People v. Weathersby

1

THE PEOPLE, Plaintiff and Respondent, v. KENNETH LEE WEATHERSBY, Defendant and Appellant.

A163331

California Court of Appeals, First District, Third Division

March 8, 2023

NOT TO BE PUBLISHED

(Solano County Super. Ct. No. VCR232498)

FUJISAKI, J.

A jury convicted defendant Kenneth Lee Weathersby of numerous sex offenses and found true multiple-victim and kidnapping allegations under the "One Strike" law. The trial court sentenced defendant to consecutive indeterminate and determinate terms.

On appeal, defendant argues: (1) the trial court abused its discretion in denying his requests for a continuance and for a mistrial; (2) the court erred in denying his motion under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); (3) the prosecutor committed misconduct; (4) the court wrongly excluded evidence; (5) the court erred in denying his post-trial motion to compel discovery; and (6) the matter should be remanded for resentencing due to Senate Bill No. 567 and Assembly Bill No 518. We agree that a remand for resentencing is required due to amendments made by Senate Bill No. 567, but reject the remainder of defendant's arguments. We also conclude that corrections to the abstract of judgment must be made.

Factual and Procedural Background

A jury convicted defendant of the following offenses: kidnapping to commit oral copulation and rape (Pen. Code, § 209, subd (b)(1),^[1] counts 1 and 7); forcible rape (§ 261, subd. (a)(2), counts 2 and 10); forcible oral copulation with a minor over the age of 14 (§ 288a, subd. (c)(2)(C), counts 3, 4, 5); criminal threats (§ 422, count 6); and forcible oral copulation (§ 288a, subd. (c)(2)(A), counts 8 and 9). Counts 1 through 6 involved victim P.B., while counts 7 through 10 involved victim S.S. The jury also found true the following allegations: defendant personally used a firearm within the meaning of section 12022.5, subdivision (a)(1) as to count 6, and within the meaning of section 12022.53, subdivision (b) as to all the remaining offenses, and One Strike multiple-victim and kidnapping allegations (§ 667.61, subds. (d)(2), (e)(1) &(4)) as to the forcible rape and forcible oral copulation counts. At a subsequent bench trial, the trial court found true that defendant had one prior strike conviction (§ 667, subds. (b)-(i)) and one prior serious felony conviction (§ 667, subd. (a)).

Pursuant to the One Strike law, the trial court sentenced defendant to consecutive terms of life without the possibility of parole on counts 2 through 5, and 50 to life for counts 8 through 10. The court imposed a consecutive six-year determinate term on count 6. The court imposed additional determinate terms for the various firearm enhancements, but stayed all of them except for 20 years imposed on counts 2 and 8. The court imposed sentences for counts 1 and 7, but stayed them pursuant to section 654, and also stayed imposition of the prior conviction enhancement under section 667, subdivision (a)(1).

The following briefly summarizes some of the trial evidence.

A. The Prosecution's Case

The evidence against defendant included the following. S.S. was 19 years old and P.B. was 17 years old when they were separately attacked by defendant. Both victims testified about the crimes and identified defendant in lineups and in court. Defendant's DNA was found on a condom in the alley where he sexually assaulted S.S. and on the swab of S.S.'s clitoral hood. P.B. took police to defendant's home, where his car-the same one used during the crimes against her-was parked in the driveway and found to contain P.B.'s fingerprints. There was a video of P.B. escaping from defendant's car. The victims accurately described items belonging to defendant and his appearance, and P.B. accurately described the appearance of tattoos and moles on defendant's body and bumps on his penis.

B. The Defense Case

The defense presented little evidence of its own and focused instead on questioning witnesses about the police investigation and certain discrepancies between the prosecution DNA analyst's original and "clarifying" reports.^[2] In particular, the defense questioned Detective Mathew Mustard at length about the discrepancy in the DNA reports and suggested he interfered with the analyst's reporting of this information. The defense also questioned Mustard about prior criticism he received from the media for not believing a sexual assault victim in a different case.

Discussion

A. Defendant's Requests for a Continuance and a Mistrial

Defendant contends the trial court abused its discretion in denying his midtrial requests for a continuance and for a mistrial. The following are the facts underlying this claim.

1. Additional Facts

The following events all occurred in 2020. Jury selection in this case occurred in late February, and the evidentiary portion of the trial began on March 4. On March 11, the trial court indicated there was not much evidence left, but because of witness availability issues, the court would recess until March 19. The court anticipated it would instruct the jury and hear closing arguments the morning of March 20.

On March 18, expressing concern that proceeding with the trial would be unsafe due to the unfolding COVID-19 pandemic, defense counsel asked the court to recess the trial until a time when they could be "in a more stable position," or to declare a mistrial given that a recess "might have no known duration." The prosecutor asked the court to discuss the situation with the jurors, and to proceed with trial if possible. On the record, the court called each juror and discussed the prospect of proceeding with trial and the precautions being taken at the court in relation to the pandemic. Two jurors (one an alternate) expressed they were willing though uncomfortable coming to court because of familial health concerns, but the remainder expressed they were willing and comfortable with proceeding. Though it viewed both parties' requests as reasonable, the court tentatively ruled the trial would proceed and it would excuse the two jurors who expressed health concerns.

The next day, March 19, the court and parties discussed the fact that the prior evening, the Solano County Public Health Officer issued a countywide shelter at home order that excluded essential court services. The court denied defense counsel's renewed request for a continuance, noting the People wished to proceed, and it excused the two jurors who expressed health concerns. Defense counsel asked the court to tell the jury that defendant was not requesting a speedy trial; the court denied that request without prejudice.

On March 20, defense counsel again requested postponement of the trial, and the court again denied it. The court indicated its decision was based on its weighing various considerations, such as the fact that they were on the last day of trial; the two young victims had come to testify about the crimes; despite the shelter in place order, various businesses and organizations were exempt; and the jurors were screened and wished to be there, as did family members and the public. As the court predicted, the evidentiary portion of the trial concluded that day, and the court instructed the jury^[3] and heard closing argument from the prosecutor. Due to insufficient time, the defense could not present closing argument, and the court recessed for the weekend and until March 24.

On Monday, March 23, however, the Presiding Judge of the Solano County Superior Court ordered the trial suspended until April 24. That same day, the Chief Justice of California, in her capacity as Chairperson of the Judicial Council, issued an order generally suspending jury trials statewide for 60 days. On April 21, after the defense filed another motion to continue, the parties stipulated to postponing further proceedings until May 20.

On May 18, defense counsel moved to continue the proceedings to June 22, noting that on April 29, the Chief Justice issued an order permitting an extension of the 60-day jury trial suspension for an additional 30 days.^[4] On May 20, the trial court denied the request for a continuance. The court noted it reached out to all the jurors on May 18 and discussed the precautions being taken, and all the jurors indicated they were ready and available to proceed. All but one of the jurors appeared on May 20, and the court replaced the missing juror with an alternate. The court told the jury that trial was proceeding because the work of the courts needed to go on. The court asked the jurors if anything about the pandemic or the last 60 days would affect their ability to be fair to the parties, and none indicated anything would. All jurors also indicated they, and those close to them, had not tested positive for COVID. Moreover, none of them felt they could not pay attention, none wanted any extra safety measures, none were contacted to discuss the case, none read about the case in the media, and none would hold their required presence at the trial against either the prosecution or defendant.

Defense counsel then gave his closing argument, spending a lengthy portion of it arguing that Detective Mustard had caused the late disclosure of the fact that defendant's DNA was excluded from P.B.'s lip swab minor profile. The prosecutor gave her rebuttal, and after the jury retired to deliberate, defense counsel moved for a mistrial based on "cumulative error." Defense counsel claimed, among other things, that the court would not allow him to question the jurors or give them a questionnaire when the trial resumed, and the jurors appeared frightened and tense while listening to argument and could not have normal deliberations. The court denied the requested mistrial,...