IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE A115355

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1 Filed 6/06/08 P. v. Santana CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, Plaintiff and Respondent, v. JAIME SANTANA, Defendant and Appellant. A (Alameda County Super. Ct. No. CH-40542) Jaime Santana appeals his conviction by jury trial of two counts of forcible rape in concert (Pen. Code, 264.1) (counts 1 & 2) and one count of forcible sexual penetration in concert (Pen. Code, 264.1) (count 3). 1 He contends the court erroneously admitted the victim s videotaped statement, his defense counsel was ineffective for failing to move to redact pretrial statements made by him and the victim and the court committed Cunningham error (Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham)). We agree that the case must be remanded for resentencing, but otherwise affirm. BACKGROUND On May 4, 2005, the 14-year-old victim received a text message from her longtime friend Tommy asking her if she wanted to kick it with him. The victim replied affirmatively, and agreed to contact him after school. The victim and Tommy had never dated or been romantically involved. The next day Tommy called the victim, 1 Defendant was sentenced to 19 years in state prison. 1

2 confirmed that the plan for them to meet at Tommy s house had not changed, and had appellant s brother, Joey, 2 get on the phone and speak with her. Later that day, the victim met Joey, who said Tommy was taking a shower and would meet them at the kick-it spot. The victim recognized Joey from junior high school, but neither knew him well nor had ever dated him. The victim and Joey walked to the kick-it spot, which appeared to be an old, abandoned house with no water or electricity located in Newark. Joey opened the door by putting his hand through a crack in the glass, and he and the victim entered a back room with a couch, rocking chair, dresser, mirror and candles. They sat down and talked about how they knew each other. Some time later, Tommy arrived with appellant, Starkisha McCormick, Danelle ( Piglet ) and Jakylin Jones. Appellant was introduced to the victim as Cheeks or Chubs. The victim had met McCormick before, but had never met appellant, Danelle or Jones. Everyone began talking and everyone except the victim began drinking vodka and orange juice and smoking marijuana. At some point, McCormick, Danelle and Jones started to leave to meet another friend. When the victim stood up and attempted to leave with them, Tommy said he wanted her to stay and kind of pushed [her] toward the couch. The victim fell on the couch and Joey held her arms down and tried to remove her pants. Appellant covered her mouth. Joey then removed his shorts and was in between the victim s legs and holding her down while she was on her back with her legs up. Appellant held her arms down with his hands while Joey inserted his penis inside the victim s vagina. The victim was telling him to stop. Joey ejaculated on the victim s leg. The victim was able to put her pants back on. Tommy entered the room, closed the window curtain and kept trying to remove the victim s belt and pants. Tommy succeeded in removing her pants and threatened that if she did not let him, he would tell his grandmother, who the victim loved, that the victim had fucked Joey. Tommy kept putting his penis in the victim s face and ignored her requests that he stop. Tommy 2 Elsewhere in the record Joey is referred to as Jose. 2

3 took off his shorts, showed the victim a condom he was holding and then inserted his penis inside the victim s vagina while she lay on her back and either Joey or appellant held her arms. Thereafter, appellant put his fingers inside the victim s vagina while she was lying down. She pushed him away and at some point he stopped touching her. At that point Tommy left the room and went to the door and McCormick, Jones and Danelle, joined by Angelica, returned to the back room as the victim was putting on her pants. Tommy, Joey and appellant all returned to the room as well. Joey kept trying to pull the victim onto his lap. The victim repeatedly asked Tommy if she could use his phone and he refused. The victim then left the house alone and went to the home of the sister of Angelina R., the victim s guardian. There, she told Raymond Munoz that she had been raped. Munoz took the victim to Angelina R. s house. Angelina R. then took the victim to the Newark Police Department and the victim gave her clothes to Officer Bryce Loughery. Loughery conducted a videotaped interview of the victim and then took her to the hospital for a sexual assault exam. Physician assistant Dana Kelley performed a sexual assault exam on the victim. The victim told Kelley she was assaulted by Joe, Tommy and Chubs. Kelley took vaginal swabs from the victim and a swab from the victim s thigh. Kelley s vaginal examination revealed areas of abrasion that could have been consistent with nonconsensual sexual contact. Sperm on the victim s underwear matched Joey s DNA. DNA testing of the sperm from a tied-off condom found in the bathroom of the scene of the victim s assaults matched Tommy s DNA. Jones testified that appellant has been her boyfriend for about one and one-half years, Joey is appellant s brother, and Jones s grandmother owns the abandoned house. Jones said she went with appellant, Danelle, Tommy and McCormick to the abandoned house. Joey and the victim were already there. Jones had never before met the victim. Jones said there was no sexual contact between the victim and either appellant, Tommy or Joey. Jones said that when the victim was introduced to appellant, the victim said to 3

4 him, You can be my third. According to Jones, no one drank alcohol or smoked marijuana, and the victim was the first to leave. McCormick, a close friend of Tommy s family, testified that while everyone was at the abandoned house, the victim sat on Joey s lap. At some point McCormick heard the victim whisper to Tommy [t]hat he was gonna be her fourth. McCormick said the victim was the first to leave, and there had been no drinking or marijuana smoking. Newark Police Officers Michael Carroll and Mike Rollins conducted a videotaped interview with appellant on February 14, 2006, after appellant waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436). The videotape was played for the jury. In the interview appellant admitted going to the abandoned house and the victim, who he had never met, sat in Joey s lap and started saying to Joey and appellant I want to do this, I want to do that, and telling Tommy that she wanted him. The Defense Gynecologist Dr. Forrest Smith, testified as an expert regarding whether medical records establish that sexual contact is consensual or nonconsensual. After reviewing the victim s sexual assault exam records, Smith opined that the victim engaged in sexual contact, but could not tell whether that contact was consensual or nonconsensual. DISCUSSION I. The Victim s Videotaped Interview with Police Was Properly Admitted During redirect examination of the victim, the prosecutor stated her intention to play a videotape of the May 5, 2005, interview of the victim by Loughery while the jury followed along with a copy of the transcript of the video. The videotape was then played for the jury. Thereafter, the prosecutor briefly questioned the victim about the tape. After the jury recessed for the day, the court stated the next day defense counsel would have an opportunity to make a record of his objection to the playing of the videotape. The following day, outside the presence of the jury, prior to permitting defense counsel to make a record of his objections, the court noted that a prior in-chambers hearing was held on defense counsel s objection to playing the videotape of the victim s statement, and the court had ruled on the objection in chambers. Defense counsel stated 4

5 he objected to introduction of the victim s videotaped statement on the grounds of hearsay and Evidence Code section The prosecutor responded that the videotape was admissible under the past recollection recorded exception to the hearsay rule ( 1237). She argued that other than authentication, she had satisfied all of the prerequisites for that hearsay exception, and that defense counsel did not object to the videotape on grounds of lack of authentication. The prosecutor also argued that the videotape was admissible because it contained statements that were both consistent and inconsistent with the victim s trial testimony, and that the probative value of the videotaped statement outweighed the consumption of time in playing it for the jury. Defense counsel stated if his objection to the admissibility of the videotape were overruled, the entire videotape should be played. The court ruled that the foundational requirements of section 1237 were established, and the victim s statement contained substantial numbers of prior consistent and prior inconsistent statements. The court also stated, There was an express charge of fabrication made during cross-examination against the complaining witness s credibility, so not only was the statement admitted under [section] , but also under both prior consistent and prior inconsistent statements. The court found that the videotape s probative value outweighed its prejudicial effect and noted that defense counsel s section 352 objection did not point to any specific statement in the videotape. The court also agreed with defense counsel that the only sensible way to play the videotape was to play it in its entirety. The victim s videotaped statement was admitted into evidence, but the transcript thereof was not. On appeal, appellant contends the victim s videotaped statement was erroneously admitted under section because the videotaped statement was offered by the 3 All undesignated section references are to the Evidence Code. 4 Section 1237 provides: (a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the 5

6 prosecution, not an adverse party, as that section requires. Appellant argues that the improper admission of the videotaped statement was prejudicial under California and federal standards because, compared to the victim s trial testimony which was halting, confusing and contradictory, her videotaped statement was a relatively coherent recitation of her allegations. In support of his claim that the error was prejudicial, appellant also notes that after retiring to deliberate, the jury requested the transcript of the victim s videotaped statement. 5 However, as argued by the People, appellant has waived his objection to admission of the victim s videotaped statement under section 1237 because at the time the videotape was admitted, defense counsel expressly stated he had no objection. (See People v. Atkins (1970) 10 Cal.App.3d 1042, 1050 [failure to object to admission of evidence below precludes objection on appeal].) Alternatively, the People assert that even if the statement is inadmissible under section 1237, it is admissible as a prior inconsistent statement under section 1235 and as a prior consistent statement under section Section 1235 provides: Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770. Section 770 provides: Unless statement is contained in a writing which: [ ] (1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness memory; [ ] (2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness statement at the time it was made; [ ] (3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and [ ] (4) Is offered after the writing is authenticated as an accurate record of the statement. [ ] (b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party. 5 The record reveals that the jury requested transcripts of the videotaped statements of both the victim and appellant. In response thereto, the court and counsel agreed that the jury would be informed that the transcripts were not evidence and would not be sent into the jury room, but that the jury could view the videotapes. 6 We note that on appeal appellant does not object to the court s alternative reason for admitting the victim s videotaped statement as a prior consistent and inconsistent statement. 6

7 the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [ ] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [ ] (b) The witness has not been excused from giving further testimony in the action. In this case, because the victim s videotaped statement was played during her redirect examination, the videotape was offered in compliance with section 770. In addition, there were numerous inconsistencies between the videotaped statement and the victim s trial testimony, including: (1) whether appellant or Tommy closed the curtains; (2) whether appellant touched the victim s vagina before or after she was assaulted by Joey; (3) whether appellant touched the victim s vagina over or under her clothes; (4) whether appellant held the victim s arms down while standing over her or while sitting near her head; and (5) whether appellant used his hands to hold down the victim s arms or used one arm and one leg to hold her down. While these inconsistencies comprised a small portion of the 90-minute videotape, defense counsel expressly stated that if any part of the videotaped statement were ruled admissible, the entire videotape should be admitted and played for the jury. We conclude the court properly admitted the videotape as an inconsistent statement under section II. There Was No Ineffective Assistance of Counsel Next, appellant contends his defense counsel rendered ineffective assistance of counsel by failing to move to redact allegedly prejudicial portions from appellant s and the victim s pretrial statements. An appellant claiming ineffective assistance of counsel has the burden of establishing: (1) counsel s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, (Ledesma).) In determining whether counsel s performance was deficient, we exercise deferential scrutiny. (Strickland, supra, 466 U.S. at p. 689; Ledesma, supra, 43 Cal.3d at 7

8 p. 216.) The appellant must affirmatively show counsel s deficiency involved a crucial issue and cannot be explained on the basis of any knowledgeable choice of tactics. (People v. Montoya (2007) 149 Cal.App.4th 1139, ) [W]here the record shows that counsel s omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed. (People v. Pope (1979) 23 Cal.3d 412, 425.) To establish prejudice, [t]he defendant must show that there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at p. 694; Ledesma, supra, 43 Cal.3d at pp ) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland, at p. 694.) In establishing prejudice, the appellant must carry his burden of proving prejudice as a demonstrable reality, not simply speculation as to the effect of the errors or omissions of counsel. [Citation.] (People v. Williams (1988) 44 Cal.3d 883, 937.) First, appellant contends defense counsel should have moved to redact the following from his statement: I guess [my sister] tried to say that I helped participate,... something accessory. [T]hat s what... my sister said.... He argues the statement about what his sister said was inadmissible hearsay pursuant to section 1200, and the prejudice from its admission was self-evident. However, the statement viewed in context is: [Rollins:] Right. So you ve heard some things. [Appellant:] Yeah, I know, I heard, heard the probation officer gave it to my sister and everything but she s been going through it and the only thing I know is, I guess she tried to say that I helped participate, you know what I m saying, something accessory, that s what, that s what my sister said, either you have a warrant for accessory or you want to question you for being there. The challenged statement is virtually unintelligible. It appears to refer to information appellant s sister related to him that originally came from either the police or the victim; i.e., that either the victim had said appellant helped participate or was an 8

9 accessory or the police wanted to talk to him about the victim s accusation. It seems unlikely that the jury would have adopted the interpretation urged on appeal by appellant, that appellant s sister had said he participated in the crime. There was no evidence the sister was present during the commission of the crime, and the prosecutor never argued that appellant s sister had formed any opinion on appellant s responsibility. Thus, even if this statement is hearsay, no prejudice could have resulted. Second, appellant contends defense counsel was ineffective for failing to move to redact the following colloquy between him and Rollins: [Rollins:] All right. Well, if you think of anything else you could always call and I ll be glad to talk to you. [Appellant:] Right on. [Rollins:] Now, now once you get an attorney that, that, they won t let you do that. Just keep that in mind. [Appellant:] What, they won t let me talk (unintelligible)? [Rollins:] Once you get an attorney... [Appellant:] I can t talk to you? [Rollins:] Your attorney is going to say no and I can t come to talk to you. So,... [Appellant:] I m telling you the truth. I m going to tell you this is the honest truth God I m telling you. Appellant argues that defense counsel should have sought redaction of the statement because Rollins s speculation as to what appellant s attorney might do was irrelevant and, therefore, inadmissible. He also argues that Rollins s statement was prejudicial because it suggests that a person who retains counsel will refuse to cooperate with the police and, in essence, penalizes appellant for exercising his right to counsel and refusing to testify. The short answer to appellant s claim is that while Rollins s speculation as to whether appellant s counsel would encourage him not to talk to police is irrelevant, no prejudice is shown. The jury was instructed that a defendant has a constitutional right not 9

10 to testify and is presumed to have followed that instruction. (People v. Houston (2005) 130 Cal.App.4th 279, 308.) In addition, appellant s colloquy with Rollins could reasonably be interpreted as an emphatic statement by appellant that he was telling the truth. 7 Third, appellant contends defense counsel was ineffective for failing to move to redact the following statement by Rollins to appellant: [Rollins:] I know people, people try to, I m not talking about you, I m just saying people try to rationalize things to make it easier for themselves to accept when they get caught up in something, ok. And the most common way people do that is to explain to someone they re talking to, all the reasons why it wouldn t have happened. Ok. That doesn t mean it didn t. Appellant argues that Rollins s statement suggests that Rollins was an expert on whether a person is telling the truth and his ability to detect when someone s denial of involvement in a charged crime is false. He argues that even if Rollins s statement was an acceptable interrogation technique, it is an inadmissible statement of opinion on witness credibility. Because appellant neither asserts nor demonstrates that Rollins s statement was prejudicial, this claim of ineffective assistance of counsel fails. Finally, appellant contends defense counsel was ineffective in failing to move to redact the following statement by the victim after Loughery asked her what Tommy was on probation for: After he text me that (unintelligible) I think I was like if you don t mind me asking what are you on probation for and he said that he stole a car back in the day but I m going to bed now I ll see you tomorrow for sure. Appellant contends the statement was inadmissible hearsay as to what Tommy told the victim, and Tommy s stolen car conviction was irrelevant to the charges against appellant. He argues the statement was prejudicial because it portrayed him as someone who associated with a convicted criminal. 7 Presumably the jury would have viewed this as consistent with appellant s demand for DNA testing and a lie detector test at the beginning of his statement to the police. 10

11 Even if defense counsel was deficient in failing to move to redact the statement, prejudice is not demonstrated. The statement linked not only appellant, but also the victim to Tommy; she voluntarily agreed to meet with him after being informed he had been convicted of car theft. In addition, by the time the jury heard the challenged statement by the victim, it had already been presented with ample evidence that Tommy raped the victim, consequently, it is unlikely the jury s knowledge of Tommy s prior car theft tainted its perception of Tommy, much less appellant and resulted in appellant s conviction. III. Cunningham Error Appellant contends the sentencing court committed Cunningham error by imposing the nine-year upper term for forcible sexual penetration (Pen. Code, 264.1) (count 3), and imposing consecutive sentences on each count without any findings of fact by the jury. At the September 18, 2006, sentencing hearing the court stated it was imposing the upper term on the count 3 offense because of the vulnerable position of the victim and the high degree of callousness displayed in the act. The court imposed consecutive sentences on all three counts based on its finding that the offenses were committed against the victim on separate occasions. (See Pen. Code, 667.6, subd. (d).) 8 8 Penal Code section 667.6, subdivision (d) provides in relevant part: A full, separate, and consecutive term shall be imposed for each violation of [Penal Code section 264.1] if the crimes involve separate victims or involve the same victim on separate occasions. [ ] In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions. 11

12 A. Imposition of the Upper Term In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the United States Supreme Court applied the Sixth Amendment and held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. In Cunningham, supra, 549 U.S. at p. [127 S.Ct. at page 871], the high court held that California s determinate sentencing law violated a defendant s federal right to trial because it assigned to the trial judge, not the jury, the authority to make factual findings that subject the defendant to the possibility of an upper term. The United States Supreme Court has recognized two exceptions to a defendant s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the [statutory] maximum authorized by the jury s verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.] (People v. Sandoval (2007) 41 Cal.4th 825, (Sandoval).) The People argue that any error was harmless beyond a reasonable doubt because had the jury been presented with these two sentencing factors it would unquestionably have found at least one of them true. (See Sandoval, supra, 41 Cal.4th at pp ) In particular, the People argue that based on the fact that appellant and the two other men lured the 14-year-old victim to an abandoned house, held her down, threatened her and raped her in concert, the jury would have found the victim to be particularly vulnerable. The People also argue that because appellant s sexual assault commenced after two rapes had already occurred, the jury could have found a high degree of callousness on his part. In applying a harmless error analysis, Sandoval cautioned that the reviewing court cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury. Although 12

13 the aggravating circumstances found by the trial court were based upon the evidence presented at trial, they were not part of the charge and were not directly at issue in the trial.... [Citation.] Defendant thus did not necessarily have reason or the opportunity during trial to challenge the evidence supporting these aggravating circumstances unless such a challenge also would have tended to undermine proof of an element of an alleged offense. (Sandoval, supra, 41 Cal.4th at p. 839.) Additionally, to the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court. (Id. at p. 840.) Viewing the record before us in light of Sandoval s admonition, we are unable to conclude the error was harmless. Evidence was presented that the victim was flirtatious with appellant and Tommy, and implied she wanted to have sex with them. The defense also argued that the victim did not testify that she felt afraid during the assault or that she was unable to break away from her assailants and leave. While none of this evidence suggests a problem with the jury s decision to convict appellant for his role in these very serious felonies, it does preclude a conclusion that the jury would have unquestionably found the victim to be a particularly vulnerable victim. Further, the callousness factor entails findings related to a defendant s state of mind. (Sandoval, supra, 41 Cal.4th at p. 841.) Of the three assailants, appellant was the only one who committed forcible digital penetration rather than forcible rape. Moreover, the evidence was in dispute as to whether and how appellant held the victim down while she was being raped by the other two assailants. Thus, we cannot conclude that the jury would unquestionably have found that appellant s acts were committed with a high degree of callousness. The case must be remanded to the trial court for resentencing consistent with Sandoval. B. Consecutive Sentences Cunningham did not address the imposition of consecutive sentences for multiple offenses. However, in People v. Black (2007) 41 Cal.4th 799, our Supreme Court held that the Sixth Amendment does not require that consecutive terms be based on factual 13

14 findings made by a jury. (Id. at pp. 806, ) This is true whether the consecutive terms are imposed pursuant to Penal Code section 669 (Black, at pp ) or Penal Code section (People v. Groves (2003) 107 Cal.App.4th 1227, ). DISPOSITION The upper term sentence on count 3 (Pen. Code, 264.1) is vacated and the matter is remanded for resentencing in accordance with the procedures outlined in Sandoval, supra, 41 Cal.4th at pages The judgment is otherwise affirmed. SIMONS, Acting P. J. We concur. NEEDHAM, J. STEVENS, J. Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 14