Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS051037
RUSHING, P.J.
Statement of the Case
A jury convicted defendant Salvador Rivera Marquez of forcible rape, two counts of inflicting corporal injury on a cohabitant, false imprisonment by violence, aggravated assault, and misdemeanor battery on a cohabitant. (Pen. Code, §§ 261, subd. (a)(2), 273.5, subd. (a), 236, 245, subd. (a)(1), & 243, subd. (e)(1).) The court imposed an aggregate sentence of four years in prison.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal from the judgment, defendant claims there was insufficient evidence to support his convictions for inflicting corporal injury. He claims the court erred in (1) modifying CALJIC No. 10.61.1, (2) failing to instruct on lesser included offenses, (3) excluding evidence about the victim’s reputation for honesty and her former boyfriend’s propensity for violence, (4) denying a mid-trial continuance, and (5) failing to stay execution of sentence on four of the convictions. Defendant claims that defense counsel rendered ineffective assistance in failing to introduce evidence about the former boyfriend and object to prosecutorial misconduct. He claims that he was improperly convicted of both inflicting corporal injury and the lesser included offense of misdemeanor battery. And last, defendant asks this court to review the victim’s medical records to determine whether the trial court erred in withholding them from the defense.
We conclude that the court should have stayed execution of sentence on four of the convictions. Accordingly, we modify the judgment to reflect such stays and affirm the judgment as modified.
Facts
In December 2003, Jane Doe (hereafter Jane) met defendant at Mortimer’s Bar, where he worked. Within a few months, they were boyfriend and girlfriend. In December 2004, defendant lived with Jane in her apartment for three weeks. Defendant’s sister loaned Jane money for the rent that month.
Jane testified that initially defendant treated her well. However, after three or four months, he changed. He would force her to have sex by threatening to report her to immigration authorities, which she feared. He called her “stupid” and said she was a prostitute. She never reported him because he helped her financially, and she loved him and believed it when he said he would change.
Jane testified that on March 8, 2005, defendant came to her apartment with gifts for her son. He also wanted to buy her a cell phone. She told him to leave immediately. She explained that in the past he would flatter her but then change and wrongly accuse her of seeing other men. This time, however, defendant said he had changed and wanted to buy her a phone. She relented and left with him.
Defendant said he needed to stop at the Laguna Lodge, where he had been staying. Jane testified that she had had consensual sex with defendant at the motel in the past. Since then, however, she had told him many times she no longer wanted to have sexual relations with him because he had started forcing her to do so.
In the motel room, defendant went into the bathroom and came out masturbating. She pleaded, “Please don’t start,” but he replied, “Shut up. You like it. You like this.” She responded, “You know that’s not true. I don’t like that.” However, defendant persisted, “You know you like it, and you’re a prostitute. How many men have you been to bed with? Tell me.” Jane protested, “It’s not true. You know it’s not true. You told me that you were going to change. You were not going to say that to me any more, that you were not going to be like that any more.” Defendant ordered her to the bed. She refused, and he put his penis on her arm. She called him a liar and said he was going to hurt her. Defendant replied, “Come on, whore. You like it. You like it big like this.”
Jane pounded the table near her chair. Defendant then grabbed her by the arm, pinching it, dragged her to the bed, threw her down, and ordered her to disrobe. She refused, and he forcibly pulled off her clothes. She begged him not to hurt her and resisted him. Undeterred, defendant fondled her roughly and then had sexual intercourse. She told him “no” and tried to kick him, but he only thrust harder, causing her more pain. When she started to cry, defendant told her to be quiet because someone might call the police. Afraid of immigration authorities, she covered her mouth. After about 20 minutes, defendant finished. Jane got up and went to the bathroom. When she came out, defendant was masturbating again. She left and ran home. She did not tell her son what had happened. She had visible bruises on her arms from being pinched.
Jane testified that on March 9 or 10, defendant came to Jane’s apartment. She said she was somewhat confused about the dates because she had been taking Zoloft, Trazodone, and Wellbutrin to treat her depression during that time. Defendant sought forgiveness and again wanted to buy her a cell phone. Her son told her to get one. She accepted defendant’s apology, and they left. They drove to a restaurant for dinner and then to defendant’s trailer. Inside, he asked her to iron a pair of pants. Then he asked how many men she had been with that day. She threatened to leave and report him, but he said she was too afraid because she did not have “papers” and threatened to accuse her of having sex with her son.
Jane tried to leave the trailer, but defendant forcibly stopped her. When she asked for the car key, he grabbed her by the hair and then banged her head against the wall, choked her with both hands, and pulled her into the kitchen. Then she started to scream. He covered her mouth with one hand and continued to choke her with the other hand. Jane started to suffocate and thought she was going to die. However, she broke away, grabbed a flower pot, and broke it. She continued to break things until defendant surrendered the car keys. She then drove home. She testified that she had a “big swelling” on her forehead, her back was bruised, and her hand got hurt when she broke the flower pot.
The next day, defendant came to the apartment. Jane refused to open the door but told him where to find the car. After he left, she called the police from the apartment of a neighbor, Douglas Brodie.
Officers Edward Bachtel and Debra Kobayashi of the Marina Department of Public Safety spoke to Jane, who was visibly upset and complained of head pain. Officer Kobayashi observed bruises on her arms, scratches on her back, and a bump on her temple. Officer Bachtel also saw her bruises. Jane told Officer Kobayashi about being raped on March 8, and her story was consistent with her trial testimony. Jane told her that she felt dirty and ashamed. She denied that she initiated or consented to sexual intercourse with defendant.
On March 11, defendant called the police looking for his car and spoke to Officer Kobayashi. He said that he and Jane had stayed at the Laguna Lodge between March 4 and March 10, to have sex. He explained that on March 8, Jane was sitting in a chair masturbating. She was “very horny” and said, “Come on, Daddy. I’m so hot for you. I need you.” They had sex three or four times that day. When asked about Jane’s bruises, defendant said they were abscesses from some sexually transmitted disease and admitted it was unwise for him to have had sex because of her disease.
Defendant also said that, on March 10, he and Jane went out to eat and got into a fight. However, in the car after they left, Jane said she needed his “dick” inside her and started to masturbate. They drove to his trailer and had consensual sex. At one point, he heard someone outside whistle. He said he thought it was Jane’s “other lover, coming to pick her up.” He and Jane then argued about that, and she took the car and left. Officer Kobayashi did not investigate defendant’s story about the whistler because she did not believe him.
Patricia Overberg, executive director of the Women’s Crisis Center in Salinas, testified as an expert on Battered Woman’s Syndrome (BWS). She explained the “Cycle of Violence.” It starts with insults and verbal and mental abuse and progresses to physical violence. Then the abuser apologizes and promises to reform. There is a “honeymoon period,” during which the abuser is nice and buys presents for the victim. But after a while, the insults start, the cycle begins again.
Overberg stated that domestic violence can include sexual assaults, which, she opined, are more about control and maintaining power than sexual gratification. She noted that abusers can appear to be normal, charming, charismatic, upstanding people to others. She also noted that victims sometimes feel at fault for their own abuse and remain in abusive relationships because they are afraid to leave and ashamed to admit being in such a relationship.
The Defense
Vhiraj Panchal, owner of the Laguna Lodge, testified that defendant checked in on March 4 and stayed through March 9. He saw no damage to the room after defendant checked out.
Douglas Brodie testified that defendant stayed at Jane’s apartment a lot and was peaceful there and treated her well. He never saw any violence between them. On March 11, Brodie helped Jane call the police because she was yelling and screaming and said she had a problem with somebody.
Jacklyn Richardson has known Jane for eight years and defendant for five years. She testified that she had seen them together four or five times, and they were very amorous. She said that defendant was very good to Jane, treated her well, bought her flowers, gave her money, and helped her son. She never saw defendant threaten or harm Jane. On the other hand, she said that sometimes, Jane got confused, angry, and vengeful toward defendant when he stopped providing financial assistance.
Richardson said that she used to be a rape counselor and was familiar with the “Cycle of Violence” and the symptoms and manifestations of abuse. However, she never saw Jane exhibit any signs of abuse.
Sufficiency of the Evidence of Cohabitation
Defendant contends there was insufficient evidence of cohabitation to support his conviction under section 273.5, subdivision (a).
Section 273.5, subdivision (a) provides, in relevant part, “Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony . . . .”
When considering a challenge to the sufficiency of the evidence to support a criminal conviction or enhancement, we determine whether there is substantial evidence—i.e., evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could make the necessary findings beyond a reasonable doubt. In making that determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. Rather, we review the whole record in the light most favorable to the judgment, we draw all reasonable inferences from the evidence that support it, and we presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320; People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
Defendant claims that his three weeks of cohabitation with Jane in her apartment “is insufficient as a matter of law to establish the permanency requirement necessary for cohabitation.” He notes the lack of evidence that he kept anything at the apartment, possessed a key, received mail or calls, and gave out the address. He argues that he “merely stayed with Jane Doe once, very briefly . . . .”
In People v. Ballard (1988) 203 Cal.App.3d 311 (Ballard), the court opined that, although in some statutory contexts, including the predecessor “ ‘wife beating’ ” statute, cohabitation meant living together as a married couple, section 273.5 “was undoubtedly intended to remove the requirement that the parties be married.” (Id. at p. 319.) Rather, the statute was designed to protect “persons from violence committed by their domestic partners or others with whom they have a significant relationship.” (Id. at p. 318, italics added; see Kilburn v. Kilburn (1891) 89 Cal. 46, 50.)
In People v. Holifield (1988) 205 Cal.App.3d 993 (Holifield), the court agreed with Ballard that cohabitation covered “any ‘significant relationship’ ” but opined that something more was required than “a platonic, rooming-house arrangement.” (Id. at p. 999.) A significant relationship meant an intimate relationship. Accordingly, the court held that “ ‘cohabiting’ under section 273.5 means an unrelated man and woman living together in a substantial relationship—one manifested, minimally, by permanence and sexual or amorous intimacy.” (Id. at p. 1000; accord, People v. Moore (1996) 44 Cal.App.4th 1323; People v. Taylor (2004) 118 Cal.App.4th 11, 18.)
Thus, “permanence” in the context of the Holifield definition does not refer to the duration of a cohabitation. As the court in People v. Moore, supra, 44 Cal.App.4th 1323 explained, permanency “refers only to the underlying ‘substantial relationship,’ not to the actual living arrangement.” (Id. at p. 1334, italics added.) In other words, the determinative question is not how long two people lived together but whether they were involved in a substantial and intimate relationship. (E.g., People v. Taylor, supra, 118 Cal.App.4th 11, 19 [cohabitation where couple dated for five months and lived together on and off in a car]; People v. Moore, supra, 44 Cal.App.4th 1323, 1335 [cohabitation where couple had sexual relationship and shared a lease on an apartment, where one stayed twice a week]; People v. Holifield, supra, 205 Cal.App.3d 993, 995-996 [cohabitation where defendant occasionally stayed at victim’s motel room].)
Defendant’s claim implies that the statute requires a minimum period of cohabitation in addition to a substantial relationship. However, neither section 273.5 nor the pertinent cases impose such a requirement, and defendant cites no authority suggesting that one should be judicially created. Rather, the duration of a living arrangement is simply one factor to be considered in determining whether the two parties shared a substantial relationship.
Moreover, we note that the purpose of section 273.5 is to protect persons in their domestic environment where they are “ ‘uniquely vulnerable’ ” because of their relationship with the perpetrator. (People v. Bogle (1995) 41 Cal.App.4th 770, 782.) To promote that purpose, courts have interpreted “cohabitant” broadly. (People v. Taylor, supra, 118 Cal.App.4th at p. 18; People v. Moore, supra, 44 Cal.App.4th at p. 1335.) Requiring a minimum period of cohabitation would narrow the statute and render it inapplicable to persons whom the statute obviously was designed to protect. For example, if the statute required a one-month minimum period of cohabitation, the statute would not apply to newlyweds living together for the first time after a lengthy engagement, where the abuse started after one week. In our view, narrowing the scope of the statute would make it underinclusive and thereby undermine its protection and frustrate its purpose. Accordingly, we decline to find a minimum period implicit in section 273.5. (See People v. Carter (1996) 48 Cal.App.4th 1536, 1559 [courts avoid interpretations that impair statute’s effectiveness and frustrate its purpose]; e.g., People v. Terry (2005) 127 Cal.App.4th 750, 772 [declining to adopt a restrictive definition of masturbation that would render it inconsistent with the purpose of section 803, subd. (g)].)
However, we do not suggest that the statute applies to those who share a substantial, intimate relationship but who have never lived together.
The record establishes that Jane and defendant shared an amorous and sexually intimate—i.e., substantial—relationship for at least nine months and lived together for three weeks. During their relationship, defendant provided financial support and bought things for Jane and her son. Indeed, on March 8, he brought gifts for her son and wanted to buy her a cell phone. Moreover, Jacklyn Richardson testified that defendant and Jane were “lovey-dovey,” and defendant bought her things and gave her money.
The foregoing constitutes strong, if not overwhelming, evidence of a substantial relationship marked by permanence and sexual intimacy. Thus, there was ample evidence to support defendant’s conviction under section 273.5.
Modification of CALJIC No. 10.61.1
Defendant contends the court erred in modifying CALJIC No. 10.61.1, which advises the jury concerning evidence of prior acts of sexual intercourse.
CALJIC No. 10.61.1 reads: “Evidence has been introduced for the purpose of showing that the defendant and ________ engaged consensually in sexual intercourse on one [or more] occasions prior to the charge against the defendant in this case. [¶] If you believe this evidence, you should consider it only for the limited purpose of tending to show that ________ consented to the act[s] of intercourse charged in this case] [, or] [the defendant had a good faith reasonable belief that _________ consented to the act of sexual intercourse]. [¶] You must not consider that evidence for any other purpose.”
The court instructed the jury as follows, adding the italicized language to the standard instruction: “Evidence has been introduced for the purpose of showing that the [defendant] and Jane Doe engaged consensually in sexual intercourse on one or more [than one occasion] prior to the charge against the [defendant] in this case. If you believe this evidence, you should consider it only for the limited purpose of tending to show that Jane Doe consented to the act of intercourse charged in this case or the [defendant] had a good faith reasonable belief that Jane Doe consented to the act of sexual intercourse. You may not infer that a person who has previously consented to sexual intercourse with the [defendant] would be therefore more likely to consent to sexual intercourse again. You must not consider that evidence for any other purpose.” (Italics added.)
Defendant claims the italicized language erroneously altered the definition of consent in CALJIC No. 10.61.1. We disagree.
First, CALJIC No. 10.61.1 does not define consent. Section 261 provides, in relevant part, “(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: [¶] . . . [¶] (2) Where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” The statutory phrase “ ‘[a]gainst the person’s will’ ” means “without the consent of the alleged victim.” (CALJIC No. 10.00.) Section 261.6 defines consent as the “positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.” (People v. Giardino (2000) 82 Cal.App.4th 454, 459-460.) CALJIC No. 1.23.1 is the instructional counterpart to section 261.6, and defines consent for the jury.
The court gave CALJIC No. 1.23.1, stating, “In prosecutions under Penal Code section 261(a)(2), the word consent means positive cooperation in an act or attitude as an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. The fact if established that [the defendant] and Jane Doe engaged in a current or previous dating relationship does not by itself constitute consent.”
CALJIC No. 11.61.1, on the other hand, is based on section 1127d, subdivision (a), which provides, in relevant part: “In any criminal prosecution for the crime of rape . . . the jury shall not be instructed that it may be inferred that a person who has previously consented to sexual intercourse with persons other than the defendant or with the defendant would be therefore more likely to consent to sexual intercourse again. However, if evidence was received that the victim consented to and did engage in sexual intercourse with the defendant on one or more occasions prior to that charged against the defendant in this case, the jury shall be instructed that this evidence may be considered only as it relates to the question of whether the victim consented to the act of intercourse charged against the defendant in the case, or whether the defendant had a good faith reasonable belief that the victim consented to the act of sexual intercourse. The jury shall be instructed that it shall not consider this evidence for any other purpose.” (Italics added.)
Section 1027d was part of a legislative “reform in the law of rape and other forms of sexual assault,” that included “one of the nation’s first ‘rape shield’ laws, limiting the admissibility of evidence of a complainant’s sexual history except under narrowly defined conditions and prohibiting an instruction that an ‘unchaste woman’ is more likely to have consented to sexual intercourse.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 222 (conc. opn. of Arabian, J.), italics added.) It focuses on the factfinding process and the use of a certain type of evidence in rape cases. Neither section 1027d nor CALJIC No. 10.61.1 expressly or implicitly add to, modify, or refine the statutory definition of consent. The instruction simply advises juries on the limited admissibility and proper use of evidence of prior consensual sexual relations when offered to prove that the victim later acted with consent.
Defendant’s reliance on People v. Harris (1994) 9 Cal.4th 407 (Harris) and People v. Hudson (2006) 38 Cal.4th 1002 (Hudson) is misplaced. In Harris, the trial court specifically defined the phrase “ ‘immediate presence’ ” in the standard instruction on the elements of robbery. (Harris, supra, 9 Cal.4th at p. 415, italics added.) The Supreme Court condemned the trial court’s definition. (Id. at pp. 415-416.) In Hudson, the trial court specifically defined the statutory phrase “ ‘distinctively marked’ ” as it relates to police vehicles, where the defendant is charged with attempting to elude an officer in a patrol car. (Hudson, supra, 38 Cal.4th at pp. 1006-1007; see Veh. Code, §§ 2800.1, subd. (a); 2800.2, subd. (a).) Again, the Supreme Court condemned the trial court’s definition. (Hudson, supra, 38 Cal.4th at p. 1013.)
Although CALJIC No. 10.61.1 contains language akin to that condemned in Harris and Hudson, it does not purport to explain or define consent or even refine its meaning. It simply limits the jury’s use of certain evidence to show consent.
Apart from whether CALJIC No. 10.61.1, as written, defines consent, defendant claims the court’s modification is inconsistent with section 1127d, which, as noted, prohibits an instruction that allows jurors to infer that that a person who has previously consented to have sex with the defendant or others is more likely to consent to have sex again. Defendant argues that section 1127d does not authorize the court’s modification, which prohibits jurors from drawing that inference. According to defendant, the trial court “told [jurors] the opposite of what section 1127d was designed to tell them”—i.e., they could not “consider Jane Doe’s prior consent on the question of whether she more likely consented to the acts in this case.”
Defendant suggests that section 1127d allows jurors to infer a likelihood of consent and only prohibits courts from instructing that they may do so. In our view, however, the Legislature prohibited such an instruction because it considered the inference to be improper. In other words, finding a likelihood of future consent—i.e., a proclivity or propensity to give consent—based on evidence of prior consensual sexual intercourse constitutes what the Legislature considers to be an impermissible inference.
It is settled that trial courts are authorized—indeed have a sua sponte duty—to instruct on the general principles of law applicable to a case. (People v. Birks (1998) 19 Cal.4th 108, 118.) Here, the court’s modification stated a relevant principle of law concerning an impermissible inference and correctly advised jurors that they may not find it more likely than not that Jane gave consent during the incidents in question because in the past, she had had consensual sex with defendant.
We also reject defendant’s claim that the court’s instructional modification negated the permissible use of evidence of prior consensual sexual acts and therefore cancelled the benefit defendant hoped to gain from it. Together, section 1127d and CALJIC No. 10.61.1 permit jurors to consider such evidence for the limited purpose of determining whether Jane actually gave consent or defendant reasonably believed she did so. The court advised jurors that if they believed the evidence that Jane engaged consensually in sexual intercourse with defendant in the past, “[they] should consider it only for the limited purpose of tending to show that Jane Doe consented to the act of intercourse charged in this case or [that] the [defendant] had a good faith reasonable belief that Jane Doe consented to the act of sexual intercourse.” The court’s additional language did not negate that instruction. It simply barred a finding of consent (or a reasonable belief in consent) based on an inference from past conduct rather than on the circumstances surrounding the alleged act, that is, it prevented jurors from reasoning that because Jane consented in the past, she had a propensity to consent, which makes it likely that she consented again. (Compare Evid. Code, §§ 1101, subd. (a) [prohibiting use of evidence to show propensity to prove guilt] with 1108 & 1109 [permitting such use].) Thus, the standard instruction, as modified, correctly reflected both the restrictive and permissive aspects of section 1127d: It allowed jurors to consider Jane’s prior consensual acts if, apart from an inference of likelihood or propensity, that evidence tended to show that Jane gave consent or defendant reasonably believed that she did. Thus, for example, the instruction would permit jurors to infer consent where the circumstances surrounding the charged act were similar to those surrounding some prior consensual acts. (See, e.g., Evid. Code, § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 402-403 [similarities between current conduct and prior misconduct admissible to show intent, common plan or scheme].)
In this regard, we agree with the Attorney General that section 1127d and the court’s instruction are similar to section 28, which also has restrictive and permissive provisions concerning the use of certain evidence. It makes evidence of a mental disease, defect, or disorder inadmissible to show that a defendant was incapable of forming a mental state required for the commission of a charged offense but admissible concerning whether a defendant actually formed the requisite mental state.
Indeed, during her opening argument, the prosecutor made this distinction between proper and improper uses of the evidence. She argued that it was improper to find that simply because Jane had a sexual relationship and gave consent in the past, she gave consent in this case. “You [can’t] use the fact that she consented previously to say that she consented this time. You can’t use the fact that she had a consensual relationship with him to say that on March 8th, she was more than likely to consent. You cannot use the previous consensual relationship to prove she consented. What you can use it for is to look at when she did consent versus when she did not consent and how those two are different. [¶] March 8th was absolutely different. She said no. The force and violence was necessary. He tricked her. All of this goes into showing that it was different than when she had consensual intercourse. I ask you not to use her consensual intercourse basically against her to think that she’s lying about this time.”
Defendant isolates certain statements by the prosecutor and argues that they exploited and thus exacerbated the court’s instructional error. However, the instruction was not erroneous, and, as a whole, the prosecutor simply warned jurors that they could not find consent simply because Jane had consented in the past. They could, however, reasonably infer consent if the circumstances surrounding prior and current acts of sexual intercourse were similar. Of course, the prosecutor argued that the circumstances were starkly different.
However, we note that defendant told Officer Kobayashi that Jane voluntarily had sexual relations with him in the past, sometimes at the Laguna Lodge; he was at the Laguna Lodge between March 4 and 9 for the purpose of having sex with her; and she voluntarily had sex with him during that period, including four times on March 8. If the jury believed this evidence, then under the court’s instruction, it properly could have found that it showed her consent or defendant’s reasonable belief in consent because the March 8 acts occurred under circumstances arguably similar to those in which she gave her consent.
Defendant next claims that the court’s modification rendered the instruction “hopelessly confusing.” Although the instruction did not explain exactly how jurors could consider the evidence, the prosecutor did so, and therefore, we do not find the instruction was fatally flawed without further guidance. The jury did not request further clarification, and the record does not suggest that jurors were confused.
In any event, “ ‘[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’ ” (People v. Hart (1999) 20 Cal.4th 546, 622.) Here, defense counsel did not request additional clarification. On the contrary, the prosecutor objected to CALJIC No. 10.61.1 unless the court modified it. Defense counsel agreed that it was appropriate to modify the instruction and suggested using the language from section 1127d. After discussing the new language, the court asked if counsel had any objections. Counsel did not suggest that the instruction was confusing or needed clarification; nor did he propose alternate language. Rather, he had no objection.
In sum, therefore, we do not find that the court erred in modifying CALJIC No. 10.61.1.
Instructions on Lesser Included Offenses
Defendant contends the court erred in failing to instruct on lesser included offenses of the two counts of inflicting corporal injury on a former cohabitant (counts 2 and 3) and the one count of aggravated assault (count 6).
“A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. [Citations.] This sua sponte obligation extends to lesser included offenses if the evidence ‘raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense. [Citations.]’ [Citations.] As we stated recently, ‘A criminal defendant is entitled to an instruction on a lesser included offense only if [citation] “there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense” [citation] but not the lesser. [Citations].’ [Citation.]” (People v. Lopez (1998) 19 Cal.4th 282, 287-288, italics omitted.)
“The erroneous failure to instruct on a lesser included offense generally is subject to harmless error review under the standard of People v. Watson (1956) 46 Cal.2d 818, at pages 836-837 [(Watson)] . . . . Reversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error or errors complained of. [Citations.]” (People v. Rogers (2006) 39 Cal.4th 826, 867-868, fn. omitted.)
Inflicting Corporal Injury on a Cohabitant
Defendant claims the court should have instructed on the lesser offenses of misdemeanor battery against a cohabitant (§ 243, subd. (e)(1)), simple assault (§ 240), and simple battery (§ 242).
One cannot inflict corporal injury on a cohabitant in violation of section 273.5 without necessarily committing misdemeanor battery against a cohabitant (§ 243, subd. (e)(1)), simple battery, and simple assault. Thus, we agree that those crimes are lesser included offenses. (See People v. Lopez, supra, 19 Cal.4th at p. 288 [“if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former”]; People v. Jackson (2000) 77 Cal.App.4th 574, 580 [§ 243, subd. (e)(1) lesser of § 273.5].) The Attorney General does not argue otherwise.
Defendant asserts that because the evidence of cohabitation was “weak,” a juror could have found that Jane was not a cohabitant within the meaning of section 273.5 and instead found that he committed misdemeanor battery against a cohabitant (§ 243, subd. (e)(1), simple battery, or simple assault (§§ 240, 242).
Section 243, subdivision (e)(1) makes it a misdemeanor to commit a battery against different types of persons, including a cohabitant or persons with whom the defendant currently has or previously had a dating relationship. Thus, defendant argues that because the jurors could have found that Jane was not a former cohabitant, they should have been given the option of convicting him of misdemeanor battery against a person with whom he had a dating relationship.
It was undisputed that defendant lived with Jane. Thus, defendant argues that the evidence of cohabitation was weak because they lived together for only three weeks. As noted, however, the length of cohabitation is only one factor in determining whether two people share a substantial relationship, marked by permanence and intimacy. Besides the undisputed evidence of cohabitation, there was compelling, undisputed evidence that defendant and Jane shared a significant and intimate relationship for almost a year, during which defendant became involved in Jane’s life and provided financial and material support for her and her son. Under the circumstances, the length of their cohabitation does not raise a significant question of fact concerning whether defendant and Jane shared a substantial relationship within meaning of section 273.5. Accordingly, we do not find substantial evidence to support instructions on the lesser included offenses.
Moreover, even if we assume for purposes of argument that jurors might consider a three-week period of cohabitation insufficient by itself to show a significant intimate relationship, given all of the undisputed evidence, we do not find it reasonably probable the jury would have convicted defendant of a lesser included offense because they did not find a significant, intimate relationship within the meaning of section 273.5. (See Watson, supra, 46 Cal.2d at p. 836.)
Concerning the March 10 incident in defendant’s trailer, defendant claims that the evidence of Jane’s injuries was weak, and jurors might have found that he did not inflict a corporal “injury resulting in a traumatic condition” as required by section 273.5. He argues that jurors could have found the injuries de minimus because Jane complained only that her head was swollen, her back was bruised, and her hand was hurt. Thus, jurors should have been instructed on the lesser offenses, which do not require severe injury. (See People v. Gutierrez (1985) 171 Cal.App.3d 944, 952 [injury element differentiates violation of § 273.5 from lesser offenses].)
Section 273.5, subdivision (c) defines “ ‘traumatic condition’ ” as “a condition of the body, such as a wound or external or internal injury, whether of minor or serious nature, caused by physical force.” (Italics added.) Because minor injury is sufficient, the statute excludes only “de minimus harm.” (People v. Gutierrez, supra, 171 Cal.App.3d at p. 952.) Thus, courts have held that bruising alone constitutes a traumatic condition for purposes of the statute. (E.g., People v. Beasley (2003) 105 Cal.App.4th 1078, 1085; People v. James (2000) 81 Cal.App.4th 1343, 1363-1364.)
Jane testified that she suffered abnormal bodily conditions—swelling, bruising, and scratches—that resulted from defendant’s willful application of force and violence. Both Officers Bachtel and Kobayashi observed her injuries, and photographs of them were admitted into evidence.
Bruises, scratches, and swelling cannot reasonably be considered insignificant or trivial harm. Rather, at a minimum, they represent minor injuries that resulted in a traumatic condition—i.e., discoloration, soreness, and swelling. Accordingly, the evidence did not reasonably support instructions on lesser included offenses.
Moreover, given the definition of “traumatic injury,” which was read to the jury (see CALJIC No. 9.35), Jane’s testimony about the assaults, and the undisputed evidence of her injuries, we do not find it reasonably probable the jury would have convicted defendant of a lesser included offense had it been given the option to do so. (See Watson, supra, 46 Cal.2d at p. 836.)
Defendant notes that he was charged with one count of misdemeanor battery on a cohabitant in violation of section 243, subdivision (e)(1) (count 5), that charge was based on the March 10 incident, and the court instructed the jury on that offense for purposes of that count only. (See CALJIC No. 16.140.1.) Defendant argues that since counts 3 and 5 were based on March 10 conduct, count 5 represented a lesser included offense of count 3, and therefore the court erred in (1) failing to give CALJIC No. 17.03, which would have informed jurors that the two counts are alternative charges based on the same criminal act; and (2) not advising jurors that defendant could not be convicted of both and that if they had a reasonable doubt concerning the greater offense, they had to find him guilty of the lesser. (See People v. Dewberry (1959) 51 Cal.2d 548, 555 [requiring instruction on reasonable doubt].)
CALJIC No. 17.03 provides: “The defendant is accused in Count ______ of having committed the crime of ______ and in Count ______ of having committed the crime of ______. These charges are made in the alternative and in effect allege that the defendant committed an act or acts which constitute[s] either the crime of ______ or the crime of ______. If you find that the defendant committed an act or acts constituting one of the charged crimes, you then must determine which of the crimes so charged was thereby committed.
Defendant’s claim falters on its factual premise. Although counts 3 and 5 were based on the same incident, they were not based on the same acts. During her opening argument, the prosecutor explained that count 3 was based on the scratches and swollen forehead that Officer Kobayashi observed. Concerning count 5, the prosecutor argued, “This goes to March 10th when [defendant] pulled her hair back. There does not need to be any injury for Count 5. As opposed to Counts 2 and 3, corporal injury, there has to be a traumatic condition. The bruises, scratches, and swelling[;] but for Count 5, no injury is necessary, and that crime was completed when he pulled her hair and forced her to come back into the trailer.”
Because the two counts were not based on the same criminal act, CALJIC No. 17.03 was inapplicable. Thus, the failure to give it was not error.
Given our discussion, we reject defendant’s additional claim that he was improperly convicted of both greater and lesser included offenses (counts 5 and 3), and his conviction on count 5 must be reversed. (See People v. Ortega (1998) 19 Cal.4th 686, 692 [defendant cannot be convicted of greater and lesser offense based on same criminal act].)
Aggravated Assault
Defendant’s conviction for aggravated assault—i.e., assault with force likely to produce great bodily injury (§ 245, subd. (a)(1))—was also based on March 10 incident. Defendant again argues that because the bruising and swelling could be considered trivial and insignificant, jurors could have found that defendant did not use force likely to produce great bodily injury and convicted him instead of simple assault.
However, section 245, subdivision (a)(1) does not require evidence that the victim suffered any actual injuries. The statute “prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury. While . . . the results of an assault are often highly probative of the amount of force used, they cannot be conclusive.” (People v. Muir (1966) 244 Cal.App.2d 598, 604, italics in original; People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) Thus, the statute focuses on whether the force used was such as would be likely to cause great bodily injury. (People v. Roberts (1981) 114 Cal.App.3d 961, 965.) “[G]reat bodily injury” is bodily injury which is “significant or substantial physical injury” rather than “minor, trivial, or moderate.” (§ 12022.7; People v. Escobar (1992) 3 Cal.4th 740, 746.)
As the Attorney General points out, the aggravated assault charge was not based on the acts that caused the swelling and bruises. Rather, the prosecutor expressly told the jury to find defendant guilty based on evidence that he choked Jane and then put one hand over her mouth such that she could not breathe, felt faint, and thought she was going to suffocate to death.
The defense at trial was that defendant did not assault Jane at all. Thus, if the jury found that there was an assaultive course of conduct, there was no basis to find that he committed some acts—i.e., grabbing Jane’s hair, banging her head against the wall—and not others—i.e., choking her. Moreover, choking is sufficient to support a conviction for aggravated assault, even if it does not cause any actual injury. (People v. Covino (1980) 100 Cal.App.3d 660, 667-668.) Accordingly, we do not find substantial evidence to support an instruction on simple assault.
Moreover, for the same reason, we would find the failure to instruct to be harmless. (See People v. Berry (1976) 18 Cal.3d 509, 519 [failure to instruct simple assault not error because choking a victim to unconsciousness “necessarily indicates force likely to produce great bodily injury” and could not constitute mere simple assault].)
Exclusion of Character Evidence
Defendant contends the trial court erred in excluding character evidence, specifically Richardson’s testimony that Jane had a reputation as a liar and the witness’s opinion that Jane was a liar, who used people to get what she wanted.
To preserve for appeal a claim concerning the exclusion of evidence, the proponent must reveal to the trial court “[t]he substance, purpose, and relevance of the excluded evidence . . . by the questions asked, an offer of proof, or by any other means[.]” (Evid. Code, §354, subd. (a), italics added; People v. Whitt (1990) 51 Cal.3d 620, 648.) “An offer of proof should give the trial court an opportunity to change or clarify its ruling and in the event of appeal would provide the reviewing court with the means of determining error and assessing prejudice. [Citation.] To accomplish these purposes an offer of proof must be specific. It must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued. [Citations.]” (People v. Schmies (1996) 44 Cal.App.4th 38, 53; In re Mark C. (1992) 7 Cal.App.4th 433, 444.) “The trial court may reject a general or vague offer of proof that does not specify the testimony to be offered by the proposed witness” (People v. Carlin (2007) 150 Cal.App.4th 322, 334) or that does not establish the relevance and admissibility of the evidence. (People v. Morrison (2004) 34 Cal.4th 698, 725.)
During trial, defense counsel made the following offer of proof. Richardson “would testify that she’s known Jane Doe for eight years. She also knows [defendant]. She’s been around the two of them in social settings as well as around Jane Doe when Jane Doe was having problems with her son. She described Jane Doe as someone who uses people and is a liar. She stated that as long as [defendant] was providing her money, everything was fine and at the moment money ran short, that she, Jane Doe, reverted back to her old self. She stated Jane Doe was a known drug user and also one who took prescription medication drugs for her mental problems. [¶] She has seen Jane Doe lose her temper, scream, rant and rave at anyone who did not do what Jane Doe wanted. She stated that Jane Doe could become extremely violent and mean. She said that Jane Doe would get money from several men. When the money ran out, she would find someone new. She stated that Jane Doe would lie about things that happened mainly about men and she would lie about money. [¶] She lied to social services and about providing care for her children. She stated Jane Doe had gotten worse in the last two years. She believes that Jane Doe is not being truthful about [defendant] because [defendant] always acted like a gentleman when he’s been around Ms. Richardson and her daughter who’s 22 years old and has never seen [defendant] do anything inappropriate. She believes that Jane Doe is only making up this story to get benefits from the county so that she can get her son back. [¶] . . . [¶] I also understand that Ms. Richardson would testify that and I think it’s here just to make it clear that Jane Doe has a reputation for being untruthful.”
Apparently, defense counsel provided the prosecutor with a report reflecting the substance of his offer of proof.
At the hearing on admissibility, defense counsel further asserted, “I believe [Richardson] would testify that she’s been with Jane Doe when she saw Jane Doe make false statements.”
Jane’s Reputation
The trial court found insufficient foundation to admit the testimony that Jane had a reputation as a liar.
“Evidence of a person’s general reputation with reference to his character or a trait of his character at a relevant time in the community in which he then resided or in a group with which he then habitually associated is not made inadmissible by the hearsay rule.” (Evid. Code, § 1324.)
“As general reputation consists of the estimation in which one is held in the community in which he resides, it can only properly and safely be testified to by a member of the community; it is the opinion of a member of a community as to the estimation in which another, who moves in it[,] is held generally by that community. Such member has the means of knowing what that general reputation is, and can properly speak of it.” (Tingley v. Times Mirror Co. (1907) 151 Cal. 1, 27.) Testimony about a person’s reputation in the community must be based on knowledge of what the community thinks about the person, and not on what the particular character witness thinks. (See People v. Neal (1948) 85 Cal.App.2d 765, 771; People v. Long (1944) 63 Cal.App.2d 679, 684.) “ ‘Reputation is not what a character witness may know about defendant. Reputation is the estimation in which an individual is held; in other words, the character imputed to an individual rather than what is actually known of him either by the witness or others.’ ” (People v. McAlpin (1991) 53 Cal.3d 1289, 1311 (McAlpin) quoting People v. McDaniel (1943) 59 Cal.App.2d 672, 676, italics in McAlpin.)
Whether a witness is sufficiently qualified to testify as to the general reputation of another is a matter that rests primarily in the discretion of the trial court. The exercise of that discretion will not be disturbed on appeal unless an abuse appears. (People v. Paisley (1963) 214 Cal.App.2d 225, 233.) An abuse of discretion occurs if the court acted in an arbitrary, capricious, or patently absurd manner resulting in a manifest miscarriage of justice. (People v. Suon (1999) 76 Cal.App.4th 1, 4.)
In relevant part, defense counsel’s offer of proof indicated only that Richardson had known Jane for eight years and had been with her and defendant in some social settings. The offer did not establish that Richardson lived in or was familiar with the relevant communities where Jane lived, worked, or socialized. It did not show that Richardson knew people with whom Jane regularly associated. And, most importantly, it did not show that Richardson had ever personally spoken to anyone about Jane’s veracity, let alone a sufficient number to reflect the estimation of a relevant community. (See 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, §§ 288, 290, pp. 362, 363-364 [foundation concerning witness’s knowledge must be established to admit testimony about reputation].)
Given this lack of specificity, the trial court reasonably could find that the proffered testimony reflected only Richardson’s view of Jane’s reputation and not the view of a relevant group or community. Moreover, we do not find that the offer of proof established the admissibility of the reputation evidence as a matter of law. Thus, the trial court did not abuse its discretion in excluding it.
Defendant’s reliance on McAlpin, supra, 53 Cal.3d 1289 is misplaced. There, the trial court excluded the testimony of three witnesses that the defendant had a reputation for having normal sexual tastes. The Supreme Court did not summarize the foundational facts in the offer of proof, but we may presume that the offer established that witnesses were aware of the defendant’s reputation in the community because in finding the testimony admissible, the Supreme Court observed that personal knowledge of the defendant’s sexual tastes was unnecessary because his reputation was based on the estimation in which the defendant was held in his community. (Id. at pp. 1310-1311.) Thus, McAlpin does not suggest that there was sufficient foundation here or that the court abused its discretion in excluding the reputation evidence. (See People v. Paisley, supra, 214 Cal.App.2d at p. 233; Costler v. Norwood (1950) 97 Cal.App.2d 665, 667.)
Defendant’s reliance on People v. Lamar (1906) 148 Cal. 564 (Lamar) is also misplaced. There, the defendant called a witness to testify that the victim had a reputation in the small town of Mojave for being quiet and peaceful. “One J. H. Underhill, having qualified himself to speak on the subject, on inquiry as to the reputation of the deceased for those traits, stated that it was good. He was then asked if this was true of deceased under all circumstances, and replied that it was not.” (Id. at p. 569, italics added.) However, the trial court then erroneously precluded further testimony that the victim had a reputation for being violent, quarrelsome, and dangerous when he was intoxicated. (Id. at pp. 569-570.)
Lamar does not establish an abuse of discretion here because there the witness had been qualified to testify about the victim’s reputation, which we understand to mean that a proper foundation for his testimony had been established. Lamar does not establish that there was a sufficient foundation to admit reputation evidence.
Richardson’s Opinion
Concerning Richardson’s opinion that Jane was a liar, who used men to get what she wanted, the trial court also found that there was an inadequate foundation.
“Unless precluded by statute, any evidence is admissible to attack the credibility of a witness if it will establish a fact that has a tendency in reason to disprove the truthfulness of the witness’ testimony.” (People v. Humiston (1993) 20 Cal.App.4th 460, 479.) Thus, lay opinion testimony concerning the character of a witness for honesty is admissible, if the opinion is based on the personal observation and knowledge of the witness who offers it. (Evid. Code, §§ 702, 780, 786, 800, 1103; McAlpin, supra, 53 Cal.3d at pp. 1305-1306.) Where a witness has known an individual for a reasonable length of time, he or she may be qualified to render an opinion if it is based on personal observation and knowledge. (See McAlpin, supra, 53 Cal.3d at pp. 1305-1306; People v. Sergill (1982) 138 Cal.App.3d 34, 39.)
Although the offer of proof indicated that Richardson had known Jane for eight years, it did not explain, or provide a reasonable basis to infer, how Richardson knew that Jane allegedly lied about money and what happened to her with men. The offer did not show, and defense counsel did not further clarify, that Jane had lied directly to Richardson about men and money or about anything for that matter. Nor did counsel state that Richardson had personally heard Jane lie about such things to others or reveal the source of Richardson’s information. Thus, in the absence of evidence revealing that Richardson’s proposed opinion was based on personal observation or knowledge, the trial court could reasonably exclude the proposed opinion testimony.
Defense counsel did state that he “believed” Richardson would testify that she personally observed Jane lie to social services. However, counsel’s expectation that Richardson might so testify is not sufficient to establish either that the testimony was admissible or that the court erred in excluding that particular testimony. (See People v. Eid (1994) 31 Cal.App.4th 114, 127.) Moreover, counsel’s equivocal offer did not reveal the nature and substance of the allegedly false statement, show why it was false, or explain how Richardson came to think it was false. Consequently, the court reasonably could find that without more, Richardson’s opinion that Jane was a liar was not admissible simply because Richardson might testify that she heard Jane lie to some social service agency.
The prosecutor objected to this statement, arguing that the defense had failed to disclose this information about lies to some social service agency and thus the prosecution had not been able to investigate Richardson’s accusation. At that point, the court ruled that the testimony would not be allowed. It is not clear whether the court’s ruling was based on defense counsel’s alleged failure to provide timely discovery.
Even if it were error to exclude testimony that Jane lied to social services, the very vagueness of the offer of proof would prevent defendant from establishing prejudice. Since the record does not reveal the allegedly false statement, how Richardson knew it was false, whether Jane knowingly and intentionally made it, and whether it concerned a significant matter or something trivial, it would be pure speculation to find that the proposed testimony would have so undermined Jane’s credibility as to make it reasonably probable the jury would have reached a more favorable verdict. (See People v. Watson, supra, 46 Cal.2d 818, 836; e.g., McAlpin, supra, 53 Cal.3d at p. 1311 [Watson test applies to erroneous exclusion of character evidence].)
Defendant argues that any foundational deficiencies were matters for the prosecutor to pursue during cross-examination and not a valid reason to exclude the proposed testimony. We disagree. We know of no authority, and defendant cites none, for the proposition that a vague and unspecific offer of proof is sufficient to render opinion testimony admissible because the opposing party has an opportunity during cross examination show that the witness’s opinion lacks a proper foundation—i.e., is not based on personal knowledge or observation of facts that support it. Rather, the offer of proof itself must establish the relevance and admissibility of proffered testimony in the first instance. (See People v. Carlin, supra, 150 Cal.App.4th at p. 334; People v. Morrison, supra, 34 Cal.4th at p. 725.) Cross-examination is no substitute.
In sum, defendant has not clearly demonstrated that the court abused its discretion in finding the offer of proof inadequate and preventing Richardson from calling Jane a liar, accusing her of lying about men and money, and saying she made false statements to a social service agency.
Defendant’s reliance on People v. Wall (1979) 95 Cal.App.3d 978 (Wall), People v. Randle (1982) 130 Cal.App.3d 286 (Randle), and People v. Burrell-Hart (1987) 192 Cal.App.3d 593 (Burrell-Hart) is misplaced.
Burrell-Hart and Wall involved rape prosecutions and Randle involved a prosecution for oral copulation. In Burrell-Hart, the victim denied that she previously had falsely accused another man of rape after an argument in a bar. At an evidentiary hearing, a waitress testified that one night, a man slapped the victim, and the next day, the victim came in and said he had tried to rape her. The court excluded the proposed testimony. Later, the man testified that he had slapped the victim but denied going to her house. The victim admitted talking about the incident but denied accusing the man of attempted rape. (Burrell-Hart, supra, 192 Cal.App.3d at p. 597.) The court concluded that it was error, albeit harmless, to exclude evidence of the victim’s prior false accusation. (Id. at pp. 597-600.)
Similarly, in Wall, supra, 95 Cal.App.3d 978, defense counsel represented that the victim’s ex-boyfriend would testify that once she threatened to falsely accuse him of rape. (Id. at p. 983.) The court allowed the testimony but later erroneously struck it and advised jurors to disregard it because the court believed that the prior instance of the victim’s conduct was not admissible to impeach her credibility. (Id. at p. 983.) On appeal, the court held that in a rape prosecution, specific instances of nonsexual conduct is admissible to impeach credibility if it has a tendency to disprove the truthfulness of a witness’s testimony. (Id. at pp. 984-989.)
In Randle, supra, 130 Cal.App.3d 286, the victim testified that she met the defendant at a bar, they danced, and then he dragged her into the men’s room and forced her to orally copulate him. He said the act was consensual and denied using force. (Id. at pp. 290-291.) In a brief discussion that does not reveal the offer of proof, the appellate court held that “[t]he trial court committed error in excluding testimony that on two prior occasions at the same bar restaurant [the victim] had falsely complained of being a victim of purse snatch and of having been kidnapped. Evidence Code section 1103, subdivision (a)(1), authorizes the admission of evidence of the alleged victim’s character or trait of character—including evidence of specific acts—if offered by the defendant to show prior conduct of the victim in conformity with such character or trait of character. [Citation.]” (Id. at pp. 295-296.)
In each of these cases, the proposed witness had personal knowledge of the statements made by the victim and their falsity, the content of those statements was revealed, and the statements involved false accusations against other men. In sharp contrast, the offer of proof here was vague and unspecific concerning not only the statements made by Jane and but also Richardson’s personal knowledge of those statements. Thus, defendant’s cases do not establish that the trial court abused its discretion.
Exclusion of Evidence about Jane’s Former Boyfriend
Defendant contends the trial court erred in excluding evidence about Carlos Garcia, his relationship with Jane, and his prior acts of violence against both defendant and Jane.
At trial, defense counsel made an offer of proof that Brodie would testify that he had been Jane’s neighbor for several months. He had heard her “go off and start screaming and throwing things around her apartment.” He believed she was on medication. He would say that “Jane Doe’s previous boyfriend” Carlos, would wait at Jane’s apartment and then break in and beat up defendant. Counsel “believed” that Brodie would testify that he had seen Carlos hit Jane. Counsel continued that Brodie would say “that the former boyfriend, referring to Carlos . . . [would] hide in his car in the back of the parking garage and would wait for Jane Doe and [defendant] to show up, and then there would be a disturbance. Mr. Brodie believed that Jane Doe had mental problems and should be locked up. He also stated that she would use men [and] when their money ran out and she would turn on them.”
Defense counsel offered Brodie’s testimony to show that Jane was manipulative and had juggled defendant and Carlos at the same time. He argued that such conduct would undermine her credibility. He wanted to show that to avoid Carlos, defendant and Jane went to a motel to have sex instead of staying at defendant’s trailer. Last, counsel wanted to show that Jane encouraged Carlos to be violent and that Carlos could have caused Jane’s injuries.
The court excluded evidence of Carlos’s violence toward defendant but allowed Brodie to testify that he was Jane’s neighbor and had seen Carlos hit the victim around March 8.
Contrary to counsel’s offer, Brodie did not say that Carlos had hit Jane.
Defendant claims Brodie’s proposed testimony was admissible to show that he and Jane went to the motel to avoid Carlos, which, in turn, would “refute the suggestion that [defendant] only rented the motel room for an illicit purpose.” Defendant claims testimony that Jane manipulated and juggled two men was admissible to attack her credibility, and testimony that Carlos had previously assaulted Jane was admissible to show he inflicted Jane’s injuries. Defendant further claims the testimony was admissible to show why he and Jane argued at defendant’s trailer on March 10, which, in turn, would reveal Jane’s motive to falsely accuse defendant of rape and assault.
Only relevant evidence is admissible (Evid. Code, § 350) and all relevant evidence is admissible unless specifically excluded by law (Evid. Code, §351). “ ‘Relevant evidence’ ” is evidence “ . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)
Brodie’s proposed testimony did not tend to show that Jane was seeing Carlos and defendant at the same time, manipulated them, and thereby precipitated Carlos’s violence. The offer of proof was that Carlos was Jane’s former boyfriend, not a current rival with defendant, and there was no evidence to the contrary. Moreover, we fail to see how the proposed testimony that Jane was seeing two men simultaneously tended to undermine her credibility or her specific testimony about defendant’s acts.
Brodie’s proposed testimony was not admissible as his opinion that in general Jane manipulated multiple lovers at the same time because Brodie was not qualified to render it: He was not Jane’s personal friend and had been her neighbor for less than a year. In any event, his proposed testimony does not itself reveal a manipulative character trait because it does not show that Jane juggled relationships with Carlos and defendant, or any other two men, at the same time. Rather, Brodie’s proposed testimony more reasonably suggests that Carlos was a jealous former boyfriend, who perhaps could not tolerate Jane’s rejection and retaliated against her by attacking defendant. In short, the court did not abuse its discretion in excluding the proposed testimony for purposes of impeachment.
Brodie’s proposed testimony was also not admissible to show why defendant and Jane were at the motel on March 8: they feared Carlos. Simply put, their reason for being at the motel was irrelevant and had no tendency to show whether defendant had forcible or consensual intercourse with Jane. Nor was it admissible to refute the notion that defendant had rented the motel room only “for an illicit purpose” because there was no evidence to that effect. Jane did not suggest that defendant rented the room for some unlawful purpose. She testified that she had been there to have consensual sex with defendant in the past. Furthermore, we note that when defendant spoke to Officer Kobayashi, he did not suggest that he and Jane were trying to avoid Carlos. Rather, he said the whole purpose of the motel room was to have sex. Again, the court did not err in excluding Brodie’s proposed testimony to explain why defendant and Jane went to the motel on March 8.
Next, we note that “evidence that produces only speculative inferences is irrelevant evidence.’ [Citation.]” People v. Babbitt (1988) 45 Cal.3d 660, 682, quoting People v. De La Plane (1979) 88 Cal.App.3d 223, 242, disapproved on other grounds in People v. Green (1980) 27 Cal.3d 1, 39, fn. 25, italics in De La Plane.)
Defense counsel was unsure whether Brodie would say that Carlos had hit Jane in the past, let alone that he did so around March 8. Thus, the offer of proof did not support a reasonable inference that Carlos inflicted Jane’s injuries. Such an inference would have been speculation. Thus, the proposed testimony was not relevant and inadmissible to show that someone other than defendant injured Jane.
Last, concerning the exclusion of Brodie’s proposed testimony to reveal Jane’s motive to falsely accuse defendant, the Attorney General argues, and we agree, that defendant forfeited this claim of error. Defense counsel never offered the testimony to show motive. Thus, he may not claim that the court erred in excluding it for that purpose. (See Evid. Code, § 354 [proponent must make purpose and relevance of proffered evidence known to the court]; e.g., People v. Edwards (1991) 54 Cal.3d 787, 838; see also People v. Danielson (1992) 3 Cal.4th 691, 708, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [a party’s failure to raise a particular issue deprives their opponent the opportunity to attempt to rebut it with evidence or argument].)
In any event, an inference of a motive from Brodie’s proposed testimony, like the inference that Carlos might have caused Jane’s injuries, is so speculative as to render that testimony irrelevant and inadmissible. Defendant’s theory revolves around the story he told Officer Kobayashi about a whistler outside his trailer on March 10. According to defendant, Brodie’s proposed testimony that Carlos had previously attacked defendant supported an inference that defendant was afraid of Carlos; defendant’s fear caused him to suspect that Carlos was the whistler; when he mentioned this to Jane, they argued about it; and their argument made Jane so mad that the next day she falsely accused defendant of assaulting her on March 10, and raping her on March 8.
This chain of inferences is too weak to render Brodie’s proposed testimony about Carlos’s violence toward defendant admissible to show Jane’s motive. First, there was no evidence that Jane was still involved with Carlos on March 10, or that she was juggling the two men at that time. As noted, Brodie called Carlos her former boyfriend, not current lover. However, in his story to Officer Kobayashi, defendant spoke about thinking that the whistler was Jane’s “other” lover, who was there to pick her up.
Next, when he spoke to Officer Kobayashi, defendant did not suggest that hearing the whistler caused him to become frightened or even concerned for his or Jane’s safety. Nor did he say he took some action indicative of fear or concern, such as looking outside to see who it was, locking the doors, shutting the windows, or turning out the lights. Moreover, there was no evidence—and Brodie’s proposed testimony does not suggest—that Carlos even knew where defendant’s trailer was located or that defendant and Jane would be there on March 10. Nor was there any evidence to corroborate defendant’s claim that someone whistled in the first place. Brodie’s proposed testimony did not do so.
Under the circumstances, we consider it too speculative to infer from Brodie’s proposed testimony that the whistler was Carlos or even that defendant thought the whistler was Carlos. Indeed, if, in fact, defendant thought that Carlos had been lurking outside his trailer, then given the Carlos’s prior violence toward defendant, one would have expected defendant to identify Carlos by name to Officer Kobayashi, rather than refer to the whistler anonymously as Jane’s “other” lover.
Next, there is no evidence to explain why an argument about Carlos in particular would have induced Jane to falsely accuse defendant, and defendant does not suggest a plausible reason. One could infer that an argument about him might induce false charges if, for example, Jane was planning to leave defendant and return to Carlos or Jane thought defendant was unreasonably jealous of Carlos and had wrongly accused her of being unfaithful with Carlos. (Cf. People v. Williams (1975) 13 Cal.3d 559 [defendant killed victim immediately after a lover’s quarrel].) However, Brodie’s proposed testimony was that Carlos had attacked Jane in the past and was her former boyfriend. There was no evidence to the contrary. Thus, without some explanation, the fact that defendant and Jane might have argued about Carlos in particular would not have materially enhanced a claim of motive. Such a claim hinged on the fact that defendant and Jane argued, and that fact was undisputed. Jane admitted that they argued before she left. Thus, even if Brodie’s proposed testimony had some reasonable tendency to show that they argued about Carlos, it was unnecessary.
In our view, therefore, Brodie’s proposed testimony supported only speculation that there was an argument about Carlos, and since the fact that they might have argued about Carlos does not make it any more likely than not that their argument caused Jane to falsely accuse defendant, Brodie’s proposed testimony would not have been necessary or relevant to show motive. Thus, even if counsel had offered it for that purpose, the court properly could, and should, have excluded it.
Ineffective Assistance of Counsel
Defendant contends that defense counsel rendered ineffective assistance in first failing to object when the prosecutor elicited his story about the whistler from Officer Kobayashi and then not reoffering Brodie’s proposed testimony to impeach Officer Kobayashi and bolster the credibility of his story. He also claims counsel was ineffective in failing to object to prosecutorial misconduct.
Failure to Object to Officer Kobayashi’s Testimony or Reoffer Brodie’s Proposed Testimony
On direct, Officer Kobayashi related defendant’s story about the whistler. On cross-examination, defense counsel asked whether she had investigated that information. Officer Kobayashi said she had not. When defense counsel asked why not, she simply replied, “I didn’t.” On redirect, the prosecutor followed up and asked her whether she had believed defendant’s story. She said she did not believe him.
To obtain reversal due to ineffective assistance, defendant must first show “that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney[.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1003; Strickland v. Washington (1984) 466 U.S. 668, 688.) Where the record on direct appeal “does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation.” (People v. Anderson (2001) 25 Cal.4th 543, 596.) Because the defendant bears this burden, “[a] reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” (People v. Carter (2003) 30 Cal.4th 1166, 1211.) Second, defendant’s must show that there is “a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham, supra, 25 Cal.4th at p. 1003.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Staten (2000) 24 Cal.4th 434, 450-451.)
The record does not reveal the reasons for counsel’s omissions, and counsel was not asked to explain them. Defendant does not convince us that they were unreasonable as a matter of law; and we also find that they were harmless.
Concerning the failure to object, defendant asserts that the prosecutor knew defendant sought to introduce Brodie’s proposed testimony to show why they were at the motel on March 8. He argues that it was misconduct for the prosecutor to elicit testimony from Officer Kobayashi about Carlos when she knew the court had already excluded Brodie’s proposed testimony about him. (See People v. Chatman (2006) 38 Cal.4th 344, 379-380 [misconduct to intentionally elicit inadmissible evidence].) Defendant argues that counsel’s failure to object to that misconduct could not have been a reasonable tactical choice.
The failure to raise a meritless objection is not ineffective assistance of counsel. (People v. Felix (1994) 23 Cal.App.4th 1385, 1394-1395; e.g., People v. Samayoa (1997) 15 Cal.4th 795, 848 [“The record fails to demonstrate affirmatively that counsel’s omissions were not based upon a rational tactical basis, such as the reasonable assumption that such objections would be overruled”].)
Defendant does not assert that defense counsel was denied discovery about defendant’s statements to Officer Kobayashi. (See § 1054.1, subd. (b) [prosecution must disclose a defendant’s statement]; People v. Jackson (2005) 129 Cal.App.4th 129, 168-170.) Thus, we may assume that counsel was aware of the story about the whistler before trial. In our view, when Officer Kobayashi related the story, defense counsel did not see the connection between Carlos and the alleged whistler that defendant asserts for the first time on appeal. As noted, counsel did not offer Brodie’s testimony to establish that connection and thereby show Jane’s motive to falsely accuse defendant. Counsel’s failure to infer a connection is understandable because defendant never mentioned Carlos to Officer Kobayashi, and, as noted, it is speculative to infer that defendant might have been thinking of Carlos when he allegedly mentioned the whistler to Jane. Under the circumstances, counsel reasonably, and correctly, could have concluded that eliciting defendant’s story from Officer Kobayashi was not prosecutorial misconduct, and therefore an objection would have been overruled.
Defendant also fails to establish that counsel was ineffective in failing to reoffer Brodie’s testimony to impeach Officer Kobayashi and bolster the credibility of his story.
Although evidence is admissible to prove the existence or nonexistence of a fact testified to by a witness (Evid. Code, § 780; People v. Rodriguez (1999) 20 Cal.4th 1, 9), Brodie’s proposed testimony was not admissible for impeachment because it did not disprove or contradict Officer Kobayashi’s testimony that she did not believe defendant’s story. In other words, Brodie’s proposed testimony did not suggest that Officer Kobayashi believed it. In any event, whether or not Officer Kobayashi believed the story was irrelevant to any material issues at trial, including Officer Kobayashi’s credibility or the accuracy of her testimony about defendant’s statements. Finally, it was defense counsel who initially asked Officer Kobayashi why she did not investigate defendant’s story. Her further explanation on redirect simply explained why she did not investigate. It was not offered as an opinion on defendant’s credibility or as direct evidence that there was no whistler or that defendant had fabricated his entire statement.
Defendant argues that by reoffering Brodie’s testimony, counsel could have contradicted “the notion” that Carlos did not exist. However, Carlos’s existence was irrelevant. Again, it would have been speculation to infer that defendant was referring to Carlos when he said he thought the whistler was Jane’s other lover coming to pick her up. In any event, Officer Kobayashi did not imply that Carlos did not exist. She simply said that she did not believe defendant’s story. Brodie’s proposed testimony had no tendency to impeach or contradict that statement.
For the same reason, we reject defendant’s argument that Brodie’s testimony should have been offered under the theory of curative admissibility. Under that theory, when a witness gives testimony about something that is irrelevant or otherwise inadmissible, the opposing party may be allowed to impeach that testimony with contrary evidence despite its irrelevance if the inability to rebut the testimony would be highly prejudicial or damaging. (See 3 Witkin, supra, Presentation at Trial, §§ 352-353, pp. 439-442.) Here, Brodie’s proposed testimony was not admissible under this theory because, as noted, it did not impeach or contradict Officer Kobayashi’s testimony that she disbelieved defendant’s story.
Brodie’s proposed testimony alternatively would not have been admissible to bolster the credibility of defendant’s story because, as discussed, Brodie’s proposed testimony did not support a reasonable inference that the alleged whistler was Carlos or even that defendant thought so.
Finally, we note that defense counsel had already tried to introduce Brodie’s testimony to show why defendant and Jane were at the motel and to suggest that Carlos had inflicted Jane’s injuries. The court rejected those grounds for admissibility. Reoffering it for purposes of impeachment and credibility would not have changed the court’s previous determination.
Under the circumstances, counsel could have declined to reoffer Brodie’s testimony for impeachment and credibility, concluding that the court would have excluded it again. We do not find that conclusion to be unreasonable as a matter of law.
Failure to Object to the Prosecutor’s Argument
During his closing argument, defense counsel argued that the case hinged on Jane’s credibility. He claimed that she was acting. He noted her confusion over dates and how her testimony and demeanor changed on cross-examination. He argued that after making such serious charges against defendant, she had a motive to lie and an interest in maintaining her story. He claimed her stories were totally unbelievable. He asserted that her testimony differed from what she had told Officer Kobayashi. He argued that she gave details at trial that she had not told the police. And he noted that she never explained how she supported herself financially.
Counsel also characterized the police investigation as “pretty lacking.” He faulted Officer Kobayashi for not interviewing potential witnesses and criticized her for not investigating defendant’s stories simply because she did not believe him. Counsel also pointed out that Jane was never examined by a doctor concerning the rape charges. He argued, “There wasn’t anything really except her first report. I would submit to you that there was no investigation other than taking her at her word . . . .”
In her closing argument, the prosecutor asserted, among other things, that Jane “did report her sexual assault three days late, and the standard in our county is if it’s more than 48 hours after the event, there is no medical examination done so Officer Kobayashi cannot be faulted for not taking her for a medical exam.” (Italics added.)
The prosecutor also argued, “Ladies and gentlemen, you need to look at [Jane’s] evidence. You need to look at her testimony. You need to balance her testimony with how she reported to the police. The police took a ten-page report on March 11th with her details in it. As I said, she testified at the preliminary hearing and again, she came in here for two different days to tell you what happened. [¶] Now talk about being unbelievable. Look at what the [defendant] told Officer Kobayashi. First of all, he was consistent—inconsistent in his statement. He said that Jane stayed with him the entire time at the motel, a whole week, March 4th through March 10, but then in another breath he said on March 10th, he went to her apartment to pick her up. Those two don’t jive. She’s either at the motel or at her apartment, but he told Officer Kobayashi both things inconsistent and talk about ludicrous. Any lay person can see that they are not internal abscesses from anything.” [¶] Ladies and gentlemen, he was purposely evasive and false when he told that to Officer Kobayashi and she told you in her experience just as a human being about the reason and law enforcement experience about blunt trauma force. That is a bruise. It’s not an internal abscess. Also it was ludicrous about his statement that he [was] in his home in Salinas and he’d hear a whistle and he thought it was her other lover.” (Italics added.)
Defendant claims the prosecutor was guilty of misconduct in characterizing his story about the whistler as “ludicrous” and asserting facts about the county standard for medical examination and the length of the police report that were not in evidence. Thus, defendant argues that counsel was ineffective in failing to object.
Defense counsel complained about the prosecutor’s comments after the jury retired to deliberate. Counsel’s failure to object during the prosecutor’s closing argument bars defendant from directly raising prosecutorial misconduct on appeal unless an objection and admonition could not have cured the potential harm. (People v. Barnett (1998) 17 Cal.4th 1044, 1133.) Defendant claims that the harm was incurable. We disagree. The prosecutor’s comments were brief and not so probative or inflammatory that jurors could not have been expected to follow an instruction to disregard them.
Concerning the prosecutor’s comment that whistler story was ludicrous, defendant asserts that the prosecutor knew counsel had sought to introduce Brodie’s testimony about Carlos. He argues that “[i]t was, therefore, entirely improper for the prosecutor to argue that [defendant’s] statement about there being another lover was ‘ludicrous’ when she (the prosecutor) knew that Carlos existed and the only reason the jury did not learn about [Carlos] was because she had successfully blocked the admission of [Brodie’s testimony] . . . .” (Italics in original.)
A prosecutor is given wide latitude to argue the fact and law and respond to defense counsel’s arguments. (People v. Bemore (2000) 22 Cal.4th 809, 846; People v. Lucas (1995) 12 Cal.4th 415, 473.) “ ‘A prosecutor’s conduct violates the federal Constitution when it “infects the trial with such unfairness as to make the conviction a denial of due process.” [Citations.] “Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” [Citation.]’ ” (People v. Hinton (2006) 37 Cal.4th 839, 862-863; People v. Espinoza (1992) 3 Cal.4th 806, 820.)
In People v. Frye (1998) 18 Cal.4th 894, 978, the Supreme Court stated it was not objectionable for the prosecutor to refer to defense counsel as “ ‘irresponsible’ ” for raising suspicions about a witness or to characterize defense counsel’s challenge to another witness’s credibility as “ ‘ludicrous’ ” and “ ‘a smoke screen.’ ” The comments were, the court held, a fair response to defense argument challenging a witness’s credibility and reflected the prosecutor’s belief in the inadequacy of defense evidence. (Ibid.)
Here, defendant did not identify Carlos as the whistler to Officer Kobayashi, and the inference that Carlos was the whistler or that defendant thought so was speculative. Thus, the prosecutor did not imply that Carlos did not exist or otherwise suggest that Jane did not have other lovers. Thus, the prosecutor’s comment does not represent a deceptive or reprehensible effort to mislead the jury. The prosecutor acted within the scope of acceptable argument in characterizing the story about a whistler, as well as defendant’s claim that Jane’s bruises were abscesses from a sexually transmitted disease, as ludicrous and arguing that defendant was being purposefully evasive.
Under the circumstances, counsel reasonably could have concluded that an objection to the prosecutor’s comment would have been overruled.
We agree with defendant that it was misconduct for the prosecutor to assert facts about county medical procedures and the length of the police report that were not in evidence. (See People v. Hill (1998) 17 Cal.4th 800, 827-828 [referring to facts not in evidence is misconduct].) The Attorney General does not argue that prosecutor’s references were proper.
We note, however, that if the potential prejudice from an assertion of fact outside the evidence presented at trial is mild, it can be mitigated and rendered harmless by instructions that require jurors to decide the case based on only the evidence received at trial, warn them not to consider the statements of counsel to be evidence, and direct them follow the court’s instructions. (See CALJIC Nos. 0.50, 1.00, 1.02, & 1.03; compare People v. Hughey (1987) 194 Cal.App.3d 1383, 1396 [instruction curative] with People v. Woods (2006) 146 Cal.App.4th 106, 118 [instruction insufficient].)
Here, both before trial and at the close of the evidence, the court advised jurors that they must decide the case based solely on the evidence received during trial and no other source. It explained that the statements of counsel are not evidence. And it directed them to follow the instructions.
Moreover, the prosecutor’s comment about standard procedure concerning examinations was not inculpatory; it had no probative value on any material issue; it was not inflammatory; and the court did not implicitly or explicitly endorse it. Nor did the comment imply that an exam would have corroborated Jane if she had reported the rape sooner. Rather, the comment was the prosecutor’s response to defense counsel’s criticism that the investigation had been superficial and inadequate because no examination had been requested or performed. We believe the jury could and did understand the comment as such a response.
In connection with defendant’s motion for a new trial, the prosecutor so stated, explaining that her comment “was made in response to defense counsel’s inappropriate blame of law enforcement.”
Under the circumstances and in the absence of evidence to the contrary, we presume that the jurors were able to follow the court’s instructions and did not treat the comment as evidence in reaching a verdict. (See People v. Waidla (2000) 22 Cal.4th 690, 725; People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17 [“The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions”].)
We reach a similar conclusion concerning the prosecutor’s comment about the length of the police report. The length of the report was irrelevant and inconsequential because it was also undisputed that Jane spoke to the police about what happened. We assume that defense counsel had a copy of the police report containing her statement. (See § 1054.1, subd. (f) [defendant entitled to police reports containing statements of witnesses].) Thus, if Jane had testified to details that were not included in the report or if her testimony was not consistent with the report, defense counsel had ample opportunity to impeach her credibility. Again, the circumstances do not suggest that the jury would have had difficulty following the court’s instruction and disregarding the prosecutor’s comment.
Thus, even assuming that defense counsel should have objected to the prosecutor’s two comments, we do not find a reasonable probability that defendant would have obtained a more favorable verdict had counsel made timely objections and the court directed jurors to disregard both comments.
Denial of a Continuance
Defendant contends the court abused its discretion in denying his request for a continuance to secure the attendance of three witnesses. He claims the error denied him a fair trial, due process, and the right to present a defense.
A trial court has broad discretion concerning whether there is good cause for a continuance. (People v. Roldan (2005) 35 Cal.4th 646, 670.) To establish good cause for a continuance, the defendant must show that he exercised due diligence to secure the witness’s attendance, the witness could be obtained within a reasonable time, the witness’s expected testimony would be material, and the testimony would not be cumulative—i.e., facts to which the witness would testify to could not otherwise be proven. (People v. Howard (1992) 1 Cal.4th 1132, 1171.) In exercising its discretion, the court should consider “ ‘not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.’ ” (People v. Zapien (1993) 4 Cal.4th 929, 972.)
Where, as here, a criminal defendant seeks a continuance, a court may not exercise its discretion “ ‘so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.’ [Citation.] ‘To effectuate the constitutional rights to counsel and to due process of law, an accused must . . . have a reasonable opportunity to prepare a defense and respond to the charges.’ [Citation.]” (People v. Roldan, supra, 35 Cal.4th at p. 670; People v. Maddox (1967) 67 Cal.2d 647, 652.)
On appeal, the moving party bears the burden of establishing that denial of a continuance request was an abuse of discretion. (People v. Beeler (1995) 9 Cal.4th 953, 1003.) “A decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ [Citations.] In the absence of a clear showing that its decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate objectives and, accordingly, its discretionary determinations ought not be set aside on review.” (People v. Preyer (1985) 164 Cal.App.3d 568, 573-574.)
On Monday, June 20, 2004, counsel gave their opening statements. On Tuesday, Jane testified. She continued on Wednesday, followed by three other prosecution witnesses and one defense witness. Before the lunch recess, defense counsel requested a continuance until the following Monday to locate and produce Miguel Garcia. He conceded, however, that it “would be extremely difficult” to locate him.
The court summarized defense counsel’s previous offer of proof concerning Garcia’s testimony. Garcia would have said that he went to defendant’s motel room the night of March 8, stayed for about 15 minutes, saw a woman there, and did not notice anything out of place. He would have also said that he owned the car that Jane had driven and was trying to retrieve it. Finally, he would testify that defendant was honest and dependable. The court denied the continuance, finding that Garcia’s proposed testimony would be cumulative, in that the motel owner had already testified that nothing in the room was out of place when defendant left; Jane had admitted being at the motel that night; and both Richardson and Brodie provided testimony concerning defendant’s good character, saying that he was generous and nonviolent and treated Jane well.
Defendant claims that Garcia’s testimony was particularly material because he saw Jane the night of the alleged rape, she did not seek his help, and he did not see anything out of order in the room.
Although Jane testified that there was a struggle in the room, she did not suggest that anything was broken, torn, ruined, or thrown around. Moreover, defense counsel did not know whether Garcia and Jane knew each other, and it is impossible to tell from the offer of proof whether Garcia was there before or after the rape. Thus, the fact she did not seek the help from defendant’s friend Garcia and that nothing seemed out of place in the room would have had limited value in impeaching Jane’s credibility.
Under the circumstances, the court reasonably could, and did, find that Garcia’s proposed testimony would be cumulative. The court also reasonably could have found no reason to think that Garcia would be located within a reasonable time even with a continuance. Accordingly, the court did not abuse its discretion in denying a continuance to produce him as a witness.
Defendant’s reliance on People v. Buckley (1972) 23 Cal.App.3d 740 (Buckley) is misplaced. There the defendant was charged with unlawful possession of methamphetamines. His sole defense was that they had been lawfully prescribed. However, the trial court barred his testimony that the drugs had been prescribed. (Id. at pp. 742-743.) Surprised by the court’s ruling, defense counsel spoke to the prescribing doctor, who agreed to testify. However, the court denied a brief continuance to the time when the doctor was available. (Id. at p. 743.) In finding an abuse of discretion, the appellate court noted that the witness had been clearly identified; his testimony was “not merely material, it was critical, and highly necessary, especially in view of the court’s insistence on excluding appellant’s own testimony on his sole defense”; and counsel had been diligent in securing his appearance at the soonest possible time. (Id. at p. 744.)
Buckley is distinguishable. Garcia was not a witness as essential to the defense as the doctor was in Buckley. Moreover, the doctor was ready to testify on a day certain. Here, counsel conceded that it would be difficult to locate Garcia even with a continuance.
After the lunch recess, defense counsel again sought a continuance to locate two other witnesses—Israel Matos and Robert Patterson. Both had been in court on Monday but had failed to return on Wednesday, despite being ordered to do so. Counsel said that Patterson had previously assured the investigator that he would be present; the investigator was unable to locate Matos.
Apparently, defense counsel mentioned the missing witnesses before the lunch break, and the court extended the lunch break to two hours to give counsel time to find the two witnesses.
The court denied the renewed request. Concerning Matos, the court noted that he would have testified that he knew defendant and defendant’s relationship with Jane and was aware that defendant gave Jane financial assistance. The court found that Matos’s testimony would be essentially cumulative of defendant’s other character witnesses. Concerning Patterson, who was a security guard at Mortimer’s, the court noted that he would have testified that in the past, he had driven Jane to the motel room and would also testify concerning defendant’s good character. The court found that Patterson’s testimony was also unnecessary because it was undisputed that Jane had been to the motel room with defendant on a number of prior occasions. Moreover, the character testimony would be cumulative.
The previous offer of proof revealed that Matos and defendant had been friends for 15 years, he was aware of the romance between defendant and Jane, and he knew that defendant had helped her financially and taken care of her. He also knew that Jane had used drugs but had no knowledge of drug use during the relevant time period. He also thought that she had mental problems. At the time of the offer, the court allowed the character testimony, limited information about Jane’s drug use to the relevant time period, and excluded his perception of her having mental problems.
The previous offer of proof revealed that Patterson had given Jane and defendant rides to the motel room “to avoid her boyfriend who was always attempting to beat up [defendant].” He thought Jane was “a little weird” and opined that it was because she used cocaine. He had warned defendant to stay away from Jane because of her boyfriend and drug use.
We agree with the trial court that Matos’s and Patterson’s testimony concerning defendant’s good character, financial generosity, and benign behavior toward Jane would have been cumulative of Brodie’s and Richardson’s testimony and Jane’s own testimony that defendant helped her financially and bought her things. Although Matos and Patterson might have testified about specific instances of drug use, the court limited any such testimony to drug use during the relevant time period. The offers of proof did not suggest that they could have provided such evidence. In any event, Jane testified that she had been taking three prescription drugs for depression. Last, as the court pointed out, it was undisputed that Jane was at the motel on March 8, and that she had, on prior occasions, gone there with defendant to have consensual sex. Accordingly, it was neither irrational nor arbitrary for the court to find that the proposed testimony would have been cumulative.
Defendant argues that that additional character testimony from the three witnesses was unique and essential to refute Overberg’s BWS testimony “about a pattern of abuse and violent behavior that would have manifested in private, while [defendant] and Jane Doe’s relationship would otherwise appear to be quite ‘normal’ and upstanding to community members.” (Italics in original.) He argues that more character witnesses were needed “to rebut the notion that [defendant] engaged in a systematic pattern of abuse towards Jane Doe.” (Italics in original.)
Defense counsel did not make this argument in support of his renewed request. However, even if he had, it would not have rendered the court’s denial an abuse of discretion. Overberg admitted that she had not spoken to or even met Jane. Moreover, she did not testify or suggest that defendant had engaged in a systematic pattern of abuse toward Jane. Her testimony provided a basic explanation of domestic abuse and the type of behavior comprising the Cycle of Violence. She said that abusers can appear charming in public even while perpetrating abuse in private, sexual assault can be part of domestic abuse, and victims often feel trapped by their shame and unable to admit having an abusive relationship.
Furthermore, Brodie testified that he saw defendant at Jane’s apartment often and opined that he was peaceful toward her at home; and Richardson, who had been a rape crisis counselor, testified that Jane never exhibited any symptoms of abuse. In our view, the proposed testimony of Garcia, Matos, and Patterson would not have added much to Brodie’s or Richardson’s testimony because the offers of proof did not suggest that they knew much, if anything, about defendant’s behavior toward Jane in private.
Under the circumstances, and in the absence of any evidence that it was likely that counsel could have secured the witnesses within a reasonable time, the record does not establish good cause for a continuance as a matter of law or demonstrate an abuse of discretion.
Multiple Punishment
Defendant contends that in imposing concurrent terms on counts 2, 4, 5, and 6, the court violated the proscription against multiple punishment in section 654.
Section 654, subdivision (a) provides, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
“Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct.” (People v. Deloza (1998) 18 Cal.4th 585, 591.) The purpose of the statute is “to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense—the one carrying the highest punishment.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1134.) The protection of the statute extends to cases in which a defendant engages in an indivisible course of conduct comprising different acts punishable under separate statutes. (People v. Harrison (1989) 48 Cal.3d 321, 335.) Accordingly, “ ‘[i]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.’ ” (People v. Palmore (2000) 79 Cal.App.4th 1290, 1297.) Conversely, multiple punishment is permissible notwithstanding section 654 if the defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other. (People v. Braz (1997) 57 Cal.App.4th 1, 10.)
“A defendant’s criminal objective is ‘determined from all the circumstances and is primarily a question of fact for the trial court, whose findings will be upheld on appeal if there is any substantial evidence to support it.’ [Citation.]” (People v. Braz, supra, 57 Cal.App.4th at p. 10; see People v. Hicks (1993) 6 Cal.4th 784, 789.) We view the evidence in a light most favorable to the court’s factual determination and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. McGuire (1993) 14 Cal.App.4th 687, 698.)
This case involves two separate, continuous courses of conduct: one on March 8, which gave rise to counts 1 (rape) and 2 (corporal injury); and the other on March 10, which gave rise to counts 3 (corporal injury), 4 (false imprisonment), 4 (misdemeanor battery), and 6 (aggravated assault).
Concerning the March 8 incident, defendant argues that the infliction of corporal injury was incidental to and the means of accomplishing the subsequent rape. We agree. Jane testified that at the motel, defendant came out of the bathroom masturbating and immediately pressured her to have sexual intercourse with him. When she resisted, he pinched her arm, causing injuries, and then forcibly raped her. Under the circumstances, the record does not support the trial court’s implied finding that defendant had a separate intent and objective for each offense. On the contrary, the infliction of injury was incidental to the rape.
Concerning the March 10 incident, defendant argues that the false imprisonment (preventing Jane from leaving), misdemeanor battery (grabbing her hair), aggravated assault (choking her) as well as the infliction of corporal punishment (banging her head) were all part of a continuous and uninterrupted course of conduct motivated by a single objective and intent: to abuse Jane. Again, we agree and find that the record does not support an implied finding that counts 4, 5, and 6 were each committed with an intent and objective that was separate and different from the intent to inflict of corporal punishment behind count 3.
Under the circumstances, we conclude that the trial court erred in not staying the terms imposed on counts 2, 4, 5, and 6.
“When a defendant suffers multiple convictions, sentencing for some of which is precluded by operation of section 654, an acceptable procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable. Such stay is to be effective pending the successful service of sentence for the more serious conviction, at which time the stay is to become permanent.” (People v. Miller (1977) 18 Cal.3d 873, 886, overruled on another ground as stated in People v. Oates (2004) 32 Cal.4th 1048, 1067-1068, fn. 8.) Accordingly, we shall stay execution of sentence on counts 2, 4, 5, and 6.
Review of Medical Records
Prior to trial, defendant subpoenaed Jane’s medical records from Natividad Medical Center and asked the court to review them in camera to see whether there was any information relevant to Jane’s credibility that the defense was entitled to have. After the jury was sworn but before any witness testified, the court reviewed the sealed records in camera and determined that they did not contain any relevant discoverable information. (See People v. Hammon (1997) 15 Cal.4th 1117 [implying that upon showing of good cause, court may review privileged information in camera to determine whether it the right to confrontation compels its disclosure for use during cross-examination of a prosecution witness].)
Defendant requests that we review those medical records to determine whether the trial court properly determined that they were not discoverable.
We have done so and conclude that the trial court properly declined to release any information contained therein to the defense.
Disposition
The judgment is modified to stay the execution of sentence on counts 2, 4, 5, and 6 under section 654. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: PREMO, J., ELIA, J.
“In order to prove this crime, each of the following elements must be proved: [¶] (1) A person inflicted bodily injury upon [[his] [her] [former] spouse] [a [former] cohabitant] [the [mother] [or] [father] of [his] [her] child]; [¶ ] (2) The infliction of bodily injury was willful [and unlawful]; and [¶ ] (3) The bodily injury resulted in a traumatic condition.” (CALJIC No. 9.35.)
Defendant argues that instead of finding that he and Jane cohabitated, the jury could have found that they had a dating relationship.
“In order to find the defendant guilty you must all agree as to the particular crime committed, and, if you find the defendant guilty of one, you must find [him] [her] not guilty of the other[.] [, as well as any lesser crime included therein.]
“[The court cannot accept any verdict of guilty as to any lesser crime, unless you unanimously find [and return a signed verdict form] that defendant is not guilty as to the greater crime.]”
Moreover, because the alleged error did not result in the complete exclusion of evidence impeaching Jane’s credibility, it did not deprive appellant of the opportunity to present a defense. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) Accordingly, we reject defendant’s claim that the alleged error implicated defendant’s constitutional right to present a defense.
At the time of the offer, the court ruled that Patterson could testify that he had given rides in the past. He could also testify about drug use if it occurred during the relevant time period. However, he could not relate that they went to the motel to avoid violence, say that he thought Jane was weird, or mention that he had warned defendant about her.