code section 1153.   Both Evidence Code section 1153 and Penal Code section 1192.4 prohibit the admission of evidence of a withdrawn plea.  (Pen.Code, § 1192.4;  Evid.Code, § 1153.)  Evidence Code section 1153 also prohibits the admission of evidence “of an offer to plead guilty to the crime charged or to any other crime, ․” (Evid.Code, § 1153.)   These exclusionary rules have been held to extend to admissions other than offers to plead guilty which are made in the course or “context” of bona fide plea bargaining negotiations.  (People v. Tanner (1975) 45 Cal.App.3d 345, 352–353, 119 Cal.Rptr. 407;  People v. Magana (1993) 17 Cal.App.4th 1371, 1376, 22 Cal.Rptr.2d 59.)   The critical question in this case is whether the evidence supports the trial court's implied finding that defendant's statement to a defense-employed polygraph examiner was not in fact made in the course of bona fide plea negotiations.

We believe that the evidence presented to the trial court at the Evidence Code section 402 hearing was sufficient to support its implied finding that defendant's admission was not made in the course of plea negotiations.   The evidence did not establish that defendant's admission was motivated by his desire to further plea bargain negotiations.   Had defendant made this admission to the prosecutor in the course of plea negotiations, no other motivation could be inferred.   However, defendant made his admission during a “pretest interview” with a defense-employed polygraph examiner.   In light of the fact that defendant did not decide to turn over the polygraph examiner's report to the prosecution until after examining the report and determining that it was favorable to him, one could infer that defendant's real motivation for making this pre-test admission was to convince the polygraph examiner that he was telling the truth.   If this gambit had failed and the examiner's report turned out to be unfavorable, defendant would have been under no obligation to turn this report over to the prosecution.   Defendant's decision to reveal the admission to the prosecution was a choice made in the course of plea negotiations.   However, this decision did not transform the context in which the admission itself was made.   As the evidence did not establish that defendant believed at the time he made the admission that his statement would necessarily be turned over to the prosecution in the course of plea negotiations, the trial court was entitled to conclude that defendant's admission, as opposed to his decision to reveal the admission, was not made in the course of plea negotiations.

Our conclusion conflicts with dicta in People v. Crow (1994) 28 Cal.App.4th 440, 33 Cal.Rptr.2d 624, a Fourth District Court of Appeal opinion.   In Crow, a psychological profile of the defendant containing statements of the defendant was turned over by the defendant to the prosecution in the course of plea negotiations.  (People v. Crow, supra, 28 Cal.App.4th at p. 450, 33 Cal.Rptr.2d 624.)   The prosecution thereafter used these statements to impeach defendant's testimony.   The appellate court held that this use of the statements was not error because the statutory prohibition does not apply to use of such statements for impeachment purposes.   This holding is not applicable here.   However, the Crow court indicated, in a footnote, that these statements would otherwise have been covered by the statutory prohibition.  “Although the statements by the defendant to Kania [the defendant's psychologist] were not originally made in the course of plea negotiations, evidence of those statements was revealed to the prosecution in the course of plea negotiations.   For purposes of the policy favoring candor in plea negotiations, the two situations are indistinguishable.   In either event, the damaging information was given to the prosecution solely in the hope that a settlement would result.”  (People v. Crow, supra, 28 Cal.App.4th at p. 450, fn. 6, 33 Cal.Rptr.2d 624.)

We do not agree with the dicta in Crow which indicates that these statutes require the exclusion of statements “revealed” to the prosecution during plea negotiations in addition to statements “made” during plea negotiations.   The statutes contain no language which purports to preclude the admission of anything other than a plea or an offer to plead guilty.   The judicial extension of the statutes' prohibition to include admissions made in the course of plea negotiations does not support an additional extension of this prohibition to admissions made in any other context simply because a defendant chooses to reveal such statements to the prosecution during plea negotiations.  “[T]here is no need to protect the defendant's voluntary disclosures about the bargaining process made to third persons uninvolved and unnecessary to the plea negotiations.   Those communications are not part of the bona fide plea negotiations as they cannot be seen as an attempt to influence the court or the prosecutor to accept a particular offer.   Thus, these statements are not embraced within the statutory prohibition.”   (People v. Magana, supra, 17 Cal.App.4th at p. 1377, 22 Cal.Rptr.2d 59.)   We do not agree with Crow that the revelation of pre-existing admissions to the prosecution during plea negotiations is “indistinguishable” from the making of admissions during plea negotiations.   The two are highly distinguishable.   In this case, the polygraph examiner, like the psychologist in Crow, was a third person who was not involved in plea negotiations between defendant and the prosecution.   Since defendant did not decide to reveal his admission to the prosecution until he was assured that the polygraph examiner's report was favorable to him, his statement was not necessarily an attempt to influence the prosecutor rather than the polygraph examiner.   As such, the statement was not made in the course of plea negotiations and was not subject to the statutory prohibition.   The court did not err in admitting defendant's statement.

 Defendant's alternative contention is that the trial court erred in admitting evidence of his admission but excluding evidence of the polygraph test results. “(a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding ․ unless all parties stipulate to the admission of such results.  [¶] (b) Nothing in this section is intended to exclude from evidence statements made during a polygraph examination which are otherwise admissible.”  (Evid.Code, § 351.1, emphasis added.)   This statute makes clear that statements made during a polygraph examination are admissible while the results of the polygraph examination are not.   This is precisely what occurred in this case.   Defendant asserts that this offends “the due process concept of fundamental fairness” under the U.S. and California Constitutions.   He seems to contend that Evidence Code section 351.1 is unconstitutional, but he presents no argument which supports this theory.   Defendant made no offer of proof below of the reliability of polygraph test results.   In the absence of such an offer of proof, the California Supreme Court has repeatedly rejected due process challenges to the statutory exclusion of polygraph evidence.  (People v. Fudge (1994) 7 Cal.4th 1075, 1122–1123, 31 Cal.Rptr.2d 321, 875 P.2d 36 and cases cited therein;  cf. People v. Espinoza (1992) 3 Cal.4th 806, 818, 12 Cal.Rptr.2d 682, 838 P.2d 204.)   Defendant has failed to establish that the trial court erred in excluding the results of the polygraph examination.

B.–E.***

CONCLUSION

The judgment is affirmed.

FOOTNOTES

1.   He claims that (1) Penal Code section 654 precluded imposition of punishment for both counts, (2) the trial court erred in imposing fully consecutive terms under Penal Code section 667.6, subdivision (d), (3) the trial court erred in doubling the length of each term and (4) a remand is required because the trial court failed to exercise its discretion under Penal Code section 1385 to strike the prior serious felony conviction allegation.

2.   The victim's mother had known of this sexual molestation before she married defendant several years later.

3.   On cross-examination, defendant's attorney brought out the fact that the examiner was a polygraph examiner who had been retained by defendant's counsel, and defendant's admission had occurred during a polygraph examination.   The polygraph examiner testified that defendant had denied threatening the victim and forcing the victim to have sex with him.   In her argument to the jury, the prosecutor noted that defendant's admission to the polygraph examiner satisfied one element of the crime of rape.   Defendant's attorney argued that defendant's admission was “circumstantial evidence of innocence of the rape charge.”

FOOTNOTE.   See footnote *, ante.

MIHARA, Associate Justice.

COTTLE, P.J., and BAMATTRE–MANOUKIAN, J., concur.