People v. Perona CA2/8 ( 2023 )

Filed 5/22/23 P. v. Perona CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B317277
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. SA102130
v.
KASHUS PERONA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Lauren Weis Birnstein, Judge. Affirmed.
Brad Kaiserman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, David E. Madeo, Acting Supervisor
Deputy Attorney General, and Marc A. Kohm, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
A jury found Kashus Perona victimized two women: one
conviction was for rape by impersonation and the other was for
rape by force. Perona challenges the sufficiency of the evidence of
rape by impersonation and the court’s joinder of the two cases, as
well as other rulings. Substantial evidence supports the rape by
impersonation conviction. The court acted within its discretion
by deciding to hold one trial instead of two. The other rulings
were proper. We affirm. Undesignated statutory citations are to
the Evidence Code.
I
After a 10-day trial and about three days of deliberation, a
jury found Perona guilty of rape by impersonation of Serina L.
(Pen. Code, § 261, subd. (a)(5)) and rape by force of Ava M. (Id.,
subd. (a)(2)).
The jury deadlocked on a third count, rape by use of an
intoxicating substance, an alternative theory of the rape of Ava.
The court declared a mistrial as to that count.
The court sentenced Perona to eight years in prison.
At trial, three women—Serina, Ava, and Linda N.—
testified about sexual encounters with Perona. The conduct was
from 2015, 2018, and 2020, respectively. The charges and
convictions were for Perona’s conduct with Serina and Ava, only.
We recount the facts of the three encounters.
Serina was a close friend of Stacey, Perona’s girlfriend and
the mother of his children. Serina lived with her boyfriend, who
was the same height and build as Perona. On April 19, 2015,
Perona, Stacey, Serina, Serina’s boyfriend, and three other
friends came to Serina’s home at about 2:45 a.m. after a night of
socializing and drinking. Perona was 37 years old.
2
Serina was too intoxicated to walk. She slid to the floor
when her boyfriend tried to help her to bed. Her boyfriend and
Perona carried her to her bedroom. There were video cameras in
the home but not in the bedroom. The jury saw video of the men
carrying Serina to the bedroom.
Serina fell asleep alone, lying on her side. The bedroom
had “blackout blinds” and was dark.
Around 3:30 a.m., Serina’s boyfriend fell asleep on a couch.
Stacey and one friend were sleeping on different couches and
another friend was sleeping in a guest room.
The jury saw video from about 5:30 a.m. of Perona stopping
at Serina’s bedroom door, walking around the house for about
three minutes, entering Serina’s bedroom, and coming out 10
minutes later.
Serina testified she woke when someone laid down behind
her. It was dark and she believed the person was her boyfriend.
The person was silent, rubbed her breasts, and put his finger in
her vagina. The person put his penis in her vagina and she made
a noise. He told her not to be loud. She realized it was not her
boyfriend, turned to see Perona, and pushed him away. Perona
apologized and left the room.
Serina was scared about immediately reporting what
happened. She worried it might destroy her relationship with
her boyfriend and with Stacey. She thought her boyfriend might
attack Perona.
That night, Serina messaged Perona. She told him she had
thought he was her boyfriend and she felt violated. She asked
why he was in her bed. Perona responded he “was messed up
and that’s no excuse” and said he would call her the next day to
“clarify and formally apologize.”
3
Serina told her boyfriend about the rape that night.
The next day, April 20, Serina told Stacey, who begged her
not to report it. Perona called Serina, apologized, and said it was
a “misunderstanding.” He also messaged her and said he was “no
criminal” and it was a “big misunderstanding.”
Serina had a sexual assault examination at a hospital on
April 20. She initially was hesitant to talk to police, though,
because she did not want people to know what happened. She
worried it would bring shame on her family and her children.
She ultimately reported the rape to police within one month.
On April 21, Perona messaged Serina and said, for the first
time, she initiated the sexual contact and he tried to stop it:
“[Y]ou’re one of my favorite people and I love you like a sister. I
came back to give you a big hug, but I didn’t touch you until [you]
looked at me and then grabbed me. I thought you knew it was
me, and I didn’t stop you right away, but I did say we’ve got to
stop twice. I apologized and walked out. I allowed things to go
too far, but I never wanted that from you and that’s why I
stopped.”
Serina could not think of anything she had done to make
Perona think she would consent to sex with him and she
reviewed old messages to confirm this belief.
We turn to the second encounter. Ava met Perona at a
nightclub in July 2018. They met a second time on August 13,
2018. They had dinner, drank alcohol, and went to a hotel. Ava
was considering having sex with Perona. She felt very
intoxicated from drinking. Perona offered her half a pill and she
swallowed it. Perona either told her or she assumed it was
ecstasy. Perona offered more, but she declined.
4
Then Perona changed the situation. He forced a pill in
Ava’s mouth and shoved it down her throat. Ava believed Perona
was going to force her to have sex. She tried to leave, but he
threw her on the bed. She said, “Please don’t do this. But if
you’re going to do this, please use a condom.” She told him she
had a condom in her purse. When Perona got the condom, she
texted her roommate the word “help” at 1:22 a.m. on August 14.
Ava’s memories were hazy, but she believed she tried to run to
the door again and Perona pushed her face down on the bed. She
screamed and tried to get away. He is about six feet tall and 180
pounds and Ava weighed about 100 pounds. Perona held her
down and put his penis in her vagina. She begged him to stop
and called him names. Ava lost consciousness. Perona woke her
up at about 6:00 a.m. and they left the hotel.
Later that day, Ava told two friends what had happened.
Ava went to a hospital, spoke to police, and had a sexual assault
examination.
On August 14 or 15, Perona messaged Ava to “apologize for
that evening.” He said he enjoyed getting to know her and “fe[lt]
like that was too much too soon.”
We turn to the third encounter. Linda lived in California
and was best friends with Stacey’s sister, who lived in Arizona.
(Recall Stacey is Perona’s girlfriend and the mother of his
children.) In May 2020, Linda and a large group were visiting
Arizona and staying at an Airbnb. The group included Stacey,
Perona, their three children, another couple and four children,
two other adults, and two other children. Linda had known
Perona for more than 10 years. He had never been flirtatious
towards her.
5
On May 23, 2020, the adults drank alcohol throughout the
day. Linda became intoxicated and fell asleep on an L-shaped
couch that evening.
Early the next morning, on May 24, Linda partially awoke
when she heard someone moving a couch cushion. She was very
tired. Someone moved her on her side and she felt the person lay
down behind her, touch her breasts, and insert a finger into her
vagina. She woke fully and told the person to stop. She turned
and saw Perona. He apologized and left the room. Linda later
realized Perona’s five- or six-year-old daughter was sleeping on
another part of the couch and the moved cushion blocked the
daughter’s view.
Linda thought she could not tell the group what happened
because everyone in the house was related, they felt like family to
her, and she did not want the family to see Perona arrested.
She messaged a friend in Los Angeles and said Perona
sexually assaulted her when she was sleeping. Linda did not
have a car in Arizona. The friend drove to Arizona and arrived at
about 1:30 a.m. on May 25. Linda went to a local police station
and told an officer what happened. She tried unsuccessfully to
get a sexual assault examination. She returned to California
without getting an exam.
About a dozen other witnesses testified for the prosecution,
including Serina’s boyfriend, a forensic nurse, a nurse
practitioner, a detective, a police officer, several criminalists,
Ava’s roommate, one of Ava’s friends, and one of Linda’s friends.
Perona testified about the encounters with Serina and Ava.
According to Perona, the sex with Serina was “ill-advised,”
but he did not pretend to be anyone else and Serina knew it was
6
him. He was not intoxicated. He “had no reason to believe that
[Serina] was drunk.” He thought of her “like a sister.”
Before the encounter, he opened the door to Serina’s room
and saw her in bed, walked around the house, saw everyone
sleeping, and then entered the bedroom. Serina was asleep. He
lept on her bed and grasped her from behind. She looked up at
him and seemed annoyed. He smiled, “then she was fine,” and
she laid her head back down. Perona did not speak.
Serina reached around and started touching his penis and
she eventually “directed it to her vagina.” They started to have
intercourse. Then it “hit him” that this was “reckless” and he
said, “I’m sorry. We have to stop.” He thought she looked
perplexed. He left the room.
Perona was caught off guard when Serina messaged him
that evening and said she had thought he was her boyfriend.
When he responded and said he “was messed up,” he was
referring to their infidelity. He apologized because he “shouldn’t
have let her pull my penis out. . . . I shouldn’t have allowed us to
have sex.” If he had not become “infatuated with . . . the arousal
that [Serina] caused, it wouldn’t be a legal matter.”
Turning to the encounter with Ava, Perona said the sex
was consensual and he denied giving her drugs. They were
kissing in the hotel room and Ava told him she had a condom in
her purse, which was in Perona’s car. Perona left to get the
purse. This took about 10 to 15 minutes. When he returned, Ava
took the condom out and they had consensual sex. Ava did not
seem drunk.
The jury saw video from the hotel lobby. The video did not
show Ava’s purse when they were checking in. Video from the
next morning showed Perona holding the purse when they left.
7
Perona explained he apologized to Ava because she “maybe
expressed . . . sadness or regret” about having sex.
The court instructed the jury on CALCRIM No. 1191B. If
the jury concluded beyond a reasonable doubt that Perona
committed one or more of the charged sex offenses, the
instruction allowed the jury to use that as evidence of his
propensity to commit the other charged sex offenses.
II
We affirm the convictions.
A
Substantial evidence supports Perona’s conviction for rape
by impersonation.
Rape by impersonation under section 261, subdivision (a)(5)
is when the accused, “by artifice, pretense, or concealment,”
induces another person to submit to sex “under the belief that the
person committing the act is someone known to the victim other
than the accused,” and the accused intends to induce this belief.
(An earlier version of this law applied to impersonating the
“victim’s spouse.” In 2013, the Legislature expanded the crime by
replacing that language with “someone known to the victim.”
(Pen. Code, § 261, as amended by Assem. Bill No. 65, Stats. 2013,
ch. 259, § 1.))
We review for substantial evidence. (People v. Fleming
(2018) 25 Cal.App.5th 783, 788 (Fleming).) Testimony of one
witness can be sufficient. (Ibid.) We must accept logical
inferences the jury might have drawn from circumstantial
evidence. (Id. at p. 789.)
Perona says he lacked intent. Two relevant opinions have
addressed intent under the law and its predecessor. We
summarize this pair of cases.
8
In People v. Leal (2009) 180 Cal.App.4th 782, 789 (Leal),
the court held a victim’s testimony was sufficient to sustain a
defendant’s conviction for rape by impersonation. The victim was
asleep in bed next to her husband. She woke up to someone
putting his finger and then his penis in her vagina. She believed
it was her husband, but it was Leal, a stranger who had entered
the home through a window. (Id. at pp. 785–786.)
The jury could infer Leal had the required intent. He
quietly entered, the bedroom was dark, it was the middle of the
night, and the victim was sleeping next to her husband. (Leal,
supra, 180 Cal.App.4th at p. 789.) The jury could infer Leal
intended the victim to believe Leal was the husband. (Id. at pp.
789–790.) Leal’s silence “spoke volumes” and tended to prove he
was trying to conceal his identity. (Id. at p. 790.)
The court applied Leal and came to a similar conclusion in
Fleming, supra, 25 Cal.App.5th at pages 791–793. A group of
friends including Fleming came to the victim and her husband’s
home after a night out. (Id. at pp. 785–786.) No one was sober
enough to drive and the victim was intoxicated. (Ibid.)
The next morning, the victim was asleep in her bedroom.
(Fleming, supra, 25 Cal.App.5th at p. 786.) Fleming observed the
husband soundly sleeping in another room and saw everyone else
was asleep. (Id. at p. 792.) He quietly entered the victim’s
bedroom, saw she was asleep facing a wall, approached her from
behind without speaking, and put his fingers inside her vagina.
(Id. at pp. 791–792, 786.) The victim thought he was her
husband until her phone rang, she turned to get it, and Fleming
pulled the covers over his head. (Id. at p. 786.)
The statute requires artifice, pretense, or concealment, and
the Fleming court found evidence of all three. (Fleming, supra,
9
25 Cal.App.5th at p. 793.) There was artifice because Fleming
was alert, he knew the unconscious husband was separated from
his unconscious wife, he observed everyone else sleeping, and he
entered the bedroom stealthily. (Id. at p. 792.) There was
pretense because Fleming entered the room while the victim was
asleep with her back turned. (Ibid.) There was concealment
based on multiple actions, including Fleming’s act of covering
himself when the victim turned to get her phone. (Id. at pp. 792–
793.)
Applying Leal and Fleming, and viewing the facts in the
light favorable to the judgment, there was sufficient evidence of
intent. Perona knew many things: Serina shared a bedroom
with her boyfriend, the boyfriend was home, Serina knew he was
home, the boyfriend was similar in size to Perona, and Serina
was so intoxicated she needed to be carried to bed three hours
earlier. By walking around the home, Perona knew everyone was
asleep. With this knowledge, he quietly entered Serina’s dark
bedroom. Serina initially was asleep. Perona approached her
from behind, touched her, and did not speak until after they
began to have sexual intercourse.
Given this context, a jury could find Perona had reason to
believe Serina would think Perona was her boyfriend, and that
Perona intended this.
There was artifice. Perona scouted the home and knew the
boyfriend was apart from Serina and was asleep. This made it
less likely the boyfriend would intervene and more likely Serina
would think Perona was the boyfriend. Perona also knew Serina
was asleep and intoxicated, which made it less likely she would
discover his ruse.
10
There was pretense. Perona pretended to be the boyfriend,
who was similar in size to Perona, by entering the dark room
Serina shared with him, by approaching her from behind, and
initially by remaining silent.
For similar reasons, there was concealment. Perona’s
approach from behind and initial silence in the dark room
concealed his identity.
Perona’s communications after the rape were also probative
of intent. The jury could reasonably interpret the apology
messages to be about his remorse for deceiving Serina. The jury
could also reasonably discredit Perona’s belated explanation that
Serina knowingly and aggressively pursued him.
Perona asks us to make different inferences, but that would
violate the substantial evidence standard of review.
Perona’s choice ultimately to speak to Serina in the
bedroom does not negate intent. The reasonable inference is
that, when Serina made noise, Perona feared others would hear
and would discover the situation. When Perona told Serina to be
quiet, the jury could conclude this was evidence of a guilty mind
seeking concealment, not proof of a consciousness free of
culpability.
B
The court acted within its discretion by denying Perona’s
motion to sever the trial.
Perona moved to sever the trial on the two rapes because,
he argued, the separate cases were weak on their own, but strong
together. The court denied the motion.
Penal Code section 954 permits joinder of offenses of the
same “class of crimes” and gives courts discretion to sever
offenses. The law prefers consolidation because it usually
11
promotes efficiency. (People v. Simon (2016) 1 Cal.5th 98, 122
(Simon).)
Our review has two phases. First, we consider the trial
court’s decision at the time it denied the severance motion. If the
case meets the requirements for joinder, the defendant must
make a clear showing of prejudice to establish the trial court
abused its discretion. (Simon, supra, 1 Cal.5th at pp. 122–123.)
In the second phase, we consider whether joinder resulted in
gross unfairness that denied due process. (Id. at p. 123.)
Beginning with the first phase, this case met the
requirements for joinder under Penal Code section 954 because
the rapes were in the same class of crimes. We therefore apply
the abuse of discretion standard and consider the following
factors: (1) whether evidence of the charges would be cross
admissible in separate trials, (2) whether a charge was
“unusually likely” to inflame the jury against the defendant, (3)
whether one or more charges were weak, and (4) whether a
charge was a capital offense or joinder converted the matter into
a capital case. (Simon, supra, 1 Cal.5th at p. 123.)
Evidence of the two rapes was cross admissible under
section 1108. Generally, character evidence is inadmissible to
prove a person’s conduct on a certain occasion. (§ 1101, subd.
(a).) Evidence a defendant committed a crime is admissible,
however, to prove certain facts such as absence of mistake or
intent. (§ 1101, subd. (b).) Section 1108 modifies section 1101 in
criminal cases involving a sexual offense. In such cases, section
1101 does not prevent the admission of evidence of the
defendant’s commission of other sexual offenses.
The Legislature enacted section 1108 to “relax” the
constraints of section 1101 and to ensure factfinders know about
12
defendants’ other sex offenses when evaluating victims’ and
defendants’ credibility. (People v. Falsetta (1999) 21 Cal.4th 903,
911 (Falsetta).) Section 1108 evidence can be used to prove
defendants’ propensity to commit sexual offenses. (People v.
Villatoro (2012) 54 Cal.4th 1152, 1164 (Villatoro).)
Section 1108 is subject to the constraints of section 352,
which gives courts discretion to exclude evidence if the probative
value is substantially outweighed by the probability that
admission will require undue consumption of time or will create a
substantial danger of undue prejudice or of misleading the jury.
When determining whether to exclude section 1108
evidence under section 352, courts consider several factors,
including: whether it is probative; whether it is stronger and
more inflammatory than evidence of the charged acts; whether it
is remote or stale; whether it is likely to confuse or distract the
jurors; and whether it will require an undue consumption of time.
(People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117.)
For the first joinder factor, the evidence of the two rapes
was cross admissible under section 1108 as propensity evidence.
Section 352 did not bar admission of this evidence. The
evidence was probative due to the similarities between the
conduct: vaginal penetration of intoxicated women who did not
consent to sex with him. As we explain below when we discuss
the second and third joinder factors, both cases were strong and
neither was more inflammatory. The 2015 conduct was not
remote in time from the 2018 conduct. There is no reason to
think cross admission would confuse or distract the jurors or
unduly consume time. The evidence was cross admissible.
For the second and third joinder factors, neither case was
particularly inflammatory in relation to the other and both were
13
strong. The animating concern is not whether one offense is
repulsive, but whether strong evidence of a lesser but
inflammatory charge may bolster a weak charge. (Simon, supra,
1 Cal.5th at p. 124.) Perona contends the charges were
inflammatory in different ways, but he does not demonstrate a
clear showing of prejudice. He cites People v. Earle (2009)
172 Cal.App.4th 372, 378 and 384, which involved joinder of a
misdemeanor indecent exposure charge with an assault with
intent to commit rape charge. This was improper because the
assault evidence was “considerably weaker,” the crimes had “no
distinguishing characteristics in common,” and indecent exposure
did not rationally support an inference the defendant had a
propensity to commit rape. (Id. at pp. 378, 395–396.)
Here, each case was relatively strong. The women quickly
reported the rapes and got sexual assault exams. They did not
know one another, and had personal reasons not to report the
rapes. The video in Serina’s case showed Perona checking
everyone was asleep to help him accomplish the impersonation.
The “help” text in Ava’s case was evidence Perona used force.
Perona’s messages to the victims after the encounters
strengthened the cases. His apologies tended to show his guilt.
His delay in telling Serina he thought she knowingly and
aggressively pursued him tended to show that was untrue.
Here, neither case was weak, they had commonalities, and
rape by one method can rationally support an inference of
propensity to commit rape by another method. (See Villatoro,
supra, 54 Cal.4th at p. 1164 [quoting legislative history that said,
“The propensity to commit sexual offenses is not a common
attribute among the general public,” so propensity evidence is
“especially probative”].) Perona has not shown prejudice.
14
The fourth joinder factor does not apply because there was
no capital offense.
The court did not abuse its discretion by denying Perona’s
joinder motion.
Turning to the second phase, joinder did not deny Perona a
fair trial or due process. Courts affirm unless it is reasonably
probable joinder influenced the jury in its guilty verdict. (Simon,
supra, 1 Cal.5th at pp. 129–130.) The court instructed the jurors
that the prosecution needed to prove each charge beyond a
reasonable doubt. The jurors therefore needed to consider each
count separately. We presume the jury follows instructions, and
Perona has not made a contrary showing. (See id. at p. 130.) The
fact the jury deadlocked on one charge strongly suggests it
weighed the evidence and differentiated among the charges. (See
ibid.) Joinder did not make the trial grossly unfair.
C
The court properly instructed the jury using CALCRIM No.
1191B. If the jury concluded beyond a reasonable doubt Perona
committed one or more of the charged sex offenses, this
instruction allowed but did not require the jury to use that guilty
finding as evidence of his propensity to commit the other charged
sex offenses. The Supreme Court has approved the language of
this instruction. (Villatoro, supra, 54 Cal.4th at pp. 1167–1168.)
Perona contends the court erred because it needed to but
did not conduct a section 352 analysis before giving the
instruction, but we infer the court indeed applied this analysis.
We may make this inference “ ‘on the basis of record indications
well short of an express statement.’ ” (Villatoro, supra, 54
Cal.4th at p. 1168.) CALCRIM No. 1191B is based on section
1108, which expressly refers to section 352. Furthermore, the
15
parties and the court extensively discussed section 352 for the
issues of joinder and admission of Linda’s testimony, both of
which involved section 1108. The court discussed the “balancing
test” and the “weighing process,” and pressed the prosecution to
explain the probative value of the section 1108 evidence. The
court conducted the proper section 352 balancing when it gave
CALCRIM No. 1191B.
D
The court’s evidentiary rulings were proper.
We review evidentiary rulings for an abuse of discretion
and we reverse only if Perona shows the trial court acted
arbitrarily or absurdly. (See People v. Powell (2018) 5 Cal.5th
921, 951.)
The court properly admitted evidence about Linda under
section 1108. This evidence had substantial probative value that
was not substantially outweighed by risk of prejudice, and the
admission did not make the trial fundamentally unfair.
Evidence Perona assaulted Linda was probative of Perona’s
propensity to engage in sexual conduct without consent and
tended to prove he was not mistaken about consent. The three
encounters were also proximate in time.
There were similarities between Perona’s conduct with
Serina and Linda. Each woman had known Perona for years and
the conduct took place in group settings involving alcohol. There
was a degree of safety and trust in these environments that
Perona exploited. He approached the women from behind and
touched them in similar ways. Like Serina, Linda did not know
who was behind her. This corroborated Serina’s claim that
Perona could begin sexual contact with her without her realizing
16
it was him. The jury properly could infer Perona repeated an
approach he believed would gain his objective.
The court’s rulings and the conduct Linda alleged limited
potential prejudice. Perona contends it was unfair to admit the
evidence because prosecutors in Arizona might bring charges
against him, so his incentive was to avoid testifying about it. The
court limited prejudice by forbidding the prosecution from cross-
examining Perona about the encounter unless he testified about
it. Hard choices about whether to testify are not
unconstitutional. (People v. Frye (1998) 18 Cal.4th 894, 940,
overruled on other grounds by People v. Doolin (2009) 45 Cal.4th
390.) The court also instructed the jury not to consider whether
Perona had been punished for his conduct with Linda. Lastly,
prejudice was limited because the evidence was less
inflammatory than the charged conduct, which involved sexual
intercourse rather than just digital penetration. The court did
not abuse its discretion by admitting this probative evidence.
Perona raises federal and state due process challenges to
section 1108. He concedes, and we agree, we are bound by the
California Supreme Court’s rejection of this same challenge in
Falsetta, supra, 21 Cal.4th at pages 910–922. (See Auto Equity
Sales v. Superior Court (1962) 57 Cal.2d 450, 455.)
Perona incorrectly challenges three more evidentiary
rulings. These are about the admission of: Serina’s boyfriend’s
testimony about what Serina told him after the rape, Ava’s
statements to a nurse, and Linda’s text to a friend. Perona raised
but withdrew a fourth challenge.
Admission of the testimony from the boyfriend was
harmless under any standard. This testimony largely mirrored
Serina’s testimony. He said Serina told him Perona entered the
17
bedroom, approached her from behind, and she thought he was
the boyfriend. Perona’s argument at trial was that Serina had
consensual sex with Perona and she made up the rape story to
hide infidelity from her boyfriend. On this theory, Serina made
up the story that Perona impersonated her boyfriend for the
purpose of lying to her boyfriend. The boyfriend encouraged her
to report the rape, and Serina had to keep repeating the same
false story to maintain the lie to him. The fact the boyfriend
heard and testified to a similar account to the account Serina
gave at trial is consistent with the defense theory and therefore
proved little.
The court did not abuse its discretion by admitting Ava’s
statements to the nurse. On August 14, 2018, Ava told the nurse
the following about her encounter with Perona that same day: he
forced a pill down her throat and made her swallow it with
vodka, he held her down, she hit his face, he wore a condom and
at some point removed it, and the drugs and alcohol made her
lose awareness. The court admitted these statements for two
purposes: the effect on the listener, and as prior consistent
statements. Perona concedes these statements were admissible
for the first purpose, but challenges the second purpose.
These were prior consistent statements. Evidence of a
prior consistent statement is admissible to support a witness’s
credibility if: (1) the court admits evidence of the witness’s
inconsistent statement to attack the witness’s credibility (§ 791,
subd. (a)) or (2) someone alleges an improper motive influenced
the witness’s testimony. (Id., subd. (b).) There is a temporal
requirement: the witness must have made the consistent
statement before the alleged inconsistent statement or before the
witness had the alleged improper motive. (Id., subd. (a) & (b).)
18
Perona made broad as well as specific attacks on Ava’s
credibility. During opening argument, defense counsel said Ava’s
statements over time were “so inconsistent, contradictory, and
unreliable” that she must be lying. In closing, defense counsel
noted Ava grew up in Texas and she might have been saying
“ ‘Black Man raped me’ and, therefore, every one of you should
believe it.” “[I]t could just be that this is no different than
Emmett Till or Tom Robinson.” Defense counsel cross-examined
and tried to impeach Ava with evidence from her interview with a
detective on September 12, 2018. This included statements in
which she expressed uncertainty about whether she actually ran
for the door and hit Perona or whether she was just dreaming.
Ava testified she was not dreaming. She did try to punch Perona
and she did run for the door.
Perona attacked Ava’s credibility by suggesting her
statements were inconsistent. Section 791 therefore entitled the
prosecution to admit evidence of consistent statements Ava made
before the alleged inconsistent statements to the detective to
bolster her credibility. Ava’s statements to the nurse met this
temporal requirement. The court acted within its discretion by
admitting this evidence as prior consistent statements. This
adherence to the Evidence Code did not make the trial
fundamentally unfair.
Perona has forfeited a challenge to the court’s admission of
a text message Linda sent to her friend. (See People v. Sanghera
(2006) 139 Cal.App.4th 1567, 1573 [appellant has burden
affirmatively to demonstrate error].) The court admitted the
message under the fresh complaint doctrine and to show Linda’s
state of mind. Perona’s opening brief quoted the court’s “fresh
complaint” ground, but it cited no law about that ground and
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made no argument about why it did not apply. He has not
demonstrated error.
In sum, Perona has not proven evidentiary error.
E
The trial court properly denied Perona’s motion to dismiss
based on alleged failure to collect evidence. Substantial evidence
supports the court’s finding that law enforcement did not act in
bad faith.
This issue is about Ava’s purse and surveillance video from
the hotel lobby. There was video of Ava and Perona entering
after midnight and video of them departing after 6:00 a.m.
Perona alleged law enforcement lost or destroyed video between
those times.
According to Perona, the video mattered because the entry
video did not show Ava’s purse, but the departure video did. He
says the missing video would have shown him leaving to get
Ava’s purse. This would have undermined Ava’s testimony, he
says, because she did not escape or call for help when he left.
Perona says the footage would have been critical to his defense
and law enforcement’s failure to collect or preserve it was in bad
faith. Perona moved to dismiss the case on this basis a month
before trial.
Perona redacted some of his motion to dismiss and had two
ex parte hearings about the issue. This was a strategic choice
based on defense counsel’s belief the prosecution and detective
did not know Perona may have left the room to get the purse.
In a hearing with the prosecution and defense, a detective
testified about the video. The detective originally knew the
general area of the hotel, but not the name of the hotel. He made
a list of hotels in that area and visited two or three hotels on
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August 29, 2018. An employee at one hotel confirmed Perona had
stayed there. The detective did not recall the specific
conversation, but his practice when seeking video footage was to
give a timeline of the information he knew. In this case, he knew
an approximate check-in and check-out time, and his common
practice would have been to ask for video from those times.
The detective returned to the hotel about a week later and
the employee showed him video of Perona and Ava arriving and
video of them leaving six hours later. Based on Ava’s statement
to the responding officer, the detective had no reason to think she
had been in the lobby other than when she entered and departed.
The detective saved the arrival and departure video clips. The
manager of the hotel said the surveillance video was deleted after
three months.
The court denied Perona’s motion to dismiss. It found the
detective “very credible” and found he had seen only the arrival
and departure videos. The court found law enforcement had no
duty to collect more video, it did not know anyone may have left
the room, and the defense had other ways to present evidence on
this topic.
Due process requires law enforcement to preserve evidence
that has “an exculpatory value that was apparent before the
evidence was destroyed,” and is of such a nature the defendant
could not get comparable evidence by other reasonably available
means. (California v. Trombetta (1984) 467 U.S. 479, 489.) For
the government’s failure to preserve potentially useful evidence
to rise to a due process violation, the defendant must show bad
faith. (Arizona v. Youngblood (1988) 488 U.S. 51, 58.) Bad faith
turns on law enforcement’s knowledge of the exculpatory value of
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the evidence at the time it was lost or destroyed. (Id. at p. 56,
fn. *.)
We uphold a ruling on this type of motion if substantial
evidence supports it. (People v. Montes (2014) 58 Cal.4th 809,
837.)
Substantial evidence does support the finding the evidence
lacked apparent exculpatory value before it was destroyed. There
is no evidence that, within the three months before the video was
deleted, the video’s potential exculpatory value was apparent.
There is no evidence law enforcement knew or should have
known Perona or Ava left the room outside of their joint arrival
and departure. The court found the detective credible. The
detective never saw the full video and had no reason to think
Perona or Ava were in the lobby at other times.
Defense counsel’s treatment of this issue bolsters this
finding. Counsel redacted the motion and had ex parte hearings
because he believed the prosecution and detective did not know
Perona may have left the room. This means the video’s
exculpatory value was not apparent even on the eve of trial. The
issue is whether the exculpatory value was apparent, not
whether the investigation was perfect. As the trial court
correctly explained, the detective was not held to a standard of
“best investigator possible.” The evidence lacked apparent
exculpatory value before it was destroyed.
Substantial evidence also supports the court’s finding that
Perona could address this topic with other evidence. Through the
entry and departure videos, defense counsel could, and did, argue
Perona must have left to get the purse. In closing argument,
defense counsel repeatedly emphasized this issue. Counsel said,
“The whole purse thing disproves everything” and “it’s nuclear.”
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Counsel explained it was “clear” the purse was not in the hotel
room because “[t]he video showed that.”
In sum, the exculpatory value was not apparent before the
evidence was destroyed and the defendant had comparable
evidence. The court properly denied Perona’s motion to dismiss.
F
There was no cumulative prejudicial error.
DISPOSITION
The judgment is affirmed.
WILEY, J.
We concur:
STRATTON, P. J.
GRIMES, J.
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