The People v. McGhee CA4/2 ( 2013 )

Filed 8/26/13 P. v. McGhee CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056318
v. (Super.Ct.No. FSB1102907)
DARRYL MCGHEE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Richard V. Peel,
Judge. Affirmed.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood, and Marilyn L.
George, Deputy Attorneys General, for Plaintiff and Respondent.
1
I
INTRODUCTION
Defendant Darryl McGhee appeals from judgment entered following jury
convictions for two counts of forcible oral copulation upon his ex-girlfriend, Jane Doe
(Pen. Code, § 288a, subd. (c)(2)(A)).1 The trial court sentenced defendant to an
aggregate term of five years in prison.
Defendant contends the trial court erred in excluding evidence of family law and
child custody proceedings involving defendant and Jane Doe. Defendant also argues that
the trial court erred when it overruled his objection to reading to the jury his testimony
given during the first trial, in which defendant admitted he was guilty of committing a
crime. Defendant further asserts that he received ineffective assistance of counsel when
his trial attorney failed to object to the prosecutor asking him if he committed a crime.
We conclude there was no prejudicial error and affirm the judgment.
II
FACTS
Defendant and Jane Doe were in a romantic relationship for eight years, during
which they had a daughter. Their relationship ended in around 2009. Defendant moved
out of their residence and moved to Florida, while Jane Doe and her daughter remained in
the family home. Defendant and Jane Doe never reconciled, although they maintained
contact with each other because of their daughter. After six months, defendant moved
1 Unless otherwise noted, all statutory references are to the Penal Code.
2
back to San Bernardino. When he picked up or dropped off their daughter for visitation,
he did not enter Jane Doe‟s home.
During the evening of June 28, 2011, while Jane Doe was cooking dinner, she
heard her daughter say, “What‟s my daddy doing here[?]” Jane Doe looked out the
kitchen window and saw defendant. Although Jane Doe had not invited defendant over,
he walked inside towards Jane Doe. Defendant was wearing black basketball shorts and
no shirt. Jane Doe was wearing a tank top and shorts.
Jane Doe was not expecting defendant and was upset he was in her home. Jane
Doe asked defendant what he was doing there. He said, “I‟m sorry, [Jane Doe]. I‟m
sorry.” Defendant tried to give Jane Doe a hug. Jane Doe pushed him away and walked
down the hall to her room to get her phone, to call the police. She wanted to get
defendant out of her house. Defendant followed her to her bedroom. On the way to her
room, Jane Doe repeatedly told defendant to leave.
When Jane Doe got to her room, she grabbed her phone and called 911.
Defendant told her not to call the police and to put the phone down. Before the 911
operator answered Jane Doe‟s call, defendant snatched her phone and put it in his pocket.
Jane Doe tried to retrieve her phone but was unable to do so. Defendant refused to return
it to her. Defendant attempted to close the bedroom door but their daughter was in the
doorway. He pushed their daughter out of the doorway. Defendant then pushed Jane
Doe down onto the bed, forcing her to sit on the foot of the bed. When Jane Doe tried to
get up, defendant kept pushing her down. Jane Doe told defendant, “get off me.”
3
Defendant pushed Jane Doe flat on the bed. While at the foot of the bed, on his
knees, defendant put his hand on Jane Doe‟s chest to hold her down in a supine position
and started taking off her clothes. Jane Doe squirmed in an attempt to get up but she was
unable to do so because defendant was holding her down and defendant‟s body was
between her legs. Defendant began performing oral sex on Jane Doe. He told her not to
move. Meanwhile, Jane Doe squirmed, hit, and punched him, in an attempt to free
herself from defendant. Jane Doe testified she was scared, in shock, and angry that she
could not get defendant off her.
After defendant stopped performing oral sex, he kissed Jane Doe on her face and
neck. Jane Doe continued to struggle against him, fighting to get defendant off her.
Defendant then began performing oral sex on Jane Doe again. She told him to get off
her. Defendant inserted his fingers in her vagina. Jane Doe repeatedly punched him,
tried to push him off her body, and screamed for her daughter. Defendant eventually
stopped and tried to leave. He fell off the bed onto the floor. Jane Doe went after him on
the floor, punching and kicking him. He jumped up and ran down the hall. Jane Doe
chased after him, trying to get her phone out of his pocket. Defendant threw it onto the
kitchen wall, breaking the phone, and ran out of the house. Jane Doe then went to the
front door and told her son, who was outside, to get the neighbor‟s phone. Jane Doe went
to her room and got dressed. When she returned to the front door, her son handed Jane
Doe her neighbor‟s cell phone and helped her call 911. Jane Doe was unaware that her
previous call to 911 had actually gone through and that the entire crime had been audio
recorded while her phone was in defendant‟s pocket.
4
The first 911 call recorded Jane Doe saying “get off me” over a dozen times, and
then defendant said, “Don‟t motherfuckin move no more [Jane Doe].” Jane Doe again
repeatedly told defendant to get off her and “I‟m not playing with you. Get off of me.
[¶] . . . [¶] Get out! Get out! Get out!” After defendant said something unintelligible, the
following was recorded:
“[Jane Doe]: H-E-L-P!!! Get off of me! Give me my phone. Give me my phone.
Give me my phone.
“[Defendant]: I ain‟t giving it . . .
“[Jane Doe]: Give me my phone! Give me my phone!
“[Defendant]: (unintelligible) . . .
“[Jane Doe]: Give me my phone. Give me my phone. [¶] . . . [¶]
“[Jane Doe]: . . . call the police. . .”
During the second 911 call, Jane Doe said, “Hi, I need the police out to my house,
my daughter‟s father just came over here and forced his self on me had oral sex with me.”
Jane Doe told the operator defendant had left and she was using her neighbor‟s phone
because defendant tossed her cell phone, preventing her from using it to call the police.
Jane Doe acknowledged she had previously called 911. She also confirmed that
defendant had committed oral sex on her three or four minutes earlier. Jane Doe
described defendant for the operator and said that her neighbor had seen him jump over
her back wall and run away.
5
Jane Doe‟s neighbor, Gregory Johnson, testified that he saw defendant run out of
Jane Doe‟s house and heard him say, “Oh, fuck. Oh, fuck.” Johnson then heard Jane
Doe screaming for her son to ask for Johnson‟s phone. Johnson let her use his phone.
Police Officer Bellamy arrived at Jane Doe‟s residence about an hour after the
dispatch call. Jane Doe was crying and upset. He looked around her house and noticed
the comforter on Jane Doe‟s bed was “kind of messed up” and there was a broken cell
phone at the foot of the bed.
After talking with Doe, Bellamy went to defendant‟s residence and found him
lying on his bed. Defendant told Bellamy he had walked into Jane Doe‟s home through
an unlocked screen door. Jane Doe appeared surprised he was there. Defendant told her
he wanted to apologize for what had happened in the past and get back together with her.
He began kissing and hugging Jane Doe. Jane Doe pushed him away. He followed her
into her child‟s room and Jane Doe began decorating it. Defendant tried to talk to her but
she would not listen. Defendant then followed Jane Doe into the master bedroom. Jane
Doe picked up her phone to call someone. Defendant took her phone away, threw her
onto the bed, and thought she “wanted to wrestle.” Defendant lifted up Jane Doe‟s shirt,
began kissing and touching her breasts, pulled down her shorts, and committed oral sex
on her. Defendant did not recall Jane Doe saying anything.
Defendant further told Bellamy he thought the encounter was consensual because
Jane Doe did not resist. However, later on, she appeared to be getting upset. After he
performed oral sex on Jane Doe, she started hitting him. He immediately left.
6
Afterwards, he thought about what had happened and “didn‟t feel right about the whole
thing and [thought] he may have done something wrong.”
Although defendant did not testify during the instant trial (second trial), portions
of his testimony from the first trial were read to the jury.2 Defendant acknowledged he
was uninvited on June 28, 2011, and Jane Doe pushed him away when they were in the
kitchen, but he thought she only did not want him to hug her. Defendant followed Jane
Doe into the master bedroom after he had played with their daughter. Jane Doe was
sitting on the edge of the bed putting on lotion and talking on her cell phone. He took
away her phone and did not return it when she asked him to return it. He then performed
oral sex on Jane Doe. He understood that, when she attempted to push him off of her, she
wanted him to stop. Nevertheless, he continued to commit oral sex on Jane Doe and
conceded he “forceably [sic] overcame her will.” Defendant weighed 230 to 245 pounds
and was 6‟, 1”. Jane Doe weighed about 135 pounds. Defendant finally realized “it just
wasn‟t going well” and stopped, perhaps because Jane Doe was hitting him. Defendant
stated he committed oral sex on Jane Doe for her pleasure, not his.
Defendant further testified that his only intent was to do what was best for his
family. He did not intend to hurt Jane Doe. Defendant acknowledged that he did not
2 The first trial ended in the jury finding defendant not guilty of counts 1 (assault
during a burglary; § 220, subd. (b)) and 3 (sexual penetration by foreign object; § 289,
subd. (a)(1)). There was a hung jury as to count 2 (forcible oral copulation; § 288a, subd.
(c)(2)), resulting in a mistrial. The prosecution filed a second amended information,
alleging two counts of forcible oral copulation (§ 288a, subd. (c)(2)(A)). The instant
appeal arises from defendant‟s appeal of his two convictions in the second trial for
forcible oral copulation.
7
have Jane Doe‟s consent to do what he had done. He also said he thought his contact
with Jane Doe initially was consensual but partway through, it became nonconsensual.
He did not believe she wanted him to perform oral sex on her. He conceded that what he
did was wrong and had the “reverse effect of what [he] initially planned.” He wrote Jane
Doe a letter stating that he left her house “feeling like a monster and an idiot” because
she did not seem to care about him. He also wrote that he would take any possible plea
bargain. Defendant acknowledged he told Jane Doe not to testify. Defendant claimed
that Jane Doe‟s version of what happened was not entirely accurate.
III
EXCLUSION OF CHILD CUSTODY EVIDENCE
Defendant contends the trial court abused its discretion by excluding evidence of
pending family law and child custody proceedings involving defendant and Jane Doe
(collectively referred to in this opinion as child custody evidence). Defendant argues the
child custody evidence was relevant to show Jane Doe‟s bias and motivation for
testifying against defendant. Convicting and incarcerating defendant would aid her
objective of obtaining sole custody of their daughter. Jane Doe therefore had a motive to
exaggerate her animosity toward defendant. The evidence also refuted the sincerity and
truthfulness of her statements made at trial and during her 911 call.
We conclude that the evidence was properly excluded under Evidence Code
section 352, and its exclusion did not deprive defendant of his constitutional rights to
present a defense or cross-examine witnesses.
8
A. Procedural Background
During the first jury trial, the trial court permitted the child custody evidence and
evidence of the restraining order preventing defendant from going to Jane Doe‟s home or
work place. Jane Doe testified during the first trial that defendant persisted in trying to
reunite with her and would not leave her alone. He called her and sent her text messages
every day. During the second trial, the trial court granted the prosecution‟s motion to
exclude child custody evidence, including related text messages. Defendant objected,
arguing the child custody evidence was relevant to establishing that Jane Doe had a
motive to use the criminal system and lie about the criminal charges against him in order
to manipulate the outcome of the child custody proceedings. The prosecution argued it
was undisputed Jane Doe did not consent to the charged acts. Defendant‟s sole defense
was that he did not know Jane Doe had not consented. Therefore the child custody
evidence was irrelevant.
The trial court agreed the child custody evidence was irrelevant because it was
undisputed that Jane Doe did not consent to the charged crimes. The court therefore
excluded the child custody evidence under Evidence Code section 352 as being far more
prejudicial than probative.
Later, after voir dire, defendant again objected to exclusion of the child custody
evidence on the ground it deprived him of his due process right to present a defense and
his Sixth Amendment right to cross-examine Jane Doe regarding her motive to fabricate.
The trial court once again overruled defendant‟s objection, finding that it was undisputed
9
that Jane Doe did not consent to oral copulation. The court excluded the child custody
evidence under Evidence Code section 352 as unduly prejudicial and irrelevant.
B. Discussion
Defendant argues the child custody evidence was relevant to Jane Doe‟s
credibility as a witness. When determining the credibility of a witness, a jury may
consider “any matter that has any tendency in reason to prove or disprove the truthfulness
of his [or her] testimony.” (Evid. Code, § 780.) On the matter of credibility, the jury
may consider the character of the witness “for honesty or veracity.” (Evid. Code, § 780,
subds. (e) & (h).) “The credibility of a witness may be attacked or supported by any
party, including the party calling him [or her].” (Evid. Code, § 785.) Dishonest
statements made by a witness are admissible to impeach the witness‟s credibility.
(People v. Ayala (2000) 23 Cal.4th 225, 273-274.)
Under Evidence Code section 352, a trial court may “exclude evidence if its
probative value is substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” “For Evidence Code
section 352 purposes, prejudice refers to evidence that uniquely tends to evoke an
emotional bias against the defendant without regard to its relevance on material issues.
[Citation.]” (People v. Killebrew (2002) 103 Cal.App.4th 644, 650.) We review a trial
court‟s decision to exclude evidence under Evidence Code section 352 for an abuse of
discretion. (People v. Clark (2011) 52 Cal.4th 856, 893.)
10
Here, there was no dispute that defendant committed the act of oral copulation
against Jane Doe and that she did not consent to it. This was established by the recorded
911 call, defendant‟s flight from the scene, defendant‟s admissions to the police, and his
testimony during the first trial. The only factual issue during the second trial was
whether defendant had reason to believe Jane Doe consented to oral copulation. The lack
of consent was established by the initial 911 recording, during which Jane Doe repeatedly
told defendant to get off of her, and the 911 recording after the charged crime, in which
Jane Doe said defendant “forced his self on me and had oral sex with me.” In addition,
defendant testified during the first trial that Jane Doe did not consent.
While Jane Doe‟s credibility as a victim was relevant, the child custody evidence
was not relevant to any issues raised in the instant case or to anything Jane Doe stated
during the trial. Furthermore, such evidence could have evoked emotional bias against
defendant without regard to material issues, and defendant benefited from exclusion of
the evidence because it resulted in the prosecution not introducing into evidence the
restraining order evidence. Under such circumstances, the trial court did not abuse its
discretion in excluding the child custody evidence under Evidence Code section 352, and
its exclusion did not deprive defendant of his right to present a defense.
IV
ADMISSIBILITY OF DEFENDANT‟S TESTIMONY ADMITTING GUILT
Defendant contends the trial court abused its discretion when, during the second
trial, the court permitted the prosecution to read into evidence defendant‟s testimony
provided during the first trial, in which he admitted he committed a crime. Defendant
11
challenges the following excerpt read from cross-examination of defendant during the
first trial:
“Q. So what you are saying is you committed the crime? You are guilty?
“A. I already told you that what I did to her was wrong like I feel bad. I really do
feel bad for the situation that take hand, yes. You asked me did I commit a crime.
That‟s a hard question, but I‟m going to have to say, yes, because a crime was
committed.”
After the prosecutor in the second trial finished reading to the jury various
additional excerpts from defendant‟s testimony during the first trial, defendant objected
outside the presence of the jury to the court allowing the above quoted evidence. Defense
counsel explained that she did not object during the first trial because defendant was on
the stand, testifying, and she knew she would have an immediate opportunity during
redirect examination to clarify that defendant was “not a lawyer, had absolutely no legal
knowledge whatsoever and that that answer was not based on any knowledge. I did not
object at that time with that knowledge in mind. I am objecting now to the form of that
question as it calls for a legal conclusion.” (Italics added.) The trial court overruled the
objection under Evidence Code section 1291, subdivision (b)(1), on the grounds
defendant did not object in the previous trial to the former testimony and the form of the
question.
Evidence Code section 1291, subdivision (b)(1), provides: “(b) The admissibility
of former testimony under this section is subject to the same limitations and objections as
though the declarant were testifying at the hearing, except that former testimony offered
12
under this section is not subject to: [¶] (1) Objections to the form of the question which
were not made at the time the former testimony was given.”
Defendant argues Evidence Code section 1291, subdivision (b)(1), provides that
only objections to the form of a question are waived. All other objections are preserved.
Defendant asserts that his objection to being asked if he committed a crime was not to the
form of a question but to the subject matter or substance and, therefore, the objection was
not waived. But defendant‟s trial attorney acknowledged, when she raised the objection
during the second trial, that she was “objecting now to the form of that question as it calls
for a legal conclusion.” Therefore, under Evidence Code section 1291, subdivision
(b)(1), the objection was forfeited.
Even assuming defendant did not forfeit the objection, the evidence of guilt was
admissible under Evidence Code section 1291, subdivision (a), which states: “Evidence
of former testimony is not made inadmissible by the hearsay rule if the declarant is
unavailable as a witness and: [¶] (1) The former testimony is offered against a person
who offered it in evidence in his own behalf on the former occasion . . . ; or [¶] (2) The
party against whom the former testimony is offered was a party to the action or
proceeding in which the testimony was given and had the right and opportunity to cross-
examine the declarant with an interest and motive similar to that which he has at the
hearing.”
Here, defendant was unavailable as a witness because he chose not to testify
during the second trial. His prior testimony, admitting he committed a crime and was
guilty, was offered against defendant. Furthermore, during his testimony in the first trial,
13
his attorney had the opportunity to rehabilitate and clarify defendant‟s testimony. During
redirect examination, defendant testified he was not a lawyer; he did not know the
intricacies of the law; he did not know the elements of the charged crime; he did not act
maliciously or viciously; he did not use force; he did not penetrate Jane Doe‟s vagina;
and he did not intend to sexually assault her when he entered her home.
The testimony was also admissible under Evidence Code section 1220, which
allows a party admission: “Evidence of a statement is not made inadmissible by the
hearsay rule when offered against the declarant in an action to which he is a party in
either his individual or representative capacity, regardless of whether the statement was
made in his individual or representative capacity.”
Citing People v. Torres (1995) 33 Cal.App.4th 37 (Torres), defendant argues that
the prosecutor‟s question in the first trial, asking defendant whether he committed a crime
and was guilty, called for inadmissible evidence. In Torres, at pages 46-47, the court
stated:
“A Witness May Not Express an Opinion as to the Guilt or Innocence of the
Defendant. [¶] A consistent line of authority in California as well as other
jurisdictions holds a witness cannot express an opinion concerning the guilt or
innocence of the defendant. [Citations.] [T]he reason for employing this rule is
not because guilt is the „ultimate issue of fact‟ to be decided by the jury. Opinion
testimony often goes to the ultimate issue in the case. [Citation.] Rather, opinions
on guilt or innocence are inadmissible because they are of no assistance to the trier
14
of fact. To put it another way, the trier of fact is as competent as the witness to
weigh the evidence and draw a conclusion on the issue of guilt.”
The court in Torres further stated with regard to opinion testimony on whether a
crime has been committed:
“A Witness May Not Express an Opinion as to Whether a Crime Has Been
Committed. [¶] Although we have found no California case directly on point, we
believe the same rationale which prohibits the witness from expressing an opinion
on the meaning of statutory terms or the guilt of the defendant also prohibits the
witness from expressing an opinion as to whether a crime has been committed.”
(Torres, supra, 33 Cal.App.4th at p. 47.)
Torres is distinguishable from the instant case in that Torres concerns testimony
by an expert witness, not testimony by a defendant regarding whether he believes he has
committed a crime and is guilty. (Torres, supra, 33 Cal.App.4th at p. 47.) While expert
opinion on guilt or innocence is inadmissible because it is of no assistance to the trier of
fact (People v. Vang (2011) 52 Cal.4th 1038, 1048), a defendant‟s opinion and belief as
to whether he or she is guilty of committing a crime is relevant, probative evidence,
which is of assistance to the trier of fact. Here, defendant‟s testimony that he believed he
had committed a crime and was guilty, was admissible under Evidence Code sections
1220 and 1291, as relevant, probative evidence and as an admission of wrongdoing.
15
V
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends that his trial attorney committed ineffective assistance of
counsel by failing to object during the first trial to the prosecutor‟s question asking
defendant if he committed a crime. Defendant has not established ineffective assistance
of counsel.
“To demonstrate ineffective assistance of counsel, a defendant must show that
counsel‟s action was, objectively considered, both deficient under prevailing professional
norms and prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687.) To
establish prejudice, a defendant must show a reasonable probability that, but for counsel‟s
failings, the result of the proceeding would have been more favorable to the defendant.
(Id. at p. 694.)” (People v. Hinton (2006) 37 Cal.4th 839, 876 (Hinton).) We “„“. . .
defer to counsel‟s reasonable tactical decisions in examining a claim of ineffective
assistance of counsel [citation], and there is a „strong presumption that counsel‟s conduct
falls within the wide range of reasonable professional assistance.‟” [Citation.] “[W]e
accord great deference to counsel‟s tactical decisions” [citation].‟” (Ibid.) “„“[C]ourts
should not second-guess reasonable, if difficult, tactical decisions in the harsh light of
hindsight” [citation]. “Tactical errors are generally not deemed reversible, and counsel‟s
decisionmaking must be evaluated in the context of the available facts.” [Citation.]‟
[Citation.]” (Ibid.)
Here, defendant has not established ineffective assistance since defense counsel
may have chosen not to object for reasonable tactical reasons. As defense counsel
16
explained to the trial court during the second trial, she did not object to the question
during the first trial because she believed that during redirect, she could clarify and
rehabilitate defendant‟s statement that he committed a crime. Defense counsel may have
believed it would be more advantageous to rehabilitate defendant through redirect
examination than to object to the question and move to strike defendant‟s response. In
addition, defendant‟s response provided an opportunity to explain to the jury why it
should find defendant had not committed a crime, through testimony that defendant did
not use force, did not penetrate Jane Doe‟s vagina, and did not act maliciously or
viciously intend to hurt Jane Doe. Defendant claimed he acted with the intent to revive
his relationship with Jane Doe. Defendant was given the opportunity to explain his
conduct in a conciliatory, apologetic manner.
Because there was a reasonable strategic reason for defense counsel not objecting
to the prosecutor asking defendant if he committed a crime, defendant has not established
ineffective representation. Furthermore, even if defense counsel was deficient in failing
to object to the inquiry, defendant failed to demonstrate there was a reasonable
probability that, but for the question and defendant‟s response, the trial outcome would
have been different. (Torres, supra, 33 Cal.App.4th at p. 49; People v. Ledesma (1987)
43 Cal.3d 171, 217-218.) There was overwhelming evidence defendant committed the
crime of forcible oral copulation. Such evidence included defendant‟s statements to the
police, trial testimony, and the recorded 911 calls.
17
VI
DISPOSITION
The judgment is affirmed
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
KING
J.
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