Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC155260A
Reardon, J.
In this case involving charges of multiple sex offenses and a false imprisonment count, the trial court granted a motion for acquittal on one count of aggravated sexual assault on a child (count 3), and the jury acquitted appellant Zachary Van Haynes of false imprisonment (count 2) but found him guilty on all remaining charges: one count of lewd and lascivious conduct (count 1); two counts of aggravated sexual assault on a child (counts 4, 5); seven counts of forcible rape (counts 6 through 12); and one count of forcible oral copulation (count 13). The court sentenced appellant to an aggregate unstayed term of 97 years to life. This sentence included consecutive terms of 15 years to life on the two counts of aggravated sexual assault on a child.
Appellant charges instructional error, prosecutorial misconduct and erroneous introduction of evidence. Appellant also presses that he was denied due process in connection with testimony that he photographed an act of oral copulation, and asserts that the flight instruction was unwarranted and prejudicial. We affirm.
I. FACTS
Zachary and Amelia Haynes had four children; the two older boys and the older daughter, Jane Doe 3 (JD3) moved out on their own at age 18 while the family still resided in Michigan. In December 2006, the Hayneses and their youngest child, daughter Jane Doe 2 (JD2), born in 1993, moved from Michigan to Novato, California, where they lived in the Novato Travel Lodge.
Amelia had a brain tumor removed in 1984, leaving her with an impaired memory and in need of assistance in caring for herself and undertaking daily routines. Amelia’s first language was Tagalog; she had a hard time understanding and speaking English.
A. Precipitating Incident
On Saturday, August 25, 2007, JD2 and her friend Jane Doe 1 (JD1), had just started the ninth grade. They were spending the afternoon at the Novato Travel Lodge. JD1 took a shower and went into JD2’s room to change. Meanwhile, JD2 was in the shower.
Appellant, wearing only shorts, entered the room and pushed JD1 onto the bed so his upper body was on her legs. He lifted the towel she had tied around her and kissed the top of her underwear. Just then Amelia inserted her key in the door. Appellant got up and ran to a connecting room. Amelia entered the room, JD1 got dressed and went into the bathroom.
JD1 tried to tell JD2 what happened. JD2 said they would talk about it at JD1’s house because she could not hear her in the shower. They went to JD1’s house (JD1 drove—appellant let her, although she did not have a license). JD1 talked about what happened, noting that JD2 was surprised, saying “[s]he didn’t think that he would do that to someone else” and that appellant “[m]ade her have sex with him.” JD1 convinced JD2 to let them tell her mother, which they did. JD1’s mother called the police and drove them to the station.
JD1 did not remember what she said to her friend at that point. JD2 testified that JD1 asked if her dad was a pervert. The question made JD2 nervous.
That day JD2 spoke with Officer Steven Cogan. Cogan prompted JD2 to make pretext calls to appellant. He coached her to make sure that appellant was coming to pick her up. With Amelia driving, appellant and his wife left the parking lot of the Novato Travel Lodge and proceeded northbound on Redwood. Shortly thereafter officers initiated a traffic stop and arrested appellant. Confronted with accusations against her husband, Amelia said she and JD2 were very close, and nothing was going on.
Detective Sophia Winter interviewed JD2 on August 29, 2007. She testified that JD2 said that on several occasions appellant would hit her, particularly during a sexual assault; if she struggled, fought or tried to run, he would drag her back or hold her down. Often appellant would slap JD2 across the face or hold his hand up, threatening to slap her. JD2 told Detective Winter that appellant forced her to have sexual intercourse with him and this would happen once or twice a week, sometimes every other week, sometimes weeks in a row, also describing the frequency as “random.” Sometimes when she woke up appellant was on top of her. She would struggle and squirm to get away, but he would either cover her mouth or nose, slap her, or threaten a slap.
A nurse practitioner examined JD2 in September 2007. She had “no obvious tears” in the hymen and the posterior fourchette and fossa were normal. JD2’s hymen was estrogenized with rounded edges. The practitioner also observed that the hymen was distensible. These characteristics were consistent with being sexually active.
B. JD2’s Testimony Describing Abuse
JD2 testified at trial that appellant began touching her inappropriately when she was in the third grade in Michigan. He took off her underwear and touched her vagina with his hands, lips and penis. He also touched her breasts. This touching happened several times—definitely more than twice. JD2 told her mother but the molestation did not stop.
JD2 testified that, while still in Michigan, “eventually, he got it [into] my vagina.” He “would force it in there, force his penis [into] my vagina and put all of his weight on me and he would kiss me.” This happened more than 10 times. Appellant also forced JD2 to orally copulate him more than five times; and at least twice he “put his penis in [her] butt.” If JD2 refused to suck appellant’s penis, he would grab her arm, pull her hair, and slap her face until she complied. JD2 felt “disgusted, exhausted, ... like [she] wanted to die.” The girl sometimes kept a knife, and once a golf club, under the bed so “maybe [she] could try and hit... or stab him, ” but she “lost [her] energy and could never grab” what was under the bed.
The family moved to Novato when JD2 was in the eighth grade. Appellant continued his inappropriate behavior. Appellant “raped” her more than once a month. JD2 said “rape” meant “when one person has sex with another person and one of them doesn’t want it. It’s unwilling.” During that time at the Novato Travel Lodge appellant also had JD2 “suck on his penis”; this occurred at least once.
C. JD3’s Testimony Regarding Abuse
JD3, an active duty Marine, testified pursuant to Evidence Code section 1108 of multiple sexual assaults committed by appellant against her. Inappropriate touching began between the ages of seven and nine. The first instance of intercourse occurred when she was 12 and the family lived in Orange County. JD3 was “99 percent positive” that she was drugged. When she woke up she was on her stomach, things were very blurry and she was incapable of moving. JD3 turned around; her father was on top, “having sex” with her.
After they moved to Michigan, appellant raped her at least once—and sometimes four times—a month. This was when JD3 was between the ages of 14 and 18. Appellant would hit her if she resisted, and also to force her to perform oral sex. Sometimes he punched her in the stomach. As well, at times appellant would drive to a motel; he would drag JD3 in by the hair or hit her until she would walk in herself. On one occasion when she resisted going into a motel room with him, appellant hit JD3 so hard that he chipped her already chipped tooth.
In time JD3 stopped resisting to escape the physical abuse. There was never a time in her life that she “wanted this to happen.” She did not have consensual sex with anyone until she was 18 and had left home.
JD3 became pregnant twice by appellant, maybe three times. She had abortions on December 11, 1999 and May 6, 2000. Appellant arranged for pregnancy tests and each time told JD3 she was going to have an abortion, took her to the clinic and paid cash.
After JD3 moved out she met with her dad on occasion in public places for lunch or dinner. She was struggling for money and he helped. One time when they arranged to meet for lunch, appellant grabbed and hit JD3 as she entered the back door of the restaurant. He began dragging JD3 by the shirt and hair; she screamed and when a waitress showed up, appellant ran away exclaiming JD3 was crazy. When the police arrived JD3 reported that her father had “mental issues” but did not mention the sexual abuse.
On JD3’s 20th birthday, appellant flew her to Florida where the family was visiting while he finished a contract job there. That morning he sent Amelia and JD2 off to do something. After JD3 came out from her shower she noticed her mother and sister were gone and the door was locked. Appellant forced her to drink some liquor, forced her into the bedroom, and directed her to undress, put on a bathing suit and orally copulate him. He photographed the incident. Amelia and JD2 returned and knocked on the door. Appellant said, “Just a second”; they tried to open the door. JD3 ran out and caught up with them on the street. She told her mother that appellant was having sex with her. Amelia, crying, replied, “I know. I know.”
JD3 first came forward in August 2007, after Amelia told her about the molestation of JD1 and sexual abuse of JD2. JD3 explained: “I was [naïve] and I thought I was the only person to have received the sexual abuse.”
JD3 told a defense investigator that appellant had not done anything inappropriate while she lived with him, and JD2 never told her of inappropriate behavior or molestation.
II. DISCUSSION
A. The Court Properly Refused to Instruct on Unlawful Sexual Intercourse as a Lesser Included Offense on Counts 4 and 5
Counts 4 and 5 alleged aggravated sexual assault of a child, pursuant to Penal Code section 269, subdivision (a)(1), which provides that an aggravated sexual assault of a child under the age of 14 occurs when a person seven or more years older than the victim commits, among other offenses, a rape as defined in section 261, subdivision (a)(2). That statute in turn applies to “an act of sexual intercourse” “accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person....” (§ 261, subd. (a)(2).)
Unless noted otherwise, all further statutory references are to the Penal Code.
For these counts the court instructed the jury on the underlying offense as well as lesser offenses of rape and assault. However, the court denied appellant’s request to instruct on unlawful sexual intercourse. (§ 261.5.) This is “an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a ‘minor’ is a person under the age of 18 years and an ‘adult’ is a person who is at least 18 years of age.” (Id., subd. (a).) Appellant maintains that there was “a live factual issue calling into doubt whether appellant in the charged crimes acted against the will of the victim or employed force or violence, ” and hence the court erred in refusing to deliver the requested instruction. We cannot agree.
A criminal defendant is entitled to lesser included offense instructions only when there is evidence which, if accepted by the fact finder, would absolve the defendant of violating the greater offense, but not the lesser. (People v. Memro (1995) 11 Cal.4th 786, 871.) In other words, the duty to instruct arises only if there is substantial evidence that the defendant committed the lesser included offense; conversely there is no duty if there is no evidence that the offense is less than that charged. (People v. Mendoza (2000) 24 Cal.4th 130, 174.) Speculation is not enough to trigger the duty to so instruct. (Ibid.) Courts “employ two alternative tests to determine whether a lesser offense is necessarily included in a greater offense. Under the elements test, we look to see if all the legal elements of the lesser crime are included in the definition of the greater crime, such that the greater cannot be committed without committing the lesser. Under the accusatory pleading test, by contrast, we look not to official definitions, but to whether the accusatory pleading describes the greater offense in language such that the offender, if guilty, must necessarily have also committed the lesser crime.” (People v. Moon (2005) 37 Cal.4th 1, 25-26.)
Appellant acknowledges that pursuant to the elements test, unlawful sexual intercourse is not a lesser included offense of aggravated assault. The discrepancy in the relative age requirements for the two crimes dooms the elements test for lesser inclusion. (See People v. Scott (2000) 83 Cal.App.4th 784, 796.) However, he maintains that under the accusatory pleading test, the information alleged, as to the aggravated sexual assault of a child charges, the requisite offense of rape and the proper age differential, terms which would precisely describe the crime of unlawful sexual intercourse. Hence, the latter was a lesser included crime within the former. To complete his thesis, appellant argues that the jury reasonably could have absolved him of aggravated sexual assault because JD2 resorted to generic descriptions of the force appellant applied, and did not associate force with specific acts of intercourse in December 2006 and January 2007. Further, JD3 was “highly equivocal” in the statement she gave to Officer Cogan in August 2007. As well, appellant notes there was evidence that JD3 had affection for her father, she indicated he gave her “a lot of goodies” so she “felt spoiled, ” and she felt safe with him. He also points to JD2’s MySpace page where she identified her age as 24 and her occupation as a computer programmer earning $100,000 a year, and listed her dad as a friend complete with pictures of him and links to his page. She also posted a song called “On the Floor” that had raunchy lyrics.
By definition, the crime of aggravated sexual assault of a child committed by rape can be accomplished by acts other than those involving force or violence, namely by “duress, menace, or fear of immediate and unlawful bodily injury....” (§§ 269, subd. (a)(1), 261, subd. (a)(2).) “Duress” is “a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress.” (§ 261, subd. (b).) “Menace” in turn is “any threat, declaration, or act which shows an intention to inflict an injury upon another.” (Id., subd. (c).)
The term “force” as used in the rape statute does not bear any specialized legal meaning. To establish force within the statute, the People “ ‘need only show the defendant used physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will of the [victim].’ [Citation.]” (People v. Griffin (2004) 33 Cal.4th 1015, 1023-1024.) Thus “in a forcible rape prosecution the jury determines whether the use of force served to overcome the will of the victim to thwart or resist the attack, not whether the use of such force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker. The Legislature has never sought to circumscribe the nature or type of forcible conduct that will support a conviction of forcible rape, and indeed, the rape case law suggests that even conduct which might normally attend sexual intercourse, when engaged in with force sufficient to overcome the victim’s will, can support a forcible rape conviction.” (Id. at p. 1027.)
To the extent JD2 gave “generic testimony, ” her testimony as a whole did not in reason support an instruction on unlawful sexual intercourse; nor did any statements of affection or loyalty for her father or the contents of the 13-year-old’s MySpace page in reason support such an instruction. This is because the evidence overwhelmingly supported the conclusion that the sexual intercourse was against JD2’s will and indeed the pattern of assaults had conquered her will.
The evidence showed that appellant either forced the episodes of sexual intercourse, or JD2 acquiesced because of prior force or threats of force from her father, an authority figure in her life and the holder of the purse strings, all within a household where the mother was disabled and her older siblings were absent. Specifically, JD2 testified to a pattern of forced sexual intercourse that began in Michigan and continued in Novato. In Michigan, if she resisted he would grab her arm, pull her hair and slap her face. JD2 kept things—a knife and once a golf club—under the bed, thinking she could hit or stab appellant, but “lost” her “energy” and could never grab the implement to follow through. Later, in Novato, she did not tell anyone what was happening because she was embarrassed, saying also, “I was used to it and I was still scared.” JD2 said she had “no way” of stopping her father. “I thought about it a lot. But every time I came to a block and there was nothing I could ever do or think of that would help me.” As well, there were times, at night, when JD2 would hold on to a table so appellant could not get her into the bed. On those occasions he would grab JD2, “really squeeze” her arm or hair and pull her away. JD2 would not make any noise because she was afraid if her mother awoke, appellant would hurt one of them. JD2 also told Detective Winter that sometime when she tried to get away appellant would slap or threaten to slap her. Moreover, as time went on she panicked less and less when her father tried to have sex with her because “it’s like I’ve given up. It’s going to happen to me anyway[.] [¶]... Why would I struggle? It makes it worse.” To Officer Cogan she related that appellant told her not to reveal the sexual assaults to anyone.
In sum, the evidence and inferences therefrom that appellant highlights are minimal and speculative at best, unworthy of the requested lesser included instruction. Moreover, rather than tending to establish that the sexual assaults were not against JD’s will and not effected by force or fear of immediate and unlawful injury, as appellant would have it, the evidence as a whole described a longstanding pattern of force or threat of force and coercion to which JD2 submitted, not to normal or consensual sexual activities. (See People v. Mejia (2007) 155 Cal.App.4th 86, 101.)
B. The Court Properly Refused to Instruct on Nonforcible Lesser Included Offenses on Counts 6 through 13
Similarly, citing the same evidentiary basis, appellant urges that the court should have instructed the jury on nonforcible sexual offenses as lesser included offenses on counts 6 through 13, comprising seven counts of rape (counts 6 through 12) and one count of forcible oral copulation (count 13). For the rape counts, the court gave instructions on the lesser offenses of attempted rape, assault with intent to commit rape, and assault. For the forcible oral copulation count, there were instructions on the lesser offenses of attempted oral copulation by force, assault with intent to commit oral copulation, battery and assault. All of the lessers involved assaultive conduct and/or a less serious sexual element.
The difference between counts 6 through 12 and counts 4 and 5 is that the activity related in the former occurred after JD2 turned 14.
For the reasons set forth above, we reject appellant’s argument.
C. The Court Did Not Abuse Its Discretion in Allowing the Prosecutor to Use the Word “Rape” During Questioning of JD2
1. Background
JD2 testified to a series of forced sexual offenses that occurred when the family lived in Michigan. Thereafter, proceeding to the family’s move to California, the prosecutor asked, “When you were living at the Novato Travel Lodge, did the defendant rape you?” Defense counsel objected, arguing that the prosecutor was leading the witness and whether the conduct described amounted to rape was for the jury to decide. Overruling the objection, the court explained that the term “rape” had a legal meaning and was also “a possessive term. [¶]... [¶]... She can describe it. That’s up to her. [¶]... [¶]... It’s a yes or no. It’s not leading.” Over further objection, the prosecutor continued to use “rape, ” asking or stating, at various points: “When did he rape you.” And a bit later: “You said that your father raped you. I then asked if you could tell us when.” Responding that she could not remember exact dates, the prosecutor followed up with this query: “[D]o you remember any significant times around which your father was raping you?” Again overruling the objection, the court related that counsel would have the opportunity to cross-examine the witness.
Moving on to the number of occasions that occurred, this was the prosecutor’s question: “Do you remember how many times your father was raping you when you were living in the Travel Lodge?” Defense counsel again argued whether “these are rapes” is a legal conclusion for the jury, to which the court remarked “[i]t’s also a term for describing a sex act....” And, when counsel commented that JD3 never used the word in the interviews with police, the court indicated, “You may need to clarify that. Just because somebody doesn’t mention it in the transcript doesn’t mean they don’t mention it at trial.”
The prosecutor proceeded to ask JD2 if she knew what the term “rape” meant. She answered: “It’s when one person has sex with another person and one of them doesn’t want it. It’s unwilling.” This response was followed by the following exchange: “Q Was what your father was doing to you in Novato rape? [¶] A Yes. [¶]... [¶] Q How often—do you understand when I ask you, how often was he raping you? [¶] A Yes. [¶] Q When I ask you how often he was raping you, was he raping you once a month when you were living in the Travel Lodge? [¶] A No, it was more like a few times a week and then some weeks it doesn’t happen.”
This line of questioning continued, with another objection, also overruled.
2. Analysis
Appellant maintains that the court, by overruling valid defense objections, enabled the prosecutor to commit the misconduct of eliciting a legal conclusion from JD2, namely that she was raped. We disagree; the court did not abuse its discretion in allowing the challenged questioning and testimony.
The so-called “opinion rule” set forth in Evidence Code section 800 prescribes limits to the testimony of nonexperts that takes the form of an opinion. This rule “merely requires that witnesses express themselves at the lowest possible level of abstraction. [Citation.] Whenever feasible ‘concluding’ should be left to the jury....’ [Citation.]” (People v. Hurlic (1971) 14 Cal.App.3d 122, 127.) However, as a sister state court has observed, a witness’s use of the term “rape” is not the expression of a legal opinion if the witness is merely “stating in shorthand fashion her version of the events” she is describing. (State v. Goss (1977) 235 S.E.2d 844, 849.)
JD2 testified in detail to unwilling sexual intercourse, oral copulation and anal penetration while living in Michigan. When the prosecutor segued to California, her testimony in response to questions about “rape” was a shorthand way of accurately describing what continued to happen here.
Appellant acknowledges the rule of State v. Goss, supra, 235 S.E.2d 844, but argues that JD2’s testimony did not justify use of the term “rape.” He underscores that JD2 had not used the word “rape” until the prosecutor suggested the characterization of the assaults as “rape.” Appellant ignores JD2’s detailed description of the various acts of forced penetration that appellant committed against her will in Michigan. It is this testimony that set the stage for the shorthand use of the term “rape.” Moreover, JD2 gave her own definition of rape which, on top of the Michigan testimony, shows that she was referring to the correct concept. Appellant faults her definition as “incomplete” because it reflected “merely subjective lack of consent by the alleged victim, ” referring to authority which discusses a defense to rape based on defendant’s reasonable and good faith mistake of fact regarding consent to sexual intercourse. First, this case brooks no comparison with situations raising a question as to whether intercourse between two adults was consensual. Second, JD2’s statement that rape is “unwilling, ” when “one of them doesn’t want it” was backed by testimony showing the element of force, namely that she either resisted or was deterred from resisting because of a prior pattern of force or threat of force, a pattern of behavior that overcame her will.
Citing People v. Mayberry (1975) 15 Cal.3d 143, 154; People v. Williams (1992) 4 Cal.4th 354, 360-361.
D. No Abuse of Discretion in Allowing JD3 to Testify About Her Abortions
Following a hearing on appellant’s in limine motion to prevent JD3 from testifying that her father had impregnated her and as a consequence she had two or three abortions, the trial court allowed the evidence. Ruling under Evidence Code section 352, the court determined that the substantial probative value of the evidence outweighed its inherent prejudicial effect. Appellant insists that this evidence bore minimal probative value tending to corroborate the testimony of JD2 and JD1, and conversely its introduction carried the risk of substantial prejudice by inflaming the emotions of the jury.
We review the trial court’s Evidence Code section 352 rulings under the deferential abuse of discretion standard. (People v. Hart (1999) 20 Cal.4th 546, 606.) Thus we will not disturb the lower court’s decision except upon 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.]’ [Citations.]” (People v. Fulcher (2006) 136 Cal.App.4th 41, 58.) The concept of prejudice, as understood in the section 352 context, refers to evidence that tends uniquely to invoke an emotional bias against the defendant, without regard to its pertinence to material issues. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
Here the evidence of abortion had a tendency in reason to corroborate JD3’s testimony detailing the incidents of sexual intercourse she suffered from appellant, and that testimony in turn tended to corroborate the testimony of JD2 and JD3. It underscored appellant’s willingness to exploit and abuse his young daughters without regard for the practical, emotional or physical consequences. Similarly, the evidence illustrated the magnitude of appellant’s drive to force sexual relations on his daughters in that he did not cease raping JD3 notwithstanding that she became pregnant and had to have an abortion. The rebuttal value of the evidence was also significant in light of the defense investigator’s statement that JD3 said appellant had done nothing inappropriate with her while she lived with the family.
On the other hand, the prejudicial effect of the evidence did not overwhelm its probative value. In themselves the sexual offenses JD3 recounted were vivid—repeated sexual acts violently forced upon her, with one incident resulting in breaking an already chipped tooth. She expressed that the abuse was “dangerous” and embraced physical, sexual, emotional and psychological dimensions. While the topic of abortion in the abstract may provoke strong emotion, the evidence here did not go to the morality of abortion but rather to the actual physical consequences of the sexual abuse. In this context we do not discern that JD3’s testimony would rise to the level of evoking an emotional bias against appellant as an individual apart from what the facts tended to prove.
E. No Abuse of Discretion in Failing to Declare a Mistrial Based on JD3’s Testimony that Appellant Photographed an Act of Oral Copulation
Appellant further challenges the trial court’s failure to declare a mistrial after JD3 blurted out that appellant photographed her in an act of oral copulation which he forced her to perform, contending also that the prejudice from the ruling “accumulates” with evidence of JD3’s abortions.
Previously, the court had ruled in limine that it would not allow testimony that appellant filmed JD3 in the act and made her watch the films. The court explained to JD3: “You won’t be asked a question about filming and you shouldn’t volunteer statements about filming.” JD3 queried: “But if I’m asked, I can answer honestly?” to which the court responded: “If you are asked a question, you can answer honestly.” Nonetheless, when the prosecutor asked JD3 about an incident that occurred on her 20th birthday while visiting the family in Florida, she described an oral copulation incident, followed by this: “[A]nd I think he was taking a picture of me when his penis was in my mouth. And I was wearing the pink bathing suit that he made me put on, and then he showed me the picture and then I knew what was going to come next—was the rape again.”
Defense counsel first complained that JD3’s testimony violated the court’s order. The court disagreed, expressing “I don’t believe that [JD3] stepped over a line in terms of the Court’s ruling related to the filming, the video.”
Ultimately defense counsel requested a mistrial. Denying the motion, the court reiterated that its previous ruling pertained to filming and videos and the witness did not step over the line of that ruling. Additionally, the court observed that the witness was credible and did not embellish her remarks about the photograph.
Appellant charges that the court’s reasoning was not on point, that the rationale for prohibiting testimony about filming would apply equally to the taking of a photograph, and by denying the mistrial motion the court “effectively ruled that the photograph was admissible evidence.”
We agree with appellant that the court’s reasoning did not adequately address the issue of whether or not evidence of the photograph should have gone to the jury. However, we review the correctness of the trial court’s decision, not its reasoning, and conclude the court properly denied the motion for mistrial. (In re Baraka H. (1992) 6 Cal.App.4th 1039, 1045.)
“A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.” (People v. Bolden (2002) 29 Cal.4th 515, 555.)
JD3’s testimony concerning the photograph did not imperil appellant’s chances of receiving a fair trial. JD3 briefly mentioned the photograph itself as part of her testimony of a series of forcible sexual assaults against her. The evidence that appellant photographed her committing oral copulation is not more inflammatory than the evidence of the substantive offenses he committed against his daughters. And, if the jury believed JD3 as to the substantive conduct, that amounted to more than sufficient evidence of his appetite and disposition for engaging in incestuous forcible sexual conduct. If the jury did not believe that appellant abused JD3, it would also reject her testimony that appellant photographed a sexual offense that did not occur.
F. No Prejudicial Error in Delivering the Flight Instruction
Over objection, the court delivered the standard jury instruction on flight, CALCRIM No. 372. Appellant contends there was insufficient evidence to support the instruction and in any event the prosecutor should have been estopped from lobbying for it.
The court instructed as follows: “If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.” (CALCRIM No. 372.)
While JD2 was at the police station, she participated in a pretext call and asked appellant to pick her up. Appellant said “we’re on our way, ” and also asked if “the police [were] waitin’ for us?” Appellant and Amelia got into their car, drove off, and the police pulled them over shortly thereafter.
The prosecutor argued: “They have been living a transient existence from one state to the other, and... after the accusations are brought up, he’s leaving the scene.” Protesting the proposed instruction, defense counsel countered “[t]hat’s completely speculation” and the evidence was redolent of only one suggestion, namely that appellant was going to pick up his daughter.
A flight instruction generally is proper if the evidence shows that the defendant left a crime scene under circumstances suggesting that his or her movement was motivated by a consciousness of guilt. (People v. Bonilla (2007) 41 Cal.4th 313, 328.) “Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest ‘a purpose to avoid being observed or arrested.’ [Citations.] To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence.” (Ibid., italics omitted.)
While there may have been a marginal inference of flight, we agree with appellant that, given the pretext call, the People should have been stopped from pushing for the instruction. Evidence Code section 623 states: “Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.” Here, by prompting JD2 to ask appellant to pick her up, Officer Cogan steered JD2 in orchestrating the situation for a safe arrest. While Officer Cogan’s actions were not objectionable, attaining a flight instruction at trial based on appellant’s stepping right into the prefabricated plan invokes the prohibition of Evidence Code section 623. The prosecutor should have been estopped from using that result against appellant at trial. (See In re J.L. (2008) 159 Cal.App.4th 1010, 1024.)
Nonetheless, no prejudice flowed from the instruction. The evidence of appellant’s misdeeds was considerable and for the most part unimpeached and uncontroverted. There was a dearth of exculpatory evidence. Plus, the instruction did not prevent the jury from concluding appellant was just going to pick up his daughter, as arranged.
G. No Cumulative Error
There being no cumulative error, there is no prejudice that could amass from such error.
III. DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P.J., Sepulveda, J.