PEOPLE v. BREWER (1985)

OPINION

Defendant appeals from convictions of kidnaping (Pen.Code, § 207), assault with intent to commit rape (Pen.Code, § 220), and attempted forcible rape (Pen.Code, §§ 664, 261, subd. (2)).  He contends the trial court erred in denying his motion in limine to exclude evidence of his prior felony convictions for purposes of impeachment and in failing to instruct the jury on the lesser offenses of false imprisonment and sexual battery.   He further contends he was inadequately represented at trial and that the trial court committed several sentencing errors.

Facts

On the morning of Thursday, June 2, 1983, Tina Y. (the victim) was on her way to work.   She left her apartment and walked down the street toward her bus stop when defendant pulled up beside her in a car.   Defendant, who was alone in the car, asked the victim if she would like a ride.   When she declined, he persisted and she eventually accepted.   Once the victim was in the car, defendant operated the electronic door locks.   Defendant told the victim he was a student at a local college, and told her his name was Tim.

The victim asked to be let out by a restaurant near her place of employment.   Instead, defendant drove into a delivery area behind a supermarket and stopped the car.   When the victim asked what defendant was doing, defendant pulled out a knife and waved it in front of her face.   Defendant grabbed the victim around the neck, pulled her toward him and told her to kiss him or be killed.   She did.   Defendant unbuckled his belt, lowered his pants down to his knees and began to pull on the victim's shirt.   Defendant told her to take her clothes off and moved the tilt steering wheel out of the way.

The victim saw a man nearby and said to defendant that someone was watching.   Defendant pulled up his pants and started the car.   As he drove away, defendant kept telling the victim how pretty she was and how she had better not try anything.   Seeking an opportunity to escape, the victim suggested they go to her apartment.   Defendant agreed and told her he had been lonely and needed sex.   When the victim attempted to open a window, defendant stopped her, telling her she did not need any air.

At her apartment building, the victim told defendant she did not have the key and would have to see the manager.   Once in the manager's apartment, she mouthed the words “Help me” to the manager, Larry Johnson, and his wife Annette.   The manager took the victim to another room on a pretext.   After the victim told him what had happened, the manager returned to the room in which he left defendant, but defendant had fled.   While the victim stayed with the manager's wife, the manager pursued defendant on his motorcycle.   The manager caught up with defendant at a corner, and scratched the license number of the car on the fender of his motorcycle.

The license number and description of the car matched a leased automobile which had been assigned to defendant by his employer.   Defendant was identified by the victim, the manager and the manager's wife, both in photo lineups and in court.

Defendant presented an alibi defense.   The apartment manager had reported to police that the victim came to his apartment at approximately 9:30 a.m. on June 2, 1983.   Beverly Patton, defendant's neighbor, testified she saw defendant working on his car between approximately 8:30 a.m. and 9:15 a.m. on June 2, 1983.   Bruce McGraw, another neighbor, testified he saw defendant in front of defendant's house at approximately 8:30 a.m. on June 2, 1983.   McGraw last saw defendant between approximately 8:30 and 9 a.m.   Joyce Arnold was working at a Circle K store in Edgemont on June 2, 1983.   She saw defendant at the store between 8:30 and 9 a.m. on that date.   Jeff Martinez saw defendant at a car wash in Corona between 9:30 and 10 a.m. on June 2, 1983.

Defendant's supervisor testified defendant arrived at work between 10:15 and 10:30 a.m. on June 2, 1983.   Defendant was wearing his work uniform with his name (Mike) above the shirt pocket.   Jeff Martinez, the car wash employee, noticed defendant was wearing a shirt with his name on it.   Defendant's wife testified defendant was putting on his work uniform when she left for work at 7 a.m. on June 2, 1983.   These descriptions differed from the victim's and the reports of the apartment manager and his wife as to what defendant was wearing.

Defendant's motion in limine to exclude evidence of a prior felony conviction was denied, and he did not testify on his own behalf.

Following a jury trial, defendant was found guilty of one count of kidnaping, one count of assault with intent to commit a felony, and one count of attempted forcible rape.   In addition, allegations with respect to each offense that defendant personally used a knife were found to be true.   Defendant was sentenced to the upper term of seven years on the kidnaping with a one-year enhancement for the use of the knife.   Defendant was sentenced to 16 months (1/313 of the middle base term) to be served consecutively for conviction of assault with intent to commit rape.   The use enhancement on the assault count was stayed.   The trial court imposed a concurrent term of three years on the attempted forcible rape, but the sentence on that count, as well as the one-year use enhancement pertaining to that count, was stayed pursuant to Penal Code section 654.

Discussion

1. Impeachment with Prior Felony Convictions

Defendant had suffered prior felony convictions for forcible oral copulation and forcible sodomy.   Defense counsel moved in limine to exclude impeachment of defendant, if he should testify, with evidence of these prior felony convictions.   Pursuant to Proposition 8, and particularly the section now designated article 1, section 28, subdivision (f), of the California Constitution, the trial court denied the motion and ruled that evidence of the prior felony convictions would be admitted for impeachment purposes if defendant testified.   Defendant argues the court's ruling deprived the jury of essential defense evidence and constituted prejudicial error.

In People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111 the California Supreme Court held that subdivision (f) of section 28 of the California Constitution was “not intended to abrogate the traditional and inherent power of the trial court to control the admission of evidence by the exercise of discretion to exclude marginally relevant but prejudicial matter—as, indeed, is provided by Evidence Code section 352.”  (Id., at p. 306, 211 Cal.Rptr. 719, 696 P.2d 111, fn. omitted.)   The Castro court held that subdivision (f) authorizes the use of prior felony convictions which necessarily involve moral turpitude, even when the immoral trait is not dishonesty, but that the admission of prior felony convictions is “always subject to the trial court's discretion under section 352 ․”  (Ibid.)   The court held the effect of subdivision (f) was to remove limits on the exercise of the court's discretion under Evidence Code section 352 that had been imposed by People v. Antick (1975) 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43, People v. Rist (1976) 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833, and later cases.  (Id., 38 Cal.3d at pp. 306–312, 211 Cal.Rptr. 719, 696 P.2d 111.)

 In the instant case the trial court believed that under Proposition 8 it had no discretion to exclude defendant's prior felony convictions and so it failed to exercise discretion.   In so doing, the court erred under Castro.   The question is whether the court's failure to exercise its discretion requires reversal.   We believe not.   In this respect we disagree with the per se reversal rule found by the court in People v. Almarez (1985) 168 Cal.App.3d 262, 268, 214 Cal.Rptr. 105.

First, we hold defendant is foreclosed from asserting prejudice by his failure either to testify or make an offer of proof as to what his testimony would be, in camera if necessary.   Defendant made no commitment he would testify if his motion were granted, nor did he make an offer to the court as to what his testimony would be.   Under similar circumstances in Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443, the United States Supreme Court recently held a defendant who did not testify at trial was not entitled to review of the District Court's ruling denying his motion to exclude use of his prior conviction for impeachment purposes.   The court stated:  “A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context.   This is particularly true under rule 609(a)(1), which [like Cal.Evid.Code, § 352] directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant.   To perform this balancing, the court must know the precise nature of the defendant's testimony, which is unknowable when, as here, the defendant does not testify.  [¶]  Any possible harm flowing from a district court's in limine ruling permitting impeachment by a prior conviction is wholly speculative.”  (Luce, supra, 469 U.S. ––––, –––– [105 S.Ct. 460, 463, 83 L.Ed.2d 443, 447], fns. omitted.)   To hold otherwise would permit a defendant, simply by making a motion to exclude prior convictions, to “plant” reversible error in the record in the event of conviction.  (See People v. Kyllingstad (1978) 85 Cal.App.3d 562, 570–571, 149 Cal.Rptr. 637.)   It was precisely this sort of “built in” reversal the Castro court held Proposition 8 was designed to abrogate.

Alternatively, we hold the error is subject to the Watson ¹ standard of prejudice and did not result in a miscarriage of justice.   (People v. Castro, supra, 38 Cal.3d 301, 319, 211 Cal.Rptr. 719, 696 P.2d 111;  People v. Campos (1985) 167 Cal.App.3d 582, 586–587, 213 Cal.Rptr. 453;  People v. Bonilla (1985) 168 Cal.App.3d 201, 206, 214 Cal.Rptr. 191.)   Defendant's prior convictions for forcible oral copulation and forcible sodomy plainly involved moral turpitude, and were thus prima facie admissible under the standard enunciated in Castro.   Proposition 8, as Castro acknowledged, did away with the restrictions of the Rist-Antick line of cases which appeared to articulate a standard of per se error for use of an identical or similar prior felony conviction.   Moreover, defendant's prior felony convictions, the facts of which were similar to those in the instant case, i.e., the victim was lured into a car on the pretext of giving her a ride following which she was forced to orally copulate the defendant and submit to acts of sodomy, were crucial to the issue of defendant's truth and veracity because his defense in the instant case was a denial that he was present or took part in the acts alleged.   Indeed, the prior offenses might well have been admissible as substantive evidence on the issue of identity.   Thus, under Castro, the trial court could have properly exercised its discretion to admit defendant's prior felony convictions for purposes of impeachment and under the circumstances there is no reasonable probability it would not have done so.

Moreover, the prosecution's case was very strong.   The victim and two eyewitnesses readily identified defendant both in a photographic lineup and in court.   The vehicle chased by the apartment manager was in fact a vehicle assigned to defendant by defendant's employer.   The vehicle actually assigned to defendant matched in all significant respects the car in which the crimes took place.   Where the prosecutor's case is a strong one there is relatively less disservice to the defendant in allowing the prosecutor to impeach him with his prior felony convictions because the jury already has access to a large quantity of evidence.  (Cf., 1 Jefferson, Cal.Evidence Benchbook (2d ed. 1982) § 22.2, p. 624.)

Upon a review of the entire record, it is not reasonably probable a result more favorable to defendant would have occurred had the court exercised its discretion under Evidence Code section 352.

2. The Lesser Offense Instructions

Defendant submitted jury instructions on the offenses of false imprisonment and sexual battery as alternatives to the offenses of kidnaping and attempted rape.   The court refused to deliver the requested instructions.   Defendant contends the ruling was incorrect.

It should first be noted that defendant may not reply on People v. Geiger (1984) 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303, which requires a court to instruct on lesser offenses supported by the evidence, even though the lesser offenses are not necessarily included in the offenses charged.   Geiger by its express language is prospective only.  (Id., at p. 532, fn. 13, 199 Cal.Rptr. 45, 674 P.2d 1303.)   The verdicts in defendant's case were rendered before Geiger was decided.   Moreover, as we shall observe, the evidence showed defendant was either guilty of the greater offenses or not guilty at all.

 The court was obligated to give the requested instructions only if there was evidence from which the jury could have concluded that the particular facts of the lesser offense did exist.  (People v. Wickersham (1982) 32 Cal.3d 307, 324, 185 Cal.Rptr. 436, 650 P.2d 311.)   Here, there was no evidence to support a finding of guilt of the lesser offenses.  (Cf. People v. Morrison (1964) 228 Cal.App.2d 707, 712, 39 Cal.Rptr. 874.)   Defendant's entire defense was based on alibi and mistaken identity.   The defense witnesses either attempted to place defendant at some other location at the time of the crime, or described his clothing and mannerisms inconsistently with the descriptions given by prosecution witnesses.   Defendant denied any complicity in the crime charged and thus laid no foundation for any verdict intermediate between “not guilty” and “guilty as charged.”

 If the defendant did anything, he committed the greater offenses.   If defendant's alibi defense was disbelieved, as it clearly was by the jury, there was no question defendant was guilty of kidnaping in transporting the victim against her will from the street into the parking area behind the supermarket, and from there to her apartment.   It is inaccurate to say, as defendant suggests, that the asportation to the victim's apartment was voluntary because it was at her suggestion.   As the victim testified, the only reason she suggested they go to her apartment was to enable her to escape.   During the course of the ride, defendant warned the victim against trying anything and would not even permit her to open the car window.   This was clearly a kidnaping.

 There was likewise no evidence to sustain an instruction on sexual battery.  Penal Code section 243.4 defines sexual battery as the touching of “an intimate part of another person while that person is unlawfully restrained,” against the will of the person touched and for the purpose of “sexual arousal, gratification, or abuse.”  (See In re Keith T. (1984) 156 Cal.App.3d 983, 986, 203 Cal.Rptr. 112.)   As defendant concedes, there was no touching of an intimate part of the victim.   No instruction on sexual battery was required.

3. Adequacy of Representation by Trial Counsel

Defendant contends trial counsel did not adequately represent him because (a) counsel failed to request a live pretrial lineup, (b) he improperly allowed a one-photograph identification to be made, (c) he failed to make a pretrial motion to exclude the pretrial photographic lineup, and (d) he failed to insure proper investigation of material witnesses.

 The burden of proving a claim of ineffective assistance of counsel is on the defendant.   He must show trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates.  (People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.)   Defendant has the affirmative duty to demonstrate the acts or omissions complained of cannot be explained on the basis of any knowledgeable choice of tactics.  (People v. Floyd (1970) 1 Cal.3d 694, 709, 83 Cal.Rptr. 608, 464 P.2d 64, overruled on another point in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36, 148 Cal.Rptr. 890, 583 P.2d 748.)   The trial tactics employed by counsel will not normally be second guessed on appeal.  (People v. Lanphear (1980) 26 Cal.3d 814, 828, 163 Cal.Rptr. 601, 608 P.2d 689, vacated in California v. Lanphear (1980) 449 U.S. 810, 101 S.Ct. 57, 66 L.Ed.2d 13, and reiterated on remand in People v. Lanphear (1980) 28 Cal.3d 463, 171 Cal.Rptr. 505, 622 P.2d 950.)   Defendant must show that the actions of counsel were such that in the absence of the alleged inadequacies in representation, the verdict would probably have been different.  (People v. Fosselman (1983) 33 Cal.3d 572, 584, 189 Cal.Rptr. 855, 659 P.2d 1144.)

 Defendant has failed to meet his burden.   With respect to the photo lineup identification of defendant by the victim, the apartment manager and his wife, trial counsel testified at defendant's motion for a new trial that he had given some thought to a suppression motion, but after viewing the lineups he decided against it because he did not believe the motion would be meritorious.  “ ‘It is not incumbent upon trial counsel to advance meritless arguments or to undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel.’ ”  (People v. Shope (1982) 128 Cal.App.3d 816, 825, 180 Cal.Rptr. 567.)   Moreover, trial counsel explained he had additional tactical reasons for his decision not to present a suppression motion.

Trial counsel also fully explained his reasons for not requesting an additional corporeal lineup of the defendant.   The victim and the apartment manager and his wife had already positively identified defendant from a photographic lineup.   Also, a defense investigator, through a misunderstanding of defense counsel's instructions, had showed a single photograph of defendant to the apartment manager and his wife.   In defense counsel's opinion, a corporeal lineup would have been of no help, and could well have provided additional evidence favorable to the prosecution.   Counsel's tactical decision was entirely rational.

Defendant argues counsel was incompetent in permitting the defense investigator to show a single photograph of defendant to a number of people, including the apartment manager and his wife.   However, defense counsel did not instruct the investigator to show such a photograph;  defense counsel was not present and the investigator's action was beyond defense counsel's control.   In any event, the investigator's action was not prejudicial because the apartment manager and his wife had already positively identified defendant from a photographic lineup.

Finally, defendant claims counsel's failure to conduct an adequate investigation resulted in his failure to discover certain testimony from one of defendant's neighbors that defendant's car had not had a license plate on it the day of the crime.   Defendant is mistaken that the neighbor in question did not testify at trial.   He did.   Moreover, even had the neighbor been questioned at trial as to whether defendant's car had a license plate on it the day of the crime, the neighbor's testimony could not reasonably have affected the result.   Defendant was positively identified by the victim and additional witnesses.   The license number copied by the apartment manager from the vehicle he pursued was the license number of a vehicle actually assigned to defendant by his employer.   The car actually assigned to defendant matched in all significant respects the color, style, and features of the car actually seen both by the victim and the apartment manager.   It is not reasonably probable the verdict would have been different even had the neighbor testified about the presence or absence of a license plate on defendant's vehicle.

Defendant's claim of inadequate trial representation is not meritorious.

4. Dual Use of Facts in Imposing Sentence

 Defendant contends the imposition of consecutive sentences for the kidnaping and the assault should be set aside because the trial court made an improper dual use of facts.

In imposing the upper term for the kidnaping, the trial court noted three reasons:  (1) the victim was particularly vulnerable, (2) defendant had been convicted of other violent crimes of a similar nature, and (3) defendant utilized a position of confidence to commit the offense.

The trial court then ruled the sentences on the kidnaping and the assault should run consecutively because:  (1) the prior convictions as an adult were serious, (2) defendant engaged in a pattern of violent conduct which indicates he is a serious danger to society, and (3) the circumstances of the case indicate premeditation.

The factors used by the court were not duplicative.   The reasons stated by the court for imposing the aggravated term were independent of and distinct from the factors relied on by the court in imposing the consecutive sentence.   (See Cal.Rules of Court, rules 421, 425.)   There was no error.

5. Propriety of Consecutive Sentences

 Defendant was sentenced to consecutive terms for the kidnaping and for the assault with intent to commit rape.   A concurrent sentence for attempted rape was stayed pursuant to Penal Code section 654.   Defendant contends the imposition of the consecutive sentences on the kidnaping and on the assault with intent to commit a felony constituted a violation of Penal Code section 654.

The People attempt to counter defendant's contention by urging that the kidnaping was not effected until after the assault, on the theory the kidnaping occurred when defendant took the victim from the parking area behind the supermarket to her apartment, whereas the assault with intent to commit rape occurred earlier while the car was stopped behind the supermarket.

Defendant's course of conduct may not be so divided.   Where a kidnaping is “part of a continuous course of conduct motivated by one objective, rape, the kidnaping although complete before the rape was committed will be treated as incidental to and as a means of committing the rape.”  (People v. Laster (1971) 18 Cal.App.3d 381, 394, 96 Cal.Rptr. 108;  People v. Burns (1984) 158 Cal.App.3d 1178, 1181, 205 Cal.Rptr. 356.)   The kidnaping in the instant case was part of a continuous course of conduct motivated by defendant's objective of rape.   The kidnaping began perhaps as early as when defendant operated the electronic locks on the doors, but certainly no later than the time defendant refused to let the victim out of the car at her destination, but instead drove from the street to the parking area behind the supermarket.   The trial court specifically so found.   The jury's finding defendant used a deadly weapon in the commission of the kidnaping also belies the People's argument the assault preceded the kidnaping.

The imposition of consecutive sentences was thus improper under Penal Code section 654.   The sentence on the assault with intent to commit rape must therefore be stayed.  (People v. Diaz (1967) 66 Cal.2d 801, 807, 58 Cal.Rptr. 729, 427 P.2d 505;  In re Ward (1966) 64 Cal.2d 672, 676, 51 Cal.Rptr. 272, 414 P.2d 400.)

Disposition

The judgment is modified so that the sentence on count 2, the assault with intent to commit rape, is stayed pending defendant's service of the sentence imposed on count 1, thereupon the stay to become permanent.   As so modified, the judgment is affirmed.   The trial court shall file and serve on all appropriate authorities an amended abstract of judgment.

FOOTNOTES

1.   People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.

KAUFMAN, Associate Justice.

MORRIS, P.J., and McDANIEL, J., concur.