Opinion
F069937
05-08-2017
THE PEOPLE, Plaintiff and Respondent, v. RICHARD JUNIOR SALAZAR, Defendant and Appellant.
Karriem Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRM031951)
OPINION
APPEAL from a judgment of the Superior Court of Merced County. Mark V. Bacciarini, Judge. Karriem Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted Richard Junior Salazar of raping his ex-girlfriend. He was sentenced to eight years in prison. Salazar appeals the conviction on grounds that testimony by a domestic violence expert was erroneously admitted and used for improper purposes at trial. There are additional claims of ineffective assistance of counsel based on the failure to preserve certain issues for appellate review. We conclude Salazar did not suffer prejudice from the alleged errors, and thus affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Salazar was charged by information with two counts of forcible rape (Pen. Code, § 261, subd. (a)(2); counts 1 and 2); one count of forcible oral copulation (§ 288a, subd. (c)(2)(A); count 3); and one count of assault with intent to commit oral copulation or rape (§ 220, subd. (a); count 4). These charges were based on an incident that occurred in January 2014. The case was tried to verdict in July 2014.
Except where otherwise specified, all further statutory references are to the Penal Code.
All evidence was presented during a single day of trial. The People called three witnesses: the victim, hereafter referred to as C.P.; Vicky Farabee, a registered nurse who conducted a sexual assault examination of the victim; and Detective Raquel Rios of the Merced Police Department, who was called to testify as a domestic violence expert. The defense called one witness, Salazar, who testified on his own behalf. The claims on appeal primarily concern the testimony of Detective Rios, which is detailed further in our Discussion, post.
Prosecution Case
On January 2, 2014, C.P. visited Salazar at his apartment in Merced to discuss child custody issues and to have him accompany her on an errand to buy baby formula. She had known Salazar for over five years; they began dating in August 2008, cohabitated from November 2008 until approximately December 2012, and had two children together during that time period. They broke up for about seven months before resuming an "off and on" relationship in July 2013. C.P. testified that they were in "one of the off phases" on the night in question.
C.P. arrived at the apartment around 8:30 p.m. and was immediately concerned to see Salazar drinking vodka, "because when he drinks he gets upset." Nevertheless, as she waited for him to get ready to go to the store, C.P. broached the subject of wanting to establish a legally enforceable child custody arrangement. He refused to agree to any type of custody split. They apparently discussed the topic at length because on cross-examination C.P. estimated she was in the apartment for over an hour before Salazar became aggressive. The turning point came when she attempted to return some jewelry that he had given to her and told him, "This isn't working." Salazar reacted by pushing her against a wall, placing his thumb and index finger over her throat, and choking her for approximately 15-20 seconds. Upon releasing his grip, he laughed and said, "I love you. I would never hurt you."
It was revealed on cross-examination that C.P. exited the apartment following the choking incident but went back inside at Salazar's request. They eventually went into his bedroom (why was never explained) and he tried to initiate sex. Salazar maneuvered C.P. into a sitting position on his bed, ignoring her attempts to push him away and verbal commands to "stop." She reminded him that they "weren't together" and said, "I didn't come here for this. ... Let's just go to the store to get the formula." Salazar "got upset and was saying, 'Why can't I show you how much I love you?' "
C.P. kicked at Salazar, striking him in the mouth, yet he persisted. She eventually "gave up" and stopped physically resisting, which is when he removed her pants and licked her genitalia. She continued to say "stop" during a brief act of oral copulation, but Salazar put his hand over her mouth and said, "Shush. Just wait. Just a minute. Just be quiet." C.P. resumed her efforts to wrestle free and succeeded in rolling off the bed, but soon felt overpowered and "gave up again." Salazar then had intercourse with her for approximately 45 minutes.
After he had ejaculated, Salazar went into the bathroom and left C.P. alone while she hurried to get dressed and leave. She testified that he soon returned and began taunting her: "He came out and he told me who do I think I am, that I am going to go back to my mommy and daddy's place and call the cops. Call whoever, no one is going to stop him from seeing his kids." C.P. rushed toward the front of the apartment, but Salazar blocked her path and cursed at her. She responded, "What did I do to deserve this? The mother of your children?" His demeanor changed and he apologized, asking her to sit on the couch and talk to him. She complied, believing acquiescence would help to expedite her departure, and listened as Salazar spoke about their relationship and professed his love for her.
While they were seated on the couch, Salazar repeatedly asked for a hug, which C.P. provided, and then asked for a kiss, which she refused. He pressed his lips against hers, which led to another struggle. In her words: "I tried with all my strength to fight him, but he overpowered me and I just -- I just gave up. ... He had pulled my pants down again. ... I tried to turn around and just crawl up, but he pulled me back down like a rag doll. ... I just gave up and I just -- I just let him finish." Salazar had intercourse with her again, and this time allowed her to leave when it was over.
C.P. left Salazar's apartment at approximately 1:00 a.m. on January 3, 2014. She drove back to her residence in Atwater and took a shower because she felt "dirty." She contacted the police around 12:00 p.m. and was examined by Nurse Farabee later that afternoon.
Nurse Farabee testified to statements made by C.P. at the time of her sexual assault examination. She had reported being grabbed by the neck and held against a wall, digitally penetrated, licked in the vaginal and anal area, bitten in the vaginal area, and forced to have vaginal intercourse. C.P. told the nurse she "wasn't sure if ejaculation had occurred."
Nurse Farabee took photographs of all marks, bruises, and cuts visible at the time of examination, which were shown to the jury. The photos included images of a large bruise on C.P.'s left arm and an abrasion, approximately three centimeters long, in her groin area. Nurse Farabee also noted that the bottom of the vaginal area was red and tender.
Salazar made numerous attempts to contact C.P. by phone and via text messaging in the days and weeks following the incident at his apartment. The jury saw phone records of text messages sent and received between January 3, 2014 and February 5, 2014. Out of approximately 200 messages, the most pertinent included the following one, which was sent by Salazar on January 3, 2014 (reproduced verbatim from the trial exhibit):
... I can see your not ready to talk yet soo I will let you be you can call or text ME when you are ready to I wanted to say sorry for last night babe I was drinking that's not who I really am. I am Sooooooooooooo sorry babe I'm going to pour out the whole bottle right now I don't want to drink ever again!! And I'm not going to!!
He sent a follow-up message about an hour later:
I only drink when I do is because I try an block out the thought of us NOT BEING TOGETHER!! I deserve the silent treatment from YOU right now after what I put you threw last night I send you my deepest apology. No excuses I hurt you yet again I don't think God created me to be a monster I let myself turn into one I'm sorry you had to witness it first hand I sincerely am sorry....
On January 8, 2014, after not hearing from C.P. for several days, Salazar texted, "You can't ignore me forever mamas[.] [C]all me back and let me know what we're doing[.] I'm soo sorry for what happened[,] I really am!!..." Three days and several unanswered messages later, C.P. responded to say that she was "still hurt & mad" at him. He replied, "I'm soo sorry that happened...." Two days later, he reiterated, "What happened the other night night [sic] wasn't right[.] [T]hat's my fault[.] I shouldn't have been drinking[.] I APOLOGIZE...."
Salazar became increasingly restless as the month went on, begging C.P. to speak with him and, in one instance, calling her phone over 100 times in a single day. On January 31, 2014, C.P. texted him and asked if he was busy. When he replied "No," she sent him a series of texts that read: "Why did u do those things to me that night[?] I said stop i said let me leave[.] I just came for formula & u choke me & rape me .....why? If you say you supposedly loved me????" Salazar replied, "I'll call you later." C.P. informed him that she could not talk later and demanded answers to her questions. He again replied, "I'll call you later" and then claimed to be at work.
On February 2, 2014, Salazar sent C.P. a message stating that he would consider their relationship over if she did not accept his next phone call. She replied, "...WE HAVE BEEN THROUGH FOR A LOONG TIME NOW [...] ESPECIALLY AFTER THAT NIGHT WHERE YOU CHOSE TO CHOKE & RAPE ME!!!!!!" Salazar responded, "Goodbye [C.P.]."
On February 3, 2014, Detective Rios facilitated a "pretext call," i.e., a secretly monitored and recorded telephone call, between C.P. and Salazar. The audio recording of this call was played for the jury. The conversation began with C.P. saying, "I need to get a lot off my chest." Salazar was suspicious of her intentions and said that he was "not comfortable talking over the phone." At one point he asked, "[H]ow do I know that you don't have like, you know, like, someone right there or something like that...." Despite his apprehension, Salazar remained on the line. Pertinent excerpts from the written transcript of the conversation are as follows:
Salazar: I just rather talk to you in person, momma.
C.P.: No. Are[-]
Salazar: I mean[-]
C.P.: [-] are you crazy? After what happened that night, you really think I wanna see you, really? After you decided to treat me[-]
Salazar: I know[-]
C.P.: [-] after you decided to rape me? After you decided to use me like I'm some rag doll. And say you supposedly love me, but yet you do all that, you really think I wanna see you?
Salazar: I know you - this probably be hard for you, but it'll be hard for me too....
...
C.P.: Why do all that to me why? Why treat me like some toy, some peace [sic] of crap? Why, you know all the guys I've been with before that did that and you told me you'd never - you'd never do that. You'd never choke me you'd never do nothing of the sort. You'd never take advantage of me and you did and you have always. So why, tell me?
Salazar: I don't [-]
C.P.: So you can tell me everything you wanna say but you can't just answer a few simple questions for my sake?
Salazar: I don't - I don't know, you know where things went wrong that night you know. Things got out of hand. And I was under the influence too so. That's not who I am.
...
Salazar: I - I've - I - I can't change what happened that night you know I - I don't have no excuse for it, you know. And I know I hurt you, you know, and I apologize....
...
C.P.: [Our children are] so attached to you and I tried but yet you still wanna use and abuse me and just - just have it your way right? What did you say that night, "do you not know how to listen" like I'm a dog.
Salazar: I - I know - I know your [sic] hurt from that night.
C.P.: No you have no idea.
Salazar: I'm hurting to[o][-]
C.P.: Oh, please.
Salazar: [-] I'm always by (unintelligible) the kids. I love them with all my heart and I'm always gonna love you no matter.
...
C.P.: No 'cause if you loved your kids you wouldn't do what you did to their mother. You would recognize her and appreciate her. And do your job and not run over their mom like a dog.
Salazar: I - I [-]
C.P.: I didn't think I was gonna leave that apartment alive.
Salazar: [-] (unintelligible). Honestly I would never hurt you like that.
C.P.: Well, you did.
Salazar: It's hard for me not - I'm sorry I hurt you I know I did I'm sorry.
...
C.P.: ...you love me so much so you decide to choke me against a wall you decide to use me and drag me around the room like a ragdoll. I try and get up and you pull me down and then you tell me, "do you not know how to listen" and then you don't let me leave, really?
Salazar: I - I can't change what happen that night mommas and I'm sorry...
The People's case-in-chief included evidence of prior domestic violence, which was admitted pursuant to Evidence Code section 1109. C.P. testified that Salazar had once punched her in the face after she "rais[ed] [her] voice to him" during an argument over his failure to attend a family gathering. On another occasion, he pushed her to the ground when she was six months pregnant. He also made threats against her and her family, most notably in a "song" that he recorded and posted on Facebook in January 2013, shortly after they had broken up. The jury heard the recording and was given a transcript of the lyrics (we use the term loosely), which are reproduced here verbatim:
I'm gonna kill you bitch. I'm a drop you off at the lake, [unintelligible] 'cause you can't swim, then you gonna fucking drown. And if you drown, then you're fucking dead. Then you're fucking dead, [unintelligible] kids. Look, bitch. I swear to God I'm a kill you. Not bullshitting with you. Kay E, before I have to hop on the next plane back to Merced, or A Town where you staying and show you I'm not playing, I'm not kidding. I would die for my daughter, and I would F for my son. You keep fucking around, I'm a dump your ass in the lake, in Yosemite, that's where your body will be found. Is [unintelligible] I know [unintelligible] talking shit but that's how I feel right now, so fuck that bitch.
Detective Rios testified in an expert witness capacity about what she had learned, through training and professional experience, about the "cycle of violence" in abusive relationships. On cross-examination, defense counsel focused on the detective's role as lead investigator in the case and attempted to show she was biased in favor of the prosecution. Detective Rios acknowledged the dual role of expert and investigator, but maintained that her testimony was "objective and unbiased."
Defense Case
Salazar testified to the following version of events. He spoke with C.P. by telephone on the night of January 2, 2014, and she mentioned that their son needed diapers, wipes, and formula. He invited her to his apartment and she accepted the invitation, arriving at approximately 7:30 p.m. or 8:00 p.m. When C.P. entered the apartment, Salazar offered her a soda and made himself a mixed drink consisting of Dr. Pepper and vodka. She took the soft drink and waited for him to get dressed to go out. They left the apartment together a short while later.
Salazar soon discovered that C.P. had borrowed her father's truck for the evening. This made him angry, since there was "bad blood" between him and the father, and he refused to get inside the vehicle. C.P. protested, apparently because they had no other way of getting to the store, but he stuck to his principles and returned to the apartment. She followed behind him, complaining about his negative feelings toward her family.
After reentering the apartment, C.P. told Salazar the relationship "wasn't working out" and that she wanted full custody of their children. Salazar "counterattacked her with words," making clear that he would not agree to such an arrangement. The conversation devolved into "yelling and cussing," which lasted for approximately 30 minutes until C.P. left and drove home. Salazar denied forcing her to engage in any sexual activity.
When asked about the subsequent phone calls and text messages, Salazar explained that he had felt bad about the hurtfulness of his words. He was also concerned about the custody issue, "[b]ecause something was telling me something wasn't right. I knew she kind of had something up her sleeve." Defense counsel elicited the following explanation with regard to his repeated failure to deny the rape accusations: "I didn't acknowledge those statements for one reason and one reason only. And that reason being me and her ... have had a sexual relationship the whole way through until this incident occurred. ... And I knew from the messages she was trying to set me up."
Under cross-examination, Salazar testified to consuming "less than a half of one drink" of alcohol on the night of the incident. He did not explain why, in text messages and during the pretext call, he had strongly implied that he was intoxicated that evening. The prosecutor also asked why he initially denied being busy when C.P. contacted him on January 31, 2014, but then said "I'll call you later" in response to her accusations. He explained, "I just thought she wanted to talk about my kids, so I just said no, I wasn't busy. If she wants to text me something about the kids ... that would've been okay. Not 'Why did you rape and choke me' and all that other stuff." When asked about threatening to drown C.P. in the song he posted on Facebook, Salazar said, "It's just freedom of speech" and pointed out that "no one ended up in a lake."
Defense counsel's closing argument insinuated that C.P. had falsely accused Salazar of rape in order to secure full custody of their children. The attorney noted how C.P. had "started to cry loudly" on the witness stand and argued her emotional response was exaggerated for dramatic effect. Her credibility was further attacked based on her failure to testify on direct examination about leaving the apartment after the choking incident, which was a detail she had apparently left out during earlier interviews with police. The defense also highlighted discrepancies in the versions of events told to Detective Rios, Nurse Farabee, and in court. Some of those discrepancies involved C.P.'s approximations of time, e.g., testifying at the preliminary hearing that each act of intercourse lasted only a few minutes, while at trial estimating that Salazar had raped her for approximately 45 minutes in his bedroom.
Verdicts and Sentencing
The jury deliberated for approximately two and half hours, during which time it asked to review the transcript of the pretext call. Salazar was convicted of forcible rape as alleged in count 1 and acquitted on counts 2, 3, and 4. At sentencing, the trial court imposed the upper term of eight years in prison. This timely appeal followed.
DISCUSSION
Admission of Detective Rios's Testimony
Background
The first day of trial began with the trial court observing that no motions in limine had been filed, with a possible exception of the People's "Notice of Intention to Offer Evidence Pursuant to Evidence Code [Section] 1109...." The admissibility of the prior domestic violence evidence was thereafter considered and ruled upon, and the rest of the day was devoted to jury selection. The next morning, defense counsel asked to be heard on an evidentiary matter and said, "Detective Rios, my understanding, is going to testify as a domestic violence expert. ... I would object to that as irrelevant."
After making the relevance objection, defense counsel immediately transitioned into an argument concerning his ability to introduce impeachment evidence against C.P.. Following a brief discussion of the impeachment issue, the prosecutor began to address the first topic: "[Counsel] made a relevance objection. I would submit to the Court that -" The trial court interrupted and said, "The objection is overruled. It is relevant." Defense counsel said, "Okay," and the parties proceeded to give their opening statements.
Detective Rios's testimony on direct examination focused on behavioral patterns commonly found in abusive relationships, with emphasis on the research of psychologist Lenore Walker. Dr. Walker originated the theory of "battered women's syndrome" (People v. Brown (2004) 33 Cal.4th 892, 899-900 (Brown)), which is also referred to as "intimate partner battering and its effects" (see Evid. Code, § 1107, subd. (f)), but Detective Rios refrained from using either of those terms. Her testimony described the "cycle of violence" that occurs as an abusive relationship moves through different stages.
According to Detective Rios, abusive relationships begin with a "honeymoon phase," just like in healthy relationships, but acts of domestic violence gradually occur and escalate over time. The abuser will usually apologize for mistreating his or her partner and the situation may improve, which can result in a new honeymoon phase, but the cycle of violence typically repeats itself. It is difficult to break the cycle, and abusers will employ a variety of tactics to maintain power and control over the victim, e.g., isolating them from family and friends. The victim may stay in the relationship out of fear of physical harm, lack of financial resources, or to preserve the family unit for the sake of their children.
Detective Rios explained that breaking the cycle of violence often requires a significant event. In other words, a victim is less likely to end the relationship over a push or a shove, but a more egregious act of abuse, e.g., sexual assault, may motivate him or her to permanently separate from their partner. The prosecutor concluded the direct examination by asking if victims of domestic violence sometimes try to "block it out or pretend that it never happened," and the detective responded affirmatively.
On cross-examination, which spans 15 pages of the reporter's transcript, the defense did not ask a single question about Detective Rios's actual trial testimony. Salazar's attorney instead elicited details concerning the police investigation into C.P.'s accusations and pressed the witness to admit she was "a member of the district attorney team" and biased against the defendant. These efforts led to the following exchange on redirect:
Prosecutor: In your experience as an investigator, have you ever investigated a crime where it turned out the crime was unfounded or not true in the end?
Defense Counsel: I'll object as to vouching, your Honor.
Trial Court: Overruled.
Detective Rios: Yes, I have.
Prosecutor: And what happens in those scenarios?
Detective Rios: In those scenarios, because of the caseload that I have, which are sexual assaults and domestic violence, I have had a handful of reports that have been made that are false allegations. And that's learned once we interview both parties.
Prosecutor: And so, when a case is determined to be unfounded, do you send it to the district attorney's office to file?
Detective Rios: Absolutely.
Prosecutor: You send it to the district attorney's for review?
Detective Rios: For review, yes.
Prosecutor: Do those cases get filed?
Detective Rios: When they're unfounded?
Prosecutor: Right.
Detective Rios: Absolutely not.
Prosecutor: So there would be no need to be called by any witness to testify to that because there is no criminal case?
Detective Rios: Correct.
Later, outside the presence of the jury, defense counsel made a motion to strike: "One of the things the district attorney asked Detective Rios was, you know, what happens to baseless claims of domestic violence and rape. ... And, in doing so, I believe that she was able to give her opinion about the facts of this case, which I believe is inappropriate. She basically stated, in my opinion, that this case is not baseless. ... I would ask that all of that testimony be stricken." The trial court replied, "Your objection is noted. I believe that question was asked in response to your repeated efforts to attack Detective Rios' testimony [as] being biased in favor of the prosecution and I think the jury took it that way. The objection is overruled."
The prosecution referenced the "cycle of violence" twice during closing argument. The first instance occurred in the context of discussing Salazar's text messages: "In fact, he did what Detective Rios told you was common in the cycle of violence. He tried to bring the kids back into it to use them to control her, to get her back into that cycle, to get her back into his power." Continuing on the same general topic, the prosecutor added: "These are his ways of trying to get her back into control. He thinks if he can reach her, get her on the phone, talk to her, meet in person, that he can pull her back into that cycle of violence, the honeymoon phase. That's why he is being so persistent." Similar arguments were made on rebuttal.
Analysis
Expert testimony concerning domestic violence is potentially admissible under sections 801 and 1107 of the Evidence Code. (Brown, supra, 33 Cal.4th at p. 907.) "Section 801, subdivision (a), permits the introduction of testimony by a qualified expert when that testimony may 'assist the trier of fact.' " (Brown, at p. 900.) Evidence Code section 1107 authorizes expert testimony "regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge." (Id., subd. (a), italics added.) In terms of the threshold for admissibility, Evidence Code section 1107 provides: "The foundation shall be sufficient for admission of this expert testimony if the proponent of the evidence establishes its relevancy and the proper qualifications of the expert witness." (Id., subd. (b).)
Salazar advances several theories of error. He first complains that the trial court overruled his relevance objection to Detective Rios's testimony without hearing or considering the People's offer of proof. In a related argument, the trial court is alleged to have exceeded its authority by admitting the testimony without first determining its intended use. Salazar argues the "cycle of violence" evidence was improperly used to show he fit the profile of an abuser and C.P. fit the profile of a battered partner, and to thus prove the occurrence of the charged crimes in violation of Evidence Code section 1107, subdivision (a). The prosecutor's statements during closing argument and on rebuttal are cited as proof that the evidence was intended to be used improperly. Lastly, he argues the trial court should have stricken Detective Rios's testimony on redirect because "the expert basically stated that she believed the allegations against [him] were true, and vouched for [C.P.'s] credibility."
Although the handling of the objection was not exemplary, we note that the trial judge also presided over the preliminary hearing and was thus familiar with the facts and issues in the case. In addition, the judge had already heard, considered, and ruled upon the admission of prior domestic violence evidence, which had significant bearing on the question of relevance.
Many of Salazar's arguments were not raised below. His trial attorney did not request a hearing pursuant to Evidence Code section 402 to determine foundational issues, nor were any objections made pursuant to Evidence Code section 352. The now-challenged statements in the People's closing argument and rebuttal were not objected to at the time of trial. Salazar therefore alleges ineffective assistance of counsel to the extent that any of his claims were not preserved for appellate review.
A trial court's ruling on the admissibility of evidence is reviewed for abuse of discretion. (People v. Goldsmith (2014) 59 Cal.4th 258, 266.) "The erroneous admission of expert testimony only warrants reversal if 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (People v. Prieto (2003) 30 Cal.4th 226, 247, quoting People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) "In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (People v. Breverman (1998) 19 Cal.4th 142, 177, italics omitted.)
To prevail on a claim of ineffective assistance of counsel, an appellant must show "(1) counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficiencies resulted in prejudice." (People v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno).) "Prejudice requires 'a reasonable probability that a more favorable outcome would have resulted . . ., i.e., a probability sufficient to undermine confidence in the outcome.' " (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) An appellate court may forgo the analysis of counsel's performance if it is easier to dispose of the claim for lack of prejudice. (Ibid.)
We decline to reach the merits of Salazar's theories of error because it is not reasonably probable he would have obtained a more favorable result but for Detective Rios's testimony. Any damaging effects of the testimony were inconsequential when measured against his incriminating statements and adoptive admissions in the text messages and pretext call. Salazar's failure to deny the allegations of rape defied logic, even if he believed C.P. was trying to "set him up." As noted by the prosecutor, the pretext call ended with him telling C.P. that he would always love her and believed they could still have a "wonderful relationship together," which is an unimaginable reaction to being falsely accused of a heinous crime. With regard to being portrayed as fitting the profile of an abuser, the impact of the expert testimony surely paled in comparison to inferences drawn from the evidence of prior domestic violence. The danger of unfair prejudice was also mitigated by the use of CALCRIM No. 850, which explained the limited purpose of Detective Rios's testimony.
"If a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt." (People v. Preston (1973) 9 Cal.3d 308, 313-314.)
Citing People v. Epps (1981) 122 Cal.App.3d 691, 698 (Epps), Salazar argues (1) the mixed verdicts show this was a "close case" and (2) in close cases "an error relating to the count of conviction should be deemed prejudicial." The defendant in Epps was a nursing assistant at a mental health facility who was charged with having unlawful intercourse with a minor (§ 261.5), annoying or molesting a minor (§ 647.6, subd. (a)), and contributing to the delinquency of a minor (§ 272). The alleged victim was a 14- year-old female patient at the facility where the defendant worked. She testified that they "developed a relationship involving kissing and touching," that he once "bought her alcohol, gave her marijuana and fondled her in his car," and that they had engaged in consensual intercourse. (Epps, supra, 122 Cal.App.3d at p. 694.) The defendant denied all of the allegations. (Id. at p. 695.)
The jury in Epps convicted the defendant of molestation but found him not guilty on the charges of unlawful intercourse and contributing to the delinquency of a minor. (Epps at p. 694.) On appeal, the trial court was found to have erred by admitting evidence that the defendant had kissed another 14-year-old female patient at the same facility and groped a former female coworker at a different hospital. "In view of the verdict's reflecting the jury's selective belief in the evidence," the appellate court concluded the erroneous admission of evidence was prejudicial under the Watson standard. (Epps, at p. 698.) The Epps opinion is factually distinguishable from the present matter and does not hold that mixed verdicts create a presumption of prejudice in cases involving evidentiary error.
The California Supreme Court considered a more analogous set of circumstances in People v. Bledsoe (1984) 36 Cal.3d 236 (Bledsoe), which addressed the admissibility of expert testimony on "rape trauma syndrome" and concluded the erroneous admission of such evidence was harmless given the strength of the prosecution's case. The Bledsoe defendant was accused of raping a young girl at knife point and preventing her from leaving his home. He was convicted of forcible rape but acquitted of assault with a deadly weapon. The jury also returned a not true finding on a weapon enhancement and hung on a charge of false imprisonment. (Id. at pp. 238-245.) Although the expert improperly opined that the victim was "obviously suffering from" rape trauma syndrome (id., at p. 244), a more favorable verdict was not reasonably probable in light of evidence the victim had immediately reported the crime and because her "numerous bruises and extreme emotional distress provided persuasive corroboration of her testimony that she had not consented to the sexual encounter." (Id. at p. 252.) "Furthermore, while the [expert's] testimony on rape trauma syndrome should not have been admitted, in truth the testimony did little more than provide the jury with information that it either already had or that was not particularly pertinent to the facts of [the] case." (Ibid.)
Here, the jurors' not guilty verdicts may reflect lenity, compromise, or, as the prosecutor suggested, "indicates that they considered it all one event instead of three separate occurrences, so they convicted on one [count of rape]." If the acquittals are viewed as indicating disbelief of parts of C.P.'s testimony, it stands to reason that Detective Rios's supposed vouching for C.P.'s credibility had little or no impact on the jury's fact finding process. Whatever the explanation for the result on counts 2-4, we conclude, for the reasons discussed, that the guilty verdict would have been the same in the absence of any or all of the challenged testimony.
Alleged Prosecutorial Misconduct
Background
During closing argument, the prosecutor attempted to use the trial court's United States flag as a visual aid to explain the concept of reasonable doubt: "If you look at the flag over there, you look at it and you think 'that's the American flag' and you know that beyond a reasonable doubt. And when you looked, you didn't necessarily count the stripes and you can't see all of the stars to count and make sure all 50 are there, but you know beyond a reasonable doubt that's the American flag. The fact that there aren't a ton of injuries to [C.P.], just a few, the fact that she can't remember everything perfectly, that's not reasonable doubt. The defendant has been proven guilty of all four counts against him of sexual assault on [C.P.] beyond a reasonable doubt. Thank you." Defense counsel did not object to any of these statements.
Analysis
Salazar alleges that the prosecutor committed misconduct by trivializing and misstating the People's burden to prove guilt beyond a reasonable doubt. However, "[a] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety." (People v. Thornton (2007) 41 Cal.4th 391, 454.) Conceding the issue was forfeited by a failure to object, Salazar presents his claim under the rubric of ineffective assistance of counsel. (See People v. Lopez (2008) 42 Cal.4th 960, 966 ["A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel."].)
Salazar relies on three cases to establish deficient performance by his trial attorney. In People v. Katzenberger (2009) 178 Cal.App.4th 1260 (Katzenberger), the prosecutor used a PowerPoint presentation in which six of eight puzzle pieces appeared on the screen, one by one, until an image of the Statue of Liberty was visible except for the face and torch. (Id. at p. 1264.) Over a defense objection, the prosecutor said everyone would know at that point beyond a reasonable doubt that it was a picture of the Statue of Liberty without seeing the remaining pieces. (Id. at p. 1265.) The Third District Court of Appeal concluded that a puzzle analogy and use of such iconic imagery "leaves the distinct impression that the reasonable doubt standard may be met by a few pieces of evidence. It invites the jury to guess or jump to a conclusion, a process completely at odds with the jury's serious task of assessing whether the prosecution has submitted proof beyond a reasonable doubt." (Id. at pp. 1267-1268.) The prosecutor was found to have committed misconduct, but the error was deemed harmless. (Id. at pp. 1268-1269.)
In People v. Otero (2012) 210 Cal.App.4th 865 (Otero), the Fourth District disapproved of a prosecutor's PowerPoint presentation that included an outline of the State of California with major cities labeled in the wrong geographic locations (e.g., San Diego was located north of Sacramento). (Id. at p. 869.) The prosecutor presented the diagram as if she were trying to guess what state it depicted, then said, "Is there any doubt in your mind, ladies and gentlemen, that that state is California? Okay. Yes, there's inaccurate information. I know San Diego is not at the northern part of California, and I know Los Angeles isn't at the southern. Okay. But my point to you in this—" (Id. at p. 870.) Defense counsel interrupted with an objection, which was sustained. The judge ordered the diagram taken down and admonished the jury to disregard it. The appellate court concluded that the curative actions and strength of the prosecution's case rendered the error harmless. (Id. at p. 873-874.)
In Centeno, supra, 60 Cal.4th 659, which involved facts similar to those in Otero, the California Supreme Court noted that appellate decisions "have repeatedly cautioned . . . against using diagrams or visual aids to elucidate the concept of proof beyond reasonable doubt." (Centeno at p. 662.) There, the prosecutor had shown jurors an image in the shape of California and said, "What you have is you have incomplete information, accurate information, wrong information, San Diego in the north of the state, and missing information, San Bernardino has not even been talked about, but is there a reasonable doubt that this is California? No. You can have missing evidence, you can have questions, you can have inaccurate information and still reach a decision beyond a reasonable doubt...." (Id. at p. 665.) Defense counsel's failure to object to these and other statements was found to be prejudicial, in part because the entirety of the prosecutor's argument "confounded the concept of rejecting unreasonable inference with the standard of proof beyond a reasonable doubt. [The prosecutor] repeatedly suggested that the jury could find defendant guilty based on a 'reasonable' account of the evidence[, which] clearly diluted the People's burden." (Id. at p. 673, italics omitted.) The weakness of the prosecution's evidence was also a significant factor in the prejudice analysis; it was a "very close case" in which the alleged victim of section 288 crimes repeatedly denied at trial that the charged acts had occurred, as did her father, who the prosecution had apparently expected to be a supportive witness. (Id. at pp. 663, 677.)
Pursuant to our analysis in the preceding section of the opinion, we conclude it is not reasonably probable that Salazar would have obtained a better outcome but for the alleged prosecutorial misconduct. Therefore, it is unnecessary to determine whether the challenged behavior in this case is distinguishable from the puzzle and game analogies used in Katzenberger, Otero, and Centeno. It is again noted, however, that the impact of the alleged error would have been mitigated by the jury instructions. The trial court properly instructed the jury on reasonable doubt (CALCRIM No. 220) and cautioned that if it believed the attorneys' comments on the law were in conflict with the court's instructions, it was obligated to follow the latter (CALCRIM No. 200). As stated in Otero, supra, " 'When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for "[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade." [Citation.]' [Citation]. What is more, this was not a close case." (210 Cal.App.4th at p. 873.)
Cumulative Error
Under the "cumulative error" doctrine, "a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844; In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) We reject Salazar's attempt to invoke this doctrine. Despite numerous theories of error, the claims on appeal ultimately concern the admission of testimony by Detective Rios and a brief portion of the prosecutor's closing argument. Based on our review of the record as a whole, we conclude the alleged errors were collectively harmless.
DISPOSITION
The judgment is affirmed.
/s/_________
GOMES, Acting P.J. WE CONCUR: /s/_________
PEÑA, J. /s/_________
SMITH, J.