THE PEOPLE v. TIGRAN BEDROSIAN (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

A jury convicted Tigran Bedrosian (appellant) of assault with the intent to commit rape (Pen.Code, § 220) ¹ (count 3) and rape by preventing the victim from resisting by intoxicating substance (§ 261, subd. (a)(3)) (count 5).²  The trial court sentenced appellant to the midterm of six years in count 5 and a concurrent sentence of four years in count 3.

Appellant appeals on the grounds that:  (1) the trial court erred when it excluded from the jury evidence of the victim's prior sexual history, her employment, and her unstable mental condition;  (2) the trial court erred in denying appellant's motion to discharge the venire and convene a new venire;  (3) there was insufficient evidence to convict appellant of counts 3 and 5;  and (4) appellant is entitled to additional conduct credits under section 4019.   Respondent asserts that the abstract of judgment must be amended to reflect the order that appellant must register as a sex offender.

FACTS

Prosecution Evidence

Shirley F. went to the Van Nuys courthouse to obtain a copy of her birth certificate on September 19, 2006.   Appellant approached Shirley and introduced himself as Tony. She saw that his car was a black SUV, and it was stipulated that appellant was driving a black 2000 Dodge Magnum as shown in People's exhibit 15.   He had rented it from Enterprise Rental car.   Appellant talked to Shirley about a movie and an opportunity she would not want to pass up.   Shirley and appellant exchanged telephone numbers and agreed to meet that evening at 6:00 p.m. at the Elephant Bar in Burbank.

Shirley arrived at the bar wearing a black French lace dress, black high heels, and a black headband.   While waiting for appellant, she had wine and appetizers.   Appellant arrived late with a friend, and he ordered two rounds of shots for each of them.   Shirley had a third glass of wine also.   At one point they all went outside to smoke.

At approximately 7:00 p.m., Shirley began to feel “funny,” and “the lights started going out.”   She did not remember leaving the bar or riding in a car.   The last thing she remembered was saying that she needed to go to work.   Appellant told her they were going to do a porno.   The next thing she remembered was waking up in bed in a motel room “completely naked and bleeding and alone.”   She was menstruating, and the tampon she had inserted at home was no longer inside her.   She found her dress in the trash can but could not find her underwear or her shoes.   Shirley's dress was wet, and it smelled like vomit.   She did not recall vomiting.   She did not shower, but her hair was wet.   Shirley found her purse under a pillow, and her cell phone was under the purse instead of inside it.   She wanted to call appellant and ask him what he had done to her, but his telephone number had been erased from her cell phone.   Shirley knew she had been raped because she felt pain in between her legs and her tampon was gone.   She later noticed bruises on her wrists and on her right arm.   Shirley went outside the room and recognized where she was because she could see her former high school.

Shirley did not call 911 because she did not want to tell anyone what had happened.   She was embarrassed.   She called a cab, but it passed her by when it came.   As she waited for a second cab, she saw a police car and made the decision to flag it down.

Shirley never agreed to leave the bar or go to a hotel or motel with appellant.   She did not agree to get into appellant's car or have sex with anyone.   She would not engage in sex during her menstrual period.   Shirley did not recall if she was taking Zoloft, an antidepressant, in 2006.

Adam Debeneditis was a bartender at the Elephant Bar on September 19, 2006.   Appellant used to frequent the bar.   He never caused any problems.   On that night he was with a woman in her mid–40's and another man.   The woman had arrived first and ordered a glass of wine and an appetizer.   Appellant arrived with his friend, and they all seemed to know each other.   Debeneditis served them wine and a shot of vodka each.   Other bartenders served them drinks also.   Debeneditis did not see the three leave the bar at any time.   Debeneditis identified a receipt from the Elephant Bar, and it was stipulated that it bore appellant's credit card number.   The tab was closed at 7:39, and it showed that seven glasses of wine and 11 shots of vodka had been served.   Debeneditis did not notice anything unusual, and all three people seemed fine.   Corporate policy dictated that the bartenders could not serve anyone who appeared to be intoxicated or drunk.

Officer Christian Magarino of the Glendale Police Department was on patrol at approximately 4:00 a.m. when he was hailed by a barefoot woman in a black dress, later identified as Shirley.   She was wet, in distress, and she smelled of alcohol and vomit.   Her hands were shaking and she was speaking rapidly.   She directed Officer Magarino to the Sakura Motel, room 204, where she said she had been raped.   Officer Magarino called for assistance.   Shirley told him she could no longer find appellant's number in her “received call” list.   Appellant called Shirley later that day.   The police told Shirley not to respond to messages from him.

Officer Chris Krivak of the Glendale Police Department transported Shirley to a sexual assault examination conducted by Julie Lister, a nurse practitioner.   Lister saw fresh bruises on Shirley's shin and faint red, linear marks on both wrists.   Shirley complained of tenderness to the inner thighs, but there were no injuries there.   Shirley had a normal genital and anal exam, which did not disprove the possibility of a sexual assault.   The fact that Shirley was menstruating minimized the likelihood of injury to the genital area.   Shirley had undergone five vaginal deliveries also, which would make her hymen more distensible.   A loss of consciousness, such as Shirley had reported, would also lessen the degree of injury.   A victim who lost consciousness would not be able to fight back, and force would not be required by the perpetrator.

Lister collected two swabs from each of Shirley's breasts, two from her external genital area, and three from inside the vagina.   The items were sealed in envelopes and given to Officer Krivak.   He booked them into evidence.   Lister also gave him a dress, a bra, and a blanket.

Cynthia Edison and Emily Schum were part of the forensic team that examined room 204 later that morning.   Edison recalled there was blood on one of the sheets they collected, and a tampon wrapper was on the floor.   The sheets were dry.   Some Marlboro cigarettes from an ashtray were collected.   A pair of black panties was found at the foot of the bed.   Some vomit and a comforter were found across from the elevator.   The forensic team also observed vomit on a pair of men's boxer shorts found in the bathroom of room No. 204.

Edison examined a black Dodge Magnum five or six days later.   Edison found some black shoes and a motel key card inside.   She collected five cards of fingerprints from the Magnum.   There was no match with appellant's fingerprints.   She did not compare the prints with Shirley's.   There was no vomit in the car.   Having the car washed could eliminate any prints on the surface.

Luis Hernandez worked at Classic Car Wash and recalled finding vomit when he washed the black Dodge Magnum in late September 2006.   Two men brought the car to be washed.   He found men's clothing inside the car with vomit on it.   Although the men told him he could keep the clothing, Hernandez threw it in the trash.   Hernandez also found a pair of women's shoes.   Shirley identified the shoes as hers.

A sample of appellant's DNA was obtained on October 27, 2006, and was stored in the Glendale Police Department property room.   On October 30, 2006, Glendale Police Crime Scene Officer Steve Wilson checked out the sample and took it to the Los Angeles County Sheriff's Crime laboratory.

Mary Keens, a senior criminalist with the Sheriff's department, received Shirley's sexual assault kit and screened the samples for semen on November 17, 2006.   There was semen present on the breast, vaginal, and external genital samples.   She took a small cutting of the samples that were positive for semen.   The four swabs from the left and right breasts had been packaged together.   She analyzed them together as one sample.   There was no amylase present in the breast sample.   Amylase is an enzyme found in saliva.

Christopher Lee is a senior criminalist with the Sheriff's department who testified for the prosecution and the defense.   He received the sexual assault kit from Keens for analysis and removed the vaginal sample, external genital sample, and a breast sample.

According to Lee, a genetic profile from a Parliament Light cigarette butt in evidence was consistent with a single contributor who was neither appellant nor Shirley.   Appellant was included as a possible contributor in a sample of a Marlboro cigarette butt, which was from a single source.   Fourteen out of 15 genetic locations, or loci, were consistent with appellant.   This result would be expected to occur once in 510 quintillion unrelated individuals at most.   Shirley was excluded as a contributor to that genetic profile.

The sperm fraction of the external genital sample from Shirley was consistent with a mixture of at least two individuals.   Appellant was excluded as being one of these two.   The male fraction of this sample was a mixture, and one of the contributors was the person who was the contributor on one of the cigarette butts, which had no brand name.   That individual was a major contributor (at all 15 loci).   Appellant was also excluded from the vaginal sample, in which the DNA of two individuals was found.

Lee admitted that he initially told Sergeant Lola Abrahamian that appellant was included in the external genital sample when he gave her unofficial preliminary results.   The file then underwent technical review and supervisor signoff.   The second criminalist excluded appellant.   It was a coincidence that the defense attorney's office called about an order for retesting during the process of technical review.   Lee stated that his initial analysis was less than conservative, and his final analysis was a more conservative one.   Lee told the previous district attorney, Natalie Adomian, about the changed result.

Lee tested a breast swab and obtained an epithelial fraction, or female fraction, and a male, or sperm, fraction.   Lee acknowledged that he first performed an accidental blood extraction on the breast samples.   He performed a second extraction with new cuttings to obtain the epithelial fraction and the sperm fraction and had no problems.   Lee said he used a half swab, although his notes said “1.5.” He agreed that this did not make sense.   Appellant's DNA was found in the male fraction of the breast sample, but, according to Lee, one could not draw the conclusion that it was his sperm.   In this sample, appellant was represented in all 15 loci.   The contribution of genetic types obtained from the breast sample and matching appellant occurs once in 54.9 million unrelated individuals at most.   The DNA on the breast sample was consistent with the DNA on the Marlboro (sample ES11–B), which matched appellant's profile.   Although the cigarettes were packaged together, there was no mixture of profiles.   It did not appear that there was any transfer between the two.   Shirley's and another male's DNA were also found in the breast sample.   Lee was ordered to send samples to another lab for analysis, even though his supervisor believed it would be redundant.   He sent cuttings from a vaginal swab, external genital swab, breast sample, cigarette butts, a reference sample from the victim, and a reference sample from appellant to Serological Research Institute.

Thomas Fedor is a forensic serologist at Serological Research Institute, a private-sector crime laboratory.   The samples he received for this case were properly sealed, and he performed DNA analysis on all of them.   With respect to the breast swabs, he saw a small number of sperm cells on each of them when he microscopically examined the pelleted result of an aqueous extract of the cotton swab material.   Fedor's analysis of the Marlboro (sample ES11–B) showed it contained the same DNA profile as appellant.   The DNA results for the Marlboro were indistinguishable from appellant's reference sample.

The major portion of the DNA recovered from the sperm portion of the breast sample, which was labeled 8–1, had the same DNA profile as appellant.   Appellant was not a major source for the other breast sample (8–2), but he could not be excluded.   There were at least three people in the sample.   With respect to breast swab 8–1, the chance of a man unrelated to appellant being the contributor was 1 in 2.6 quintillion.   With respect to breast swab 8–2, the chance of a man unrelated to appellant being the contributor was 1 in 4,400.

Fedor also found sperm cells on the vaginal swab and the external genital swabs.   The person who was the source of the DNA in the no-brand cigarette sample could have been the source of the sperm found in the vaginal samples.   The possibility that it was a person unrelated to this unknown man was about 1 in 332 quintillion.   This donor was not appellant.

Sergeant Abrahamian compiled a video from the 16 camera surveillance videos taken by the Sakura Motel, where Shirley had awakened.   The compilation video was played for the jury.   The video began with the Dodge Magnum pulling into the Sakura Motel.   As it pulled in, it was involved in a collision with another vehicle.   The Magnum was parked, and Edward Nikolayan got out.³  The car was parked “some distance” from the motel registration office.   The video showed appellant coming out of the rear of the walkway in his underwear and socks.   He went to a rear cinderblock wall and took a comforter from the wall.⁴  Appellant then stood behind the Magnum wearing the comforter while Nikolayan spoke to the person with whom they had a collision.   This was between 8:36 p.m. and 8:39 p.m.

When the other individual left, Nikolayan walked to the motel lobby as appellant sat on the wall draped in the comforter.   After speaking with someone in the office, Nikolayan left and walked out to speak with appellant.   The two men went to the Magnum, after which Nikolayan returned to the office.   He came back out and went to speak to appellant.   Eventually, Nikolayan stripped to his underwear and handed appellant his clothing.   Appellant dressed in the clothing and went to the motel lobby.⁵  Appellant returned to the Magnum.   Nikolayan got the comforter and placed it on the ground adjacent to the Magnum.   He leaned into the car.   Appellant and Nikolayan had another discussion and then both reached down and picked up the comforter and leaned into the car.   They pulled Shirley from the car, covered with the comforter.   Appellant held Shirley while Nikolayan closed the door to the car.   Appellant walked to the stairwell followed by Nikolayan, who grabbed one end of Shirley as they climbed the stairs.

The two men approached room 204 but turned around and went to the landing, where they put Shirley on the ground near the elevator.   Some vomit was later found in that area.   The video showed that Shirley was “stirring or moving” while on the ground.   Appellant walked to room 204.   Appellant opened the door of room 204 and entered.   Nikolayan followed him in, leaving Shirley unattended on the landing.

The two men came out of the room, and appellant picked up Shirley and threw her over his shoulder.   Nikolayan entered room 204 and appellant followed carrying Shirley.   At approximately 9:20 appellant exited the room carrying the comforter and Nikolayan exited also.   Nikolayan went back inside and appellant took the comforter and dropped it near the trash can by the elevator.   Appellant reentered the room and closed the door at approximately 9:21 p.m. Appellant exited the room with his shirt open after a minute.   He placed an article on the railing and reentered the room, leaving the door slightly ajar.   Nikolayan left the room with a cigarette in his hand and put the trash can near the railing.   He took the article placed there by appellant and put it in the trash can.   Nikolayan reentered the room and left the door ajar.

The door closed at 9:25 p.m. and reopened at 9:32 p.m. Nikolayan came out wearing only his boxers, having shed his tank top and his socks.   He smoked a cigarette.   After a few minutes he walked to the car.   He leaned in and then stepped away and returned to the room.   He entered and came back out to the railing.   He did this several times.   At 10:22 p.m., he came out fully dressed.   Nikolayan went to the car and drove away.

At approximately 10:24 p.m., appellant stepped out of the room wearing only a towel wrapped around his waist.   He stood there one minute and then reentered the room.   At approximately 10:33 p.m., Nikolayan returned in the Magnum.   He retrieved a bag and an item from the hatch and went to room 204 where he handed the items to appellant.

Appellant and Nikolayan left the room at approximately 10:37 p.m. Appellant was dressed in a shirt, pants that went to his calves, and either loafers or slippers of some kind.   No one but these two men entered the room during the entire time, until Shirley left.   Appellant went back into the room a couple of times.   He finally went to the car and got in the passenger seat.   The car drove away at approximately 10:42 p.m. At 3:25 a.m., Shirley left the room wearing a black dress, carrying a handbag, and smoking a cigarette.   She took the elevator down and walked past the lobby entrance to the front of the motel.

On October 9, 2006, appellant crossed the border into the United States from Mexico on foot and presented a refugee travel document.   He wanted to apply for admission.   Appellant's name appeared in a database as a possible wanted subject.   A border patrol agent confirmed the warrant and appellant's identity, and appellant was arrested.   Appellant was later collected by Sergeant Abrahamian.

Defense Evidence

In addition to the evidence defense counsel elicited from Lee, he recalled Edison to the stand.   She testified that she photographed a headband in the bathroom of room 204.   The headband was visible after a sheet had been moved.   Edison acknowledged that she pulled the headband out so that it could be seen.⁶  Edison also photographed room 304 because she was told to do so.

DISCUSSION

I. Exclusion of Evidence

A. Appellant's Argument

Appellant contends the trial court effectively and erroneously limited his right to confront and cross-examine the chief witness against him, thus denying him his Sixth Amendment rights as well as his Fifth Amendment right to a fair trial, and his rights under article I, section 15 of the California Constitution.

By denying appellant's request to present, in accordance with Evidence Code section 782, evidence that undermined Shirley's credibility, the trial court also limited appellant's ability to present relevant evidence probative of his theory of the case, which was that Shirley had consented to sexual acts during or prior to her lengthy blackout as she had done under similar circumstances in the past.   In addition, the trial court also erred in not holding an evidentiary hearing on this issue.

According to appellant, the trial court also erred in granting the People's motions in limine to exclude any evidence about Shirley's employment as an adult escort and her mental health history.

B. Relevant Authority

“In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible ․ if the evidence is:  ․ [o]ffered by the defendant to prove conduct of the victim in conformity with the character or trait of character.”  (Evid.Code, § 1103, subd. (a)(1).)

“Notwithstanding any other provision of this code to the contrary, and except as provided in this subdivision, in any prosecution under Section 261, ․ of the Penal Code, ․ or for assault with intent to commit, ․ a crime defined in any of those sections, ․ opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness' sexual conduct, or any of that evidence, is not admissible by the defendant in order to prove consent by the complaining witness.”  (Evid.Code, § 1103, subd. (c)(1).)

“Nothing in this subdivision shall be construed to make inadmissible any evidence offered to attack the credibility of the complaining witness as provided in Section 782.”  (Evid.Code, § 1103, subd. (c)(5).)

“A defendant generally cannot question a sexual assault victim about his or her prior sexual activity.  [Citation.]  However, a limited exception is applicable if the victim's prior sexual history is relevant to the victim's credibility.  [Citations.]  ․ Evidence Code section 782 provides for a strict procedure that includes a hearing outside of the presence of the jury prior to the admission of evidence of the complaining witness's sexual conduct.  [Citations.]  Evidence Code 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.  [Citation.]  If, after review, ‘the court finds the evidence relevant and not inadmissible pursuant to Evidence Code section 352, it may make an order stating what evidence may be introduced and the nature of the questions permitted.’  [Citation.]  ‘A trial court's ruling on the admissibility of prior sexual conduct will be overturned on appeal only if appellant can show an abuse of discretion.’ ”  (People v. Bautista (2008) 163 Cal.App.4th 762, 781–782.)

“It is significant that the express provisions of Evidence Code section 782 vest broad discretion in the trial court to weigh the defendant's proffered evidence, prior to its submission to the jury, and to resolve the conflicting interests of the complaining witness and the defendant.”  (People v. Rioz (1984) 161 Cal.App.3d 905, 916.)   The trial court is not obliged to hold a hearing unless it finds that the defendant's sworn offer of proof is sufficient.  (Ibid.) Moreover, the statute reaffirms the trial court's discretion under Evidence Code section 352 to exclude any evidence that is more prejudicial than probative, even if relevant.  (Ibid.) “This discretion in the trial court, along with the other safeguards inherent in Evidence Code section 782, including the requirement that the defendant tender a sworn offer of proof of the relevancy of the complaining witness' sexual conduct to attack her credibility, all operate to provide a rational resolution of the tension existing between Evidence Code sections 782 and 1103․”

C. Proceedings Below

In his written motion under Evidence Code section 782, appellant asked for an order allowing the introduction of evidence of Shirley's prior sexual conduct, alleging that the evidence was relevant and material to the determination of her credibility on the issue of consent.   The prior acts, as related by Shirley's ex-husband, Paul Chin, consisted of getting drunk with strange men, having sex with them, and then claiming to have had alcohol-induced blackouts.

In his opposition to the People's motion to exclude evidence of, or reference to, Shirley's employment as an adult escort, appellant argued that the employment evidence was extremely relevant and material.   It was probative of the fact that Shirley consented to sexual acts with appellant.   The defense had recently obtained employment records that confirmed her employment at The Fantasy Club, an escort club in downtown Los Angeles.   This evidence would raise grave doubts about Shirley's veracity and credibility as to whether the sex acts occurred with consent or by force.   Appellant also argued that the evidence was not unduly prejudicial under Evidence Code section 352.

Appellant also filed an opposition to the People's motion to exclude evidence of Shirley's suicide attempts and medical history.   Appellant argued that the evidence was relevant to Shirley's general credibility and her ability to perceive the events in question or to testify.

The prosecutor argued that the proffered evidence contained no claim by the victim that she had been raped during the prior incidents, and the evidence consisted of mere hearsay by the victim's ex-husband.   There was no evidence that the victim worked as a prostitute, and her employment as a hostess at The Fantasy Club was irrelevant, since the defense had not demonstrated what she did there.   The prosecutor asserted that the victim had never been arrested for prostitution.   With respect to Shirley's medical history, the defense had not subpoenaed the victim's medical records.   The prosecutor believed the defense was conducting a fishing expedition.

The trial court at that time, Judge Shubin, noted that, although the defense cited three prior instances where the victim got drunk and had sex with strange men, there was nothing in the motion papers stating that Shirley had claimed she was raped.   Defense counsel argued that the current instances were different because Shirley was in the midst of a child custody battle.

Judge Shubin denied the motion to present evidence under Evidence Code section 782.   Judge Shubin found the instant case fundamentally different because there was no claim in the prior cases that the victim did not have sex consensually, and no evidence that she lied about the incident in terms of consent.

With respect to the defense opposition to the People's motion to exclude evidence of Shirley's medical history, Judge Shubin ruled that the defense could inquire as to whether the victim was taking medication at the time of the incident and how that might affect her ability to recall.   Judge Shubin denied the defense request to inquire about the victim's “medical illness and psychiatric history” or suicide attempt.   The defense had not presented any medical records for the court to review in order to determine whether such history had a bearing on the victim's veracity.   There was no offer of proof regarding how the victim's mental condition might relate to the current incident or her veracity—only speculation.   The trial court further disallowed evidence of the victim's psychiatric history on Evidence Code section 352 grounds, finding that it would result in undue prejudice, an undue consumption of time, and would be confusing and misleading to the jury.

Judge Shubin stated she would study the case law regarding whether the nature of Shirley's employment should be excluded.   She wished to examine whether Shirley's job, which was not prostitution, but what some would argue to be a soft form of it, was allowable or not.   Judge Shubin wished to determine whether the fact that the exact nature of her occupation could be disputed might preclude the defense from questioning her about it.   Judge Shubin postponed ruling on this issue.

At a later pretrial proceeding, a continuance (from Oct. 2, 2008 until Oct. 17, 2008) was granted to the defense after it received a missing person's report from the Burbank Police Department dated January 14, 2008.   The report indicated that Shirley had attempted suicide nine times dating back to August 2006 and had overdosed on anti-anxiety pills five times since September 2007.   Defense counsel believed that further research would yield more statements from the alleged victim regarding the instant alleged offense.   The jury venire was dismissed.   On October 22, 2008, a further continuance requested by the defense for obtaining medical records was denied, and the case was transferred to another department for trial.

Judge Croft ultimately presided over the trial.   After going through the files, Judge Croft determined that the defense could ascertain from Shirley that she was on antidepressant medication and that she had on occasions blacked out after consuming alcohol.   The defense could not mention that Shirley was bipolar, her prior sexual conduct, the status of the custody of her children, her divorce, or her employment as a hostess at The Fantasy Club.

D. No Abuse of Discretion or Constitutional Violation

We conclude the evidence was properly excluded.   With respect to the prior incidents of Shirley's sexual conduct, the record shows that an evidentiary hearing was not held by Judge Shubin because she clearly did not find the offer of proof sufficient.  (See Evid.Code, § 782, subd. (a)(3).)   Judge Shubin stated there was nothing in the offer of proof that showed Shirley had claimed she was raped in the prior incidents.   Judge Shubin found that the instant offenses were therefore “fundamentally different.”   Given the strong policy considerations that gave birth to rape-shield laws (see People v. Fontana (2010) 49 Cal.4th 351, 362–363 and cases cited therein;  People v. Casas (1986) 181 Cal.App.3d 889, 895), evidence of prior incidents that did not involve a disputed issue of consent had only marginal relevance in the instant case, and they were not probative of the credibility of Shirley's rape allegations.   In any event, any error was harmless given the evidence substantiating Shirley's inability to give consent or to resist, as shown by the motel surveillance videos.

With respect to Shirley's medical and psychiatric history, including her suicide attempts, Judge Shubin properly granted the People's motion to preclude the defense from inquiring into these matters.   Judge Shubin noted that the defense had not presented any medical records for the court to review so as to determine whether the evidence would have any relevance to the instant crimes or any bearing on Shirley's veracity.  (See People v. Casas, supra, 181 Cal.App.3d at p. 897 [evidence relating to forcible rape of victim must be relevant to her credibility and more probative than prejudicial].)   The trial court further disallowed evidence of Shirley's psychiatric history on Evidence Code section 352 grounds, finding that it would result in undue prejudice, an undue consumption of time, and confusion for the jury.   Judge Shubin correctly narrowed the issue to one that was relevant to the instant case and the issue of consent by allowing the defense to ask Shirley whether she was taking medication at the time of the incident and how the medication, or lack of medication, might affect her ability to remember what occurred.   Later developments showed that Shirley's suicide attempts occurred subsequent to the instant offenses.   We conclude the trial court's limitations on the medical and psychiatric history of the victim were entirely proper.   The evidence had no “tendency in reason to prove” that Shirley might be lying about her lack of consent, which was the crux of the case.  (Evid.Code, § 210;  People v. Harris (2005) 37 Cal.4th 310, 337.)

Judge Shubin reserved her ruling on whether to grant the People's motion to exclude evidence of Shirley's employment as a hostess.   As the judge indicated, although evidence of a victim's history of prostitution has been admitted in certain cases, it was doubtful that the employment records the defense claimed to have obtained would show that prostitution was among Shirley's job duties.   Moreover, appellant did not meet Shirley at her job, but in a bar in Burbank, and he initially approached Shirley at the Van Nuys courthouse.

We agree with the trial court that the cases appellant cited as support for opposing the People's motion did not justify admission of the evidence of employment, i.e., People v. Varona (1983) 143 Cal.App.3d 566 and People v. Randle (1982) 130 Cal.App.3d 286.   In these cases, the alleged rape victims were shown to be prostitutes who claimed they were forced to perform sexual acts against their will.   The rape crime alleged in the instant case was rape by preventing the victim from resisting by means of an intoxicating substance—a crime to which even a prostitute would be susceptible.   Furthermore, under the circumstances of this case, where appellant “picked up” Shirley at the courthouse and made a date to meet her at the Elephant Bar for drinks, it would be improper to allow the jury to draw the inference that Shirley's credibility was suspect merely because of her employment as a club hostess—a job that had nothing to do with her encounters with appellant.   Appellant presented no offer of proof sufficient to overcome the purpose of the rape-shield law.

Having concluded that the trial court properly excluded the evidence in question and did not abuse its discretion, we also conclude that appellant was not denied his right to confrontation under the Sixth Amendment to the federal Constitution and article I, section 15 of the California Constitution or his right to present a defense under the Fifth Amendment to the federal Constitution.  (People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3;  People v. Fudge (1994) 7 Cal.4th 1075, 1102–1103;  see also People v. Fontana, supra, 49 Cal.4th at p. 370.)   Appellant's arguments are without merit.

II. Denial of Motion to Discharge Venire

A. Appellant's Argument

Appellant contends that the trial court abused its discretion in not discharging the jury venire because the jury panel had been tainted by the remarks of several prospective jurors.   Their remarks led to an inference that appellant was aggressive and violent.

B. Proceedings Below

A juror who was designated Prospective Juror No. 16 stated during initial questioning by defense counsel that appellant looked familiar to him.   He said, “I've dealt with people with the Glendale Fight Club—and I don't know—maybe he's been involved with that or not.   Not bad.”   Defense counsel said that appellant had a martial arts studio and asked the juror if he recognized appellant.   The juror repeated that appellant looked familiar.   When asked if he thought he was unable to be fair, the juror replied, “No, no.   He had some very good kids actually[ ] ․ [i]n that club.”   Prospective Juror No. 16 was subsequently dismissed for an expressed dislike of Armenians.

On the following day, during selection of alternate jurors, Prospective Alternate Juror No. 15 said, “I have an issue that was brought up yesterday that somebody said that, it's not so much the charges that have been brought against [appellant], it is something I heard yesterday that seems to be bothering me more.   And it's that he's in a fight club, and I have an issue with that.”   Defense counsel explained that appellant was a martial arts fighter by profession, and this differed from the situations portrayed in the “Fight Club” movie.   Prospective Alternate Juror No. 15 agreed that was true, and added that she did not consider fight-club activities to be a sport.   When asked if she was less apprehensive, the juror replied, “Well, I don't know how to respond to that.   It's just that I just can see the marks on his face.   When I heard that yesterday, I just presumed that he was, and then I presumed that he has that kind of aggressive behavior to do that.   And I just—like I said, that's what I thought what it was.   So if you say he's not in that, then he's not in that.”

When defense counsel agreed that appellant had an abrasion on his face, Prospective Alternate Juror No. 15 said that she saw “that in the back of his neck which is from fighting.”   Defense counsel asked if these things would come into play in the presumption of innocence.   Prospective Alternate Juror No. 15 replied, “Well, when I see it on him, I know it has to be on somebody else too.   So yeah, I think he has an aggressive nature to do that.”   When asked if this colored the way she looked at things, the juror said, “I just have a real issue—I'm all for sports and that.   Boxing—I grew up my grandfather watched it.   When I heard that yesterday, that's what I assumed he was involved in, and I did have an issue with that.   I did see it.   It colored me.”

The prosecutor asked Prospective Alternate Juror No. 15 if “that was not part of the evidence in the case, would you be able to listen to the facts as you hear it from the witness stand and base your decision ․ on the facts and the law?”   Prospective Alternate Juror No. 15 said she assumed so but added that she was “kind of an emotional person.”

At a sidebar, defense counsel explained that he had earlier made a decision not to request a continuance because he believed the marks on appellant were not noticeable.   He now believed that Prospective Alternate Juror No. 15's comments about the marks, combined with the fight club comments, resulted in the jury panel hearing improper character evidence.   Subsequently, defense counsel told the court that he wished to voir dire the jury about the marks.   The trial court responded, “The problem is that you knew about them, and you made a decision․  This one juror is the only one who has ever said anything about it.   And I've sworn these jurors.   I'm not going to let you do that.”   The trial court offered to inform the jurors that the marks were not from a fight.   The prosecutor noted that the charged offenses had occurred in 2006, which was three years earlier.   No one would infer that the marks occurred during the offenses.   Defense counsel agreed.   The trial court excused Prospective Alternate Juror No. 15.

On the following day, defense counsel requested “a new panel and to discharge this panel based on a number of things that occurred in front of the panel․”  These included Prospective Alternate Juror No. 15's statements that she remembered the mention of a fight club and had noticed marks on appellant as well as what a previous juror said about having a fear of retaliation.   Defense counsel believed that a poisoning of the well had occurred.

In denying the motion, the trial court stated, “[T]here's no violence alleged in the charge.   It's whether it's consent or not.   Also, ․ [appellant] has kind of a beard․  I can't see the marks.   Of course I don't see the back of his head.   So I couldn't tell you.   But I don't see the marks on him․  Now he just pointed to something near his eye, but as I said, I don't see it as ․ something from an injury․  [T]his case is from 2006.   It's an old case.   There's no violence charged in this case.   It's just whether or not there was consent.”   The trial court refused to discharge the panel and start over or open up voir dire of the 12 jurors already sworn.

When selection of alternate jurors resumed, the trial court stated to the prospective alternates in the presence of the sworn jurors that, “[E]ach side is entitled to have a fair, unbiased, and unprejudiced jury.   If there's any of you that might be prejudice[d] or bias[ed], you have to disclose that.   That's your duty as a trial juror.”

C. Relevant Authority

A trial court's refusal to dismiss the entire jury panel based upon comments from a prospective juror is reviewed for abuse of discretion under the totality of the circumstances.  (People v. Nguyen (1994) 23 Cal.App.4th 32, 41–42 (Nguyen );  People v. Martinez (1991) 228 Cal.App.3d 1456, 1467.)   The trial court “possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required.”  (People v. Medina (1990) 51 Cal.3d 870, 889.)  “Just as a finder of fact is in a better position than the reviewing court to judge the credibility of a witness, the trial judge is in a better position to gauge the level of bias and prejudice created by juror comments.”  (People v. Martinez, supra, 228 Cal.App.3d at p. 1466.)

D. No Abuse of Discretion

We conclude the trial court did not abuse its discretion in denying the motion to dismiss the entire jury panel.  (Nguyen, supra, 23 Cal.App.4th at pp. 41–42.)   First, Prospective Juror No. 16 did not seem to believe a “fight club” had a negative connotation, and, in any event, defense counsel corrected this juror when he made the remark about recognizing appellant from a fight club.   When told appellant had a martial arts studio, Prospective Juror No. 16 remarked that “he had some very good kids actually.”   None of these remarks had a negative tone.

Prospective Alternate Juror No. 15 was also corrected when she voiced her belief that appellant was in a fight club, and she acknowledged this correction.   She stated that she approved of boxing, and her issue had been with appellant being involved with a fight club.   It is true that she noticed the marks on appellant's face and neck and said she thought this signaled an aggressive nature.   Prospective Alternate Juror No. 15 was dismissed.   There is no evidence that her mention of the marks on appellant's neck and face and what they signified to her poisoned the well, as the defense claimed.   The trial court's admonition clearly informed the jurors that any bias in this regard or in any form had to be disclosed.   The admonition was sufficient to counteract any prejudicial effect of the remarks by Prospective Alternate Juror No. 15, who was transparently reluctant to serve on the jury.

Furthermore, as the trial court noted, no violence was alleged in the instant case, where the rape charge was rape of a person unable to give consent.   The instant offenses occurred in 2006, and the 2009 jury could reasonably infer that appellant received the marks during his work as a martial arts instructor.   In addition, the videotapes did not show appellant or his companion engaging in any violence.   Appellant presents no evidence that jurors and prospective jurors who served on appellant's jury ignored the trial court's admonition.   Absent evidence to the contrary, we presume jurors followed the instruction.  (People v. Adcox (1988) 47 Cal.3d 207, 253.)   Appellant's contention that the venire panel was biased by the remarks made by the two prospective jurors is pure speculation.

Since we reject the premise of appellant's argument, his due process claim likewise fails.  (People v. Sanders, supra, 11 Cal.4th at p. 510, fn. 3.) As the California Supreme Court has stated, the drastic remedy of dismissing the entire jury panel is not appropriately employed as a matter of course merely because some of the prospective jurors make inflammatory remarks.  (People v. Medina, supra, 51 Cal.3d at p. 889.)   There was no abuse of discretion.

III. Sufficiency of the Evidence

A. Appellant's Argument

Appellant contends that the facts do not support the guilty verdicts.   He claims the DNA evidence was dubious and presented only a weak link to the crimes.   There was absolutely no showing that Shirley did not consent to the alleged sexual conduct during her period of amnesia induced by her voluntary consumption of at least 29 ounces of alcohol over a 100– to 105–minute period when she weighed only 105 pounds.

B. Relevant Authority

“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”  (People v. Bolin (1998) 18 Cal.4th 297, 331.)  “The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.”  (People v. Mincey (1992) 2 Cal.4th 408, 432.)   Reversal is only warranted where it clearly appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ ”  (People v. Bolin, supra, 18 Cal.4th at p. 331.)

It is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence.  (People v. Alcala (1984) 36 Cal.3d 604, 623.)   The hurdle to secure a reversal is just as high when the prosecution's case depends on circumstantial evidence.   (People v. Stanley (1995) 10 Cal.4th 764, 792.)  “ ‘ “ ‘If the circumstances reasonably justify the trier of fact's findings, the

C. Evidence Sufficient

Appellant argues that the nature of the DNA evidence was dubious and presented a weak link to the crime.   He maintains that there was a possible transfer of DNA from appellant's perspiration when he carried Shirley, or from a towel that both he and Shirley used.

We believe that the DNA evidence was not so dubious as to exonerate appellant from the offenses as charged.   Appellant's DNA was found on the breast swabs by both Lee and Fedor.   The fact that the swabs from the left and right breasts were comingled does not diminish the significance of the fact that appellant's DNA was found on the samples.   Fedor found a small number of sperm cells on the breast swabs.   In one of the breast swabs, the sperm portion was of a DNA profile identical to that of appellant.

The recordings from the motel showed that appellant carried Shirley while she was wrapped in a comforter.   Presumably she had her dress on at the same time.⁷  There was no likelihood of a transfer of DNA, and certainly not sperm, from appellant to Shirley's breast under these conditions.   Nor is it a reasonable inference that Shirley had appellant's DNA on her breast because she and appellant used the same towel after showering.   Shirley had no memory of taking a shower and testified she did not shower upon awakening.   The jury was entitled to find her credible on this point.   It was a reasonable inference that, since Shirley had apparently vomited in the car and on the second floor landing, appellant and his companion put her in the bathtub and showered her off before engaging in sexual acts with her.   Once again, it is unlikely appellant dried Shirley with a towel and later reused it on himself.   In any event, such a use of the same towel does not exonerate appellant from guilt in the rape and assault, either as a direct perpetrator or as an aider and abettor.

The recordings from the motel show appellant and Nikolayan removing an unconscious Shirley from the Magnum and carrying her like a corpse to the second floor.   From the second floor landing, appellant threw Shirley over his shoulder and carried her into the room.   Both appellant and Nikolayan were seen at various times coming out to the railing in a state of undress.   The physical evidence showed sperm on Shirley's breasts and in her vagina, which indicates that sexual acts were performed on her.   The fact that she was unconscious and menstruating meant that there was no evidence of trauma to her vaginal area.   Shirley testified that she awoke with pain in her inner thighs from her legs being spread and with the firm conviction that she had been raped.   She stated she would not engage in intercourse during her menstrual period.   Shirley reported the rape promptly to a passing officer after some initial hesitation.   The jury was entitled to find her version of events credible.   Even if only Nikolayan engaged in intercourse with Shirley, appellant was clearly guilty as an aider and abettor, as the motel video recordings unquestionably show.   The jury was instructed on the aiding and abetting theory.  (CALJIC No. 3.01.)   The fact that boxer shorts with vomit on them were found in the motel room's bathroom leads to the inference that, at a minimum, appellant helped move Shirley around in the room after he took off the clothes he had borrowed from Nikolayan.   The shorts were appellant's, since Nikolayan was seen wearing his shorts when he walked to the car and back, and appellant was seen wearing only a towel wrapped around his waist.

We note that at oral argument, appellant emphasized that the DNA evidence could have resulted from consensual sex with Shirley during the 55 minutes between the close of the bar tab and arrival at the motel.   As the Attorney General pointed out, this was not the defense theory below.   During closing argument, when defense counsel posed a rhetorical question as to whether Shirley, appellant, and Nikolayan stayed in the bar after the close of the tab at 7:39, the answer he provided was, “Who knows?”   The defense theory was that appellant and Nikolayan were driving Shirley to work at her insistence when she began vomiting, and they pulled off the freeway and saw the Sakura Motel.   The two men took her to the motel so that she could rest and they could clean up.

In any event, the three people in varying states of intoxication would have needed time to get to their vehicle.   Appellant and Nikolayan had to decide where they were going and choose their route.   The fact that the driver, Nikolayan, had drunk a lot of alcohol would have slowed their driving time.   That Nikolayan was driving drunk was a fair inference from the fact that the Magnum crashed into another vehicle as it drove into the motel entrance.   Given the circumstances, the time between the close of the bar tab and the arrival at the motel was not sufficient to create reasonable doubt that the sexual acts performed on Shirley did indeed occur in the motel while she was unable to resist.

Lastly, appellant appears to argue that Shirley's voluntary consumption of large amounts of alcohol when she was a woman of such slight stature amounted to consent to sexual acts.   This clearly is not the law.   The jury was instructed that anyone who engages in an act of sexual intercourse with a person when that other person is prevented from resisting by any intoxicating substance, and when this condition was known or reasonably should have been known by the accused, is guilty of violating section 261, subdivision (a)(3).   The knowledge of the victim as to his or her capacity for alcohol or other intoxicating substance, and his or her foolishness in exceeding that capacity, are not elements of the crime.   Appellant and his companion clearly knew Shirley was incapable of resisting an act of sexual intercourse with one or both of them.   With respect to the assault with intent to commit rape, the motel videotapes combined with the evidence already discussed provided sufficient substantial evidence of appellant's touching of Shirley with the intent to commit rape.   The jury's verdicts were reasonable under the circumstances of this case, and appellant's argument is without merit.

IV. Conduct Credits

Appellant asserts in a footnote that he is entitled to additional presentence conduct credit based on the January 2010 version of section 4019, which should apply retroactively to his case.   Appellant is incorrect.   He was convicted of assault with intent to commit rape under section 220, which is a violent felony listed in section 667.5, subdivision (c)(15).   Therefore, pursuant to section 2933.1, subdivision (a), appellant may not accrue more than 15 percent of worktime credit, notwithstanding section 4019 or any other provision of law. (§ 2933.1, subd. (c ).)

V. Sex Offender Registration

During the sentencing hearing, the trial court ordered appellant to register as a sex offender pursuant to section 290.   As respondent points out, the abstract of judgment does not reflect this order.   Therefore, it must be amended to include the registration requirement.

DISPOSITION

The judgment is affirmed.   The superior court is directed to amend the abstract of judgment to reflect that appellant was ordered to register as a sex offender pursuant to section 290 of the Penal Code and to forward a corrected copy of the abstract to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

We concur:

FOOTNOTES

FN1. All further references to statutes are to the Penal Code unless stated otherwise..  FN1. All further references to statutes are to the Penal Code unless stated otherwise.

FN2. Appellant was retried and convicted of these two counts after his first trial ended in a mistrial.   The counts of which appellant was found guilty were renumbered as counts 2 and 3 for the jury..  FN2. Appellant was retried and convicted of these two counts after his first trial ended in a mistrial.   The counts of which appellant was found guilty were renumbered as counts 2 and 3 for the jury.

FN3. Edward Nikolayan was identified from his wedding photograph during a search of 1121 East Wilson Avenue, which was the address on appellant's driver's license.   Appellant used his driver's license to register at the Sakura Motel.   Appellant was the best man at Nikolayan's wedding.   Nikolayan's wife, Lilit Mardirosyan, was with appellant's sister, Kristine Mirzoyan, when she returned the Dodge Magnum to the Enterprise rental-car agency..  FN3. Edward Nikolayan was identified from his wedding photograph during a search of 1121 East Wilson Avenue, which was the address on appellant's driver's license.   Appellant used his driver's license to register at the Sakura Motel.   Appellant was the best man at Nikolayan's wedding.   Nikolayan's wife, Lilit Mardirosyan, was with appellant's sister, Kristine Mirzoyan, when she returned the Dodge Magnum to the Enterprise rental-car agency.

FN4. The motel manager testified that the chambermaids sometimes hung comforters on the wall to dry..  FN4. The motel manager testified that the chambermaids sometimes hung comforters on the wall to dry.

FN5. The motel manager testified that Nikolayan was not permitted to register because he had no identification..  FN5. The motel manager testified that Nikolayan was not permitted to register because he had no identification.

FN6. Defense counsel explained to the jury that the headband under the bed sheet showed that Shirley awoke and took the sheets from the bed and threw them on the toilet, thus covering the headband, and then took a shower..  FN6. Defense counsel explained to the jury that the headband under the bed sheet showed that Shirley awoke and took the sheets from the bed and threw them on the toilet, thus covering the headband, and then took a shower.

FN7. The motel surveillance video indicates Shirley's dress was removed in the motel room and thrown in the trash can, which was put outside.   Shirley later found her dress in the trash can..  FN7. The motel surveillance video indicates Shirley's dress was removed in the motel room and thrown in the trash can, which was put outside.   Shirley later found her dress in the trash can.

DOI TODD, J. CHAVEZ, J.