People v. Idris Malik Record

1

THE PEOPLE, Plaintiff and Respondent, v. IDRIS MALIK RECORD, Defendant and Appellant.

H048100

California Court of Appeals, Sixth District

March 2, 2023

NOT TO BE PUBLISHED

(Santa Clara County Super. Ct. No. B1794389)

LIE J.

R.D was attacked in her apartment by an intruder who forcibly subdued her, dragged her into her bedroom, and sexually assaulted her, eventually fleeing. A jury convicted Idris Malik Record, R.D.'s neighbor, of burglary, misdemeanor assault, forcible sexual penetration, and kidnapping. On appeal, Record argues that (1) there was insufficient evidence to support the kidnapping conviction, (2) the sexual penetration conviction was fatally inconsistent with his acquittal on the charge of assault with intent to commit the same sex offense, (3) the trial court erred by excluding evidence that he was not the source of epithelial cell DNA that was found on R.D.'s underwear, and (4) the trial court violated his constitutional right to be personally present at critical stages of the proceedings when it discussed limitations on his testimony. In a supplemental brief, he also argues that Assembly Bill No. 518 (2021-2022 Reg. Sess.) retroactively applies to his case and requires reversal of the judgment.

We affirm the judgment.

I. BACKGROUND

A. The Information

On May 31, 2018, the Santa Clara County District Attorney filed an information charging Record with assault with the intent to commit a specified sex crime during the commission of a first degree burglary (Pen. Code, § 220, subd. (b); count 1),^[1] sexual penetration by force (§ 289, subd. (a)(1); count 2), kidnapping to commit a sexual offense (§ 209, subd. (b)(1); count 3), and criminal threats (§ 422; count 4). As to counts 1 and 2, it was alleged that Record personally inflicted great bodily injury (§§ 12022.8, 1203, subd. (e)(3)). And as to count 2, it was alleged that Record committed the offense during the commission of a burglary with the intent to commit a sexual offense within the meaning of the "One Strike" law (§ 667.61, subds. (a) &(d)).

B. The Prosecution's Case

1. The Offense

R.D., a middle school teacher, lived alone in an apartment located in a two-story complex in Sunnyvale. Her approximately 650-square foot unit was on the top floor, accessible by an exterior staircase. Her front door opened onto the living room, which was adjacent to the kitchen. Her bedroom, to the rear of the unit, had a window overlooking the two-story drop to the ground. The distance from R.D.'s living room couch to her bedroom was approximately five to eight feet. R.D. knew the couple who lived in an adjacent two-story unit that shared a wall with her bedroom, but she was unfamiliar with the rest of the complex's tenants.

On October 10, 2017, R.D. fell asleep on her living room couch while watching television. Her living room blinds were closed, though movement and light within the apartment could be detected from outside at certain angles. She was wearing a shirt, underwear, and a FitBit.

According to R.D.'s FitBit, it was 11:49 p.m. when she fell asleep and 5:37 a.m. the next morning when she awoke. On waking, she noticed that everything was dark; the television and lights were off, but she could see "a figure rushing" toward her. The intruder sat on her midsection and pressed something-possibly a pillow and a sweater- over her face. The pressure was great enough to make R.D. feel like her throat was closed and she could not breathe. She turned her head to the right and tried to scream, "Motherfucker, stop. Asshole, stop." Her assailant replied, "Shut up. Shut up or I'll kill you."

R.D. reached up with her left arm and tried to scratch her assailant. She felt what seemed like a Bluetooth device around his neck and tried to click its buttons. R.D. felt herself being lifted from behind, and she could no longer touch the ground. The man had his arm around her throat and was moving her away from the couch. R.D. tried to claw behind her and at the man's arm to get back onto the ground.

R.D. could tell that her assailant was moving her toward her bedroom, which made her "[m]ore afraid." To keep him from putting her face-down on the bed, she started pushing against the bed with her arms and legs. She urinated on herself during the struggle and told the man that she had urinated, but he did not let go of her. R.D. could feel her shin and leg scrape the metal edge of the bed frame. Her attacker's arm still around her throat, R.D. asked to go clean up.

R.D. then felt the man's hand go under the bottom of her shirt and into her underwear. Crouched over the edge of her bed, with her attacker right behind her, R.D. felt the man's finger go "inside of [her]." In a surge of energy, R.D. pushed off the bed, ending up on the floor. The man straddled her chest, and she felt more material over her face, smothering her and forcing her face to one side. R.D. twisted her lower body and tried to buck the man off her. As she tried to call for help, her attacker punched her in the ribs, and she heard him tell her to "shut up."

Still trying to shout, R.D. lost consciousness. When she came to, she was still on the floor with the man still straddling her, but her body had been rotated so her head was now in the direction of the rear window. She had no knowledge of how long she had been out. R.D. screamed for help. At R.D.'s scream, the man ran out of the apartment.

2. The Police Investigation a. At the Scene

When officers arrived about 6:00 a.m., R.D. was crying, her voice seemed raspy and hoarse, and her face looked swollen. R.D. told officers that her assailant was a "large man" wearing a Bluetooth device, a dark hooded sweatshirt, and jeans with a belt or something "really tight." She thought that the man might have been Hispanic based on his accent, but she had never been able to make out his face. R.D. reported that she had scratched her assailant.

In a canvass of R.D.'s neighbors, police spoke with a tenant in apartment 4-the unit sharing a wall with R.D.'s bedroom-who reported hearing someone in a hurry to leave and a car starting at around 5:30 or 5:45 a.m.

Around 6:26 a.m., an officer saw Record walking along the driver's side of a car toward the stairwell in the parking garage. Record had a cut or scratch on his face. He also had a shirt in his hand. Record told the officer that he had just left for his job as an electrician but returned on realizing he had forgotten his work uniform. While being questioned, Record became increasingly nervous and appeared eager to leave. Record initially said the cut on his face was from shaving. But Record had a five o'clock shadow and did not look like he had shaved that morning. Record then attributed the cut to him "scrubbing" his face really hard in the shower that morning. When asked earlier for a detailed timeline of his activities since the night before, however, Record omitted the fact that he had taken a shower.

In Record's car, officers found a gray sweatshirt and a pair of jeans with a Bluetooth headset and charger in the pocket. Police never found a hoodie, but the gray sweatshirt had a large black collar.

R.D. was unable to identify Record and had never seen him around the apartment complex before.

b. Record's Post-Arrest Statements

Interviewed at the police station post-arrest, Record said that a call or text from his wife woke him shortly before 6:00 a.m. and that he left for work shortly after waking. From the parking garage, he saw that R.D.'s door was open, so he went up to her apartment to tell her about her door.

Record said "hello" or knocked before he went inside. It was dark inside the apartment, and Record saw R.D. sleeping on the couch. When he approached her, R.D. woke up and became hysterical. Record tried to restrain her and told her to shut up. Record said that he picked her up from behind with his arm around her throat and dragged her into her bedroom.

Record initially said that he pushed her into her bedroom, locked the door, and left. He later said that R.D. continued to fight and struggle with him, but that at one point R.D. stopped struggling and calmed down, to the point that Record became concerned. Once satisfied that R.D. was still breathing, however, Record started to leave. He then decided to go back to her, but she "woke up" and started to yell again. R.D. held onto him to prevent him from leaving.

Record said that he told R.D. to be quiet, fled the apartment, went down the street, and got into his car. He then drove around to a stoplight. He decided to go back to the apartment so he could tell R.D. that everything was just a misunderstanding. Record denied that he touched R.D. in a sexual way.

Record was adamant that in R.D.'s apartment he had been wearing the same clothes-white shirt, blue sweatpants, and flip-flops-that he had been wearing when officers first stopped him; he also told officers that he had been wearing the blue uniform shirt that he had in his hand when first contacted by the officers.

3. SART Examination and DNA Evidence

Nurse Linda Richards, an expert in the collection and preservation of sexual assault evidence, conducted R.D.'s Sexual Assault Response Team (SART) examination. Richards noted a red spot with a darker red spot in the center on R.D.'s perihymenal tissue. Richards then applied toluidine blue gel and reexamined R.D. with a colposcope. During this examination, Richards saw an abrasion from the bottom of the vaginal opening, near the posterior fourchette, on the labia minora and the perihymenal tissue. She also saw an abrasion in the anal area. Richards opined that these injuries were consistent with penetration.

R.D indicated in the examination that she had not had intercourse within five days. R.D. had a Nuvaring...