Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F00674
SCOTLAND, P. J.
Following a mistrial based on the jury’s failure to reach a verdict, defendant Anton Johnson was retried and a new jury found him guilty of various crimes committed against Virginia Doe and Terri Doe, including aggravated kidnapping to commit rape, simple kidnapping, forcible rape, two counts of sexual battery, three counts of forcible oral copulation and one count of attempted forcible oral copulation, two counts of forcible sexual penetration, and second degree robbery. The jury also found that he kidnapped the victims, thereby increasing the risk of harm to them, and that he committed sex offenses against multiple victims. Defendant was sentenced to an aggregate term of 81 years and 6 months to life in state prison. He appeals.
Defendant contends that we must reverse the judgment due to (1) multiple evidentiary errors, (2) the trial court’s erroneous denial of his motion to dismiss, (3) prosecutorial misconduct, (4) various instructional errors, (5) an unconstitutionally vague definition of the asportation element of kidnapping, (6) the court’s failure to hold a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118), and (7) the cumulative effect of the aforesaid error. He also claims that prosecution of the robbery in count five was barred by the statute of limitations, the term imposed for count two is unauthorized, and the court orally imposed an unauthorized term of life without the possibility of parole on count one.
The People concede, and we agree, that the simple kidnapping count involving Virginia Doe and certain kidnapping enhancements must be reversed due to instructional error. And the People concede the robbery conviction must be reversed, but argue the matter should be remanded for the trial court to give the prosecutor the option of presenting evidence that an arrest warrant issued against defendant within the statute of limitations. We agree. We also conclude, as the People concede, that defendant’s sentencing contentions have merit, and we will direct the trial court to correct the abstract of judgment. In all other respects, we shall affirm the judgment.
FACTS
In March 1999, Virginia Doe was having “issues” with her young child’s father, John Robinson, about his relationship with another woman, Claudette Romo. A restraining order prohibited Virginia from having any contact with Romo.
In the early morning of March 5, 1999, Virginia was distraught because she believed her child and Robinson were spending the night with Romo and the restraining order prohibited Virginia from going to Romo’s to retrieve her child. Around 4:26 a.m., she drove to the parking lot of a convenience store located at the same intersection as the apartment complex where she suspected Romo lived. The store was closed, and Virginia used a pay phone outside to call 9-1-1 in the hope that law enforcement officers would help her retrieve her child. The dispatcher informed Virginia that her situation was not an emergency and directed her to call the non-emergency number. When she did, the second dispatcher was not helpful either.
Virginia testified that a black Ford Thunderbird carrying defendant and two other men drove into the parking lot before she made the second phone call. Defendant got out, “asked [her] if [she] was somebody, ” and when she told him “no, ” he got back in the car and drove away. The car came back while she was making the second call. Defendant got out, and the car drove away.
Defendant stood by the other pay phone while Virginia spoke to the second dispatcher. After the call ended, defendant offered her money to make another call. She declined. When Virginia started to leave, defendant hit her head with the handset from the pay phone. She fell to the ground, “lost focus for a few minutes, ” and defendant dragged her to the side of the store. He beat and choked her with both hands, then pulled her by her hair to a dark alley behind the store. Defendant forced Virginia to get on her knees and then made her orally copulate and masturbate him. At one point, he forced her to rise, and he put his mouth on her breasts and inserted his fingers in her vagina. He threatened to rape her, stating “it would be so easy for him to kill [her] and throw [her] behind the garbage can....” Defendant eventually ejaculated in her mouth.
After the assault, defendant seemed like a “changed person, ” apologizing and telling her he would help get her daughter back. He told her to walk to the front of the store with him, but not too far because there were security cameras. As they crossed the street towards the apartment complex, Virginia turned, ran back to her car, and drove away at 5:11 a.m. She drove to a gas station and asked the attendant to call 9-1-1. The police received the call at 5:19 a.m. Law enforcement officers were dispatched to the gas station and contacted Virginia, who was hysterical, had a cut near her left eyebrow, and had bloodstains on her shirt.
Then-Detective Robert James went to the convenience store and retrieved a videotape from the surveillance camera. The camera was mounted on the rear interior store wall and had only a limited view of the parking lot through the front windows. Someone lost the videotape between the initial investigation in 1999 and defendant’s first trial in 2007, but James had written a report about its contents. He testified that Virginia’s vehicle entered the parking lot at 4:26 a.m. and stopped in front of the pay phones. However, the pay phones and Virginia were not visible on the tape because the camera captured only the rear of the car after she parked. A few minutes later, a second vehicle, which appeared to be a black Thunderbird, entered the parking lot and stayed only a brief period of time. Virginia’s vehicle left the parking lot at 5:11 a.m.
Virginia was taken to the hospital at 6:10 a.m. where she was examined by nurse Nancy Siegel, who collected DNA swabs from inside Virginia’s mouth and vagina, and from both breasts. Virginia had a small laceration below her left eyebrow that required sutures. She had purple swelling with tenderness under her left eye, a small purple mark inside her right cheek, and an area of redness and swelling outside of her vagina. She also had an abrasion on her right knee and one on her right elbow, as well as red or purple marks on the back of her legs. Her injuries were consistent with the sexual assault she described.
In 2006, forensic testing revealed defendant was the source of the DNA collected from Virginia’s right breast.
Defendant sexually assaulted another woman in April of 2000, while he was dating a young woman named Roni Huckabay. At least twice a year, he expressed an interest in having Huckabay engage in sexual activity with him and another woman. He frequently attacked Huckabay physically, hitting her head, choking her, punching her, knocking her out, and inflicting sores on her arms, back, and head. Defendant also assaulted Huckabay verbally, by threatening to hurt or kill her father, and telling her he wanted to rape her mother.
On April 29, 2000, while driving Huckabay home at 2:30 a.m., defendant told her “he wanted to pick up a prostitute.” Huckabay asked that defendant just take her home, and he became angry and pushed or hit her. He drove around while “scanning the roads, looking around very serious.”
At the same time, Terri Doe was walking to work on Fulton Avenue in Sacramento. Defendant drove past her, turned into a side street, and parked the car. He grabbed Huckabay’s arm and held on to her, making her run with him across the street towards Terri. Defendant released Huckabay’s arm and grabbed Terri from behind, wrapping both of his arms around her and moving her to an alley between two buildings. Defendant leaned Terri against the wall and struck her in the mouth with the back of his hand. He told her he was doing this for some guy that she had ripped off, but she had no idea what he was talking about. Huckabay told her they would cut her throat if she did not cooperate.
While Terri was sitting on the ground, defendant attempted unsuccessfully to insert his penis in her mouth. Defendant got on top of her and raped her, while telling Huckabay to kiss her. Huckabay complied and placed her mouth on Terri’s mouth and breasts. Defendant also licked Terri’s breasts. He stopped assaulting her after he ejaculated. Defendant stole Terri’s identification cards and threatened to kill her if she reported the assault.
After the attack, Terri ran to her worksite. When Deputy Michael Baerresen responded to the report of a sexual assault, he found Terri “very upset and crying.” Throughout the interview, she “would burst into periods of anger and swearing at what had happened, then she’d start to cry again.”
Nurse Siegel examined Terri at 6:45 a.m. and collected swabs from inside of Terri’s mouth and vagina, and from both breasts. Terri had an abrasion on her left knee and right arm, and red marks on her right arm, her back, and inside of her lower lip. Siegel opined that the injuries were consistent with the sexual assault Terri described.
In 2006, forensic testing confirmed that defendant was the source of the DNA collected from Terri’s breasts and vagina, and also confirmed that Huckabay’s DNA was on Terri’s left breast. The prosecution initially charged Huckabay as an accomplice to the crimes involving Terri, but later dismissed the charges when she agreed to testify at defendant’s trial.
Defendant’s former wife, Julie Johnson, testified defendant asked her on several occasions to have sex with him and another woman, who was a relative stranger. She refused. She also related that one day in 1991, their car caught fire at a stoplight while defendant, Julie, and their daughter, April, were in the car. Defendant stayed with the car, and Julie took April and walked to her parents’ home where they were all living. When defendant eventually arrived home, Julie was in the bathroom. Defendant was angry and came into the bathroom holding a handgun. He told Julie that if she “caused a scene or call[ed] the cops, that he could blow [her] away.” He “directed the gun towards [her] head and asked for some oral sex.” She was scared but refused, whereupon he told her there was a bullet in the chamber. He also said that he could kill her family. When Julie saw her parents pulling into the driveway, she managed to escape and run outside to them, and then she called the police.
Defense
Romo testified that Virginia once told her that she had considered making a report of domestic violence against Robinson, based on bruises she incurred from when they were “messing around.”
Robinson, who had three children with Virginia, ranging in age from three and a half years to seventeen years, testified they had an on-and-off relationship. He stated that she keyed his car after seeing him at a nightclub, and called him 20 to 30 times a day at work, threatening to cause problems for him with his employer. He also said that Virginia made a false report of domestic violence against him and that, on several occasions, she threatened to make additional false reports.
Robinson acknowledged that he was dating Romo during some of the problems he experienced with Virginia and that, from Virginia’s perspective, he was cheating on her. He admitted he had a felony grand theft conviction and was convicted of domestic violence against a woman in February 1994. He claimed he was not sure who the victim was, but conceded he was in an intimate relationship with Virginia at that time.
Leonora Hoyt testified that on the morning that Virginia was assaulted, Hoyt and her husband drove through the alley behind the convenience store before her husband dropped her off for work at a nearby daycare center, between 5:00 and 5:30 a.m. They did not see or hear anything unusual. However, the alley was dark, the car’s headlights provided the only illumination, the car’s windows were rolled up, and it was her custom to talk with her husband during the commute.
Terri Sadler, the area manager of the business where Terri Doe worked, supervised about 60 employees, including Terri. Sadler had only a vague recollection of the day that Terri was assaulted, but believed Terri appeared disheveled when she arrived at the office that morning. Sadler did not recall whether she personally spoke with Terri, but she believed that Terri wanted to go home rather than report the assault and had to be persuaded to make a report. Sadler fired Terri for excessive absenteeism about six months later in October 2000.
At the time she was sexually assaulted by defendant, Terri had methamphetamine in her blood.
Defense counsel sought to cast doubt on the credibility of Virginia, Terri, and Julie, each of whom had felony convictions or misdemeanor convictions involving moral turpitude. Counsel conceded defendant had sexual contact with Terri and Virginia, but argued it was consensual.
DISCUSSION
I
Before trial, the prosecution lost the surveillance videotape and photographs of the area behind the convenience store where Virginia was assaulted. Defendant contends that the court erred in denying his motion to dismiss the case against him or to issue other appropriate sanctions for the loss of this key evidence. In his view, he was deprived of due process of law, a fair trial, and his right to present a defense. We disagree.
With respect to this claim and most of his other claims on appeal, defendant argues the asserted error or misconduct infringed various constitutional rights. His arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply; they merely assert that the trial court’s allegedly erroneous act or omission had the additional legal consequence of violating the Constitution. “[R]ejection, on the merits, of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional ‘gloss’ as well. No separate constitutional discussion is required in such cases, and we therefore provide none.” (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17; see also People v. Hovarter (2008) 44 Cal.4th 983, 1010 [defendant’s constitutional rights are not implicated by the routine application of state evidentiary law, and a court need not address such claims to the extent that defendant provides no elaboration or separate argument].)
“The federal constitutional guarantee of due process imposes a duty on the state to preserve only such ‘... evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, [citation], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ [Citations.]” (People v. Beeler (1995) 9 Cal.4th 953, 976.)
The state’s responsibility is further limited when defendant’s challenge is to the state’s failure “to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” (Arizona v. Youngblood (1988) 488 U.S. 51, 57 [102 L.Ed.2d 281, 289].) “[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” (Id. at p. 58 [102 L.Ed.2d at p. 289].) “The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” (Id. at p. 56, fn. * [102 L.Ed.2d at p. 288].)
In the trial court, defendant argued that the videotape had an exculpatory value because he could use it to impeach Virginia’s recollection of the events in the following ways: (1) Virginia stated the black Thunderbird entered the parking lot twice, but the videotape showed the car entered the lot only once; (2) it did not show Virginia running across the parking lot to her car after the attack; (3) the videotape timestamp showed that she arrived at the convenience store at 4:58 a.m. and left 13 minutes later at 5:11 a.m., thus contradicting her claim that she was assaulted for 20 to 25 minutes; (4) the timestamp undermined Virginia’s claim that she immediately called 9-1-1 when she arrived at the gas station one block away (she did not call 9-1-1 until 5:20 a.m.); and (5) no assault was observed on the videotape. At the hearing, defendant also stated the photographs of the dumpsters taken at 12:00 p.m. following the assault showed they were flush with the building, which undermined Virginia’s statement about the position of the dumpsters. Defendant argued that he did not need to show bad faith by the police in destroying the evidence because the videotape and photographs possessed an exculpatory value that was apparent before the evidence was lost or destroyed, and was of such a nature that he would be unable to obtain comparable evidence by other reasonably available means.
The trial court ruled that the evidence was material but only potentially exculpatory. The impeachment value could not have been known until after Virginia testified about certain details in a way that did not comport with the missing evidence. In addition, those details were not significant to the extent they would alert law enforcement that the tape might be exculpatory. Therefore, the exculpatory value of the evidence was not known to law enforcement at the time it was destroyed or lost. Furthermore, Detective James’s detailed notes about the videotape and Officer Craig Goncalves’s report describing the location of the dumpsters were sufficiently comparable evidence that enabled defendant to impeach Virginia’s recollection of the events.
Accordingly, the court denied the motion to dismiss and declined to impose any sanctions.
The court’s ruling will be upheld if it is supported by substantial evidence. (People v. Roybal (1998) 19 Cal.4th 481, 510.)
Defendant contends the court’s ruling that the exculpatory significance of the evidence was not apparent to law enforcement at the time is incorrect because the officers interviewed Virginia and made careful notes. However, defendant does not support his claim with any evidence in the record disclosing the officers were aware of the alleged inconsistencies between Virginia’s account and the videotape and photographs, other than her statement to them that the assault lasted 15 to 20 minutes, when it actually lasted less than 13 minutes.
This disparity is not that significant given the fact that Virginia, who was traumatized, was estimating the amount of time she endured what probably seemed like an endless attack to her. Indeed, none of the inconsistencies defendant claims undermine Virginia’s testimony were significant; i.e., they did not have a significant exculpatory value. She may have been mistaken about the number of times the Thunderbird entered the parking lot and her time estimates may have been marginally wrong. However, the videotape and photographs did not demonstrate that defendant did not assault Virginia. As Detective James explained, the camera mounted inside the store had only a limited view of the parking lot and the pay phones were not visible on the videotape.
Defendant complains that the officers’ notes and report were no substitute for the visual evidence, which the jurors should have been able to see in order to decide for themselves what occurred. But merely claiming that the notes and report were no substitute is not a convincing argument that they were ineffective for impeachment purposes--the reason for which defendant wanted the videotape and photographs. He points to no evidence that he was unable to show the inconsistencies in Virginia’s testimony via the officers’ testimony about their notes and report.
In sum, he fails to demonstrate there was no substantial evidence to support the trial court’s ruling. (People v. Roybal, supra, 19 Cal.4th at p. 510.)
II
Defendant contends the court erred in allowing introduction of evidence that he attempted to force his ex-wife Julie to orally copulate him at gunpoint while they were married.
The court allowed the evidence pursuant to section 1108 of the Evidence Code, which states in pertinent part: “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 [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.” (Further section references are to the Evidence Code unless otherwise specified.)
“[S]ection 1108 was intended in sex offense cases to relax the evidentiary restraints section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant’s other sex offenses in evaluating the victim’s and the defendant’s credibility. In this regard, section 1108 implicitly abrogates prior decisions of this court indicating that ‘propensity’ evidence is per se unduly prejudicial to the defense.” (People v. Falsetta (1999) 21 Cal.4th 903, 911 (hereafter Falsetta).)
Defendant asserts that section 1108 violates his due process and equal protection rights. This court and the California Supreme Court have rejected similar constitutional claims. (Falsetta, supra, 21 Cal.4th at pp. 907, 918 [due process of law]; People v. Fitch (1997) 55 Cal.App.4th 172, 177-185 [due process and equal protection] (hereafter Fitch).) Defendant proffers no reason why principles of stare decisis do not apply, or why we should depart from our opinion in Fitch, supra. He merely states he wishes to preserve his claims in the event of further post-conviction review. Accordingly, his constitutional challenges to section 1108 require no further discussion.
Defendant also contends the court erred in ruling that the evidence was not inadmissible under section 352. We disagree.
The trial court has broad discretion under section 352 in determining whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion, or consumption of time, which discretion is encompassed within section 1108, subdivision (a). (People v. Frazier (2001) 89 Cal.App.4th 30, 42.) The court’s exercise of discretion will not be disturbed on appeal absent a showing that the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (Ibid.)
In weighing the evidence’s probative value against its prejudicial effect, “trial judges must consider such factors as [the uncharged sex offense’s] nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Falsetta, supra, 21 Cal.4th at p. 917; accord, People v. Abilez (2007) 41 Cal.4th 472, 502.)
Defendant argues the trial court abused its discretion because the prior conduct with his ex-wife “was starkly dissimilar to the charged offenses involving strangers on the street and no weapon, ” was “unduly inflammatory, ” was remote in time in that it was “[n]ot reported until sixteen years after the original domestic violence reports, ” and did not result in any punishment for the “attempted rape of his own wife, ” which invited the jury to punish him for that offense even if it had doubts about the current accusations. (Original italics.)
Defendant’s argument is not persuasive. To be admissible, the evidence need not be so similar to the current offenses as to meet the requirements of section 1101. (People v. Callahan (1999) 74 Cal.App.4th 356, 368; People v. Soto (1998) 64 Cal.App.4th 966, 986; People v. Harris (1998) 60 Cal.App.4th 727, 740.) “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 p. 41.) Moreover, the offenses are not as dissimilar as defendant suggests. In all of them, defendant used violence and intimidation to sexually assault or attempt to sexually assault women. He held a gun to his wife’s head, he hit Veronica with a phone handset, and he punched Terri. Indeed, defendant even hit Huckabay to get her to participate in the assault on Terri. The evidence demonstrated that defendant was willing to use force to get what he wanted, which was highly probative as it undercut the defense claim that the charged acts were consensual.
Defendant’s assertion that the prior conduct was not reported until 16 years later is mystifying. Julie testified she reported the incident to the police after she escaped. Her testimony is supported by defendant’s probation report, which states defendant was charged with threatening a crime with intent to terrorize (Pen. Code, § 422) in 1991, after he placed a loaded gun to Julie’s head and threatened to kill her if she did not orally copulate him. Defendant was convicted of threatening Julie with a weapon (Pen. Code, § 417). His own motion in limine, filed in April 2008, notes Julie told police in 1991 that defendant held a gun to her head and told her she would die if she did not make sexual advances toward him.
The offense against Julie, which occurred eight years before the attack on Virginia, is not so remote to have lost probative value, and it was not unduly prejudicial. This is so because defendant did not lead a blameless life in the interim. (People v. Soto, supra, 64 Cal.App.4th at p. 991 [“the passage of a substantial length of time does not automatically render the prior incidents prejudicial”]; People v. Harris, supra, 60 Cal.App.4th at p. 739 [“‘staleness’ of an offense is generally relevant if and only if the defendant has led a blameless life in the interim”].)
We are not persuaded by defendant’s speculation that the jury may have convicted him to punish him for the attempted forcible copulation involving his ex-wife. The jury was instructed that it must not be influenced by sympathy or bias (CALCRIM No. 200) and that the prior sexual misconduct evidence was admitted for a limited purpose (CALCRIM Nos. 303 & 1191). We presume the jury understood and followed the instructions. (People v. Morales (2001) 25 Cal.4th 34, 47.)
As stated above, we must decide whether the trial court’s decision to allow the evidence of the 1991 assault on Julie was arbitrary, capricious, or patently absurd such that it resulted in a manifest miscarriage of justice. (People v. Frazier, supra, 89 Cal.App.4th at p. 42.) It was not.
Moreover, had the propensity evidence been excluded, it is not reasonably probable that defendant would have obtained a more favorable result. (People v. Welch (1999) 20 Cal.4th 701, 750.) His DNA was found on both victims, and the circumstances of their sexual contact with him, including injuries they suffered, belie his claim that the contacts were consensual.
III
Defendant claims the court erred in excluding significant impeachment evidence, in particular: (1) evidence of the victims’ prior sexual history, and (2) evidence that, on the night of the assault, Virginia had been released from jail after stalking Romo in violation of a restraining order. He argues the evidence was essential “to show [that] Terri and/or Virginia were desperate enough or otherwise willing to engage in street-sex.” In his view, the exclusion of the evidence denied him due process of law, a fair trial, the right to present a defense, and the right to confront witnesses. As we shall explain, the court did not err in excluding the evidence.
A
According to defendant, the court erred in excluding evidence of the victims’ sexual history. He argues that “an admission of willingness to engage in casual/stranger sex from either victim was nothing short of key to make out [defendant’s] street-sex defense”; thus, at a minimum, the court erred in failing to hold a foundational hearing under section 782. We disagree.
Section 1103 strictly precludes admission of a victim’s past sexual conduct with persons other than the defendant for purposes of proving consent; such evidence is admissible only where relevant to the credibility of the victim. (§ 1103, subd. (c)(1), (4); People v. Chandler (1997) 56 Cal.App.4th 703, 707.) However, because the victim’s credibility is almost always at issue in sexual assault cases, section 782 specifies a procedure requiring in camera review of the proffered evidence to minimize any abuse of the credibility exception to the exclusion of a victim’s sexual history. (People v. Chandler, supra, 56 Cal.App.4th at pp. 707-708.)
Section 1103 states in part: “(c)(1)... [E]xcept as provided in this subdivision, in any prosecution under Section 261, 262, or 264.1 of the Penal Code, or under Section 286, 288a, or 289 of the Penal Code, or for assault with intent to commit, attempt to commit, or conspiracy to commit a crime defined in any of those sections, ... opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness’ sexual conduct, or any of that evidence, is not admissible by the defendant in order to prove consent by the complaining witness. [¶]... [¶] (5) Nothing in this subdivision shall be construed to make inadmissible any evidence offered to attack the credibility of the complaining witness as provided in Section 782. [¶] (6) As used in this section, “complaining witness” means the alleged victim of the crime charged, the prosecution of which is subject to this subdivision.”
Section 782 states in part: “(a) In any of the circumstances described in subdivision (c), if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness under Section 780, the following procedure shall be followed: [¶] (1) A written motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness. [¶] (2) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated. The affidavit shall be filed under seal and only unsealed by the court to determine if the offer of proof is sufficient to order a hearing pursuant to paragraph (3). After that determination, the affidavit shall be resealed by the court. [¶] (3) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant. [¶] (4) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court....”
The procedure set forth in section 782 requires the defendant to make a written motion accompanied by an affidavit containing an offer of proof, which the court must accept as true. The court then determines whether (1) if the evidence is as the defendant claims, it is relevant, and (2) if relevant, whether its probative value is outweighed by the probability of undue prejudice or the undue consumption of trial time. (§ 352.) “Only if the judge determines both questions in favor of admissibility is the offer of proof “sufficient.” Only if it is “sufficient” is the trial court required to conduct the hearing to determine if the offer truly recites what the evidence will be.” (People v. Blackburn (1976) 56 Cal.App.3d 685, 691-692.)
Defendant must show the evidence is relevant in some way other than to attack the victim’s good character. (People v. Rioz (1984) 161 Cal.App.3d 905, 918.) “Defendant’s entitlement to due process of law does not encompass a right to any process of his own choosing, including the right to introduce irrelevant evidence of sexual history.” (People v. DeSantis (1992) 2 Cal.4th 1198, 1249.)
Defendant sought to explore the victims’ prior sexual history in order to establish that they engaged in consensual sex with him. He wanted to ask Virginia and Terri whether they had previously engaged in consensual sexual conduct with people they hardly knew, arguing it would tend to prove the women willingly had sex with him and to impeach their claims that they did not consent. Defendant also posited that, if they had consensual sex with him up to five days before the sexual assaults occurred, and someone else then committed the assaults, defendant’s DNA could still be present, and he could have been misidentified as the perpetrator. Even the injuries could have been inflicted earlier and were not necessarily indicative of rape.
The court asked why it was necessary to show the victims had consensual sex with strangers in order to show that defendant’s DNA could have been deposited days prior to the attack. Counsel could simply ask the DNA expert whether the DNA was necessarily deposited at the time of the attack or could have been so deposited at an earlier date. The concerns about when the trauma was inflicted did not warrant exploring the victims’ sexual history because defendant would not be precluded from asking the expert if the trauma could have been inflicted earlier or was necessarily incurred at the time of the alleged attacks. The court denied the motion, finding the relevance of the victims’ sexual background was too tenuous, and the probative value was outweighed by the undue consumption of time. There was “not sufficient evidence even to have a hearing at which these complaining witnesses might be questioned about their sexual history.
The trial court did not abuse its discretion. It correctly determined that defendant could simply cross-examine the medical experts about the timing of the bruises and DNA deposits, and that to go into the victims’ sexual histories would entail an undue consumption of time. As for defendant’s wish to show the victims had sex with strangers in order to show they consented to having sex with him, he failed to demonstrate how this evidence could be permissibly used to impeach the victims’ credibility.
“[S]ection 1103 creates a distinction between evidence tending to prove consent and evidence attacking the witness’s credibility, but in reality evidence of prior sexual conduct is likely to have some relevance for both purposes.” (People v. Steele (1989) 210 Cal.App.3d 67, 75.) Nevertheless, there is a distinction between evidence of prior sexual conduct offered to prove consent and evidence of such conduct offered on a noncharacter theory. (Ibid.) “‘[W]hen the evidence is offered on a noncharacter theory, the mere fact of prior sexual conduct is never in itself important. It becomes important only when linked with other facts that prove, for example, modus operandi or motive to lie. Put another way, it is not the fact of prior sexual activity as such that is important, but something about the special circumstances under which that prior sexual activity took place that renders it important.’ [Citation.]” (Ibid.)
Here, defendant sought to introduce evidence that the victims had sex with strangers in order to show they had consensual sex with him. But he did not show any distinctive modus operandi in their prior sexual encounters that would tend to make the evidence relevant on some noncharacter theory. Whether the women were promiscuous was irrelevant. Defendant did not submit a sworn statement attesting to the fact that the women were known to have sex in public, with a man they had just met on the street. (People v. Steele, supra, 210 Cal.App.3d at pp. 75-76 [the fact that the victim engaged in intercourse with a stranger in a vehicle the day before the alleged offense suggests a predisposition to have sex with strangers in vehicles and casts doubt on her testimony of being forcibly abducted and sexually abused, but one prior instance of intercourse under vaguely parallel circumstances fell short of indicating a modus operandi].) Defendant simply wished to go on a fishing expedition into the victims’ sexual histories.
The trial court correctly determined that defendant did not present sufficient evidence of a permissible use of the victims’ sexual background to warrant a section 782 hearing.
B
Defendant also sought to introduce evidence that, on the date of the attack on Virginia, she had just been released on bail after attacking Romo in violation of the restraining order that required her to stay away from Romo. Despite being warned to stay away from Romo, she immediately went to a pay phone across the street from Romo’s apartment and attempted to get police assistance in retrieving her child. Defendant believed that it was necessary to provide this background to demonstrate Virginia had a desperate motive to enlist defendant’s help in getting her child back. Thus, she might have been willing to engage in consensual sex in return for his assistance.
The trial court ruled defendant could introduce evidence that Virginia was convicted of assault, a crime of moral turpitude, but he could not elicit whom she assaulted or why. The court also excluded evidence that Virginia had just been released from jail and that she called Romo before calling the police. The court permitted, however, the introduction of evidence that Romo had a restraining order against Virginia and because of this she sought police assistance in getting her child. The court found the tangential relevance of details of Virginia’s obsessive concerns about Romo, Robinson, and her child was “fraught with 352” because it was confusing and would involve an undue consumption of time on a collateral matter.
Evidence was introduced that Virginia had a misdemeanor conviction for assault and felony and misdemeanor convictions for welfare fraud. As for the events on the date of the sexual assault, Virginia explained that she was distraught because she believed her child and Robinson were spending the night at Romo’s. Because of the restraining order, she could not go to Romo’s to retrieve her child so she went to the pay phone across the street from where she believed Romo lived and called the police for assistance. Defendant also introduced evidence that, before calling the police, Virginia tried to call Romo.
Defendant complains this was insufficient to impeach Virginia’s credibility and he should have been permitted to show that (1) Romo was the victim of Virginia’s assault, (2) Virginia persistently stalked Romo, (3) she had just been released from jail when she drove across town to get her child, (4) she called Romo before the police in violation of the restraining order, and (5) she was especially upset that night because she learned Romo was taking care of her child. Defendant contends all of these facts were necessary to demonstrate Virginia was desperate enough to have casual sex with a stranger if he would help her get her child back.
The record discloses that evidence was introduced as to the last two items on defendant’s list. In any event, his argument is unconvincing.
A court has broad discretion under section 352 to “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.” This discretion allows the trial court broad power to control the presentation of proposed impeachment evidence “‘“to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.” [Citation.]’” (People v. Lewis (2001) 26 Cal.4th 334, 374-375.) On appeal, we evaluate the court’s ruling by applying an abuse of discretion standard. (People v. Hovarter, supra, 44 Cal.4th at p. 1005.)
Defendant fails to show the court’s decision was arbitrary or capricious. The fact that Virginia was at a pay phone across the street from Romo’s apartment at 4:26 a.m. and called 9-1-1 for help in getting her child back demonstrated that Virginia was desperate to retrieve her child. Her criminal record reflected poorly on her honesty. Therefore, the court permitted ample evidence from which defendant could attack Virginia’s credibility and demonstrate that she had a motive to engage in casual sex in exchange for assistance in getting her child. The court did not abuse its discretion in excluding evidence concerning the relationship between Romo and Virginia on the ground that it would be confusing and would entail an undue consumption of time.
IV
Next, defendant contends the court erred in denying his motion to strike unfounded police opinion testimony that Terri did not show any signs of deception when she was interviewed. The contention fails.
On direct examination, Officer Baerresen testified about his interview of Terri shortly after she reported the sexual assault. On cross-examination, defense counsel questioned Baerresen whether he asked Terri about any details that did not fit or make sense. The prosecutor objected on the ground the question assumed facts not in evidence, i.e., there were details that did not fit. The court sustained the objection. Defense counsel persisted and asked whether Terri told the officer things that needed to be clarified because they did not fit. Baerresen replied he had not; he simply tried to obtain more details about the assault. Counsel asked whether Baerresen’s role as a patrol deputy in effect required him to assume an assault had occurred, to document it, and to leave the investigating to the detective. Baerresen agreed that was his role.
Then the following exchange occurred: “[DEFENSE COUNSEL:] And so you try not to be confrontational or challenge the believability of their story? [¶] [BAERRESEN:] With a victim, I try not to, but I’m always observant for signs of deception. And to me, I didn’t see any signs of deception or anything to make me push in that direction.”
During a break in the proceedings, defense counsel moved to strike the latter portion of the answer, arguing that it was inappropriate to permit the officer to comment on the honesty and credibility of the witness. The court overruled the motion to strike “because, frankly, that was--the implication of the question was that he had to keep asking questions because she was inconsistent or things didn’t fit or make sense, which was actually more than your implication was to your expressed questions. [¶] So his answer was responsive to--at the very least to the implication of your question, so I’ll leave it in.”
Defendant argues the court abused its discretion because the jury would have believed Baerresen was “something of an expert, ” but experts cannot opine on whether a witness is lying “because such credibility determinations are not beyond the ability of the jury to make.” Indeed, defendant points out it was inappropriate for Baerresen to comment on Terri’s credibility even if it was lay opinion.
The court did not abuse its discretion. The evidence was not introduced by the prosecution as expert or lay opinion evidence on Terri’s veracity. Rather, defense counsel repeatedly implied that Terri’s interview contained inconsistencies Baerresen failed to pursue because he had simply accepted Terri’s story at face value. Baerresen responded to counsel by explaining that, although he tried not to be confrontational with victims, he was always observant for signs of deception, which he did not see in this case. Having created the implication that Terri’s report to Baerresen was a story full of holes, defendant cannot complain that the court permitted Baerresen to state he saw no signs of deception.
In any event, the testimony was harmless. The court instructed the jury that it alone must assess the credibility of witnesses. And the jury was able to observe Terri’s demeanor and make its own assessment of her credibility. The DNA evidence, her injuries, and Huckabay’s testimony corroborated Terri’s testimony. There is no reasonable probability that Baerresen’s statement affected the verdict. (People v. Melton (1988) 44 Cal.3d 713, 743.)
V
Defendant asserts the court abused its discretion in allowing excessive evidence of domestic violence by defendant on the issue of Huckabay’s credibility. We disagree.
Over defendant’s objection, the prosecution moved to introduce evidence of the abusive nature of defendant’s relationship with Huckabay. The prosecutor argued that it bolstered Huckabay’s credibility and explained why she would assist defendant in sexually assaulting another woman, and it showed she was not a willing accomplice; rather, she was very afraid of defendant based on the long history of abuse by him. For example, in her interview, she described defendant as very controlling and that he seemed to know what she was doing at all times; he threatened her life as well as members of her family; he told her about the revenge he took on women who had hurt him; he told her he knew gang members and Black Panthers, and that “his people” hated Huckabay; she had seen him beat someone up before; he tried to run over her with a car; he hit her in the face and head and would bruise her arms and legs; he used force or fear to get her to do sexual things that she did not want to do, including having threesomes; when she ended the relationship in 2003 or 2004, he choked her, caused her ear to bleed, took chunks of skin from her neck, and pulled her by her hair; and Huckabay eventually applied for a restraining order.
Defense counsel argued the probative value of the evidence was minimal, and it was outweighed by the prejudicial effect of what was essentially impermissible character evidence, i.e., that defendant was a bad, violent person. Counsel asserted the evidence was unnecessary in light of Huckabay’s claim that defendant punched her and forced her to participate on the night he sexually attacked Terri Doe.
The court observed that Huckabay’s motive for testifying was very relevant to how the jury was going to view her testimony. The court asked if counsel was willing to forgo letting the jury know Huckabay had been charged as an accomplice. Counsel indicated he would not, noting that the fact Huckabay had been charged with a crime showed her motive to incriminate defendant.
The court replied the prosecution’s evidence was relevant to why Huckabay would go along with an act that a person would not normally agree to do. The court stated: “Your claim is going to [be] that she is making it all up, and unless a jury can understand, unless the jury is given as much insight as possible into why she is testifying the way she is, or the potential reason [why] she is testifying the way she is, then the jury is going to be presented with a false picture.”
In other words, just as defendant wanted to show Huckabay was not credible by introducing evidence that she had been charged originally as an accomplice, the People wanted to show Huckabay’s testimony was credible by demonstrating that she assisted defendant out of fear, rather than as a willing participant.
Finding the probative value outweighed any prejudicial effect, the court ruled that the prosecution could elicit the facts that defendant used force to get Huckabay to do sexual things against her will and he made threats against her and her family, and also could elicit most of the other evidence the prosecutor proffered. However, the court excluded evidence about defendant’s alleged acquaintance with gang members and Black Panthers; the fact that Huckabay was not happy with defendant and always wanted their relationship to be over; and the fact that defendant tried to run her over with a car.
Huckabay then testified she began a seven-year relationship with defendant when she was 16 and he was in his 30’s. He was controlling and became physical with her, hitting and choking, knocking her unconscious, and threatening to kill her dad and rape her mom. In 2004, Huckabay told defendant that, if he did not leave her alone, she would kill herself; he responded by choking her until she threw up. He drove to a field where he continued to choke and beat her. When she tried to escape, defendant pulled her back into the car by her hair. Another car pulled up and parked in front of them, at which point defendant drove her home. Huckabay’s family called the police, and she went to the hospital. Her face was bruised, chunks of flesh were missing from her neck, and the blood vessels in her eyes indicated she had been choked to the point of near suffocation. Huckabay obtained a restraining order against defendant.
When police detectives interviewed Huckabay in 2006 after learning about defendant’s possible involvement in the Terri Doe assault, her father told her not to get involved because she might lose her children. She did not tell the detectives what she knew about the incident. She was eventually charged for participating in the assault, and she agreed to cooperate with the prosecutor in exchange for the charges being dropped.
At the time Huckabay testified, the court instructed the jury that Huckabay’s testimony regarding force defendant used against her was not to be used as an indication of defendant’s bad character or that he was more likely to have committed the charged offenses. The evidence was to be used “to determine Miss Huckabay’s attitude towards giving testimony in this case and her state of mind in the course of events that she’s going to testify about....” The court admonished the jury again with its closing instructions that, if the jury found defendant threatened and committed the uncharged acts of violence against Huckabay, it may but was not required to consider that evidence for the limited purpose of how it may or may not have affected Huckabay’s state of mind, her alleged fear of defendant, her attitude about testifying, and other factors related to the jury’s assessment of her credibility. The court instructed the jurors they could not use the evidence for any other purpose, including using it as evidence that defendant committed the charged crimes or that he was of a bad character that disposed him to commit the charged crimes.
Defendant contends the excessive details of domestic violence were “prejudicial overkill” unless, at some point, Huckabay had recanted her incriminating testimony against defendant, which she did not. In his view, “Huckabay’s testimony she feared defendant and he even hit her the night involving Terri was more than enough to gauge her credibility and her sexual participation in a strange ‘threesome’ rape. As with prejudicial gang evidence, the evidence was at best tangential and cumulative on any issue of credibility or bias.”
We are not persuaded. The prosecutor theorized that defendant raped Terri, as corroborated by Huckabay. In contrast, defendant theorized Huckabay, defendant, and Terri engaged in a consensual sexual encounter; and Huckabay was now lying or downplaying her participation in order to avoid being charged as defendant’s accomplice. As the court pointed out, defendant wanted the jury to know that Huckabay had been charged as an accomplice and, because of her status, the court instructed the jury that it must view Huckabay’s testimony with caution and could not convict defendant based solely on her testimony. Whether Huckabay was a willing or unwilling accomplice had a large bearing on her credibility concerning whether the “threesome” with Terri was consensual or forcible.
The fact defendant hit her on the night in question was not sufficient to establish that Huckabay was an unwilling participant. The court could reasonably find that only a deep fear of defendant would explain why Huckabay would participate in the sexual assault of another woman, and demonstrate her participation was unwilling. It showed she was not a sociopath, who was testifying against defendant just to escape culpability. The court carefully balanced the probative value of the evidence against its prejudicial effect. For example, it limited the number of prior incidents that could be introduced, excluding evidence that defendant claimed to associate with gang members, and that he tried to run over Huckabay with a car. Defendant’s treatment of Huckabay was no more inflammatory than his treatment of Virginia and Terri, whom he attacked in darkness, physically struck and threatened with further physical violence, and then sexually assaulted in a degrading fashion.
In addition, the court instructed the jury the incidents with Huckabay could not be used as evidence that defendant committed the charged crimes or was of a bad character that disposed him to commit the charged crimes; rather, the jury could use the evidence only for the limited purpose of assessing how it may or may not have affected Huckabay’s state of mind, her alleged fear of defendant, her attitude about testifying, and other factors related to the jury’s assessment of her credibility. We presume the jury understood and followed the instruction. (People v. Morales, supra, 25 Cal.4th at p. 47.)
For the reasons stated above, defendant’s claim of error fails.
VI
Defendant proffers instances of prosecutorial misconduct, asserting the prosecutor’s arguments to the jury (1) impermissibly vouched for Huckabay’s credibility, (2) violated the court’s ruling regarding the admissibility of evidence of prior acts of domestic violence against Huckabay, and (3) referred to matters outside the record.
When a claim of prosecutorial misconduct “‘focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ [Citations.] A prosecutor is given wide latitude during closing argument. The argument may be vigorous as long as it is a fair comment on the evidence, which can include reasonable inferences or deductions to be drawn therefrom.... ‘A defendant’s conviction will not be reversed for prosecutorial misconduct... unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.’ [Citation.]” (People v. Harrison (2005) 35 Cal.4th 208, 244.) Under the federal standard, a conviction will be reversed if prosecutorial misconduct infected the trial with such unfairness that the resulting conviction was a denial of the defendant’s due process. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1316.)
Under these standards, no prejudicial misconduct occurred.
A
Defendant argues the prosecutor, Donna Gissing, improperly vouched for Huckabay’s credibility by telling the jury that Gissing had assessed Huckabay’s credibility before agreeing to dismiss the charges against her in exchange for her testimony at trial.
Huckabay was originally charged with defendant for the sexual assault on Terri, and Huckabay planned to raise a defense of duress. She later agreed to testify at trial in exchange for the dismissal of charges against her. The trial court allowed into evidence the documents that Huckabay signed regarding her agreement to testify.
In his closing argument, defense counsel attempted to discredit Huckabay’s testimony, asserting she was exaggerating and lying about her relationship with defendant and was downplaying her participation in the encounter with Terri.
During her rebuttal argument, Gissing defended her decision to dismiss the charges against Huckabay. Gissing observed that Huckabay did not “get a sympathy card” after beating Terri to avoid getting beaten by defendant, but that she did stand in a different position than defendant. Gissing stated, “And you may not like the fact that the District Attorney’s Office decided that it was more important that we evaluate her, allow her to provide a statement and assess whether we think it’s credible or not. If we think it’s credible, then we’ll use her as --, ” at which point defense counsel objected on the ground that Gissing was testifying and vouching.
The court immediately advised the jurors that they should not take Gissing’s statement as vouching for Huckabay’s credibility. Gissing continued: “What it has to do with the District Attorney’s office making a decision to have someone move from the defendant’s chair to a witness chair. [¶] Now, if you don’t like that decision, write a letter, write a letter and say, Members of the Public, I don’t like that position. She shouldn’t [sic] have been sitting there in the chair right next to [defendant] or prosecuted for participating in the rape of that woman. Write a letter. Put my name on it. [¶] That doesn’t change your obligation here today to decide this individual’s responsibility.... And there are times where it is more important that we focus upon more severe offenders such as this.”
Defendant argues Gissing’s reference to her preliminary determination regarding Huckabay’s credibility was improper “vouching” because it intimated the prosecutor had undisclosed information that proved Huckabay was telling the truth.
“[A] prosecutor may not express a personal opinion or belief in a witness’s credibility when there is ‘“substantial danger that jurors will interpret this as being based on information at the prosecutor’s command, other than evidence adduced at trial.”’ [Citations.]” (People v. Fauber (1992) 2 Cal.4th 792, 822.) “The vice of such remarks is that they ‘may be understood by jurors to permit them to avoid independently assessing witness credibility and to rely on the government’s view of the evidence.’ [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 336 .) But these limits do not preclude all comment regarding a witness’s credibility, given the prosecutor’s wide latitude during argument. (Id. at pp. 336-337.)
Here, Gissing made the challenged statement during an attempt to explain why she did not prosecute Huckabay as an accomplice. Gissing did not indicate she had special knowledge about Huckabay’s credibility based on evidence that was not presented to the jury; she simply made a difficult choice to cut a deal with Huckabay in order to successfully prosecute the person whom Gissing believed was the more culpable offender. A jury will usually assume the prosecutor has at some point interviewed principal witnesses and found their testimony believable, otherwise they would not be testifying. (People v. Fauber, supra, 2 Cal.4th at p. 822.)
Given the context within which Gissing made the contested comment, the court’s immediate admonition, and its subsequent instructions advising the jurors that they were the sole arbiter of the witnesses’ credibility and that the attorneys’ remarks were not evidence, the jurors could not reasonably have concluded they had been relieved of their duty to determine the credibility of Huckabay’s testimony in assessing defendant’s guilt. (People v. Fauber, supra, 2 Cal.4th at p. 823.) Simply stated, there is no reasonable likelihood that the jurors construed or applied Gissing’s comments in an objectionable fashion. (People v. Harrison, supra, 35 Cal.4th at p. 244.)
B
Gissing argued to the jury “it’s important that we understand the context of [Huckabay’s] relationship with [defendant]. And the Judge has instructed us how we can consider this evidence. You can consider it for the limited purpose of understanding how this relationship affected Roni Huckabay’s state of mind. Why she was so afraid of that guy. Her attitude about even[] being here. And why on April 29th, 2000, she participated in the rape of a stranger.” The prosecutor stated Huckabay did “nothing to help [Terri]. Because her fear of [defendant] ran deep. The fear of that man ran deep.”
Defendant believes Gissing’s argument violated the court’s ruling limiting the use of the domestic violence involving Huckabay to the assessment of her credibility and her state of mind. In his view, the argument violated the ruling because it “amounted to a powerful substantive theory of rape to rebut a consensual threesome, not merely an argument on credibility.”
Defendant forfeited the claim by not raising it in the trial court and seeking a timely admonition. (People v. Bonilla, supra, 41 Cal.4th at p. 336.) Moreover, counsel’s failure to object is understandable given that the prosecutor’s argument did not violate the court’s evidentiary ruling and instructions, which stated the evidence could be used for the limited purpose of determining how it may or may not have affected Huckabay’s state of mind, her alleged fear of defendant, her attitude about testifying, and other factors related to the jury’s assessment of her credibility.
The argument comported with the court’s instructions and explained why Huckabay was believable despite being defendant’s accomplice. According to Gissing, Huckabay was credible because her participation was not the result of moral turpitude, but of a deep fear of defendant based on her history of abuse at his hands. Defendant fails to establish prejudicial misconduct.
C
During closing arguments, defense counsel David Lynch argued that Virginia’s injuries were pre-existing: “Look at the color on these bruises. Look at the yellowing that you see. Because we know--we all know that bruises don’t get yellow in the course of--what was this, 4:30--I guess she said it happened at 5:00 at the latest. And she’s at the hospital from 6:00 onwards. Bruises don’t get yellow in that period of time. [¶] You have to decide, before you draw any inferences from this, whether you think she’s using old bruises to corroborate her allegations.”
Gissing responded on rebuttal that defendant did not offer any evidence to support his theory: “You know, the evidence supporting the kidnap and forcible sexual assault of Virginia Doe is uncontroverted. There’s no evidence presented that she was hosed by some guy. Mr. Lynch can’t testify to you during his closing argument regarding the color of bruises. You call a medical professional for that if there’s something to present or you ask a medical professional who was right here in court. Because you’re probably going to hear you can’t date bruises by color.”
Defendant objected on the ground that Gissing was testifying, but the court overruled the objection, finding the statement was “a fair comment.”
Defendant acknowledges that a prosecutor’s comment upon a defendant’s failure to call logical witnesses or introduce material evidence is not improper. (People v. Wash (1993) 6 Cal.4th 215, 263.) However, he contends Gissing did not simply refer to defense counsel’s failure to call a witness who had expertise on bruises; she told the jury an expert on bruises would testify that the color of a bruise does not reveal its age. Defendant reads too much into Gissing’s comments.
The main thrust of Gissing’s argument was that Lynch’s comments were not admissible evidence concerning the conclusions to be drawn from the color of Virginia’s bruises, and he failed to call any experts to support his conclusions. Gissing simply made an inference that counsel failed to produce such evidence because medical professionals would “probably” state that you cannot date bruises by their color. This was a reasonable inference and a fair comment on the evidence given Lynch’s failure to question Nurse Siegel to obtain support for his “bruise color” theory. (People v. Wash, supra, 6 Cal.4th at p. 263.)
In any event, there was ample evidence that Virginia had purple and red bruises, which, according to defense counsel’s homespun bruise expertise, did not reflect old injuries. In fact, Virginia’s forehead was lacerated and required sutures, which was also not indicative of pre-existing injuries. It is not reasonably probable a result more favorable to the defendant would have been reached if Gissing had not made the challenged comment (People v. Harrison (2005) 35 Cal.4th 208, 244), and her statement did not infect the trial with such unfairness that the resulting conviction was a denial of defendant’s due process. (People v. Crabtree, supra, 169 Cal.App.4th at p. 1316.)
Thus, defendant’s claim of prejudicial prosecutorial misconduct fails.
VII
Defendant contends the jury instruction given concerning the attempted forcible oral copulation with his ex-wife (CALCRIM No. 1191) violated his due process rights because it allowed jurors to infer guilt in the current offenses based on circumstantial evidence proved by a preponderance of the evidence that defendant committed the prior offense. This reduced the prosecution’s burden of proving beyond a reasonable doubt that he committed the current offenses. We are not persuaded.
The court instructed the jury in relevant part as follows: “You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offense. Proof by preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden [of proof], you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offense, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit any or all of the sexual assault offenses charged in this case.[¶] If you conclude that the defendant committed the uncharged offense, 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 any or all of the sexual assault offenses charged in this case. [¶] The People must still prove each element of the charged offenses beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose.”
As defendant acknowledges, in People v. Reliford (2003) 29 Cal.4th 1007 (hereafter Reliford), the California Supreme Court rejected the contention that the language of this instruction violated due process rights. Reliford emphasized that nothing in the instruction authorized the jury to use preponderance of the evidence as the burden of proof on any issue other than the preliminary determination, i.e., whether the accused committed a previous sexual assault. (Id. at p. 1016.) On this basis, the court rejected the notion that a jury could reasonably interpret the instruction to authorize a guilty verdict of a charged offense on the basis of a lowered standard of proof. (Ibid.)
“Although the instruction considered in Reliford was the older CALJIC No. 2.50.01, there is no material difference in the manner in which each of the instructions allows the jury to conclude from the prior conduct evidence that the defendant was disposed to commit sexual offenses and, therefore, likely committed the current offenses. CALCRIM No. 1191, as given here, cautions the jury that it is not required to draw these conclusions and, in any event, such a conclusion is insufficient, alone, to support a conviction. Based on Reliford, we therefore reject defendant’s contention that the instruction violated his due process rights.” (People v. Cromp (2007) 153 Cal.App.4th 476, 480; see also People v. Schnabel (2007) 150 Cal.App.4th 83, 87.)
Defendant attempts to distinguish Reliford by claiming that it did not address the propriety of the language in the instruction that would permit the jury to infer the defendant “did commit” the charged offense based on evidence of a prior offense proved by only a preponderance of the evidence. He claims this conflicts with the reasonable doubt standard applicable to circumstantial evidence, and the instruction “needs to explain that circumstantial evidence like prior offenses which is essential for guilt must be proved beyond a reasonable doubt.” (Italics omitted.)
People v. James (2000) 81 Cal.App.4th 1343 (hereafter James), cited by defendant in support of his contention, does not assist him. James held that the prosecution’s burden of proving elements of a domestic violence crime was unconstitutionally reduced by use of the pre-1999 versions of CALJIC Nos. 2.50.02 and 2.50.1. Those instructions permitted jurors to find by preponderance of evidence that the defendant had abused the victim in the past, and then allowed jurors to infer that the defendant committed the charged offense based on the prior abuse alone. (Id. at pp. 1346-1347, 1349-1350.) The instructions did not advise jurors that if they found by a preponderance of evidence that the defendant committed a prior crime or crimes involving domestic violence, this was not sufficient by itself to prove beyond a reasonable doubt that the defendant committed the charged offenses, and that the weight and significance of the prior crimes evidence, if any, was for the jury to decide. (Id. at pp. 1349-1350 & fn. 6.)
Here, the jury was not given the instructions at issue in James, but instead was correctly instructed that commission of the prior act of sexual misconduct was “only one factor to consider” and was insufficient, by itself, to prove defendant’s guilt. The People still had the burden of proving each element of the charged offenses beyond a reasonable doubt. Thus, James has no application.
Under the circumstances, defendant’s attempt to recast his argument as one that falls outside parameters of Reliford fails. We are in no position to reconsider the California Supreme Court’s holding that the instruction does not impermissibly reduce the prosecution’s burden of proof. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
VIII
Next, defendant challenges a limiting instruction the court gave because evidence was introduced that defendant asked Huckabay and his ex-wife to engage in “threesome” sexual encounters with a female stranger.
The court instructed the jury as follows in relevant part: “The People presented evidence through witness Roni Huckabay and witness Julie Johnson that the defendant previously expressed that he wanted ‘threesome’ sexual encounters with himself, his dating/marriage partner and a third-party female relative stranger. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the acts.... [¶]... If you decide that the defendant previously expressed that he wanted those acts, or engaged in those acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not the defendant had a motive, plan or scheme to commit the offenses alleged in this case against Terri Doe in 2000. [¶] Do not consider this evidence for any other purpose.” (Italics added.) The court further explained that the evidence could not be used to conclude defendant had a bad character or was disposed to commit crime; was not sufficient by itself to prove defendant’s guilt; and did not relieve the People of their burden to prove each element of the charged offenses beyond a reasonable doubt.
Defendant takes issue with the italicized portion of the above instruction. He does not dispute that the evidence was relevant to establish his motive for committing the offenses against Terri, and that a limiting instruction was appropriate. Rather, he contends the court was required to give an accurate limiting instruction, and it failed to do so when it instructed the jury that the evidence could be used to infer he had a common scheme or plan to commit a “threesome rape.” This was error, he argues, because his prior requests for group sex could not be construed as a desire to commit a “threesome rape.” Defendant asserts, “there is a world of difference between consensual threesomes and forcible ones, which the prosecution plainly could not prove here.”
In assessing a claim of instructional error, we must consider the specific language challenged, the instructions as a whole, and the jury’s findings. (People v. Cain (1995) 10 Cal.4th 1, 36.) The defendant must show there is a reasonable likelihood that the jury understood the instructions as the defendant asserts. (Ibid.)
Defendant misconstrues the meaning and effect of the court’s instruction. It did not tell the jury that his attack on Terri could be viewed as part of a common scheme or plan to engage in forcible threesomes. It simply advised the jurors that if they found defendant had previously expressed that he wanted threesome sexual encounters with a relative stranger, they could consider the evidence for the limited purpose of deciding whether defendant had a motive, plan or scheme to commit the offenses involving Terri. In other words, the jury could use defendant’s previously expressed desire for group sex with a stranger as evidence of his motive for sexually assaulting Terri. The jury could also use this evidence as indicating that defendant had a plan or scheme to achieve this desire, in light of Huckabay’s testimony that defendant stated he wanted to pick up a prostitute, drove around looking for someone, stopped when he saw Terri, and then accosted her, all of which indicated a plan to find a female with whom to have a threesome.
There is no reasonable likelihood that the jurors understood the instruction in the manner defendant asserts.
IX
In count six, defendant was charged with aggravated kidnapping for forcible oral copulation (Pen. Code, § 209, subd. (b)) but was convicted of the lesser offense of simple kidnapping of Virginia. (Pen. Code, § 207, subd. (a).) The jury also found that, in committing the sexual offenses charged in counts eight through twelve, defendant kidnapped Virginia, which increased the risk of harm to her. (Pen. Code, § 667.61, subds. (d)(2), (e)(1).)
Penal Code section 667.61 states in part: “(a) Any person who is convicted of an offense specified in subdivision (c) [which includes forcible rape, sexual penetration and oral copulation] under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 25 years to life. [¶]... [¶] (d) The following circumstances shall apply to the offenses specified in subdivision (c): [¶]... [¶] (2) The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c). [¶]... [¶] (e) The following circumstances shall apply to the offenses specified in subdivision (c): [¶] (1) Except as provided in paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5. [¶]... [¶] (5) The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.”
Defendant contends the court erred in instructing the jury with respect to the kidnapping crime and kidnapping allegations under Penal Code section 667.61 (hereafter section 667.61) because it provided a definition of the asportation element that was not applicable at the time defendant committed the offenses.
Penal Code section 207 says in relevant part: “Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.” (Pen. Code, § 207, subd. (a).)
When defendant kidnapped Virginia in March 1999, the asportation element for simple kidnapping required movement of a substantial character, but this was determined solely by the actual distance that the victim was moved; consideration of other factors was prohibited (People v. Caudillo (1978) 21 Cal.3d 562, 572 (hereafter Caudillo), overruled in People v. Martinez (1999) 20 Cal.4th 225, 229, 237, fn. 6 (hereafter Martinez); see also, People v. Morgan (2007) 42 Cal.4th 593, 609-610 (hereafter Morgan).)
Thereafter, Martinez formulated a new analysis of the issue of whether an asportation was substantial, holding the trier of fact may consider more than the actual distance. (Martinez, supra, 20 Cal.4th at pp. 235, 238-241.) In determining whether the distance is “substantial in character, ” the jury may consider the totality of the circumstances, including not only the actual distance the victim is moved, but “whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim’s foreseeable attempts to escape and the attacker’s enhanced opportunity to commit additional crimes.” (Id. at p. 237, fn. omitted.) The court emphasized, however, “contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance.” (Ibid.) “In addition, in a case involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement’s substantiality.” (Ibid.)
Martinez explicitly held that its decision concerning what constituted a substantial distance could not retroactively be applied to any defendant whose offense occurred while Caudillo was the law: “[I]n overruling Caudillo we have not only expanded the factual basis for making that determination but in the process effectively overruled cases holding that specific distances failed to establish asportation.” (Martinez, supra, 20 Cal.4th at p. 239.)
Martinez was decided in April 1999, so the new law regarding the asportation element of kidnapping applied to the offenses and section 667.61 allegations involving Terri, but not Virginia, since the crimes against Virginia were committed in March 1999. But the court’s instructions to the jury applied the Martinez factors to the asportation element of the kidnapping crimes and allegations involving both Virginia and Terri. (CALCRIM Nos. 1215, 3175, 3179.)
The court instructed the jury with CALCRIM No. 1215 as follows in relevant part: “Kidnapping in violation of Penal Code section 207(a) is a lesser offense of kidnapping for rape as charged in Count One and kidnapping for forcible oral copulation as charged in Count Six. Kidnapping is also one of the allegations attached to Counts Two, Three, Eight, Nine, Ten, Eleven and Twelve. [¶] To prove that the defendant is guilty of this crime or allegation, the People must prove that: [¶] 1. The defendant took, held, or detained another person by using force or by instilling reasonable fear; [¶] 2. Using that force or fear, the defendant moved the other person or made the other person move a substantial distance; [¶] 3. The other person did not consent to the movement; and [¶] 4. The defendant did not actually and reasonably believe that the other person consented to the movement. [¶]... [¶] Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection....”
The court instructed the jury with CALCRIM No. 3175--which pertains to enhancements under section 667.61, subdivision (d)(2)--as follows in relevant part: “If you find the defendant guilty of a crime charged in Counts Two, Three, Eight, Nine, Ten, Eleven or Twelve, you must then decide whether, for that crime, the People have proved the additional enhancement that the defendant kidnapped Terri Doe or Virginia Doe, increasing the risk of harm to her.... [¶] To prove this allegation, the People must prove that: [¶] 1. The defendant took, held, or detained Terri Doe or Virginia Doe by the use of force or by instilling reasonable fear; [¶] 2. Using that force or fear, the defendant moved Terri Doe or Virginia Doe or made her move a substantial distance; [¶] 3. For each enhancement the movement of Terri Doe or Virginia Doe substantially increased the risk of harm to her beyond that necessarily present in the enhancement charged in that count;[¶] 4. Terri Doe or Virginia Doe did not consent to the movement; and [¶] 5. The defendant did not actually and reasonably believe that Terri Doe or Virginia Doe consented to the movement. [¶] Substantial distance means more than a slight or trivial distance. The movement must be more than merely incidental to the commission of the crimes charged in Counts Two, Three, Eight, Nine, Ten, Eleven or Twelve. In deciding whether the distance was substantial and whether the movement substantially increased the risk of harm, you must consider all the circumstances relating to the movement....”
The court instructed the jury with CALCRIM No. 3179--which pertains to the enhancements under section 667.61, subdivision (e)(1)--as follows in relevant part: “If you find the defendant guilty of a crime charged in Counts Two, Three, Eight, Nine, Ten, Eleven or Twelve, you must then decide whether, for that crime, the People have proved the enhancement that the defendant kidnapped Terri Doe or Virginia Doe.... [¶] To decide whether the defendant kidnapped Terri Doe or Virginia Doe, please refer to the separate instructions that I will give you on kidnapping in CALCRIM No. 1215. You must apply those instructions when you decide whether the People have proved this enhancement....”
Defendant contends we must reverse count six, involving the simple kidnapping of Virginia, as well as the special kidnapping allegations under section 667.61, subdivisions (d)(2) and (e)(1), which enhanced defendant’s sentence for the crimes against Virginia and resulted in a life sentence. He says the court’s instructional error was compounded by the prosecutor’s argument to the jury that “[a] substantial distance can be 20 feet when you grab someone off the sidewalk and take them into the bushes.” This was contrary to the Caudillo line of cases, which typically found that distances of less than 90 feet were not substantial. (Morgan, supra, 42 Cal.4th at pp. 610-611; Martinez, supra, 20 Cal.4th at pp. 233-235.) In addition, defendant argues we must reverse the aggravated kidnapping offense and allegations involving Terri.
The People concede the instructional error with respect to the simple kidnapping of Virginia (count six) and agree we must reverse this count and the kidnapping allegations under section 667.61, subdivision (e)(1) in counts eight through twelve. The People argue, however, that the error has no effect on the aggravated kidnapping allegations pertaining to Virginia under section 667.61, subdivision (d)(2), which means defendant remains subject to a sentence of 25 years to life. (§ 667.61, subds. (a), (f).) Moreover, the People point out, the error has no effect on the kidnapping charges or section 667.61 allegations involving Terri.
We agree count six must be reversed, as must the section 667.61, subdivision (e)(1) allegations involving Virginia, because the court incorrectly instructed that, in determining whether defendant moved Virginia a substantial distance, the jury should consider whether the movement increased the risk of harm to her above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim’s foreseeable attempts to escape and the attacker’s enhanced opportunity to commit additional crimes.
As Martinez explained, its decision adding these factors cannot be applied retroactively because it expanded the factual basis for making a determination whether the defendant moved the victim a substantial distance. (Martinez, supra, 20 Cal.4th at p. 239.) In this case, defendant moved Virginia about 95 feet, which is only slightly more than the 90 feet found to be insubstantial under pre-Martinez law. (Morgan, supra, 42 Cal.4th at pp. 610-611; Martinez, supra, 20 Cal.4th at pp. 233-235.) The jurors were instructed that, in determining whether this distance was substantial, they could consider inapplicable factors that made it more likely they would conclude that it was. The prosecutor’s argument reinforced this belief, indicating that 20 feet was enough if these factors existed. This was prejudicial error. (Morgan, supra, 42 Cal.4th at p. 611 [reversing a pre-Martinez kidnapping conviction because the People improperly argued that a movement of 45 feet was substantial based on the increased risk of harm to the victim, and nothing in the court’s instructions disabused the jury of the notion that such a short distance could constitute a substantial one under the law at the time]; People v. Jones (1997) 58 Cal.App.4th 693, 709-710 [a section 667.61, subd. (e)(1) enhancement applies the same simple kidnapping factors as the substantive offense].)
Defendant’s claim that the aggravated kidnapping offense and section 667.61 allegations involving Terri must also be reversed due to the instructional error is easily dispatched. He forfeits the claim by not providing reasoned argument, supported by analysis and authority, establishing that the instructions erroneously stated the law applicable to the acts involving Terri, which were committed in 2000 after Martinez was decided. (People v. Barnett (1998) 17 Cal.4th 1044, 1107, fn. 37 [a reviewing court need not discuss claims that are asserted perfunctorily and insufficiently developed]; People v. Galambos (2002) 104 Cal.App.4th 1147, 1159 [appellate contentions must be supported by analysis and authority or they are forfeited]; People v. Sangani (1994) 22 Cal.App.4th 1120, 1135-1136 [legal analysis must be connected to the evidence in the case].)
This leaves the parties’ dispute concerning whether the section 667.61, subdivision (d)(2) kidnapping allegations for the crimes committed against Virginia must be reversed. Resolution of this question depends on whether section 667.61, subdivision (d)(2) incorporates the asportation element of simple kidnapping (Pen. Code, § 207, subd. (a)) or whether it incorporates the asportation element of aggravated kidnapping to commit a specified sexual offense (Pen. Code, § 209, subd. (b)).
In People v. Rayford (1994) 9 Cal.4th 1 (hereafter Rayford), which concerned aggravated kidnapping to commit a robbery, the California Supreme Court addressed the requisite standard of asportation for the substantive offense of aggravated kidnapping. Rayford concluded that, unlike the standard for simple kidnapping, aggravated kidnapping required movement of the victim that was not merely incidental to the underlying crime of robbery or rape, and the movement had to substantially increase the risk of harm over and above that necessarily present in the crime of robbery or rape. (Id. at pp. 12, 22.) Because Rayford concluded that aggravated kidnapping to commit a robbery or rape had this heightened standard, it declined to address whether Caudillo’s rejection of certain factors other than the actual distance traveled should be revisited. (Id. at p. 22.)
The standard set forth in Rayford was in effect at the time defendant sexually assaulted Virginia, and the standard is codified in Penal Code section 209 (Martinez, supra, 20 Cal.4th at p. 232, fn. 4), which states kidnapping for purposes of a sexual offense requires “movement of the victim... beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense.” (Pen. Code, § 209, subd. (b)(2).)
Section 667.61 provides for an increased penalty where the defendant committed forcible rape, oral copulation, or sexual penetration and “[t]he defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense....” (§ 667.61, subd. (d).) It, too, incorporates the aggravated kidnapping standard approved by Rayford.
Thus, we agree with the People that the allegations under section 667.61, subdivision (d)(2) incorporate the standard of aggravated kidnapping existing at the time defendant committed the offense, which means the instructional error with respect to simple kidnapping did not affect the verdict as to these allegations. Thus, despite our striking the allegations under section 667.61, subdivision (e)(1), defendant remains subject to a sentence of 25 years to life for kidnapping Virginia and forcing her to orally copulate him.
X
According to defendant, the law defining the asportation elements of simple and aggravated kidnapping, and the elements required to distinguish between the two types of asportation, is unconstitutionally vague on its face and as applied.
“Due process requires fair notice of what conduct is prohibited. A statute must be definite enough to provide a standard of conduct for its citizens and guidance for the police to avoid arbitrary and discriminatory enforcement.” (People v. Townsend (1998) 62 Cal.App.4th 1390, 1400.) “A statute is not vague if... any reasonable and practical construction can be given to its language.” (Id. at p. 1401.) There is a strong presumption that legislative enactments must be upheld unless they are “‘“clearly, positively, and unmistakably”’” unconstitutional. (Williams v. Garcetti (1993) 5 Cal.4th 561, 568.)
“Equal protection requires the state to treat similarly situated persons alike, with some exceptions in which the disparate treatment is sufficiently related to the purpose of the statute in question.” (People v. Jacobs (1992) 6 Cal.App.4th 101, 103.)
Defendant claims that California law regarding asportation is unconstitutional because “there is no longer an[y] fixed minimum sufficient distance for purposes of the substantial movement element of both simple and aggravated kidnapping. Moreover, in cases like this one involving associated crimes, both simple and aggravated kidnapping now involve consideration of the same three elements (substantial movement, non-incidental movement, and increase in risk) to assess asportation. [Citations.] This leaves the asportation element for any kidnapping, as well as the distinction between simple and aggravated asportation, unduly vague and susceptible of arbitrary enforcement....”
California’s Supreme Court has repeatedly reiterated the conclusion it reached almost 40 years ago that to define the “actual distance” aspect of the asportation element of kidnapping “in terms of a specific number of inches or feet or miles would be open to a charge of arbitrariness.” (People v. Daniels (1969) 71 Cal.2d 1119, 1128; Rayford, supra, 9 Cal.4th at p. 12; Martinez, supra, 20 Cal.4th at p. 233.) By contrast, a standard such as “substantial” is “not impermissively vague, provided [its] meaning can be objectively ascertained by reference to common experiences of mankind.” (People v. Daniels, supra, 71 Cal.2d at pp. 1128-1129; Morgan, supra, 42 Cal.4th at pp. 606-607.) The asportation cases amply illustrate, and the standard instructions explain, that the import of the actual distance a victim is moved depends on all the other circumstances related to the movement.
We also reject defendant’s complaint that, in cases like this one involving an associated crime, the asportation element for simple kidnapping appears to be identical to the asportation element for aggravated kidnapping. They both involve consideration of the same three factors--substantial movement, non-incidental movement, and increased risk of harm. But the simple kidnapping instruction, CALCRIM No. 1215 (Pen. Code, § 207, subd. (a)) informs jurors that, in addition to the actual distance moved, they may consider other enumerated factors, while they must do so under the aggravated kidnapping instruction, CALCRIM No. 3175 (§ 667.61, subd. (d)(2).) The asportation standard for simple kidnapping continues to rely on whether movement of the victim was substantial in character. Indeed, movement that is substantial in character can alone, without any other factors, satisfy the asportation requirement for simple kidnapping. (Martinez, supra, 20 Cal.4th at p.237.) But a jury may also consider the totality of the circumstances, in the form of other evidence relating to the factors described in the Martinez opinion, in determining whether defendant’s movement of the victim was substantial.
Thus, Martinez and the instructions given refute defendant’s assertion that simple and aggravated kidnapping now share the same asportation standard. They do not. Aggravated kidnapping always requires the additional element that the movement substantially increased the victim’s vulnerability or risk of harm. Simple kidnapping does not always require this higher asportation standard, although the jury may consider such evidence in deciding whether the defendant’s movement of the victim was substantial in character.
The higher 25-years-to-life term of section 667.61, subdivision (d)(2) is not arbitrary; it relies on proof the “defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c).” The requirement that the movement “substantially” increase the risk of harm for the punishment of subdivision (d)(2) differs from, and is higher than, the asportation requirement of simple kidnapping. Proof of such “substantial” increase in the “risk of harm” is necessary for, and justifies, the higher punishment of subdivision (d)(2).
Defendant claims the “aggravated kidnapping allegations here do not even require specific intent to commit an added crime, leaving its elements almost exactly the same as the considerations stated in Martinez for any simple kidnapping where an associated crime is involved.” Perhaps there is no requirement of a specific intent to commit a sexual offense because the jury does not even reach the enhancement allegation unless it has already found the defendant guilty of a qualifying sexual offense.
Defendant fails to establish any constitutional infirmity in the statutory scheme.
XI
Next, defendant contends the trial court’s failure to hold a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118; hereafter Marsden) when he sought to fire his attorney before the first trial, requires reversal of the judgment entered after the second trial.
Marsden provides that, when an accused seeks to discharge his appointed counsel and substitute another attorney on the ground of inadequate representation, the trial court must permit the accused to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. (Marsden, supra, 2 Cal.3d at p. 123; People v. Smith (2003) 30 Cal.4th 581, 604.)
Assistant Public Defender David Lynch represented defendant throughout the first and second trial. However, on a few occasions between the preliminary hearing and the first trial, a different public defender appeared for Lynch due to scheduling conflicts.
On May 2, 2007, Assistant Public Defender Jennifer Schiavo appeared on his behalf before Judge Hom. Defendant stated, “I want to fire my attorney, that’s what I’m in the process of doing. I’m [sic] been here eight months, this is why.” The court responded it would deal with the issue later because Lynch was not present. Defendant complained that Lynch had not been there for his last four hearings. The court and Schiavo explained that Lynch was engaged in another trial. The court continued the matter until May 9, 2007, at which time “we can potentially resolve the issue regarding Mr. Lynch’s representation. And Ms. Schiavo will convey your desires.”
Lynch appeared with defendant at the next hearing, at which time no one made any reference to defendant’s desire to fire him. Defendant points to nothing in the record indicating he reiterated his wish to fire Lynch at any time prior to or during the first trial, at which Judge Nunley presided. On December 3, 2007, the court declared a mistrial based on the jury’s inability to reach a unanimous verdict. At that time, the prosecutor immediately expressed her intention to retry the case. Defendant points to nothing in the record indicating he expressed any dissatisfaction with Lynch at any time between the first and second trial, or during the second trial, at which Judge Marlette presided. At the first proceeding, Judge Marlette twice asked if there were any outstanding issues that needed to be addressed. Lynch indicated there were no issues, and defendant did not contradict him.
The People argue defendant abandoned his Marsden claim by failing to reassert it at the next hearing or at any other time. They rely on People v. Vera (2004) 122 Cal.App.4th 970, in which the trial court held a Marsden hearing, denied it without prejudice because of time pressures, and offered the defendant an opportunity to renew the motion in the future to state his remaining complaints about counsel. (Id. at pp. 976-977.) The defendant failed to do so, and the appellate court interpreted this as an abandonment of his unstated complaints, observing that if a defendant’s conduct could amount to abandonment of the right to self-representation (People v. Kenner (1990) 223 Cal.App.3d 56, 59), then there was no reason his conduct could not be construed as an abandonment of his request to substitute counsel. (People v. Vera, supra, at pp. 981-982.)
Here, the record discloses the court did not deprive defendant of the opportunity to address the reasons for his Marsden motion; it simply delayed the matter for another day. When that day came, defendant did not raise the subject again, did not state he still wanted to discharge counsel, and did not seek to explain reasons for discharging counsel. Furthermore, his first trial ended in a mistrial. At the start of the second trial, Judge Marlette specifically asked if there were outstanding issues that needed to be addressed. Defendant said nothing and silently accepted counsel’s assistance throughout the entire second trial.
Because defendant’s conduct demonstrates he had abandoned his request for new counsel, the court did not err in not conducting a Marsden hearing. (People v. Vera, supra, 122 Cal.App.4th at p. 982.)
Defendant also contends he received ineffective assistance of counsel when Lynch failed to ensure that the court conducted a Marsden hearing.
However, “‘[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[, ]... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, ’ the claim on appeal must be rejected. [Citations.]” (People v. Wilson (1992) 3 Cal.4th 926, 936.) On this record, we cannot say there could be no satisfactory explanation for Lynch failing to raise the matter at the next hearing. For example, defendant may simply have been unhappy that Lynch had not been present for several hearings, and once he learned that Lynch had been busy with another trial, defendant’s complaint was resolved. Lynch and defendant may have discussed their differences, and defendant decided that he was satisfied with counsel’s representation, which would have obviated the need for a Marsden hearing.
In sum, defendant’s claim of ineffective assistance of counsel fails.
XII
Defendant contends the judgment must be reversed because of the cumulative prejudicial effect of the aforementioned errors.
There being no error that was prejudicial, either separately or collectively, defendant’s claim of “cumulative” error fails. (People v. Dykes (2009) 46 Cal.4th 731, 775.)
XIII
Defendant argues the robbery conviction in count five is barred by the three-year statute of limitations in Penal Code section 801, because he committed the offense against Terri on April 29, 2000, and prosecution was not commenced against him until well after April 29, 2003.
The People concede the three-year statute of limitations applies, but contend the record does not reveal whether the prosecution for second degree robbery was timely commenced.
Prosecution commences in a felony case (1) when a warrant issues naming or describing the defendant with particularity, (2) when the defendant is arraigned on the complaint, or (3) when the indictment or information is filed. (Pen. Code, § 804.)
The People concede the latter two events occurred after the expiration of the statute of limitations, but point out the record does not reveal when either an arrest or bench warrant first issued against defendant. Thus, they argue, the proper resolution is to remand to the trial court to give the prosecutor the option of presenting evidence that an arrest or bench warrant issued against defendant within the three-year statute of limitations. (People v. Williams (1999) 21 Cal.4th 335, 341 [“when the charging document indicates on its face that the action is time-barred, a person convicted of a charged offense may raise the statute of limitations at any time. If the court cannot determine from the available record whether the action is barred, it should hold a hearing or, if it is an appellate court, it should remand for a hearing]”.)
Defendant disagrees, asserting there could not have been a timely arrest warrant because the perpetrator of the two stranger rapes was unknown until 2006, when the cases were revived by cold case DNA hits. He asserts, “It is sheer speculation to posit an earlier DNA hit [occurred] in 2003 on this exhaustive record; the first cold-case database hit occurred in 2006, not 2003. Remand is not required. Certainly, a remand would be an idle gesture and a waste of judicial resources....”
Defendant overlooks that it was not essential for his identity to be known for a timely arrest warrant to issue because an arrest warrant using a perpetrator’s unique DNA profile describes the defendant with sufficient particularity and may be used to prevent the statute of limitations from running out. (People v. Robinson (2010) 47 Cal.4th 1104.) Although it is unlikely the prosecutor used this mechanism for complying with the statute of limitations, we cannot determine from the available record whether or not the prosecutor did so and the action is barred.
Accordingly, we will reverse the robbery conviction and remand the matter to the trial court for it to give the prosecutor the option of presenting evidence that an arrest warrant issued against defendant within the three-year statute of limitations. If the prosecutor is able to demonstrate the issuance of a timely arrest warrant, then the court shall reinstate the robbery conviction. (People v. Williams, supra, 21 Cal.4th at p. 341.)
XIV
Defendant contends, and the People concede, the sentence imposed on count two is six months too long. They are correct.
The court imposed a consecutive sentence of one-third the middle term for the attempted forcible oral copulation. However, the middle term is three years (Pen. Code, §§ 288a, subd. (c)(2), 664, subd. (a)), one-third of which is one year, not one year and six months. Accordingly, we shall direct the trial court to correct the abstract of judgment.
XV
Defendant contends, and the People concede, the court erred when it orally pronounced sentence of life without the possibility of parole for count one, rather than life with the possibility of parole. The abstract of judgment does not perpetuate the error; indeed, it fails to state any sentence at all other than to correctly reflect that the court stayed the sentence on count one pursuant to section 654 because of the indeterminate sentence in count three.
We shall direct the court to correct the abstract of judgment to reflect a stayed sentence of life with possibility of parole.
The People point out two additional errors in the abstract of judgment. It fails to reflect that the court sentenced defendant to 25 years to life on counts three and eight, pursuant to section 667.61. Instead, the abstract indicates defendant received a life sentence on both counts, which would make him eligible for parole in seven years. We shall direct the court to correct these errors also.
DISPOSITION
The robbery conviction (count five) is reversed, and the matter is remanded to the trial court for the prosecutor to have the option of presenting evidence that an arrest warrant issued against defendant within the three-year statute of limitations. If the prosecutor is able to establish the issuance of a timely arrest warrant, the court shall reinstate the robbery conviction. The simple kidnapping count involving Virginia Doe (count six) is reversed, as are the kidnapping enhancements under section 667.61, subdivision (e)(1) on counts eight through twelve. In all other respects, the judgment is affirmed. The trial court is directed to correct the abstracts of judgment to reflect that defendant was sentenced to life with the possibility of parole on count one; one year in prison on count two; and 25 years to life on counts three and eight pursuant to section 667.61. The court must also correct the “ABSTRACT OF JUDGMENT - PRISON COMMITMENT INDETERMINATE” to reflect that defendant committed count three in 2000, not 2007, and also correct the “ABSTRACT OF JUDGMENT - PRISON COMMITMENT DETERMINATE” to reflect that defendant committed counts six and seven in 1999, not 2000. The trial court is further directed to send a certified copy of the amended abstracts to the Department of Corrections and Rehabilitation.
We concur: BLEASE, J. ROBIE, J.