Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F04105.
SIMS, Acting P. J.
Defendant Darius Ramone James appeals following his conviction of (1) forcible sodomy (Pen. Code, § 286, subd. (c)(2) ), (2) inflicting corporal injury on a spouse resulting in a traumatic condition (§ 273.5, subd. (a)), (3) threatening death or great bodily injury (§ 422), and (4) resisting arrest (§ 148, subd. (a)(1)), with a prior serious felony conviction (robbery) for sentencing purposes (§§ 667, 1170.12). Defendant claims evidentiary and instructional error and ineffective assistance of counsel. We shall affirm the judgment.
Undesignated statutory references are to the Penal Code. Section 286, subdivision (c)(2), states, “Any person who commits an act of sodomy when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.” Sodomy is defined as “sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.” (§ 286, subd. (a).)
FACTUAL AND PROCEDURAL BACKGROUND
An amended information charged defendant with (1) committing forcible sodomy on his wife, T. “Doe, ” on May 5, 2008; (2) inflicting corporal injury with trauma on the same victim on the same date; (3) making a criminal threat against the same victim on the same date; and (4) misdemeanor resisting arrest on May 6, 2008. The pleading alleged a (bifurcated) prior conviction (a 2000 robbery) -- for sentencing purposes. Allegations about a trailing offense were dismissed.
At trial, law enforcement officers testified to the victim’s statements describing a physical and sexual assault by defendant, but the victim herself testified and recanted her prior statements. Evidence adduced at trial included the following:
On May 5, 2008, defendant, his pregnant wife, their infant daughter, and wife’s five-year-old son, all of whom had been staying at the home of defendant’s mother, stayed at a Motel 6. In the morning, the victim went to the motel office with her children and called 911. The transcript of the 911 call shows she reported:
“He threatened to choke me
“911 OPERATOR: Okay. What’s your name?
“[VICTIM]: -- kill me if I call the police.”
The victim reported, “first he hit me in my eye, and then he, um, and then he, um, um, hit me again. And now it’s just like I didn’t even know I got -- now I got a black eye, but he threatened that he’s gonna kill me if I call the police officers and all this stuff.” She also said, “he hit me in my face last night, and he, um, he -- and he al- -- he almost, um rape me in my (Unintelligible). He did though. I start [sic] bleeding. He started rape -- started rape [sic] me in my butt. (Unintelligible).”
Responding sheriff’s deputies detained defendant as he drove away from the motel and captured him when he ran.
A deputy saw apparent blood in the motel room sink and discoloration to the victim’s left eye.
At the hospital, the victim told a deputy that, that night, the family went to buy marijuana. On the drive back to the motel, the victim, who thought defendant might be bisexual, asked if defendant ever had sex with a man. Defendant got angry, struck the victim in the face, and said, “Watch when we get back to the motel.”
Back in the motel room, defendant told the boy to go into the bathroom, forcibly inserted his penis in the victim’s “butt” and sodomized her against her will, despite her pleas for him to stop. Defendant, at six feet, three inches in height and about 250 pounds, is almost a foot taller and 140 pounds heavier than the victim. He told her not to scream and, if she did, he would “stuff a wash rag” in her mouth. She yelled anyway, because it hurt. After he finished, defendant told her that if she reported the incident or told anyone about it, he would kill her. He told her not to try to leave the room. She was afraid. Defendant sodomized her over a year earlier but promised never to do it again. In the morning, defendant left, and the victim ran to the motel office and called 911. She was grateful when the deputies arrived because defendant “probably would have killed” her.
A physician’s assistant, testifying as an expert in sexual assault examinations, testified he spoke with and examined the victim. She said defendant forced her to have anal sex, which caused her pain and anal bleeding. The physician’s assistant observed the victim had bruised eyelids, a small amount of apparent blood on her underwear, and several small anal tears about two to four millimeters. There was no indication of hemorrhoids. The expert could not say whether any penetration was consensual.
Days after the attack, the victim applied for a restraining order but apparently let the matter drop. Her declaration under penalty of perjury attested that defendant injured her eyes and back and said, “He said he was going to kill me if I leave him.” There was no specific reference to the sodomy. The victim also filed for legal separation but did not follow through.
A victim advocate from the District Attorney’s office testified she met with the victim on June 4, 2008, to review her statement. The victim refused to confirm or deny her prior statement to police. She said defendant was controlling, and she wanted him to get “batterer’s treatment, ” but she said she was not fearful and did not want him prosecuted.
At trial, the prosecution called the victim as a witness. The victim testified defendant did nothing wrong; her statements to the police were lies; and she contacted the District Attorney’s office several times to say she lied. She lied to police because she was upset with defendant for taking the car and jealous because she believed he was seeing one of the other women with whom he had a baby. Defendant never struck her and never sexually assaulted her. He does not have anger problems. She called 911 because he was taking her car, and she wanted it back. She had consensual vaginal intercourse with defendant that night. They did not have anal sex that night, and defendant never forcibly put his penis in her anus. All their sex was consensual. She did not remember any threats and was not in fear. She had hemorrhoids. She had no blood in her panties. When shown a photograph of her bruised face, she said her infant daughter accidentally hit her with a brush. The victim also denied any previous abuse. Her prior reports were lies she made up because she was angry and jealous. She loves her husband. She is not afraid of him, but she admitted she told the deputy that she was afraid of defendant. She admitted she asked the motel clerk to lock the office door while she called 911, but she claimed at trial the reason for the request was that she was afraid defendant would take her wedding ring, as he did in past fights.
Law enforcement officers testified to prior contacts with the victim. On April 29, 2005, she reported that defendant pushed her and struck her when she became jealous about a woman telephoning him. On December 24, 2006, she reported to law enforcement that defendant punched her four times in the head and once in the stomach, spread her “ass cheeks, ” spit on her anus and stuck his penis in her, after which she bled from her anus. He then raped her and sodomized her again. She wanted a restraining order but not a physical examination. The deputy observed redness and swelling around the victim’s left eye. On January 10, 2008, she reported that defendant pushed her and her son out of a car, injuring her finger, and then drove off. The responding officer saw no visible injury to the finger. The victim was upset that defendant had the car, because she needed it for errands.
Latoya Freeman, who bore defendant two sons but never married him, testified he gave her several black eyes and choked her twice during their relationship. After their relationship ended, he stalked her, threatened her, and once displayed a handgun.
Defendant did not testify. The defense recalled the victim to the witness stand. She testified the red in the sink was not blood but juice from cherries she ate. She had a bit of blood in her rectal area, but it was from hemorrhoids. There was no nonconsensual anal sex. What might have caused the anal tearing was that she had consensual anal sex with defendant a couple of days before their motel stay.
In the prosecution’s rebuttal case, Angela Davis testified she and defendant were coworkers in October 1999, when he tried to kiss her while they were watching a movie at his house. When she demurred, he set a gun on the coffee table and raped her and later took her home.
The jury found defendant guilty on all counts, and the trial court found true the prior conviction allegation. The court denied defendant’s motion to strike the prior conviction and sentenced defendant to a total of 14 years and four months, as follows: a doubled lower term of six years for count one (sodomy), two years consecutive for count two (corporal injury), a consecutive term of one year and four months for count three (criminal threat), a 30-day concurrent sentence for the misdemeanor resisting arrest, and a consecutive five-year term for the section 667, subdivision (a), prior serious felony conviction.
DISCUSSION
I. Evidence of Uncharged Misconduct
Defendant raises three points about evidence of uncharged misconduct. First, he argues the trial court permitted excessive evidence of uncharged misconduct to establish his propensity for domestic violence and forcible sex crimes. Second, defendant argues ineffective assistance of counsel in counsel’s failure to object to some evidence as remote in time. Third, defendant claims his constitutional rights were violated by the jury instruction that propensity evidence can be established by a preponderance of the evidence. We see no grounds for reversal.
A. Trial Court did not Abuse its Discretion
The prosecution sought in limine rulings to adduce evidence of uncharged prior sexual offenses by defendant pursuant to Evidence Code section 1108 and prior acts of domestic violence pursuant to Evidence Code section 1109 . Defendant objected. The trial court heard argument, acknowledged its duty under Evidence Code section 352, which says the court “in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” The court analyzed the prior acts and concluded some, but not all, would be admissible.
Evidence Code section 1108 provides in part: “(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101 [character evidence inadmissible to prove conduct], if the evidence is not inadmissible pursuant to Section 352.”
Evidence Code section 1109 provides in part: “(a) Except as provided in subdivision (e) [remoteness] or (f) [administrative findings], in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. [¶]... [¶] (e) Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that admission of this evidence is in the interest of justice.”
The acts admitted were (1) a deputy testified he responded to a domestic violence call on April 29, 2005, in which defendant’s wife’s said defendant hit her in the head; (2) a different deputy testified that on December 24, 2006, he responded to a domestic violence call in which defendant’s wife said he hit her in the head and stomach, raped and sodomized her; (3) a third deputy testified he responded to a domestic violence call on January 10, 2008, and defendant’s wife’s said defendant pushed her and her son out of her car; (4) Latoya Freeman testified defendant hit and threatened to kill her before and around 2004 and, after they broke up, he stalked and threatened to kill her in 2005; and (5) Angela Davis testified defendant displayed a gun and raped her in October 1999.
Defendant acknowledges case law holding that Evidence Code sections 1108 and 1109 do not violate federal or state due process guarantees, because Evidence Code section 352 permits exclusion of the evidence to protect a defendant’s due process right to a fundamentally fair trial. (People v. Falsetta (1999) 21 Cal.4th 903, 917-918; People v. Price (2004) 120 Cal.App.4th 224, 239-241.) Evidence Code section 352 rulings are reviewed under an abuse of discretion standard. (People v. Thuss (2003) 107 Cal.App.4th 221, 234.) An abuse of discretion occurs when the trial court’s ruling is arbitrary, capricious or patently absurd. (Ibid.)
Defendant argues the trial court abused its discretion in admitting the evidence, because the case against him was weak in that his wife recanted before and during trial. We disagree that the case against defendant was weak. The evidence of anal tearing was strong physical evidence that sodomy occurred that night, yet even in her recantation the victim denied that consensual sodomy occurred that night. The jury saw photographic evidence of the victim’s facial bruising and was in a position to evaluate the victim’s claim that it was caused by her infant accidentally hitting her with a hair brush. A jury may properly credit a witness’s prior statements over live testimony, particularly where the witness has a motive to testify falsely. (People v. Cuevas (1995) 12 Cal.4th 252, 276.) The evidence in this case showed the victim had a motive to lie on the witness stand, because she loves her husband and does not want to see him prosecuted (a state of mind not inconsistent with being an abused wife). Without the recantation, the case against defendant was strong, including the victim’s contemporaneous statements, physical evidence of injury to her face and anal tearing, and the medical testimony that she did not have hemorrhoids that would explain the bleeding.
Defendant argues the sheer number of prior incidents made it all but certain that the evidence of uncharged misconduct would lead to guilty verdicts, not because defendant was guilty but because of the evidence of prior conduct. We disagree.
Defendant argues the evidence of uncharged misconduct was weak because (1) his wife had motive to lie, because she was mad and jealous and wanted the car; (2) Latoya had motive to lie because she was fighting defendant over child custody issues; and (3) Angela’s story was implausible because she did not report the rape immediately, accepted a ride home from defendant, and still considered him a friend after the incident. There were matters for argument to the jury, not for exclusion of the evidence.
We conclude the trial court did not abuse its discretion in admitting the evidence of prior uncharged acts of domestic abuse and sexual misconduct, and we therefore need not address defendant’s contention that evidentiary error was prejudicial.
B. Claim of Ineffective Assistance of Counsel
Defendant argues his trial attorney performed deficiently by failing to object that some of the evidence “appear[ed]” to take place more than 10 years before the charged offenses, which would make them inadmissible under Evidence Code section 1109, subdivision (e), footnote 3, ante, unless the court determined admission of the evidence was in the interest of justice. We see no ground for reversal.
To establish ineffective assistance, defendant bears the burden of showing, first, that counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. (People v. Scott (1997) 15 Cal.4th 1188, 1211.) Second, defendant must establish that, absent counsel’s error, it is reasonably probable that the verdict would have been more favorable to him. (Ibid.) “If the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation.” (Id. at p. 1212.)
Here, defendant fails to show any incident took place before May 5, 1998 (10 years before the May 5, 2008, offenses which were the subject of this prosecution). He merely claims “Latoya Freeman testified to instances of alleged domestic violence that appear to have taken place more than ten years before the charged offenses.... Appellant had tried to suffocate her and gave her black eyes.”
The cited page of the reporter’s transcript shows only that the witness said these acts occurred “prior to” 2004. She did not say when they occurred. She testified she met defendant in high school and graduated in 1994. They never married but maintained their relationship until 2003 -- about a year before his April 2004 release from jail. The probation report shows defendant was incarcerated for a robbery for which he was arrested on February 26, 2000, and convicted on November 21, 2000. Even assuming defendant was in continuous custody since his arrest, that leaves more than a year and a half (May 1998 to February 2000) in which his acts of physical abuse would fall within the 10 year cutoff. Defendant cites evidence that he was sentenced to six years and eight months for the robbery. However, what matters for present purposes is not the sentence but the time served.
Defendant in effect asks us to assume he had a history of violence before May 1998 with an unexplained hiatus of calm between May 1998 and February 2000. Any such assumption would be unwarranted, because Freeman testified that, even before they broke up and starting fighting over child custody, defendant was threatening toward her “all the time, ” “when we would get into arguments, he would always result [sic] to violence, whether it was pushing me against the wall, whether it was slapping me, whether it was hitting me in the face [or] put[ting] pillows over my face where I couldn’t breathe.”
An obvious tactical reason why defense counsel might not have required the prosecution to pin down the dates is that defendant did indeed engage in these acts within the 10-year period.
We reject defendant’s claim of ineffective assistance of counsel.
C. Jury Instruction
Defendant contends his right to have guilt proven beyond a reasonable doubt was violated by the jury instructions which applied a preponderance of evidence standard of proof to evidence of uncharged conduct. We see no error.
The trial court instructed the jury with CALCRIM No. 1191, that the prosecution had presented evidence of uncharged rape and sodomy, and the jurors could consider this evidence only if they found it proved by a preponderance of the evidence, and “[i]f you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit sodomy, as charged here. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of sodomy. The People must still prove the charge beyond a reasonable doubt.”
The court also instructed the jury with CALCRIM No. 852, which gave similar instructions with respect to the evidence of uncharged domestic violence.
Defendant acknowledges case law rejecting constitutional challenges to the preponderance standard for propensity evidence. (People v. Reliford (2003) 29 Cal.4th 1007, 1012 [former CALJIC version]; People v. Falsetta, supra, 21 Cal.4th at p. 915.) This court has held the current CALCRIM instructions do not differ materially from the CALJIC instructions approved by the California Supreme Court. (People v. Reyes (2008) 160 Cal.App.4th 246, 252-253; People v. Cromp (2007) 153 Cal.App.4th 476, 480.)
Defendant argues that, notwithstanding these cases, his right to have his guilt proved beyond a reasonable doubt was violated in this case, because the victim recanted under oath. Defendant gives us no reason to revisit the issue, and we decline his request that we ask the California Supreme Court to revisit the issue.
II. Evidence of Prior Incarceration
Defendant contends the trial court erred in denying his motion for mistrial after a witness volunteered that defendant had been incarcerated for several years. Defendant further contends his trial attorney rendered ineffective assistance of counsel by failing to object to the witness’s earlier references to defendant’s incarceration. We see no grounds for reversal.
A. Background
During testimony about uncharged misconduct, Latoya Freeman made various references to defendant’s prior incarceration -- without objection. Thus, when asked how long she had known defendant, Freeman answered, “We met our senior year of high school, and we broke up approximately one year before he got out of jail.” When asked when the dating relationship ended, the witness said, “I believe he got out of jail in --” but was interrupted by counsel asking for “[j]ust the year, ” to which she responded she was not sure of the year. Then, in response to a question as to when defendant stalked her, Freeman said, “Shortly after he got out of jail in April of 2004, [defendant] was very angry with me because I had moved on....” The defense made no objection to any of this testimony.
On cross-examination of Freeman about the ongoing issues about child visitation, defense counsel mentioned defendant being in jail (that the children were not informed their father was in jail and thought he was away at school), but defendant acknowledges on appeal that these references were to his pretrial custody for the current offenses, of which the jury was already aware for reasons not challenged on appeal.
The defense did object when Freeman answered defense counsel’s question during cross-examination as to whether the reason she went to family court was to cut off defendant’s custody and visitation rights with the children. She responded, “No, it was not. It was to make a custody arrangement whereby I would not have to be as involved with him and his mother by going to his house, or having to put myself in a position where I would be at risk. I never tried to take the kids from him. I wanted him to see his kids. I wanted him to be involved with his children because he had been absent from their life when he was incarcerated for three years and six months.” Defense counsel objected. After an unreported sidebar, the court instructed the jury:
“THE COURT: All right. The last statement by the witness will be stricken, ladies and gentlemen. You’re to disregard that statement by the witness. [¶] There’s also been a reference by this witness to be [sic] defendant being in jail. You’re to disregard that. That statement is not relevant. It’s not evidence in this case. You’re to decide this case based solely on the admissible evidence in this case. [¶] Is there anyone who thinks they would have any difficulty disregarding the statement just made by this witness? Anyone? [¶] If you think you’ll have problems disregarding that statement, you need to tell me now.
“JUROR NUMBER 9: How do you disregard it?
“THE COURT: You don’t consider it. You pretend as if you’ve never heard that statement. If you think that statement is going to influence you, I simply need to know that at this point in time. It is not a relevant piece of information for this case. You may not consider it, you may not utilize it, you may not rely upon it. [¶] Does anyone think they would have any difficulty following that order by the Court? [¶] All right. You [defense counsel] may proceed.”
At the next recess, the trial court asked if counsel had any comment. Defense counsel went on to a different subject. The court returned to the issue. Defense counsel moved for a mistrial. The trial court denied the motion, stating, “I specifically went into probably more depth with the jury after the statement was made than one would normally do. And the reason I did it was I wanted to ensure that, in fact, each of the jurors could set aside that statement. One juror did say, ‘How do we do that?’ And I did explain to the juror how they should do that.
“I went the next step and informed the jury that it is not admissible evidence. They have to disregard it. They have to decide this case based solely on admissible evidence. And then I asked then once again if anybody would have any trouble doing that. All jurors essentially indicated they would be able to follow the Court’s order and would be able to disregard the statement.
“I would also point out that although there was no in limine motion, it is something that I think all parties would normally agree it’s prejudicial by its very nature, and should not be presented before a jury.
“I guess, [defense counsel], on one level, though, it was your question that elicited the information. I know that it was not intentional, but I think one has to recognize that with regard to some of the witnesses who have testified in this case, there has been a tendency by those witnesses, specifically Ms. Freeman and [defendant’s wife], to be less than responsive to every question that is asked, and to, in fact, answer a question that they did not hear but in which they wish to answer.”
Defense counsel resumed cross-examination of Freeman, who said about a prior issue of her son’s school enrollment that defendant was not present because “[h]e was incarcerated.” Defense counsel started to ask, “At the time that you’re talking about, he was incarcerated, this was about the time --, ” but the record shows counsel and client conferred, and counsel then said he had no further questions.
B. Analysis
On appeal, defendant argues (1) the trial court erred in denying the mistrial motion, and (2) his trial attorney rendered ineffective assistance of counsel by failing to object to the other references about defendant being in jail. We see no basis for reversal.
1. Mistrial
As to the mistrial motion, the People maintain defendant’s appellate constitutional challenge (denial of his right to a fair and impartial jury) is forfeited for failure to raise it in the trial court. Defendant replies the constitutional challenge was implicit, and the record shows the trial court understood the concern whether the jurors could be fair after hearing the testimony. Even assuming the matter is not forfeited, defendant fails to show grounds for reversal.
A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. (People v. Wallace (2008) 44 Cal.4th 1032, 1068.) Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. (Ibid.) On review, we apply the deferential abuse of discretion standard. (Ibid.)
Defendant argues the length of the incarceration was inherently prejudicial, particularly because it gave credence to the propensity evidence, which the jurors might otherwise have disbelieved due to witness bias.
However, the trial court immediately struck the reference to defendant’s three and a half year incarceration and instructed the jury to disregard it. We presume the jury will follow an instruction to disregard improper evidence. (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404.) It is only in the exceptional case that the improper subject matter is of such a character that its effect cannot be removed by the court’s admonition. (Ibid.) That one juror asked how they could disregard it does not establish incurable prejudice. We reject defendant’s contention that the juror’s question demonstrated the juror would have significant difficulty in disregarding the evidence. We also reject defendant’s contention that the trial court should have questioned that one juror individually. The trial court was able to observe that juror’s demeanor, as well as the demeanor of the other jurors, as the trial court explained the concept of disregarding stricken testimony. The record reflects the trial court was satisfied all jurors could follow the instruction.
Defendant argues the trial court’s explanation -- for the jurors to “pretend” they never heard the statement -- was faulty because pretending and disregarding are two different things, and pretending leaves room for a juror to keep testimony in the back of his or her mind because he or she is “just pretending” it never happened. We disagree and see no problem with the trial court’s instructions to the jury.
Defendant complains the court’s instructions related only to one reference to incarceration, whereas there were several other references to incarceration. However, there was no objection or mistrial motion with respect to the other references and therefore the matter cannot be raised on appeal. (People v. Wilson (2008) 43 Cal.4th 1, 25.)
The trial court did not abuse its discretion in denying the mistrial motion.
2. Assistance of Counsel
Defendant contends reversal is required because his trial counsel was ineffective in failing to object to the other references to defendant being in jail. We disagree.
As indicated, defendant bears the burden of showing (1) counsel’s performance was deficient, and (2) absent counsel’s error, it is reasonably probable the verdict would have been more favorable to defendant. (People v. Scott, supra, 15 Cal.4th at p. 1211.) Whether to object to inadmissible evidence is a tactical decision accorded substantial deference, and failure to object seldom establishes counsel’s incompetence. (People v. (Barry Glenn) Williams (1997) 16 Cal.4th 153, 215.) In order to prevail on an ineffective assistance of counsel claim, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged omission. (Ibid.)
Defendant argues there can be no explanation for trial counsel’s failure to object to Freeman’s earlier references to jail, because he finally did object. However, there is an obvious potential explanation. Thus, counsel objected when the witness made a point of the length of the incarceration. Counsel may have refrained from objecting to the earlier references because they were fleeting, and an objection would only have drawn attention to them. (People v. (Barry Glenn) Williams, supra, 16 Cal.4th at p. 215 [counsel may have decided not to object to witness’s testimony about defendant’s fear of gang retaliation because an objection would have highlighted the testimony and made it seem more significant, especially in light of the general gang rivalry with which the jury was already familiar].) Here, trial counsel was in a position to see the jurors’ reactions to the early references to jail and may have concluded they had no impact on the jurors.
Defendant argues it was predictable Freeman would be a hostile witness to defendant, and counsel should have filed an in limine motion asking the court to admonish the witness before her testimony to refrain from referencing defendant’s incarceration. Defendant argues counsel was also deficient in failing to ask the court to admonish Freeman instead of simply striking the testimony and admonishing the jury to disregard it. However, defendant fails to show prejudice. The trial court acknowledged Freeman was a “difficult” witness and did not listen to the questions. While we presume a witness will obey a trial court’s orders, defense counsel may have believed that a pre-testimony admonition to this witness would be counter-productive under the circumstances.
We conclude defendant fails to show grounds for reversal based on the admission of evidence of his prior incarceration.
III. Claim of Instructional Error Re Unanimity
Defendant complains the trial court prejudicially erred in failing to instruct the jurors sua sponte that they must unanimously agree on which act constituted the criminal threat (§ 422 ) in count three. We see no grounds for reversal.
Section 422 states, “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement... is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”
When the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) This unanimity requirement is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. (Ibid.) When a defendant is charged with a single count of making a criminal threat, and the evidence shows more than one criminal threat was made, the prosecution must either make an election of the threat for which a conviction is sought, or the trial court must give a jury unanimity instruction. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1539.)
The standard unanimity instruction, CALCRIM No. 3500, states in part, “The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.”
Count three alleged defendant made a threat to commit a crime which would result in “death and great bodily injury” to the victim.
Defendant sees evidence of three separate threats: (1) as they were driving, defendant said to the victim, “watch when we get back to the motel”; (2) during the anal intercourse, defendant told the victim not to scream or he would put a washrag in her mouth; and (3) after the anal intercourse, defendant told the victim not to call the police or tell anyone, or else he would kill her.
A conditional threat to kill a victim “if” she calls the police will support a section 422 conviction, as long as the threat and surrounding circumstances convey to the victim gravity of purpose and immediate prospect of execution of the threat, with “immediate” meaning that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the condition (silence) not be met. (People v. Melhado, supra, 60 Cal.App.4th at pp. 1537-1538.)
In the trial court, the prosecutor noted there was evidence of multiple threats and asked if the trial court felt a need to give the unanimity instruction for count three, the section 422 criminal threat. The court stated it recalled multiple threats with regard to uncharged acts but did not recall multiple threats with regard to the charged offense. The prosecutor said, “I think you’re probably right, as I think about it.” The trial court asked if defense counsel had any comment, and defense counsel responded, “No comments, your Honor.” Defense counsel’s mere concurrence in the trial court’s decision does not constitute a deliberate, tactical choice that would rise to the level of invited error precluding review. (People v. Wader (1993) 5 Cal.4th 610, 657-658; People v. Carrera (1989) 49 Cal.3d 291, 311, fn. 8.)
The prosecutor in closing argument said the victim recanted because she wanted to get back together with her husband, and the jury should focus on what she said at the time of the crimes, which was more reliable because she was under the stress of the events, and the jury could hear the fear and terror in her voice during the 911 call. The prosecutor spoke of defendant’s statements:
“He threatened her at that moment [in the car when he hit her eye]. ‘You just watch when we get back to that motel room.’ Just watch. She told the deputy he definitely threatened her.
“[Defendant] told [the boy], a little child in that little motel room, go inside the bathroom and shut the door, as if that’s enough to protect a little child from hearing what’s going on in that room.
“He forcibly sodomizes her. She yelled, she screamed. You heard Deputy Ball tell you what she said [the next day]. [Defendant] told her keep it down or he’s going to put a rag in her mouth. She told him no multiple times, please don’t.
“And she also mentioned, interestingly enough, that he had done this a year ago.... [W]e’ll get into that, ... that being referred to in restraining orders.
“He told her she better let him take control. She better let him take control.
“Threatened to kill her. She said she was afraid to Deputy Ball. She’s fearful of him. You heard the 911 call. He’s threatening to kill me every day, she said on the 911 call. You heard the fear, the comments about the threats. You didn’t hear anything about a wedding ring on that call, you heard about the threats and him threatening to kill her. [A]nd she went to that motel office, she told you, the first chance she got. First chance she got, when he left, she went to that motel office. When she saw that patrol vehicle, when she saw law enforcement, she was thankful. She was thankful, in fear that he was going to kill her.”
In arguing the section 422 specifically, the prosecutor said: “And then criminal threats. There was a willful threat to kill or cause great bodily injury. It was oral, and he intended that she understand that to be a threat. It was clear and unconditional, communicated to her. The seriousness and the immediate prospect caused her to be in fear. And she told you -- well, through the deputy, on that date the fear that she had. And through the 911 call, you could still hear the fear that started the day before and continues up until the time she’s on the phone in that motel office. Was that fear reasonable? Absolutely, given what occurred then, and her knowledge of his history and the abuse that she’s had.”
Thus, although the prosecutor mentioned death or great bodily injury as an element of section 422, her argument to the jury regarding section 422 focused on defendant’s threat to kill the victim. The specific threat to kill occurred after the sodomy, when defendant threatened to kill the victim if she told anyone. The threat in the car (“watch when we get back”) was a threat to commit the sexual assault. The threat to put a washrag in the victim’s mouth if she screamed was not a threat to kill. Only the third threat was a threat to kill.
On appeal, defendant says the threat to put a washrag in the victim’s mouth could be a threat to kill, because a washrag in the mouth could cause a person to choke, and perhaps when the victim said defendant threatened to choke her, she was referring to the washrag. We disagree, and the prosecutor did not argue such theory to the jury.
People v. Jantz (2006) 137 Cal.App.4th 1283 held a unanimity instruction was not required for a section 422 criminal threats offense where the prosecutor made an election in closing argument. Even though the prosecutor in that murder case talked about “threats” in the plural during closing argument, the specific argument about section 422 referred to a singular threat. (Id. at p. 1292.) Here too, the prosecutor adequately elected the threat to kill, and there was only one threat to kill.
Assuming for the sake of argument that the trial court should have given a unanimity instruction, any error was harmless. Failure to give a unanimity instruction is governed by the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711], which requires the error to be harmless beyond a reasonable doubt. (People v. Thompson (1995) 36 Cal.App.4th 843, 853.) Where the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless. (Ibid.) The failure to give a unanimity instruction is harmless where there is no reasonable possibility of a disagreement among the jurors regarding the specific acts that could support the charged offense. (People v. Napoles (2002) 104 Cal.App.4th 108, 119.)
In this case, defendant’s threat to kill the victim was communicated in the victim’s 911 call--the most credible and potent evidence in the case. We see no basis on which the jury would not unanimously agree that defendant made this threat.
Defendant argues the jury could have disagreed on which act or acts defendant committed for the section 422 offense. However, defendant does not point to any possible disagreement as to whether he made one of the three statements but not the others. He merely argues the jury may have disagreed as to whether each statement rose to the level of a section 422 threat. He argues some jurors may have believed his statement in the car amounted to a section 422 threat, while other jurors may have felt the words lacked specifics as to what he would do. Defendant argues some jurors may have believed his warning about putting a washrag in the victim’s mouth was a criminal threat because it risked suffocation, while other jurors may have concluded it was not a criminal threat because the victim would still be able to breathe through her nose.
Defendant’s arguments are not persuasive. A unanimity instruction is required where there is evidence of more than one discrete crime. (People v. Russo, supra, 25 Cal.4th at p. 1132.) If defendant’s first two statements did not constitute crimes, the need for the instruction was not triggered. Indeed, the People argue the instruction was not required because there was no evidence that either of the first two statements put the victim in the “sustained fear” required by section 422.
Defendant also argues the jury obviously disbelieved the victim’s recantation testimony but believed some of her testimony, e.g., that she and defendant were married or cohabiting, and therefore it cannot be concluded the jury necessarily found there was no disagreement defendant made each of the threats. We disagree. The recantation would not cause any disagreement as to whether defendant made one of the threatening statements but not the others.
We conclude the absence of a unanimity instruction does not warrant reversal of the judgment.
IV. Claim of Instructional Error Re Sodomy
Defendant complains the trial court refused to instruct the jury that, as to the forcible sodomy count, prior consensual sexual intercourse could be considered on the issues of (1) consent and (2) reasonable and good faith mistake about consent. We shall conclude any instructional error was harmless.
A. Background
The trial court initially said it would grant defendant’s request to instruct the jury with CALCRIM No. 1194, that prior consensual sexual intercourse could be considered on the issues of consent and mistaken belief about consent with respect to count one, forcible sodomy. The court later stated it would modify the instruction to omit the language about reasonable/mistaken belief in consent, because no evidence supported that defense. Later, during a break in the defense’s closing argument, the court decided not to give the instruction at all, because it was inapplicable in that there was no evidence of consensual sodomy, i.e., the victim initially reported a forcible sodomy and later said there was no sodomy at all that night. The court also noted defense counsel had made no reference in his closing argument to a consensual sodomy on the night in question, and defense counsel agreed he made no such reference. Nor did defense counsel make any such reference in the remainder of his closing argument to the jury.
CALCRIM No. 1194 states: “You have heard evidence that [complaining witness] had consensual sexual intercourse with the defendant before the act that is charged in this case. You may consider this evidence only to help you decide (whether the alleged victim consented to the charged act[s]/[and] whether the defendant reasonably and in good faith believed that [complaining witness] consented to the charged act[s]). Do not consider this evidence for any other purpose.”
B. Analysis
1. Actual Consent
CALCRIM No. 1194 derives from section 1127d. Section 1127d was enacted as part of a legislative reform of sex offenses to counter the notion that an “unchaste woman” was more likely to have consented to sexual intercourse with the defendant. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 222 (Arabian, J., concurring.) The jury instruction does nothing more than limit admissibility of evidence of the complainant’s sexual history.
Section 1127d states: “(a) In any criminal prosecution for the crime of rape or for violation of Section 261.5 [unlawful sexual intercourse defined as sexual intercourse with a nonspouse minor], or for an attempt to commit, or assault with intent to commit, any such crime, the jury shall not be instructed that it may be inferred that a person who has previously consented to sexual intercourse with persons other than the defendant or with the defendant would be therefore more likely to consent to sexual intercourse again. However, if evidence was received that the victim consented to and did engage in sexual intercourse with the defendant on one or more occasions prior to that charged against the defendant in this case, the jury shall be instructed that this evidence may be considered only as it relates to the question of whether the victim consented to the act of intercourse charged against the defendant in the case, or whether the defendant had a good faith reasonable belief that the victim consented to the act of sexual intercourse. The jury shall be instructed that it shall not consider this evidence for any other purpose. [¶] (b) A jury shall not be instructed that the prior sexual conduct in and of itself of the complaining witness may be considered in determining the credibility of the witness pursuant to Chapter 6 (commencing with Section 780) of Division 6 of the Evidence Code.”
The parties argue whether section 1127d’s omission of express reference to sodomy makes CALCRIM No. 1194 inapplicable to sodomy cases. Defendant argues in his reply brief that, even if the statute does not apply to sodomy, he was entitled to a pinpoint instruction along the lines of CALCRIM No. 1194, to pinpoint the defense theory of actual consent.
Regardless whether section 1127d applies to sodomy, “a criminal defendant is entitled, on request, to instructions that pinpoint the theory of the defense case.” (People v. Gutierrez (2002) 28 Cal.4th 1083.)
We observe, however, that actual consent was not a defense theory of the case -- a point acknowledged by defense counsel’s concurrence with the trial court’s observation that defense counsel did not raise it in closing argument to the jury.
Assuming a jury instruction on actual consent would have been appropriate, the trial court erred in concluding it was unsupported by the evidence. The trial court said there was no evidence of consensual sodomy because the victim initially reported a forcible sodomy and later said there was no sodomy at all. However, there was evidence of sodomy (the victim’s initial statements and the physical examination), and there was testimony from the victim that all of her sexual activity with defendant was consensual and that she engaged in consensual anal intercourse with defendant a couple of nights earlier. Although her trial testimony denied having anal sex at all on the night in question, the jury could have disbelieved that portion of the testimony. Thus, the jury could have found consensual sodomy occurred on the night in question.
Nevertheless, any error in failing to instruct on actual consent was harmless.
Defendant argues absence of the instruction deprived him of a defense of consent, due process, or a liberty interest. Defendant cites inapposite authority that the California Supreme Court has not yet determined what test of prejudice applies to a failure to instruct on an affirmative defense. (People v. (Anthony) Williams (2009) 176 Cal.App.4th 1521, 1530, citing People v. Salas (2006) 37 Cal.4th 967, 984.)
Here, however, the defense did not argue to the jury an affirmative defense of consensual sodomy. Moreover, omission of a pinpoint instruction is harmless where the instructions given adequately cover the point of the proposed instruction. (People v. Gutierrez, supra, 28 Cal.4th at p. 1144.)
Lack of consent was an element of the crime of forcible sodomy, and the trial court instructed the jury that in order for defendant to be found guilty of sodomy by force, the prosecution must prove that “[t]he other person did not consent to the act, ” and “[i]n order to consent, a person must act freely and voluntarily and know the nature of the act.” The court also instructed the jury that, in order to convict defendant of forcible sodomy, it had to find that defendant accomplished the act by “force, violence, duress, menace, or fear of immediate and unlawful bodily injury, ” and “force” meant that defendant used enough physical force “to overcome the other person’s will.”
Defendant argues the absence of the instruction (which would have told the jurors they could consider the prior consensual sexual activity only in deciding whether the victim consented) lightened the prosecution’s burden because it permitted the jury to ignore the evidence of past consensual conduct. We disagree.
We conclude any error in omitting CALCRIM No. 1194 or similar instruction regarding actual consent was harmless.
2. Mistaken Belief in Consent
As to the portion of the proposed instruction about reasonable, good faith belief in consent, the trial court properly concluded no evidence supported that defense, and therefore the trial court did not err in refusing to instruct on it.
Defendant argues the absence of the instruction deprived him of the defense, under People v. Mayberry (1975) 15 Cal.3d 143, that a reasonable yet mistaken belief the victim consented to the sex act was a defense. However, a trial court must give a jury instruction on the Mayberry defense only when the defense is supported by substantial evidence sufficient to deserve consideration by the jury. (People v. (Wash Jones) Williams (1992) 4 Cal.4th 354, 361.) Such instruction “should not be given absent substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not.” (Id. at p. 362; accord, People v. Dillon (2009) 174 Cal.App.4th 1367, 1381-1383.) People v. Dominguez (2006) 39 Cal.4th 1141, held the instruction was not required (sua sponte) where the defendant’s evidence “did not indicate the kind of equivocal behavior [by the victim] from which a reasonable person could have concluded the victim had consented to have sexual intercourse when she in fact had not. The most that could be said for defendant’s testimony, if credited, is that the victim actually consented, not that he mistakenly believed she had done so.” (Id. at p. 1149.) Dominguez concluded the trial court did not err in failing to give the jury instruction. (Ibid.)
Usually, the defense of reasonable, good faith belief in consent is raised by a defendant’s testimony about his beliefs and intentions, but the defendant’s testimony is not required. (People v. Simmons (1989) 213 Cal.App.3d 573, 579 [noting a case where testimony of a percipient bystander sufficed to raise the defense].) Although in some cases a defendant may succeed in raising the Mayberry defense without testifying, “the record must contain evidence, whether direct or circumstantial, of the defendant’s state of mind at the time the offense was committed.” (People v. Maury (2003) 30 Cal.4th 342, 425.)
Here, there was no testimony from defendant, nor was there any evidence of his subjective belief at the time of the charged offense. Nor was there evidence of equivocal behavior by the victim that could support a finding that defendant reasonably but mistakenly believed she consented. Defendant argues the victim was equivocal, because she gave inconsistent statements about what happened. However, while the victim was equivocal in her version of what happened, neither version included any equivocal behavior on her part. She first said she was forced without her consent; she then said it did not happen at all. As in Dominguez, supra, 39 Cal.4th at p. 1149, the most that could be said for the evidence from a defense perspective is that the victim actually consented, not that defendant mistakenly believed she had done so.
Defendant argues that, because he went to buy marijuana that night, the jury may have found he believed the victim consented to sodomy because he was under the influence of marijuana. However, there is no evidence of consumption or impairment and, even if there were, voluntary intoxication will not support a defense of reasonable, good faith belief that the victim consented to the sex act. (People v. Stanley (1992) 6 Cal.App.4th 700, 706; People v. Potter (1978) 77 Cal.App.3d 45, 51.)
There was insufficient evidence to support an instruction on reasonable but mistaken belief in consent.
We conclude defendant fails to show grounds for reversal.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J., RAYE, J.