Filed 1/14/20 P. v. Hayhurst CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

LUKE ERLEN HAYHURST,

Defendant and Appellant.

C080913

(Super. Ct. No. P13CRF0399)

A jury convicted defendant Luke Erlen Hayhurst of forcible oral copulation of Jane Doe (Pen. Code, § 288a, subd. (c)(2)(A)), and genital penetration by a foreign object (Pen. Code, § 289, subd. (a)(1)). For each conviction the trial court imposed concurrent three-year sentences.

Defendant argues the trial court erred when it did not allow the jury to hear interview questions posed to Doe following the incident to impeach Doe’s credibility by showing that the interview questions were leading. Defendant also claims the trial court erred when it excluded certain character witnesses to show defendant’s good character and Doe’s character for not being truthful. Finally, defendant argues the trial court erred in denying a motion for new trial based on newly discovered evidence.

We shall conclude there was no error and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Jane Doe, who was 18 years old, went to a party at her friend Lilly’s house. At the party, Doe had a beer and four or five shots of Tequila and smoked some marijuana. The alcohol made her feel sick, and she threw up in the bathroom. At Lilly’s suggestion, Doe lay down in Lilly’s brother’s bedroom. While she was lying on the bed, defendant came into the bedroom. Doe had been friends with defendant’s sister Stacy when they were in high school, but they were no longer friends. Although Doe had no relationship with defendant, she felt comfortable with him being in the room.

Defendant sat down on the bed and they started talking about why Doe and Stacy were no longer friends. At some point, Doe’s shoe fell off, and defendant grabbed it. She playfully told him to give it back, and his demeanor changed. He became aggressive and scary. He went to the door and closed and locked it. Defendant pushed Doe onto the bed. He pulled the neck of her shirt down toward her stomach and grabbed her breast. She did not know what to do. She said “no” and continued to tell him no throughout “the whole thing.” He put his hand over her mouth. He also put his hand on her throat, and applied pressure, although not enough to strangle her.

Defendant put his hand on Doe’s head and forced his penis into her mouth. She tried to keep her mouth closed, but she ended up opening her mouth because he would not stop poking her in the mouth with his penis.

He finally stopped trying to get Doe to suck his penis and pulled her pants down. He put his fingers in her vagina. She kept saying no. He told her to shut up and said she “wanted it.” He told her she “was just a drunk slut.” Doe did not yell for help because she was scared and “just frozen.”

Eventually Doe heard knocking on the door. Defendant got off her. Doe buttoned her jeans and opened the door. It was her friend Nicole, who was checking on her. Nicole thought it took two or three minutes for Doe to open the door. Doe told Nicole to get her shoes and phone because she did not want to be there. Nicole thought Doe looked scared. When Nicole went into the bedroom, defendant was sitting on the bed staring at the ground. He said, “I think I did something I shouldn’t have.” Nicole was unable to find Doe’s belongings in the room. They both went back into the room, by which time defendant was no longer there, and Doe was panicking. Doe, upset and crying, told Nicole what had happened.

Nicole went outside and confronted defendant. Defendant did not respond. Nicole’s boyfriend Chris got into an altercation with defendant. Chris asked defendant why he made Doe “suck [his] dick.” Defendant responded, “Because I’m an evil man.”

The next morning Doe reported what had happened to the sheriff’s department and spoke with Deputy Kyle Van Buren. Doe first met Deputy Van Buren at the parking lot of a McDonald’s restaurant. Deputy Van Buren spoke to Doe for 20 to 30 minutes to get an initial statement. The conversation was not recorded. A subsequent recorded interview was conducted at the sheriff’s department. At the recorded interview, Deputy Van Buren had previous knowledge of what had occurred, but he was trying to get more detailed information from Doe.

Several days later, the sheriff’s department had Doe make a pretext call to defendant. A recording of the pretext call was played for the jury. In response to Doe asking defendant why he did “that” he stated: “Well—um—I think it’s safe to say that I—we both had way too much to drink that night and, you know, I really—I was in a really bad spot. I shouldn’t have done that at all. Um—I’m—uh—I can’t believe I actually did that though. I honestly surprised myself. . . .” Doe then asked if defendant had heard her say “no” and “stop.” The following conversation ensued:

“Defendant: Yeah, but—um—in the moment, it—it—it didn’t seem very assertive to me so that’s (inaudible).

“Jane Doe: But you heard me say no. I was saying no.

“Defendant: Yeah.

“Jane Doe: Like the whole time I was saying no and trying to push you away. Like you were literally holding me down. Weren’t you? Like you were holding me down.

“Defendant: Yeah, that is correct.

“Jane Doe: Like I—

“Defendant: For—for part of it, yeah. [¶] . . . [¶]

“Defendant: So, I’m—I’m not really sure what to say or do here because that was probably the worst thing I’ve ever done in my life. Um—I only hope that—uh—I didn’t hurt you too bad. Um—but if there’s anything I can do to make it up to you (inaudible) let me know.

“Jane Doe: Well, . . . Like I was saying no and you stuck your dick in my mouth and I was choking on it like—and I was saying no. I wasn’t even like encouraging any of that.

“Defendant: Well—

“Jane Doe: Like, didn’t like—you—you stuck your dick in my mouth like—

“Defendant: Right. Well, you—

“Jane Doe: —and it choked me, like for real. And I was saying no.

“Defendant: I just, you know, I was . . . I guess you could say I was a little desperate at that time any you just did not seem assertive to me. It seemed like you were—you were kind of—you were saying no, but then you were playing along and you said no and then you’d play along, you know. And so that’s kind—that’s why it went as far as it did. [¶] . . . [¶]

“Jane Doe: —I was saying no the whole time.

“Defendant: Yeah. I’m sorry. [¶] . . . [¶]

“Jane Doe: So you can’t tell me why you were just so forceful and like holding me down?

“Defendant: Because . . . this may seem[] strange to you, but it . . . wasn’t really me that did that. . . . I’ve never seen that in myself, honestly. So I wasn’t—you know, I had a—I had a rough time that night. But I would—if like somebody had done that to any of my friends, I would’ve taken Chris’ position and I would’ve tried to fucking kill him. So that’s—that’s why I—I didn’t even fight Chris back. . . . I totally deserved to get my ass beat that night. Um—you know, I—I don’t know how I can . . . apologize to make you feel better, . . . I hope that you can forgive and—and—and not hate me, because I—I really am sorry. [¶] . . . [¶] Um—but if . . . you could’ve stood up and slapped me across the face, honestly, and that’s kind of what I was expecting. [¶] . . . [¶]

“Jane Doe: I didn’t—I was such in shock, I didn’t know what to do. [¶] . . . [¶] Like should I go to the police?

“Defendant: I’m going to say no, you definitely shouldn’t. I honestly don’t think that you would have a case because physically, nothing—well, I can’t say that. But I would appreciate it if you didn’t. . . . Um—what do you—what could I do for you? Is there anything that I can make up—make this up to you? [¶] . . . [¶]

“Jane Doe: Like you—you—you even locked me in the bedroom. . . .

“Defendant: No. No, I did not. [¶] . . . [¶] I locked the other people out. [¶] . . . [¶] You could’ve easily opened the door.

“Jane Doe: You—no. You held me down.

“Defendant: Right, . . . [¶] . . . [¶] . . . that is correct. [¶] . . . [¶]

“Jane Doe: Like you held me down. Like just admit it.

“Defendant: Yes, I know. All right? [¶] . . . [¶]

“Jane Doe: . . . I was still saying no. That’s all you need to know to stop. [¶] . . . [¶] That’s all I need to do to have you stop.

“Defendant: You—you are absolutely correct. . . . [¶] . . . [¶] [Speaking of Jane Doe’s parents] Are they going to try to pursue any legal action? [¶] . . . [¶] Do you believe in God? [¶] . . . [¶]

“Jane Doe: Yeah, I do believe in God.

“Defendant: Have you prayed recently?

“Jane Doe: No.

“Defendant: Start there. [¶] . . . [¶]

“Jane Doe: . . . Have you prayed?

“Defendant: Every day.

“Jane Doe: About this?

“Defendant: No, not technically.

“Jane Doe: Then you pray. [¶] . . . [¶] . . . Your hand was on my mouth and my throat and you even had your hand around my throat. [¶] . . . [¶] . . . I thought you were going to choke me. . . . [¶] . . . [¶] . . . [W]hy was [your hand] around my throat[?]

“Defendant: Because like I said, it’s just this power that, to try and get what I wanted . . . . [¶]

“Jane Doe: What did you want? [¶] . . . [¶]

“Defendant: Uh—I guess the simple answer is I guess I wanted you to suck my dick.

“Jane Doe: Yeah, you did that [to] me and it’s really tough and I wasn’t willing.

“Defendant: I know.”

Defendant’s sister Stacy testified in his defense. She testified that defendant is honest and truthful and respectful of women.

Defendant took the stand in his own defense. He admitted being at the party and being drunk. He said that he was talking to Doe and that she put her hand on his thigh. He kissed her and she kissed him back, “and it went from there.” When she kissed him she was “enthusiastic” and she did not try to push him off or tell him no. In fact, he had been a virgin. When he locked the door because he wanted some privacy, Doe did not protest, but stayed lying on the bed. He testified that things were “escalating” and he thought he could get, “like a blow job or something, you know, she was all over me.” He asked her for a “blow job” and she was hesitant, but she did it. He testified that he told her he was a virgin and he wanted to know what “it” felt like. He did not threaten her. He then gave her oral sex and put his fingers in her vagina. She seemed to enjoy it. He asked her for another “blow job” but she did not want to do the second one, so he stopped. He was really confused as to why she wanted to stop, but he stopped and there was no further sexual activity. He never told Nicole he did something he should not have. He did tell Chris that he was an evil man, but it was because everyone was asking him what he did to Doe, and he did not know what to say. He thought it would appease them. When Doe made the pretext call to him, he was at work, and he decided to just say he was sorry for everything so she would get off the phone. She made accusations he knew nothing about, but he just said he was sorry anyway.

DISCUSSION

I

Deputy Van Buren’s Interview

Defense counsel sought to introduce Deputy Van Buren’s recorded interview with Doe to argue that the questions he asked her were leading and suggestive. Defense counsel told the court he planned to argue that Doe fabricated the story with the assistance of Deputy Van Buren. The prosecutor argued that Deputy Van Buren was simply clarifying information he had already received from Doe in her initial statement.

At an in limine hearing, the court and parties went through each line defense counsel contended was suggestive. Defendant argues the court’s action in not allowing his counsel to question Deputy Van Buren about most of the interview questions removed important evidence concerning Doe’s credibility from the jury’s consideration. He argues his right to present evidence challenging Doe’s credibility is protected by the confrontation clause and the due process clause.

At trial, defense counsel established that Deputy Van Buren met with Doe and a friend at a McDonald’s restaurant parking lot and spoke with her 20 to 30 minutes to get some information as to what had happened. He did not want to conduct a full interview there, so they met again at the sheriff’s department and recorded the interview. Defense counsel questioned the deputy about a number of the questions he had asked Doe. These included several questions which, in a vacuum, might appear suggestive. They were: “You decided to go lay down, right[,]” “So you hear the door open or somebody come in[,]” “And did the light turn on or was it still dark[,]” “So you go into your room by yourself[,]” “I mean, is he grabbing your breasts[,]” “is he ripping your shirt off[,]” “was he pulling it down or pulling it up[,]” “[d]id he ever get his hand down your pants[,]” “Did his finger ever go inside of you[,]” “did your pants ever come off[,]” “during this whole thing you’re yelling . . . and trying to just tell him to stop[,]” and “at that point . . . does he grab your head and pull it towards his penis[.]”

On cross-examination, however, the prosecutor established that during the initial interview at McDonald’s, Deputy Van Buren obtained the information that Doe had gone to lie down in the bedroom because she was feeling intoxicated, that she had been by herself, that defendant had come into the bedroom and closed and locked the door, that he had pushed her back on the bed and grabbed her breasts, that he forced her to perform oral sex, that she said no and attempted to push him away as he forced her, that defendant pulled her pants and underwear down to her knees, and that defendant penetrated Doe’s vagina with his fingers. Because Deputy Van Buren had obtained this information before the recorded interview, the recorded questions were not overly suggestive.

Defense counsel did not argue in closing that Doe’s interview answers were not credible because Deputy Van Buren’s questions had been suggestive. Defendant now argues the trial court erred in excluding evidence of some of Deputy Van Buren’s questions to show that Doe was not credible.

The excluded questions of Deputy Van Buren have very little bearing on Doe’s credibility. The prosecutor successfully showed that the excluded questions were an attempt to summarize information the deputy had already elicited from Doe, rather than an attempt to suggest the answer the deputy wanted to hear. “[T]he trial court has wide latitude under state law to exclude evidence offered for impeachment that is collateral and has no relevance to the action. [Citations.] This exercise of discretion necessarily encompasses a determination that the probative value of such evidence is ‘substantially outweighed’ by its prejudicial, ‘confusing,’ or time-consuming nature. (Evid. Code, § 352 . . . .)” (People v. Contreras (2013) 58 Cal.4th 123, 152.) The trial court carefully considered each question defense counsel proposed to admit to support his argument that Doe had been led into a false statement, and allowed several of the questions to be asked. The trial court correctly concluded that Deputy Van Buren was simply prompting Doe to talk by repeating information, in the form of a question, that Doe had already given him. The trial court did not abuse its discretion when it found that the questions were not probative of Doe’s credibility. The questions were not suggesting the answers that Deputy Van Buren wanted to hear, but were summarizing Doe’s prior interview answers.

The application of ordinary rules of evidence does not infringe on defendant’s constitutional rights unless it prevents him from presenting relevant evidence of significant probative value. (People v. Cunningham (2001) 25 Cal.4th 926, 998-999.) We conclude the omitted interview questions were not of significant probative value, thus defendant’s constitutional claims must fail. Moreover, defense counsel did not use the questions that were admitted to argue that Doe had been led into a false statement. Those were questions the trial court found more suggestive than the questions that were excluded. “[A]s long as the excluded evidence would not have produced a ‘ “ ‘significantly different impression’ ” ’ of the witness’s credibility, the confrontation clause and related constitutional guarantees do not limit the trial court’s discretion in this regard.” (People v. Contreras, supra, 58 Cal.4th at p. 152.) The omitted questions, which were less suggestive than the admitted questions, would not have given a different impression of Doe’s credibility. The trial court did not abuse its discretion in excluding the evidence.

II

Exclusion of Defendant’s and Doe’s Character Evidence

Defendant filed an in limine motion to allow four witnesses to testify to his good character and Doe’s bad character. The offer of proof submitted with the motion stated that defendant’s sister would testify that defendant is respectful of women and that she (the sister) had been falsely accused by Doe of harassment. Defendant sought to admit the testimony of Cailey Carson, who would testify that she had been in an argument at school with Doe, and that Doe overreacted to the incident in which Carson pushed a backpack into Doe’s elbow. Carson also would testify about a time when she was driving a car with Doe as a passenger, and the car was rear-ended by another student. Doe claimed physical injuries, and encouraged Carson to sue. Defendant sought to admit the testimony of Laura Vance, who would state that she became involved in a romantic relationship with defendant after Doe’s sexual assault, and after charges were filed in this case. Her testimony would show that defendant was not sexually aggressive and does not take advantage of intoxicated women. Finally, defendant sought to admit the testimony of Morgan Bayard, a coworker of defendant’s who met him after Doe’s sexual assault and after charges were filed in this case. She would testify that defendant had always behaved like a gentlemen and never made any sexual advances.

The trial court excluded the testimony of Vance and Bayard. The court stated that their proffered testimony was of specific acts, and that the probative value was minimal at best, and outweighed by the potential prejudice and undue consumption of time. The trial court also excluded the testimony of Cailey Carson. The trial court stated that the backpack incident was the classic definition of battery, and was in no way indicative of Doe’s character. The trial court further stated it was undisputed that Doe and Carson were in a car accident, and there was no evidence Doe did anything other than go to the hospital. The court found there was no evidence that was indicative of moral turpitude or embellishment. The court also found that the probative value of Carson’s testimony was “miniscule” in comparison to the confusion and undue consumption of time.

The trial court allowed defendant’s sister to give her opinion as to defendant’s honesty and veracity, and to testify as to her observations regarding his respect to women. However, the trial court excluded the sister’s testimony regarding the incident of harassment.

Defendant now argues the trial court erred in excluding the testimony. The trial court instructed that defendant would not be guilty “if he actually and reasonably believed that the other person consented to the act.” Defendant refers to this as his “Mayberry defense.” Defendant argues the trial court excluded the character evidence that was the basis for his Mayberry defense.

Evidence Code section 1101, subdivision (a) provides that evidence of a person’s character in the form, inter alia, of evidence of specific instances of conduct, is inadmissible to prove conduct on a specific occasion. However, a defendant may offer character evidence “in the form of an opinion or evidence of his reputation” to prove his conduct was in conformity to his character. (Evid. Code, § 1102.) A defendant may introduce evidence of the victim’s character “in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct” to prove the victim’s conduct in conformity with her character. (Evid. Code, § 1103, subd. (a)(1).)

Even if evidence is otherwise admissible, the trial court has the discretion to exclude evidence if its probative value is substantially outweighed by the probability the evidence will necessitate an undue consumption of time, create undue prejudice, confuse the issue, or mislead the jury. (Evid. Code, § 352.) “Rulings under Evidence Code section 352 come within the trial court’s broad discretion and will not be overturned on appeal absent a showing of an abuse of that discretion.” (People v. Brooks (2017) 3 Cal.5th 1, 43.) There was no abuse of discretion in this case.

The trial court correctly concluded that Carson’s testimony was not relevant to Doe’s veracity, since the backpack incident had, in fact, been a battery, and there was no indication Doe had improperly reacted to the car accident. The trial court correctly concluded Carson’s testimony could have devolved into a minitrial on past occurrences, and in the end would have been minimally relevant, if relevant at all. The trial court also did not abuse its discretion in excluding defendant’s sister’s testimony that Doe had falsely accused her of harassment. The incident in question involved the sister and three friends going to Doe’s place of employment after Doe’s assault. The friends called Doe a bitch, and defendant’s sister said that Doe “fucked over everybody [defendant’s sister] knew.” As a result, Doe reported the incident to one of the detectives investigating her sexual assault claims. The trial court found nothing in the incident reflected on Doe’s character for veracity. We agree.

The court also properly exercised its discretion in excluding the testimony of Vance and Bayard. They would have testified that defendant treated them appropriately after Doe’s assault. Such evidence would have had minimal probative value, as defendant would have been careful to treat women appropriately after he had been charged in this case. The trial court did not abuse its considerable discretion in excluding their testimony.

III

New Trial Motion

Defendant filed a motion for new trial on the grounds the trial court improperly excluded the character evidence discussed above, improperly limited cross-examination of Deputy Van Buren’s leading questions discussed above, and for newly obtained character evidence. The newly obtained evidence consisted of letters of recommendation, letters from former girlfriends, and the report of John Kinkaid, Ph.D. The trial court denied the motion. As to the evidence defendant claimed was newly discovered, the trial court found, “it hasn’t been shown that they could not have been reasonably obtained and presented in the earlier trial of this matter.”

As to those evidentiary rulings we have determined were not error, we likewise hold there was no error in denying a new trial motion on the basis of those rulings. The remaining ground for the new trial motion was for newly discovered evidence. “A motion for a new trial on newly discovered evidence is looked upon with disfavor, and unless a clear abuse of discretion is shown, a denial of the motion will not be interfered with on appeal.” (People v. McDaniel (1976) 16 Cal.3d 156, 179.) The defendant has the burden of establishing that the evidence could not have been discovered with reasonable diligence in time for presentation at trial. (People v. Addington (1941) 43 Cal.App.2d 591, 595.)

The evidence defendant claimed was newly discovered was: (1) testimony of Vladyslava Burtseva that she had never seen any signs of sexual aggression in defendant; (2) testimony of Bianca Kroettinger that she had known defendant since he was nine years old attesting to defendant’s character; (3) testimony of Daniel Marus, defendant’s mother’s fiancée, attesting to defendant’s character; (4) Morgan Bayard, whose testimony the trial court had already excluded, attesting to defendant’s character; and (5) a forensic psychological evaluation from John Kincaid, Ph.D., concluding defendant displayed no significant psychopathology. Defendant made no showing that any of the evidence could not have been discovered with reasonable diligence prior to or during trial. Accordingly, the trial court did not abuse its wide discretion in denying the motion.

DISPOSITION

The judgment is affirmed.

/s/

BLEASE, Acting P. J.

We concur:

/s/

MURRAY, J.

/s/

DUARTE, J.