People v. GovanPeople v. Govan
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- Before:
- Feuer, Perluss, Segal
We also address in the published portion of the opinion Govan‘s contention his sentence must be vacated and remanded for the trial court to exercise its discretion under recent
However, the People argue
We disagree with our colleagues in Caparaz. Reasonably read,
Govan also contends, the People concede, and we agree the trial court erred in awarding Govan 1,008 days of presentence custody credit instead of 1,020 days. However, Govan is not entitled to any conduct credit because the one strike law bars an award of conduct credit to a one-strike offender.
In the unpublished portion of the opinion we consider Govan‘s contentions the trial court abused its discretion in admitting evidence that victim Kenyetta F. was forced into prostitution; the court erred in finding victim Soraya G. was an unavailable witness and allowing her preliminary hearing testimony to be read to the jury; and the court committed prejudicial error in instructing the jury with CALCRIM No. 315 on the certainty factor for witness identification in light of People v. Lemcke (2021) 11 Cal.5th 644 (Lemcke). There was no prejudicial error.
We affirm Govan‘s convictions, vacate the sentence, and remand for resentencing.
A. The Evidence at Trial
Three victims testified at trial: Markita L., Breauhna B., and Kenyetta. In additiоn, the preliminary hearing testimony of a fourth victim, Soraya, was read to the jury because the trial court found she was an unavailable witness.
Markita, Kenyetta, and Soraya testified that they were sex workers. According to the women‘s testimony, Govan arranged for them to meet him at his apartment complex on different days. Govan brought the women to the complex‘s laundry room, where he forced them to orally copulate him, and then he raped or attempted to rape them while holding an Airsoft gun.3 Breauhna testified she met Govan through a dating website and invited him to her home for a lunch date. While at her home, Govan forcibly raped her.
Govan admitted in his testimony that he met Markita, Kenyetta, and Soraya and took them to the laundry room to have sex. But he testified he had consensual sex with each of the women, he did not use a weapon, and he fled after each sexual encounter to avoid paying for the services. Govan claimed he never met Breauhna.
After Govan‘s arrest, he made a jail call to his girlfriend, codefendant Krishanna Wheeler. The prosecution played the jail
1. Markita—September 2017 incident
In September 2017 Markita was engaged in sex work and worked on her own without a pimp. She posted an advertisement on Craigslist with a phone number customers could use to contact her. Govan contacted Markita using the phone number in her advertisement. Through text messages and calls, Markita agreed to meet Govan at an apartment complex in Lakewood for a “15-minute quick session.” Govan told Markita his family was at home, so they would have to use the laundry room.
On the morning of September 3, 2017 Markita arrived at the apartment complex and met Govan in front of the building. They greeted each other, and Govan guided her to the nearby laundry room. Govan opened the door of the laundry room with a key, and Markita followed him intо the room. Govan told Markita he would be right back, and she turned her back to him to look for a condom in her wallet.
Within 10 seconds Govan returned, and in an aggressive tone he directed Markita to “‘turn the fuck around.‘” Markita turned around and saw Govan pointing a gun at her face. The gun was black with a long ammunition clip extended from it. Markita asked Govan, “‘Why are you doing this?‘” Govan responded by asking the same question. Markita replied, “‘This is just, like, what I do, you know, what do you want? I have a child. I want to go back home to my child.” Govan then opened Markita‘s wallet and saw it was empty.
After Govan left the laundry room, Markita ran upstairs. She banged on an apartment door, and Leah McClain and her husband opened the door and let Markita come inside. McClain observed Markita was crying and holding a black metal clip in her hands. Markita disclosed she met a man in the laundry room, he “pulled a gun on her to rob her,” and he “made her give him oral sex at gunpoint.” Markita said the clip had come from the attacker‘s gun and she had grabbed it from the floor when she ran out of the laundry room. McClain and her husband called the police and assisted Markita with her injuries.
2. Breauhna—June 2018 incident
In June 2018 Breauhna met Govan on a dating website called Plenty of Fish. After Breauhna and Govan exchanged text messages three or four times, they met by video chat and then in
Govan next pushed Breauhna into her bedroom and told her to lie on her back. She exclaimed, “‘I don‘t want to. I don‘t want to do this. I don‘t know you.‘” Govan pushed Breauhna on the bed, pulled on a condom, and put his penis in her vagina. When Govan finished, he got up and said “bye” before walking out of her home. Breauhna did not initially contact the police because she “was in denial” of what happened and only knew Govan‘s cell phone number. She did not know his name or any other information about him. A few weeks after the incident, Breauhna sent a text message to Govan stating “he was a scammer, an abuser, and a rapist.” Breauhna later reached out to the police after she saw a crime bulletin about Govan.
Detective Tifani Stonich of the Los Angeles County Sheriff‘s Department Special Victims Bureau, in the course of her investigation into the sex crimes believed to be committed by
3. Soraya—November 2018 incident
On November 30, 2018 Govan contacted Soraya through a website called Backpage, which is a website that is used to “meet people . . . to get money.” He sent her a photograph, but of someone else. Govan asked Soraya to meet him at an apartment complex in Lakewood to provide sexual services in exchange for money. At approximately 10:00 p.m. Soraya arrived at the apartment complex and met Govan by the front gate. Soraya confirmed Govan was the person she had communicated with earlier. Govan led Soraya to the laundry room, and he opened the door with a keycard. Once they were inside the laundry room, Soraya was talking on her cell phone with her head down when she felt a gun pointed at the back of her head. She turned around, and Govan said, “‘Don‘t look at me.‘”
Govan then told Soraya to take off her clothes and get on the floor. Soraya kneeled on the floor, and her cell phone fell out of her pocket. Govan directed her to turn off her phone, which she did. Govan told Soraya to “suck his dick” as he pressed a black gun to the back of her head, and she complied. Govan then penetrated Soraya vaginally from behind while continuing to
4. Kenyetta—December 2018 incident
In December 2018 Kenyetta worked as a sex worker. Most of Kenyetta‘s appointments with customers were arranged by her pimp who communicated with her by cell phone. At some point the pimp arranged for Kenyetta to meet with a customer (Govan) in Lakewood. Kenyetta communicated with Govan by text messages, and he asked her to meet him at an apartment building during the daytime on December 31, 2018.
Kenyetta met Govan at the apartment building and confirmed he was the person who had contacted her for services. She followed Govan to a laundry room, and he opened the door. Govan then pulled out a black gun from his waistband and pointed it at Kenyetta‘s face. Govan ordered, “‘Get on your knees, bitch.” Kenyetta pleaded, “‘[P]lease,‘” and Govan replied, “‘Shut the fuck up.‘” Govan then unzipped his pants while continuing to hold the gun and stated, “‘Suck my dick, bitch.‘” Kenyetta orally copulated Govan and observed he was wearing “a gray-and-black Gucci belt.” At this point, Kenyetta was on her knees, and Govan directed her to turn around. She complied, and he inserted his penis into her vagina. He said, “‘If you do as I say, I won‘t shoot you.‘” Less than 10 minutes later, Govan jumped up, and
Kenyetta called 911. In the call, which was played to the jury, Kenyetta stated she was at an apartment complex in Lakewood to meet her sister when a man approached her, asked for directions to the laundry room, and “pulled a gun out on [her].” Kenyetta added that the man told her, “‘Now, bitch, you need to suck my dick,‘” and Kenyetta responded, “‘I‘m not gonna suck anything.‘” Kenyetta called the police, and about 20 minutes later two or three deputy sheriffs arrived. One deputy directed Kenyetta to call Govan using her cell phone. Govan answered and told Kenyetta that law enforcement would not do anything because Kenyetta “was out there working the streets.” He added that he lived in Los Angeles, not Lakewood.
5. The investigation
Detective Stonich testified she determined in her investigation that Govan lived in an apartment within the Lakewood apartment complex that contained the laundry room in which the incidents with Markita, Kenyetta, and Soraya occurred. Detective Stonich conducted a search of Govan‘s residence and recovered a black Airsoft gun and a multi-colored Gucci belt.
The prosecutor also played a jail call Govan made to Wheeler, in which he provided Wheeler with the full names for Soraya and Kenyetta (and a third woman, Jasmine T.),4 and
6. Govan‘s testimony
Govan testified he met Markita through a website called Backpage, “where you locate prostitutes” and exchange sex for money. He texted Markita, and they agreed he would pay her approximately $150 for 30 minutes of sex. Govan gave Markita an address in Lakewood, and she met him there. Govan told her that his wife was at home, and he asked if they could “do the date in the laundry room.” Govan suggested the laundry room because in the past, when he had sex with prostitutes without paying them in his home, they came back with their pimps and vandalized his residence.
Govan saw Markita place her black clutch on top of the washer, but he denied touching it. Govan and Markita had sex for 25 to 27 minutes in the laundry room. Govan then asked Markita to save his contact information as a regular customer, and he attempted to run out of the laundry room. Markita grabbed the back of Govan‘s shirt and screamed, “‘Daddy. Daddy, he‘s trying to run off with the money. Daddy. Daddy.‘” Govan had an empty ammunition magazine in his pocket, which fell out during his struggle with Markita. Govan then ran from the laundry room to his apartment, which was approximately
Govan also met Kenyetta through Backpage, and he agreed to pay her for sex. Govan and Kenyetta went to the same laundry room, and he showed her a stack of cash before they engaged in sex acts. After they finished, Govan suggested Kenyetta keep his phone number as a regular customer. When Kenyetta reached for her cell phone to save his number, he ran out of the laundry room. Kenyetta chased Govan, who ran up the stairs and down the street before losing her. Once Govan reached his home, Kenyetta called and said, “‘Oh, bring your punk ass outside. My husband is here. We‘ve got big bullets.‘”
Govan similarly met Soraya on Backpage. They agreed to meet at an address that was directly behind Govan‘s apartment building. Later that night Govan met Soraya and opened the gate for her. He told her that his family was upstairs, and he asked whether she minded using the laundry room. She responded, “‘That‘s no problem.‘” Once Govan and Soraya arrived
Govan denied ever knowing or seeing Breauhna. He acknowledged he met someone through the Plenty of Fish dating site, but it was not Breauhna. On cross-examination, he admitted he had received a text message that read, “You‘re a rapist, abuser, and a scammer. I‘m reporting you.” He believed the message was from Wheeler. Govan reiterated as to Breauhna that he had “never seen the lady a day in my life.”
On cross-examination, Govan denied he ever raped or forced any of the four women to orally copulate him. But Govan admitted he solicited at least 20 prostitutes to come to the Lakewood location, and he scammed some of them out of money after the sexual encounters. Govan also acknowledged Detective Stonich found an Airsoft gun in his home and that he had “a whole bunch of Air Soft equipment.”
On rebuttal, Detective Stonich testified that she and her partner had previously interviewed Govan as part of their investigation. Govan told Detective Stonich that Markita sustained injuries when they fought over the money Govan had brought to the laundry room because Govan said he was not going to pay her. Govan did not tell Detective Stonich that he saw Markita with a pimp. Nor did Govan say that he saw the pimp hit Markita.
B. The Verdicts and Sentencing
On October 25, 2021 the jury found Govan guilty of false imprisonment by violence of Soraya, Kenyetta, and Markita (counts 1, 7 & 10;
At the November 8, 2021 sentencing, the trial court imposed under
Govan timely appealed.
A. The Trial Court Erred in Physically Restraining Govan During Jury Selection, but the Error Was Not Prejudicial
1. Trial court proceedings
The trial took place in October 2021. Prior to jury selection, the trial court noted for the record that Govan was “physically restrained by way of a restraint belt that is around his waist and connected to the back of his chair.” The court explained, “[G]iven that we are trying this case in extraordinary times during a global pandemic, we are conducting jury selection in a room which is normally used for jury assembly purposes. . . . This room is an unsecured room. It has multiple exits. It has a window. Mr. Govan and Ms. Wheeler are facing extremely serious charges, and so for that reason this court has made a decision to have Mr. Govan, who is in custody, restrained to a chair. I also want to make note that we are using foldable tables as counsel tables and as the judge‘s bench. Mr. Govan and Ms. Wheeler are, you know, some 15, 20 feet away from the closest juror in this case, and we don‘t have access to a lockup like we typically would in a courtroom.” The court added, “I also want to note that Mr. Govan is seated at a table, along with Ms. Wheeler and counsel, that is covered by a shroud; the front part is covered by a shroud. No juror will know Mr. Govan is restrained. Mr. Govan‘s belt is covered by his white dress shirt. There will be no mention of Mr. Govan being restrained, and there will be no request by counsel or another party to ask Mr. Govan to stand up or to have Ms. Wheeler stand up, and so for all those foregoing reasons the court does find a manifest need to have Mr. Govan restrained in that manner.”
At that point the court stated for the record, “Let me . . . add that the restraint here, that‘s been used here, is only while we are in this particular room, not for the duration of the trial. And secondly, I do want to incorporate all of the findings, and all of the executive orders, and all of the orders, general orders, issued not only by the chief justice of the California Supreme Court but by the presiding judge of Los Angeles County.”
2. Governing law and standard of review
“‘In general, the “court has broad power to maintain courtroom security and orderly proceedings” [citation], and its decisions on these matters are reviewed for abuse of discretion. [Citation.] However, the court‘s discretion to impose physical restraints is constrained by constitutional principles. Under California law, “a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury‘s presence, unless there is a showing of a manifest need for such restraints.” [Citation.] Similarly, the federal “Constitution
“‘“In deciding whether restraints are justified, the trial court may ‘take into account the factors that courts have traditionally relied on in gauging potential security problems and the risk of escape at trial.’ [Citation.] These factors include evidence establishing that a defendant poses a safety risk, a flight risk, or is likely to disrupt the proceedings or otherwise engage in nonconforming behavior.“’” (Bracamontes, supra, 12 Cal.5th at p. 991; accord, Young, supra, 7 Cal.5th at pp. 934-935.) “[W]hen the evidence establishes a manifest need for restraints, the court should impose the least obtrusive or restrictive restraint that would be effective under the circumstances.” (Poore, supra, 13 Cal.5th at p. 285; accord, People v. Simon (2016) 1 Cal.5th 98, 115.)
“‘“[W]e will not overturn a trial court‘s decision to restrain a defendant absent ‘a showing of a manifest abuse of discretion.‘” [Citation.] To establish an abuse of discretion, defendants must demonstrate that the trial court‘s decision was so erroneous that it “falls outside the bounds of reason.“’” (People v. Miracle (2018) 6 Cal.5th 318, 346; accord, People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.)
Govan contends the use of a lap belt to restrain him during jury selection was an abuse of discretion and violated his federal constitutional right to due process. The People argue the use of a lap belt was justified by the necessity of selecting the jury in the unsecured jury assembly room as a result of the COVID-19 pandemic given Govan‘s violent history culminating in the alleged violent rape of three victims and attempted rape of a fourth victim. The People further assert any error was not prejudicial because there was no evidence the jury could see the restraints. We agree with Govan that the trial court abused its discretion in restraining Govan during jury selection; however, the error was nоt prejudicial.
As discussed, the trial court held voir dire in the jury assembly room as a result of the COVID-19 pandemic to enable the jurors to sit distanced from each other and others during jury selection. Although we do not question the need to conduct jury selection in a larger room than a typical courtroom, the court failed to justify restraining Govan “on an individualized basis,” with evidence showing Govan‘s conduct in custody or in the courtroom demonstrated a present safety or flight risk or that he was likely to disrupt the proceedings. (Bracamontes, supra, 12 Cal.5th at pp. 991, 993 [trial court abused its discretion in requiring defendant to wear leg chains during trial where defendant had attempted to evade capture before his arrest, but “there was no evidence that defendant harbored a present intent to escape from custody or otherwise disrupt court proceedings“].)
The court focused on the nature of the jury assembly room (with the defendants seated within 15 to 20 feet of the closest
Given the lack of evidence that Govan had acted violently in custody or in court, disrupted the court proceedings, or harbored an intent to escape, the trial court abused its discretion in ordering the use of a lap belt to restrain him. (Bracamontes, supra, 12 Cal.5th at p. 991 [“‘The imposition of physical restraints in the absence of a record showing of violence or a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion.‘“]; People v. Ervine (2009) 47 Cal.4th 745, 773 [same].)
Although it was an abuse of discretion to physically restrain Govan during jury selection, he was not prejudiced by the error.7 There is no evidence the jury saw the lap belt
Govan contends he was prejudiced because the restraint belt likely caused discomfort and impeded his ability to confer and consult with his attorney during jury selection. A physical restraint has “the potential to impair an accused‘s ability to communicate with counsel or participate in the defense,” but the error is harmless where the record “does not reveal any such
B. The Trial Court Did Not Violate Govan‘s Statutory and Constitutional Rights by Receiving the Verdicts in His Absence
1. Trial court proceedings
On October 25, 2021, outside the presence of the jury, the trial court informed the attorneys that the jury had reached verdicts on all counts except for count 14. The court stated, “I anticipate the court will declare a mistrial as to count 14 but take the verdicts as to the remaining counts. The complication is that the defendant is not here, and the defendant needs to be here.”
Govan‘s attorney objected on the grounds that Govan‘s absence was not his fault; Govan could be present in court on November 8; Govan “was very clear about not waiving his presence for any sort of hearing or essential part of the proceedings“; and “this is an essential part of the proceeding.” The trial court responded, “I can understand counsel‘s position, but . . . if we do set this case out to November 8th . . . we‘re going to lose jurors either by . . . plans they have, someone getting—God forbid—sick. There are just so many factors that are involved between now and November 8th that I do believe it‘s in the interest of justice to take the verdict now.”
2. Governing law and standard of review
A criminal defendant has a right to be personally present at trial under the
However, “‘[u]nder the
We review de novo “‘a trial court‘s exclusion of a criminal defendant from pretrial and trial proceedings, either in whole or in part, “insofar as the trial court‘s decision entails a measurement of the facts against the law.“‘” (People v. Virgil (2011) 51 Cal.4th 1210, 1235; accord, People v. Cole (2004) 33 Cal.4th 1158, 1230.) The “‘“[d]efendant has the burden of demonstrating that his absence prejudiced his case or denied him a fair trial.“‘” (Suarez, supra, 10 Cal.5th at p. 146; accord, People v. Blacksher (2011) 52 Cal.4th 769, 799.) “[W]e evaluate federal constitutional error for harmlessness under the Chapman beyond a reasonable doubt standard, and state law error under the Watson reasonably probable standard.” (People v. Perez (2018) 4 Cal.5th 421, 438; accord, People v. Mendoza (2016) 62 Cal.4th 856, 901.)
Govan contends the trial court committed prejudicial error and violated his constitutional rights by receiving the verdicts in his absence. There was no error.
Lewis and Oliver is instructive. There, defendant Anthony Oliver was hospitalized after he was stabbed by another jail inmate and was absent from court when the jury announced it had reached a verdict. (Lewis and Oliver, supra, 39 Cal.4th at pp. 1039-1040.) The Supreme Court upheld the trial court‘s finding under
Here, Govan was absent from court when the jury rendered its guilty verdicts on October 25, 2021 because he was
Nor did the trial court violate Govan‘s constitutional rights or statutory rights under
C. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence Kenyetta Was Forced into Prostitution
1. Trial court proceedings
During the direct examination of Kenyetta, the prosecutor asked Kenyetta why she was a prostitute. Govan‘s attorney objected on speculation and relevance grounds, but the trial court overruled the objection. Kenyetta answered, “I was forced. I was human trafficked.” Govan‘s attorney again objected, “Calls for legal conclusion. Motion to strike. Speculation. Foundation.” The court ruled, “As to ‘human trafficking’ it‘s sustained. That portion of the answer will be stricken.”
In response to the prosecutor‘s questioning of Kenyetta about why she did not in her 911 call disclose all the details of what had happened, Kenyetta answered that she was a victim of a crime and had been “trafficked.” Defense counsel again objected, and the trial court struck the answer as nonresponsive.
2. Governing law and standard of review
“‘No evidence is admissible except relevant evidence.’ (
“‘[T]he prejudice which exclusion of evidence under
3. The trial court did not abuse its discretion
Govan contends the trial court abused its discretion in admitting Kenyetta‘s testimony that she was forced into prostitution because the evidence was not probative of whether Govan coerced her to engage in oral copulation and sexual intercourse, and further, any relevance was outweighed by the
Evidence that Kenyetta was forced into prostitution was relevant to explain why Kenyetta did not report in her 911 call that she was raped and forced to orally copulate Govan at gunpoint, instead stating only that she was ordered at gunpoint to orally copulate Govan but refused. Because Kenyetta‘s credibility was at issue, evidence that she was forced into prostitution and fearful of her pimp was relevant to explain why she was not forthcoming in the 911 call. (
D. The Trial Court Did Not Err in Finding Soraya Was Unavailable as a Witness
1. Trial court proceedings
On October 20, 2021, during trial, the trial court conducted a hearing on the prosecution‘s efforts to subpoena Soraya and compel her to appear and testify at trial. The prosecutor requested the court find Soraya was unavailable and to allow her preliminary hearing testimony to be read to the jury.
Detective Stonich testified she first met Soraya three days after Soraya‘s encounter with Govan. At that time, Soraya was willing to cooperate in the prosecution of the case. Soraya testified at the preliminary hearing on July 18, 2019, which was the last time Detective Stonich saw her in person. After the preliminary hearing, Detective Stonich remained in telephonic contact with Soraya for more than two years, exchanging
The parties stipulated that the district attorney‘s office mailed a subpoena to Soraya‘s last known address on October 4, 2021. Detective Stonich followed up with five phone calls and two text messages to Soraya during the period from October 13 through October 17, but Soraya did not respond. On cross-examination, Detective Stonich acknowledged she did not use any databases available through the Los Angeles County Sheriff‘s Department to locate Soraya, nor did she contact Sorаya‘s family.
On Monday morning, October 18, 2021, the prosecutor asked Jose Medrano, a senior investigator for the Los Angeles County District Attorney‘s Office, to locate Soraya. Medrano obtained the address where Soraya had previously been served and the telephone number the office had used to contact her. Medrano called the telephone number, but the call went to voicemail. Medrano then went to Soraya‘s home address and spoke with Soraya‘s cousin about Soraya‘s whereabouts. While Medrano was at the home, the cousin called Soraya using a different phone number than the one Medrano had used to contact her. Medrano spoke with Soraya by video chat. He was able to recognize her from a photograph he had been provided. Soraya stated she was in Portland and “couldn‘t freely speak at the moment.” Medrano told Soraya he would leave his business card with her cousin and would call her after he left the location.
Medrano called Soraya from his vehicle using the number the cousin provided to him. Medrano learned Soraya was
Later on October 18 a witness coordinator from the district attorney‘s office spoke with Soraya on a speakerphone in Medrano‘s presence. The witness coordinator offered to arrange transportation for Soraya if she disclosed her location. Soraya did not provide her location in Portland to the witness coordinator.
On October 19, 2021 (the day before Medrano‘s testimony), Medrano again spoke with Soraya on the phone. Soraya confirmed she was “‘working the street.‘” Medrano heard a female voice in the background, and Soraya said she could not talk with him. Medrano continued the conversation by asking her “yes” and “no” questions. Soraya then reported she was trying to get gas money from an aunt to return to Los Angeles. Shortly after the phone call with Soraya, Medrano received a text message from a person who claimed to be Soraya‘s cousin, “stating that Soraya was in trouble” and a man in Portland was not allowing her to speak or move freely. Medrano called Soraya‘s cousin and “instructed her that if she could get ahold of Soraya and let [Medrano] know where [Soraya] was, [he] could try to contact somebody [to assist]. If not, that if she could get ahold of Soraya, or a family member to find out where she was, to contact the local police in whatever jurisdiction she was.” Later, Soraya sent a text message to Medrano that she would try to
Medrano admitted on cross-examination that he did not contact law enforcement in Portland to try to locate Soraya and serve her with a subpoena, explaining he “didn‘t know where she was, [or] if she even was in Portland.” Further, no one from either the district attorney‘s office or the sheriff‘s department went to Portland to try to find Soraya.
After hearing argument from counsel, the trial court ruled the prosecution had exercised reasonable diligence but was unable to procure Soraya‘s trial attendance, and thus Soraya was unavailable as a witness under
The court continued, “[Medrano] was notified on Monday. He actually spoke with someone who knew where she was, and it sounds like there [were] reasonable diligent efforts to get ahold of
The court added, “Sending people out to Portland wouldn‘t help, because they don‘t even know if she, in fact, is in Portland, or where in Portland to look. And there‘s no database information that would provide a location or an address. So based upon the evidence the court has heard, I am going to find that Soraya is unavailable pursuant to
2. Governing law and standard of review
Defendants have a state and federal constitutional right to confront witnesses against them. (
“In a criminal case, the prosecution bears the burden of showing that the witness is unavailable and, additionally, that it made a ‘good-faith effort’ . . . or, equivalently, exercised reasonable or due diligence to obtain the witness‘s presence at trial.” (People v. Sánchez (2016) 63 Cal.4th 411, 440 (Sánchez); accord, Wilson, supra, 11 Cal.5th at p. 291; see
Due diligence “‘“‘connotes persevering application, untiring efforts in good earnest, [and] efforts of a substantial character.‘\“‘” (Wilson, supra, 11 Cal.5th at p. 291; accord, Sánchez, supra, 63 Cal.4th at p. 440.) “We evaluate whether the prosecution timely searched for the unavailable witness, whether the prosecution ‘competently explored’ leads on the witness‘s location, and the overall import of the unavailable witness‘s testimony.” (Wilson, at p. 291; accord, Sánchez, at p. 440.) “We review de novo the trial court‘s unavailability determination,
3. The prosecution exercised reasonable diligence in its efforts to secure Soraya‘s attendance at trial
Govan contends the prosecution failed to meet its burden to show due diligence in its efforts to locate Soraya and ensure her attendance at trial, especially in light of the importance of her testimony and the risk she would become unavailable given her position as a sex worker. The trial court did not err in finding reasonable diligence.11
Because of the COVID-19 pandemic, the trial was continued multiple times, finally being set on October 14, 2021. As discussed, from when Detective Stonich first met Soraya in early December 2018 until July 2021, Soraya was cooperative. Soraya testified at the preliminary hearing in July 2019, and for the following two years, Detective Stonich and Soraya
On October 18 Medrano was assigned to find Soraya, but she did not respond to his telephone call at the number the office had previously used. He went to Soraya‘s home address, where he was able to speak first with the cousin, then with Soraya by video chat. Medrano learned for the first time that Soraya was (she said) in Portland, but she would not provide her address to Medrano or the witness coordinator. Soraya continued to state she was trying to get to Los Angeles, although she rejected the offers from the district attorney‘s office of assistance. On October 19 Soraya texted Medrano to say she was hoping to leave the next day at 4 a.m. to come to Los Angeles, but she did not respond to Medrano‘s follow-up text message on October 20. It was on that day that the prosecutor requested the court deem Soraya an unavailable witness.
Govan posits Detective Stonich or Medrano should have used the sheriff‘s department‘s databases to try to locate Soraya, sent someone to Portland to retrieve her, contacted law enforcement in Portland, searched Soraya‘s cell phone activity, or reviewed her posts on Backpage or other websites to locate her. But it is spеculative whether Soraya could have been located through these means given her occupation and Soraya‘s
Moreover, even assuming Soraya was in Portland, it is unlikely an additional investigation would have located her in time for her to testify at trial. Jury selection started on October 14, and the first witness (Markita) testified on October 18. Further, the prosecution did not learn that Soraya had moved until October 18, and it was not apparent until October 20 that she was unwilling or unable to come to Los Angeles. Under these circumstances, the prosecution‘s efforts to locate Soraya and bring her to Los Angeles to testify at trial were sufficient to support a finding of reasonable diligence. (Sánchez, supra, 63 Cal.4th at p. 442 [rejecting contention prosecution should have sent an investigator to Mexico to try to find witness and convince him to voluntarily return to testify, explaining “[t]he prosecution must do what is reasonable under the circumstances, not necessarily everything that can be suggested in hindsight“]; People v. Valencia (2008) 43 Cal.4th 268, 292-293 [“‘“[t]hat additional efforts might have been made or other lines of inquiry pursued does not affect [the] conclusion” that prosecution exercised due diligence, where the investigator attempted to obtain witness‘s new phone number through the phone company, obtained two addresses through the Department of Motor Vehicles, visited these two addresses and spoke with neighbors, and checked databases for the witness‘s criminal history, credit information, and real estate holdings]; see Wilson, supra, 11 Cal.5th at p. 292 [rejecting argument there was no reasonable diligence on the basis “the prosecution could have checked with [the witness‘s] relatives, assigned multiple investigators to the task of locating [the witness], or sought records from the Department of Motor Vehicles“].)
People v. Louis (1986) 42 Cal.3d 969 (Louis), relied on by Govan, is distinguishable. There, the witness, who was in custody on one theft-related felony and awaiting sentencing on another, refused to testify at the trial of Louis‘s codefendants unless he was “released on his own recognizance to spend the weekend between the end of his testimony and his scheduled sentencing hearing with an unnamed friend at an undisclosed address.” (Id. at p. 990.) The prosecutor agreed, and the witness was released after he testified in the codefendants’ trial. The witness was told to appear for his sentencing, but he
In reversing the trial court‘s finding of due diligence, the Supreme Court reasoned, “On the facts of this case, the diligence required of the prosecution to prevent [the witness] from becoming absent was particularly high. Defendant was to go on trial for his life; [the witness] was a critical prosecution witness, and was known to be both unreliable and of suspect credibility—the very type of witness that requires, but is likely not to appear to submit to, cross-examination before a jury.” (Louis, supra, 42 Cal.3d at p. 991.) The Louis court added, “[T]he prosecution—at the very minimum—could have attempted to obtain from [the witness] and independently verify the name and address of the friend with whom he allegedly intended to spend the weekend. Further, it could then have [been] arranged that he be kept under surveillance during that period of time. Whether merely obtaining the name and address of the friend would have prevented [the witness‘] disappearance seems unlikely. But the failure to take such minimal action plainly conflicts with the claim that the prosecution exercised due diligence.” (Id. at p. 992.)
Similar to Louis, Soraya‘s testimony was critical to the charges against Govan for his false imprisonment, forcible oral copulation, and forcible rape of her. But unlike the witness in Louis who was released from custody and posed a flight risk prior to sentencing, Soraya had cooperated with the prosecution (and Detective Stonich) during the two-year period from the preliminary hearing until just a few months before trial. Given Soraya‘s cooperation, there was no justification to keep Soraya under surveillance, as suggested by Govan. (See Sánchez, supra, 63 Cal.4th at p. 447 [“the prosecution was not required to try to keep [the witness] in custody until she testified” where she was cooperative and the prosecution “did not believe it would be difficult to obtain her trial testimony“].)
E. The Jury Instruction on the Witness Certainty Factor Did Not Constitute Prejudicial Error
Govan contends with respect to the counts relating to Breauhna the trial court erred in instructing the jury with CALCRIM No. 315 on eyewitness identification that it may consider, among other factors, “[h]ow certain was the witness when he or she made an identification.”12 Govan argues the trial
In Lemcke, the Supreme Court observed that “[c]ontrary to widespread lay belief, there is now near unanimity in the empirical research that ‘eyewitness confidence is generally an unreliable indicator of accuracy.‘” (Lemcke, supra, 11 Cal.5th at p. 647.) The court explained, “As currently worded, CALCRIM No. 315 does nothing to disabuse jurors of that common
Notwithstanding the directive in Lemcke that trial courts should omit the certainty factor when instructing with CALCRIM No. 315, the Supreme Court rejected the defendant‘s due process challenge, holding, “When considered in the context of the trial record as a whole, listing the witness‘s level of certainty as one of 15 factors the jury should consider when evaluating identification testimony did not render [defendant‘s] trial fundamentally unfair.” (Lemke, supra, 11 Cal.5th at p. 646.) Following Lemcke, the Supreme Court in People v. Wright (2021) 12 Cal.5th 419, 453 (Wright) similarly concluded inclusion of the witness certainty factor in CALJIC No. 2.9214 did not violate the defendant‘s due process rights. (See People v. E.H. (2022) 75 Cal.App.5th 467, 471 [instruction with “CALCRIM No. 315‘s certainty factor does
Govan acknowledges the Supreme Court‘s holdings in Lemcke and Wright that the jury instruction on the witness certainty factor did not violate those defendants’ due process rights. But he notes the Lemcke court highlighted as to CALCRIM No. 315 that although “the wording of the instruction might cause some jurors to infer that certainty is generally correlative of accuracy,” the defendant was “permitted to present expert witness testimony to combat that inference.” (Lemcke, supra, 11 Cal.5th at p. 657-658.) By contrast, Govan asserts, there was no expert testimony in this case to place the certainty factor “in proper context.” However, whether there is an eyewitness expert is only one factor to consider. In Wright, for example, the court found no due process violation even though the defense did not call an eyewitness identification expert, instead employing a trial strategy to discredit the witnesses. (Wright, supra, 12 Cal.5th at p. 453.) It was Govan‘s decision not to call a witness identification expert at trial, and as in Wright, he challenged Breauhna‘s credibility through cross-examination eliciting that Breauhna sent the text messages to Govan from a different phone number than her own and used a pseudonym to conceal her real name. And Govan testified he never met Breauhna, impliedly questioning whether she was telling the truth that he was the perpetrator.
Moreover, the trial court‘s instruction on witness certainty did not violate due process “when considered ‘“in the context of the instructions as a whole and the trial record.“‘” (Lemcke, supra, 11 Cal.5th at p. 661; accord, Wright, supra, 12 Cal.5th at p. 453.) As Govan acknowledges, the trial court instructed the jury that Govan was presumed innocent; the People must prove Govan guilty beyond a reasonable doubt; the People must prove Govan “did the acts charged” and “acted with a particular intent or mental state“; the jury “alone must judge the credibility or believability of the witnesses“; and the factors in evaluating a witness‘s testimony included that “people sometimes honestly forget things or make mistakes about what they remember.” These jury instructions are similar to those the Supreme Court considered in Lemcke and Wright in concluding the instruction on
Moreover, even if it were state law error for the court to instruct on the witness certainty factor following Lemcke, any error was harmless because Breauhna did not testify that she was certain that Govan was the perpetrator.15 (See People v. Beltran (2013) 56 Cal.4th 935, 955 [harmless error standard under People v. Watson (1956) 46 Cal.2d 818, 836 applies to instructional error that does not amount to federal constitutional error]; People v. Larsen (2012) 205 Cal.App.4th 810, 830 [same].)
F. Remand for Resentencing Under Amended Section 1170, Subdivision (b), Is Warranted
1. The sentencing
As discussed, the trial court sentenced Govan to the upper term of four years on count 13 for the attempted rape of Markita. (See
The court also imposed and stayed under
2. Governing law
At the time the trial court sentenced Govan in 2021, former
“(1) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2). [¶] (2) The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. [¶] (3) Notwithstanding paragraphs (1) and (2), the court may consider the defendant‘s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.” (Stats. 2021, ch. 731, § 1.)
Govan contends, the People concede, and we agree Senate Bill 567‘s changes to amended
3. Remand for resentencing is appropriate because the error in imposing the upper terms was not harmless
Govan contends the trial court‘s imposition of the upper term of four years for attempted rape and three years for each of the three false imprisonment counts violated the Sixth Amendment and failed to comply with amended
Contrary to the People‘s assertion, the trial court did not rely on Govan‘s prior sustained petition for rape in concert when imposing the upper terms for the false imprisonment and attempted rape counts. The only discussion of Govan‘s prior sustained petition (cited by the People) is in the context of Govan‘s Romero motion, which the court granted. Further, the court relied on three aggravating circumstances in imposing the upper term for attempted rape, but with respect to the three false imprisonment counts, it did not specify any aggravating circumstance when imposing the upper terms. And Govan did not stipulate to, and the jury did not find beyond a reasonable doubt the facts underlying any aggravating circumstances for the attempted rape or false imprisonment counts. (See Cunningham v. California (2007) 549 U.S. 270, 281 [“under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence“]; People v. Ross (2022) 86 Cal.App.5th 1346, 1353 (Ross) [imposition of upper term based
The Supreme Court has granted review in People v. Lynch (May 27, 2022, C094174) [nonрub. opn.], review granted August 10, 2022, S274942, to decide what prejudice standard to apply when determining whether a case should be remanded for resentencing under amended
Applying the two-step harmless error analysis to the false imprisonment counts, we conclude remand for resentencing under
Therefore, as to the false imprisonment counts, the constitutional and statutory violations were not harmless under Chapman and Watson. (See People v. Lewis (2023) 88 Cal.App.5th 1125, 1139 [sentence invalid under amended
Accordingly, we vacate the sentence and remand for the trial court to resentence Govan under amended
G. Remand for Resentencing Under Amended Section 654 Is Appropriate
At the time of Govan‘s sentencing in 2021, former
Effective January 1, 2022, Assembly Bill 518 (2021-2022 Reg. Sess.) amended
Govan contends, the People concede, and we agree Assembly Bill 518‘s changes to
When interpreting a statute, “our core task . . . is to determine and give effect to the Legislature‘s underlying purpose in enacting the statutes at issue.” (McHugh v. Protective Life Ins. Co. (2021) 12 Cal.5th 213, 227; accord Jarman v. HCR ManorCare, Inc. (2020) 10 Cal.5th 375, 381.) “We first consider the words of the statutes, as statutory language is generally the most reliable indicator of legislation‘s intended purpose. [Citation.] We consider the ordinary meaning of the relevant terms, related provisions, terms used in other parts of the statute, and the structure of the statutory scheme.” (McHugh, at p. 227; accord, Jarman, at p. 381 [“‘We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment.‘“].) “If the relevant statutory language is ambiguous, we look to appropriate extrinsic sources, including the legislative history, for further insights.” (McHugh, at p. 227; accord, Skidgel v. California Unemployment Ins. Appeals Bd. (2021) 12 Cal.5th 1, 14 [where the statutory language supports more than one reasonable construction, the court “may look to extrinsic aids, including the ostensible objects to be achieved and the legislative history“].)
We disagree with our colleagues in Caparaz that the language “nor shall the execution or imposition of sentence be
As discussed, the Caparaz court based its conclusion in part on its view that limiting application of
The legislative history of the one strike law likewise shows the intent of the Legislature in enacting
In addition, as the Senate Committee on Judiciary‘s analysis of Senate Bill 26X made clear, one purpose of the bill was to add more sex offenses to the list of sex offenses ineligible for probation. (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 26X (1993-1994 Reg. Sess.) as amended May 4, 1994, p. 7.) The committee analysis explained, “Existing law prohibits probation for a person who is convicted of lewd conduct with a child or continuous sexual abuse of a child and with a previous conviction for rape, committing a forcible sex act in concert, [and other specified sex crimes]. This bill would add to that
Our interpretation of
In 2006, the Legislature amended the one strike law to conform it with the language added by Senate Bill 26X in 1994 to
We therefore conclude
H. The Trial Court Must Correct Govan‘s Custody Credit
Govan contends, the People concede, and we agree the trial court erred in awarding Govan 1,008 days of presentence custody credit instead of 1,020 days. (People v. Fuentes (2022) 78 Cal.App.5th 670, 681 [“A defendant is entitled to credit for all days in presentence custody including the day of arrest and the day of sentencing.“]; People v. Dearborne (2019) 34 Cal.App.5th 250, 267; see
Govan also argues he is entitled to two additional days of presentence conduct credit because 15 percent of 1,020 days is
We find persuasive the reasoning in People v. Adams (2018) 28 Cal.App.5th 170, 182: ”
Accordingly, we agree with our colleagues in Dearborne and Adams that one-strike offenders sentenced to indeterminate terms under
DISPOSITION
The judgment of conviction is affirmed. We vacate the sentence and direct the trial court to resentence Govan in accordance with
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.