People v. Vonner

• Decision Date: 16 August 2004
• Docket Number: No. B169476.,B169476.
• Citation: 17 Cal.Rptr.3d 460,121 Cal.App.4th 801
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Sylvester VONNER, Defendant and Appellant.

17 Cal.Rptr.3d 460

121 Cal.App.4th 801

The PEOPLE, Plaintiff and Respondent, v. Sylvester VONNER, Defendant and Appellant.

No. B169476.

Court of Appeal, Second District, Division 6.

August 16, 2004.

Review Granted October 20, 2004.

Mark D. Lenenberg, under appointment by the Court of Appeal, Simi Valley, for Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc J. Nolan, Supervising Deputy Attorney General, Lawrence M. Daniels, Deputy Attorney General, for Plaintiff and Respondent.

YEGAN, J.

Contrary to the numerous contentions in the deluge of supplemental briefs now being filed in the California Appellate Courts, it is not at all clear that the United States Supreme Court opinion in Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 has sounded the death knell for California sentencing laws. It remains to be seen whether the Determinate Sentencing Law has been bruised, battered, or born into a better world.¹ Here we only conclude that Blakely does not impact a sentencing court's imposition of a full consecutive sentence for an enumerated violent sex offense. (Pen.Code, § 667.6. subd. (c).)²

Sylvester Vonner was convicted by jury of forcible lewd conduct on a child under the age of 14 (count 2; § 288, subd. (b)(1)) and committing a lewd act on a child under the age of 14. (§ 288, subd. (a)). The jury was unable to reach a unanimous verdict on the forcible rape charge. (Count 1.) The trial court sentenced him to serve 12 years in state prison. He appeals claiming instructional error, denial of the effective assistance of counsel, and sentencing error. We affirm.

Facts and Procedural History

In July 2002, 10-year-old India P. was on a bed watching cartoons. Appellant, her grandfather, entered the room with his pants unbuckled, turned India over on her back, and pulled down her panties. Holding her hands above her head, he inserted his penis in her vagina and moved it in and out. India screamed and told appellant to "stop" and "get up." (Count 2.)

When India complained of vaginal pain and bleeding, her mother opined that she was menstruating or may have wiped herself too hard. After the family moved to Compton, India told her sister and mother about the rape. The police were notified, India explained what had happened, and was examined by a doctor. She also testified that about three weeks before the rape, appellant repeatedly touched her vaginal area while she was clothed, rubbing her "private area" with his hand. (Count 3.)

On November 5, 2002, appellant was interviewed by Detective Susan Velazquez and agreed to a polygraph examination. Appellant said that he and India were wrestling and that when India bounced on top of him, the head of his penis went inside her vagina.

At trial, appellant denied putting his penis inside India. He said that Detective Velazquez told him to apologize, not because he raped India, but because India needed to hear the apology. "[T]he detective told me that my granddaughter want[ed] me to . . . admit that I had sex with her, that I raped her, and that I put my penis inside her. If I didn't do that, that [India] was going to grow up retarded."

Detective Velazquez testified that appellant gestured with his hands to demonstrate how far his penis penetrated India's vagina. Appellant, however, claimed that Detective Velazquez first used the gesture. "She put up her finger and told me how much. Like this? Like this? Like this?" Appellant said that he went along with the detective.

Polygraph Exam

Appellant argues that his statements and gestures, made during the polygraph exam conducted by Detective Delia, were improperly received and considered by the jury. Evidence Code section 351.1, subdivision (a) states in pertinent part that "the results of a polygraph examination . . . shall not be admitted into evidence in any criminal proceeding . . . unless all parties stipulate to the admission of such results." Subdivision (b) provides: "Nothing in this section is intended to exclude from evidence statements made during a polygraph examination which are otherwise admissible."

Before trial, appellant sought admission of the polygraph exam and argued that it was admissible to shed light on Detective Velazquez's interview. Appellant claimed that the polygraph exam and interview was all one "conversation." Citing Evidence Code section 356, he argued that if the Velazquez interview was introduced by the prosecution, the polygraph videotape was admissible "to explain [appellant's] state of mind, the coerciveness of the conversation, [and] the custodial nature of the [detective's] interview . . . ."

The trial court viewed the videotape and stated that it would "exclude that portion of the tape dealing with the polygraph examiner. There was [sic, were] actually two interviews by two different people. There is the polygraph first [conducted by Detective Delia] followed by . . . the detective who I think is the investigating officer. [Detective Velazquez.]" Citing Evidence Code section 351.1, subdivision (a), the trial court found that the conversation with Detective Delia contained too many references to the polygraph exam. The trial court said that it would "revisit the issue and possibly allow some or all of . . . the interview of the defendant by the polygraph examiner depending upon the state of the evidence. . . ."

Notwithstanding the trial court's ruling, appellant himself referred to the "lie detector test" on direct and cross-examination. He denied putting his penis in India and said that Detective Velazquez was the first one to use the hand gesture to demonstrate sexual penetration.

Appellant's reference to the polygraph on direct and cross-exam was a "classic example of blurted-out testimony." (People v. Morris (1991) 53 Cal.3d 152, 194, 279 Cal.Rptr. 720, 807 P.2d 949.) A defendant who volunteers information during testimony cannot later claim that its admission denied him a fair trial. (People v. Lang (1989) 49 Cal.3d 991, 1031-1032, 264 Cal.Rptr. 386, 782 P.2d 627; People v. Wilkes (1955) 44 Cal.2d 679, 684, 284 P.2d 481.)

In People v. Basuta (2001) 94 Cal.App.4th 370, 114 Cal.Rptr.2d 285, a prosecution witness was rehabilitated based on testimony that the witness implicated the defendant during a police station interview. The investigating officer, in violation of an in limine order, stated that the witness agreed to take a polygraph right after the interview. (Id., at p. 389, 114 Cal.Rptr.2d 285.) The trial court denied defendant's motion to present expert testimony that the polygraph test was inconclusive. (Ibid.) The Court of Appeal held that defendant was denied a fair trial because the credibility of the witness was crucial to the People's case. Testimony about the polygraph invited the jury to speculate that the witness "passed the polygraph examination and that she was, therefore, worthy of belief." (Id., at p. 390, 114 Cal.Rptr.2d 285.)

Here, the jury was told about the polygraph but not the test results. Unlike Basuta, it was appellant who first referred to the polygraph exam. The references were volunteered and served as a premise for rebuttal evidence. The trial court did not abuse its discretion in permitting the jury to look at an edited videotape of the polygraph interview. (E.g., People v. Hart (1999) 20 Cal.4th 546, 653, 85 Cal.Rptr.2d 132, 976 P.2d 683.)

Appellant now contends that his statements were inadmissible because they were uttered in the course of a polygraph exam and that the trial court ruling undermines Evidence Code section 351.1, subdivision (b). This is an impermissible change in theory. (See e.g. People v. Borland (1996) 50 Cal.App.4th 124, 129, 57 Cal.Rptr.2d 562.) Appellant testified that the confession was coerced and that Detective Velazquez prompted him to use the hand gesture. The trial court reasonably concluded that the prosecution could impeach appellant based on the polygraph interview. (Evid.Code, §§ 351.5, subd. (b); 780, 1235.) It is well settled that a defendant who elects to testify has no right to commit perjury or create a false aura of veracity. (E.g., People v. Douglas (1977) 66 Cal.App.3d 998, 1005-1006, 136 Cal.Rptr. 358 [defendant impeached by inconsistent statements at suppression hearing]; United States v. Havens (1980) 446 U.S. 620, 626, 100 S.Ct. 1912, 1916, 64 L.Ed.2d 559, 565 [evidence seized in violation of Fourth Amendment admissible to impeach testifying defendant]; Harris v. New York (1971) 401 U.S. 222, 225, 91 S.Ct. 643, 646, 28 L.Ed.2d 1, 4-5 [statements in violation of Miranda admissible for impeachment purposes].)

The assertion that the prosecutor committed misconduct in cross-examining appellant is without merit. The questions clarified whether appellant drank alcohol before the polygraph exam and whether Detective Velazquez promised not to arrest him after he was "hooked up" to the polygraph machine. Appellant did not object to the questions or the prosecutor's closing argument, thereby waiving any claim of prosecutorial misconduct. (People v. Berryman (1993) 6 Cal.4th 1048, 1072, 25 Cal.Rptr.2d 867, 864 P.2d 40.)

To dispel any potential for prejudice, the trial court instructed the jury that it was not to consider or speculate about the polygraph test results.³ It is presumed that the jury understood and followed the instruction. (People v. Morales (2001) 25 Cal.4th 34, 47, 104 Cal.Rptr.2d 582, 18 P.3d 11.) Having reviewed the record, we conclude there is no reasonable likelihood that the jury construed the polygraph evidence or the prosecutor's remarks in an improper manner. (People v. Samayoa (1997) 15 Cal.4th 795, 843-844, 64 Cal.Rptr.2d 400, 938 P.2d 2.)

Ineffective Assistance of Counsel

Appellant claims that he was denied a fair trial because the videotaped interview contains hostile comments by the officers. He now contends that the comments are hearsay...