Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F06143
ROBIE, J.
A jury found defendants Kevin Lewis and Joseph Snowden guilty of kidnapping, robbery, forcible rape in concert (six counts), and forcible oral copulation in concert. The jury found not true allegations the offenses were committed on behalf of a gang. Lewis was sentenced to an indeterminate term of 25 years to life in prison and a determinate term of 47 years in prison. Snowden was sentenced to an indeterminate term of 50 years to life in prison and a determinate term of 104 years in prison.
On appeal, defendants raise contentions relating to their speedy trial rights, jury selection, evidence, prosecutorial misconduct, jury instructions, and sentencing. They join in each others’ contentions to the extent they benefit them. Finding no merit in these contentions, we affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of July 9, 2005, T. L. was working as a prostitute in the area of Stockton Boulevard and Mack Road in Sacramento. She was approached by a car driven by Christopher Carr with passengers Snowden, Peter Douet, and Lewis.
Carr, Snowden, Douet, and Lewis were codefendants at trial. Only Snowden and Lewis are parties to this appeal.
Snowden got out the car and came toward T. L. She tried to run away, but Snowden grabbed her by the hair, pulled her into the backseat of the car, and slapped her a couple of times. Lewis took her purse, and Snowden reached into her bra and removed approximately $120. A couple of them said “they were going to fuck the shit out of [her]” and added, “[t]his is Piru, Bitch.” T. L. knew “Piru” was a “Blood gang.” They drove her to a Quality Inn motel in Rancho Cordova that was about 15 to 20 minutes away. Snowden covered her eyes “pretty much” the entire time.
When they reached the motel, Snowden kept his hands over T. L.’s eyes, and he and Lewis “put [her] in the elevator.” They forced her into room 425, as they were calling each other “Blood” or “Piru.” T. L. was “pleading with them... to let [her] go.” Snowden and Lewis told her to take her clothes off, and when she refused, Lewis “grabbed [her],” slapped her face, and made her take off her nylons.
Carr “forced [her] in the restroom,” and then raped her “doggy style” while she was holding the toilet and he was behind her. He then “forced her to change positions” and get on the bathroom counter, where he “pushed his penis into her vagina.” He eventually was able to ejaculate. For part of the encounter, he wore a condom.
Lewis came in the bathroom next and told T. L. “just let us do what we got to do.” “He made [her] lay on the floor” and “raped [her] on her back.” He then raped her on the sink. He also eventually was able to ejaculate.
Snowden then told T. L. to come out of the bathroom and into the bedroom. He “forced her initially to give him a blow job.” He then made her have sex with him while she was lying on her back on the bed. He also made her have sex with him “doggy style.” Eventually, he ejaculated in her mouth. For part of the encounter, he wore a condom.
By then, T. L. and Snowden were the only two left in room 425. After Snowden finished raping T. L., he fell asleep, and she sneaked out of the room.
T. L. went to the front desk and asked the motel’s desk clerk Nancy Ramirez to call police because she had “just been raped.” T. L. was agitated and “very nervous,” and she told Ramirez to “hurry up” because they were still after her and there was “still somebody up there.”
Sacramento County Sheriff Deputy Anthony Turnbull arrived in the motel lobby shortly thereafter. T. L. was “very angry,” and he tried to “settle her down.” She had redness and swelling around her eye and redness on her cheek. He spoke to her and then got keys for rooms 425 and 423.
In room 425, sheriff deputies found condoms and Lewis’s latent left palm print on the bathroom tub. In room 423, they found Lewis and Snowden.
During an infield showup, T. L. identified Lewis and Snowden as two of the rapists.
Lewis told deputies he was the one who rented the rooms, but he knew nothing about a sexual assault, had not been with a prostitute that night, and did not recognize T. L.
Snowden told deputies he thought something had happened at the motel, but did not know what, and he had not been in room 425 that night. He had not had sex that night and had never picked up a prostitute.
After the infield showups, T. L. was taken to UC Davis Medical Center for an evidentiary examination. DNA samples taken from T. L.’s body were linked to Carr, Lewis, and Snowden. Nurse Liz Tilden from the sexual assault response team interviewed T. L. Nurse Tilden died in February 2007, so nurse practitioner Leslie Schmidt, who was familiar with Tilden’s work, testified as to the contents of Tilden’s examination form regarding T. L. T. L. was “‘cooperative, with exam[,] quiet.’” T. L. admitted vaginal intercourse in the last five days but no “oral contact” within the last 24 hours. Her vaginal area was red and tender. The examination findings were consistent with both the “alleged sexual assault” and with consensual intercourse.
According to the policy of the district attorney, nurses who conduct these sexual assault examinations are trained to begin a new page if they must change an answer on the form and discard any documentation where they had “change[d] the responses.” The intent was to “avoid any cross-outs... because when you go back to review these, years later..., and you see two answers and one’s crossed out, you don’t know if the patient decided that her answer was inaccurate and wanted you to change it or if you had written down the wrong thing.” The nurses “document what the patient feels is the most accurate as far as reporting.” They were not “here to judge, [or] to make decisions.” Schmidt did not know whether T. L. changed any of her answers during the interview and if she had, whether Tilden discarded the pages on which those initial answers appeared.
Deputy Turnbull was the prosecution’s gang expert. In his opinion, the current crimes were committed for the benefit of the East Side Pirus. The crimes gave the gang “[n]otoriety” because it “g[ot] their name out there.” The crimes also gained the gang respect “through intimidation and fear and through violence.”
DISCUSSION
I
Lewis Was Not Denied His Right To A Speedy Trial
Lewis contends he was denied his right to a speedy trial because his trial took place one and one-half years after he was arraigned. Lewis’s argument fails because he was not prejudiced by the delay.
“The right to a speedy trial is a fundamental right... guaranteed by the state and federal Constitutions.” (Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 776, citing Cal. Const., art. I, § 15; U.S. Const., 6th Amend.) The United States Supreme Court has set forth the following four criteria by which the right to a speedy trial is to be judged: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” (Barker v. Wingo (1972) 407 U.S. 514, 530 [33 L.Ed.2d 101, 117] (Barker).)
The title of Lewis’s argument asserts a deprivation of his federal and state constitutional rights to a speedy trial and his state statutory right to a speedy trial. In his argument, however, he simply recites the pertinent state constitutional provision and state statutory provisions that encompass the speedy trial right and focuses his argument on the four Barker factors. As he has developed no argument about his speedy trial rights under the state Constitution or California statutes, we limit our discussion to Lewis’s federal speedy trial right claim.
The first factor -- length of delay -- serves as a triggering mechanism. (Barker, supra, 407 U.S. at p. 530 [33 L.Ed.2d at p. 117].) Generally a postaccusation delay is considered “‘presumptively prejudicial’” when it approaches one year. (Doggett v. United States (1992) 505 U.S. 647, 652, fn. 1 [120 L.Ed.2d 520, 528, fn. 1].) Here, Lewis was arraigned on January 4, 2006, and trial began on September 4, 2007. It was therefore a year and one-half between Lewis’s arraignment on the information and his trial, so the delay necessitates “inquiry into the other factors that go into the balance.” (Barker, supra, 407 U.S. at p. 530 [33 L.Ed.2d at p. 117].)
The second factor -- reason for the delay -- requires “different weights [to] be assigned to different reasons.” (Barker, supra, 407 U.S. at p. 531 [33 L.Ed.2d at p. 117].) “A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily.... Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.” (Ibid., fn. omitted.)
Here, the People did not request any continuances. Rather, the continuances were requested by defense attorneys (other than Lewis’s) for failure to complete the “DNA work,” multiple ongoing trials, and the serious illness of one of the defense attorneys that necessitated bed rest. The court noted there were “a total of eight lawyers involved in this case” and it was trying to coordinate all of those schedules. The People’s position was defendants “need[ed] to be tried jointly as a matter of convenience, the witnesses and presentation of evidence,” and the victim would be caused “extreme hardship” and “prejudice” to be “subjected to being on the stand twice.” In a trial such as this one, involving numerous charges, defendants, witnesses, and lawyers, these were valid reasons for delaying the trial. (U.S. v. Vega Molina (1st Cir. 2005) 407 F.3d 511, 532-533.)
The third factor -- the defendant’s assertion of his right -- weighs in Lewis’s favor. (Barker, supra, 407 U.S. at pp. 531-532 [33 L.Ed.2d at pp. 117-118].) Lewis repeatedly asserted his right to a speedy trial and refused to enter time waivers.
The final factor -- prejudice to the defendant -- is to be assessed in light of the interests a speedy trial was designed to protect: preventing “oppressive” pretrial incarceration, minimizing “anxiety and concern of the accused,” and “limit[ing] the possibility that the defense will be impaired.” (Barker, supra, 407 U.S. at p. 532 [33 L.Ed.2d at p. 118].) The last interest is the most serious. (Ibid.)
Here, there is no evidence Lewis was subject to “oppressive” pretrial incarceration or he was anxious or concerned other than the fact he repeatedly objected to further continuances. Most importantly, there was no evidence Lewis’s defense was impaired by the delay in bringing this case to trial. None of his witnesses died or disappeared before trial (Barker, supra, 407 U.S. at p. 532 [33 L.Ed.2d at p. 118]) and there was no demonstrated loss of exculpatory evidence.
In attempting to demonstrate prejudice, Lewis relies heavily on T. L.’s faded memory and the death of nurse Tilden. T. L. was the People’s main witness and claims by Lewis that she “changed her testimony from one questioner to the next and stated she did not remember the details of the night in question,” do not assist his prejudice argument. Delay can work to a defendant’s benefit, because “[a]s the time between the commission of the crime and trial lengthens, witnesses may become unavailable or their memories may fade. If the witnesses support the prosecution, its case will be weakened, sometimes seriously so. And it is the prosecution which carries the burden of proof.” (Barker, supra, 407 U.S. at p. 521 [33 L.Ed.2d at pp. 111-112].) Such was the case here. T. L.’s inconsistent statements, fading memory, and what counsel termed “lies” all helped Lewis in closing argument portray her as somebody whose testimony was not to be trusted.
As to nurse Tilden, Lewis claims that her death prejudiced him because Tilden could have described T. L.’s demeanor right after the rape, which would have been relevant to the determination of whether the sexual encounter was consensual, and she could have testified to what, if any, inconsistent statements T. L. made that were later discarded per office policy. Again, these claims of alleged prejudice do not help Lewis. While Lewis is correct the stand-in testimony by nurse Schmidt could not have substituted for the evidence Lewis claims was lost by Tilden’s death because it was not recorded, this gets him nowhere. Tilden did describe in her report T. L.’s demeanor at the interview. Moreover, Tilden did not have any special insight into T. L.’s demeanor right after the rape, as she was not the first to speak with T. L. after the alleged assault. That person was the motel’s clerk Nancy Ramirez who testified T. L. was agitated and “very nervous.” Similarly, the next person to see her, Deputy Turnbull, described her as “very angry,” and in need of “settl[ing]... down.” In light of this evidence, Lewis’s prejudice argument based on T. L.’s demeanor fails.
Lewis’s position that the loss of Tilden’s testimony regarding any discarded inconsistent statements made by T. L. fares no better. It is a speculative argument based on things that might have happened, which is not sufficient to demonstrate prejudice. Moreover, even if there was testimony of T. L.’s inconsistent statements to nurse Tilden, this would have added little to the mix. The jury was already well aware of T. L.’s inconsistent statements, such as her testimony at trial that she was forced into oral copulation and her statement to nurse Tilden there was no “oral contact.”
Balancing these factors, we find no deprivation of Lewis’s right to a speedy trial. Although there was a one-and-one-half year delay caused by factors outside Lewis’s control, the primary reason for the delay was legitimate -- to maintain joinder in a large, complicated case with many witnesses and defense attorneys -- and Lewis suffered minimal, if any, prejudice as a result. His speedy trial argument fails.
II
The Court Did Not Err In Denying Snowden’s Wheeler/Batson Motion
Snowden contends the court erred in denying his Wheeler/Batson motion (People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69]), that was directed at prospective Juror D. T., an African American woman.
Specifically, Snowden contends the court violated his constitutional right to a jury drawn from a representative cross-section of the community because the record “contradicted one of the prosecutor’s purported reasons in challenging [D. T.] and a comparative analysis belied another.” We find no error in the court’s denial of the Wheeler/Batson motion.
On appeal, “we review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges ‘with great restraint. The party seeking to justify a suspect excusal need only offer a genuine, reasonably specific, race- or group-neutral explanation related to the particular case being tried.’” (People v. Ervin (2000) 22 Cal.4th 48, 74-75.) “[I]f the trial court makes a ‘“‘sincere and reasoned effort’”’ to evaluate the nondiscriminatory justifications the prosecutor offers, the court’s conclusions are entitled to deference on appeal if supported by substantial evidence.” (Id. at p. 76.)
Here, the prosecutor’s three reasons for excusing D. T. were genuine, reasonably specific, and race-neutral. Those were: (1) D. T. was “essentially a social worker” who “essentially tries to prevent women who cannot take care of their children, who are potentially criminals from being prosecuted or a process by CPS in having their children taken away from them”; (2) she weighed more than 300 pounds, which was a “concern” because although “[i]t might have to do with disease,” “there [wa]s the simple explanation of sloth”; and (3) “her brother within the last year was convicted of dope possession or something to do with drugs” “[a]nd she was okay with that process because he was on ankle monitoring.”
The court stated it had “listened very carefully to [the prosecutor]’s rationale and reasoning behind each and every challenge” and “d[id] not find that any of these peremptory challenges ha[d] been exercised for an improper purpose.” As we explain below, we defer to the trial court’s conclusion because it was supported by substantial evidence.
As to the first reason, being “essentially a social worker,” Snowden points out that D. T.’s job was to “dr[i]ve a van” for a nonprofit organization. While he is correct, the prosecutor was not required to turn a blind eye to the services the nonprofit organization provided, especially in light of D. T.’s description of the organization. In D. T.’s words, the organization “assist[ed]” “women, birth and beyond” “who ha[ve] been reported to CPS... to prevent them from getting involved with full CPS cases.” D. T. described her role as “driv[ing] them to their group and classes that our organization provide[s].” From this description, there was nothing objectionable about the prosecutor imputing a social worker mentality to D. T. Prosecutorial bias against people who work in the “social services or caregiving fields” is a legitimate race-neutral reason to excuse a potential juror. (People v. Perez (1996) 48 Cal.App.4th 1310, 1315.)
As to the second reason, weighing over 300 pounds, Snowden compares D. T. to William Howard Taft and posits “it is doubtful the prosecutor would have assumed the Chief Justice’s size reflected his sloth,” and contends the prosecutor “had no problem imputing laziness to a black woman who was similarly overweight.” Snowden’s argument is speculative. He offers no evidence that, for example, the prosecutor failed to excuse other similarly overweight people from the jury and did so only because D. T. was an overweight African American woman. We do not express an opinion on whether obesity can ever be attributed to slothfulness. We simply note that the trial court apparently found this was a sincerely held view of the prosecutor. Thus, it was a race-neutral reason to excuse a potential juror.
As to the third reason, D. T.’s brother’s conviction for a drug offense for which he had to wear an ankle monitor, the prosecutor could reasonably believe the brother’s “adversary contact with the criminal justice system might make [T. D.] unsympathetic to the prosecution.” (People v. Arias (1996) 13 Cal.4th 92, 138.)
Relying on a comparative juror analysis, Snowden contends the prosecutor’s rationale was “pretextual” because the prosecutor failed to excuse three other jurors who described adverse contact with law enforcement. The first juror stated she knew “someone arrested for spousal abuse and a car theft.” The second juror stated he had a “negative experience” with law enforcement “about 20 years ago” when he and some friends were pulled over by police and they had to prove to police they “weren’t gang members.” The third juror “kn[e]w[] people [who] ha[d] been arrested for various offenses.”
The problem with this comparison is that these jurors did not have a close family member who had gone through the criminal justice system, as had T. D. Another problem is that a comparative analysis actually supports the denial of the Wheeler/Batson motion. The prosecutor excused one prospective juror who had worked at a nonprofit organization called “The Birth Connection” doing “phone and office support,” who did not deal directly with clients. He excused another who worked at the “Sacramento Mental Health Treatment Center.” And he kept on the jury three African Americans. “Although not a conclusive factor, ‘the passing of certain jurors may be an indication of the prosecutor’s good faith in exercising his peremptories....’” (People v. Reynoso (2003) 31 Cal.4th 903, 926.)
In conclusion, the prosecutor’s three reasons for excusing D. T. were reasonably specific, race-neutral, and supported by the record. The trial court made a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, and we therefore defer to the trial court’s ability to distinguish bona fide reasons from sham excuses. (People v. Avila (2006) 38 Cal.4th 491, 541.) On this record, there is no error.
III
There Was No Brady/Trombetta Error
Lewis and Snowden contend the People failed to disclose or retain favorable material evidence in violation of Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215]. They further contend the People violated their right to due process by failing to preserve evidence that might be potentially useful in their defense. (California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413].)
Their claim is based on Schmidt’s testimony that nurses who conduct sexual assault examinations are trained by the district attorney to begin a new page if they must change an answer on the form. They are to discard any documentation where victims had “change[d] the responses.” Schmidt was not sure whether during Tilden’s interview, T. L. changed any of her answers and if she had, whether Tilden discarded those pages.
Defendants’ claim of constitutional error fails for a simple reason: they have not shown any evidence was destroyed in this case, let alone that it would have been favorable to them or might have played a significant role in their defense.
A Brady violation requires “[t]he evidence at issue... be favorable to the accused, either because it is exculpatory, or because it is impeaching.” (Strickler v. Greene (1999) 527 U.S. 263, 281-282 [144 L.Ed.2d 286, 302].) A Trombetta violation requires “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.” (California v. Trombetta, supra, 467 U.S. at pp. 488-489, fn. omitted [81 L.Ed.2d at p. 422, fn. omitted].) A necessary prerequisite in applying either of these doctrines, therefore, is evidence that was either withheld or destroyed. Here, defendants have failed to demonstrate this as fact. They only allege it might have been, which is not enough.
IV
The Court Did Not Err In Denying The Request To Bifurcate The Gang Enhancement And In Admitting The Gang Expert Testimony
Lewis contends the court violated his federal constitutional right to a fair trial by admitting gang expert testimony that was “irrelevant to any issue in dispute” and was “highly prejudicial.” Snowden contends the court erred in denying his request to bifurcate the gang enhancement, and even if it did not, the People’s presentation of evidence to prove the gang enhancement resulted in “‘gross unfairness’” amounting to a denial of due process. They are wrong.
The trial court has broad discretion to deny bifurcation of a charged gang enhancement. (People v. Hernandez (2004) 33 Cal.4th 1040, 1046-1047.) The propriety of the court’s ruling must be based on the record before the trial court at the time of its ruling (People v. Catlin (2001) 26 Cal.4th 81, 110), and we review that ruling for abuse of discretion (Hernandez, at p. 1048). Here, there was no abuse.
The record before the trial court included the preliminary hearing transcript and showed the following facts. When Snowden forced T. L. into the car, Carr told her they were “going to fuck the shit out of [her]” and added, “[t]his is Piru, bitch.” T. L. knew “Piru” was a gang. When they forced her into the motel room, they were calling each other “Blood” or “Piru.” This evidence of gang affiliation was relevant to the charged crimes because it led to a reasonable inference defendants were working in concert as members of the Piru gang, viewed their commission of the charged crimes as being tied to their gang membership, and informed their victim of their gang membership to induce fear and therefore her acquiescence. To the extent this evidence would have supported both the gang enhancement and the charged offenses, “any inference of prejudice would be dispelled, and bifurcation would not be necessary.” (People v. Hernandez, supra, 33 Cal.4th at pp. 1049-1050.) On this record, the court did not abuse its discretion in refusing to bifurcate the gang enhancement.
Snowden contends even if the court’s ruling was “correct at the time it was made,” reversal is still required because the failure to bifurcate resulted in “‘gross unfairness’” amounting to a denial of due process. Not so.
While some evidence used to prove the gang enhancement, such as the predicate offenses, was not related to the charged offenses, a court may still deny bifurcation if additional factors favored joinder. (People v. Hernandez, supra, 33 Cal.4th at p. 1050.) Here, the preservation of judicial resources favored joiner as did the fact that some of the gang evidence was cross-admissible. Moreover, evidence of the predicate offenses was not “so extraordinarily prejudicial” “that it threaten[ed] to sway the jury to convict regardless of the defendant’s actual guilt.” (Id. at p. 1049.) That evidence consisted of Turnbull’s testimony that two East Side Piru gang members were convicted of attempted murder with firearms for shootings that took place within one-half hour of each other and that two other East Side Piru gang members were convicted of sale of rock cocaine. Turnbull further explained the main activities of the East Side Piru gang were “[s]ales of narcotics, assaults, assaults with deadly weapons, robberies, carjacking, burglaries, [and] terrorist threats.” In contrast, the current crimes were much more inflammatory -- the kidnapping of a prostitute off the side of the street and her gang rape and forced oral copulation that involved at least three East Side Pirus. On this record, Snowden’s due process claim fails.
For these reasons and some others, Lewis’s argument of error in admitting the gang expert testimony fails as well. He contends the expert witness testimony was “entirely irrelevant given the lack of evidence establishing this was a gang related offense” and should have been excluded because it constituted “improper propensity evidence, unreliable and prejudicial hearsay, and highly inflammatory evidence which was clearly more prejudicial than probative.” He is wrong.
Deputy Turnbull’s testimony was relevant to the charged offenses because it explained a motive for the current crimes, i.e., gaining respect both inside and outside the gang “through intimidation and fear and through violence.” Committing crimes such as the current ones gave the gang “[n]otoriety” because it “g[ot] their name out there.”
This probative value of Turnbull’s testimony was not substantially outweighed by its prejudicial effect. (Evid. Code, § 352.) There was nothing particularly inflammatory about the gang evidence presented here, especially in comparison to the current offenses, which we have already explained. On this record, Lewis’s argument of error in admitting the expert witness gang testimony fails.
V
The Court Did Not Err In Limiting Cross-Examination Of T. L.
Lewis contends the court violated his constitutional rights by limiting T. L.’s cross-examination with respect to a 1995 conversation she had with an undercover officer. We find no error.
Lewis asked to cross-examine T. L. regarding statements she made to an undercover officer in 1995 when she was soliciting prostitution. Codefendants joined in the request. According to a police report, T. L. told the undercover officer, “if you are lying about being an undercover officer and bust me, I’ll kill you.... [I]f you bust me, I’ll fill a condom with sperm and say it’s yours to get you in trouble.”
The court ruled the evidence about T. L. “threaten[ing] to create a falsehood against an officer” was relevant because “your defense in this case is that she’s lying about being raped.” The evidence about her threatening to kill the officer was also relevant because it “obviously bears upon her credibility.” The evidence about planting evidence was inadmissible because “the defense in this case is not that she planted evidence, the defense in this case is she’s lying about consent.”
In front of the jury, the defense elicited the following testimony from T. L. about the 1995 incident. When asked whether she made the statement, “if you’re lying [about not being an undercover police officer] and bust me, I’ll kill you,” T. L. testified she made that statement as a joke, explaining, “I’m not going to kill a police officer. You know that as well as I am [sic]. I don’t have any murders on my jacket.” When asked if she “threaten[ed] to make a false claim against that officer,” T. L. responded, “I wouldn’t call it a threat. Because if it was a threat, they would have pursued it.”
Lewis contends this limited cross-examination restricted him from showing T. L. made a “false claim regarding sexual relations” and therefore demonstrating “her willingness to lie about sexual conduct out of vindictiveness and to serve her own purposes.” Lewis misses the point. The court prohibited the testimony about the condom because it was about planting evidence -- something not present here. “[N]ot every restriction on a defendant’s desired method of cross-examination is a constitutional violation.” (People v. Carpenter (1999) 21 Cal.4th 1016, 1051.) Unless the defendant can show that the prohibited cross-examination would have produced a significantly different impression of the witness’s credibility, the trial court’s exercise of its discretion does not violate the Sixth Amendment. (Carpenter, at p. 1051.) From the testimony the court allowed, the jury learned T. L. had threatened to kill a police officer, although she claimed it was in jest, and had said she would make a false claim against a police officer, although T. L. refused to classify it as a threat. Delving into the issue of the condom, which went to her propensity to plant evidence, would have confused the issue, which here was T. L.’s propensity to make a false claim of rape where the defense was consent. The record therefore does not establish the prohibited cross-examination would have produced a significantly different impression of the witness’s credibility. Therefore we find no abuse. (See Carpenter, at p. 1052.)
VI
There Was Sufficient Evidence Of Forcible Rape In Concert
Lewis contends his convictions for counts four through seven (forcible rape in concert by Carr and Lewis) must be reversed because there was insufficient evidence those counts involved “force or violence.” He further contends his convictions for counts eight and nine (forcible rape in concert by Snowden) must be reversed because there was insufficient evidence he acted “in concert” with Snowden. He is wrong on both points.
A
There Was Sufficient Evidence Counts Four Through Seven Involved Force Or Violence
A conviction for rape in concert requires a showing the rape was accomplished by “force or violence.” (Pen. Code, § 264.1.) It is enough if the evidence shows the use of force served to overcome the will of the victim to thwart or resist the attack; it is not necessary to show the use of force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker. (People v. Griffin (2004) 33 Cal.4th 1015, 1027.)
Further section references are to the Penal Code.
Here, there was evidence to establish force sufficient to overcome T. L.’s will as to all the forcible rape counts. When T. L. tried to get away from the car being driving by Carr, Snowden grabbed her by the hair and pulled her into the backseat of the car and slapped her a couple of times. When they got to the room, she was “pleading with them... to let [her] go.” Snowden and Lewis told her to take her clothes off, and when she refused, Lewis “grabbed her,” slapped her face, and made her take off her nylons. Carr “forced [her] into the restroom,” and then raped her “doggy style” (count four). He then “forced her to change positions” and get on the bathroom counter, where he raped her again (count five).
Lewis came in the bathroom next and told her “just let us do what we got to do.” “He made [her] lay on the floor” and “raped [her] on her back” (count six). He also raped her on the sink (count seven). During the whole time the kidnapping and rapes were going on, T. L. pleaded with them to let her go.
The evidence we have just recounted involving T. L.’s abduction, accomplished by grabbing her hair and forcing her into the car, followed by threats delivered with physical force to her face and body, all while she was pleading with her assailants to let her go, were sufficient to show T. L.’s will to thwart or resist the ongoing attacks was overcome.
B
There Was Sufficient Evidence Lewis Acted In Concert With Snowden’s Rape Of T. L.
Lewis contends his convictions for counts eight and nine (which involved Snowden’s rape of T. L. on the bed) must be reversed because there was insufficient evidence he acted in concert with Snowden. Lewis’s contention focuses on the fact he left the room after he raped T. L. and went to room 423, “leaving Snowden alone with [T. L.] to do as he pleased.” Lewis’s argument gets him nowhere.
The crime of forcible rape in concert proscribes people from acting “together” either personally to commit the wrongful act or to aid others in doing so. (People v. Jones (1989) 212 Cal.App.3d 966, 969.) Here, Lewis’s presence and actions on the street and at the motel before Snowden’s rape of T. L. “contributed toward terrorizing the victim and overcoming her resistance, thereby facilitating [Snowden’s] rape[s].” (Id. at p. 970.) As stated, when the assailants kidnapped T. L. off the street, a couple of them said “they were going to fuck the shit out of [her].” At the motel, when T. L. refused to undress, it was Lewis who “grabbed her,” slapped her face, and made her take off her nylons. When Lewis entered the bathroom, he told T. L. “just let us do what we got to do.” (Italics added.) Snowden was the next to rape her after Lewis. There was sufficient evidence Lewis acted in concert with Snowden, even though he was out of the room when Snowden raped T. L.
Lewis cites another portion of the transcript where T. L. stated that only Snowden used physical force against her. By relying on this evidence to show insufficient evidence, Lewis violates a fundamental principle of a sufficiency-of-evidence review: recounting the evidence in the light most favorable to the judgment. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1574.)
VII
The Prosecutor Did Not Commit Misconduct In Closing Argument
Lewis contends the prosecutor committed five instances of misconduct during closing argument, depriving him of his due process right to a fair trial and “a reliable determination of guilt.” Despite the lack of objection to some of the prosecutor’s comments, we address them all because Lewis alleges his counsel was ineffective for failing to object.
A
Calling The Defense Gang Expert A “Whore”
In arguing to the jury it should not believe the testimony of the defense gang expert Mark Harrison, the prosecutor argued, “Mr. Harrison is what’s known in legal circles as a whore, okay? For 7000 dollars he’ll come in here and he’ll tell you this case was not gang related, and there’s no such a thing as rape for the benefit of a gang.” Lewis’s counsel did not object. Lewis now contends the prosecutor’s characterization of Harrison as a “whore” was “outrageous and offensive.”
There was no misconduct. A prosecutor is not limited to “‘“Chesterfieldian politeness”’” and may use an “epithet” in closing argument as long as it “‘“amounts to fair comment on the evidence.”’” (People v. Williams (1997) 16 Cal.4th 153, 221.) Here, the use of the term “whore” to describe expert Harrison was not misconduct because the prosecutor made clear he was referring to the fact the expert received $7,000 for his testimony and argued he was selling his services for a price. This was acceptable advocacy.
B
Referring To Defendants’ Prior Criminal Acts As Part Of A Gang
In arguing to the jury this was a gang case, the prosecutor stated, “Long before [defendants] see [T. L.] walking down Stockton Boulevard they have committed themselves to crime, to assaultive types of crimes, okay? They have thought about the very prospect of raping a prostitute.” Lewis’s counsel objected the comment “goes to character,” and the court overruled the objection because the comment “[wa]s argument.” On appeal, Lewis claims the argument “improperly urged the jurors to rely on propensity evidence to convict [defendants].” Not so.
This was a fair comment on the evidence. Detective Turnbull testified defendants were part of the East Side Pirus, and the gang’s primary activity included assaults, robberies, terrorist threats, and other violent crimes. He further testified the motive for the current crimes was gaining respect both inside and outside the gang “through intimidation and fear and through violence.” Committing crimes such as the current ones gave the gang “[n]otoriety” because it “g[ot] their name out there.” The prosecutor’s arguments, therefore, were “‘“reasonable inferences, or deductions to be drawn”’” from this evidence (People v. Williams, supra, 16 Cal.4th at p. 221) and not inappropriate comments on defendants’ propensity to commit crimes.
C
Referring To T. L.’s Flat Affect On The Witness Stand
In arguing to the jury about T. L.’s veracity, the prosecutor stated he “d[id]n’t know that anyone can imagine what it’s like to be raped unless you’ve actually been there,” referred to testimony at trial regarding “the loss of power and the loss of control that a rape victim goes through,” and noted that while T. L.’s “testimony was flat, okay, because she doesn’t remember much about this anymore, and she’s tried to suppress it,” “you caught glimpses of her pain... of her suffering, of her grief.” Lewis’s counsel objected the argument “appeals to passion or prejudice,” but the court overruled the objection.
“Although it is misconduct for a prosecutor to make comments calculated to arouse passion or prejudice [citation], the comments defendant challenges here were not so calculated.” (People v. Mayfield (1997) 14 Cal.4th 668, 803.) A reasonable juror would take the prosecutor’s argument as an explanation for why T. L.’s testimony should be believed even though she had a flat affect, i.e., rape produces a profound response for the victim that was responsible for T. L.’s lack of emotion here. There was no misconduct.
D
Referring To Defendants’ Failure To Have Evidence Tested For DNA
In responding to the argument made by Snowden’s attorney that Snowden and Lewis “weren’t even in th[e] room [425],” the prosecutor argued the defense “ha[d] subpoena powers, too,” could have subpoenaed the evidence and had “it tested by some lab” and “they didn’t because it’s not gonna turn out anything favorable to them.” There was no objection. On appeal, Lewis argues this “constituted improper vouching.” It did not.
A prosecutor does not commit misconduct by pointing to “a defendant’s failure ‘to introduce material evidence....’” (People v. Wash (1993) 6 Cal.4th 215, 263.) Here, the prosecutor’s argument fits squarely within this rule. Both Lewis and Snowden gave statements they were not in room 425. Had they wanted to support that theory, those defendants could have ordered DNA testing of items in the room. They did not. It was a fair comment on the state of the evidence for the prosecutor to argue they failed to support these statements by having evidence tested. There was no misconduct.
E
Responding To Snowden’s Lawyer’s Argument On The Reasonable Doubt Instruction
In responding to an argument Snowden’s lawyer made regarding reasonable doubt, the prosecutor stated as follows:
“And then [Snowden’s lawyer] says he likens your decision making to marriage, career, buying a house, medical procedure. No. Reasonable doubt is defined to you. It’s not -- I mean those are just about as conservative a decision you can make in your life, you know. Who are you going to marry, okay? That’s not your decision here. All right?
“You’re gonna buy a house. You’re gonna have a[n] operation. Those are life altering decisions. That’s not what you’re faced with here. Don’t be fooled, okay? We have juries up and down this state every day rendering guilty verdicts based on reasonable doubt because it’s asking you to just to reason, to be reason -- to be reasonable and logical.”
There was no objection to this argument. On appeal, Lewis argues “the prosecutor trivialized the appropriate standard by which the defendants’ actions should have been evaluated thereby decreasing the prosecution’s burden of proof....”
In People v. Nguyen (1995) 40 Cal.App.4th 28, a case that bears some similarity to this, the prosecutor argued without objection the reasonable doubt standard was “‘a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as you're driving.’” “‘I won’t paraphrase it because it’s a very difficult instruction, but it’s not an unattainable standard. It’s the standard in every single criminal case.’” (Id. at p. 35.) The appellate court “strongly disapprove[d] of arguments suggesting the reasonable doubt standard is used in daily life to decide such questions as whether to change lanes or marry. The argument is improper even when the prosecutor, as here, also states the standard for reasonable doubt is ‘very high’ and tells the jury to read the instructions.” (Id. at p. 36.)
Here, the argument was somewhat similar because the prosecutor argued the application of the reasonable doubt instruction was an “every day” decision, but he went farther in arguing the standard was not as conservative as the standard to be used when deciding whom to marry, what house to buy, etcetera. This was wrong. “As our Supreme Court stated over 120 years ago... ‘The judgment of a reasonable man in the ordinary affairs of life, however important, is influenced and controlled by the preponderance of evidence. Juries are permitted and instructed to apply the same rule to the determination of civil actions involving rights of property only. But in the decision of a criminal case involving life or liberty, something further is required.... There must be in the minds of the jury an abiding conviction, to a moral certainty, of the truth of the charge, derived from a comparison and consideration of the evidence.’” (People v. Nguyen, supra, 40 Cal.App.4th at p. 36.)
As noted, though, there was no objection to the prosecutor’s argument. In this procedural posture, and where Lewis has argued counsel was ineffective, we preliminarily ask whether counsel was deficient for failing to object. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) Although the argument was improper, we cannot say counsel was deficient for failing to object. He may not have wanted to draw attention to the improper argument, knowing the court was going to instruct on reasonable doubt shortly and it was the instruction that controlled. Since we can conceive of this as a reasonable tactical reason for failing to object, Lewis’s ineffective assistance of counsel claim fails. (People v. Wright (1990) 52 Cal.3d 367, 404-405.)
VIII
Lewis Was Not Deprived Of The Right To Meaningful Appellate Review By The Court’s Failure To Transcribe The Jury Instructions
Lewis contends he was denied the right to meaningful appellate review when the trial court asked for, and received, a stipulation from defense attorneys that the court reporter did not need to transcribe the court’s oral jury instructions. He is wrong.
We have urged courts to record its oral instructions to the jury to avoid any subsequent controversy over the accuracy of the proceedings. (People v. DeFrance (2008) 167 Cal.App.4th 486, 494.) However, the absence of such a transcript does not necessarily violate due process. In People v. Garrison (1989) 47 Cal.3d 746, 780-781, the court stated: “We reject defendant’s contention that the failure to report the reading of the instructions denied him due process. The parties stipulated that the court reporter might be excused from reporting the reading of the jury instructions. In light of counsel’s stipulation and defendant’s failure to suggest that there was any deviation in the reading from the typed copies contained in the record, we find no violation of due process.”
Here, the parties stipulated the reporter did not have to transcribe the instructions. After the court read the instructions, the parties confirmed they were “satisfied with the Court’s reading of these jury instruction.” Under these circumstances, meaningful appellate review is possible: the parties agreed the written instructions accurately reflected the oral instructions given to the jury. There was no error.
IX
The Court Did Not Err In Responding To The Jury’s Questions
Snowden contends the court’s responses to two jury questions were incorrect and violated his federal constitutional right to due process. We disagree.
The jury asked the following question: “[R]egarding ‘in concert’ Do the people involved have to have specific knowledge that each other were going to or committed/performed oral copulation?”
The court instructed as follows: “No. [¶] The aider and abettor need not have specific knowledge of the actual crime committed by the perpetrator, so long as the aider and abettor knew that the perpetrator intended to commit an unlawful sexual offense and acted with the intent to aid and abet the perpetrator in the commission of the unlawful sexual offense.”
This was a correct statement of law. A defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. (People v. Hickles (1997) 56 Cal.App.4th 1183, 1193.) His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. (Id. at pp. 1193-1194.) As such, it was immaterial whether defendants knew the exact sex act, i.e., oral copulation, that the perpetrator was going to commit, to be liable as an aider and abettor. Snowden’s argument that the court’s response was incorrect and legally inadequate is without merit.
His second claim of instructional error relates to the following jury question: “Is it possible to be in concert with one’s self? Is so, how? Please give an example (hypothetical).”
The court responded as follows: “A person can be found guilty of ‘acting in concert’ [in] 2 distinct ways: [¶] 1) He can personally engage in the act constituting the crime, or 2) He can aid and abet a person in accomplishing it. [¶] Please refer to the Court’s response to your question number 2. See also Instructions no. 1001, 1016, 400 and 401.”
“[Q]uestion number 2” was as follows: “Please further define ‘in concert.’ Especially in terms of aiding + abetting; do they have to have knowledge of the specific crime being committed?”
Snowden argues the court should have simply stated, “‘No.’” We find no error because the court’s instruction answered the jury’s questions correctly. As is relevant here, the court instructed the jury to refer to its response to “your question number 2.” That response included the definition of “acting in concert” as “two or more persons acting together in a group crime and includes not only those who personally engage in the act constituting the crime but also who aid and abet a person in accomplishing it.” This instruction informed the jury it takes more than one person to commit a crime “in concert.”
X
The Court Did Not Err In Imposing Full Consecutive Terms
Snowden contends the court erred in imposing full consecutive terms on counts four (sex by Carr on the toilet), five (sex by Carr on the sink), seven (sex by Lewis on the sink), and nine (second act of sex on the bed by Snowden) because they were not committed on separate occasions.
The trial court found the crimes were committed on separate occasions because there was a “sufficient opportunity to pause and reflect in between each of the sexual assaults... upon this victim.” On appeal, we will not disturb this finding because it was supported by substantial evidence. (People v. Corona (1988) 206 Cal.App.3d 13, 17.)
The trial court must impose “[a] full, separate, and consecutive term” for certain sex offenses “if the crimes involve separate victims or involve the same victim on separate occasions.” (§ 667.6, subd. (d).) The statute itself explains how the term “separate occasions” is to be construed: “In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.” (§ 667.6, subd. (d).)
The California Supreme Court has provided guidance regarding when the “separate occasions” test is satisfied during the same encounter. “Under the broad standard established by... section 667.6, subdivision (d), the Courts of Appeal have not required a break of any specific duration or any change in physical location” for a finding that sexual assaults occurring during a continuous encounter with a victim constituted separate occasions. (People v. Jones (2001) 25 Cal.4th 98, 104-105.) Thus, for example, “a forcible violent sexual assault made up of varied types of sex acts committed over time against a victim, is not necessarily one sexual encounter” and “a trial court could find a defendant had a ‘reasonable opportunity to reflect upon his or her actions’ even though the parties never changed physical locations and the parties ‘merely’ changed positions.” (People v. Irvin (1996) 43 Cal.App.4th 1063, 1071.)
Here, defendants raped T. L. in different positions and locations using different methods, all which provide substantial evidence to support the trial court’s finding of separate occasions. As to counts four and five, the court could reasonably find Carr’s decision to change positions from the toilet gave him the opportunity to reflect on what he was doing before he began a new attack on the sink, especially because it was during one of these episodes that Carr was able to ejaculate. The same rationale applies to count seven (rape by Lewis on the sink), where to accomplish the act that resulted in ejaculation, Lewis had to change positions from the floor. As to count nine (the second act of sex on the bed by Snowden), it appeared the various positions gave Snowden a chance to reflect, especially because, again, it was after changing positions multiple times he was able to ejaculate. The court did not error.
DISPOSITION
The judgments are affirmed.
We concur: SCOTLAND, P. J., BLEASE, J.
The court’s response included the definition of “acting in concert” as “two or more persons acting together in a group crime and includes not only those who personally engage in the act constituting the crime but also who aid and abet a person in accomplishing it” and the element that a person who aids and abets the perpetrator must do so “while voluntarily acting in concert with another person.”