Opinion
A094582.
7-24-2003
THE PEOPLE, Plaintiff and Respondent, v. ERIC HSU, Defendant and Appellant.
Eric Hsu (appellant) was convicted, following a jury trial, of rape of an unconscious woman. On appeal, he contends (1) the trial court erred by admitting evidence of prior sexual offenses to demonstrate appellants propensity to commit sexual offenses; (2) the trial court erred by instructing the jury regarding prior sexual offenses pursuant to CALJIC No. 2.50.01; (3) the trial court erred by admitting a tape recording of a 911 call regarding the alleged rape; (4) the prosecutor committed prejudicial misconduct (a) during jury voir dire, (b) by eliciting improper testimony, and (c) during closing argument; (5) the trial courts modification of the readback instruction (CALJIC No. 17.43) was error; (6) the trial court erred by instructing the jury pursuant to CALJIC No. 17.41.1; and (7) the trial court erred by denying appellants motion for a new trial. We shall affirm the judgment.
PROCEDURAL BACKGROUND
On September 27, 2000, appellant was charged by information with rape of an unconscious woman (Pen. Code § 261, subd. (a)(4) - count one), and failing to register as a sex offender, a misdemeanor ( § 290 - count two). Appellant pleaded guilty to count two and, on November 30, 2000, a jury found appellant guilty on count one.
All further statutory references are to the Penal Code unless otherwise indicated.
On April 6, 2001, the trial court sentenced appellant to the midterm of six years in prison on count one and a concurrent six-month county jail term on count two, which it deemed served.
This timely appeal followed.
FACTUAL BACKGROUND
Prosecution Case
Katie M., who was 27 years old at the time of trial, testified that she met appellant through an ex-boyfriend in the summer of 1999. She knew appellant as "G-Haw," and had spent time with him on numerous occasions, mostly with other people as well. Katie had never had an intimate relationship with appellant, and never wanted to pursue a romantic relationship with him. Appellant had been a bike messenger for a while, but, for all of the time she knew him, he was homeless and lived in the park.
Katie lived alone in a small studio apartment on Oak Street in San Francisco. Appellant had come to her home several times, always uninvited.
On Sunday August 20, 2000, Katie spent the day in her apartment. Appellant had come over one day, but she could not remember if it was on that day. That evening Katie went to meet her friend Karyne at Molotovs bar, which was on Haight Street, about four blocks from her apartment. Katie went to Molotovs once or twice a week, on the weekend. She arrived at the bar that evening at about 6 p.m. Appellant was not with her then and she had no plans to meet him at Molotovs, although appellant was "always" on the block of Haight Street where Molotovs is located.
After she arrived, Katie ate a cheeseburger. She drank her first beer at approximately 6:30 to 7 p. m. Early in the evening, appellant stuck his head in the window near where Katie was sitting and asked her for a dollar for pizza, which she gave him. Appellant had asked her for money once or twice before. A short time later, appellant came inside the bar and hung out with the regular customers in the bar; he probably talked to Katie then too.
Katie stayed at Molotovs until 2 a.m., when it closed. She drank about eight or ten beers while she was there. She also drank some water and a glass or two of wine. Katie saw appellant come in and out of the bar a few times that night, but was not paying close attention to him.
By midnight, Katie was "tipsy," but was able to walk and understand what people said to her; she did not get sick or throw up. Katie had made no plan to meet appellant, but when the bar closed at 2 a.m., she went outside and saw him. She did not recall whether she asked appellant to walk her home or whether he offered, but she generally asked to be walked home from Molotovs if it was late. During the five-minute walk, Katie told appellant about a man she had just met. In the past, she had also talked to him about her ex-boyfriend, with whom she had recently broken up, but had never talked about her sex life with him. Appellant, however, had once offered graphic details about his own sex life, and Katie had laughed it off, saying, "too much information."
When they got to Katies apartment, Katie told appellant he could stay over; she felt sorry for him because he had no place to live. Also, he had asked her before if he could sleep on her couch and gave her "a guilt trip" when she refused. Katie told appellant he could sleep on the couch, but would have to leave by 8 a.m., because that was when she went to work. She went into the bathroom; cleaned up; changed into her pajamas, which consisted of a long-sleeved cotton shirt and flannel pajama bottoms; brushed her teeth; came out; and went to bed. Appellant was sitting nearby on the futon couch. She turned out the light and fell asleep almost immediately, while lying on her stomach, which was her usual sleep position. She did not cry before or after she got into bed. Katie is a "medium" sleeper.
Katie woke up sometime later in the same position in which she had fallen asleep. Her pajama bottoms and underwear were around her ankles; her legs were about six inches apart. Appellant was behind her with his penis in her vagina; he was "pumping away." At first she thought it was a nightmare, but then realized it was real. She said: "What are you doing?" and appellant jumped off. She saw he was naked. Katie pulled her pants up, sat on the corner of the bed, and said: "you have to leave." Appellant got dressed and left without saying a word. Katie locked the door behind him.
Katie felt shocked and started to cry. She did not call 911 because she did not feel comfortable talking to strangers at that point, so she called her sister in Boston, and told her what had happened. They talked for 10 or 15 minutes; Katie was hysterical and sobbing. After they hung up, her sister, Bridget, called the 911 operator in San Francisco, who then called Katie, so that all three were on the line. Later that morning, the police came to Katies apartment and she told them everything that had happened. She was completely traumatized and hysterical; she did not remember if she had said she did not want medical attention. She then went to the hospital, where she was examined by a nurse at about 8 a.m. The nurse found a tampon in her vagina, which she had put in before going to bed.
Katies mother flew in from the east coast immediately and stayed for several days. Late on the night of Tuesday, August 22, 2000, Katie received a phone call and appellant left a message. She called Police Inspector Kidd the next day and told him to listen to it. The taped message was played for the jury.
In the message, appellant told Katie, "I admit I was wrong and I want to apologize" and asked her to drop the charges against him.
Katie had been under a doctors care for depression since September 1999. She took Prozac and Rabutin [sic] every day. In early September 2000, Katie went to Boston to be with her family for support because she was not doing well on her own.
A few weeks before trial, Katie met a woman named Marlowe Riley at Molotovs. They began talking and Katie told her that she had been raped and was going to court in a couple weeks. Riley said: "Wait a minute. Your name is Katie? You know G-Haw?" Riley continued: "Hes been calling my boyfriend and [me] from jail, he sent a letter, a couple of letters." She told Katie she still had one of the letters and offered to give it to her.
Katies sister, Bridget M., testified that she lived in Boston. At 7:22 a.m. on August 21, 2000, she received a phone call from Katie. Katies voice was trembling as she told her sister that something terrible had happened, that she had just been raped. They talked for about 15 minutes and Katie cried throughout the call. Katie told Bridget that she woke up to find "G-Haw" having sex with her. Katie became very despondent during the conversation, so Bridget offered to call the police on her behalf and Katie said "yes." Bridget then called 911 in San Francisco. Bridgets 911 call, in which Katie joined, was played for the jury.
Katie visited her mother, stepfather, and sister in Boston about 10 to 12 days later, for support. When she arrived, she was extremely sullen, despondent, and detached. When she left 10 days later, she seemed to be in a better state of mind. On cross-examination, Bridget said she took notes during her initial conversation with Katie, and later wrote a statement for the San Francisco Police Department. According to her notes, Katie had said that she had been hanging out with appellant earlier in the day, had invited him to her house, and had made him a peanut butter and jelly sandwich.
Maggie Hewitt, a registered nurse and sexual assault nurse examiner, testified that she conducted a sexual assault examination on Katie on August 21, 2000 at 9:45 a.m. Katie, who was "tearful" during the exam, told Hewitt that she had been asleep on her stomach and that she "awoke to find the assailant on top of her penetrating her vagina." Hewitt removed a tampon from Katies vagina during the exam. Using a black light that illuminates semen and other matter, Hewitt detected two marks on the backs of Katies thighs, near her buttocks; she also found marks on Katies inner thighs, near the vaginal opening. She did not find any trauma in the genital area. In Hewitts experience, she had found genital trauma in less than half of the cases of intercourse without consent. Hewitts observations of Katie during the exam were consistent with the history that Katie had described to her.
Karyne Gost testified that she lived in San Francisco and had known appellant for about seven years. She knew him casually from seeing him in the Haight Street area. Years ago, they used to talk more and she would give him money when he asked for it. Then she did not see him for several years, but ran into him again in February 2000 on the street. Their relationship remained a "very casual acquaintance. Hanging out." She did not consider him a close friend.
Gost had met Katie at Molotovs bar in June or July 2000 through mutual friends, and they became good friends. They met at Molotovs on August 20, 2002, at about 6 p.m. Katie ate and they both drank beer. At some point, Gost saw appellant in the window of the bar. He asked Katie for money, which she gave him. Later, towards the end of the night, appellant came into the bar and she saw him talking to Katie. When the bar closed, Gost wanted to call a taxi for Katie, but Katie left with appellant. Gost wondered, "what is she doing letting him walk her home," but Gost did not say anything to Katie, which Gost later regretted.
Gost explained that earlier that year, she was sitting in a booth at Molotovs talking to appellant when he touched her thigh three or four times. She did not find it offensive because they were just talking and she was not on guard at that point. Then, on two separate occasions, appellant grabbed her bottom while she was standing at the bar ordering a drink. On the first occasion, she gave him a look, but did not say anything. Appellant "kind of smirked" in response. On the second occasion, she said something like, "Get your fucking hands off me," gave him a look, and walked away. That was the last time she spoke to him.
Marlowe Riley testified that she had known appellant for about two years. She used to run into him on the street in her neighborhood in the lower Haight in San Francisco, and he was also friends with her boyfriend. Appellant used to come to their house sometimes and hang out. Earlier that year, appellant came over to see Rileys boyfriend, who was not home. Riley let him in, and they talked for a while. Appellant began rubbing her shoulders, which Riley wanted him to do. She was very tired and began to fall asleep. She then felt a hand on her bottom, and she asked what he was doing and told him to get out. Riley was surprised he touched her that way, since he was friends with her boyfriend. But she never felt threatened by him because she always thought she could "kick his butt."
Riley did not meet Katie until a few weeks before trial. They were at a mutual friends house one night, and during the conversation she realized who Katie was. Riley and her boyfriend had received a letter from appellant regarding Katie, postmarked September 19, 2000, which she later turned over to the prosecution in this case.
The letter was admitted into evidence, but is not in the record on appeal. From the prosecutors quotation of the letter during closing argument, it is apparent that the letter, written two days after the preliminary hearing, contained the following statements: "I wrote a rap about what happened and its how I choose to explain it if you dont mind. . . . Dont fuck with no Boston bitch like this one named Katie. . . . She didnt even bother to pull out the futon for me. . . . . She started crying so how was I supposed to sleep? I went to comfort her and thought I would give her what she need. . . . There was no sign of displeasure so . . . I kept going. She woke and said "What are you doing?" . . . . Well, thats when I jumped back. She said she was asleep, but I was unconscious of the fact . . . . and since I stopped right away, then technically thats not rape."
Emma Barker, who did not know Katie, testified that on January 26, 1998, she lived in San Francisco. She rode the "N Judah" streetcar home at about 7 p.m. after going to the gym after work. The streetcar was very crowded and Barker was standing up. For seven to ten minutes of the ride, Barker felt her bottom being nudged from behind her with what felt like a hand. She became suspicious, though she thought it might be the "normal sardine experience on the Muni," and she smelled "male breath" coming from behind her. Barker looked back and caught glimpses of the person, a short Asian male with long hair. She then felt a hand come across her thigh and grab the front of her crotch. The hand stayed there for maybe 10 seconds until Barker, who was confused, frustrated, and disgusted, said "Muni, stop" and got off the streetcar. Two other people exited at the same time, one of whom she believed was the man who had been behind her.
Barker told the other woman who had gotten off the streetcar what had happened and they started chasing the man. She saw a police car and told the officer inside what had happened; the officer chased the man. Barker said appellant looked very much like the man from the streetcar. The parties stipulated that "on January 26th, 1998, at approximately 8:00 p.m. in the area of 4th Avenue and Hugo Street, the defendant Eric Hsu was detained by a police officer in Emma Barkers presence."
Maria Ruiz, who did not know Katie, testified that on February 18, 1997, between 10 and 11 a.m., she was riding a BART train from Concord to San Francisco. She was sitting alone by a window when a man wearing a big green jacket with a hat, a hood over the hat, and sunglasses sat down next to her. The man immediately leaned his head back like he was sleeping and turned his head toward her right shoulder. Soon after that, Ruiz felt fingers touching her bottom. At first, she could not believe it was happening, but when she felt it again, she moved her body forward a bit and looked down. She saw the man pull his arm out, and she turned away because she thought he would not do it again since she had caught him. The man then put his hand back on her bottom again. She then moved a bit again and looked at him, but she felt frozen, like she could not move or talk, so she just looked straight ahead. He then put his finger against her right thigh and started strumming his fingers against her thigh.
A man then came up from behind and asked Ruiz if the man was bothering her. When she responded that he was, the man sitting next to her jumped up, took off his hood and glasses, and started talking in a slurred voice, which she could not understand. At that point, she saw that the man was a young, short Asian male. Eventually, the man who had been bothering her walked away. When the train got to the MacArthur station, two BART police officers came on board and some passengers pointed out Ruiz as the woman who had been bothered. When Ruiz got off the train to give a report about the man, she saw officers taking the man off another car of the train in handcuffs. At trial, Ruiz identified appellant as the man who had touched her on the BART train.
Defense Case
Police officer John Barcojo went to Katies apartment on August 21, 2000, in the early morning. She was sobbing when he arrived. She told him what had happened, including that she had talked with appellant for about 10 minutes before she went to bed. She also said that when she woke up, he was lying on top of her and that he penetrated her vagina with his penis. She refused medical treatment, saying she did not need it.
Police inspector William Kidd interviewed Katie at the hospital at 7:30 a.m. on August 21, 2000. She told him she had seen appellant the preceding weekend and had invited him to her home to have some food and use the phone. While describing the night and early morning of August 20 and 21, Katie said appellant had been face down on top of her back. As she woke up, "she was aware that the defendant appeared to be attempting to place his penis in her vagina." Once she was fully conscious, she realized that appellant was having sexual intercourse with her. Katie said that she did not consent to have intercourse with appellant, that she had never wanted to have sex with him, and that she had never had any kind of physical relationship with him.
DISCUSSION
I. Admission of Evidence of Prior Sexual Offenses
Pursuant to Evidence Code section 1108, the trial court admitted, over defense counsels objections, evidence that appellant had committed prior sexual offenses against four other women: Karyne Gost, Marlowe Riley, Emma Barker, and Maria Ruiz. Appellant contends admission of this evidence constituted a due process violation and also was error even under state, non-constitutional standards.
All further statutory references in this section of the opinion are to the Evidence Code unless otherwise indicated.
Section 1108, subdivision (a), provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
Section 1108 was enacted in 1995 to permit the use of disposition or propensity evidence in sex offense cases. (People v. Falsetta (1999) 21 Cal.4th 903, 911, 986 P.2d 182.) The Legislature intended for section 1108 "to relax the evidentiary restraints section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendants other sex offenses in evaluating the victims and the defendants credibility. In this regard, section 1108 implicitly abrogated prior decisions of this court indicating that `propensity evidence is per se unduly prejudicial to the defense. [Citation.] [P] . . . . Our elected Legislature has determined that the policy considerations favoring the exclusion of evidence of uncharged sexual offenses are outweighed in criminal sexual offense cases by the policy considerations favoring the admission of such evidence. The Legislature has determined the need for this evidence is "critical" given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial. [Citations.]" (Id. at pp. 911-912.)
A. Alleged Due Process Violation
Appellant asserts that admission of the evidence of other sexual offenses violated due process for the reasons set forth in Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769, revd. on other grounds sub nom. Woodford v. Garceau (2003) 155 L. Ed. 2d 363, 123 S. Ct. 1398. Garceau is inapposite, however, in that it involved instructional error regarding the use of other crimes evidence of murder and manufacture of illegal drugs, pursuant to section 1101. (Id . at p. 773.) In Garceau, the jury was incorrectly instructed that the evidence could be considered for any purpose including a criminal disposition. The California Supreme Court had found this to be a violation of section 1101, but found the error harmless. The Ninth Circuit disagreed, and found that the error violated due process. (Id. at pp. 774-777.)
Garceau does not undermine the holding in People v. Falsetta, supra, 21 Cal.4th 903, in which the California Supreme Court rejected a due process challenge to section 1108. (Id. at p. 922.) That is because Falsettas holding is not based on the idea that propensity evidence in general does not violate due process. Rather, Falsetta explained that sexual offense propensity evidence is in a special category, and such evidence does not violate due process when subject to the weighing process of section 352. (Id. at pp. 914-917.) We are bound by our Supreme Courts decision. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937.)
B. Alleged Non-Constitutional Error
Appellant contends admission of the evidence of the four other sexual offenses also was error under state, non-constitutional standards.
"By subjecting evidence of uncharged sexual misconduct to the weighing process of section 352, the Legislature has ensured that such evidence cannot be used in cases where its probative value is substantially outweighed by the possibility that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury." (People v. Fitch (1997) 55 Cal.App.4th 172, 183.)
In weighing the admissibility of another sex offense under 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 defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (People v. Falsetta, supra, 21 Cal.4th at p. 917.) Moreover, "the probative value of other crimes evidence [generally] 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 the evidence (the victims) in each offense." (Ibid.)
The section 352 "determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence." (Id. at pp. 917-918.)
Appellant objected to admission of the other offenses evidence on section 352 grounds, arguing that the prior acts were neither similar nor relevant to the present case. The trial court found the other offense evidence admissible, explaining, first with respect to the Barker and Ruiz incidents: "The Court believes that in light of the legislative intent and all of the cases that have interpreted this, that the conduct of the defendant in these instances, if it is proven to the jury, is probative of the defendants propensity to commit sexual acts against women. The fact that these are misdemeanor acts or lesser in severity than the act that is charged is not a dispositive issue. The question is whether or not he tends to engage in that conduct. [P] The Court has carefully considered the probative value of the evidence and the prejudice to the defense. Obviously, there will be prejudice to the defense but it is not unusual."
With respect to the Gost incident, the trial court ordered that Gost testify at a section 402 hearing, after which the court stated: "The Court has listened-my concern before was that the specificity of the description was not enough really to determine whether or not it came within the purview of 1108 of the Evidence Code. Having heard the testimony, I am obviously not passing on it other than to say that it falls within the purview of 1108. The Court will permit the witness to testify."
Finally, with respect to the Riley incident, the court said: "Okay. The Court finds given the recency of the alleged occurrence, that it does fall in the spirit of 1108. Unwanted touching, sexual touching of a person, if Mr. Dorfmans version is correct, falling asleep or dozing or whatever, 1108 goes to that type of conduct and the Court will allow that testimony."
A.
Appellant first asserts that his alleged actions against Gost and Riley were not "offenses" and therefore were not admissible under section 1108, which allows prior uncharged acts that constitute the sexual offenses defined in that statute to be admitted at trial. (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41.) According to appellant, his touchings of Gost and Riley were not offenses, but were merely sexual overtures, which he stopped when told to do so.
Appellant observes that sexual battery (Pen. Code, § 243.4, subd (e)(1)) is a specific intent crime that consists of touching an intimate part of another, against the victims will, committed for the purposes of sexual arousal, gratification or abuse. (See People v. Chavez (2000) 84 Cal.App.4th 25, 29.) Therefore, in order to convict a defendant, the trier of fact must find that the victims conduct did not cause the defendant to reasonably believe the victim consented or would consent to the intimate touching. (People v. Carapeli (1988) 201 Cal. App. 3d 589, 593, 247 Cal. Rptr. 478.)
At the time of trial, the relevant section was 243.4, subdivision (d)(1); it was subsequently renumbered (e)(1).
Penal Code section 243.4 provides in relevant part: "(e)(1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery . . . . [P] (2) As used in this subdivision, touches means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim."
In this case, appellant argues that it would not be unreasonable for him to believe that touching a woman either at a bar or to whom he was giving a massage would be with her consent, until she told him otherwise. Thus, according to appellant, because he did not have the requisite specific intent, the touchings of Gost and Riley cannot have constituted sexual battery.
Not only did appellant fail to object on this specific ground in the trial court, but defense counsel actually agreed, during a discussion of the Barker, Ruiz, and Gost incidents, that they involved sexual battery. Counsel stated: "I mean I dont disagree that a 243.4 I believe is what we are talking about. . . . [P] I dont disagree that that doesnt fall in the statute that is named, [sic] but of all the things that are listed, of all the statutes that are listed as possible prior sex acts that might come in under 1108, . . . . [P] . . . . 243.4(d) is the most de minimis of all of the possible crimes that can possibly come in. That I think is significant." Defense counsel then argued that misdemeanor battery evidence should not be admitted to support a felony rape charge. He never argued that the touchings of Gost and Riley were not offenses. (See § 353, subd. (a); People v. Saunders (1993) 5 Cal.4th 580, 589-590, 853 P.2d 1093.)
Even if this point were not waived, we find that appellants argument is without merit. That a jury might not convict appellant of the charge of sexual battery in these two situations is not determinative. If it were, no prior offense of which a defendant had not been convicted could be used under section 1108, since there always could have been a chance of acquittal at trial. Hence, the likelihood that the other offense constituted a crime is properly one of the factors for the trial court to weigh in determining whether to admit other offense evidence. (See People v. Falsetta, supra, 21 Cal.4th at p. 917 [factors trial courts must consider include, inter alia, the offenses nature and the degree of certainty of its commission].)
Here, the trial court found that the two incidents came within the purview of section 1108, which necessarily means it found there was a sufficient showing that appellant committed the offense of sexual battery against Gost and Riley to make it appropriate for the jury to consider. Moreover, the jury was instructed that it was not to consider the other offense evidence for any purpose unless it found by a preponderance of the evidence that appellant committed such other offenses. (CALJIC No. 2.50.1.) The jury was further instructed that "sexual offense" means a crime that involves "any conduct made criminal by Penal Code section 243.4(d)(1) [now (e)(1)]," the elements of which were also explained to the jury. (CALJIC No. 2.50.01 (1999 rev.).)
Thus, to the extent Gosts and Rileys testimony reflected a likelihood of consent, the jury was required to ignore their accounts as evidence that appellant commits offenses against the will of the woman involved.
B.
Appellant further asserts that evidence of the prior offenses involving Gost and Riley should not have been admitted because Gost and Riley were friends of Katies, and, therefore, the evidence did not come from "independent sources." (People v. Falsetta, supra, 21 Cal.4th at p. 917.) Appellant did not object to the admission of the other offenses evidence on this ground, and has therefore waived the issue on appeal. (See § 353; People v. Saunders, supra, 5 Cal.4th at pp. 589-590.)
In any event, the independence of the sources of evidence is only one factor among many for the trial court to consider in weighing the probative value of the evidence against the danger of undue prejudice. (See People v. Falsetta, supra, 21 Cal.4th at p. 917.) Here, the jurors were aware of the relationships between the witnesses, and it was for them to determine the reliability of Gosts and Rileys testimony. It should also be noted that Riley was not a friend of Katies, and had met her only shortly before trial. To the extent Riley had a prior relationship with anyone involved in the case, it would be with appellant, whom she had known socially for some two years.
C.
Appellant also argues that evidence regarding all four of the other offenses should have been excluded because of the dissimilarity of those offenses to the charged offense. First, similarity to the charged offense is, as with the independence of the sources of the evidence, only one of many factors for the trial court to consider in making its section 352 determination. (See People v. Falsetta, supra, 21 Cal.4th at p. 917.) Moreover, "the charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108." (People v. Frazier, supra, 89 Cal.App.4th at pp. 40-41.)
Indeed, "section 1108 does not require "more exacting requirements of similarity between the charged offense and the defendants other offenses . . . ." (Historical Note, 29B pt. 3, Wests Ann. Evid. Code [(1998 pocket supp.)] foll. § 1108, p. 31.) Such a requirement was not added to the statute because doing so would tend to reintroduce the excessive requirements of specific similarity under prior law which § 1108] is designed to overcome, . . . and could often prevent the admission and consideration of evidence of other sexual offenses in circumstances where it is rationally probative. Many sex offenders are not "specialists," and commit a variety of offenses which differ in specific character. (Id. at pp. 31-32.)" (People v. Soto (1998) 64 Cal.App.4th 966, 984.)
In addition, as respondent argues, there is in fact similarity between the charged and prior offenses in this case in that the evidence of other sexual offenses showed appellants propensity to touch women in a sexual way while they were unaware or taken by surprise. Such evidence clearly was relevant to the allegation in this case that appellant had commenced sexual intercourse with Katie while she was asleep. We also note that the evidence in question did not consume a great deal of time during the trial, and the fact that the other offenses evidence was of lesser seriousness than the rape charge reduced the likelihood of its prejudicial impact on the jury.
We conclude the trial court did not abuse its discretion when it admitted the evidence of other sexual offenses pursuant to sections 1108 and 325. (See People v. Falsetta, supra, 21 Cal.4th at pp. 917-918.)
II. Trial Courts Instruction Pursuant to CALJIC No. 2.50.01
Appellant contends the trial court erred by instructing the jury pursuant to CALJIC No. 2.50.01. The trial court instructed the jury pursuant to the 1999 revision of CALJIC No. 2.50.01, as follows: "Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense [on one or more occasions] other than that charged in the case. [P] [`Sexual offense means a crime under the laws of a state or of the United States that involves any of the following:
"[A.] [Any conduct made criminal by Penal Code Section 243.4 (d)(1) [now (e)(1)]. The elements of [this are] set forth elsewhere in these instructions.]
"If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit [the same or similar type] sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that [he] was likely to commit and did commit the crime of which [he] is accused.
"However, if you find [by a preponderance of the evidence] that the defendant committed one or more prior sexual offenses, that is not sufficient by itself to prove [beyond a reasonable doubt] that [he] committed the charged crime. The weight and significance of the evidence, if any, are for you to decide.
"You must not consider this evidence for any other purpose.]"
After briefing in this case was completed, the California Supreme Court confirmed that "the 1999 version of CALJIC No. 2.50.01 correctly states the law." (People v. Reliford (2003) 29 Cal.4th 1007, 1009.) The court rejected contentions that the instruction was likely to mislead the jury regarding the prosecutions burden of proof, that it implies that prior sex offenses proved beyond a reasonable doubt are sufficient to prove the charged offense beyond a reasonable doubt, and that it is too complicated for jurors to apply. (Id. at pp. 260-261.)
We therefore summarily reject appellants claim of error with respect to CALJIC No. 2.50.01.
III. Admission of the "911 Tape"
Appellant contends the trial court erred in admitting the tape recording of the 911 call, in which Katie and her sister Bridget reported that Katie had been raped. According to appellant, although the portion of the tape in which Katie describes the incident with appellant may have been admissible as an excited utterance, "the great bulk of the 911 tape recording played for the jury consisted of hearsay and other inadmissible, irrelevant and inflammatory material." In particular, appellant asserts that statements by Bridget and the 911 operator that Katie had been raped were inadmissible hearsay and, in addition, portions of the tape in which the operator arranges for an ambulance and police radio in regarding their search for appellant were irrelevant and highly prejudicial.
With one redaction, the trial court admitted the entire 911 tape into evidence, reasoning: "With a proper foundation, the Court finds no objection to the tape at all. Obviously, the sister is going to have to testify to what happened, what she did. The sisters testimony as to Katie, Katies tone of voice and demeanor and all those other things is obviously relevant to whether or not a foundation can be laid for the excited utterance. Clearly the sister is going to be here and will identify her own voice, Katie will be here to identify her voice, which is a voice that talked to the 911 operator. [P] The only part of that testimony that is not going to come in, the Court is expressly excluding the reference to-this is a reference by Bridget, who is the sister, to the fact that Katie was just raped by a guy who was out on-out of custody having committed sexual battery before. That part is inadmissible and cannot be justified by any hearsay exception so accordingly, that section will not come [in]."
The court later corrected itself, stating that it was Katies, not Bridgets, reference to appellants prior offense that would be excluded.
Respondent argues that, for a variety of reasons, appellant has waived the issue on appeal. We find that appellant has partially waived this issue because, although defense counsel objected to admission of the tape generally on relevance grounds, he did not argue that Bridgets and the 911 operators statements were hearsay. (See Evid. Code, § 353; People v. Saunders, supra, 5 Cal.4th at pp. 589-590.)
As to the part of the tape in which the 911 operator arranged for an ambulance and the police searched for appellant, we have listened to the tape and find that although that portion may not have been particularly relevant, it certainly was not prejudicial to appellant. First, with respect to the request for an ambulance, appellant claims the jury would subconsciously ask themselves, "why was an ambulance called if Katie wasnt hurt?" Officer Barcojo, however, testified that when he was at Katies apartment, shortly after the incident in question, "the medics" came to the location as they do "in the normal course of responding to a call like this," but Katie refused medical attention, saying "she didnt need it, she was okay."
With respect to the part of the tape that reflects a police search for appellant, appellant claims the jury would think, "if the police are searching the streets for Appellant and cant find him, he must be guilty and fleeing." However, the jury knew Katie had reported that she was raped, had told the police that appellant had left her apartment, and had given a description of him. It would be only logical that the police would attempt to locate appellant.
In conclusion, even if these portions of the tape were irrelevant and/or cumulative, and the trial court thus erred in admitting them (see People v. Harris (1998) 60 Cal.App.4th 727, 740; Evid. Code, § 350), appellant plainly suffered no prejudice from their admission. Indeed, the entire tape recording, which was relatively brief, was mostly cumulative of other evidence admitted at trial, and was not plainly inflammatory.
IV. Prosecutorial Misconduct
Appellant contends the prosecutor committed misconduct (1) during jury voir dire, (2) while eliciting witness testimony, and (3) during closing argument.
Our Supreme Court has explained that "[a] prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or jury." (People v. Hill (1998) 17 Cal.4th 800, 819, 952 P.2d 673, internal quotation marks and citations omitted.) The defendant need not show that the prosecutor acted in bad faith. (Id. at p. 822.)
However, as the court also explained in People v. Hill,supra : "As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] [Citation.] [P] The foregoing, however, is only the general rule. A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if `"an admonition would not have cured the harm caused by the misconduct." [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if `the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request. [Citations.]" (17 Cal.4th at pp. 820-821.)
A. Alleged Misconduct During Jury Voir Dire
Appellant contends the prosecutor committed misconduct during jury voir dire "by making speeches to the prospective jurors, asking them what they believed the law should be, and then telling them what the law was."
1. Trial Court Background
On the second day of jury selection, the prosecutor had just begun questioning the latest group of prospective jurors when he made the comments that appellant now challenges. A prospective juror said that he knew a woman who believed she had been raped because she was too drunk at the time to have truly consented. The prosecutor then asked if the jurors believed that "if a woman is unconscious, that the fact that she drank alcohol somehow equals consent for sexual intercourse?" and "if a woman drinks alcohol and later on is with a man, that she deserves what she gets or is your thinking might be [sic] she was foolish to drink and she was with a man and she deserves what she gets?"
The prosecutor also asked whether the jurors thought rape required a violent struggle on the part of the woman. He then said, "I dont see any hands so I understand your silence and, of course, as the Judge has told you, the Judge will be the source of the law, right? The Judge will instruct you and help guide Mr. Peters [defense counsel] and me on what the law will be that you will apply and that we will argue to you when the trial comes to an end. Does anybody have any problem following the Judges instructions regarding rape if the instruction is that rape can also occur when there is no consent, if the woman is unconscious and the accused knows that she is unconscious at the time of the intercourse? Does anybody have a bad feeling about that or a feeling, a reaction to it?"
A prospective juror asked how the woman could know she was unconscious, to which the prosecutor responded: "I cant go into the facts of the case, its not part of voir dire, but I will make an opening statement I guess next week and then you will see the witnesses, you will meet Katie and she will describe to you the circumstances surrounding the case. [P] . . . . I will present evidence to you that she was unconscious at the time that the intercourse occurred, not aware of what was happening." Then, another prospective juror asked how a woman could know what is happening if she is unconscious, to which the prosecutor responded that he did not want to give the specific facts just then, and that he would be making an opening statement and hoped to answer just that question.
At that point, the trial court stated: "Let me clarify this to the jury. Excuse me for interrupting, Mr. Dorfman [the prosecutor]. [P] The lawyers are not allowed to argue their case to you during voir dire or to suggest to you what the facts are. All they can do is talk to you about general principles, general concepts to find out if there is any reason why those principles or concepts or precepts might make it difficult for you to be fair and impartial. In fact, counsel would be entirely within their rights if one lawyer started arguing the facts of the case, to object to that and I will sustain the objection. So, again, nobody is trying to hide the ball, this isnt the place for that. The place is when the case actually starts after 12 jurors have been impaneled. Right now, counsel will be talking to you over the course of 20-25 minutes to determine whether or not there is any legal basis, any reason why you cannot serve as a juror in the case."
Immediately after the courts comments, a prospective juror asked about the relationship between rape and consent, and the prosecutor responded that the law of rape in California covers different factual situations and that, in this case, the law of rape to be applied involved intercourse while the woman is unconscious.
The trial court again spoke up, stating: "Ladies and gentlemen, I am-I am going to stop this interchange right now, please. It is - it is putting the lawyers on a legal spot. You cannot ask them questions about what the facts are going to be and I am going to object to the-to the inquiry based on what this factual scenario might be. What that factual scenario might be, that will come in due course of the trial. I will give you the law that applies to the case . . . . I would ask both counsel please to focus on general areas that are appropriate for jury voir dire. Thank you."
Then, shortly after defense counsel began his voir dire, counsel asked whether any prospective jurors could conceive of or had actually found themselves in a situation in which they had consented to have sex with someone without ever saying anything about actually wanting to have sex with them. The trial court stated: "Counsel I-excuse me. I am going to repeat. The jury cannot be asked to put themselves in a situation. Counsel, please focus your questions on possible bias or inability to serve as a juror. You cannot-it is not proper for either counsel. This is why I interrupted the questions before to ask a juror to put themselves in any particular position. We are looking for ability to judge the case fairly and impartially, nothing else."
Defense counsel then asked a prospective juror if he could think of a reason why the issue of mental health might be relevant in a case like this. As the juror began to answer, the trial court asked to see counsel at sidebar. Following the off-the-record discussion, defense counsel continued his questioning of the prospective jurors.
The following day, during in limine motions, defense counsel stated: "During voir dire yesterday, as I think the record will reflect, Mr. Dorfman was essentially making speeches to the jury about his case without asking any questions. He finally did ask some questions towards the end. I wouldnt-I didnt terribly-I didnt appreciate it. But on the other hand, I didnt find it so offensive that I felt it was appropriate to jump in and object during voir dire. I think attorneys should be allowed latitude during voir dire. [P] This court by itself after it acknowledged that Mr. Dorfmans conduct was inappropriate, then stopped me in front of all these jurors when I was conducting voir dire on issues that didnt have anything to do with the specific facts of this case. . . . And I just want it on the record that I feel like I have been prejudiced in front of this jury by the Court and I would hope that the Court will take it upon itself to treat both sides with an even hand. I feel like generally thats been done, but I have to say on the record I felt incredibly slighted. . . ."
The trial court responded: "Okay. The sidebar we had over here, I indicated that I agreed Mr. Dorfmans examination was subject to objection. None was made. [P] The difference between Mr. Dorfmans discussion of the case and what I heard the defendant saying was-defense counsel was asking the jury to imagine to think of situations where alcoholism might be relevant, where consent might be relevant or you might be able to consent without saying yes but not asking simply about the use of drugs or use of alcohol but to conjure up factual scenarios where those things might be relevant, and that is getting into the facts of the case. [P] . . . . It is the Courts responsibility to stop that kind of preconditioning. I had already-I had stopped Mr. Dorfman and I stopped the jury from asking specific questions about the case because they cant do that. Even though they were asking hypothetical question, well, what if, I said thats wrong and stopped it. And I did the same thing with defense counsel and the first time I simply, you know, interjected.
"I should point out that I believe it was the prosecutions job to do that but in this case, there is a responsibility on the Court. There are cases on this where its the Courts responsibility if the jury is being improperly influenced to interrupt. My general view is to let the lawyers handle the case anyway they want to. I dont rule on objections that arent made, but there are very rare circumstances and in my view, this was one of them where the voir dire was simply inappropriate. And I already made the comment and, you know, counsel asked the same kind of questions the second time and rather than say anything again, which would have a potential effect, I brought both counsel to sidebar and explained why that kind of questioning could not proceed."
2. Legal Analysis
We find that appellant has waived this issue on appeal. (See People v. Hill, supra, 17 Cal.4th at pp. 820-821.) Not only did defense counsel not object or request an admonition during the allegedly improper voir dire, when he raised the issue the following day, he said he had not found the prosecutors voir dire so offensive as to warrant an objection. In fact, the trial court had told the parties and the jury when it interrupted the prosecutors voir dire that if one lawyer started arguing the facts of the case, the other lawyer would be entirely within his rights to object, and the court would sustain the objection. The court interrupted the prosecutors voir dire again a short time later, saying that the factual scenario would be revealed during the trial and that the court would give the jury the law that applied to the case, and to "ask both counsel please to focus on general areas that are appropriate for jury voir dire."
The record thus makes plain that appellant could have objected to the prosecutors voir dire had he found it objectionable and the trial court would have sustained a proper objection, but that counsel chose not to do so. Appellants failure to object is therefore not excused, as he argues, on grounds of futility. (See People v. Hill, supra, 17 Cal.4th at p. 820.) Nor do we find convincing his argument that the trial court was not even-handed with counsel and that, therefore, an admonition would not have cured the alleged harm, given that the trial court interrupted both counsels voir dire to explain that delving into the facts of the case was inappropriate and to admonish the jury and counsel regarding the scope of permissible voir dire. (Ibid.)
Appellant has waived his allegation of prosecutorial misconduct during voir dire.
B. Alleged Misconduct In Eliciting Witness Testimony
Appellant further contends the prosecutor committed misconduct by asking questions intended to elicit irrelevant and prejudicial testimony. In particular, he argues that the prosecutor (1) elicited victim impact testimony from Katie and her sister, Bridget, in an attempt to gain the jurys sympathy and (2) elicited testimony that portrayed appellant as a "long-haired, homeless, panhandling, streetperson."
1. Trial Court Background
During his examination of Katies sister, Bridget, the prosecutor asked what Bridget did after the 911 call and she responded that she had talked to her boyfriend and then, after crying first, called her mother, which was a hard call to make. The prosecutor then asked if Bridget had seen Katie in early September, and elicited testimony regarding Katies visit to her family in Boston. The prosecutor also asked whether there was a difference in how Katie appeared between her arrival in Boston and her departure some 10 days later. Bridget responded that Katie was sullen and despondent when she arrived, but that she was in a better state of mind when she left.
During the examination of Katie, the prosecutor elicited testimony that Katie had lived in Boston with her sister, Bridget, for a little over a year and that Katie had come to the courthouse with Bridget that day. The prosecutor then asked Katie about the work she had done that year (2000). She testified about her work for the San Francisco Ballet Company, a job she very much wanted and enjoyed. The prosecutor asked when she had stopped working for the ballet, and she responded "two months after this happened." The prosecutor then said, "Okay. The incident we are talking about is what caused you to stop working for the Ballet?" to which Katie responded, "Right."
Later in the examination, the prosecutor asked Katie how she felt about working for the ballet on August 20, to which Katie responded that she was "thrilled." The prosecutor later asked Katie why she went back to Boston, to which Katie responded that she went to be with her family and for support. The prosecutor asked how she had been doing on her own, and Katie said, "Horrible." The prosecutor then began, "The job at the Ballet — ," at which point defense counsel interrupted and asked to approach the bench. Following an off-the-record discussion, the prosecutor began a new line of questioning.
After Katie had finished testifying, the court dismissed the jury, but asked to speak to juror number one. The court told the juror that it had been reported that during a break in the proceedings in the middle of Katies testimony, the juror had seen Katie in the bathroom and said something like, "You are a very pretty lady" and "I will say a prayer for you." The juror acknowledged having said this, and added, "But I will say a prayer for anybody, good or bad, because its Gods country." The juror further said that she had not yet formed an opinion in the case and that her mind was still "very open."
The prosecutor also elicited testimony from Katie that appellant had been a bike messenger for a short time, but she did not recall any other jobs he may have had. The prosecutor asked where appellant lived; Katie responded that he lived in the park. The prosecutor asked if he was homeless; Katie responded, "Yes." The prosecutor also asked Katie if appellant had always worn his hair short, as he did during the trial. Katie responded that he had worn it long, shoulder length. He also asked whether appellant wore a ring in his nose or ear; Katie did not think so. Katie also described giving appellant money for pizza on the night in question, and said she had done so at his request once or twice before.
During Karyne Gosts testimony, the prosecutor asked her the nature of her relationship with appellant. During her response, Gost said she used to give appellant money when he would ask her for spare change. The prosecutor then asked how often he asked her for money; she could not recall how often he asked, but she gave it to him every time he asked.
2. Legal Analysis
Defense counsel did not object to any of the questions he now cites as showing prosecutorial misconduct, except for his presumed objection after he requested to approach the bench when the prosecutor began a question regarding the Ballet. After the objection, the prosecutor completely changed his line of questioning. Since appellant did not object to any of the other allegedly improper questions and there is no evidence that an objection would have been futile, appellants claim of prosecutorial misconduct in eliciting testimony is waived. (See People v. Hill, supra, 17 Cal.4th at p. 820.)
In his reply brief, appellant argues that, to the extent the failure to object waived this issue, his counsel was ineffective for failing to object and request an admonition. Even if we address the issue of ineffective assistance of counsel, despite the fact that it was raised for the first time in appellants reply brief, appellants claim cannot succeed because there is not a reasonable probability that, but for counsels allegedly inadequate representation, the result of the proceeding would have been different. (See Strickland v. Washington (1984) 466 U.S. 668, 694, 80 L. Ed. 2d 674, 104 S. Ct. 2052.)
First, with respect to the testimony of Bridget and Katie that the prosecutor allegedly elicited to induce sympathy for Katie, most of the questioning involved background information or was otherwise innocuous. We do believe that the prosecutors questions to Katie regarding how she was doing on her own and whether she had quit her job with the ballet due to the incident with appellant was of questionable relevance. But, assuming the questions rose to the level of misconduct, the testimony elicited certainly was not so inflammatory as to have prejudiced appellant. (See People v. Hill, supra, 17 Cal.4th at p. 819.) The testimony did not render the trial fundamentally unfair (ibid.); nor is there a "reasonable likelihood that the jury construed or applied any of the complained-of [testimony] in an objectionable fashion." (People v. Berryman (1993) 6 Cal.4th 1048, 1072, 864 P.2d 40.)
We do not agree with appellant that juror number ones comments to Katie in the restroom show that she was unduly influenced by the testimony to feel sympathy for Katie. In the discussion with the trial court, the juror explained the reasons for her comments, which apparently satisfied both the court and the parties that she was not biased in favor of Katie.
This case is thus distinguishable from People v. Pitts (1990) 223 Cal. App. 3d 606, 705, 273 Cal. Rptr. 757, relied on by appellant, in which the prosecutors comments during closing argument "in essence accused defense counsel of contributing to the ruination of [an alleged molestation victims] life" by allowing her to testify falsely at trial against her father. The present situation is not analogous, and the purported misconduct is nowhere near as insidious as that described in Pitts.
Second, with respect to the testimony elicited from Katie and Gost that appellant was homeless, that he had long hair, and that he asked them for money, we find that the prosecutors questioning on these topics was proper and not in the least inflammatory. Appellants homelessness was relevant to the case since that was the reason given by Katie for letting him sleep at her apartment. Regarding the length of appellants hair, while at trial his hair was short, the description of appellant Katie had given to police included long hair. It was thus appropriate for the prosecutor to question Katie regarding appellants hair length on August 20, 2000. Finally, Katie testified that appellant asked her for money for pizza on the night in question and Gost volunteered the information that she gave appellant money in response to the prosecutors question about her relationship with appellant.
We find unpersuasive appellants attempt to liken this case to People v. Herring (1993) 20 Cal.App.4th 1066, 1074, in which the prosecutor committed misconduct by describing the defendant, as being, among other things, "like a parasite. He never works. He stays at peoples homes. Drives peoples cars. He steals from his own parents to get anything. He wont work for it." The prosecutors comments in Herring "had nothing to do with the crimes alleged and inferred that people who do not work, live with others, and drive other peoples cars are bad people and more likely to do criminal acts." (Id. at p. 1075.) Here, on the contrary, the challenged questions and answers were relevant to the issues to be decided at trial and did not imply that appellant was a despicable person.
Since appellant cannot show that he was prejudiced by his attorneys failure to object to the prosecutors allegedly inappropriate questions, his belated ineffective assistance of counsel claim must fail. (See Strickland v. Washington, supra, 466 U.S. at p. 694.)
C. Alleged Misconduct During Closing Argument
Appellant also contends the prosecutor committed four distinct forms of misconduct during closing argument: First, "the prosecutor injected his own personality into the summation and effectively vouched for the credibility of the complaining witness; [second,] the prosecutor made a centerpiece of Appellants legally irrelevant and emotionally evocative betrayal of [Katie]; [third,] the prosecutor deliberately appealed to passion and prejudice by urging the jurors to replay the 911 tape; and [fourth,] the prosecutor made improper use of the Evidence Code section 1108 testimony introduced at trial."
Defense counsel did not object to any of the prosecutors allegedly inappropriate comments during closing argument, and there is no evidence that an appropriate objection and request for admonition would have been futile. Therefore, appellants claim that the prosecutor committed misconduct during closing argument is waived. (See People v. Hill, supra, 17 Cal.4th at p. 820.) In his reply brief, however, appellant again argues that counsel was ineffective for failing to either object to the prosecutors "outrageous emotional outburst and his betrayal theme" or request an admonition. (See Strickland v. Washington, supra, 466 U.S. 668.) We will therefore address the merits of these two of the four points raised by appellant regarding the prosecutors closing argument.
The California Supreme Court has noted that "a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature. [Citation.] A prosecutor may vigorously argue his case and is not limited to Chesterfieldian politeness [citation], and he may use appropriate epithets . . . . [Citations.] [P] Prosecutors, however, are held to an elevated standard of conduct . . . because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state." (People v. Hill, supra, 17 Cal.4th at pp. 819-820, internal quotation marks omitted.)
1.
Appellant first argues that the prosecutor committed misconduct by delivering his closing argument in the first person and by injecting his personal and moral outrage into the case. Appellant argues that the prosecutors first person statements, such as "I stand before you to say," "I brought you one charge of rape," and "my office had [Bridget] fly out from Boston so you could hear [for] yourself what she heard" were in effect an attempt to have the jury consider the prestige of the district attorneys office as a factor in favor of conviction. We disagree. The prosecutors use of the first-person in his narrative did not, as appellant urges, unfairly induce the jury to identify with the prosecutor and find appellant guilty and, hence, did not constitute misconduct. (Compare People v. Beal (1953) 116 Cal. App. 2d 475, 478, 254 P.2d 100.)
Also during closing argument, the prosecutor quoted from the letter Marlowe Riley and her boyfriend received from appellant regarding the incident with Katie. At one point, the prosecutor quoted as follows: "She started crying so how was I supposed to sleep? I went to comfort her and thought I would give her what she need. What the hell does that mean, I thought I would give her what she need? I thought that I would with my incredible comfort and consolation get into her bed and offer her my sexual intercourse? Am I angry as I relate my reaction to you? Yes, I am. And I will pull back from it, but for him to suggest that I am going to give her what she needs, thats outrageous. It is outrageous. Not only that, its a crime in the facts of this case."
Appellant argues that the prosecutors statement of anger and outrage (1) injected into the trial a fact not in evidence; (2) amounted to the assertion that he was personally convinced of appellants guilt; and (3) implied that anger and outrage, as opposed to logic and calm deliberate analysis of evidence, were a proper basis for decision of the case.
Although we do not believe the prosecutors personal expression of anger was appropriate, it was a very limited "outburst" and was not particularly inflammatory. Indeed, compared to the misconduct in the cases cited by appellant, the prosecutors comments were fairly staid. The comment did not, as appellant avers, amount to injection into the trial of a fact not in evidence. (Compare People v. Herring, supra, 20 Cal.App.4th at pp. 1076-1077 [prosecutors argument that he represented victims and defense counsel "has to tell his rapists, murderers, robbers and child molesters what to say and does not want you to hear the truth" implied that prosecutor knew facts not in evidence].) Nor was it so extreme as to imply that outrage, rather than reason, was the proper basis for deciding the case. (Compare People v. Bain (1971) 5 Cal.3d 839, 849, 97 Cal. Rptr. 684, 489 P.2d 564 [trial courts failure to reprimand both counsel for their exchange of epithets and injection of race into trial "allowed the trial to be conducted at an emotional pitch which is destructive to a fair trial"].)
Finally, a prosecutor is "privileged to argue to the jury that it was his opinion formed from deductions made from the evidence adduced at the trial that the defendant was guilty of the crime charged." (People v. Beal, supra, 116 Cal. App. 2d at p. 477.) Although the prosecutors comment here arguably went over the line into personal opinion regarding appellants guilt (see ibid.), it was not the type of outrageous vouching that would render the trial unfair. This case is thus quite different from People v. Beal, supra, 116 Cal. App. 2d at pages 477-478, relied on by appellant, in which the prosecutors "declaration to the jury that he would not prosecute any man whom he did not believe to be guilty was tantamount to an assertion that he believed in the guilt of the defendant at the very inception of the prosecution; and necessarily such belief must have been founded upon the result of the district attorneys original and independent investigation of the charge, and therefore in all likelihood was based, in part at least, upon facts which did not appear and which perhaps could not have been shown in evidence. [P] . . . . In effect, the prosecutor, who had just laid a foundation by showing his own excellent character and long years of public service, was testifying to the ultimate fact in issue without disclosing the source of his information."
We find it highly unlikely that any juror improperly applied the prosecutors expression of anger, and conclude that the limited comments did not affect the outcome of the trial. (See People v. Berryman, supra, 6 Cal.4th at p. 1072.)
2.
Appellant next argues that the prosecutor committed misconduct by arguing that appellant had "betrayed" Katie. At the start of his closing argument, the prosecutor stated: "This is a case of the defendants betrayal of Katie M. He betrayed her trust. Earlier that night, she gave him a little money. Later that night, she told him, a homeless man, that he could sleep on her futon-on her couch. And what does he do in response? He sees an opportunity, a chance when shes asleep to get something from her sexually." Later, the prosecutor introduced his discussion of the law regarding rape of an unconscious victim and the categories of evidence by saying: "The main ones that I argue, which is clearly what this man is all about, hes a betrayer to the person who trusted him and put his penis in her when she was asleep, and she was asleep and she woke up and caught him."
We do not agree with appellant that the prosecutors description of appellant as having betrayed Katie was improper or inflammatory. The prosecutors remarks were fair comment on the evidence, and did not exceed the bounds of vigorous argument. (See People v. Hill, supra, 17 Cal.4th at pp. 819-820.)
In sum, we again conclude that appellants claim of ineffective assistance of counsel during closing argument cannot succeed because there is not a reasonable probability that, but for counsels allegedly inadequate representation, the result of the proceeding would have been different. (See Strickland v. Washington, supra, 466 U.S. at p. 694.)
We also reject appellants claim that the cumulative impact of the misconduct requires reversal. To the extent the prosecutors questioning related to victim impact or his expression of anger during summation constituted misconduct, the misconduct certainly did not rise to the level of rendering the trial unfair or of constituting deceptive or otherwise reprehensible conduct. (Compare People v. Hill, supra, 17 Cal.4th at p. 845.) Appellant thus cannot show prejudice. (See Strickland v. Washington, supra, 466 U.S. at p. 694.)
V. Trial Courts Modification of CALJIC No. 17.43
Appellant contends the trial court erroneously modified the readback request instruction, CALJIC No. 17.43, to discourage readback requests. The trial court instructed the jury as follows: "During deliberations, any questions that you will have must be addressed to me on a form that will be provided. Please understand that I have to contact both lawyers before I can formulate any response even if it is asking for a break. If a readback of testimony is requested, Ms. Paxton will delete all the objections and rulings and sidebar conferences so that you will only get the evidence that was actually presented. Please understand that if you request readback, its very helpful if you can be as specific as possible as to say what you want. If you want the entire thing, you get the entire thing but sometimes you are only looking for a specific area. If you cant specify what it is without [sic] clarity, it will all be read but bear in mind that it takes time to provide a response to you and Ms. Paxton has to turn over all the flipping papers into legible text and counsel and I [have] to go through it. So you must continue your deliberations on other matters until the testimony is prepared." Appellant contends the trial court improperly added the italicized language to the standard CALJIC No. 17.43 jury instruction.
At the time of trial, CALJIC No. 17.43 provided: "During deliberations, any question or request the jury may have should be addressed to the Court [on a form that will be provided]. Please understand that counsel must first be contacted before a response can be formulated. If a readback of testimony is requested, the reporter will delete objections, rulings, and sidebar conferences so that you will hear only the evidence that was actually presented. Please understand that it may take time to provide a response. Continue deliberating until you are called back into the courtroom."
Appellant argues that although he did not object to the modification of the readback instruction, no contemporaneous objection is required to preserve the issue of an improper readback instruction for appellate review. Giving appellant the benefit of the doubt and assuming no objection was required to preserve this issue on appeal (see, e.g., People v. Hillhouse (2002) 27 Cal.4th 469, 505-506), we do not believe the court committed error or, even if error occurred, that the jury was misled by the instruction.
The trial courts added language simply elaborated on the fact that, to the extent the jury wanted a particular portion of testimony read, it should make its request with specificity. To the extent it wanted the entire testimony read back, it needed to understand that that would take more time and that it must continue to deliberate until the testimony was prepared for readback. Appellant asserts that the jurys failure to request a readback shows that modification of the instruction discouraged the jurors from requesting a readback, which they otherwise "almost certainly" would have done in this "perplexing case." Appellants assertion is based purely on speculation. (Cf. People v. Hillhouse, supra, 27 Cal.4th at p. 506 ["Merely informing the jury of the time it may take for rehearing testimony is not impermissible jury coercion."].)
Appellant thus cannot show that he was prejudiced by the trial courts modification of the readback instruction.
VI. Trial Courts Instruction Pursuant to CALJIC No. 17.41.1
Appellant contends the trial court committed structural error by instructing the jury with CALJIC No. 17.41.1.
CALJIC No. 17.41.1 provides: "The integrity of the trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation."
After the filing of appellants opening brief, the California Supreme Court decided People v. Engelman (2002) 28 Cal.4th 436, 444, in which the court rejected claims that this instruction infringed on the defendants federal and state constitutional right to trial by jury and his state constitutional right to a unanimous verdict.
The court did find that CALJIC No. 17.41.1 creates an unnecessary risk to the proper functioning of jury deliberations and, therefore, in the exercise of its supervisory power, directed that this instruction not be given in future trials. (People v. Engelman, supra, 28 Cal.App.4th at p. 449.)
In his reply brief, appellant claims that, despite the Engelman decision and under "the peculiar facts of this case, charging the jury with CALJIC No. 17.41.1 was infinitely prejudicial." That is because, according to appellant, unlike the simple petty theft and assault at issue in People v. Engelman, the circumstances of this case "required the jurors to discuss their own sexual experiences in graphic physical detail." Appellant avers that the instruction thus necessarily had a chilling effect on jury deliberation in this case.
We do not agree with appellants premise that the jurors were "required" in this case to discuss their own sexual experiences in detail. Nor do we find that the circumstances of the case constitute an exception to our Supreme Courts decision in People v. Engelman. Finally, there is nothing in the record to indicate that the instruction had any adverse effect on the deliberations in this case. Accordingly, his claim of prejudice must fail.
VII. Denial of Appellants Motion for a New Trial
Appellant contends the trial court applied an incorrect legal standard when it denied his motion for a new trial.
A. Trial Court Background
After the jury found him guilty of rape, appellant filed a new trial motion, arguing, inter alia, that the sex act described by Katie was physically impossible. At the hearing on the motion, the trial court noted that defense counsel had claimed that it was "common sense" and that "everybody knows" that it was "physically impossible for [the rape] to have occurred because Katies vaginal canal would have to be at an angle perpendicular to the ground and Erics penis would have to bend in a 90 degree angle." The court wanted to know, however, "What evidence is there of that? It was argued to the jury but what evidence do we have of that?"
Appellant states that defense counsel noted in his motion that his physical impossibility theory was corroborated by Katies statement to Officer Kidd just after the incident that appellant was merely "attempting to place his penis in her vagina." Appellant fails to include Officer Kidds additional testimony that, once she was fully conscious, Katie realized that appellant was having sexual intercourse with her.
Defense counsel acknowledged that, in hindsight, the defense should perhaps have brought in an expert to testify, "but I didnt think I needed to bring in an expert to tell 12 people who presumably-at least one of them-has had sex in their life between a man and a woman, that there are certain angles that are possible and there are certain angles that are not possible . . . ." The court responded, "Well, you are almost asking me to take judicial notice of somebodys anatomical conditions. Again, there wasnt evidence presented in a - in the normal course about this. I know that the argument was made, but I cannot conceive-even if I think its probably true or that I can-you know, I guess everybody has personal experience and can envision various physical relationships, various physical couplings. Under the circumstances of this case, is that admissible evidence from which I must say as a matter of law that the evidence could not support that contention?"
The prosecutor noted that the defense introduced no evidence at trial on this issue, and, therefore, "this jury had a right and logic to listen to the argument and to say intercourse can happen when a woman is resting flat on her belly and the man enters from behind, and you should accept their decision." The court then said it did not want to get into "a description of whether or not that can actually occur. The question before me is whether or not there is evidence." The court did not believe that this situation was analogous to a jury finding that the earth was flat or that a man under a restraining order could impregnate his girlfriend from 150 yards away, both of which the court would find impossible, as a matter of law, regardless of the evidence presented.
The trial court ultimately denied the motion, finding that this was not a situation "where the evidence is so one-sided that I have to say that a tape [sic] of coupling in that manner is physically impossible. Its not like a 150 yard sexual organ would not be possible. This is one where the-the jury listened to the evidence and determined that a sex act had taken place and I cannot say as a matter of law that the evidence does not prove that."
B. Legal Analysis
Appellant requested that the trial court grant his motion for a new trial pursuant to section 1181, subdivision (6), which provides in relevant part: "When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial . . . [P] when the verdict or finding is contrary to law or evidence . . . ."
"In reviewing a motion for a new trial, the trial court must weigh the evidence independently. [Citation.] It is, however, guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.] The trial court should [not] disregard the verdict . . . but instead . . . should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict. [P] A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. "The determination of a motion for a new trial rests so completely within the courts discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." [Citation.]" (People v. Davis (1995) 10 Cal.4th 463, 523-524, 896 P.2d 119.)
Appellant now claims the trial court mistakenly characterized the question before it as whether the evidence was insufficient as a matter of law to support the jurys verdict. This, according to appellant, shows that the court did not understand that it was required to judge the credibility of witnesses and form its own independent conclusion.
Appellant mischaracterizes the trial courts position. The record reflects that, in fact, the courts concerns were (1) there had been absolutely no evidence presented at trial to support appellants impossibility theory, and (2) the sex act described was not so plainly physically impossible that the court could say, despite no evidence to the contrary, that, as a matter of law, the evidence presented did not prove the acts occurrence. The court clearly was not persuaded that appellant had shown, to the degree necessary to warrant a new trial, that what Katie described at trial could not have occurred.
Appellant asserts that the record shows the trial court agreed with his impossibility theory. We disagree. The record shows, rather, that the trial court properly explained that even if it personally believed, based on its own experience, that the described sex act would be impossible, that would not suffice for it to find, as a matter of law, that the evidence could not support a finding that a rape had occurred.
Implicit in the courts discussion at the hearing on the new trial motion was its consideration of "the proper weight to be accorded the evidence" and its finding that there was " sufficient credible evidence to support the verdict." (People v. Davis , supra, 10 Cal.4th at p. 524, quoting People v. Robarge (1953) 41 Cal.2d 628, 633, 262 P.2d 14.) In light of the evidence presented at trial that the sex act had occurred as Katie described and the complete lack of evidence supporting appellants impossibility theory, the trial court did not abuse its discretion in denying appellants motion for a new trial. (See People v. Davis, supra, 10 Cal.4th at p. 524.)
DISPOSITION
The judgment is affirmed.
We concur: Lambden, J., Ruvolo, J.