People v. Brown
| Decision Date | 31 May 2019 |
| Docket Number | C081100 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. KEVIN ANDRE BROWN, Defendant and Appellant. |
The opinion filed May 31, 2019 in the above cause is modified as follows:
Replace part II B. with the following part II B.:
B.
To preserve an evidentiary issue for review, a defendant must make a timely objection on the same ground as to be raised on appeal. (In re S.C. (2006) 138 Cal.App.4th 396, 406.) A close reading of the record shows defendant's trial attorney did not object on the same grounds as he argues. On appeal, defendant argues that "the court abused its discretion when it admitted evidence of the passive inhalation studies and the expert's opinion derived therefrom." Although defense counsel made several objections at trial, none related to these two arguments on appeal.
The first four objections occurred during the hearing outside the presence of the jury during which the prosecutor sought to introduce the testimony of its expert witness, Sarah Porter. The first objection related to the lack of foundation that the prosecutor failed to lay regarding the meaning of the term "passive inhalation." The second objection on grounds of being nonresponsive occurred when Porter began to go astray by exploring "other ways that drugs may be ingested passively." The third objection based on leading and lack of foundation were to the question whether there were "other studies" other than the ones described by Porter and "that support the idea that passive inhalation does occur." (Italics added.) The objection was that the question was posed "without foundation as to what they were." The fourth objection again pointed out that the prosecutor asked about studies without identifying to which studies she was referring. In short, none of the objections during the hearing outside the presence of the jury were on the same grounds as argued on appeal.
So too, the objections by defendant's trial attorney when Porter was testifying in front of the jury also did not object to Porter describing the studies or relying on these studies in forming her opinion. Defense counsel raised two relevance objections to questions about ethics and practicality of studying the effects of illicit drugs. Defendant's trial counsel objected to Porter's tangent about legal consumption of alcohol. In response to a question about cocaine absorption in children, defense counsel objected: "There's no foundation that any child has ever been tested for passive cocaine smoke." (Italics added.) This case does not involve children.
None of these objections were to the description of the studies upon which the expert relied or that these studies did not adequately support the expert's conclusion. Because defendant's trial attorney did not object on the same grounds as he argues on appeal, the evidentiary issue has not been preserved for review.
This modification does not change the judgment.
The petition for rehearing is denied.
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NOT TO BE PUBLISHED
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.
A jury convicted defendant Kevin Andre Brown of committing the following offenses against the victim: three counts of forcible sodomy (Pen. Code, § 286, subd. (c)(2)),1 rape (§ 261, subd. (a)(2)), sexual assault (§ 243.4, subd. (a)), false imprisonment (§ 236), robbery (§ 211), and unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)). The jury also found true the allegations defendant bound the victim during the rape andsodomies. (§ 667.61, subd. (e)(5).) The trial court sentenced defendant to serve a state prison term of 66 years to life.
On appeal, defendant contends (1) the trial court erred by admitting evidence of two prior incidents of violence committed by defendant against the victim because they were not cohabitants, (2) expert witness testimony regarding studies about second-hand inhalation of crack cocaine vapors should not have been admitted into evidence, (3) he was deprived of his federal constitutional right to represent himself at sentencing, and (4) the trial court erred in imposing consecutive sentences for the rape and first sodomy because the evidence did not show the offenses were committed on separate occasions.
We conclude the trial court did not err in admitting prior acts evidence involving the same victim as in the current case. We further conclude defendant did not preserve the claim the trial court erred in allowing the prosecution's expert witness to testify about studies concerning the effects of second-hand inhalation of crack cocaine vapors. The trial court properly disallowed the defense from introducing evidence of the victim's tested level of cocaine metabolite without also introducing expert witness testimony to explain to the jury about the effects of the tested level of cocaine metabolite. The trial court did not abuse its discretion in denying defendant's untimely request for self-representation made for the first time on the day scheduled for sentencing. And we determine the trial court did not err in imposing consecutive sentences for the rape and first sodomy. Accordingly, we affirm.
More than 20 years prior to trial, defendant married his wife, the victim's daughter. In 1995, the victim purchased an apartment building in Louisiana where she lived in the front apartment. Defendant, his wife, and their son lived together in the backapartment. The victim had defendant cut a hole in the closet so that she could go back and forth between the apartments "to do laundry and whatever she needs to do."
One day, defendant asked the victim to come and see something in the closet. At the closet, defendant tried to shove the victim inside. Defendant's brother-in-law, the victim's son, happened to be present and intervened.
On another occasion, the victim woke up to see defendant standing over her with a knife in his hand. As the victim said defendant's name, he put his hand over her mouth. Defendant's wife and brother-in-law ran into the victim's apartment. As defendant's wife attempted to take the knife from defendant, the victim was cut on her hand. The cut was deep enough to leave a scar. Defendant's wife and brother-in-law and defendant kept "tussling with the knife" until the blade broke from the handle.
The victim testified she had known defendant to use crack cocaine in Louisiana. During both assaults, defendant seemed like a different person and behaved erratically. About defendant, the victim testified that "he's a pretty decent person other than when he's under the influence."
As a result of the damage caused by Hurricane Katrina in 2005, the victim and her family - including defendant and his wife - moved to Sacramento to be near other family members. In 2012, defendant, his wife, and their son moved in with the victim at her residence in Sacramento.
On January 11, 2013, the victim came home from work around 5:30 p.m. As she walked inside, defendant surprised her and began punching her in the face. The victim attempted to fight back. Defendant put her into a chokehold and told her he was going to kill her if she did not stop fighting. Defendant choked the victim until she urinated on herself and lost consciousness. When the victim regained consciousness, she was lying on the floor with her arms tied behind her back and her legs taped up. Defendant put duct tape over the victim's mouth.
Defendant asked for and received the victim's bank card and PIN. Defendant said the PIN "better be right" or he would "come back and get [her]." The victim scooted toward the kitchen to try to find something to help free herself.
Defendant returned within 15 minutes and found the victim in the kitchen. Even with duct tape over her mouth, the victim believed defendant understood what she was saying. Defendant dragged her back into the living room and tied her more tightly with a vacuum cleaner cord. Defendant paced for a few minutes before dragging the victim into a small bedroom. The windows were closed and there was no ventilation.
The victim asked defendant what he was doing. Defendant responded, "Shut up." Defendant smoked crack cocaine from a pipe for about 10 minutes. Defendant was so close to the victim she "inhaled whatever it was he was smoking." Defendant then pulled down the victim's pants. The victim told him, "Kevin, you don't want to do that."
Defendant used a telephone to call someone to tell the call recipient to "bring him some more." Defendant stepped outside and spoke with someone. After about 5 to 10 minutes, defendant returned. Defendant resumed smoking. The victim was lying on the bed with her pants pulled down.
Defendant took off his clothes and inserted his penis into the victim's vagina. He then inserted his penis into her anus. Defendant was smoking while he inserted his penis into her anus for the first time. "After a while, when he . . . couldn't get an erection, he stopp[ed] and started smoking" again. At some point, defendant licked her breast.
The victim testified defendant inserted his penis into her anus during three "different separate occasions." Between the second and third occasion, defendant "[j]ust smoked." Although defendant never achieved a full erection, the victim said he was most erect during the third insertion into her anus. After the third attempt, defendant appeared to get tired, got up, and began pacing again. The victim estimated the assault ended at 1:30 a.m.
The victim did...
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