Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR183584
Bruiniers, J.
Rex Eynon Granger was convicted by a jury of kidnapping, false imprisonment, and several sexual offenses against the victim (Anna O.). Granger contends that: (1) the trial court erred when it permitted the prosecutor to amend the information at the commencement of the trial; (2) the trial court erred in admitting evidence of an uncharged sexual offense pursuant to Evidence Code section 1108; (3) Evidence Code section 1108 and CALCRIM No. 1191 are unconstitutional; (4) the court’s failure to instruct on jury unanimity on the basis for one sexual assault count requires reversal; (5) the trial court erred by failing to instruct the jury on the lesser included offense of attempted kidnapping; (6) his trial counsel was ineffective; and (7) the cumulative impact of the alleged errors requires reversal. We affirm.
I. Factual and Procedural Background
Granger was charged, by complaint filed on April 4, 2006, with forcible sexual penetration by foreign object (Pen. Code, § 289, subd. (a)(1); count one), assault with intent to commit a felony (§ 220; count two), sexual battery by restraint (§ 243.4, subd. (a); count three), false imprisonment (§ 236; count four), and kidnapping (§ 207, subd. (a); count five). As we discuss post, count five of the complaint alleged that Granger “did unlawfully, forcibly and by instilling fear, steal, take, hold, detain and arrest [Anna O.] in SONOMA County, California, and did take the said [Anna O.] into another country, state, county and another part of SOLANO County.” (Italics added.)
Unless otherwise noted, all further statutory references are to the Penal Code.
Granger entered a plea of not guilty and waived his right to a preliminary hearing. The information filed thereafter, included the same charges as were alleged in the complaint.
Granger was convicted on all counts. He was sentenced to state prison for a total term of nine years. His sentence was comprised of a six-year term on count one (§ 289, subd. (a)(1)) and a consecutive three-year term on count five (§ 207, subd. (a)). The court imposed a four-year, concurrent term for count two (§ 220). The trial court did not select specific sentences for counts three and four (§§ 243.4, subd. (a), 236). Rather, the trial court stayed sentencing, pursuant to section 654, finding that the sexual battery count was based on the same act as the penetration by foreign object count and that the false imprisonment count was based on the same act as the kidnapping count. Granger filed a timely notice of appeal.
Prosecution’s Case
Anna O.’s Testimony
On March 24, 2006, Anna O. met Granger at a gas station in Petaluma. She was 19 years old at the time and lived in Petaluma with her mother, sister, and brother-in-law. Granger was working as a clerk at the station. He asked Anna O. how old she was and if she would join him on a date. She told Granger she was 19, gave him her phone number, and agreed to go out with him. Later that same day, Granger called Anna O. He asked her what size bra she wore, what kind of tampons she used, and what kind of underwear she was wearing. She told Granger that she no longer wanted to go on a date with him. After he apologized, she agreed to go with him to the movies. Anna O. testified: “I was nervous.... I was afraid to say no. So I just told him yes, I’ll go out with you.”
On March 26, 2006, Anna O. met Granger in the parking lot of a grocery store in Petaluma. Granger then drove her, in his Ford Explorer, to a movie theater in Vallejo. She had thought they were going to the movies in Petaluma because she had told him that her mother “wouldn’t let [her] go far places.” Granger explained that the Vallejo theater was “the one he always goes to, and it wasn’t far, and [they were] just going to go and come back.” Anna O. had never been to Vallejo, but she “was okay” with it. During the drive, Granger put his hand on her thigh and tried to move it towards her vagina. She pushed his hand away.
On our own motion, we take judicial notice of the fact that Petaluma is located in Sonoma County and Vallejo is located in Solano County. (See People v. Posey (2004) 32 Cal.4th 193, 215, fn. 9 [taking judicial notice that Santa Rosa located in Sonoma County]; Evid. Code, § 452, subd. (h).)
When Granger and Anna O. arrived at the theater, about 30 minutes before the start of the movie, he went to purchase tickets, leaving her alone in the car. When he returned, Granger asked her to be his girlfriend. She said that they had just met. He tried to kiss her, and she “went kind of sideways, but [Granger] still kissed [her on the lips.]” Anna O. testified that she wanted to end the date and go home. She did not do so because she did not have her car and she had not asked her mother for permission to go out.
Anna O.’s mother did not let her go out with people she did not know. Furthermore, whenever Anna O. went out, her mother wanted to know where she was going.
After they entered the theater and the movie started, Granger put his jacket on top of Anna O.’s lap and then put his hands on her leg. He tried to unbutton her pants, but she pushed him away. They began kissing. Eventually, she excused herself, leaving Granger in the theater while she went to the restroom, “because [she] didn’t want to be there anymore.” When she exited the restroom 20 minutes later, Granger was waiting for her in the lobby and they returned to the theater. After watching half the movie, Anna O. told Granger that she wanted to go home. He asked her if she wanted to go to a hotel with him. She told Granger “no, that [she] wanted to go home.” He agreed to take her home.
Anna O. got back into Granger’s car and Granger began driving. At some point, he exited the freeway while still in Vallejo. When Anna O. asked him what he was doing, Granger said that he wanted to show her where he used to live. He pointed out a house and then drove to a dead-end where he parked on the side of the road. It was dark, but Anna O. saw a railing on one side and water on the other side. Specifically, she testified: “there was water, like a river.... [And] there were distant houses, and to the side there was just water.”
Granger turned off the car and its headlights. He also locked the car doors. Granger told Anna O.: “ ‘I want to fuck you. I’m going to do whatever I want.’ ” He jumped on top of her in the passenger seat and grabbed her breasts and legs. Anna O. attempted to push Granger off and begged him to stop and let her go home. He told her that “[she] better shut up and just let him do what he wanted to do.” Granger wrapped his legs around Anna O.’s legs so she could not move, unbuttoned her pants, pulled her pants and underwear down to her knees, and put his fingers inside her vagina. She tried to pull her pants back up, told Granger to stop, and tried to scream for help. Granger unbuttoned his own pants and tried to force her to touch his penis.
Anna O. conceded on cross-examination that she did not tell anyone before trial that Granger had exposed his penis.
Another car drove by just as Granger “was almost about to” have sex with Anna O. She waved her hands and screamed. The passing car parked and its passengers exited and looked towards Granger’s car. When Granger saw this, he jumped off of her, started the car, and drove away. Anna O. said she wanted to go home. Immediately thereafter, she pulled out her cell phone and dialed 911, accidentally hitting the speaker phone function. When Granger heard the operator answer, he struggled with Anna O. for the cell phone. The operator hung up.
Anna O. grabbed the steering wheel and turned it, attempting to cause Granger to lose control of the moving vehicle. She also reached over to his side of the car and unlocked the car doors. While the car was still moving, she opened her door and stuck her leg out. Granger grabbed her, pulled her back inside the car, and unsuccessfully tried to shut the door on her calf. She then jumped out of the car, which had “slowed down” to around 25 miles per hour. Granger kept driving. Anna O.’s purse remained in the car, but she had her cell phone.
Anna O. went to the nearest house and knocked on the door. Two women opened the door. Anna O. told them: “he tried to rape me, please call the cops.” While she waited inside the house for police to arrive, Granger repeatedly called Anna O. on her cell phone. Granger asked why she jumped and said that he just wanted to take her home. He also told her that no one was going to believe her. After the police arrived, Anna O. gave a written statement.
One of the women testified at trial. She testified that she lived on Catalina Way in Vallejo and, at approximately 8:00 p.m. on March 26, 2006, Anna O. knocked frantically on her door. She testified that Anna O. “looked frightened” and “was trembling.” She noticed a welt on one of Anna O.’s calves. The first thing Anna O. said to her was that “someone had tried to rape her.” Later, Anna O. told her “that she met this gentleman at... a gas station, and he was older and asked her out on a date and brought her to Vallejo for the date. [¶]... [¶] He had driven down [Catalina Way] and stopped and he became aggressive and was... grabbing at her. And she had her cell phone in her hand because she was trying to call out, and at one point jumped out of the vehicle.”
On cross-examination, Anna O. admitted that she called Granger once that evening.
On cross-examination, Anna O. admitted that she did not include, in her written statement, her allegation that Granger put his fingers inside her vagina. However, she did write in her statement that Granger got on top of her and started “touching” her. She also orally told police that Granger had digitally penetrated her.
Granger called the next day. Anna O. feared that no one would believe what happened, so she turned on a karaoke machine next to the phone and recorded their conversation. The recording was admitted into evidence at trial. While Granger did not directly admit that he sexually assaulted Anna O., his apologies could easily have been interpreted as implicit admissions. Anna O. testified that Granger apologized not for leaving her in Vallejo, but for trying to force her to have sex with him. Granger also said he did not want her to tell anyone.
Officer Bauer’s Testimony
Officer Jason Bauer, of the Vallejo police department, testified that on the night of March 26, 2006, he responded to a call from the house on Catalina Way. When he arrived, “[Anna O.] appeared scared and... really soft spoken.” She gave Bauer a description of where the incident with Granger took place.
Given his familiarity with the area, obtained through regular patrols, Bauer determined that a turnout next to Delta Meadows Park fit the description given by Anna O. Bauer took pictures of the park, where the turnout is located, which were admitted into evidence. Bauer testified: “When you’re in the turnout, if you’re facing in the south direction, you would see water. You would see the [guard]rail. [¶]... [¶] There’s a guardrail that would stop vehicles from proceeding. It’s pretty much the deadend, and there would be marshland, water. [¶] To the west would be a residence, the side of a residence, and if you went north across Candy Drive there’s a residence that actually faces the turnout and the park.” When asked if there was any other area in the neighborhood that fit the description given by Anna O., Bauer said “[n]o.”
Granger’s trial counsel did not object. However, counsel established during cross-examination that Bauer never showed Anna O. these pictures or drove her to the place shown. Bauer also conceded that he did not attempt to talk to the people living in the nearby houses depicted in the pictures.
Bauer testified that it was 1.2 miles from the turnout depicted in the pictures to the house on Catalina Way. The drive between the two locations takes less than three minutes, when obeying the speed limit. Bauer also testified that he checked the call history on Anna O.’s cell phone. The call history showed that, on March 26, 2006, emergency services had been called at 7:45 p.m.
Evidence of Prior Sexual Offense
J.T. testified that, in the summer of 2005, she was 22 years old and living in Florida. She met Granger in an online chat room. They exchanged photos. Approximately two months later, J.T. agreed to visit Granger in North Carolina, where he was living at the time. Granger purchased her airline ticket and also paid for a hotel room. He picked her up at the airport and drove her to the hotel. This was the first time they had met in person. J.T. had a bad feeling because Granger seemed to be rushing her. During the ride, he tried to hold her hand, but she pulled away.
As soon as they arrived at the hotel room, “[Granger] was trying to get [J.T.] onto the bed, [to] have sex with [her.]” Specifically, J.T. testified: “[Granger] pushed me down to the floor, off on the side of the bed, and he took my clothes off, and I was trying to scream for help, and he took a pillow and suffocated me.” J.T. told Granger to stop, but he was stronger and did not listen. After Granger removed J.T.’s pants, he performed oral sex on her. Next, he removed his own clothes and then put his penis inside J.T.’s vagina. J.T. cried and continued to ask him to stop. Afterwards, J.T. went to the bathroom, locked the door, and took a shower. Granger picked the lock.
After J.T. got dressed, they left the hotel and went to two malls. J.T. testified: “I wanted to go to the mall so I could get away and try to find help.” However, Granger remained right behind or beside J.T. She did not ask anyone at either mall for help. J.T. explained: “[I]n my mind I’m thinking if I did, someone would freak out and they wouldn’t know what to do. And I think it would have been too late, ‘cause I don’t know what [Granger] has on him.”
Granger and J.T. returned to the hotel. Once in the room, Granger forced J.T.’s clothes off and orally copulated her. J.T. told him “no” and asked him to stop. He also had anal sex with J.T., although she repeatedly said “no.” Granger asked J.T. “if [she] wanted to see [her] parents again[?]” He also asked her “if [she] wanted to be invisible[?]” Granger told J.T. that he had a gun in his bag. She thought he was going to kill her.
Eventually, Granger told J.T. that he was going to get something to eat. He instructed her not to leave the hotel room. While Granger was gone, for approximately 15–20 minutes, J.T. stayed in the room because “[she] thought that he might be outside the room, just waiting to see if [she] would leave.” When he returned, Granger removed J.T.’s clothes and forced her to have intercourse again. J.T. was crying and telling him “no” and “please stop.” J.T. screamed for help. When Granger got up, J.T. ran out of the room and began banging on the doors of other rooms. Another hotel guest opened the door to his room. J.T. ran into the room and asked the man and his wife to call 911.
After speaking to the police, J.T. decided not to prosecute Granger. J.T. testified that she continued to live in Florida. She had never been to California or met Anna O. before the trial.
Defense Case
Granger did not present any witnesses. In his closing argument, Granger’s trial counsel argued that the People had not proved their case beyond a reasonable doubt. Granger’s trial counsel primarily argued that Anna O. was not credible. He also argued: “And when you look at these pictures [taken by Bauer]... this is not where it happened. It’s not possible to have happened here, because in order for the car to get to that spot, he’s going to have to drive up over the curb, and I don’t think we’ve heard any evidence that that happened, but according to Officer Bauer this has got to be where it was, because there was no other place. These witnesses may have seen this whole thing happening. No one ever talks to them. This is just a picture of a deadend in Vallejo. That’s pretty much all it supports.”
II. Discussion
Granger contends that: (1) the trial court erred when it permitted the prosecutor to amend count five of the information; (2) the trial court erred in admitting evidence of an uncharged sexual offense pursuant to Evidence Code section 1108; (3) Evidence Code section 1108 and CALCRIM No. 1191 are unconstitutional; (4) the court’s failure to instruct on unanimity as to count two (§ 220) requires reversal; (5) the trial court erred by failing to instruct the jury on the lesser included offense of attempted kidnapping; (6) his trial counsel was ineffective; and (7) the cumulative impact of the alleged errors requires reversal. None of Granger’s arguments necessitate reversal.
A. Amendment to Information
Granger contends on appeal that his conviction for kidnapping must be reversed because he was convicted of an offense different from that charged in the original complaint and in the subsequent information. We disagree.
“The ‘preeminent’ due process principle is that one accused of a crime must be ‘informed of the nature and cause of the accusation.’ (U.S. Const., Amend. VI.) Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial. [Citation.]” (People v. Jones (1990) 51 Cal.3d 294, 317; see also Cal. Const., art. I, § 14 [“[f]elonies shall be prosecuted as provided by law, either by indictment or, after examination and commitment by a magistrate, by information”].)
“[S]ection 1009 protects a defendant’s right to due process.” (People v. Pitts (1990) 223 Cal.App.3d 606, 904, superseded by statute on other grounds.) Section 1009 provides, in relevant part: “The court in which an action is pending may order or permit an amendment of an indictment, accusation or information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings.... The defendant shall be required to plead to such an amendment or amended pleading forthwith, ... and the trial or other proceeding shall continue as if the pleading had been originally filed as amended, unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted. An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination.”
When, as here, no preliminary hearing is held, “the defendant may not be charged with additional crimes not charged in the pleading to which he waived his right to a preliminary hearing. Allowing such an amendment violates section 1009, even if the amendment did not prejudice the defendant or the defendant had notice of the facts underlying the new charges.” (People v. Peyton (2009) 176 Cal.App.4th 642, 654 (Peyton).) In such a situation, when there is “no preliminary hearing transcript on which new or amended charges may be based, the pleading on file at the time of the defendant’s waiver must serve as the touchstone of due process notice to the defendant of the time, place, and circumstances of the charged offenses. [Citation.] Thus, it is the... complaint that must be looked to for purposes of determining whether defendant received due process notice. [Citation.]” (Id. at pp. 658–659.)
If the amendment does not change the offense originally charged, but the substantial rights of the defendant would be prejudiced by the amendment, a reasonable continuance may be granted. (People v. Winters (1990)221 Cal.App.3d 997, 1005 (Winters).) “The questions of whether the prosecution should be permitted to amend the information and whether continuance in a given case should be granted are matters within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent a clear abuse of discretion.” (Ibid.)
1. Background
Count five of the complaint alleged that on or about March 26, 2006, Granger “did unlawfully, forcibly and by instilling fear, steal, take, hold, detain and arrest [Anna O.] in SONOMA County, California, and did take [her] into another country, state, county and another part of SOLANO County.” Granger waived his right to a preliminary hearing. The information filed thereafter again alleged that on or about March 26, 2006, Granger “did unlawfully, forcibly and by instilling fear, steal, take, hold, detain and arrest [Anna O.] in SONOMA County, California and did take [her] into another country, state, county and another part of SOLANO County.”
On the first day of trial, the prosecutor moved to amend count five to reflect “[t]hat the kidnapping occurred all within the county of Solano.” Granger’s trial counsel objected, stating: “[T]his completely changes my defense. This Information was filed on May 16th of 2008. The prelim was waived.... The evidence I expect the Court and jury will here [sic] today is she was picked up on a date in Sonoma County and brought to Solano County. The request at this point to amend it to change the county, I think it’s untimely.” The trial court overruled the objection, stating: “[A]s I understand the evidence, this is an allegation of the defendant allegedly picking this person up in Sonoma County, both of them consensually going to Solano County, and then at some point thereafter, the dispute, or allegations of unlawful contact, if you will, occurred in Solano. So forceably [sic] instilling fear and taking in Sonoma is not the People’s position.” The trial court granted the prosecution’s motion.
Consistent with the trial court’s understanding, the People’s theory at trial was that Granger committed the offense of kidnapping within Solano County when he moved Anna O. from the place of the penetration to the place where she jumped out of the car.
2. Analysis
The People argue that the amendment was not barred by section 1009 because at all times Granger was charged only with one violation of section 207, subdivision (a). We agree that the People’s amendment, which altered only venue allegations, did not change the offense charged.
Section 207, subdivision (a), provides: “Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.”
We begin with a review of the pertinent authority. In Winters, supra, 221 Cal.App.3d 997, the defendant waived his right to a preliminary hearing on a complaint charging possession of methamphetamine for sale, a violation of Health and Safety Code section 11378. Thereafter, an information was filed containing the same charge. (Winters, at p. 999.) During trial, the information was amended to add a charge of transportation of methamphetamine, a violation of Health and Safety Code section 11379. The defendant was convicted of both counts. (Winters, at p. 999.) The reviewing court stated: “We acknowledge that [the amendment] may have come as no surprise.... It seems to us that is not the point.... Section 1009 specifically proscribes amending an information to charge an offense not shown by the evidence taken at the preliminary hearing.... [¶] In the instant case, the preliminary hearing was waived and, thus, no evidence was presented on the complaint, which charged only possession of methamphetamine for sale. [The People have] cited no case authority which would allow, over objection, an amendment to the information to add a transportation count on these facts.... We have found no exception to this express provision of section 1009 and [the defendant’s] conviction of... transportation of methamphetamine, must be reversed.” (Winters, at pp. 1007–1008.)
In People v. Burnett (1999) 71 Cal.App.4th 151 (Burnett), the defendant was charged by information with one count of being a felon in possession of a firearm (§ 12021, subd. (a)(1)) and one count of brandishing a firearm (§ 417, subd. (a)(2)). (Burnett, at pp. 155–156.) The prosecution presented evidence at the preliminary hearing showing defendant had possessed and brandished a firearm—specifically a.38 caliber revolver—during an altercation with Walter Weighill. (Id. at pp. 155, 156, 164.) At trial, the prosecution presented additional testimony from a new witness that, shortly before the charged confrontation with Weighill, the defendant had possessed a.357 magnum revolver. (Id. at pp. 157, 164.) The trial court granted the prosecution’s motion to amend the information, by striking the words “ ‘.38 caliber’ ” from the description of the gun in the firearm possession count. (Id. at pp. 156, 167–168.) A divided Division Two of this court noted: “There can be no question that the evidence in this case showed two completely different incidents, involving two separate weapons, that could have supported two charges of violation of section 12021, subdivision (a), if the prosecution had chosen to charge [defendant] with two counts and the charges had been sustained after a preliminary hearing.” (Id. at pp. 169–170.) The court overturned the firearm possession conviction because it could have been based on evidence of an incident that was entirely distinct and separate from the incident about which evidence was presented at the preliminary hearing. (Id. at pp. 170–171, 175, 183; see also id. pp. 185, 188 (conc. opn. of Lambden, J.).)
In Peyton, supra, 176 Cal.App.4th 642, the prosecution changed what had originally been charged as three counts of sexual assault by oral copulation (§§ 269, subd. (a)(4), 288a) and one count of sexual assault by penetration with a foreign object (§§ 269, subd. (a)(5), 289, subd. (a)), to three counts of sexual assault by penetration with a foreign object, one count of sexual assault by oral copulation, and one count of committing a lewd act on a child (§ 288, subd. (b)(1)). (Peyton, at pp. 649, 656–657.) All incidents of molestation involved the same victim and occurred in September 2004, around the time of the victim’s birthday. (Id. at p. 647.) The defendant challenged the amendment after he was convicted of all charges. (Id. at pp. 645, 649.) The reviewing court stated: “When, as here, the defendant waives his right to the preliminary hearing, with the acquiescence of the district attorney and court, and there is therefore no preliminary hearing transcript upon which new or amended charges may be based, the pleading on file at the time of the defendant’s waiver must serve as the touchstone of due process notice to the defendant of the time, place, and circumstances of the charged offenses. [Citation.]... [¶] Under the generally accepted rule... a variance [in pleadings] is not regarded as material unless it is of such a substantive character as to mislead the accused in preparing his defense....’ [Citations.]” (Id. at pp. 658–659.)
The reviewing court determined that the lewd act conviction should be reversed because it was a new charge not included in the pleading on file when the defendant waived his right to a preliminary hearing. (Peyton, supra, 176 Cal.App.4th at pp. 654–655.) The court then went on to conclude that the changes to the section 269 charges did not violate section 1009 or constitute a material variance in the pleadings. (Peyton, at pp. 657, 660.) The court emphasized that “all of the pleadings... consistently alleged four section 269 charges based on either oral copulation by means of force or duress... or sexual penetration by means of force or duress.... Each pleading dealt with one victim and with conduct occurring over a very limited timeframe. And the only difference between the amended complaint, to which defendant waived his right to a preliminary hearing, and the second amended information, upon which defendant was convicted at trial, is that the bases of two of the four alleged section 269 charges were changed from oral copulation to sexual penetration.” (Peyton, at p. 659, fn. omitted.) The court also observed: “Moreover, the amendments did not prejudice defendant’s ability to prepare and present his defense to the charges as originally alleged. Defendant denied engaging in any illegal conduct whatsoever, whether oral copulation or sexual penetration.” (Ibid.)
None of the authority described above, or otherwise relied on by the parties, addresses the precise situation presented here. Here, unlike in Winters, the amended information did not charge Granger with violation of a new code section. As the People correctly note, all of the pleadings at issue in this case have charged Granger with kidnapping, a violation of section 207, subdivision (a). Burnett is also distinguishable becausethe conduct underlying the amended count five occurred on the same night as originally charged and did not involve a new witness or victim. We conclude that this case is most similar to Peyton, in which “[e]ach pleading dealt with one victim and with conduct occurring over a very limited timeframe.” (Peyton, supra, 176 Cal.App.4th at p. 659.)
The amendment at issue, in this case, only changed the kidnapping count’s venue allegations—to specify that the kidnapping occurred entirely within Solano County. “[V]enue does not constitute an element of any crime. [Citations.]” (People v. Posey, supra, 32 Cal.4th at p. 208.) Accordingly, we hold that section 1009 is not violated when an amendment merely alters a venue allegation. (See People v. Joseph (1937) 21 Cal.App.2d 336, 338 [indictment amendment adding venue allegation to theft charge not barred by former § 1008]; People v. Crosby (1962) 58 Cal.2d 713, 723 [“an amendment merely adding or extending allegations tolling the statute of limitations would not change the offense charged, for ‘although the right to maintain the action is an essential element in the final power to pronounce judgment, that element constitutes no part of the crime itself’ ”].)
Having concluded that the amendment at issue here was not barred by section 1009, we consider whether Granger was nonetheless prejudiced by the amendment. When a new offense is not charged, the remedy for any prejudice caused by amendment of the information is a continuance. (§ 1009; Winters, supra, 221 Cal.App.3d at p. 1005.) But, Granger’s trial counsel did not request a continuance or explain how the amendment would impact Granger’s defense to the kidnapping charge. In fact, Granger’s trial counsel continued to argue that there was no kidnapping because Anna O. was consensually in Granger’s car at all times.
On appeal, Granger points out that he “had a complete defense to [the original] charge: [Anna O.] voluntarily agreed to go from Sonoma County to Solano County.” He also notes that, as originally charged, Granger had little basis to contest the asportation element of kidnapping. Driving from Petaluma to Vallejo is clearly a substantial distance. But, according to Granger, when it was alleged that the kidnapping occurred solely within one neighborhood in Vallejo, the “substantial distance” element became critical. Granger’s trial counsel only vaguely complained that the amendment “completely changes [his] defense.”
The court did not abuse its discretion in allowing the amendment.
B. Admission of Evidence of Prior Sexual Offense
Granger contends that the trial court abused its discretion, and deprived him of a fair trial, by admitting, under Evidence Code section 1108, evidence of the uncharged sexual offense against J.T., over his Evidence Code section 352 objection.
Evidence Code, section 1108, subdivision (a), provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”
Evidence Code section 1108 “allows evidence of the defendant’s uncharged sex crimes to be introduced in a sex offense prosecution to demonstrate the defendant’s disposition to commit such crimes.” (People v. Reliford (2003) 29 Cal.4th 1007, 1009.) “Before Evidence Code section 1108 was enacted, prior bad acts were inadmissible when their sole relevance was to prove a defendant’s propensity to engage in criminal conduct (see Evid. Code, § 1101; [People v.] Falsetta [1999] 21 Cal.4th [903, ] 913.) However, the enactment of Evidence Code section 1108 created a statutory exception to the rule against the use of propensity evidence, allowing admission of evidence of other sexual offenses in cases charging such conduct, for proof of the defendant’s disposition to commit the charged offense. [Citation.]” (People v. Miramontes (2010) 189 Cal.App.4th 1085, 1096–1097, fn. omitted.)
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) A trial court’s exercise of its discretion under Evidence Code section 352 “ ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (Id. at pp. 1124–1125.) “To the extent the trial court’s ruling depends on the proper interpretation of the Evidence Code, however, it presents a question of law; and our review is de novo.” (People v. Walker (2006) 139 Cal.App.4th 782, 795.)
1. Background
Before the jury was selected, the prosecutor moved to admit evidence of the uncharged sexual offense involving J.T., pursuant to Evidence Code, section 1108. Granger opposed the prosecutor’s motion, arguing the evidence was unduly prejudicial. Specifically, Granger’s trial counsel argued: “The probative value is minimal in light of the prejudicial [sic]. We’re dealing with an incident in 2005, and that the only information I have is a statement that was taken from the complaining witness. She was taken to the hospital. There should be some medical records. The investigation stopped there when the victim told the agency... that she didn’t want to pursue this. So my client was never informed of the allegations against him. It puts him in a very difficult position to defend against those allegations today. We’re going to make this a second trial within the trial....”
Granger also filed motions in limine that sought to exclude the evidence on the same basis.
The court agreed with the prosecutor that, under Evidence Code sections 352 and 1108, J.T.’s testimony was admissible. The court explained its ruling as follows: “I do not find [the offense] to be remote. The allegations allegedly occurred on July 30th of ’05, and the charges in this case occurred in March of ’06. So they’re fairly close in time. [¶]... I do not find that this would be too confusing or an undue consumption of time with the jury. There are three prior allegations. All the People are bringing [in] is one. And it’s one witness, as I understand it. We won’t be getting into too much. So I don’t find that that’s an undue consumption of time. [¶] Again, the standard is by a preponderance of the evidence, not beyond a reasonable doubt. So the fact this did not go to trial... does not make it so prejudicial as to keep it out. [¶] And I find the probative value, as I understand, is normally presumed, but I think it is probative, the fact that you have—in the sex cases that you have a prior allegation of a forcible sex act against a separate victim in a separate state. [¶] So for all the above reasons... I will allow J.T. to testify on the merits under [Evidence Code section] 1108.” (Italics added.)
2. Analysis
First, we reject Granger’s assertion that “[t]he trial court erred by presuming that the probative value of sex crimes is presumed” under Evidence Code section 1108. Evidence Code section 1108 reflects a legislative determination that “ ‘evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of Evidence Code section 1101.’ [Citation.]” (People v. Britt (2002) 104 Cal.App.4th 500, 505–506, italics omitted; People v. Yovanov (1999) 69 Cal.App.4th 392, 405.) It appears that the trial court was merely referring to this uncontroversial proposition when it made the italicized statement above. In any event, the trial court also explicitly stated: “I think [the uncharged conduct] is probative....”
Granger’s reliance on People v. Earle (2009) 172 Cal.App.4th 372 (Earle) is misplaced. In Earle, the Sixth District Court of Appeal considered cross-admissibility under Evidence Code section 1108 in deciding whether an indecent exposure charge was properly joined with a sexual assault charge. (Id. at pp. 380–381.) Given the unrelated nature of the charges, the reviewing court concluded that only expert testimony could show that a defendant’s commission of indecent exposure showed a propensity to commit sexual assault. (Id. at pp. 397–398.) The court observed: “[Evidence Code section 1108’s] purpose... was to relax the traditional limits, not abolish them. Thus a trial court may not ‘ “admit or exclude every sex offense a defendant commits, ” ’ but must ‘ “consider [other] factors” ’ bearing on the relevance, probative value, and prejudicial potential of the evidence, including ‘ “its similarity to the charged offense.” ’ [Citations.] Obviously, the ‘lack of similarity’ between charged and uncharged offenses can be enough by itself to justify an exclusion of the latter in an exercise of the trial court’s discretion. [Citation.] Logically, it can also be enough to compel its exclusion where, as here, any inference of predisposition to commit the charged offense would be wholly speculative, i.e., where the uncharged offense has no tendency in reason to show that the defendant actually has the propensity whose proof the statute authorizes. (Earle, at p. 397.) We need not decide whether Earle was correctly decided, because it is distinguishable. Here, and as discussed post, J.T.’s allegations bear many similarities to Anna O.’s allegations.
The trial court did not abuse its discretion by finding the probative value of J.T.’s testimony outweighed the risk of undue prejudice from its admission. In weighing prejudice against probative value under Evidence Code section 352, “trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other... offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.] [¶]... [T]he probative value of ‘other crimes’ evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense. [Citation.]... [T]he prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jury’s attention would not be diverted by having to make a separate determination whether defendant committed the other offenses. [Citation.]” (People v. Falsetta, supra, 21 Cal.4th at p. 917 (Falsetta).)
In assessing prejudice, we must remember that “[t]he prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues....’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.)
Applying the Falsetta criteria here, we conclude J.T.’s testimony had significant probative value. The alleged incident involving J.T. occurred within one year of the charged offenses. J.T.’s allegations were also similar to Anna O.’s. Like Anna O., J.T. was a young woman with whom Granger had recently become acquainted. Both J.T. and Anna O. initially agreed to an outing with Granger, became isolated in an unfamiliar town during that outing, and then Granger forced himself sexually on each of them. And while, in the instant case, Granger did not consummate a rape or sodomize Anna O., there is certainly evidence suggesting that he intended to rape her. Furthermore, the probative value of J.T.’s testimony is heightened because she was a completely independent source of information. A reasonable trier of fact could certainly find it unlikely that two different women, who lived on opposite sides of the country and had never previously met, would falsely accuse Granger of committing similar crimes.
Granger argues that the evidence was unduly prejudicial for two reasons. First, he asserts that the details of J.T.’s testimony were unduly inflammatory. J.T. did testify to a number of forced sex acts, including rape and sodomy. J.T. also testified that Granger threatened her life, claimed to have a gun, and held a pillow over her face. But, Anna O. testified that Granger forcibly penetrated her with his fingers and expressed his intent to rape her. Because Anna O. was struggling with Granger in a moving car, her risk of harm was not necessarily less than J.T.’s.
Second, Granger points out that he was not charged or convicted of the offenses alleged by J.T. We agree that this circumstance created some risk that the jury would be tempted to convict Granger of the charged offense, regardless of guilt, to assure that he would be punished for the uncharged offenses. (See People v. Ewoldt (1994)7 Cal.4th 380, 405; People v. Balcom (1994) 7 Cal.4th 414, 427.) However, the trial court weighed this factor. The trial court specifically said “the fact that this did not go to trial... does not make it so prejudicial as to keep it out.” The risk of prejudice was significantly reduced by the court’s instruction to the jury “that the evidence of another sexual offense is not sufficient alone to find the defendant guilty.... The People must still prove each element... beyond a reasonable doubt.” Finally, J.T.’s direct testimony was brief—it comprised only 22 pages of the record. Thus, J.T.’s testimony was not likely to distract the jury from its main inquiry.
In light of all of the above circumstances, we conclude that the trial court did not abuse its discretion when it concluded that the probative value of J.T.’s testimony was not outweighed by its risk of undue prejudice. Furthermore, the admission of J.T.’s testimony did not violate Granger’s right to due process under the Fourteenth Amendment to the United States Constitution. (See Falsetta, supra, 21 Cal.4th at p. 913.)
C. Constitutionality of Evidence Code Section 1108and CALCRIM No. 1191
Granger also argues that Evidence Code section 1108 and CALCRIM No. 1191 are unconstitutional because they permit the use of propensity evidence, in violation of a defendant’s federal due process rights.
CALCRIM No. 1191 provides: “The People presented evidence that the defendant committed the crime[s] of _________________ that (was/were) not charged in this case. (This/These) crime[s] (is/are) defined for you in these instructions. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense[s]. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offense[s], you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit [and did commit] _________________, as charged here. If you conclude that the defendant committed the uncharged offense[s], that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of _________________. The People must still prove (the/each) (charge/ [and] allegation) beyond a reasonable doubt. [¶] [Do not consider this evidence for any other purpose [except for the limited purpose of _________________].]”
In Falsetta, supra, 21 Cal.4th at page 922, our Supreme Court rejected a similar due process challenge to Evidence Code section 1108. Granger acknowledges that Falsetta, forecloses his claim and he only raises the issue to preserve his rights for federal habeas corpus review.
Although Granger does not similarly acknowledge it, his challenge to CALCRIM No. 1191 has also been rejected by our Supreme Court. (People v. Reliford, supra, 29 Cal.4th at pp. 1012–1016 [addressing a substantively similar instruction, CALJIC No. 2.50.01]; see also People v. Cromp (2007) 153 Cal.App.4th 476, 480 [addressing CALCRIM No. 1191].) We are compelled to follow the directions of our Supreme Court and reject Granger’s due process arguments. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The instruction given in this case did not precisely mirror CALCRIM No. 1191. However, Granger does not argue that the differences were material.
D. Unanimity Instruction
Next, Granger argues that the trial court erred in failing to give a unanimity instruction with respect to count two. Specifically, Granger argues: “The information alleged, and the trial court instructed the jury, that the sexual assault charge ([§] 220; Count Two) was committed with intent either to commit rape or sexual penetration by force or fear.... [¶]... [¶] At trial, [Anna O.] alleged that [Granger] jumped on top of her and grabbed her before penetrating her with his finger. According to [Anna O.], that assault ended when another car stopped nearby. [Granger] moved over to the driver’s seat, started the car, and drove away. After that incident and after a struggle over [her] cellphone, [Anna O.] testified that [Granger] grabbed her and pulled her back into the car when she tried to jump out. The prosecutor argued that [Granger] was taking [Anna O.] to a place where he could ‘finish the job, finish the rape.’ Either of these two incidents could have formed the basis for Count Two.”
“Defendants in criminal cases have a constitutional right to a unanimous jury verdict. [Citation.] From this constitutional principle, courts have derived the requirement that if one criminal act is charged, but the evidence tends to show the commission of more than one such act, ‘either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act.’ [Citations.]” (People v. Napoles (2002) 104 Cal.App.4th 108, 114.) “On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed..., the jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the defendant is guilty. [Citation.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) The unanimity requirement “ ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’ [Citation.]” (Ibid.)
Even if a unanimity instruction is not requested, the trial court has a duty to give the instruction whenever the evidence warrants it. (People v. Carrera (1989) 49 Cal.3d 291, 311, fn. 8.) Thus, we need not address whether Granger forfeited his argument by failing to press the trial court for a ruling on the issue.
We conclude that the trial court did not err by failing to give a unanimity instruction. First, even if we assume the evidence suggests more than one act of assault occurred, the prosecutor clearly communicated to the jury that he was relying on Granger’s actions in the parked car to prove count two. Specifically, the prosecutor argued: “Next crime, Count Two, assault with intent to commit a sex offense.... Sometimes when you’re talking about peoples [sic] intent, you don’t know what their intent is, but if they express their intent through words, we know. We also know what the person’s intent is by their actions. And why is this an assault with an intent to commit a sex offense in this case? In this case we know that he was going to rape [Anna O.]... We can say that, but for the fact that these people disrupted his conduct, he was going for it.... He had his pants down, her pants were down. He’s already penetrated her vagina and he’s going to rape her. So all we need to show is the defendant applied some force. No touching is required. It’s not required that he touch her. He could have, through words, expressed this assault to commit rape. But he got on top of her, essentially, with his weight, put his legs around her legs. So he clearly applied force to her. [¶] We also have to conclude... that he intended to commit rape. And he told her that he was going to fuck her. He got on top of her. He didn’t complete it. He got close to completing it, but he got stopped because someone got in his way.... His plan was interrupted. That’s what Count Two is. He’s guilty of Count Two.”
The prosecutor did state, with respect to the kidnapping charge, that once Granger drove away with Anna O. still in the car: “He’s going to keep her, take her somewhere else, finish the job, finish the rape.” But, no reasonable juror would have concluded that the prosecutor’s brief statement meant that the jury could rely on any assault that occurred in the moving car as the basis for count two. Because the prosecutor clearly indicated to the jury that Granger’s actions in the parked car proved the charge of assault with intent to commit a felony, the trial court had no obligation to instruct regarding jury unanimity. (See People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455.)
In any event, a unanimity instruction is not required when the multiple acts alleged are so closely connected as to form part of one transaction. (People v. Benavides (2005) 35 Cal.4th 69, 98; People v. Stankewitz (1990) 51 Cal.3d 72, 100.) This exception has often been applied in sexual assault prosecutions when the assault was essentially continuous and occurred over a relatively short period of time. (See, e.g., People v. Mota (1981) 115 Cal.App.3d 227, 233 (Mota) [“many continuous acts of forced sexual intercourse which were committed by each assailant were part of the same event since they were all committed within an hour’s time in the back of the van”]; People v. McIntyre (1981) 115 Cal.App.3d 899 (McIntyre) [two acts of forcible oral copulation, one immediately before and one immediately after a rape, did not necessitate unanimity instruction].)
McIntyre, supra, 115 Cal.App.3d 899is illustrative. In that case, the victim was forced to orally copulate the defendant, raped, and forced to orally copulate the defendant a second time. (Id. at p. 904.) The reviewing court concluded that no unanimity instruction was required on the single oral copulation count, reasoning as follows: “The fact that a second forced oral copulation occurred within a few minutes during this sexual attack does not necessarily make this another separate crime any more than it would be true there are separate crimes of battery if the actor throws a right-hand punch to his victim and immediately follows it with a left-hand punch. Similarly, if only one punch lands on the victim, the law does not require the jury to agree on whether it was the right or the left-hand punch which reached its mark. Whether there was an offense of oral copulation on that particular evening does not depend on whether the jury is in accord it was committed at 12:30 or 12:35 a.m. It is only incumbent they agree an oral copulation occurred on that date....” (Id. at p. 910.)
Similar to the facts presented in Mota and McIntyre, here any two acts of assault were separated only by the span of a few minutes. The fact that Granger’s car may have moved between any two acts is irrelevant. (See Mota, supra, 115 Cal.App.3d at p. 233.) A unanimity instruction was not required.
E. Attempted Kidnapping Instruction
Granger argues that the trial court erred by failing, on its own motion, to instruct the jury on the lesser included offense of attempted kidnapping. He contends the attempted kidnapping instruction was required because the jury could have concluded that his movement of Anna O. did not satisfy the “substantial distance” element of kidnapping. (See CALCRIM No. 1215.)
Attempted kidnapping is a lesser included offense of kidnapping. (People v. Martinez (1999) 20 Cal.4th 225, 241.) “An attempt to commit a crime is comprised of ‘two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.’ [Citations.] Other than forming the requisite criminal intent, a defendant need not commit an element of the underlying offense.” (People v. Medina (2007) 41 Cal.4th 685, 694.) Although the crime of kidnapping requires proof the defendant moved the victim a substantial distance, the crime of attempted kidnapping does not. (People v. Cole (1985) 165 Cal.App.3d 41, 50.)
“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. [Citation.]’ [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 154–155 (Breverman).)
“[I]nsofar as the duty to instruct applies regardless of the parties’ requests or objections, it prevents the ‘strategy, ignorance, or mistakes’ of either party from presenting the jury with an ‘unwarranted all-or-nothing choice, ’ encourages ‘a verdict... no harsher or more lenient than the evidence merits’ [citation], and thus protects the jury’s ‘truth-ascertainment function’ [citation].” (Breverman, supra, 19 Cal.4th at p. 155, italics omitted.) “To justify a lesser included offense instruction, the evidence supporting the instruction must be substantial—that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist. [Citations.]” (People v. Blair (2005) 36 Cal.4th 686, 745.) We review de novo a trial court’s failure to instruct on a lesser included offense. (People v. Hayes (2006) 142 Cal.App.4th 175, 181.)
We agree with the People that the evidence did not support an instruction on attempted kidnapping. In considering whether the substantial distance element of simple kidnapping has been established, “the jury might properly consider not only the actual distance the victim is moved, but also such factors as whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim’s foreseeable attempts to escape and the attacker’s enhanced opportunity to commit additional crimes.” (People v. Martinez, supra, 20 Cal.4th at p. 237, fn. omitted.) “[C]ontextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance.” (Ibid.)
Granger’s trial counsel did establish, on cross-examination, that Bauer never showed Anna O. the pictures of Delta Meadows Park and never drove her to the place shown. At most, this calls into question Bauer’s testimony that Granger’s car was parked approximately 1.2 miles from the house on Catalina Way.
But, Anna O.’s undisputed testimony alone showed that she was moved more than a very short distance. She testified that, once Granger drove the car away from its parked location by the water, she pulled out her cell phone and dialed 911. While the car continued moving, Granger and Anna O. struggled for her cell phone. Next, she grabbed the steering wheel, turned it, and also reached over to Granger’s side of the car and unlocked the car doors. The car continued to move and, then, Anna O. opened her door and stuck her leg out. Granger grabbed her, pulled her back inside the car, and unsuccessfully tried to shut the door. It was only then that she jumped out of the car and walked to the nearest house. The car was traveling at least 25 miles per hour while these events unfolded.
It is irrelevant that Anna O. testified, on cross-examination, that the struggle over her cell phone occurred “right after we [took] off from the place [where the car was parked].” Even if it would be reasonable for the jury to infer from this testimony that the car had moved only a trivial distance at this point, she testified that Granger continued driving after this struggle for her cell phone.
Furthermore, Anna O. testified that Granger moved her after a car passed and she attempted to alert its occupants to her need for help. Thus, regardless of the actual distance that the car traveled before she escaped, it would appear that the movement increased Anna O.’s risk of harm and decreased the likelihood of detection. In short, a reasonable jury could only conclude from Anna O.’s testimony that she was moved a substantial distance. Granger did not present evidence from which a jury composed of reasonable persons could conclude that only an attempted kidnapping occurred.
In any event, the jury was instructed on false imprisonment, which is also a lesser included offense to kidnapping. (People v. Magana (1991) 230 Cal.App.3d 1117, 1121.) Because there was no risk that the jury would convict Granger of kidnapping simply to avoid setting him free, we agree with the People that any error was harmless.
F. Ineffective Assistance of Counsel
Granger also argues that his trial counsel provided ineffective assistance by: (1) failing to object to the admissibility of the photographs taken by Bauer and (2) failing to object to prosecutorial misconduct.
Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the effective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right “entitles [the defendant] to ‘the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.’ [Citations.]” (Ibid.) To establish ineffective assistance of counsel, a defendant must show: (1) that counsel’s performance was so deficient that it fell below an objective standard of reasonableness, under prevailing professional norms and (2) that the deficient performance was prejudicial, rendering the results of the trial unreliable or fundamentally unfair. (Strickland v. Washington (1984) 466 U.S. 668, 688, 692; People v. Ledesma, supra, 43 Cal.3d at pp. 216–217.) To satisfy the prejudice requirement, a defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, at p. 694.)
1. Failure to Object to Admission of Photographs
We reject Granger’s argument that his trial counsel provided ineffective assistance by failing to object to admission of the photographs of the turnout by Delta Meadows Park. Contrary to Granger’s assertion, foundation for admission of the photographs was established. Bauer testified that he obtained a description of the scene from Anna O. and that he had familiarity with the neighborhood from his regular patrols. Using that information, he determined the area fit the description given by Anna O. and took photographs. Granger’s trial counsel was not ineffective in failing to raise a meritless objection. (See People v. Prieto (2003) 30 Cal.4th 226, 261.)
2. Failure to Object to Prosecutorial Misconduct
Granger also argues that his trial counsel provided ineffective assistance by failing to object to portions of the prosecutor’s closing argument. First, Granger contends the following portion of the prosecutor’s argument constituted misconduct: “I told you at the beginning of this case that the defendant selected [Anna O.], and he chose her for a reason, the same reason that predators in the wild choose their prey. That’s what the defendant did in this case. What do we know about predators out in the wild? What do they do? Who do they prey on? Young, weaker, less strength, and perhaps sick. They go after them because those are the easiest kills. They don’t pick the strongest animal or the toughest, or have the internal fortitude to resist. They go for the easy picking, just like the defendant did in this case. Just like I told you in the very beginning. [¶] He selected [Anna O.] for a reason. You got to see [Anna O.] up here.... She’s a reserved, maybe immature, person who is not worldly, who doesn’t go out in the world, and is not able to do essentially like a lot of other people, have the confidence to stand up for themselves.... [¶]... [¶]... Everyone’s different. That’s human nature. [¶] We’re all human beings here, and I think you can expect that among people. But the defendant is a predator, like I said, and he wasn’t going to pick the strong willed. He was going to pick the one like [Anna O.] Nineteen years old, living at home, needed permission by her mom to go out.”
Next, Granger argues that the prosecutor committed misconduct by asking the jury to consider his future dangerousness. The record shows that the prosecutor argued: “Why do we have this rule, this law that allows us to talk about things [Granger] did before? You know why? Because people who commit sexual assault in the manner in which the defendant does it, you’re going to keep doing it. It’s a pattern of behavior. You guys don’t do it when you go out on dates. People who commit sexual assaults just don’t do it once. It happens more than once. It’s a pattern of behavior. That’s why you get to hear that evidence. That’s why you get to consider it.”
In Granger’s final challenge, he points out that the prosecutor argued, with respect to the asportation element of kidnapping: “[B]y taking her away... [defense counsel] might argue... [Granger] was just going to take her home. No, he wasn’t. He was going to finish the job, just like he had with [J.T.] One time wasn’t enough. He kept doing it. He’s going to keep her, take her somewhere else, finish the job, finish the rape.”
“In considering a claim of ineffective assistance of counsel, it is not necessary to determine ‘ “whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice... that course should be followed.” ’ [Citations.]” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)
In this case, even if the prosecutor’s comments constituted misconduct and Granger’s counsel had no valid tactical reason for failing to object and request an admonition, Granger’s ineffective assistance of counsel claim must be rejected.
If the record does not disclose the reasons trial counsel acted or failed to act in the manner challenged on appeal, we must assume counsel had a reasonable basis for acting or failing to act “unless the record... precludes the possibility of a satisfactory explanation” for trial counsel’s action. (People v. Ledesma (2006) 39 Cal.4th 641, 746.)
The jury was instructed that statements by the prosecutor are not evidence (CALCRIM No. 222) and to follow the court’s instructions on the law, even if they conflict with statements made by counsel (CALCRIM No. 200). The jury was also properly instructed, pursuant to CALCRIM No. 1191, as follows: “If you decide that the defendant committed the uncharged sexual offenses, you may consider that evidence and weigh it together with all the other evidence received during this trial to help you determine whether the defendant committed sexual penetration by force, fear, or threat, assault to commit a sex offense, and sexual battery. Remember, however, that the evidence of another sexual offense is not sufficient alone to find the defendant guilty of sexual penetration by force, assault to commit a sexual offense or sexual battery. The People must still prove each element of assault to commit a sexual offense and a sexual battery, all of those, beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose.” (Italics added.) Juries are presumed to follow the instructions given. (People v. Pinholster (1992) 1 Cal.4th 865, 919, disapproved on other grounds by People v. Williams (2010) 49 Cal.4th 405, 458–459.)
Given the strength of the evidence against Granger, the trial court’s instructions, and the brevity of the prosecutor’s remarks, there is no reasonable probability the outcome of Granger’s trial would have been different absent any error by his counsel. We reject Granger’s claims of ineffective assistance of counsel.
G. Cumulative Error
Finally, Granger argues that the cumulative effect of the asserted errors requires reversal of the judgment. We have rejected many of Granger’s arguments on the merits. Granger was entitled to a trial “in which his guilt or innocence was fairly adjudicated.” (People v. Hill (1998) 17 Cal.4th 800, 844.) He received such a trial.
III. Disposition
The judgment is affirmed.
We concur: Simons, Acting P. J., Needham, J.
CALCRIM No. 1215 provides, in relevant part: “To prove that the defendant is guilty of [kidnapping], the People must prove that: [¶] 1. The defendant took, held, or detained another person by using force or by instilling reasonable fear; [¶] 2. Using that force or fear, the defendant moved the other person [or made the other person move] a substantial distance; [¶] [AND] [¶] 3. The other person did not consent to the movement....”
Evidence Code, section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”