Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC622049
ELIA, J.This appeal arises from a series of incidents in which appellant committed sexual offenses against two victims, V. Doe and M. Doe. A jury convicted appellant of one count of lewd and lascivious conduct upon V. Doe when she was 14 years old (Pen. Code, § 288, subd. (a), count one), one count of forcible rape of M. Doe (Pen. Code, § 261, subd. (a)(2), count four), and one count of forcible oral copulation of M. Doe (Pen. Code, § 288a, subd. (c), count five). As to count one, the jury found that appellant engaged in substantial sexual conduct with V. Doe.
Appellant contends that the trial court abused its discretion and he was denied due process and a fair trial when the court instructed the jury that it could use uncharged acts of molestation against M. Doe as evidence of his propensity to molest V. Doe; he was denied due process, a fair trial and the right to present a defense when the court instructed the jury that the prior uncharged acts of molestation involving M constituted crimes of moral turpitude the jury could consider in assessing his credibility; he was denied the effective assistance of counsel because his trial attorney did not object to the prosecutor's misconduct during closing argument; his conviction on count four should be reversed because there is no substantial evidence that the offense occurred during the time frame alleged in the information; and he was denied the effective assistance of counsel because as to count four, trial counsel should have requested an instruction on the lesser related offense of unlawful sexual intercourse with a minor. For reasons that follow, we affirm the judgment.
Facts and Proceedings Below
On February 13, 2008, which was after the prosecution rested its case in chief at trial and while appellant was in the middle of his testimony, the Santa Clara County District Attorney filed a first amended information in which appellant was charged with two counts of lewd and lascivious act on Jane Doe when she was under 14 years old (Pen. Code, § 288, subd. (a), counts one and two); one count of lewd and lascivious act on Jane Doe when she was 14 or 15 years old and the appellant was at least 10 years older than Jane Doe (Pen. Code, § 288, subd. (c)(1), count three); one count of forcible rape of M. Doe (Pen. Code, § 261, subd. (a)(2), count four); one count of forcible oral copulation on M. Doe (Pen. Code, § 288a, subd. (c), count five); one count of lewd and lascivious act on M. Doe when she was under 14 years old (Pen. Code, § 288, subd. (a) (occurring between November 1, 1982, and November 4, 1984), count six) and one count of lewd and lascivious act on M. Doe when she was under 14 years old (Pen. Code, § 288, subd. (a) (occurring between November 1, 1982 and November 4, 1984) count seven).
The name Jane Doe was used as the victim in counts one, two and three. However, at trial this victim testified. Her name begins with the letter V. Therefore, we will refer to this victim as V. Doe or V.
Counts four and five were alleged to be a continuing prosecution of the charges alleged in Riverside County Municipal Court case No. 005130, originally filed on or about December 30, 1985.
As to count one, it was alleged that appellant had substantial sexual contact with V. Doe, within the meaning of Penal Code section 1203.066, subdivision (a)(8). As to counts one and two, it was alleged that appellant committed violations of Penal Code section 288 against more than one victim, within the meaning of Penal Code sections 1203.066, subdivision (a)(7) and 667.61, subdivisions (b) and (e).
The court explained to the jury that counts six and seven were alternative charges to counts four and five respectively. As noted, the jury found appellant guilty as charged in counts one, four and five. In addition, the jury found appellant not guilty on counts two and three. The charges in counts six and seven were dismissed at the time of sentencing.
On May 16, 2008, appellant was sentenced to serve an indeterminate term of 15 years to life on count one, plus a determinate term of 16 years, calculated as the upper term of eight years on counts four and five to run consecutively.
On July 8, 2008, appellant filed a timely notice of appeal.
The Prosecution Case
Victim One, M. Doe
M. Doe was born in November 1970. When she was young, she lived in Riverside County with her mother, her younger sister and her grandparents. M.'s mother married appellant when M. was around 11 and M.'s younger sister was about three. M., her mother, her sister and appellant moved into a small house at the back of the property owned by M.'s grandparents. M.'s relationship with her mother and appellant was "very strained." M.'s mother slapped M., pulled her hair and threw her on the floor. Sometimes, appellant would spank M. with a belt. According, to M., her relationship with appellant began to deteriorate even more when appellant began to sexually molest her.
The first incident occurred one night when M. was about 11 years old. M. was in bed with appellant and her mother watching television when appellant put his hand on M.'s breast. M. got up and went to the bathroom, then started to go back to her bedroom when her mother ordered her to come back. M. complied. As M. lay in bed, appellant put his finger in M.'s vagina. M. testified that she was "almost paralyzed" with fear. On cross-examination, M. said that she believed they had been watching a movie entitled "Something about Amelia" during the first molestation. The defense attorney asked M. if she would be surprised to learn that the movie had first aired in January 1984. M. said yes. The court took judicial notice, over the prosecutor's objection, the television program "Something about Amelia" first aired on ABC on January 9, 1984.
Appellant continued to molest M. on a regular basis for the next few years. By the time M. reached the end of sixth grade or the beginning of seventh grade, the molestations escalated into sexual intercourse. M. and her sister slept together in their own bedroom in M.'s bed. Appellant often came into the room and undressed M. and himself. M. always resisted, either by clenching her legs together, or holding tight to her sister, but appellant was not deterred. Appellant would move M.'s sister to the side of the bed or to another bed, then he would get on top of M. and force her legs open. If M. resisted further, appellant would threaten to hurt her or her sister. M. was particularly fearful of what appellant might do to her sister because her sister suffered from epilepsy and was likely to have a seizure if appellant hurt her. Often during intercourse, appellant would try to kiss M., but she always turned away. On a few occasions, appellant would buy M. gifts, but this made M. feel like a prostitute.
When M. was in eighth grade, she lost interest in school and contemplated suicide. M. spent several months in the hospital refusing to speak to anyone. She did not disclose to anyone that she was being molested.
One afternoon when M. was in ninth grade, appellant orally copulated her in his bedroom. M.'s mother walked into the room. Immediately, she turned around and walked out. M. felt betrayed because she believed her mother knew what was happening.
M. turned 15 in November 1985. One night about a week after her birthday, appellant forced M. to have intercourse with him. M. ran away the next day, November 20, 1985. M. went to a friend's home and reported what appellant had done. The friend called the police. M. was taken to the hospital and later released to her grandmother. M. never heard from the authorities until the prosecutor in this case contacted her in 2004.
Appellant's Arrest and Interview
Department of Justice Special Agent Kristen Mansfield and District Attorney's Investigator Arthur King arrested appellant on February 16, 2006. Agent Mansfield told appellant that they needed to speak with appellant "about the situation with his stepdaughter in Riverside." Appellant acknowledged that he knew why they were there. As soon as appellant got into the agent's car, he started to talk about his relationship with M. Agent Mansfield gave appellant the Miranda advisement, but appellant continued to talk. Appellant said he had been in love with M. and that they had a sexual relationship, but "it had not been his fault."
Miranda v. Arizona (1966) 384 U.S. 436.
Agent Mansfield and Investigator King interviewed appellant at length at the Santa Clara County Sheriff's Department. The interview was recorded and the recording was played for the jury. In the interview, appellant admitted that he had intercourse with M. about four times. When asked if he started having sex with M. when she was 14, appellant responded, "having sex? No, no, no, no, not right away." Appellant said that he went to Mexico when he learned that the police were looking for him. After about a year, he returned to California and eventually settled in San Jose with a woman and her children, one of whom was V.
Investigator King told appellant that they were aware of his relationship with this woman and her children and asked appellant if he had ever molested V. Initially, appellant denied anything had happened, but then said, "I... one day touch her but a little, have never had sex with this girl, I have never penetrated... nothing like that, never happened. I have never even kiss her." King asked appellant if V. wanted him "to do more." Appellant replied, "Uh, yeah.... She wanted me to go to her bedroom and I walked away." Appellant said that he and V. had taken V.'s mother to the hospital one day and V. "wanted to do it," but he refused.
King pressed appellant for more details about V. He asked appellant where he touched V. Appellant replied, "I think her breast." King continued, "Was she trying to get you to touch her? Appellant said, "Yeah." Next, King asked appellant about the incident he had mentioned that took place at the hospital. Appellant said that V. was around eight years old at the time and that she had been sitting on top of him inside a car. V. unzipped his pants and put her hand on his penis. Initially, appellant said the touching made him "feel really awful," but later said he had an erection and that he had been "a little" excited. Appellant added that V. had wanted him to touch her vagina, but he refused.
Mansfield asked appellant about the time he had touched V.'s breast. Appellant said that he thought V.'s mother had seen him because she asked, "What are you doing to my daughter? V. was about 11 at the time. Toward the end of the interview, appellant mentioned that V. was pregnant. Repeatedly, the agents asked him if he was the father of the child, but appellant insisted that he was not.
Victim Two, V. Doe
Shortly after Mansfield and King interviewed appellant, they went to V.'s school and interviewed her in a private room. The interview was recorded and the tape was played for the jury. At the outset of the interview, the agents assured V. that she had done nothing wrong and that all they wanted was to get information from her. They told V. that they had arrested appellant because he had sex with M. when she was 14. They told V. that appellant had told them what he had done to her.
V. was very reluctant to talk. The agents asked her a number of questions that assumed that appellant had molested her. For example, the agents asked V. when and how the molestations had started. V. responded with silence or assertions that she could not remember. King asked, "About how old were you approximately? V. replied, "I was about.... I was little.... Uhm,... fourteen. Something like that." After much hesitation, V. admitted that appellant had touched her "once or twice." When pressed for details, V. said appellant had touched her "butt" and walked away without saying anything. When asked if her mother knew about the situation with appellant, V. said, "I never told her."
Mansfield told V. that appellant had admitted to doing more than touch her butt. Mansfield said, "It's important that he's not allowed to do it again. Don't you agree with that?" V. replied, "Yeah." Mansfield asked, "how long did this go on for?" V. said, "Not long.... Probably about a year. More or less." V. added that the relationship had involved "[j]ust touching," but that it had not occurred every day. V. said that appellant had once touched her breast outside her clothing when she was 13 or 14.
Mansfield said that she knew that appellant had touched V. elsewhere. V.'s response was inaudible, but when asked to describe the touching, V. said, "He didn't touch it all the way. It was like on the top a little bit." Mansfield asked, "So... did he touch your vagina? V. replied, "Well not the part of the vagina but above it, yeah. Not the vagina.... Above it."
At no time during the interview did V. express any concern for the baby she was carrying. However, later that day, V. went to the police station and told the agents that appellant had never touched her sexually. The discussion was taped and the recording was played for the jury. V. told the agents that during the initial interview she had been nervous and fearful for her baby. As a result, she had said false things about appellant because she "really wanted to go home."
V. testified at trial and reiterated what she told the agents in her second interview. That is, appellant had never touched her sexually and that she had said false things about him because she was nervous and fearful for her baby. V. said she loved appellant. She acknowledged, however, that he was the only person in the family who had a job.
V.'s Mother
V.'s mother testified that she had never seen appellant molest V. She doubted he could have done so because he was never alone with V. She acknowledged that appellant was the sole breadwinner for her and her children.
The Defense Case
Appellant's Testimony
Appellant immigrated to the United States in 1977. He met is future wife, M.'s mother, in the early 1980s. At some point, he lost his job and was evicted from his home. However, M.'s mother invited him to live with her and her parents. Appellant and M.'s mother married so that appellant could become a naturalized United States citizen. M.'s mother was 17 years older than appellant and they rarely had sex.
In 1984, when M. was around 14 and appellant was 24, appellant started to think of himself more as M.'s boyfriend that her father. M. often hugged appellant and rubbed her body against him in a sexual way. He responded by touching her breasts. After about eight months, appellant and M. regularly engaged in "pretend sex," that is, mutual kissing and fondling.
According to appellant, one night M. came into the bedroom where appellant and M.'s mother were sleeping. M. said she was afraid to be in her room, but appellant told her she could not sleep with them. M. lay on the floor and appellant gave her some blankets. Later, appellant lay down with M. and they had intercourse. According to appellant, M. was really willing "to do the sex and [he] did it." The next day, M. left home without explanation. A few days later, appellant learned that the police were looking for him, so he took M.'s mother and M.'s sister to Mexico. After about a year, they returned to the Bay Area where appellant lived and worked under his own name.
In 1994, appellant met V.'s mother who had two children from another relationship, V. and G. Appellant moved in with them and he and V.'s mother had two children of their own. Appellant came to love V. as if she were his own daughter. Appellant was adamant that he had never touched V. in a sexual way. He admitted that there were times over the years when he had touched V.'s breasts and butt in a non-sexual way.
When defense counsel asked appellant about his admissions to Mansfield and King about his sexual encounters with V., appellant said the agents had questioned him very aggressively and refused to accept his claims of innocence. As a result, he explained, he made up various incidents in the hope that the agents would release him after he told them what they wanted to hear.
On cross-examination, again, appellant insisted that all his sexual contacts with M. had been consensual. He said that M.'s allegation of forcible intercourse were lies; that M. had started to "come on" to him when she was around 14; and that he could not resist touching her. He and M. usually kissed and rubbed each other while fully clothed, but they had intercourse only one time and that was the night before M. ran away.
When asked by the prosecutor why M. would falsely accuse appellant of raping her, appellant explained that M. had started to bring friends home for parties and he might have been "a little too tough" in disciplining her for that misbehavior. They had a big fight the day before M. ran away, but M. came into his bedroom later that night and they had sex because "she wanted to do it."
Repeatedly, the prosecutor asked appellant why he had gone to Mexico so suddenly after M. ran away. Appellant evaded the questions. He insisted that he had not been trying to avoid the police. Appellant suggested that the idea for the trip came from M.'s mother. Eventually, the prosecutor asked if the trip to Mexico was a family vacation. Appellant said, "Yeah."
Later when the prosecutor asked appellant if he had told Mansfield and King that V. touched his penis in a hospital parking lot, repeatedly appellant refused to answer the question. Instead, he insisted that V. had never touched his penis. When asked why he had told the police that she had, appellant responded, "Because I had to do something to get out of there. It was too much answer, too much question that [I] have no answer for them." Appellant repeatedly said that the officers misunderstood what he was saying and put words into his mouth. Nevertheless, appellant acknowledged that he had never wavered in denying that he was the father of V.'s baby.
At the conclusion of cross-examination, the prosecutor read each of the charges to appellant and asked if he was guilty. Appellant denied all the charges, but acknowledged that he might have been guilty of some type of crime because he had sexual intercourse with M. when she was younger than 18.
The parties stipulated that appellant was not the father of V.'s baby.
Discussion
I. The Trial Court's Refusal to Conduct an Evidence Code Section 352 Analysis Before Giving CALRIM No. 1191.
During the conference on jury instructions, the court pointed out to both counsel that there was evidence of uncharged sex offenses. The court indicated that there had been lengthy off the record discussions between the court and counsel concerning the admission of this evidence. The court believed that it had an obligation to give an instruction on how to apply the evidence of the uncharged offenses because "there was evidence hanging out there which the jury instructions do not cover and that evidence that is hanging out there in the form of 1108 type evidence."
The court explained that if it did not instruct the jurors on how to use this evidence it would be error, because the jurors might use the evidence to convict appellant of "one or more charges based on that 1108 evidence which is hanging out there and they have not been properly instructed so those would be improper verdicts which we don't want." The court found that M.'s testimony regarding the uncharged acts of molestation could be considered by the jury as evidence that appellant had a propensity to commit the offenses charged in counts one, two and three involving V. Defense counsel objected to instructing the jury with a modified version of CALCRIM No. 1191 on the ground that the instruction was prejudicial, and the evidence had no probative value. Defense counsel requested that the court engage in an Evidence Code section 352 analysis before giving the jury the instruction. The court refused defense counsel's request. The court indicated that it had no obligation to conduct an Evidence Code section 352 analysis because "that relates to the admissibility of evidence and the court's obligation when it comes to jury instructions is to properly instruct the jury on the evidence that was actually received during the trial.... [¶] However,... even if [the court] were to do a 352 analysis there is no prejudice because the jurors already heard the evidence, so it would not overwhelm them to hear jury instructions that they've already heard and know."
However, the court found that M.'s testimony regarding the uncharged acts of molestation could not be used as propensity evidence to establish the charged acts involving M., nor could the prosecutor use the evidence of V.'s 2006 molestation charges as Evidence Code section1108 evidence to show that appellant had a propensity to molest M. in 1984. The court based its ruling on the fact that the offenses involving M. occurred before the passage of Evidence Code section 1108 and would thus violate ex post facto principles if the jury was allowed to consider the uncharged offenses as evidence that appellant had a propensity to commit the charged offenses against M.
The parties stipulated that if the court instructed the jury with CALCRIM No. 1191, the reasonable doubt standard should be used in place of the preponderance of the evidence standard. Accordingly, over defense objection, the court instructed the jury with a modified version of CALCRIM No. 1191 as follows:
"There was evidence in this trial that the defendant may have committed past sexual acts against [M.], some of which were charged in the complaint and some [of] which were not charged in the complaint. This evidence may be used by you, but you are not required to use as character evidence relating to the alleged sexual acts against [V]. [¶] These alleged past crimes are defined for you in these instructions. You may consider this evidence only if the People have proved beyond a reasonable doubt that the defendant, in fact, committed the uncharged or prior offenses. If the People have not met this burden of proof, you must disregard this evidence entirely for purposes of character evidence. [¶] If you decide that the defendant committed the uncharged offenses or prior offenses, you may, but are not required to conclude from that evidence the defendant was disposed or inclined to commit sexual offenses and based on that decision, also conclude that the defendant was likely to commit and did commit sex acts against [V.], as charged in Counts 1, 2 and 3. [¶] If you conclude that the defendant committed the uncharged offenses or prior offenses against [M.], that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant was guilty of the sex acts in counts 1, 2 and/or 3."
In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), our Supreme Court relied on the trial court's discretion to exclude propensity evidence under Evidence Code section 352 as the crucial factor meeting due process requirements. (Id. at pp. 917-918.)Appellant protests that the trial court refused to conduct an Evidence Code section 352 analysis before instructing the jury with CALCRIM No. 1191, that it could use the uncharged acts of molestation involving M. as evidence of appellant's propensity to molest V.
Evidence Code section 1108 states, "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352 ." (Italics added, hereafter 1108 evidence.) In Falsetta the California Supreme Court declared that "the trial court's discretion to exclude propensity evidence under section 352 saves section 1108 from defendant's due process challenge. As stated in [People v.] Fitch [(1997) 55 Cal.App.4th 172... ], '[S]ection 1108 has a safeguard against the use of uncharged sex offenses in cases where the admission of such evidence could result in a fundamentally unfair trial. Such evidence is still subject to exclusion under... section 352. (... § 1108, subd. (a).) By subjecting evidence of uncharged sexual misconduct to the weighing process of section 352, the Legislature has ensured that such evidence cannot be used in cases where its probative value is substantially outweighed by the possibility that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. (... § 352.) This determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.] With this check upon the admission of evidence of uncharged sex offenses in prosecutions for sex crimes, we find that... section 1108 does not violate the due process clause.' [Citation.]" (Falsetta, supra, 21 Cal.4th at pp. 917-918.)
In deciding whether to admit evidence under Evidence Code section 1108, the trial court "must engage in a careful weighing process under [Evidence Code] section 352" and "consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (Falsetta, supra, 21 Cal.4th at pp. 916-917.)
Appellant argues that his trial was rendered fundamentally unfair, depriving him of due process and a fair trial when the trial court instructed the jury that M.'s testimony regarding uncharged acts of molestation could be used as evidence of appellant's propensity to molest V., without first having engaged in the necessary Evidence Code section 352 analysis. This, appellant asserts, was a prima facia abuse of discretion. Alternatively, citing People v. Quintanilla (2005) 132 Cal.App.4th 572 (Quintanilla), appellant argues that the trial court abused its discretion in instructing the jury that it could consider M's testimony regarding the uncharged acts of molestation as propensity evidence because evidence admitted to prove the charged offenses, which cannot be excluded under Evidence Code section 352, cannot be used as evidence of the defendant's propensity to commit other charged offenses in the same proceeding.
Appellant's reliance on People v. Quintanilla, supra, 132 Cal.App.4th 572 (Quintanilla) is misplaced. The United States Supreme Court vacated the judgment in Quintanilla, in Quintanilla v. California (2007) 549 U.S. 1191. Although Certiorari was granted in Quintanilla solely on its resolution of a sentencing issue, generally, a decision is rendered null and void when it is reversed or vacated. (See 9 Witkin Cal. Procedure (4th ed. 1997) Appeal, § 758, p. 783, italics added ["The effect of an unqualified reversal... is to vacate the judgment, and to leave the case 'at large' for further proceedings as if it had never been tried, and as if no judgment had ever been rendered "].) On remand, although the First District Court of Appeal incorporated the original opinion by reference, their subsequent opinion was unpublished. (See Reporter's note, People v. Wilson (2008) 166 Cal.App.4th 1034, 1046.) Accordingly, we find Quintanilla of dubious precedential value. Furthermore, this court rejected the reasoning of Quintanilla in People v. Wilson, supra, 166 Cal.App.4th at p. 1052.)
The Attorney General responds that the trial court was not required to conduct an Evidence Code section 352 analysis because Evidence Code section 352 is necessary to determine the admissibility of evidence, not the appropriateness of jury instructions. The Attorney General's position misses the point. The problem in this case is that M. testified to uncharged acts of molestation involving appellant, after the trial court specifically noted that there was no Evidence Code section 1108 evidence being admitted. Given our Supreme Court's emphatic reliance on the trial judge's ability to exclude unduly prejudicial propensity evidence as a component of due process, we are reluctant to dismiss appellant's claim so dismissively.
On the other hand, when the evidence came in, defense counsel did not object on Evidence Code section 352 grounds. Appellant never moved to exclude the details of the uncharged offenses when M. testified. In fact appellant gave more details of some of them when he testified on direct examination that they just touched and kissed; he started touching M., or they had only pretend sex with their clothes on.
When the case was charged originally, appellant demurred to the complaint on the ground that Santa Clara County was an improper jurisdiction for appellant's crimes against M., which were alleged to have occurred in Riverside County. During argument on the demurrer, defense counsel acknowledged that propensity evidence under Evidence Code section 1108 might sometimes provide the necessary nexus between crimes committed inside and outside a single jurisdiction to support a consolidated trial, but also noted that propensity evidence is sometimes excluded under Evidence Code section 352. The court overruled the demurrer.
In essence, appellant takes the position that CALCRIM No. 1191 should not have been given in this case because the court had not engaged in an Evidence Code section 352 analysis.
Although generally CALCRIM No. 1191 is given only upon request (see Bench notes, CALCRIM No. 1191), "there may be the 'extraordinary case' in which evidence of past offenses play such a dominant part in the case against the accused that it would be highly prejudicial without a limiting instruction." (People v. Willoughby (1985) 164 Cal.App.3d 1054, 1067.) "Evidence of past offenses may not improperly affect the jury's deliberations if the facts are equivocal, the charged offense is dissimilar, or the evidence is obviously used to affect one or more of the many legitimate purposes for which it can be introduced. [Citations.] Neither precedent nor policy favors a rule that would saddle the trial court with the duty either to interrupt the testimony sua sponte to admonish the jury whenever a witness implicates the defendant in another offense, or to review the entire record at trial's end in search of such testimony. There may be an occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose. In such a setting, the evidence might be so obviously important to the case that sua sponte instruction would be needed to protect the defendant from his counsel's inadvertence." (People v. Collie (1981) 30 Cal.3d 43, 64.) In this case, either through inadvertence or because of a tactical decision, defense counsel did not object to M.'s testimony regarding uncharged sexual acts and in fact elicited from appellant more details about sexual acts he had performed with M. Furthermore, in this case the evidence of uncharged acts against M. was highly probative and more than minimally relevant.
Effectively, appellant received an unfair trial, if and only if, the evidence that M. presented should have been excluded under Evidence Code section 352, in which case there would have been no need to give CALCRIM No. 1191. Although, as we have noted, during his direct testimony appellant testified to some of the uncharged acts.
It appears appellant did not assert a specific federal due process claim in the trial court. Nonetheless, under People v. Partida (2005) 37 Cal.4th 428, his due process claim is subsumed within his Evidence Code section 352 objection, and thus has been preserved for appeal. Thus, he may argue "the asserted error in admitting the evidence over his Evidence Code section 352 objection had the additional legal consequence of violating due process." (Id. at p. 435.)
Normally, we apply the deferential abuse of discretion standard to a trial court's rulings under Evidence Code section 352. (People v. Pollack (2004) 32 Cal.4th 1153, 1171.) However, here, in essence appellant is asserting that he was deprived of his federal due process rights because the trial court refused to exercise its discretion under Evidence Code section 352.
To prove a deprivation of federal due process rights, appellant must satisfy a high constitutional standard to show that the alleged erroneous admission of evidence and the subsequent giving of a jury instruction based on that evidence resulted in an unfair trial. "Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must 'be of such quality as necessarily prevents a fair trial.' [Citation.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose." (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.)
Generally, "It is for the trial court to apply the Evidence Code section 352 standard and determine admissibility, or not, stating its reasons and reasoning on the record. This court may then review that record and determine whether an abuse of discretion occurred and, if so, whether such error was harmless." (People v. Jackson (1985) 174 Cal.App.3d 260, 266.) Normally, for this court to engage in the weighing process mandated by Evidence Code section 352 would constitute appellate error. (Ibid.) However, the dispositive issue in this case is "whether the trial court committed an error which rendered the trial 'so "arbitrary and fundamentally unfair" that it violated federal due process.' [Citations.]" (Reiger v. Christensen (9th Cir.1986) 789 F.2d 1425, 1430.) We are not persuaded that the trial court committed such an error.
As we shall explain, we conclude that appellant has failed to demonstrate any undue prejudice from the trial court's unchallenged admission of the 1108 evidence and the challenged giving of CALCRIM No. 1191.
As the Supreme Court stated in Falsetta, "trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other... offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]" (Falsetta, supra, 21 Cal.4th at p. 917.)
The first step in the balancing process is to evaluate the probative value of the proffered evidence. The probative value of evidence depends on its relevance. "Evidence is relevant if it has any tendency in reason to prove a disputed material fact. (Evid. Code, § 210.)" (People v. Waidla (2002) 22 Cal.4th 690, 718.) Here, there is little question that the evidence was probative. As our high court recognized in Falsetta, "evidence that [appellant] committed other sex offenses is at least circumstantially relevant to the issue of his disposition or propensity to commit these offenses." (Falsetta, supra, 21 Cal.4th at p. 915.) In fact, propensity evidence is often exceedingly probative. (Ibid. [such evidence is deemed objectionable, not because it has no appreciable probative value, but because it has too much].)
In the second step of the balancing process, the probative value of proffered evidence is weighed against its potential for prejudice, confusion, and the undue consumption of time. (Evid. Code, § 352.) " ' "The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against... [one party] as an individual and which has very little effect on the issues." ' [Citations.]" (People v. Garceau (1993) 6 Cal.4th 140, 178, overruled on another point in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.) "Often the most highly probative evidence is also highly damning, and therefore 'prejudicial' in a superficial sense of the word." (O'Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 575.) While such evidence might be "damaging" that does not necessarily make it "unduly prejudicial." (People v. Garceau, supra, 6 Cal.4th at p. 179.)
The probative value of the evidence must be balanced against four factors: (1) the inflammatory nature of the uncharged conduct; (2) the possibility of confusion of issues; (3) remoteness in time of the uncharged offenses; and (4) the amount of time involved in introducing and refuting the evidence of uncharged offenses. (People v. Branch (2001) 91 Cal.App.4th 274, 282 (Branch).)
We consider these factors in turn: As to the inflammatory nature of the uncharged conduct, in a case preceding the enactment of Evidence Code section 1108, the California Supreme Court observed that the potential for prejudice is decreased where the "testimony describing defendant's uncharged acts" is "no stronger and no more inflammatory than the testimony concerning the charged offenses." (People v. Ewoldt (1994) 7 Cal.4th 380, 405.) Here the uncharged sexual conduct involving M. was no more inflammatory that the testimony concerning the charged acts against V.
As to the possibility of confusing the issues, the jury did express some confusion over the charges against appellant involving V. However, the jury did not express any confusion regarding M.'s testimony or how it related to the charges against V. Nor was M.'s testimony likely to confuse or mislead the jury.
The jury asked the court to "Clarify between counts 1&2 the allegations and specific charges & the elements of the charges. [¶] Is there a direct link between the charges & specific incidences, Butt, Breast & parking lot[?]"
As to remoteness in time of the uncharged offenses, no bright-line rule exists "for determining when an uncharged offense is so remote as to be inadmissible." (People v. Branch, supra, 91 Cal.App.4th 274, 285.) Even 30-year-old offenses have been found to be admissible despite their remoteness in time, based on similarities with the charged offenses. (Id. at pp. 284, 286-287.) Here the uncharged offenses were very similar to the offense of which appellant was charged that involved. V.
As to the amount of time involved in introducing and refuting the evidence of the uncharged acts, given that appellant testified and confirmed at least some of M.'s testimony this factor does not weigh in appellant's favor.
In sum, none of the factors outlined in Branch compelled exclusion of the evidence in this case. Accordingly, because the evidence to which M. testified was not excludable under Evidence Code section 352, the trial court was correct in finding that CALCRIM No. 1191 was not merely an appropriate instruction, but necessary to protect appellant's interests. The primary effect of the instruction was to highlight that appellant could not be convicted of any charged crime, merely because he had committed a similar crime or crimes in the past. Absent the instruction, the jury could have used the evidence of appellant's uncharged prior sexual acts with M. for any purpose (Evid. Code, § 355), including as further evidence that he committed the charged acts against M.
Finally, even if this court considered that the trial court's failure to exercise its discretion and conduct an Evidence Code section 352 analysis resulted in a due process violation, that is a trial that was fundamentally unfair (Estelle v. McGuire (1991) 502 U.S. 62, 70 [112 S.Ct. 475]), and we applied the test under Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824] [reversal required unless appellate court finds beyond a reasonable doubt that error was harmless], which appellant contends is applicable here, we conclude that any alleged error was harmless beyond a reasonable doubt.
Appellant disagrees and contends that absent "the court's instruction, which permitted the jury to consider [M.'s] testimony regarding uncharged acts of molestation as propensity evidence," the jury would have had a reasonable doubt regarding the allegations involving V., resulting in an acquittal on count one. Appellant asserts that the fact that the jury had a legal question, that it deliberated for a long time, and that ultimately it acquitted appellant of two of the molestation charges involving V. indicates that this was a close case with respect to the allegations involving V. We disagree.
The jury deliberated for approximately seven hours over two days before reaching a verdict.
Here, the jury had to determine the issue of guilt on five charges involving two victims and the truth of two allegations. The length of the jury's deliberations cannot be said to be unduly significant in light of the complexity of that task. Furthermore, the jury request for a cassette player indicates that during part of the deliberation process they were reviewing testimony. The jury's time spent reviewing that testimony reduced their time spent actually deliberating. (People v. Walker (1995) 31 Cal.App.4th 432, 438 [jury's 6.5 hours of deliberations after a 2.5 hour trial were not an indication of a close case, particularly when some time was spent listening to testimony read backs].) In short, to conclude that this was a "close case" in light of the jury's actions, "in the absence of more concrete evidence would amount to sheer speculation on our part. Instead, we find that the length of the deliberations could as easily be reconciled with the jury's conscientious performance of its civic duty, rather than its difficulty in reaching a decision." (Id. at p. 439.)
As to the fact that the jury acquitted appellant of two counts involving V., this does not indicate that this was a close case. The most reasonable inference to be drawn from this is that the prosecution failed to prove more than one incident of touching. In addition, both appellant and V. admitted in their initial interviews with Mansfield and King that they had sexual contact with one another. V. acknowledged that appellant had touched her breast, butt and the area above her vagina. Although V. recanted before trial and during trial, her credibility was extremely suspect given that she expressed no concern for her baby during her first interview and acknowledged that appellant was the only person in the family that had a job.
Moreover, appellant's admissions to Mansfield and King were particularly damaging and he virtually destroyed his credibility with the jury by insisting that the officers put words into his mouth and he had to make something up so he could get out of the interview, when the jury could hear the taped admissions.
In sum, after reviewing the entire record we conclude that any alleged error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18, 24.)
II. The Trial Court's Failure to Conduct an Evidence Code Section 352 Analysis Before Instructing the Jury with CALCRIM No. 316.
As part of the modified propensity instruction—CALCRIM No. 1191—the court told the jury "The alleged prior sex acts against [M.] are also known as crimes of moral turpitude. If you should find the defendant committed the prior sex acts against [M.], you can consider them in determining the credibility of the witness, Maximo Quiroz. Please see CALCRIM 226 which is entitled 'Witnesses' regarding how to evaluate the credibility of witnesses."
Initially, it is important to note that appellant does not contend that this evidence was inadmissible or could not be used for the purpose for which the trial court instructed the jury. Rather, similar to his last argument, he contends that the trial court failed to conduct an Evidence Code section 352 analysis before instructing the jury that appellant's prior uncharged crimes were crimes of moral turpitude that could be used in evaluating appellant credibility.
For the same reasons we outlined in section I above, we conclude that any alleged error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18, 24.)
III. Prosecutorial Misconduct and Ineffective Assistance of Counsel
Appellant argues that the prosecutor committed misconduct by 1) suggesting the jury should consider punishment as a factor in determining appellant's guilt or innocence; 2) asking for a verdict based upon anger or revenge; 3) improperly appealing to the jury's passions and prejudice; and 4) arguing facts not in evidence.
"Prosecutorial misconduct implies a deceptive or reprehensible method of persuading the court or jury." (People v. Price (1991) 1 Cal.4th 324, 448, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165.) Although prosecutors are given "wide latitude" in arguing their cases, they "are held to an elevated standard of conduct." (People v. Hill (1998) 17 Cal.4th 800, 819.) The imposition of this higher standard is justified by their "unique function... in representing the interests, and in exercising the sovereign power, of the state." (Id. at p. 820.)
To warrant reversal, the challenged conduct must be prejudicial. "What is crucial to a claim of prosecutorial misconduct is... the potential injury to the defendant." (People v. Benson (1990) 52 Cal.3d 754, 793.) When the claim "focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Generally, in order to answer that question, we examine the prosecutor's statement in the context of the whole record, including arguments and instructions. (People v. Morales (2001) 25 Cal.4th 34, 44.) "In conducting this inquiry, we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements." (People v. Frye (1998) 18 Cal.4th 894, 970, overruled on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
As a matter of federal constitutional law, a prosecutor's behavior constitutes prejudicial misconduct when it is "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.]" (Hill, supra, 17 Cal.4th at p. 819, internal quotation marks omitted.)
Appellant did not object to the cited instances of misconduct. As a general rule, a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant raised an objection and requested that the jury be admonished to disregard the impropriety. (People v. Ayala (2000) 23 Cal.4th 225, 284.)
Attempting to overcome the forfeiture problem, appellant argues that his trial counsel rendered ineffective assistance by failing to object to the aforementioned alleged instances of prosecutorial misconduct.
To establish ineffective assistance of counsel, defendant must show that counsel's performance "fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 [104 S.Ct. 2052]; see also People v. Hester (2000) 22 Cal.4th 290, 296.)
Initially, we note that whether to object to alleged prosecutorial misconduct is an inherently tactical decision; hence, failure to object rarely establishes counsel's incompetence. (People v. Maury (2003) 30 Cal.4th 342, 415-416, 419.)
Nevertheless, here, even if this court assumed for the sake of argument that each of the prosecutor's comments amounted to misconduct, we need not determine whether counsel's decision not to object was professionally unreasonable. We can resolve the ineffective-assistance claim by proceeding directly to the issue of prejudice, i.e., the issue of whether there is a reasonable probability that the outcome would have been different absent counsel's challenged actions or omissions. (Strickland v. Washington, supra, 466 U.S. at p. 697.)
Given the strength of the evidence in this case, as noted in section I, and the trial court's instruction to the jurors to base their verdicts on the evidence, not on the argument of counsel, which we presume the jurors followed (People v. Dennis (1998) 17 Cal.4th 468, 521), we find no reasonable probability that the prosecutor's comments affected the verdict rendered within the meaning of Strickland v. Washington, supra, 466 U.S. 668, 688.
IV. Insufficiency of the Evidence to Support Count Four
Appellant contends that there was insufficient evidence to support his conviction on count four, the forcible rape of M. In particular, because M. did not specifically describe a forcible rape during the time period November 1, 1984 to December 31, 1984, appellant contends his conviction must be reversed. We disagree.
"To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Kipp(2001) 26 Cal.4th 1100, 1128.)
In this case, count four alleged a single count of forcible rape "on or about November 1, 1984 through December 31, 1984...." As appellant notes, M. did not give precise dates for most of the sexual assaults to which she testified. She said that the molestations started when she around 11 years old (i.e. in 1981) and that they escalated into intercourse by the time she was in late sixth or early seventh grade when she was 12 or 13 years old, which would have been in 1982 or 1983. M. described the first act of sexual intercourse that occurred in 1982 or 1983. Thereafter she agreed with the prosecutor's statement that it "became sort of a regular pattern." Thereafter, M. explained that the last time appellant had intercourse with her was the night before she ran away from home when she was 15 years old. M. recalled running away from home on November 20, 1985.
Initially, we note that Penal Code section 955 states: "The precise time at which the offense was committed need not be stated in the accusatory pleading, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material ingredient in the offense." Thus, it is settled law that "[v]ariation from the allegations of an information within the period of limitations is not fatal except where it appears that commission of the act charged does not constitute a crime unless committed on a specific date. [Citations.]" (People v. Murray (1949) 91 Cal.App.2d 253, 257.)
Appellant provides a detailed discussion of People v. Jones(1990) 51 Cal.3d 294, (Jones). Jones concerned the sufficiency of generic testimony by a child victim/witness who was subjected to sexual molestation over an extended period of time by a resident child molester. (Id. at pp. 299-300, 315-316.)
In child molestation cases, "generic testimony" is sometimes presented, in which a victim describes multiple incidents that are not differentiated by dates, times, or places. Such testimony may be presented in cases where the molester has resided in the victim's home and molested the victim repeatedly, so that "[a] young victim... may have no practical way of recollecting, reconstructing, distinguishing or identifying by 'specific incidents or dates' all or even any such incidents." (Jones, supra,51 Cal.3d at p. 305.) This can create certain issues of proof in molestation cases. In Jones, the court reconciled the tensions between a defendant's due process rights with society's need "to assure that the resident child molester is not immunized from substantial criminal liability merely because he has repeatedly molested his victim over an extended period of time." (Ibid.) It held that generic testimony could support a conviction if certain minimum requirements are met: "The victim, of course, must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., 'twice a month' or 'every time we went camping'). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., 'the summer before my fourth grade,' or 'during each Sunday morning after he came to live with us'), to assure the acts were committed within the applicable limitation period." (Jones, supra,51 Cal.3d at p. 316.)
Citing People v. Mejia (2007) 155 Cal.App.4th 86, 97 (Mejia), appellant urges this court to reverse his conviction on count four because there was no substantial evidence that he engaged in forcible sexual intercourse with M. during the time period November or December 1984.
In Mejia, the defendant was charged with committing nine counts of sexual abuse against his granddaughter, when she was 13 to 14 years old. The jury found him guilty of eight of those charges: continuous sexual abuse of a child under 14 years of age in violation of Penal Code section 288.5, subdivision (a); six counts of committing a lewd act on a child of 14 or 15 years of age in violation of Penal Code section 288, subdivision (c); and forcible rape in violation of Penal Code section 261, subdivision (a)(2). (Mejia, supra, 155 Cal.App.4th at p. 89.) On appeal, among other things, the defendant contended that there was constitutionally insufficient evidence to support his convictions for continuous sexual abuse. (Ibid.)
Penal Code section 288.5, subdivision (a) provides: "Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of [Penal Code] Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in [Penal Code] Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child...." (Italics added.)
Rejecting the Attorney General's assertion that the generic testimony of abuse was sufficient to support a section 288.5 conviction in Mejia's case (Mejia, supra, 155 Cal.App.4th at p. 97), the Court of Appeal held that while "generic testimony may suffice, it cannot be so vague that the trier of fact can only speculate as to whether the statutory elements have been satisfied." (Ibid.)
In Mejia, the prosecution had to establish that the defendant had engaged in three or more acts of substantial sexual contact with the victim over a period of not less than three months. Thus, unlike this case, the time period within which the three acts occurred was, essentially, an element of the crime. (Mejia, supra, at pp. 96-97.) Accordingly, we find Mejia distinguishable.
Appellant argues that M.'s testimony did not describe the general time period of the acts, because M. testified only to the first act of intercourse in 1982 or 1983 and the last act of intercourse on November 19, 1985. In between the first and last act, M. only agreed with the prosecutor's characterization that sexual intercourse "became sort of a regular pattern." However, there was no testimony at all concerning the general time period in November and December 1984.
The requirement that a victim describe the general time period during which acts occurred is "to assure the acts were committed within the applicable limitation period." (Jones, supra, 51 Cal.3d at p. 316.)
In Jones, our Supreme Court concurred with the analysis in People v. Moore (1989) 211 Cal.App.3d 1400, where one count of the information charged an act of rape occurred during the period from June 1 to August 31, 1985, and the victim's testimony outlined a series of undifferentiated rapes " 'almost every night' " during that period. (Jones, supra, at p. 316.) Similarly, in this case, M. testified that the first rape occurred by the time she was in late sixth grade or early seventh grade (1982 or 1983) and appellant raped her on a regular basis until she ran away in November 1985, when she was 15. While the prosecutor could have done a better job in establishing the time frame, the evidence was sufficient for the jury to rationally conclude that at least one of the rapes occurred during the final two months of 1984 as alleged in the information.
"[S]ince credibility is the true issue [citations], the jury either will believe the... testimony that the consistent, repetitive pattern of acts occurred or disbelieve it. In either event, a defendant will have his unanimous jury verdict [citation] and the prosecution will have proven beyond a reasonable doubt that the defendant committed a specific act, for if the jury believes the defendant committed all the acts it necessarily believes he committed each specific act [citations]. Time is only an essential allegation if the defense is one of alibi; otherwise, the prosecution need only prove the act alleged was committed before the filing of the information and within the statute of limitations." (People v. Moore, supra, 211 Cal.App.3d 1400, 1414.) That occurred here.
Of course, in this case the felony complaint was filed in 1985, well within the statute of limitations for rape.
As a reviewing court we may consider all competent and reliable testimony regarding the kind, number and time period of the offenses committed in determining whether substantial evidence supports the judgment. (See People v. Newlun (1991) 227 Cal.App.3d 1590, 1601-1602.) Since M. agreed with the prosecutor that appellant raped her on a regular basis from 1982/1983 until she ran away in November 1985, we find ample evidence to support count four. Thus, we reject appellant's challenge to the sufficiency of the evidence on count four.
V. Ineffective Assistance of Counsel for Failing to Request a Jury Instruction on Unlawful Sexual Intercourse with a Minor as a Lesser Related Offense to Count Four.
Appellant contends that if this court does not reverse his conviction on count four for insufficient evidence, his conviction must be reversed because his counsel was ineffective by not requesting an instruction on the lesser related offense of unlawful sexual intercourse with a minor (Pen. Code, § 261.5), which was supported by the evidence and "enveloped appellant's defense to count 4."
We reiterate, to establish ineffective assistance of counsel, defendant must show that counsel's performance "fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S. 668, 688, 694; see also People v. Hester, supra, 22 Cal.4th 290, 296.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Lucas (1995) 12 Cal.4th 415, 436.)
An appellant who alleges ineffective assistance on direct appeal bears an especially heavy burden of proof: " '[I]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,]... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' the claim on appeal must be rejected. [Citations.]" (People v. Wilson (1992) 3 Cal.4th 926, 936; see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.) " ' "Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission." ' [Citation.]" (People v. Lucas, supra, 12 Cal.4th at p. 437.) Furthermore, defense counsel is not required to make futile motions or to indulge in idle acts in order to appear competent. (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091.)
Applying this standard here, we conclude trial counsel was not ineffective because there was a very good reason why he did not request a lesser-related instruction -- it would have been futile: on this record the prosecution would not have agreed to such an instruction.
Ordinarily, the court must instruct sua sponte on general principles of law that are relevant to the issues raised by the evidence. (People v. Carter (2003) 30 Cal.4th 1166, 1219.) In addition, the court is obligated to instruct on the defense theory on request "if it is supported by substantial evidence, i.e., if a reasonable jury could conclude the particular facts underlying the instruction existed." (People v. Sullivan (1989) 215 Cal.App.3d 1446, 1450.) However, under People v. Birks (1998) 19 Cal.4th 108, "trial courts can no longer instruct juries on... related, but not included, offenses without the prosecutor's permission." (People v. Martinez (2002) 95 Cal.App.4th 581, 586.)
Shortly after the conclusion of the defense case, the trial court summarized a discussion that had taken place between the court and the attorneys concerning jury instructions. The court noted that the prosecutor "did not want lessers for any of the alleged crimes."
Since the prosecutor expressly declined instructions on lesser-included offenses of any kind, we find it inconceivable that the prosecutor would have agreed to a defense request for an instruction on a lesser-related offense on count four. Being fully aware of the prosecutor's position, defense counsel cannot be faulted for failing to request an instruction that he knew the trial court could not give. Accordingly, appellant's ineffective assistance of counsel claim fails to surmount the first hurdle.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.