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People v. Beaudoin1/4/2005
trickland v. Washington (1984) 466 U.S. 668, 690, 694 [80 L.Ed.2d 674, 695, 698].
The Aranda-Bruton rule prohibits the admission of a defendant's out-of-court statement that incriminates a co-defendant who did not have the opportunity to cross-examine the declaring defendant. (People v. Aranda, supra, 63 Cal.2d 518; Bruton v. United States, supra, 391 U.S. 123.) Beaudoin's statement he helped Hurst carry the drugged victim three times because Hurst "wanted to take her," a young woman for whom he had "had the hots . . . from day one," implicates Hurst in criminal conduct. It implies Hurst directed Beaudoin to help kidnap Debra.
Hurst next argues, without citation to authority, he did not have an opportunity to cross-examine Beaudoin about the alleged statement. He claims he could not compel Beaudoin to take the stand again after Beaudoin had finished testifying. We are not convinced.
When a defendant takes the stand, he waives his privilege against self-incrimination, and may be cross-examined on any matter to which he expressly or impliedly testified on direct examination or that is relevant to impeaching his credibility as a witness. (People v. Ing (1967) 65 Cal.2d 603, 610.) His waiver extends for the proceeding in which he testified. (People v. Lopez (1980) 110 Cal.App.3d 1010, 1020.) The trial court thus has discretion to permit his recall for further cross-examination even though he has already rested his case. (People v. Rosoto (1962) 58 Cal.2d 304, 352, disapproved on another ground in People v. Haston (1968) 69 Cal.2d 233, 250, fn. 22.) Hurst has not shown he was denied this opportunity to cross-examine Beaudoin and, thus, has not shown counsel's failure to object to the statement violated constitutional standards of performance.
Even were we to conclude counsel erred by not recalling Beaudoin to the stand, counsel's actions did not result in prejudice. To establish ineffectiveness of counsel, it must be shown, inter alia, that "it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings. [Citations.]" (People v. Lewis (1990) 50 Cal.3d 262, 288.) Even if the statement had not been admitted, there is no probability the result would have been different. The jury rejected evidence suggesting the defendants forcibly raped Debra and raped her in concert. Instead, it determined defendants each engaged in an act of sexual intercourse where the victim was prevented from resisting by an intoxicating or controlled substance, and the defendants knew or should have known of this condition. (Pen. Code, § 261, subd. (a)(3).)
Defendants admitted they knew Debra was under the influence of Ecstasy. The medical and DNA evidence strongly supported Debra's testimony that defendants had sexual intercourse with her. Moreover, Mindi Jones testified she saw Hurst carrying Debra over his shoulders, saw Beaudoin carry Debra upstairs into the apartment, then heard a woman scream, "Stop, leave me alone."
Seen from the light of this evidence, Beaudoin's statement that he carried Debra three times because Hurst wanted to take her and had the "hots" for her duplicated the evidence already in the record. Hurst himself had been seen carrying Debra. Had Beaudoin's statement not been read before the jury, there is no likelihood the jury would have reached a different conclusion.
IV. Sentencing under Penal Code Section 667.6
Defendant Hurst claims the trial court erred by sentencing him under Penal Code section 667.6 to separate consecutive terms on his two convictions for rape by use of drugs (Pen. Code, § 261, subd. (a)(3)). He claims Penal Code section 667.6 does not apply to him
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