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■ People v. Cadogan , No. G040200

A jury convicted defendant Robert Lee Cadogan of forcible rape (Pen. Code § 261, subd. (a)(2)),[1] forcible oral copulation (§ 288a, subd. (c)(2)), attempted sodomy by use of force (§ 286, subd. (c)(2), § 664), and first degree residential burglary (§ 459).  The court sentenced defendant to 37 years to life in prison.  Defendant contends in his appeal that the court erred by admitting at trial evidence obtained at a conditional examination of his late wife, because defendant’s competency was in question at the time of the conditional examination.  Defendant also asserts the prosecution was unfairly allowed to attack his credibility with prior misdemeanor convictions. 

We reject both arguments and affirm the judgment.[2]  Trial courts have discretion to allow conditional examinations of dying witnesses to go forward, notwithstanding the suspension of criminal proceedings mandated by section 1368, subdivision (c).  The testimony taken at a conditional examination should be excluded from trial only if the defendant is subsequently found to have been incompetent at the time of the conditional examination.  Moreover, the court properly allowed the impeachment of defendant based on conduct involving moral turpitude.  Although defendant was improperly asked about his misdemeanor convictions rather than his prior conduct leading to misdemeanor convictions, defendant did not raise a timely hearsay objection to the prosecutor’s questions and is therefore foreclosed from seeking relief on appeal.  (People v. Wheeler (1992) 4 Cal.4th 284, 295-299 (Wheeler).)

FACTS

In the early morning hours of December 24, 2004, defendant entered the residence in which his victim was sleeping.  Defendant blocked the door of the room the victim was sleeping in, shoved a gloved hand in the victim’s mouth, and threatened to kill her.  Defendant put his penis in the victim’s mouth, attempted to penetrate her anus, and then inserted his penis into her vagina.  Defendant does not claim there was insufficient evidence to sustain any of his convictions, so we need not provide a comprehensive catalogue of the evidence presented at trial.  Instead, we will detail the relevant procedural history underlying defendant’s claims that certain evidence should have been excluded from his trial.

In February 2005, the court ordered criminal proceedings suspended based on defense counsel’s representation that he believed defendant might be mentally incompetent.  The court also ordered a psychological evaluation of defendant to occur.  In March 2005, the court received a report from a psychologist opining defendant was not competent to stand trial.  Defendant, however, refused to talk to the psychologist and insisted at the hearing he was competent to stand trial.  On that basis, the court appointed a second evaluation of defendant by a second psychologist.

In May 2005, the prosecution moved for a conditional examination of defendant’s wife, Paris Cadogan, on the grounds she was terminally ill with cancer and likely would not survive until trial.  Defendant opposed the motion, arguing the criminal proceedings had been suspended and the conditional examination should not go forward.  The court ordered the conditional examination to proceed:  “There’s no question that we may go through this exercise and ultimately the conditional exam not be admitted based on [defendant’s competency issues].  I absolutely agree with you.  On the other hand, if we don’t preserve the testimony it’s gone forever.”

The conditional examination of Mrs. Cadogan occurred on May 16, 2005.  Midway through the examination, defendant engaged in disruptive behavior and the court ordered defendant’s removal from the courtroom.  For the remainder of the conditional examination, defendant was locked in a holding cell in which he could listen to the examination while his counsel continued to participate.  Mrs. Cadogan provided testimony probative of defendant’s guilt.  For instance, she stated defendant fled from her home when the police arrived to question him, she described sexual characteristics of defendant matching testimony by the victim, and she explained defendant has a skin condition (vitiligo) which resulted in white patches on his hands and genitals (confirming the victim’s description).  Mrs. Cadogan died in June 2005.

The court granted several continuances of the civil competency trial in June and August 2005 to allow the prosecution time to have an expert examine defendant.  The court also granted a motion to compel defendant to submit to a psychological examination, based in part on defendant’s refusal to submit to previous attempts to examine him.  The court then granted two motions by defendant for continuances to retain new counsel.  The competency trial began in April 2006.  In May 2006, a jury found defendant to be competent to stand trial and the court reinstated criminal proceedings against defendant.

In July 2007, a second jury was impaneled and defendant’s trial on his alleged crimes began.  Defendant filed a motion seeking dismissal of the case based on the court having allowed the conditional examination despite the case having been suspended pursuant to section 1368, subdivision (c).  Defendant requested an evidentiary hearing in the written motion.  But at the hearing on the motion, defendant declined to present any new evidence, instead opting to submit his motion for dismissal based on his legal arguments.  The court denied defendant’s motion to dismiss and permitted the prosecution to play the videotape of Mrs. Cadogan’s conditional examination for the jury.

The court also allowed the prosecutor to cross-examine defendant concerning his criminal record.  The list of nine prior, out-of-state convictions included five misdemeanors and four felonies:  a misdemeanor conviction for forgery in 1984; a misdemeanor conviction for forgery in 1989; a felony conviction for theft in 1990; a misdemeanor conviction for possession of stolen property in 1994; a felony conviction for attempting to evade police in 1998; a misdemeanor conviction for possession of stolen property in 1999; a felony conviction for attempting to elude authorities in 2000; a misdemeanor conviction for theft in 2000; and a felony conviction for possession of stolen property in 2000.  Defendant objected before trial to the use of this evidence, claiming remote, out-of-state misdemeanors should not be used to impeach his credibility; the court overruled defendant’s objections.

Sentencing

Lastly, defendant asserts, and the People concede, that the court erred in imposing defendant’s sentence with regard to his attempted sodomy conviction.  The court designated defendant’s forcible rape conviction as the principal count, for which defendant received a sentence of 25 years to life.  The court then imposed full, consecutive terms of eight years for the forcible oral copulation count and four years for the attempted sodomy count.  The court chose the “aggravated term” for forcible oral copulation based on finding numerous factors in aggravation pursuant to California Rules of Court, rule 4.421, and specifically noted that “[o]rdinarily there is always some type of mitigating factor” but this “is one . . . where it is impossible for me to find such a mitigating factor.”  The court then described the attempted sodomy sentence as the “aggravated term of four years” in its comments on the record and the “UPPER term of 4 years and 0 months” in the minute order.  The court stayed imposition of defendant’s burglary sentence pursuant to section 654.

Forcible sodomy is punishable by three, six, or eight years in prison.  (§ 286, subd. (c)(2).)  “If the crime attempted is punishable by imprisonment in the state prison, the person guilty of the attempt shall be punished by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense attempted.”  (§ 664, subd. (a).)  One-half of the “upper” or “aggravated” term for forcible sodomy is four years.  Thus, it appears the court simply selected the upper-term sentence for attempted sodomy (four years). 

But “[t]he most fundamental limitation on consecutive sentencing is that the sentence for each subordinate term is one-third of the middle term prescribed for the crime.”  (3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Punishment, § 308, pp. 399-400; § 1170.1, subd. (a) [“[W]hen any person is convicted of two or more felonies . . . the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements . . . .  The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses”].)  Although certain sex crimes, such as forcible sodomy and forcible oral copulation, are not subject to the limitations of section 1170.1, subdivision (a), attempted forcible sodomy is subject to the limitation.  (See § 667.6, subd. (c); People v. Le (1984) 154 Cal.App.3d 1, 10-11.)

The middle term for attempted forcible sodomy is three years.  As noted by the People in their brief, the proper sentence for defendant’s attempted sodomy conviction is “one-third of the middle term of three years.”  Thus, defendant should have received a one-year consecutive term rather than a four-year consecutive term for his attempted sodomy conviction.
 

■ Held

Conviction for forcible rape and other crimes is affirmed where: 1) trial court did not err in admitting evidence obtained at a conditional examination of defendant's late wife as the court was exercising its inherent discretion in allowing the examination to proceed, and defendant was found to be competent at the time of the examination; and 2) the court properly allowed the impeachment of defendant based on his prior misdemeanor convictions involving moral turpitude, as defendant did not raise a timely hearsay objection when the prosecutor improperly asked about his misdemeanor convictions.
People v. Cadogan --5/20/09 CA4/3
People v. Cadogan --5/20/09 CA4/3-PDF

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