Opinion
A150492
06-25-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO DETRINIDAD, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. 224300)
Roberto Detrinidad appeals from a conviction of assault with intent to commit a sexual offense during commission of a residential burglary. He contends his conviction must be reversed due to trial court errors in refusing his request for a jury instruction on mistake of fact, declining to reopen closing argument after additional instructions were given in response to a question from the jury during deliberations, and refusing to bifurcate trial of an enhancement, and due to prosecutorial misconduct in closing argument. We affirm.
STATEMENT OF THE CASE
Appellant was charged with assault with intent to commit a sexual offense during commission of a residential burglary (Pen. Code, § 220, subd. (b)) (count 1); sodomy of an unconscious person (§ 286, subd. (f)) (count 2); sexual penetration of an unconscious person (§ 289, subd. (d)(1)) (count 3); and residential burglary (§ 459) (count 4). It was alleged in connection with count 2 that appellant committed the offense with knowledge that he had acquired immune deficiency syndrome (AIDS) within the meaning of section 12022.85. It was further alleged that appellant committed a violent or serious felony while on felony probation (§ 1203, subd. (k)), having been convicted of assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)) in July 2012. The separate count of residential burglary was subsequently dismissed on the prosecutor's motion at the conclusion of the evidence.
Further statutory references will be to the Penal Code unless otherwise indicated.
After a jury trial, appellant was found guilty on count 1. The jury could not agree on a verdict as to counts 2 and 3; the court declared a mistrial as to those counts and they were later dismissed. Appellant filed a motion for new trial, which was denied. Appellant was sentenced to a prison term of life with the possibility of parole. This timely appeal followed.
STATEMENT OF FACTS
In August 2013, Miranda P. had recently moved to San Francisco and was temporarily living with her friend Curtis Hefley in his apartment on the top floor of a three or four story building on Sacramento Street. On August 8, they returned to the apartment together around 4:00 a.m., after finishing bartending shifts and going out for breakfast. Miranda P. noticed a man across the street from their building whom she had not seen before, "pacing back and forth, kind of jittery." He was still there as she smoked a cigarette in a chair by the window of the apartment overlooking the street, and she "felt like he may have noticed [her] noticing him." She did not make any gesture toward him. She and Hefley watched TV, Hefley "passed out" in an oversized chair by the bed, and Miranda P. fell asleep on the bed.
Miranda P. woke up feeling "like someone was pushing on my anus," a "breaking of the seal" similar to the feeling of having a suppository inserted into her anus. It was still dark outside, the covers were not on her and she felt disoriented. Trying again, she was able to push herself up to her hands and knees; she felt cold, realized her pajamas and underwear were down around her knees and her back side was wet, and, reaching back, felt something "sticky," with a "[g]el kind of texture." She saw the back of a man walk out of the room. She later told the police the man she saw walk out did not match the description of the man she had seen across the street, although she emphasized at trial that it was the middle of the night and she was not wearing her glasses.
Miranda P. yelled to Hefley, who woke up, ran out and checked the apartment, but did not see anyone. Hefley testified he was awakened by Miranda P. screaming in a "terrified" manner, "He just left." He found the front door of the apartment closed and unlocked, which was how he kept it; in a small room off the kitchen, the door to the trash chute was open and the back door, which led to a back staircase connecting the apartments to the courtyard, was unlocked but closed.
Miranda P. testified that her anus was sore for about three days. She did not immediately report the incident to the police because she did not know how to explain what happened, was frightened, and was trying to convince herself that nothing had happened. After the incident, she stayed for a few days at a friend's house in Concord. Initially thinking she was not going to make a police report, she washed the clothes she had been wearing, then immediately regretted doing so. She called the police on August 11 and was interviewed and taken to the hospital for an examination. Police officers took the pajamas and underwear she had been wearing during the incident, as well as the bed sheet and comforter. It was subsequently determined that appellant's DNA matched DNA found on the bed sheet and comforter. Miranda P. did not know appellant. She testified that she was not able to live at Hefley's apartment after the incident and saw a therapist once a week until January 2016, when she left San Francisco for good.
Appellant was arrested in September 2014, following an investigative lead developed from a DNA match in the CODIS system. Shown a photograph of the location on Sacramento Street and a map indicating the location of the building, he denied having been there even after the police told him they had evidence to the contrary. He had a 2012 conviction for assault by means likely to produce great bodily injury for which he was on probation at the time of the present offense.
In October 2013, between the date of the offense and his arrest on the current charges, appellant was arrested and did not give his correct name to the officer, using his mother's maiden name because he was on probation and in a stolen car when he was pulled over.
Appellant testified that in the summer of 2013, his life had taken a downturn and he had resumed using methamphetamine after previously completing a residential treatment program and getting his life on track. On the night of the incident, he had smoked methamphetamine around 7:00 p.m. and in the early morning hours he was coming down from his high and feeling very tired after a night of walking around the city. Walking up Sacramento Street, he saw a girl in the window on the top story of a building across the street watching him walk up the hill. As he got close to the building, she smiled and waved at him, and he waved back. She waved harder, "to get my attention a little more for sure," and did "a little dance move in the window" that appellant found "cute, sexy." Appellant saw no one else on the street and motioned to ask, "[i]s this for me"; she nodded and did the dance move again. Appellant went to the building and noticed that neither the gate nor the front door beyond it were latched shut. Thinking the "very attractive woman doing a very sexy dance in the window at me" was "definitely an invitation for something of a sexual nature," appellant went inside and walked up to the top floor, where he saw an apartment door open a few inches and felt even more sure he was meant to come in. Looking in, he saw a dark corridor with light coming from a room at the end. When no one answered his "hello," he thought he was supposed to go to the bedroom. There, he saw the woman lying on her stomach on the bed, eyes open, looking at him and smiling. She did not say anything, which did not seem odd because it seemed like she was waiting for him in "kind of a sexier 'strangers in the night' kind of sexy-if-you-don't-talk setup and fantasy, if you will."
By appellant's description, "her hand came out the window, palm up; she raised up her body, kind of grabbed her neck, brought her other hand up, hands down to her side, turned her head like this."
Appellant went to the bed and began to rub her back over her clothes, gradually moving his hands lower as she shifted over to give him space on the bed, seeming to enjoy what he was doing. Straddling her and continuing to rub, he started to slide her pants down and "pushed into her hips a little bit, kind of dry humping." He had an erection and the tip of his penis was "being held back by [his] boxer waistband," which extended higher than the top of his jeans. As he "dry humped," the woman arched her back and "pushed into it" and moaned a little, which excited him "too much" and he ejaculated. He felt embarrassed at how quickly this had happened and at the same time heard a "light noise" behind him, glanced back and saw "this big dude" sitting in a chair next to the bed. Feeling "freaked out," appellant thought "I didn't sign up for that kind of party" and got up and left.
Appellant knew he had HIV. He did not say anything about this to the woman because "[i]t hadn't come to that point yet," meaning "we weren't having sex yet." He testified that if it was "obvious that we were going to have 'intercourse' sex, I would have told her."
I.
Appellant contends the trial court erred in denying his request for a jury instruction pursuant to People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry), directing that appellant was not guilty of the charged offenses if he had a reasonable but mistaken belief that Miranda consented to sexual contact with him. Mayberry held that "a defendant's reasonable and good faith mistake of fact regarding a person's consent to sexual intercourse is a defense to rape." (People v. Williams (1992) 4 Cal.4th 354, 360.) The court must instruct on this defense if there is "substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not." (Id. at p. 362.)
As described above, appellant testified that Miranda P.'s behavior when he saw her in the window led him to believe she was inviting him inside for a sexual encounter, and this interpretation was reinforced when he found the building's gate and door unlatched and the door to the apartment open. According to appellant, Miranda P. was awake and smiled at him when he entered the bedroom, and acted as though she was enjoying his touch.
We are not convinced that the rationale for a Mayberry instruction supports its application to the offense with which appellant was charged. What makes the instruction necessary in a forcible rape case is that a person who acts "under an ignorance or mistake of fact, which disproves any criminal intent," does not commit a crime. (§ 26; People v. May (1989) 213 Cal.App.3d 118, 124.) Rape is a general intent crime; the prosecution must prove beyond a reasonable doubt that the victim did not consent, but is not required to prove anything about the defendant's mental state. It is up to the defense to prove, as an affirmative defense, that the defendant mistakenly believed he had consent despite evidence that the victim did not actually consent. (See People v. Lujano (2017) 15 Cal.App.5th 187, 194.)
The situation here is different. The jury was instructed that appellant was charged in count 1 with "assault with intent to commit, one, sodomy of an unconscious person or, two, sexual penetration of an unconscious person while committing first degree burglary." Among the elements of the offense set forth in the jury instructions, the prosecution was required to prove that "[w]hen the defendant acted, he intended to commit . . . one, sodomy of an unconscious person, or . . . sexual penetration of an unconscious person" and "[w]hen the defendant acted, he was committing a first degree burglary."
With respect to the assault portion of the charge, the jury was instructed that it could convict only if it believed appellant had the specific intent to commit either sodomy of an unconscious person or sexual penetration of an unconscious person, and that one of the elements of both target offenses was that appellant knew the person was unable to resist because she was unconscious of the nature of the act. The victim's lack of consent is not an element of these offenses, and "[t]he defendant's belief as to the victim's consent is not relevant; it is the defendant's knowledge that the victim was unconscious and his intent to engage in an act of [sodomy or sexual penetration] with an unconscious person that makes [the] act a crime . . . ." (People v. Morales (2013) 212 Cal.App.4th 583, 596 [rape of unconscious woman].) Accordingly, Morales held instructions on mistake of fact as to consent were not required in a prosecution for rape of an unconscious person. (Id. at p. 596.) Appellant appears to concede that the instruction was not required as to the assault portion of count 1. And, in any case, a jury that concluded appellant assaulted Miranda P. with the intent to commit sodomy or sexual penetration while she was unconscious, and knowing she was unconscious, could not possibly have believed he was acting with a reasonable but mistaken belief that Miranda P. consented to his act.
In his opening brief, appellant points to two cases that found prejudicial error in courts' failure to give a Mayberry instruction with respect to charges of assault with intent to commit rape. (People v. May, supra, 213 Cal.App.3d at pp. 128-129; People v. Rivera (1984) 157 Cal.App.3d 736, 739; 742-744.) Neither of these cases involved rape of an unconscious victim.
Appellant maintains, however, that a Mayberry instruction was required with respect to the burglary portion of the charge, and that the court's refusal to give it was prejudicial. The jury was instructed that the prosecution had to prove appellant "entered an inhabited room within a building" and, when he did so, "he intended to commit a felony sexual assault." Eight offenses were defined as possible felony sexual assaults for purposes of this instruction: forcible sodomy, sexual penetration, rape and oral copulation, and sodomy, sexual penetration, rape and oral copulation of an unconscious person. The inclusion of the forcible offenses, appellant argues, demanded that the trial court grant his request for the Mayberry instruction. If he entered the apartment intending to engage in a consensual sexual encounter, he argues, he did not have the intent required for a burglary conviction, even if he later formed an intend to engage in sexual activity by force or with an unconscious person. (People v. Hughes (2002) 27 Cal.4th 287, 352 (Hughes).)
The initial jury instructions described only the two sexual offenses appellant was charged with having committed—sodomy of an unconscious person and sexual penetration of an unconscious person and their lesser offenses—attempted sodomy and sexual penetration of an unconscious person. The additional six offenses listed in the text were described, over appellant's objection, after the jury asked, during deliberations, where to find the definition of "felony sexual assault." Appellant's challenge to the giving of these supplemental instructions is discussed in part II of this opinion.
We need not decide whether the trial court erred in failing to give the requested instruction, because any error would not have been prejudicial. Under the instructions given, a juror who concluded that when appellant entered the apartment he intended to commit one or more of the sexual offenses against Miranda P. while she was unconscious necessarily concluded that he did not believe he had Miranda P.'s consent. Stated conversely, a juror who believed appellant might have thought he was entering the apartment for consensual sex could not have found beyond a reasonable doubt that he entered the apartment with intent to commit one of the sexual offenses on an unconscious person. Nor could the jury have believed appellant had a reasonable but mistaken belief that Miranda P. consented to his entry if it found he entered with intent to commit one or more of the forcible sexual acts. The jury was instructed that each of the forcible offenses required proof that the victim did not consent and the defendant accomplished the act by means of force, violence, duress menace or fear of immediate and unlawful bodily injury to the victim or someone else. If the jury believed appellant entered the building with the intent to commit an offense to which the victim did not consent, it could not have believed he entered with a reasonable but mistaken belief that she consented.
In Hughes, the defendant was convicted of murder, first degree burglary and sodomy. (Hughes, supra, 27 Cal.4th at p. 315.) The court found error because the instructions on burglary told the jury it could find the defendant guilty if he entered the victim's apartment with the specific intent to commit theft, sodomy or rape, but did not define the elements of rape. (Id. at p. 348.) Emphasizing that "the intent to commit any felony (or theft) suffices for burglary" and "the jury need not unanimously decide, or even be certain, which felony defendant intended as long as it finds beyond a reasonable doubt that he intended some felony," Hughes found the error harmless. (Id. at pp. 351-352.) The court explained that under most of the factual scenarios the defendant suggested as allowing the jury to erroneously find he intended rape, "he still would be guilty of burglary." (Id. at p. 351.) Of particular relevance here, the court recognized that if the defendant entered the apartment intending consensual sex and thereafter formed the intent to use force or fear, he could not be found guilty of burglary. (Id. at p. 352.) But in this scenario, "if the jury was unaware of exactly what is meant by sexual intercourse, we can be confident that no jury would believe that consensual sexual intercourse was rape. Accordingly, if the jury believed defendant entered the apartment merely with the intent to engage in consensual sexual activity, no reasonable jury would believe that he entered with the intent to commit rape or any other sexual felony." (Id. at p. 352.) So here, a juror who believed appellant mistakenly thought Miranda P. invited him into her apartment for some sort of sexual encounter, and therefore that he entered with the intent of engaging in consensual sex, could not have found he entered the apartment with the intent to commit a forcible sexual offense.
Defense counsel did argue, in closing, that appellant could not be found guilty if he was mistaken in believing Miranda P. consented to his sexual conduct or in believing she was conscious.
II.
In a related issue, appellant contends the trial court erred in refusing his request for additional argument after the jury was instructed, during deliberations, on additional offenses that could be considered "felony sexual assault" within the meaning of the instruction on the intent required to find appellant guilty of burglary. The burglary instructions, after informing the jury that the prosecution was required to prove that appellant "intended to commit a felony sexual assault" when he entered the apartment, stated, "[t]o decide whether the defendant intended to commit a felony sexual assault, please refer to the separate instructions that I've given you on those crimes." The only sexual offenses described in the initial instructions were the two appellant was charged with having committed and their lesser offenses. During deliberations, the jury asked the court where it could find the definition of " 'felony sexual assault.' " After considerable discussion with the attorneys, the trial court instructed the jury that "felony sexual assault" included the two assaults that had already been defined in the instructions, and also six offenses for which supplemental instructions were provided—rape by force, rape of an unconscious person, oral copulation by force, oral copulation of an unconscious person, and sexual penetration by force.
See footnote 5, ante.
Defense counsel objected to the additional instructions on the ground that appellant would be denied due process because her closing argument was limited to the two target offenses described in the initial instructions, pointing out that there had been considerable discussion about the intent aspect of the burglary instruction before the original instructions and closing argument. The prosecutor suggested that the defense concerns could be addressed by reopening argument on the limited issue of intent to commit the newly described offenses, and the defense made clear that it was asking for this relief. The court declined to reopen argument, taking the view that the supplemental instructions did not introduce a "substantially new theory" for the jury's consideration but only responded to the jury's question by specifying the offenses it could infer appellant intended to commit.
"To prevent unfair prejudice, if a supplemental instruction introduces new matter for consideration by the jury, the parties should be given an opportunity to argue the theory." (People v. Ardoin (2011) 196 Cal.App.4th 102, 129.) In Ardoin, after a trial based on the theory that the defendant was the direct perpetrator of a murder and his codefendant was liable as an aider and abettor or under the felony-murder doctrine, in response to a question from the jury during deliberations, the trial court instructed that the felony murder instruction could apply to either of the defendants. (Id. at pp. 123, 125.) The court found that any error in failing to permit additional argument was not prejudicial because the first degree murder charge and evidence at trial gave the defendant notice of "potential culpability under the felony-murder rule," the trial court did not affirmatively advise the defense that the defendant was excluded from the felony-murder instruction, the record reflected defense counsel's awareness during argument that felony murder and aiding and abetting principles were at issue, and the primary defense was that the defendant was not present and therefore not liable as perpetrator or aider and abettor of the robbery or murder. (Id. at pp. 131-133.) It was particularly noted that the jurors did not have to agree as to whether the defendant was the direct perpetrator or an aider and abettor, or whether the murder was premeditated or felony murder. (Id. at p. 133.) As to defense counsel being unable to argue against felony-murder liability "in as much detail as he, upon subsequent reflection, would have liked," the court stated that "[t]he right to due process guarantees an opportunity for effective presentation of a defense, not the presentation of a defense that is as effective as a defendant might prefer." (Id. at pp. 133-134.) Reversal would be required "only if, viewing the record in its entirety, a party ' "was unfairly prevented from arguing his or her defense to the jury or was substantially misled in formulating and presenting arguments." [Citation.]' " (Id. at p. 134, quoting United States v. Foppe (9th Cir. 1993) 993 F.2d 1444, 1451.)
Here, the problem the supplemental instructions sought to remedy arose because the instructions on burglary were originally drafted to state that the prosecution was required to prove appellant entered the apartment with intent to commit sodomy or sexual penetration of an unconscious person. The night before the jury was to be instructed and closing arguments presented, the prosecutor suggested in an email conversation with defense counsel and the court that the instruction was too narrow, as appellant would have committed burglary if he intended to sexually assault Miranda P. when he entered, even if at that point he was not aware that Miranda P. was unconscious. The court found this point "well taken" because if the jury found appellant entered with the intent to commit "some form of sexual assault" but then "fortuitously found her asleep," the instruction that he had to enter with intent to commit one of the offenses against an unconscious person would have the "anomalous effect of . . . insulating him from a 220[, subdivision] (b) charge." Accordingly, the court changed the burglary instruction to require proof that appellant entered the inhabited room with intent to commit "a felony sexual assault."
The problem the jury identified was that the burglary instruction, following the pattern instruction CALCRIM No. 1700, stated, "[t]o decide whether the defendant intended to commit a felony sexual assault, please refer to the separate instructions that I have given you on those crimes." This direction made sense in the instruction as initially drafted, because the crimes identified in the burglary instruction were the two charged in counts 2 and 3, and the court instructed on the elements of these offenses. After the burglary instruction was changed to refer to "a felony sexual assault," the direction to "refer to the separate instructions" left the jury without guidance because no "separate instructions" referred to "felony sexual assault."
Appellant argues that he was prejudiced by the trial court's refusal to allow additional argument addressing the offenses defined in the supplemental instructions because he did not have an opportunity to address these "new theories of guilt" in closing argument. But, as the trial court stated in denying appellant's new trial, no "new theories" were presented, only clarification of the theory already put before the jury.
Appellant had notice from the outset of the case that the intent with which he was accused of entering Miranda P.'s apartment was not limited to intent to commit the two sexual offenses with which he was separately charged. Count 1 of the information alleged that appellant "did willfully and unlawfully in the commission of a burglary of the first degree, as defined in subdivision (a) of Section 460, assault Miranda P. with intent to commit rape, sodomy, oral copulation, and sexual penetration." (Italics added.) When the defense sought an in limine ruling requiring the prosecution to elect the act it maintained appellant intended when he entered the apartment, the court considered the fact that the burglary statute refers to intent to commit larceny or "any felony" (§ 459) and denied the motion, observing that "it should not make a difference whether the defendant entered with the intent to commit rape, sodomy, or sexual penetration, but that it would hold the People to their representation that they are not proceeding on a theory that the defendant intended to commit theft." In the email conversation before closing arguments, the court specifically rejected the defense argument that the burglary instruction should refer only to intent to commit the target offenses of sodomy or sexual penetration of an unconscious person. Explaining its ruling, the court stated that viewing intent to commit a different sexual assault than the one actually perpetrated as sufficient for the burglary component of count 1 was "consistent" with "the People's theory all along," the court's prior ruling that the prosecution was not required to elect a specific theory of intent, "common sense," "the language of 460, which makes burglary an entry with the intent to commit any felony," and "substantial evidence from which the jury could reach such a conclusion." The defense was thus on notice that the court's modification of the burglary instruction to refer to intent to commit "a felony sexual assault" meant the offenses upon which the intent required for a burglary conviction could be based were not limited to the two offenses against an unconscious victim with which appellant was separately charged.
Similarly, during pretrial discussions, when defense counsel expressed lack of clarity as to the prosecutor's theory of count 1—asking whether he was going to argue, for example, that appellant intended to rape an unconscious victim or that he intended a forcible rape but, once inside, discovered the victim was unconscious—the court questioned why it would matter which sexual offense appellant intended to commit when he entered as long as he intended to commit a felony sexual offense.
Moreover, we can conceive of no argument the defense could have made regarding the newly defined offenses that could have altered the outcome of the trial. Appellant's defense was not that he lacked intent to commit any particular form of sexual assault, but that he lacked intent to commit any such assault. As the trial court also pointed out in denying appellant's new trial motion, appellant's defense was that he entered the apartment with innocent intent, to engage in a consensual sexual encounter. All the offenses described in the supplemental instructions required an absence of consent that was contrary to appellant's defense. Appellant was not " 'unfairly prevented from arguing his or her defense to the jury' " or "substantially misled in formulating and presenting arguments." (People v. Ardoin, supra, 196 Cal.App.4th at p. 131.)
III.
Appellant next contends the trial court erred in denying his pretrial motion to bifurcate the section 12022.85 AIDS enhancement. Section 12022.85 requires a three-year enhancement for "[a]ny person who violates one or more of the offenses listed in subdivision (b) with knowledge that he or she has acquired immune deficiency syndrome (AIDS) or with the knowledge that he or she carries antibodies of the human immunodeficiency virus at the time of the commission of those offenses." Sodomy is one of the enumerated offenses. (§ 12022.85, subd. (b)(4).) Conceding that his failure to tell Miranda P. that he was AIDS-positive "may have been relevant to his credibility," appellant contends the prejudice inherent in the evidence required that the enhancement allegation be tried separately.
When the issue was first raised, the trial court conditionally granted appellant's motion to bifurcate, finding that appellant's HIV status and the section 12022.85 allegation were not relevant to any issue in the prosecution's case in chief and posed a "risk of prejudicing the jury against" him. The court stated, however, that it would reconsider this ruling at the close of the prosecution's case in chief and at the close of the defense case if appellant chose to testify, as appellant's HIV status would be relevant if he offered a defense based on consent, his failure to inform Miranda P. would be relevant to his credibility, and potential prejudice could be alleviated by a limiting instruction. Appellant sought reconsideration as to admissibility of the HIV evidence if he testified, which the trial court denied. As earlier indicated, appellant testified that he was HIV positive at the time of the incident and did not disclose this information to Miranda P. No limiting instruction was requested.
A trial court has authority to bifurcate enhancement issues, and its decision is reviewed for abuse of discretion. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048.) The court expressly recognized the potential for prejudice due to lingering stigma attached to HIV/AIDS despite advances in understanding the virus and its transmission as well as treatment and was cautious about admission of any evidence on the subject. Once appellant testified, however, the evidence was relevant both to the defense he presented and his credibility in general. The fact that appellant was HIV-positive was clearly relevant to his defense that the sexual encounter was consensual, as it undermined the plausibility of Miranda P. having consented. (See Commonwealth v. Martin (Mass. 1997) 676 N.E.2d 451, 454 [as defense focused on victim's consent, victim's "account of the defendant's purported contraction of AIDS and her testimony that she was 'terrified' of contracting AIDS was highly relevant to confirming her claim that she had not consented to intercourse with the defendant"].) The fact that appellant would engage in the conduct he described without disclosing his HIV status was clearly relevant to the jury's assessment of his credibility in general, as evidence of his willingness to hide the truth.
The cases appellant relies upon to emphasize the potential for prejudice do not persuade us that the trial court abused its discretion. Wiggins v. State (Md. 1989) 554 A.2d 356, 361-362, held that evidence the defendant had AIDS "undermined the fairness of the fact-finding process and diluted the principle that guilt is to be established by probative evidence beyond a reasonable doubt" in a murder trial in which the evidence was not relevant to any issue in the case: The court authorized sheriff's deputies to wear rubber gloves in the courtroom because an "unidentified source" indicated "a strong possibility or probability" the defendant had AIDS, thereby permitting the jurors to infer the defendant had the virus, without even confirming whether this information was accurate. In Abunaaj v. Commonwealth (Va.App. 1998) 502 S.E.2d 135, 140 (Abunaaj), a witness in a rape case related the defendant having said that the victim " 'told him three times to stop' " and explained that he came forward with this information because the defendant told him he was HIV-positive and the witness felt he " 'couldn't live with myself if that was true and he was going and having sex with people and he did, in fact, have the virus.' " The trial court refused to allow the defendant to present rebuttal evidence showing he was not HIV-positive. (Ibid.) Abunaaj held that a limiting instruction stating the HIV evidence was offered only to show the witness's motivation for coming forward was insufficient to overcome the prejudice, which was compounded by the trial court's refusal to allow the defendant to present evidence that he was not HIV-positive. (Ibid.) Unlike the present case, the defendant's HIV status was not discussed as being relevant to the central issue of consent, only to explaining why the witness who revealed the defendant's statement that the victim did not consent chose to do so, and the defendant was precluded from presenting evidence showing the HIV testimony was not true.
Commonwealth v. Martin, supra, 676 N.E.2d 451, which appellant cites for its recognition that "evidence a defendant has AIDS 'might prove devastating,' " in fact held the evidence was properly admitted as "highly relevant" to the victim's claim that she did not consent to sex as the defendant maintained. (Id. at pp. 454-455.) The court acknowledged that "widespread ignorance about the nature of this disease and the accompanying prejudices against persons suffering from it or, as here, merely alleged to suffer from it, pose dangers to the accuracy and fairness of the legal process in many ways" that judges must guard against, but declined to find the defendant's trial was unfair. (Ibid.)
Appellant argues that the prosecutor exacerbated the prejudice inherent in the AIDS evidence by referring to it in closing argument. The prosecutor did not dwell on this evidence and did not use it for any improper purpose. The prosecutor told the jury to consider the fact that appellant did not tell Miranda P. that he was HIV-positive in assessing his credibility. The prosecutor argued, "there was a lot of talk during jury selection—when I say 'a lot of talk,' I mean a lot of talk during jury selection—about HIV and, you know, where the line is where a person needs to disclose their HIV status to a sexual partner. A lot of talk about this from the defense. [¶] That's not what the case is about. And no matter where you think that line is, that line was crossed in this case. [¶] He'd pulled down Miranda's pants, her underwear; his semen is all over her bare skin and back, in her bed. The line was crossed. [¶] And what's the point? He never said, by his own admission, a single word to her. That's a fundamentally dishonest thing to do. He is not an honest person." The prosecutor went on to discuss credibility in general, pointing the jurors to the instruction on how to evaluate any witness's credibility and then urging them to "believe none of what [appellant] tells you." The only other reference to the AIDS issue was when the prosecutor explained that the AIDS allegation applied only to count 2, sodomy, and told the jury that since appellant did not dispute that he knew he was HIV-positive when he committed the act of sodomy on an unconscious person, upon finding him guilty of the charged sodomy, "you can automatically find true that additional allegation regarding HIV."
We find no abuse of discretion in the court's decision not to bifurcate trial of the section 12022.85 allegation.
IV.
Appellant's final contention is that the prosecutor engaged in misconduct in closing argument by repeatedly telling the jury that "appellant thought of Miranda P. as a whore" and equating a defense witness with a mass murderer. Neither of these characterizations of the prosecutor's argument are accurate, and no prejudicial misconduct occurred.
The first of the prosecutor's challenged remarks told the jury, "Now, ladies and gentlemen, the defendant has not come out and said what I'm about to, but make no mistake about it, it is the glaring implication of what he has told you: Miranda is a drunk, a liar, and a whore." The prosecutor repeated this characterization of the defense a number of times, explaining that because appellant's DNA was found on Miranda P.'s bedsheet, his only option was to discredit her denial of consensual sex, which he did by accusing her of lying about how much she had to drink and whether there was anal penetration. Appellant's version of the facts, the prosecutor argued, inescapably implied that Miranda P. was "a drunk, a liar, and . . . a whore": The defense was saying "[s]he wanted it, ladies and gentlemen. She wanted it. She asked for it. [¶] She waved this guy in off the street, and she asked for it. That's what he's saying. That's how he is, filling in the gaps in her memory for her."
As the trial court explained in denying appellant's new trial motion, the prosecutor's description of the defense, while framed in colorful language, was not inaccurate. Defense counsel, in questioning and argument, repeatedly portrayed Miranda P. as being untruthful about her drinking—noting, for example, that she initially told the police only about drinking one beer without mentioning a large shot she testified she had had at Hefley's workplace, and suggesting that the cumulative amount of alcohol in her "taste sips" at work was far greater than she described—and about whether there was actual penetration during the incident she described. As to the term "whore," the prosecutor was well aware of the "moral disapprobation" he conveyed, and defense counsel, whose objections had been overruled each time the term was used, argued that the prosecutor's view was inappropriate. But, as the trial court concluded, in light of appellant's portrayal of Miranda P. as having "willingly engaged in a sexual encounter in the early morning hours with a complete stranger whom she saw from afar on the street, had never before met or seen, about whom she knew absolutely nothing (including his HIV-positive status), and with whom . . . she did not exchange a single word, . . . it hardly seems beyond the pale for the People to argue that if [appellant's] version of the incident were true, Miranda P. was 'a promiscuous or immoral woman,' a common definition of [the term whore]" (<http://www.merriam-webster.com/dictionary/whore>).
Miranda P. testified that she did not drink at work but might have needed to "straw taste" cocktails, which she explained meant dipping a straw into the drink and taking out an amount less than a sip to check the taste. She might have had a small beer while closing up at work, and had one beer after work and a shot of liqueur while waiting for Hefley to finish at his workplace.
The defense emphasized discrepancies in Miranda P.'s statements as to whether she felt actual penetration of her anus, such as not mentioning penetration when she told Hefley and his roommate about the incident, and stating in an interview with the prosecutor in May 2015 that she felt the pressure on her anus "on the outside," then after further questioning, being shown pictures of the anatomy and being told she needed to be more specific, said she felt it in "[t]he opening and maybe like a little bit into it." In her initial police statement in August 2014, Miranda P. wrote that she " 'awoke to pressure being applied to my person and felt as if my rear was being penetrated,' " and she told the police and nurse at hospital that she felt "someone sticking something in my butt." She explained at trial that when asked about penetration during the interview she was trying to describe that it was not a "full-throttle kind of situation." --------
A prosecutor is afforded "wide latitude" in argument (People v. Wharton (1991) 53 Cal.3d 522, 567), and " 'may even use such epithets as are warranted by the evidence, as long as these arguments are not inflammatory and principally aimed at arousing the passion or prejudice of the jury.' " (People v. Pearson (2013) 56 Cal.4th 393, 441, quoting People v. Pensinger (1991) 52 Cal.3d 1210, 1251.) The argument here was "founded on evidence in the record and fell within the permissible bounds of argument." (People v. Friend (2009) 47 Cal.4th 1, 32.)
Appellant's other challenge is to the prosecutor's comments about defense counsel trying to bolster the credibility of appellant's girlfriend, who testified that in March 2014, appellant told her about a consensual sexual encounter he had had with a woman who flirted with him from her window and invited him into her apartment. Defense counsel, urging the jury to conclude the girlfriend had testified honestly, had stated, "You know, she's a graduate student in Texas." The prosecutor argued: "The other witness that the defense called is Rachel the girlfriend. [Defense counsel] talked about her, wants to 'up' her credibility. She'[s] in grad school, so she's more credible, okay? [¶] There was a guy in Colorado that shot up a movie theater full of people who was in grad school." The trial court sustained defense counsel's objection that this comment was inflammatory and instructed the jury to disregard it. The prosecutor then continued, "[b]eing in grad school doesn't give you any more credibility than anybody else . . . . [¶] Just like, wearing a badge, being a police officer, doesn't entitle you to any more inherent credibility than anybody else just by virtue of that fact, being in grad school doesn't entitle you to any more credibility just by virtue of the fact."
We disagree with appellant's contention that the prosecutor's comment was so inflammatory that the court's instruction to disregard could not have overcome its prejudicial effect. Despite the strong language he employed, the prosecutor made very clear that his point was only to refute the suggestion of defense counsel that the jury should view appellant's girlfriend's credibility as enhanced by the fact that she was a graduate student. The prosecutor's comment was obvious hyperbole that would not have been taken as meant to actually "equat[e] defense witness [appellant's girlfriend] with a mass murderer." Appellant has not shown " 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner' " (People v. Stewart (2004) 33 Cal.4th 425, 502), and it is not reasonably probable a result more favorable to appellant would have been reached in the absence of the challenged argument. (People v. Davis (2009) 46 Cal.4th 539, 612.) Nor did the prosecutor's argument "infect[] the trial with such ' "unfairness as to make the resulting conviction a denial of due process," ' " as required to establish reversible misconduct under the federal constitution. (Ibid., quoting Darden v. Wainwright (1986) 477 U.S. 168, 181.)
DISPOSITION
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.