Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR044738
Reardon, Acting P.J.
A jury found appellant Bindhu Madhava Lang guilty of multiple offenses, most of them sexual offenses committed against two underage minors. He was sentenced to a term of 27 years to life in state prison for these offenses. (See Pen. Code, §§ 136.1, subd. (b)(1), 261, subd. (a)(2), 288a, subd. (c)(1), (2); former § 288, subds. (a)(1), (c)(1) [as amended by Stats. 1998, ch. 925, § 2].) On appeal, Lang contends that (1) the trial court erred by permitting the jury to render a verdict although several jurors had not heard all the evidence; (2) prosecutorial misconduct occurred; (3) the trial court should not have allowed a prosecution witness to remain in court as a support person during the testimony of one of the victims; (4) the trial court committed instructional error; and (5) the prosecutor improperly elicited testimony about Lang’s prior arrest in violation of a court order and by so doing, jeopardized his right to a fair trial. He also urges us to find that (6) his motion for new trial should have been granted and (7) an unauthorized aspect of his sentence must be vacated. We order that the abstract of judgment be corrected, but otherwise affirm the judgment.
All statutory references are to the Penal Code unless otherwise indicated.
All cited former code provisions are substantially the same as current law.
I. FACTS
This recitation of facts is based primarily on S.S.’s trial testimony. Her chronology is somewhat vague, because she was not certain of the dates.
In May 2004, 12-year-old S.S. and 14-year-old S.K. were schoolmates and friends. At the close of the school year, S.K.’s mother discovered that the two girls had been shoplifting. S.S. and S.K. were not in contact with each other for much of the summer.
All subsequent dates refer to the 2004 calendar year unless otherwise indicated.
By late July, S.S. was spending time with 15-year-old Melissa F. They talked about boys a lot. At Melissa’s bidding, S.S. called appellant Bindhu Madhava Lang, who was 24 years old. At first, S.S. intended to help mend Melissa’s relationship with Lang, but she ended up talking about herself instead. Lang told S.S. that he was 24. S.S. lied, saying that she was two or three years older than her actual age of 12 years.
We assume that Melissa was 15 years old in July, as she was 16 years old when she testified in March 2005.
The following day, S.S. met Lang near her Arcata home. While S.S. was walking with Melissa, Lang pulled up in his car. When he asked if she was S.S., she said that she was. In the next week, S.S. and Lang spoke regularly by telephone. Once, Lang called her; she called him several times. She talked about her family and about quarrels she had with her parents, who were not getting along with each other, either. Lang comforted her when she felt sad or unloved. Once or twice, Lang wanted S.S. to talk about sex with him on the telephone. Although S.S. did not do so, her interest in Lang grew.
About a week after this first meeting, S.S. was out with some friends when Lang drove by again. He said that he might join the group later, but he did not. That afternoon, S.S. called Lang to say that she was headed to a park with another school friend, Sara T. Melissa was there, too. Lang stopped by and spent about a few minutes with them at the park.
That same evening, on August 7, Sara and S.S. went to Lang’s Arcata trailer about 5:15 p.m. The two girls were supposed to be home by 8:00 p.m. that evening, but they stayed out all night. Melissa was also there for a short time and later, when she told her parents that she had seen the two girls at Lang’s trailer, they passed this news on to S.S.’s parents. Sara’s parents also received word about their own daughter and they contacted the police.
Police dispatch reports about Sara—who was feared missing—were aired shortly before and after midnight on the night of August 7-8. When Lang heard that authorities were looking for the girls, he fled in his car. S.S. and Sara hid out near the trailer park’s recreation hall for an hour or so before returning to Lang’s trailer for the rest of the night. S.S. was depressed after this incident because she feared that her actions had gotten Lang in trouble. Several days later, Lang assured her that she had not.
At trial, Sara T. told the jury that the two girls did not return to Lang’s trailer, but remained near the recreation hall until morning.
The next time S.S. saw Lang, they had sexual intercourse in his car. He picked her up in his car after dark and drove to a secluded area. Before they became intimate, Lang cautioned S.S. that she could not tell anyone about what they were about to do lest he get in trouble. He asked if S.S. wanted to have sex and she agreed. He removed some of their clothing. S.S. reclined on the passenger seat of his car with Lang on top of her. They had vaginal intercourse for the first time. He wore a condom during intercourse which he later tossed into the bushes near the car.
No discarded condom or condom wrapper was found during a search of the area conducted several months after this incident.
A week or two later, S.S. and Lang met again at his trailer in the afternoon. They had sexual intercourse a second time. She gave him a balloon that said “I love you” on it. S.S. later said that she was stoned that day. She refused his request that she orally copulate him, but they had vaginal intercourse. Again, Lang used a condom.
The third instance of sexual intercourse between S.S. and Lang occurred several weeks later. Lang drove by when S.S. was on her way to the store. At his invitation, she rode off with him. He drove to the same remote location where they had gone for their first encounter. When Lang asked if she wanted to have sex again, S.S. agreed. In his car, they had a third instance of sexual intercourse. Lang again wore a condom.
One Friday afternoon after school, S.S. called and asked Lang to pick her up. He was reluctant to do so, but he agreed if she would orally copulate him. When they met, S.S. did as he asked, taking his penis into her mouth. This was their final sex act. All four sexual encounters—three instances of vaginal intercourse, one of oral copulation—between Lang and S.S. occurred before S.S. turned 13 on September 7.
This recitation of facts comes primarily from S.K.’s testimony.
After being out of contact for most of the summer, S.S. and S.K began talking again by telephone in mid-August. Once school started, S.S. began frequenting S.K.’s Eureka home again. S.S. told S.K. that she was in a physical relationship with Lang. One day after school, S.K. met Lang at his trailer when she went there with S.S. to retrieve the younger girl’s house keys. S.K. thought that Lang was about 18 years old.
When Lang answered the door, both girls went into the trailer. S.K. overheard him ask S.S. how old S.K. was. When S.S. said that her friend was 14, S.K. heard Lang say “[D]amn, [she’s] young.” The rest of the time, Lang and S.S. seemed to ignore her. Once S.S. got her keys, the girls left.
The next day, S.S. paged Lang, giving him S.K.’s telephone number. Lang wasn’t seeing S.S. anymore. She hoped that S.K. would speak with him and encourage him to reunite with S.S. When he called S.K. that night, she asked him why he wasn’t seeing S.S. anymore. Lang did not say why—he only said that he did not want to be with S.S. Instead, he asked about S.K.—how old she was, about her boyfriend and so on. S.K. lied and said that she was a year older than her 14 years. When she asked how old he was, Lang admitted that he was 24.
By this time, S.S. had become obsessed with Lang. When S.K. told S.S. about this conversation, S.S. asked S.K. to make another call to Lang on her behalf. S.S. nagged her about this so much that, the next night, S.K. did as she asked. Lang was unhappy when S.K. spoke of his being with S.S. He wanted to talk about himself and S.K. He wanted someone more mature than S.S., someone like her, which made S.K. feel flattered. He told her that she was pretty. Still, S.K.—who already had a relationship with her boyfriend—told Lang that she was not interested in having one with him. When Lang replied that they would not tell her boyfriend, S.K. felt uneasy. She told Lang that she had no plans to break up with her boyfriend or to be unfaithful to him.
The next night, Lang called S.K. and they had a third telephone conversation. Again, he wanted to talk about her, not about S.S. Lang asked whether S.K. was a virgin. This question made her uneasy. He asked what turned her on sexually. When she said that she did not know, Lang told S.K., “We’ll just have to find out.” S.K. liked it that an older man found her attractive.
At trial, S.K. did not indicate whether she answered this question. In a prearrest statement, she said that she had had some sexual experience before Lang assaulted her.
Shortly thereafter, on August 31, S.K. and Lang spoke again by telephone. S.K. and S.S. planned to sneak away to see him with a third girl named Jessica. When he asked if S.S. really had to come with her, S.K. replied that she was not coming without her.
The plan was for Lang was to pick up S.S. first, then come by for S.K., and then get Jessica. About 10:30 or 11:00 that evening, Lang’s car approached S.K.’s home in Eureka. She snuck out of the house and saw that Lang was alone in the car. S.K. got into the front passenger seat of the car. When she asked where S.S. was, Lang told her that they were on the way to get her “right now.” They headed toward Arcata where S.S. lived. S.K. believed Lang was headed toward S.S.’s house.
At first, S.K. was excited to be alone with a good looking man in his car. After 10 or 15 minutes, Lang stopped the car in a dark, bushy area. S.K. stopped feeling flattered and started feeling uncomfortable. She asked why Lang had stopped the car. “Aren’t we going to get [S.S.]?” When he said “no,” S.K. asked him to drive her home. She did not want to there without S.S. She suspected that he wanted to have intercourse with her. S.K. wanted something to happen with Lang, but she did not want things to go too far.
Lang told her that he could not take her home right then because they had “things to do.” He leaned over, put his hands on S.K.’s chest and said “I want to make you feel better.” She liked this. Then, Lang stuck one hand down her pants between her jeans and her underwear. He almost touched her vaginal area. His other hand was on her thigh.
This, S.K. did not like. She told Lang to stop, pushing his hand away and pushing on his chest. S.K. told him that “[t]his wasn’t going to work out.” When Lang asked why, she replied that she had a boyfriend that she loved. He said “No, you don’t,” and “[Y]ou love me.” Lang leaned over again and kissed her neck. When he tried to put his hands on her chest again, S.K. briefly got out of the car. It was dark out, so she got back in the car—this time, into the back seat, because she did not want to sit beside him.
S.K. acknowledged that while she never said she was in love with Lang, she may have given him that impression earlier that evening when she said she had “strong feelings” for him.
S.K. admitted that in a prearrest statement, she said that she did not get out of the car, but that Lang pushed her into the back seat. She explained that she was nervous at the interview and insisted that her trial testimony was correct.
Lang got into the back seat of the car with her and began to take off S.K.’s shirt. She told him to stop, but he did not. Her voice was not very forceful—she was frightened, knowing what S.S. had told her about Lang. Lang removed her shirt, exposing her bra. He grabbed her legs and began “humping” them. S.K. was pushing on his chest with her hands, asking him to stop. Lang did not reply—he simply removed her jeans and underpants. S.K. said that she did not want him to do this—Lang told her that he loved her and insisted that she loved him back. She told him to stop, but his penis entered her vagina while they were in the back seat of the car.
During this time, Lang told S.K. again that she was pretty. She complained more than once that he was hurting her. He went faster and harder, saying that it would not hurt very long. Several minutes later, Lang pulled out of her. He did not use a condom during this incident.
In her prearrest statement, S.K. said that she pushed Lang off when he refused to stop.
Lang got off of S.K. and she sat up. He helped her find her clothes on the floor of the car and tossed them in her lap. S.K. got dressed. Lang still had his pants down. Initially, he told her that they were done, but within five minutes, he changed his mind, telling her to orally copulate him.
S.K. did not respond immediately—she was wondering why this was happening to her. Lang pushed her head down until his exposed penis was in her mouth. Frightened, S.K. did what he said, orally copulating him for about five minutes. He ejaculated into her mouth, not removing his hand from her head until after he had done so. Lang said, “I feel better.”
During cross-examination, S.K. testified that she did not know if he ejaculated during vaginal intercourse. She also acknowledged that at the preliminary hearing, she testified that he did so.
S.K. told Lang that she wanted to go home and he drove her there. He cautioned S.K. not to tell anyone about what happened. Once she was at home, S.K. sat on her bed and cried for an hour, uncertain what to do, before she fell asleep. The next day, S.K. did not tell anyone what happened—she just got up and went to school.
C. Disclosure of Incidents with S.S. and S.K.
In late August or early September, Lang called S.K. at her home. Her mother answered the telephone and, thinking that Lang sounded older than her daughter, asked how old he was. Lang said that he was 17 years old. S.K.’s mother told Lang that her daughter was only 14 and was not allowed to speak with 17-year-old boys. He said “[o]kay” and hung up.
S.S. turned 13 on September 7. At her birthday party, Melissa complained to S.S. that she thought that Lang was cheating on her, but she did not know who he was with. S.S. confessed that it was her, telling Melissa that she and Lang had had intercourse three times and she had orally copulated him once. When S.S. called Lang the next day, she could tell from his voice that something was wrong. He accused her of betraying him, because she had told Melissa what she did. Since that day, both Lang and Melissa have been upset with S.S.
About this time, S.K.’s mother suspected that the two girls had been shoplifting again. She confronted both girls with her concerns. Each admitted their offense. S.K.’s mother reported S.S.’s shoplifting to S.S.’s father.
Upset at this turn of events, S.S. telephoned S.K.’s mother. The girl said that she feared that the shoplifting report would lead to “other stuff” that the mother did not know about—things that would get S.S. and “someone else” in trouble. S.K.’s mother confided that she was concerned about her own daughter. She asked S.S. to tell her what was “going on” with S.K. The mother also expressed concern for S.S., who then admitted that she had had sex with Lang. S.K.’s mother offered to call Lang, but S.S. did not want her to do this. The mother advised S.S. to go to the school office the following day with S.K. to use the telephone there to call a rape crisis center.
That evening, S.K.’s mother telephoned Lang, angrily accusing him of having sexual relations with a 12-year-old girl. She told Lang that she had heard his name mentioned frequently by a circle of young girls. She threatened to have him prosecuted—or to take the law into her own hands—if she heard his name mentioned again. She wanted him to “leave little girls alone.” Lang indicated to her that he understood what she said.
The next day, S.S. went to school and asked to call a rape crisis center. The school principal learned of the request and questioned S.S. about it. She told the school principal that she had had sex with Lang. S.S. never got a chance to speak with a rape crisis counselor. Instead, the principal called the police. S.S. did not want to talk with police about Lang, but the principal insisted. S.K. was with S.S. at the school office—about this time, she told S.S. that she also had been with Lang.
The principal knew that S.S. had spoken with him at the suggestion of S.K.’s mother, so he asked the mother to pick up both girls from school. She did so. Driving home in the car, S.K.’s mother apologized to S.S. about how things went with the principal. She saw that her own daughter was extremely upset. When the mother asked about this, S.K. said that she thought that she had been raped.
S.K. told her mother about the sexual assault about two weeks after it happened. She was too scared to talk about it sooner. S.K.’s mother reported the allegation to police.
On September 13, Lang telephoned S.K., angry that the incident had been reported. He yelled “I can’t believe that you would do this to me. I thought you loved me.” He threatened that “people” would come after her if she told anyone else. Frightened, S.K. handed the telephone to S.S., who heard Lang say that he was going to have people “kick your ass. I know where you live.” S.S. hung up on him. Later that day, S.S., S.K. and their parents reported this telephone threat to police.
On September 17, S.K. was interviewed by a member of the Child Abuse Services Team (CAST). At that time, S.K. stated that the assault occurred on Tuesday, August 31. S.S. also gave a statement to police and was interviewed by a CAST representative.
In December 2006, we granted Lang’s motion to augment the record on appeal with a redacted transcript of this videotaped interview. At that time, we granted the motion without a determination of the relevance of the transcript. We now find that the transcript is relevant to the issues presented in this appeal. (See Evid. Code, § 210.)
S.K.’s trial testimony was contradictory about the exact day and date of the incident. The amended information alleged that the offenses of which Lang was ultimately convicted occurred between July 1 and September 14.
D. Prosecution Case
On September 20, Arcata police went to Lang’s trailer to arrest him. Before his arrest, Lang said that he knew why police wanted to talk with him. He already knew that allegations about sex with underage girls had been made against him. He told police that these charges were “absurd.” Lang said that he wasn’t going to be involved with an underage girl, although he admitted that if the girl was 18, that might be a “different story.” He told police that S.S. had been following him around. He said that he barely knew S.K.—that he had seen her for about two minutes.
On September 22, Lang was charged with seven sex offenses and two counts of witness intimidation. He pled not guilty. After a preliminary hearing, he was held to answer on all charges except one charge of witness intimidation.
In November, Lang was charged by information with committing three lewd and lascivious acts with S.S., a child under age 14; one count of oral copulation with S.S., a child under age 14; one count of lewd and lascivious conduct with minor S.K.; and single counts of forcible oral copulation, forcible rape, and witness intimidation of S.K. (See §§ 136.1, subd. (b)(1), 261, subd. (a)(2), 288a, subd. (c)(1), (2); see former § 288, subds. (a)(1), (c)(1).) It alleged that four of these offenses were serious felonies and six of them carried the special allegation that the crimes were committed against multiple victims. (See former §§ 667.61, subds. (b), (e)(5) [as amended by Stats. 1998, ch. 936, § 9], 1192.7, subd. (c) [as amended by Stats. 2002, ch. 606, § 3], 1203.066, subd. (a)(7) [as amended by Stats. 1997, ch. 817, § 13].) Lang pled not guilty to all charges.
In a separate matter, the People also sought to revoke a January grant of probation given to Lang after his conviction for possession of a controlled substance for sale. (See Health & Saf. Code, § 11378.) He sought bifurcation of the probation violation issue from trial on the sex assault and witness intimidation charges.
In March 2005, a trial was conducted. S.S. told the jury that she and Lang had vaginal intercourse three times and once she orally copulated him. She did not want him to go to jail—she wanted him to get some help. She admitted being obsessed with him. On cross-examination, Lang repeatedly challenged S.S.’s credibility. One line of questioning suggested that S.S. would have found it difficult to recant her charges if she wanted to do so. On redirect, S.S. told the jury that the prosecutor had repeatedly told her that she could recant without finding herself in any trouble with his office.
For example, defense counsel challenged S.S. for being unable to say whether or not Lang was circumcised despite repeated instances of sexual contact.
S.K. also testified at trial about the conversations and encounters she had with Lang. The jury viewed a videotape tape of her CAST interview. Defense counsel cross-examined her, bringing out numerous discrepancies between her trial testimony and the evidence she offered earlier at her CAST interview and/or at Lang’s preliminary hearing. S.K. denied that she and S.S. competed for Lang’s affections. She also told the jury that she knew that she could decline to testify against Lang without any repercussions. She testified against Lang because she did not want what happened to her to happen to anyone else.
E. Defense Case
For the defense, Lang’s mother testified that he was with her on the night of August 31, when S.K. was allegedly raped. Other witnesses offered testimony that undermined the credibility of the two prosecuting witnesses. There was evidence that S.S. and Melissa had repeatedly and falsely accused Storm O. of having raped S.S. and falsely advising him that S.S. was pregnant with his baby. Later, S.S. admitted that she was only joking.
Melissa F. testified that at a dance on October 29—after Lang’s arrest—S.S. and S.K. were both verbally abusive to her. S.S. first told Melissa that Lang had raped her and that she hoped that he would “never get[] out.” Later, S.S. admitted that her rape accusation was groundless—that she only made it in order to make Melissa jealous. S.S. threatened Melissa if she went to court and testified against her.
Melissa told the jury that S.K. also threatened her at the dance. Melissa was so scared that she called her mother and friends. Melissa’s mother and the police came to the dance hall to bring her home. In the next few months, Melissa received repeated frightening telephone threats.
Melissa’s mother admitted that she and S.K. exchanged angry words at the dance, prompting the mother to “[go] after” S.K.
Melissa and her mother both told the jury that S.S. had been interested in Lang, but denied that he shared that interest. S.S. would invite herself along with Lang and became insistent in the face of his lack of interest. S.S. scared and upset Lang—he feared that her interest in him would get him in trouble.
Melissa denied that she was romantically involved with Lang, likening their relationship to that of an older brother and younger sister. She admitted that she was angry with S.S. for taking a special ring that Lang had given to her. The ring meant a lot to her, because Lang meant a lot to her. Melissa also admitted that in July before Lang was arrested, her father had reported to Arcata police that Lang had kissed her and touched her breasts. She had told the police at that time that her parents were wrong—that Lang had touched her accidentally while they were roughhousing. By August, her parents had spoken with Lang and had accepted that the incident had been the result of a misunderstanding. During her testimony, Melissa’s mother characterized S.S. as a pathological liar.
Melissa’s mother may have been “in a relationship” with Lang.
Sara T. testified that she saw Lang interact with some of her friends. He never did anything inappropriate with the girls, although they were very interested in him. The girls seemed to compete for his affection. When S.S. was at Lang’s trailer with her, it was obvious to Sara that S.S. was intensely interested in him, but that he had no interest in her. By the time of trial, her parents had forbidden her to see S.S. or Melissa.
F. Verdict and Sentence
A first amended information was filed, conforming the dates on which the offenses were allegedly committed to the evidence presented at trial. On the People’s motion, the trial court dismissed a charge of lewd and lascivious conduct involving S.K. because the prosecution could not prove an essential element of the charge—that Lang was more than 10 years older than S.K. (See former § 288, subd. (c)(1).) The remainder of the case presented a credibility contest. The prosecution argued that the detailed testimony that S.S. and S.K. offered proved that they were telling the truth. Lang’s counsel argued that the girls were fantasizing and playing competitive games.
After less than one full day’s deliberations, the jury convicted Lang of three counts of lewd and lascivious act on a child under age 14 and one count of oral copulation on a child under age 14 relating to S.S.; and single counts of forcible oral copulation, forcible rape, and witness intimidation relating to S.K. (See §§ 136.1, subd. (b)(1), 261, subd. (a)(2), 288a, subd. (c)(1), (2); former § 288, subd. (a).) In the probation revocation matter, the trial court found that Lang had violated the terms of his grant of probation.
Sentencing was repeatedly continued at defense request. In August 2005, Lang moved for a new trial, citing newly discovered evidence offered to impeach the credibility of S.K. and her mother. After hearing, the trial court denied the motion for new trial. A motion for reconsideration of the new trial ruling was also denied. In January 2006, Lang again sought a continuance in order to conduct further investigation that might support another motion for new trial, but the trial court denied the request.
Lang was sentenced to a total term of 27 years to life in state prison. He was given an indeterminate term of 15 years to life for the forcible rape of S.K. and a concurrent term of 15 years to life for the first lewd act committed against S.S. (See former § 667.61, subds. (b), (e)(5).) He was also sentenced to a total determinate term of 12 years in state prison—an upper term of eight years for committing the second lewd act against S.S.; a consecutive two-year term for the oral copulation involving S.S.; and a consecutive two-year term for the forcible oral copulation of S.K. He received concurrent two-year terms for his third lewd act against S.S. and the witness intimidation conviction. The trial court also purported to sentence Lang to a concurrent two-year term based on the earlier dismissed charge of a lewd act involving S.K. Lang was given a concurrent two-year midterm for possession of a controlled substance for sale as a result of the probation revocation.
II. DIFFICULTY HEARING EVIDENCE
A. Underlying Facts
First, Lang contends that the trial court erred by permitting the jury to render a verdict after several jurors made it known that they had not heard all of S.K.’s responses to questions. He asserts that this allowed the jury to convict him based on incomplete evidence and violated his constitutional rights to a jury trial and to due process. Lang also complains that allowing jurors to base a verdict on the “gist” of her testimony reduced the prosecution’s burden of proving him guilty beyond a reasonable doubt. (See U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16.) He reasons the trial court had a sua sponte duty to take remedial measures to assure that all of S.K.’s testimony was audible after the matter was brought to its attention.
S.K. was a soft-spoken witness. At trial, she testified on direct examination for about two hours. She was about 25 minutes into her cross-examination before court adjourned for the day. Before the court session began again on the following morning, Juror No. 4 wrote to the trial court that he had trouble hearing S.K.’s testimony.
The trial court questioned Juror No. 4, who admitted that he had to lip read at times to be able to understand S.K. The trial court explained to all jurors that it was important for all of them to be able to hear the witnesses. If the jurors did not hear S.K.’s testimony, the trial court would stop the trial and have the court reporter read back the prior day’s testimony that morning. The trial court continued to question Juror No. 4 about whether he could hear what S.K. was saying. Juror No. 4 replied that he understood the gist of what the witness said during direct examination, but that he had more difficulty with this during cross-examination. The cross-examination was so difficult to hear that Juror No. 4 wrote the note he did, hoping that S.K.’s voice level could be amplified.
The trial court broadened the inquiry to the other jurors and the alternate jurors. Juror No. 3 said that he heard 90 percent of the gist of S.K.’s testimony. Sometimes, her voice would drop and he could see her lips move, but could not hear anything. Alternate Juror No. 1 reported that on two or three occasions, the end of her sentence would trail off and he could not make it out. He got the general idea well enough, he said. If the volume could be increased from then on, that would be sufficient. Alternate Juror No. 2 noted that even though the witness was soft-spoken, both the prosecution and the defense asked so many repetitive questions that he was able to get the gist of what was going on.
Juror No. 11 commented that S.K.’s voice dropped too low to hear several times, but he believed that the jurors could read the transcript if they need to do so. The trial court acknowledged that during deliberations, a readback would be available to the jurors. During the trial, the trial court repeated, it was important that everyone be able to understand the testimony. Juror No. 10 felt the same as the other jurors—he got the gist of the testimony, knowing that a readback during deliberations was possible.
After conducting this inquiry of the jurors, the trial court asked if any one of them felt it would be useful or important to have the previous day’s S.K. testimony read back at that point. No juror indicated that this was necessary. Neither the prosecution nor Lang objected to continuing trial without an immediate readback. S.K. continued with her cross-examination. When another witness seemed to speak too softly, the trial court affirmatively inquired whether the jury could hear the witness. During its deliberations, the jurors did not ask to have any part of S.K.’s testimony reread to them.
The Attorney General suggests that trial counsel’s failure to seek a mistrial or ask to have the testimony stricken or request a readback of the testimony constitutes a waiver of Lang’s right to raise this issue on appeal. However, as Lang argues that the trial court had a sua sponte duty to take one of these steps, it appears that a failure to object to the lack of action would not constitute a waiver. (See, e.g., People v. Montoya (1994) 7 Cal.4th 1027, 1047-1050 [duty to give sua sponte jury instruction arises even in absence of defendant’s request for instruction].)
B. No Sua Sponte Duty
Lang contends that the trial court’s efforts were insufficient—that instead, acting sua sponte, it should have declared a mistrial, stricken S.K.’s testimony and ordered that her examination be conducted anew, or ordered a readback of the previous day’s testimony. He reasons that the trial court’s failure to undertake one of these remedies deprive him of a fair trial. (See, e.g., People v. Butler (1975) 47 Cal.App.3d 273, 280, 284-285.) Lang acknowledges that no California case establishes that a trial court has a sua sponte duty to undertake a remedy when a witness’s testimony is partially inaudible. In some of the cases that he cites, the trial court denied a request for a remedy, typically after some juror misconduct had occurred. (See People v. Henderson (1935) 4 Cal.2d 188, 193-194 [trial court failed to make complete response to deliberating jury’s request for readback]; People v. Butler, supra, 47 Cal.App.3d at p. 279 [trial court denied deliberating jury’s request for readback]; see also Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398, 411-418 [motion for new trial].) In others, no request for any trial court action was made and no error arose from the trial court’s failure to act. (See People v. Cox (2003) 30 Cal.4th 916, 968, cert. den. sub nom. Cox v. California (2003) 540 U.S. 1051 [no jury request for readback]; People v. Bradford (1997) 15 Cal.4th 1229, 1349, cert. den. sub nom. Bradford v. California (1998) 523 U.S. 1118 [possibility of juror misconduct did not warrant trial court inquiry]; People v. West (1887) 73 Cal. 345, 347.)
The court reporter’s transcript of S.K.’s testimony reveals no evidence of any reporter’s difficulty in hearing this witness. Nothing in that transcript suggests that any lasting issue about the ability to hear S.K. arose for the trial court or counsel before the jurors brought their issue to the trial court’s attention.
Ours is not a case of juror misconduct, but of the jury’s inability to hear all of a witness’s testimony because she spoke softly. In our case, a juror—quite commendably—brought the matter to the trial court’s attention.
Clearly, none of these cases impose a sua sponte duty of the sort that Lang asks us to find. His out-of-state cases do not support his claim that the trial court had such a sua sponte duty, either. In each of the cases from other jurisdictions that Lang cites, the trial court was held to have improperly denied a request for an appropriate remedy after a juror’s inability to hear a witness became known. (See State v. Turner (Wis.App. 1994) 521 N.W.2d 148, 150 [mistrial]; Com. v. Greiner (Pa.Super. 1983) 455 A.2d 164, 166 [mistrial]; State v. Berberian (R.I. 1977) 374 A.2d 778, 779-780 [substitution of alternate juror]; Commonwealth v. Brown (Pa.Super. 1974) 332 A.2d 828, 830 [mistrial]; see also Black v. Continental Casualty Co. (Tex.Civ.App. 1928) 9 S.W.2d 743, 744 [in civil case, new trial ordered; opinion does not state whether or not new trial requested].)
We assume that a criminal defendant’s due process right to a fair trial includes the right to have all of the jurors hear material testimony in the case. (See generally Jordan v. Massachusetts (1912) 225 U.S. 167, 176; People v. Collins (1976) 17 Cal.3d 687, 692, cert. den. sub nom. Collins v. California (1977) 429 U.S. 1077, disapproved on other grounds in People v. Boyette (2002) 29 Cal.4th 381, 462 fn. 19; People v. Butler, supra, 47 Cal.App.3d at pp. 279-280; see also U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16.) We also recognize that defense counsel may have tactical reasons for not wanting certain detrimental testimony emphasized during a readback to the jury. This supports our conclusion that the decision whether a readback is appropriate in a given case is best left to defense counsel, rather than imposing on the trial court a sua sponte duty to do so regardless of defense counsel’s approval or opposition to this remedy. In the circumstances of this case, we are satisfied that the trial court’s inquiry of the jurors about the witness’s audibility, its offer to conduct an immediate readback, and the jurors’ awareness that they could seek readback later if they wished, were sufficient safeguards of Lang’s due process and fair trial rights that we need not impose a further sua sponte duty on the trial court to take other immediate action. As the trial court was under no duty to do more than it did to assure these rights were protected, this claim of error is unavailing.
III. EVIDENCE OF PRIOR ARREST
A. Facts
Next, Lang contends that testimony was improperly elicited about his prior arrest. He also argues that the prosecutor committed misconduct by failing to admonish a witness not to refer to the arrest. Reasoning that the harm from this testimony could not be cured by an admonition, he contends that the trial court abused its discretion when it denied his related motion for mistrial. Lang asserts that these errors deprived him of his right to a fair trial by an impartial jury. (See U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, §§ 7, 16.)
In January, Lang was convicted of possession of a controlled substance for sale and he was granted probation. After he was arrested in September for the sex offenses, a petition was filed seeking to revoke his probation. Before trial on the new charges, Lang obtained an in limine order precluding admission of any evidence relating to his drug conviction.
On direct examination, S.S. testified about the first telephone conversation she had with Lang. The prosecutor asked how that conversation shifted from one about Melissa to one about her. The 13-year-old witness told the jury that she and Lang spoke about relationships that had not worked out for each of them. At the end of a lengthy response, S.S. said that Lang told her that he had gotten arrested. The prosecutor tried to get S.S. to give an answer that was more responsive to his earlier inquiry, asking how it made her feel to have Lang express interest in her. S.S. replied: “I asked him why he got arrested.” A third time, the prosecutor explained that he wanted to know how it made her feel to have this man express an interest in her. Finally, S.S. responded to this query.
Lang’s trial counsel approached the bench and a discussion was held outside the hearing of the jury. Defense counsel moved for a mistrial, as S.S. had testified twice that Lang had admitted to having been arrested. He complained that this testimony, presented in violation of the trial court’s in limine order, gave the jury negative character evidence that would prejudice Lang.
The prosecutor apologized for not making it clear to S.S. that she was not to mention this subject. He noted that the testimony stated only that Lang had been arrested and did not mention the nature of the charge or the fact of a conviction. He argued that the evidence was not prejudicial. The prosecutor and the trial court both admonished S.S. not to discuss any evidence related to Lang’s drug sales. The trial court found that the prosecutor’s question was not intended to elicit S.S.’s answer. It denied the motion for mistrial. It offered to strike the testimony, but defense counsel opted not to seek this remedy. S.S. completed her testimony without further incident.
A similar admonishment was give to S.K. outside the presence of the jury in the midst of her testimony.
B. Duty to Admonish
Lang urges us to find that the prosecutor failed in his duty to admonish S.S. not to discuss his prior arrest before she was called to the witness stand. A prosecutor has a duty to guard his or her witnesses from offering testimony containing inadmissible evidence. (People v. Warren (1988) 45 Cal.3d 471, 481.) If the prosecutor believes that a witness may offer inadmissible testimony during direct examination, he or she must warn the witness to refrain from doing so. (Id. at p. 482.) To constitute a violation of the defendant’s federal constitutional rights, prosecutorial misconduct must so infect the trial with unfairness that it renders the resulting conviction a denial of due process. Prosecutorial misconduct violating state law must involve the use of deceptive or reprehensible methods in an attempt to persuade the jury. (People v. Valdez (2004) 32 Cal.4th 73, 122, cert. den. sub nom. Valdez v. California (2005) 543 U.S. 1145.)
The California Supreme Court has repeatedly held that in order to preserve an issue of prosecutorial misconduct for review on appeal, the defendant must request an admonition from the trial court. (People v. Valdez, supra, 32 Cal.4th at p. 122; People v. Cox, supra, 30 Cal.4th at p. 952; People v. Earp (1999) 20 Cal.4th 826, 858, cert. den. sub nom. Earp v. California (2000) 529 U.S. 1005; see People v. Sapp (2003) 31 Cal.4th 240, 279, cert. den. sub nom. Sapp v. California (2004) 541 U.S. 1011.) This requirement allows the trial court an opportunity to correct any error. (People v. Cox, supra, 30 Cal.4th at p. 952.) If the defense fails to do so, the right to appeal the issue is waived. (People v. Earp, supra, 20 Cal.4th at pp. 858-859 .) In this matter, Lang objected to the evidence, but declined the trial court’s offer to strike the challenged testimony and, by implication, to admonish the jury not to consider it.
In these circumstances, we may review the merits of a claim of prosecutorial misconduct only if an admonition would not have cured the harm caused by the alleged misconduct. (People v. Valdez, supra, 32 Cal.4th at p. 122.) We are satisfied that S.S.’s brief, vague, unelicited reference to Lang’s arrest for an unspecified offense was not so extreme or inherently prejudicial that a timely admonishment could not have cured the error. (See id. at p. 123; People v. Dennis (1998) 17 Cal.4th 468, 521, cert. den. sub nom. Dennis v. California (1998) 525 U.S. 912; People v. Jennings (1991) 53 Cal.3d 334, 373, 380, cert. den. sub nom. Jennings v. California (1991) 502 U.S. 969 [nonresponsive answer].)
C. Violation of In Limine Order
Lang also argues that the prosecutor committed misconduct by eliciting testimony in violation of a court order. As with his other claim of prosecutorial misconduct based on S.S.’s testimony, Lang did not preserve this issue for appeal by requesting an admonition that would have cured any error. (See pt. III.B., ante.) Even if he were able to overcome this obstacle to our review, we would find no prosecutorial misconduct occurred on this ground.
While a claim of prosecutorial misconduct does not require a showing of bad faith, a prosecutor engages in misconduct if he or she intentionally elicits inadmissible testimony. (People v. Valdez, supra, 32 Cal.4th at p. 125; People v. Crew (2003) 31 Cal.4th 822, 839, cert. den. sub nom. Crew v. California (2004) 541 U.S. 991; People v. Cox, supra, 30 Cal.4th at p. 952; People v. Hill (1998) 17 Cal.4th 800, 822-823.) S.S.’s testimony about Lang’s arrest was inadmissible under the terms of the trial court’s in limine order. However, as the trial court found, the prosecutor did not elicit this testimony. The record on appeal satisfies us that this finding was correct and that the prosecutor could not have anticipated the nonresponsive reply that S.S. gave to the question that he asked. As we find that the prosecutor did not elicit any inadmissible evidence, we conclude that he cannot be found to have intentionally violated the in limine order. (See People v. Valdez, supra, 32 Cal.4th at p. 125.)
D. Mistrial
Lang also contends that the trial court erred by denying his motion for mistrial. A motion for mistrial is addressed to the sound discretion of the trial court. The court must grant the motion if it is apprised of prejudice that is incurable by admonition or instruction. Whether any prejudice is incurable is a question on which the trial court has considerable discretion. (People v. Cox, supra, 30 Cal.4th at p. 953; People v. Jenkins (2000) 22 Cal.4th 900, 985-986, cert. den. sub nom. Jenkins v. California (2001) 531 U.S. 1155; People v. Harris (1994) 22 Cal.App.4th 1575, 1581.) On appeal, we review the denial of a motion for mistrial for an abuse of that discretion. (People v. Cox, supra, 30 Cal.4th at p. 953.)
We have already concluded that Lang may not raise his prosecutorial misconduct claim relating to S.S.’s improper testimony because an admonition would have cured the admission of that evidence. (See pt. III.B., ante.) As we find that this error could have been cured by admonition, we necessarily conclude that the trial court acted within its discretion when denying the motion for mistrial. (See, e.g., People v. Cox, supra, 30 Cal.4th at p. 953.)
IV. SUPPORT PERSON
Third, Lang contends that the trial court erred when it allowed S.K.’s mother, another prosecution witness, to remain in court as a support person for S.S. without a statutorily required showing that S.S. either needed or desired her presence. He argues that the lack of evidence of any need or desire upset the statutory balance between S.S.’s right to support and his own rights to due process and confrontation. (See U.S. Const., 6th & 14th Amends.; § 868.5.)
S.K.’s mother was the first witness for the prosecution. (See § 868.5, subd. (c).) When she finished her testimony, the prosecutor asked that she be allowed to remain in the courtroom as a support person for S.S. He waived his right to recall the woman as a witness. Lang’s counsel objected that the presence of S.K.’s mother on the ground that it would pose a substantial risk of influencing or affecting the content of S.S.’s testimony. (See § 868.5, subd. (b).) Over defense objection, the trial court granted the request and permitted S.K.’s mother to remain in the courtroom during S.S.’s testimony.
During a sex offense case, a prosecuting witness is entitled to the attendance of a support person of his or her choosing, even if that person is also a witness. (§ 868.5, subd. (a).) If the support person is also a prosecuting witness, the prosecution must present evidence that the support person’s attendance is both desired by and helpful to the prosecuting witness. Once that showing has been made, the trial court must grant the request for the support person’s attendance unless the defendant presents information establishing that the support person’s attendance would pose a substantial risk of influencing or affecting the content of the prosecuting witness’s testimony. (§ 868.5, subd. (b).)
On appeal, Lang contends that the prosecution did not make any showing that S.S. needed or desired the presence of S.K.’s mother as a support person. However, his counsel did not object to her presence on that ground in the trial court. (See People v. Lord (1994) 30 Cal.App.4th 1718, 1722.) Instead, his argument assumed that this showing had already been made to his satisfaction. Requiring a defendant to make a specific objection to the lack of foundational facts allows the trial court an opportunity to consider whether statutory requirements have been met. It also alerts the prosecutor to the need to lay a foundation for the support person’s presence and thus, to minimize the prospect of reversal. (See People v. Morris (1991) 53 Cal.3d 152, 187-188, cert. den. sub nom. Morris v. California (1991) 502 U.S. 959, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830 fn. 1.) As Lang did not request evidence of need and desire, he has waived his right to raise that issue on appeal. (See People v. Lord, supra, 30 Cal.App.4th at p. 1722.)
V. JURY INSTRUCTIONS
A. Witnesses’ Criminal Conduct
Next, Lang argues the trial court committed numerous instructional errors that had the effect of preventing the jury from accurately assessing the complaining witnesses’ credibility and of reducing the prosecution’s burden of proving him guilty beyond a reasonable doubt. He contends that because these errors deprived him of his rights to due process and to a fair trial, reversal is warranted. (See U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.)
In his first claim of instructional error, Lang complains that the trial court failed to specifically instruct the jury that the girls’ shoplifting was relevant to their credibility when it listed those facts that the jury could consider to assess the believability of witnesses. (See CALJIC No. 2.20.) The trial court instructed the jury about its responsibility to assess the believability of each witness who testified and the weight to be given to his or her testimony. When citing a list of criteria that the jury could consider when making these assessments, it did not cite their past criminal conduct amounting to a misdemeanor. (See ibid.)
Shoplifting—or petty theft—is a misdemeanor. (See §§ 484, subd. (a), 488, 490.) S.K.’s mother testified that S.S. and S.K. had twice been guilty of shoplifting. S.S. also admitted during her testimony that she had stolen something from a store. The California Supreme Court has ruled that the trial court should give the substance of CALJIC No. 2.20 in every criminal case, although it may omit cited factors that are inapplicable in the circumstances of the particular case being tried. (People v. Horning (2004) 34 Cal.4th 871, 910, cert. den. sub nom. Horning v. California (2005) 546 U.S. 829; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883-884.)
Assuming arguendo that the trial court erred by failing to cite the specific circumstance of prior misdemeanor conduct when giving CALJIC No. 2.20, we would find that error harmless. Before citing a nonexclusive list of specific examples of evidence bearing on witness credibility, the trial court advised the jury that it could consider any evidence that had any tendency in reason to prove or disprove the truthfulness of any witness’s testimony. There was nothing that precluded the jury from considering the misdemeanor misconduct. During closing argument, Lang’s counsel reminded the jury of the evidence that S.S. and S.K. had been guilty of shoplifting when he challenged their credibility. Under these circumstances, we are satisfied that the failure to list misdemeanor misconduct as a specific criterion when citing the CALJIC No. 2.20 factors was not prejudicial.
B. Bolstering Credibility
Next, Lang argues that the trial court erroneously included in its CALJIC No. 2.24 instruction inapplicable language tending to bolster S.K.’s credibility. In this matter, the jury was instructed that evidence of a witness’s character for honesty or truthfulness could be considered when determining the believability of the witness. Optional language in the standard jury instruction was also given: “If the evidence establishes that a witness’s character for honesty or truthfulness has not been discussed among those who know him or her, you may infer from the absence of discussion that the witness’s character for those traits is good.” (CALJIC No. 2.24.) Noting this specific instruction in the first part of closing argument, the prosecution acknowledged that S.S.’s character for honesty and truthfulness had been attacked, but recollected that S.K.’s reputation had not been so challenged.
Lang’s counsel had an opportunity to rebut this argument in his own closing argument made after this part of the prosecution’s closing argument.
On appeal, Lang contends that the trial court’s inclusion of the optional language in CALJIC No. 2.24, when combined with the prosecution’s closing argument, tended to bolster S.K.’s credibility in an inappropriate manner. We disagree. If there was affirmative evidence establishing that S.K.’s character for honesty or truthfulness had not been discussed among those who knew her, then the trial court did not err in giving this jury instruction including the optional language.
If there was no evidence of S.K.’s reputation for honesty or truthfulness, then the optional language should not have been given. The trial court errs by giving abstract jury instructions that are legally correct but factually irrelevant, particularly if the instruction may confuse the jury. (People v. Rowland (1992) 4 Cal.4th 238, 282, cert. den. sub nom. Rowland v. California (1993) 510 U.S. 846; People v. Saddler (1979) 24 Cal.3d 671, 681.) However, in this case, we are satisfied that no confusion or other prejudice flowed from this error. (See People v. Saddler, supra, 24 Cal.3d at pp. 683-684.) If evidence had been presented establishing that her character for honesty or truthfulness had been discussed, then the predicate was not satisfied and the jury would not have drawn the inference that the optional language would have otherwise permitted. If there was no affirmative evidence establishing a reputation either for or against S.K.’s character for honesty or truthfulness, then the challenged language was surplusage and the jury also had no basis for drawing any inference adverse to Lang.
The jury was advised that it should disregard any jury instruction predicated on factual findings that it concluded did not exist. (See CALJIC No. 17.31; see also People v. Saddler, supra, 24 Cal.3d at p. 684.) In either situation, no prejudice could have flowed from the challenged language. If the error occurred, it was a technical one that does not constitute grounds for reversal—at least not without some reasonable showing that the instruction might have actually misled the jury. (See, e.g., People v. Rowland, supra, 4 Cal.4th at p. 282.) As the challenged language does not appear to have misled the jury, we find any CALJIC No. 2.24 error to be harmless.
C. Audience Response Evidence
Third, Lang criticizes the trial court for permitting one juror to consider irrelevant and prejudicial extra-record evidence—the audience response to the girls’ testimony. During a break in S.S.’s testimony, a juror spoke with the trial court outside the presence of the other members of the jury. Juror No. 1 expressed some discomfort about the manner in which the witness was interacting with members of the public in the audience. The juror asked if the audience could be excluded so that the jurors could hear an unbiased answer from S.S. The trial court explained that the trial was a public proceeding such that removal of the audience was not proper. It indicated that the prosecutor should speak to the offending audience members to eliminate the potential for distraction. Juror No. 1 again stated a concern about “not getting answers” from S.S. because of audience interaction with her. The trial court noted that part of the juror’s role was to watch and listen to the proceedings in the courtroom, adding “we’ll have to leave that to you.”
The juror believed that S.S. was communicating with someone in the audience, which seemed odd to the juror. After Juror No. 1 left the courtroom, the bailiff noted that S.S. was smiling back and forth at a young person in the audience, but that no inappropriate communication appeared to be occurring. She specifically stated that she did not believe that the communication related to the content of S.S.’s testimony. Lang’s counsel opined that the bailiff’s views were speculative and should be disregarded. The trial court noted that no one appeared to it to be influencing S.S.’s testimony, particularly noting that S.K.’s mother had done nothing more than sit and listen.
On appeal, Lang contends that the trial court’s comment made during this exchange—that “we’ll have to leave that to you”—would reasonably have been understood by Juror No. 1 to mean that it was part of the juror’s task to observe and consider courtroom events that were not in evidence. He reasons that by instructing the jury to consider evidence outside the record, the trial court violated his due process right to be tried by an impartial jury free of outside influence. (See Sheppard v. Maxwell (1966) 384 U.S. 333, 362.) Lang also complains that the prosecutor repeatedly brought audience members to the jury’s attention.
We reject Lang’s interpretation that the comment permitted the juror to consider the courtroom audience’s support of S.S. as evidence relevant to his guilt. In our view, there is no reasonable likelihood that that Juror No. 1 interpreted the trial court’s comment in this manner. Instead, we think it most likely would have been interpreted as focusing the juror’s attention on the demeanor of the witness—S.S. The juror’s concern was about whether audience members were distracting the witness and affecting the content of her answers. Thus, the focus of inquiry and the trial court’s response to it was on S.S., not the audience.
Our interpretation of this comment to a single juror is consistent with the formal jury instructions given to the entire jury. The jurors were told to determine the facts of the case based on evidence received at trial and not from any other source. They were specifically advised not to be influenced by public opinion or public feeling. (See CALJIC Nos. 1.00, 1.03.) Evidence was defined as witness testimony, writings, objects, or anything presented to the senses and offered to prove the existence or nonexistence of a fact. (See CALJIC No. 2.00.) They were advised of factors that could be considered when jurors determine the credibility of a witness’s testimony. All of those factors related to the witness, not the effect that the witness’s testimony had on anyone other than the jurors themselves. Specifically, the demeanor of the witness was cited as a relevant factor, but not the demeanor of those observing the witness from the audience. (See CALJIC No. 2.20.)
We presume that the jurors were reasonable and that they followed these instructions. (See Francis v. Franklin (1985) 471 U.S. 307, 324-325 fn. 9; People v. Harris (1994) 9 Cal.4th 407, 426, cert. den. sub nom. Harris v. California (1995) 515 U.S. 1123.) As Lang’s claim of error runs counter to this presumption and is an unreasonable interpretation of the trial court’s comment, we reject it.
D. Common Sense and Life Experience
In his final complaint about the instructions, Lang contends that the trial court instructed a single juror to disregard holes in the state’s case. Outside the presence of the other jurors, Juror No. 12 expressed some frustration about the case because “I’m not getting any sense of anything here.” The trial court advised the juror to listen to the entire case and the instructions that were yet to come before reaching any conclusion. It cautioned against reaching a decision about guilt or innocence too early in the case. The trial court opined that in most cases, jurors might have preferred if some other evidence was offered, but that “in life, . . .we get what we can.” He noted that the task might be difficult, but encouraged her to make her “best considered judgment using [her] common sense and life’s experiences” as a guide.
The juror recounted a concern that she might not be decisive enough to determine which witnesses were believable and which were not. The trial court asked the juror to try to make this determination later, when the case was submitted for decision, but asked her to advise it if she was unable to perform this responsibility during deliberations. Juror No. 12 knew that an alternate could be appointed to fill her position if she were excused. She agreed to remain on the jury.
On appeal, Lang focuses on the trial court’s comments that jurors often want evidence that is not presented at trial, that “we get what we can” and that Juror No. 12 should use common sense and life experience to make her best judgment about matters that are not as clearly resolved as jurors might prefer. He argues that the trial court’s comments invited the jury to overlook weaknesses in the prosecution’s case, thus fundamentally misleading Juror No. 12 about how to assess the evidence in the case and the standard of proof that applied. He criticizes the trial court for abandoning its neutral role in the trial. He reasons that these comments effectively lightened the prosecutor’s burden of proof in violation of his constitutional rights to due process and jury trial. (See U.S. Const., 6th & 14th Amends.)
Having considered the trial court’s comments in context, we do not find that they are reasonably susceptible to the interpretation that Lang makes of them. Juror No. 12 was concerned how she would decide which witnesses were truthful and which were not. The trial court’s comments stated—in a general and neutral manner—that even if a person does not always have all the evidence he or she would like, one makes decisions based on the evidence provided, while applying our common sense and our experience of life. These comments were proper. (See People v. Marshall (1990) 50 Cal.3d 907, 950, cert. den. sub nom. Marshall v. California (1991) 498 U.S. 1110 [jurors bring human experience to their task].) The trial court did not invite the juror to “fill in the holes” in the prosecution’s case or to lighten the People’s burden of proof. It merely advised the juror that she might be called on to make reasonable deductions from the evidence that was presented.
Again, our view of the trial court’s comment is consistent with the jury instructions given to all members of the jury before deliberations began. The jury was charged that the People bore the burden of proving Lang guilty beyond a reasonable doubt. (See CALJIC No. 2.90.) It was told that neither side was required to call all potential witnesses or to put on all possible evidence. (See CALJIC No. 2.11.) We presume that the jurors were reasonable people who followed the instructions given. (See Francis v. Franklin, supra, 471 U.S. at pp. 324-325 fn. 9; People v. Harris, supra, 9 Cal.4th at p. 426.) As we find that Lang’s interpretation of the comment’s effect is an unreasonable one and the instructions given later to the entire jury admonished them that the People had the burden of proof, we find this claim of error to be meritless.
VI. CLOSING ARGUMENT
Lang also contends that the prosecutor committed repeated misconduct during closing argument. He complains that the prosecutor improperly vouched for his guilt, implied that he exercised his right to trial because he was guilty, argued facts that were outside the record, and bolstered the complaining witness’s testimony. He reasons that this argument constituted prosecutorial misconduct that violated his federal constitutional rights to due process and a fair trial. (See U.S. Const., 5th, 6th & 14th Amends.)
At trial, Lang’s defense counsel raised no objection to any of these claimed instances of prosecutorial misconduct. On appeal, the People contend that the lack of a trial objection forfeited Lang’s right to assert these claimed errors on appeal. Generally, a defendant may not complain of prosecutorial misconduct arising at trial unless a specific, timely assignment of misconduct was made in the trial court. (People v. McDermott (2002) 28 Cal.4th 946, 1001, cert. den. sub nom. McDermott v. California (2003) 538 U.S. 1014; People v. Clair (1992) 2 Cal.4th 629, 662, cert. den. sub nom. Clair v. California (1993) 506 U.S. 1063.)
An exception to this general rule may apply if the harm claimed could not have been cured by admonition. (People v. Clair, supra, 2 Cal.4th at p. 662; see People v. Jones (1998) 17 Cal.4th 279, 308-309, cert. den. sub nom. Jones v. California (1998) 525 U.S. 932 [comparing defendant to terrorist is prosecutorial misconduct that could have been cured].) Lang cites this exception, suggesting that it might apply to at least some of the claimed instances of prosecutorial misconduct. We see no reason why a prompt objection and admonition could not have cured the harm that Lang claims resulted from this argument. (See, e.g., People v. Lucas (1995) 12 Cal.4th 415, 473, cert. den. sub nom. Lucas v. California (1996) 519 U.S. 838; see also People v. McDermott, supra, 28 Cal.4th at p. 1001.)
We also reject Lang’s ineffective assistance of counsel claim grounded in trial counsel’s failure to object to the alleged inappropriate argument. (See Strickland v. Washington (1984) 466 U.S. 668, 686.) As the record on appeal does not show the reasons for trial counsel’s failure to object, this claim is better made in a petition for writ of habeas corpus. (People v. McDermott, supra, 28 Cal.4th at p. 1002.) We decline to address it on appeal.
VII. CUMMULATIVE ERROR
Lang reasons that the errors that arose at trial deprived him of an opportunity to demonstrate to the jury that there was a reasonable doubt about his guilt. We disagree. Even when viewed together, the errors committed in the trial court—which were few in number and minimal in significance—could not have resulted in a miscarriage of justice. (See People v. Ashmus (1991) 54 Cal.3d 932, 1006, cert. den. sub nom. Ashmus v. California (1992) 506 U.S. 841, disapproved on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117-118, cert. den. sub nom. Yeoman v. California (2004) 541 U.S. 991.)
VIII. MOTION FOR NEW TRIAL
A. Facts
Lang also argues that the trial court erred by denying his motion for new trial based on a claim of newly discovered evidence. He contends that testimony from a third party that S.K. made a false accusation of sexual molestation and from S.K.’s mother that her daughter often lied warranted a new trial.
In his motion for new trial based on newly discovered evidence, Lang argued that S.K. had made a prior false sexual assault charge against a third party, Christopher Day. This charge resulted in the revocation of Day’s parole. According to Day, S.K.’s mother testified at his parole revocation hearing that her daughter often lied. Lang argued that this evidence undermined the credibility of both S.K. and her mother. He offered Day’s declaration in support of this motion, in which Day stated that at the time that the charges were made, he told police that he had done nothing inappropriate toward S.K. A copy of the report that S.K. made to police in 2000 also supported the new trial motion.
The trial court conducted a hearing on the motion for new trial. At that hearing, Day testified that in August 2000, he occasionally allowed S.K. to stay overnight at his house with his own children at the request of S.K.’s mother. After one such night, he learned that the police received a report from S.K.’s mother that the girl had accused him of touching her or doing something sexual to her. Day was on parole at the time. No new charges were filed, but a parole revocation hearing was conducted based on these allegations. Day testified that at the parole revocation hearing, S.K.’s mother testified that she was uncertain whether or not to believe her child, because S.K. sometimes lied to get her way. Day was not specifically asked to deny S.K.’s allegation at the new trial hearing, but he referred to the allegation of sexual misconduct as “what I had supposedly done.”
Day admitted a prior felony conviction for cultivation of marijuana for which he served a three-year term in state prison. He also admitted a prior conviction for felony driving under the influence, although he was not imprisoned for that offense. In 2003, Day had also been convicted of threatening to injure or kill someone. (See § 422.)
At the new trial hearing, S.K.’s mother also testified. She said that in August 2000, 10-year-old S.K. told her that while she spent the night at Day’s home, he put on a pornographic videotape and was naked before her under a sheet or blanket. The mother reported the incident to police. No charges were filed against him, but S.K.’s mother testified at Day’s parole revocation hearing. The mother did not recall if she expressed any opinion about S.K.’s honesty when she testified at the parole revocation hearing. At the hearing on the motion for new trial, S.K. was not called to testify, nor was a transcript of the parole revocation hearing offered to the trial court.
The trial court denied the motion for new trial. In a written ruling, it observed that Day’s credibility was subject to “significant impeachment” and found that the competency and strength of the new evidence that Lang offered was not so great that a different result was probable on retrial. Lang’s November 2005 motion for reconsideration of the new trial ruling—based on his assumption that the trial court’s initial ruling failed to consider evidence that S.K.’s mother believed that the child often lied—was also denied.
B. Discussion
A criminal defendant may move for a new trial on the basis of newly discovered evidence. (§ 1181, subd. 8.) When a trial court considers a motion for new trial based on newly discovered evidence, it considers whether or not the evidence (1) is newly discovered; (2) is cumulative; (3) is such that the proponent of the evidence could not with reasonable diligence have discovered and produced it at trial; (4) is based on facts shown by the best evidence of which the case admits; and (5) is such that it might render a different result probable on retrial of the case. (People v. Delgado (1993) 5 Cal.4th 312, 328.) We consider the same factors when we consider an appeal challenging an order denying a motion for new trial based on newly discovered evidence. (People v. Martinez (1984) 36 Cal.3d 816, 821.) In its ruling, the trial court found that the first three criteria were met. We concur with these uncontested findings.
The trial court also concluded that it “appear[ed]” that Lang had produced the best available evidence. We find it difficult to uphold this finding with regard to either aspect of the newly discovered evidence. On the evidence of a claim of sexual abuse made by S.K. against Day, the police report offered by Lang was better evidence than the later recollections of Day or S.K.’s mother about what they said at the parole revocation hearing, but S.K.’s own testimony at the new trial hearing, an affidavit from Day, or the transcript of the evidence offered at the parole revocation hearing—evidence deemed sufficiently credible to warrant revocation of Day’s parole—would have been better still. There was no suggestion that this transcript was not available.
Day’s testimony about what S.K.’s mother testified to at the parole revocation hearing was clearly hearsay. Again, the best evidence of this newly discovered information regarding her belief that her daughter often lied would have been a transcript of that hearing. Lang did not provide this transcript, nor did he offer any explanation why it was not available. We find the lack of the best available evidence particularly troubling in this regard, because Day’s version of what S.K.’s mother said differed from her own recollection of her earlier testimony.
Even if we concluded—as the trial court apparently did—that the evidence offered by Lang was the best available evidence, he must still overcome the adverse finding that the trial court found dispositive against him. It found that both aspects of the newly discovered evidence lacked sufficient strength to indicate that a different result was probable in a retrial that included the presentation of this evidence. (See 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment, § 94, pp. 126-127.) It made this ruling, as it was required to do, on the basis of an objective standard. (People v. Huskins (1966) 245 Cal.App.2d 859, 862; see 6 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Judgment, § 94, pp. 126-127.) It found that the evidence would pose a credibility contest between S.K. or her mother on one side, and Day on the other. The trial court noted that Day’s testimony was subject to significant impeachment. Although the trial court did not expressly state this, we construe the ruling to constitute a finding that Day’s testimony and declaration were not sufficiently credible to warrant a new trial.
Lang’s claim of error assumes that the trial court found Day’s testimony that S.K. made a false accusation against him and that her mother had accused her of lying was credible. We are satisfied that the trial court rejected Day’s evidence as lacking credibility. When evaluating a motion for new trial, a trial court is entitled to weigh the credibility of the new evidence when determining whether its introduction would render a different outcome on retrial reasonably probable. (People v. Delgado, supra, 5 Cal.4th at p. 329; People v. Beyea (1974) 38 Cal.App.3d 176, 202.) Typically, the trial court is the best judge of this issue. (People v. Cooper (1979) 95 Cal.App.3d 844, 852.)
As such, once the trial court has exercised its discretion and denied a motion for new trial based on a claim of newly discovered evidence, we will not disturb its decision unless we find that the trial court abused that discretion. (People v. Martinez, supra, 36 Cal.3d at p. 821; see People v. Cooper, supra, 95 Cal.App.3d at p. 852.) When making this determination, we judge each case on its own facts, applying an objective standard. (People v. Turner (1994) 8 Cal.4th 137, 212, cert. den. sub nom. Turner v. California (1995) 514 U.S. 1068, disapproved on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555 fn. 5; People v. Huskins, supra, 245 Cal.App.2d at p. 862.) Lang’s proffered evidence was weak and his primary witness lacked credibility. Considering all the relevant factors, we find that the trial court did not abuse its discretion in denying Lang’s motion for new trial based on two claims of newly discovered evidence.
XI. SENTENCE
Finally, Lang contends that the trial court erred by sentencing him as if he had been convicted of committing a lewd act with S.K. In fact, the trial court dismissed this charge before the remainder of the case was submitted to the jury for determination. On appeal, Lang argues that the two-year concurrent term that he received for this charge was unauthorized and must be vacated. The People concede that this concurrent term must be set aside.
We agree. The trial court dismissed this charge because the prosecution could not prove that Lang was more than 10 years older than S.K., which was a necessary element of the charged offense. (See § 288, subd. (c)(1).) The jury did not return a verdict on this charge. The minutes and the probation report stated in error that Lang had been convicted of this offense. The trial court sentenced Lang to a concurrent two-year term as if he had been convicted of this offense. As this sentence was unauthorized, this aspect of the sentence must be reversed. On remand, the trial court shall modify the abstract of judgment to delete any reference to this purported conviction and to the invalid two-year concurrent term associated with it.
Lang was born in June 1980; S.K. was born in March 1990.
As the Attorney General points out, the abstract of judgment does not accurately reflect the sentences imposed for counts four and seven, the oral copulation of S.S. and the forcible oral copulation of S.K. The trial court’s oral pronouncement and the clerk’s minute order state that the sentence for count four—the oral copulation of S.S.—was a two-year consecutive term that was one-third the midterm of six years. The abstract of judgment sets out a sentence of two years as a full consecutive term. Similarly, the sentence actually imposed for count seven—the forcible oral copulation of S.K.—was a two-year consecutive term as one-third of the midterm, rather than a two-year full consecutive term as shown on the abstract of judgment. As part of our remand of this matter for a corrected abstract of judgment on count five, we also order that that corrected abstract of judgment reflect the correct sentences as pronounced for counts four and seven, as well.
The conviction and sentence on count five—the lewd act committed against S.K.—is reversed. The matter is remanded to the trial court for a corrected abstract of judgment that is consistent with this decision. In all other respects, the judgment is affirmed.
We concur: Sepulveda, J. Rivera, J.
In his brief, Lang casts doubt on his accuser’s credibility by asserting that S.K. said at the CAST interview that she met him on the same day that the assault occurred. However, our reading of the cited reference in context suggests that S.K. was referring to the date on which the assault took place, not the date on which she first met Lang.