Filed 9/13/13 P. v. MacDougall CA4/1
                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or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.


                     COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                   DIVISION ONE

                                            STATE OF CALIFORNIA



THE PEOPLE,                                                          D062461

         Plaintiff and Respondent,

         v.                                                          (Super. Ct. No. SCD236710)

KYLE ROBERTSON MACDOUGALL,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Robert F. O'Neill, Judge. Affirmed.

         John L. Staley, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Seth Friedman and Randall D.

Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.



         A jury convicted Kyle Robertson MacDougall of attempting to rape an unconscious

person, attempting to rape an intoxicated person and assault with intent to rape. The court
sentenced MacDougall to three years formal probation, including a term of 365 days in

county jail. He appeals, contending the trial court erred when it (1) admitted his out of

court statements and (2) excluded certain photographs of the victim. He asserts that the

cumulative effect of these errors deprived him of due process. He also claims the trial

court erred when imposing the restitution fines. We reject his arguments and affirm the

judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       MacDougall and Rodolfo M. were Marines stationed at Marine Corps Air Station

Miramar in San Diego. Rodolfo lived with his girlfriend, Stephanie S., in a one-bedroom

apartment near the base. On the evening of August 25, 2011, Rodolfo, Stephanie, and Jose

Guzman walked to a bar from Rodolfo and Stephanie's apartment. At the bar, they were

joined by MacDougall and some other people. Stephanie said hello to MacDougall, but

did not otherwise have any conversation with him.

       Stephanie and Guzman became very intoxicated. When Rodolfo, Stephanie, and

Guzman decided to leave the bar, Rodolfo asked MacDougall how he was going to get

home (to the Marine base). MacDougall replied that he was going to walk. Rodolfoasked

MacDougall if he wanted to stay at his apartment because it was not safe for MacDougall

to walk to the base entrance. Rodolfo also asked Stephanie if MacDougall could stay at

their apartment and she agreed. Rodolfo, Stephanie, Guzman, and MacDougall then

walked back to the apartment.

       After arriving at the apartment, Stephanie vomited several times in the bathroom.

Rodolfo took off Stephanie's clothes and put her in the bathtub with cold water to try and

                                              2
sober her up. After helping Stephanie out of the bathtub, Rodolfo put her on an air

mattress on the bedroom floor and covered her naked body with a blanket. Rodolfo then

put blankets over MacDougall and Guzman who were sleeping in the living room.

Rodolfo lay near Stephanie and fell asleep.

      Rodolfo woke up to the sound of heavy breathing. He saw Stephanie lying on her

back with her arms at her sides and her legs spread apart. MacDougall was between

Stephanie's legs with his face by her breasts. MacDougall was thrusting his hips into

Stephanie's crotch, but Stephanie was not moving or reacting at all. Rodolfo yelled at

MacDougall to get off Stephanie. When MacDougall got up, Rodolfo saw that

MacDougall had an erect penis. Rodolfo yelled at MacDougall and had him leave.

      Rodolfo shook Stephanie awake, but she fell back asleep. After Rodolfo slapped

Stephanie awake, she asked what was going on. Stephanie cried when Rodolfo explained

that MacDougall was having sex with her. Stephanie dialed 911, but she hung up after

Rodolfo told her it was probably not a good idea to call the police yet because he wanted to

be sure of what he saw before he ruined someone's life. When the 911 dispatcher called

back, Stephanie said that everything was okay. Stephanie was still intoxicated and fell

back asleep.

      The following morning, Rodolfo and Stephanie discussed whether he should report

the incident and whether they should call the police. Rodolfo said he would support

whatever decision she made. Rodolfo went to work and eventually told Sergeant Thomas

Dailey what had happened. Someone called MacDougall over and Rodolfo angrily

confronted him.

                                              3
      After Rodolfo challenged MacDougall to tell Sergeant Dailey what had happened,

MacDougall replied he had sex with Rodolfo's girlfriend and she was passed out. Sergeant

Dailey asked MacDougall what he expected to happen when he came to work, and

MacDougall replied, "[G]et hit." Sergeant Dailey recalled that Rodolfo then hit

MacDougall two times on the cheek until he told Rodolfo to stop.

      After hearing that Rodolfo had reported the incident, Stephanie called 911 and

relayed that she believed she had been raped. A physical examination of Stephanie

revealed areas of redness on her neck and breast. Stephanie's vaginal area had a dried

white substance present. Stephanie was quiet and tearful during the examination. DNA

swabs were taken from Stephanie's mouth, vaginal area, breasts, and neck. MacDougall's

DNA was found on Stephanie's right breast. A test done on Stephanie's vaginal area

revealed some injury.

      A San Diego police detective later spoke with MacDougall. MacDougall stated that

he did not remember what happened at the apartment, but doubted his DNA would be in

Stephanie. MacDougall said he knew it was not right to have sex with an unconscious

person, but had no memory of having sex with Stephanie. MacDougall expressed remorse,

but did not know whether he had sex with Stephanie and did not think he had raped her.

MacDougall claimed he was unable to get an erection when he is " 'blackout drunk.' "

                                      DISCUSSION

                               I. General Legal Principles

      Generally, all relevant evidence is admissible. (People v. Champion (1995)

9 Cal.4th 879, 922.) Relevant evidence is that which has any tendency in reason to prove

                                             4
or disprove any disputed fact material to the outcome of the case. (Evid. Code, § 210;

undesignated statutory references are to this code.) A trial court has broad discretion in

determining the relevance of evidence, but lacks discretion to admit irrelevant evidence.

(People v. Hamilton (2009) 45 Cal.4th 863, 940.) Nonetheless, even relevant evidence

may be excluded if the trial court finds that its probative value is substantially outweighed

by its prejudicial effect. (People v. Champion, supra, at p. 922; § 352.)

       We review a trial court's ruling on the admissibility of evidence for abuse of

discretion. (People v. Williams (1997) 16 Cal.4th 153, 196–197.) " 'It is . . . well settled

that the erroneous admission or exclusion of evidence does not require reversal except

where the error or errors caused a miscarriage of justice. [Citation.] "A 'miscarriage of

justice' should be declared only when the court, 'after an examination of the entire cause,

including the evidence,' is of the 'opinion' that it is reasonably probable that a result more

favorable to the appealing party would have been reached in the absence of the error."

[Citations.]' [Citations.]" (People v. Fields (2009) 175 Cal.App.4th 1001, 1018.)

                   II. Admission of MacDougall's Statements to Rodolfo

A. Background

       MacDougall moved in limine to exclude the statements he made in front of Rodolfo

and Sergeant Dailey, claiming they were the result of coercion and taken in violation of

Article 31 of the Uniform Code of Military Justice. The trial court held a section 402

hearing to determine the voluntariness of MacDougall's statements, with the court hearing

testimony from MacDougall, Rodolfo and Sergeant Dailey.



                                               5
       MacDougall testified that after he went outside with Rodolfo, that Rodolfo pushed

him up against a wall and yelled at him for about 20 to 25 minutes. During that time

period, Rodolfo threatened to kill him and MacDougall believed that Rodolfo, who had a

black belt in the martial arts, would kill him. MacDougall admitted having sex with

Stephanie to temporarily defuse the situation. After he made this admission, Sergeant

Dailey asked him what he thought would happen and then Rodolfo hit him several times

until Sergeant Dailey separated the men. MacDougall claimed that he answered Rodolfo's

questions because he was afraid and because Sergeant Dailey outranked him.

       Rodolfo and Sergeant Dailey's statements regarding the confrontation were fairly

similar to MacDougall's. Sergeant Dailey, however, testified that he stepped outside about

three to five minutes after Rodolfo and MacDougall had gone outside. Sergeant Dailey did

not hear Rodolfo threaten to kill MacDougall and claimed that MacDougall did not appear

to be afraid.

       Based on the evidence and the totality of the circumstances, the trial court

concluded that MacDougall's statements during the "highly charged" confrontation were

voluntary. It specifically found that Rodolfo's threat of violence and Sergeant Dailey's

rank did not render the statements involuntary.

B. Analysis

       MacDougall claims the evidence did not support the trial court's finding that his

statements were voluntary. He asserts that his admissions to Rodolfo and Sergeant Dailey

were involuntary because they were the result of threats, coercion or violence. He

contends a due process violation occurred because Rodolfo and Sergeant Dailey were state

                                              6
actors or agents. He claims that even if Rodolfo and Sergeant Dailey acted as private

parties, that his coerced statements should have been excluded as involuntary and

unreliable.

       MacDougall's arguments rely on his claim that the trial court erred in finding that

his statements were voluntary and not the product of threats, coercion or violence. As a

general matter, we accept the trial court's resolution of factual issues when it is supported

by substantial evidence, and independently review its legal conclusions. (People v.

Gonzales and Soliz (2011) 52 Cal.4th 254, 284 [alleged violation under Miranda v.

Arizona (1966) 384 U.S. 436].) Our high court in People v. Berve (1958) 51 Cal.2d 286

(Berve) stated that a reviewing court has a "duty to examine the uncontradicted facts to

determine independently whether the trial court's conclusion of voluntariness was properly

found." (Id. at p. 290.) At first blush, Berve appears to set forth a different rule.

Critically, however, the evidence in Berve was "uncontradicted" (ibid.), which is not the

case here.

       After considering the evidence and the circumstances, the trial court found that

MacDougall's statements were voluntary and that military rank was not used to force his

response. Our review of the testimony of these witnesses shows substantial evidence

supported these findings. Namely, Sergeant Dailey did not hear Rodolfo threaten to kill

MacDougall. Even assuming Rodolfo had threatened to kill MacDougall, Sergeant Dailey

testified that MacDougall did not appear to be afraid. Other than MacDougall's testimony

that he answered Rodolfo's question "to a degree" because Sergeant Dailey outranked him,

there is absolutely no evidence that Sergeant Dailey used his position to force MacDougall

                                               7
to answer Rodolfo's questions. Moreover, the trial court found Rodolfo and Sergeant

Dailey's testimony to be credible. On appeal, we do not reweigh evidence or reevaluate a

witness's credibility. (People v. Nelson (2011) 51 Cal.4th 198, 210.)

       Because the evidence supported the trial court's findings regarding the voluntariness

of MacDougall's statements, we reject his argument that the admission of these statements

resulted in a due process violation. Even assuming the trial court erred in admitting

MacDougall's statement, that he "had sex" with Stephanie, MacDougall has not shown that

the admission of this evidence prejudiced him whether we review the issue under People v.

Watson (1956) 46 Cal.2d 818, 836 [whether it is reasonably probable that a result more

favorable to the appellant would result in the absence of the error] or under Chapman v.

California (1967) 386 U.S. 18, 24 [whether the error was harmless beyond a reasonable

doubt].

       Significantly, the jury found MacDougall not guilty of raping an intoxicated person

and not guilty of raping an unconscious person. Thus, the jury clearly disbelieved

MacDougall's admission to Rodolfo that he "had sex" with Stephanie. Rather, the jury

found MacDougall guilty of attempting to rape an intoxicated person, attempting to rape an

unconscious person and assault with intent to commit rape. Rodolfo's testimony regarding

his observations of MacDougall's actions and Stephanie's condition combined with the

physical evidence found on Stephanie, overwhelmingly supported these findings. Thus,

the assumed error was harmless.




                                             8
                               III. Exclusion of Photographs

A. Background

       MacDougall moved in limine to admit three photographs taken from Stephanie's

Facebook page about a month after the incident. The pictures depicted Stephanie, Rodolfo

and others at a party where there was drinking going on. One photograph showed

Stephanie in a group hug where she and another woman were grabbing the breast of a third

woman. Another showed Stephanie "grinding" her pelvis against Rodolfo's buttocks. The

last photograph showed Stephanie "grinding" her pelvis against another female.

       MacDougall argued that the photographs were relevant to impeach Stephanie

regarding the alleged emotional distress she suffered. He also argued that the photographs

revealed Stephanie's propensity to rub herself against people in a party setting and could

explain why his DNA was found on Stephanie's breast.

       After the prosecutor and the court viewed the photographs, the court allowed

MacDougall to introduce the photograph depicting Stephanie grinding against the buttocks

of another woman as it related to Stephanie's credibility. It excluded the other photographs

as highly prejudicial, not relevant to the night in question, and potentially confusing to the

jury. It also found that these photographs did not specifically relate to credibility and

raised issues associated with sexual promiscuity that is prohibited.

       During trial, Rodolfo testified that Stephanie would get "clingy" with him when

intoxicated. When shown the one admitted photograph, Rodolfo testified that Stephanie

was the designated driver on that evening and was not drinking. He also agreed that

Stephanie was "clinging" on the woman in front of her, but explained that the woman was

                                               9
Stephanie's best friend who was really drunk and that Stephanie had just been holding her

up before the picture was taken.

       MacDougall asked the court to reconsider the exclusion of the two smaller

photographs because the photo showing Stephanie grabbing the breast of another female

should be admitted as impeachment because she was "clinging" to the female in that

picture. Rodolfo testified she was not intoxicated when the photo was taken and that she

was only clingy when she was intoxicated. The court rejected the argument and confirmed

its prior ruling to exclude the two photographs.

B. Analysis

       MacDougall contends the trial court committed prejudicial error by excluding the

two photographs because they were inconsistent with Stephanie's claim that she had been

the victim of an emotionally traumatic sexual assault and they would have impeached

Rodolfo's testimony that Stephanie became "clingy" only when she was intoxicated. We

conclude the trial court did not abuse its discretion in excluding the photographs under

section 352.

       The photographs had minimal probative value to undermine Stephanie's credibility

about the incident because they were taken weeks after the incident with MacDougall.

This slight probative value was far outweighed by the prejudice the photographs would

have caused to confuse the issues for the jurors. Contrary to MacDougall's suggestion,

exclusion of the two photographs did not interfere with his constitutional rights to present a

defense or confront the witnesses against him. MacDougall had a full and complete

opportunity to impeach Stephanie's credibility about the emotional trauma she suffered

                                             10
based on the photograph that the court admitted. In any event, the erroneous exclusion of

evidence having only slight probative value or on a minor or subsidiary issue does not

violate a defendant's federal constitutional rights. (People v. Cunningham (2001) 25

Cal.4th 926, 999.) We deem the emotional trauma suffered by Stephanie to be a secondary

issue as it is not an element of any of the charged crimes.

       MacDougall's argument that the photographs would have impeached Rodolfo's

testimony that Stephanie became "clingy" when she was intoxicated misstates Rodolfo's

testimony. Rodolfo testified at trial that Stephanie got "clingy" with him when intoxicated.

He never testified that this only occurred when Stephanie was intoxicated, nor did he claim

that Stephanie never became "clingy" with others while not intoxicated. Moreover,

Rodolfo never defined what the term "clingy" meant. We agree with the Attorney General

that the impeachment value of the photograph showing Stephanie in a group hug with four

other people where she and another woman are touching the breast of another woman was

minimal. (People v. Ayala (2000) 23 Cal.4th 225, 301 [" '[T]he latitude section 352 allows

for exclusion of impeachment evidence in individual cases is broad. The statute empowers

courts to prevent criminal trials from degenerating into nitpicking wars of attrition over

collateral credibility issues.' "].)

                                       IV. Cumulative Error

       MacDougall argues that the cumulative effect of the alleged errors deprived him of

his due process right to a fair trial. Because we have rejected his individual arguments on

the merits, we conclude the cumulative error doctrine is inapplicable. (People v. Watkins

(2012) 55 Cal.4th 999, 1036.)

                                               11
                                    V. Restitution Fines

A. Background

       MacDougall committed the offenses in August 2011. At sentencing, the trial court

stated that the restitution fine (Pen. Code, § 1202.4, subd. (b)) and the probation revocation

fine (Pen. Code, § 1202.44) would be $240 each. The probation officer then noted that the

$240 amount only applied to offenses committed after January 1, 2012. Accordingly, the

trial court changed the fines to $200 each. The order granting probation and the court

minutes listed the fine amounts as $200.

B. Analysis

       MacDougall contends that the ex post facto clause requires that the restitution fine

and the parole revocation fine be reduced to $200 each because he committed the current

offenses before January 1, 2012, when the amount of the fines increased from $200 to

$240. Here, there is no ex post facto violation as the trial court properly imposed $200

fine amounts.

                                       DISPOSITION

       The judgment is affirmed.



                                                                       MCINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.



                                             12
