Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F14580
RUSHING, P.J.
I. Statement of the Case
A jury convicted defendant David Shaffer of assault with intent to commit a sex crime, assault with force likely to produce great bodily injury, and false imprisonment, and the court found that defendant had suffered a prior strike conviction and served two prior prison terms. (Pen. Code, §§ 220, 245, subd. (a)(1), 236, 667, subds. (b)-(i), 667.5, subd. (b).) Thereafter, the court denied defendant’s motion for a new trial and a request to dismiss his strike conviction and sentenced him to nine years in prison.
On appeal from the judgment, defendant claims the court erred in admitting evidence of uncharged misconduct, giving CALCRIM No. 1191 on the use of evidence of prior sexual misconduct, refusing to instruct on self-defense, denying the motion for new trial, and denying the request to dismiss the strike conviction. Defendant also claims that defense counsel rendered ineffective assistance in not having defendant testify and failing to object to allegedly inappropriate comments by the court.
We find no merit to these claims and affirm the judgment.
II. Facts
On the evening of January 4, 2007, Danielle and some friends celebrated her roommate Jennifer’s birthday at Olita’s Bar and Cantina in Santa Cruz, where Danielle worked. Danielle had smoked some marijuana, and after having some drinks and dinner, she started to feel very strange. Danielle said she had about two drinks. According to Danielle, the last thing she remembered was the manager at Olita’s saying she could not have more to drink.
The next thing Danielle could remember was waking up very early the next morning, alone with a strange man in his motor home. She testified that she apologized to him for not knowing how she got there and said she was going to leave. He responded, “No” and told her she was going to orally copulate him. When she started to leave, he grabbed her, threw her on a bed, straddled her on his knees, and started tearing off her clothes. She resisted him, screamed, and tried to reach the door, but he grabbed her by the hair, repeatedly banged her head against a table, and told her to be quiet. She continued to scream at him, urinated, threw up, and finally agreed to his demand. He took her back to the bed. However, when he brought his penis toward her, she bared her teeth as if to bite, and he pulled back. She tried to escape, but he caught her by the hair and banged her head against the table. They struggled. She grabbed and started pulling and twisting his penis, but he was undeterred.
At that point, defendant’s neighbor Joe Robinson, who was awakened by Danielle’s screaming, went to defendant’s motor home, knocked on the door, and asked what was happening. Danielle screamed, “Somebody save me. I don’t want to die. This bastard is going to kill me. Somebody save me.” Robinson heard something bump against a wall and threatened to break a window if defendant did not open the door. When the door opened, Danielle immediately ran out. She was scared and naked and covered with a blanket. Defendant, who was also undressed, came out. Danielle told Robinson to keep defendant away from her and asked him to get her clothes, which he did. Danielle then dressed and ran from door to door seeking help. Some people let her in, and she told them she had just escaped from a man in a trailer who had sexually assaulted her and banged her head. One of them called the police.
Meanwhile, Robinson punched defendant in the shoulder to make him retreat. He asked why defendant had not let her leave or get dressed. Defendant said she wanted to get dressed outside. Robinson said, “No. She’s probably afraid.” Robinson asked if he had raped her, but defendant denied it. Robinson then went home. Later he saw defendant drive away.
A police officer responded to the call and drove Danielle around to look for defendant’s motor home, but they could not locate it. The next day, she was taken to the hospital and examined. She sustained injuries to her head, neck, chin, jaw, throat, arms, shoulder, and knees, some of which could have been defensive wounds. She had two black eyes, damaged lips, and bruising on her thigh. Some injuries could have been caused by head banging and others by strangulation or concussion. All of her injuries were contemporaneous and consistent with her story.
Later that morning, defendant was talking to William Keller at Keller’s house, which is about four blocks from defendant’s motor home. Defendant mentioned that he had picked up a woman the night before. He said they were going to “make out” or “make it,” but she was drunk, and they fought. Defendant was worried about the woman and asked Keller to go check his motor home.
Also that morning, Danielle and some friends returned to the area to look for defendant’s motor home. When she saw Robinson, she thanked him for saving her. She was able to locate the motor home and immediately called the police. When Keller went to check on defendant’s motor home, he encountered a police officer nearby and related his conversation with defendant.
Later that day, Detective Arnold Vasquez of the Santa Cruz Police Department interviewed defendant. A DVD of the interview was played for the jury. Defendant told Officer Vasquez that he saw Danielle on the street outside the Asti Bar, asked if she wanted a ride, and took her to his motor home. He variously explained that he did so to rescue her from others who were bothering her and to see if she was interested in renting the motor home. He also said he wanted to get acquainted with her, “[j]ust friendship, that’s it.”
Defendant did not notice that she was drunk, and in the car, she was really friendly, he got the feeling she wanted to go home with him, and she agreed to go. However, once they got there, he realized that she was highly intoxicated. She stumbled around, vomiting, urinating, muttering, and being loud and obnoxious. She also partially disrobed. He was disgusted and could not communicate with her and tried to get her dressed. He thought she had taken heroin or was suffering from some emotional disturbance. He said she repeatedly tripped over things and rolled off his bed and hit her head. He did not recall hearing her scream. He said he did not touch or hit her, she did not touch him, and they did not fight.
Defendant said that Robinson knocked on his door while Danielle was there, and he tried to get her dressed. When the door opened “she ran—she—she—then she walked out.” Later, he drove around looking for her because she had left some of her things. Photographs of defendant revealed recent scratches on his arm, chest, face, neck, abdomen, back, and thigh. He told Officer Vasquez that he probably got them at work.
A search of defendant’s motor home revealed a ball of reddish-brown hair similar to Danielle’s hair color stuck to a seat.
Uncharged Misconduct
Judith testified that in 1994, she had a sexual relationship with defendant. One night after consensual sex, defendant got angry because she would not have sex again. He grabbed her by the neck and banged her head against the floor or a bathroom fixture and forced her to have sex. After the incident, defendant told Officer Michael Brown of the San Jose Police Department that he hit Judith with a belt because she “wanted it” and liked to be slapped around because it made her feel like a real woman.
Also between 1990 and 1994, when defendant was detained at the Santa Cruz County Jail, he wrote letters to Corrections Officer Joanne Moore, in which he told her that he was going to beat her, have her orally copulate him, and then have sexual intercourse. He professed his love for her and said he wanted to marry her. Retired Sheriff’s Sergeant Steve Hartness testified that he discussed the letters with defendant at the time. Defendant maintained that he loved Officer Moore and shrugged off the threat of violence against her. He said that upon his release, he intended to realize the plans outlined in his letters. Sergeant Hartness advised defendant that Officer Moore was armed and had a restraining order against him.
The Defense
Danielle’s friend Jennifer testified that Danielle became very intoxicated at Olita’s. Having seen Danielle drink before, she thought Danielle’s condition was “abnormal” for the amount she had drunk. At the end of the evening, Jennifer and others tried to get Danielle to leave and took her to a car a couple of times, but she resisted and threw a tantrum, kicking the car door. She wanted to stay at Olita’s because she was interested in Logan Wells, a cook. Danielle then returned, and the others left.
Wells testified that when he saw Danielle late that night she was very intoxicated and kept rubbing his shoulders and scratching his back, but her attention made him feel awkward. After her friends left, Danielle came back to the bar, where she “kind of passed out,” and he went home.
Emily Caviglia, a bartender at Olita’s, testified that around 9:30 p.m., Danielle was told she could not have anything more to drink. Caviglia said that Danielle did not seem like herself. Around 11:15 p.m., Caviglia called a taxi for Danielle.
David Adams, the taxi driver, testified that Danielle was extremely intoxicated when he picked her up. She said she wanted to keep “partying” and wanted “to go find a boy.” He dropped her off at the Asti bar.
Kathy Johnson, a defense investigator, presented a video that she made of the inside of defendant’s motor home. It showed his bed and how it was very unstable and had a broken leg. The video it shows a person attempting to sit or lie on the bed and how the bed reacted and moved.
III. Admission of Evidence of Uncharged Misconduct
Defendant contends that the court abused its discretion in admitting Judith’s testimony about the 1994 rape and the evidence concerning his statements and threats to Officer Moore between 1990 and 1994.
The Prior Rape
Evidence Code section 1108 creates an exception to the general prohibition against admitting evidence of character to prove conduct. (See § 1101, subd. (a).) The statute provides that in a prosecution for a sex offense, evidence of other sexual offenses by the defendant may be admitted to show a propensity to commit such offenses, provided the evidence is admissible under section 352. (§ 1108, subd. (a) ; People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013 (Reliford).)
All further unspecified statutory references are to the Evidence Code.
“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.” (§ 1108, subd. (a).)
Section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” In this context, prejudicial means “ ‘evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues.’ ” (People v. Bolin (1998) 18 Cal.4th 297, 320; see also People v. Harris (1998) 60 Cal.App.4th 727, 737 (Harris).) “ ‘In applying section 352, “prejudicial” is not synonymous with “damaging.” ’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.) “Painting a person faithfully is not, of itself, unfair.” (Harris, supra, 60 Cal.App.4th at p. 737.)
In determining whether to admit uncharged sexual misconduct under section 352, the trial court must consider in the “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. [Citations.]” (People v. Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta); People v. Wesson (2006) 138 Cal.App.4th 959, 969.)
On appeal, we review a ruling under section 1108 for abuse of discretion and will not disturb it except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Wesson, supra, 138 Cal.App.4th at p. 969.)
We first address defendant’s threshold claim that the alleged 1992 rape of Judith did not even qualify for admission under section 1108. He notes that the statute allows the admission only of “evidence of the defendant’s commission of another sexual offense or offenses... .” (§ 1108, italics added.) He claims that because the six-year statute of limitations applicable to the alleged rape had expired, that conduct became non-criminal and thus no longer constituted an “offense” within the meaning of the statute. We disagree.
Section 1108 subdivision (d) provides, in relevant part, “ As used in this section, the following definitions shall apply: [¶] (1) ‘Sexual offense’ means a crime under the law of a state or of the United States that involved any of the following: [¶] (A) Any conduct proscribed by [numerous sections] of the Penal Code,” including section 261, which proscribes rape.
In construing “sexual offense,” we are guided by familiar rules of statutory interpretation. “The primary duty of a court when interpreting a statute is to give effect to the intent of the Legislature, so as to effectuate the purpose of the law. [Citation.] To determine intent, courts turn first to the words themselves, giving them their ordinary and generally accepted meaning. [Citation.] If the language permits more than one reasonable interpretation, the court then looks to extrinsic aids, such as the object to be achieved and the evil to be remedied by the statute, the legislative history, public policy, and the statutory scheme of which the statute is a part. [Citation.] If a statute is susceptible of two reasonable constructions, the one that is more favorable to the defendant will be adopted. [Citation.] Ultimately, the court must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and it must avoid an interpretation leading to absurd consequences. [Citation.]” (In re Luke W. (2001) 88 Cal.App.4th 650, 655.)
In Falsetta, supra, 21 Cal.4th at page 911, the California Supreme Court explained that “the Legislature enacted section 1108 to expand the admissibility of disposition or propensity evidence in sex offense cases.” (Italics added.) “Available legislative history indicates section 1108 was intended in sex offense cases to relax the evidentiary restraints section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant’s other sex offenses in evaluating the victim’s and the defendant’s credibility.” (Ibid.) In enacting this provision, the “Legislature ‘declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the witness.’ ” (Id. at p. 912, quoting Review of Selected 1995 Cal. Legislation (1996) 27 Pacific L.J. 761, 762, italics added.)
The court further opined that section 1108 reflects a determination that “the policy considerations favoring the exclusion of evidence of uncharged sexual offenses are outweighed in criminal sexual offense cases by the policy considerations favoring the admission of such evidence.” (Falsetta, supra, 21 Cal.4th at p. 911.) “ ‘The Legislature has determined the need for this evidence is “critical” given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial.’ ” (Ibid.) “[T]he Legislature’s principal justification for adopting section 1108 was a practical one: By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations. Section 1108 provides the trier of fact in a sex offense case the opportunity to learn of the defendant’s possible disposition to commit sex crimes.” (Id. at p. 915.)
With the Legislature’s purpose and intent in mind, we turn to defendant’s interpretation. Under it, evidence of prior unlawful sexual conduct qualifies for admission if the defendant was convicted of it or was still subject to prosecution for it; however, evidence of identical misconduct would not qualify if the applicable limitations period had expired.
Defendant cites, and we can find, no case supporting such a restricted view of the term “sexual offense” in section 1108. And in practice, courts have not applied such a view. (E.g., People v. Waples (2000) 79 Cal.App.4th 1389 [upholding admission of prior sexual misconduct for which defendant had not been, and could no longer be, prosecuted]; People v. Soto (1998) 64 Cal.App.4th 966 [same].) This is understandable because defendant’s view is inconsistent with both the legislative determination that the policies favoring admission of such evidence outweigh those favoring exclusion and the Legislature’s intent to expand the admissibility of disposition evidence in sex cases.
Moreover, defendant’s restrictive interpretation is illogical and unreasonable. As noted, the Legislature has deemed prior unlawful sexual conduct to be relevant because it has a tendency to show a disposition to commit such acts, which, in turn, is probative concerning a defendant’s and the victim’s credibility and the likelihood that the defendant committed the charged sexual offenses. We can think of no rational basis to distinguish, for example, a time-barred seven-year-old rape, which, under defendant’s interpretation would be inadmissible, from a 10-year-old rape conviction or a one-year-old rape for which the defendant has not yet been prosecuted, both of which would be admissible. Simply put, if the 10- and 1-year old rapes are relevant and admissible, there is no reason to exclude the former because the relevance and probative value of any prior unlawful sexual misconduct is not lessened or otherwise affected by whether the perpetrator suffered a conviction for that conduct or whether he or she is still subject to prosecution for it.
We also reject defendant’s view that once a limitations period has expired, proscribed sexual acts are somehow transmuted into non-criminal conduct and, therefore, should not be considered “sexual offenses” within the meaning of section 1108.
Statutes of limitations are intended only to limit a perpetrator’s exposure to criminal prosecution for a fixed period of time and thereby provide a form of amnesty from prosecution after the period has expired. (Stogner v. California (2003) 539 U.S. 607, 611, 632; Toussie v. United States (1970) 397 U.S. 112, 114; Roman Catholic Bishop of Oakland v. Superior Court (2005) 128 Cal.App.4th 1155, 1161; In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1494.) As the California Supreme Court explained, “statutes of limitation are an optional form of ‘legislative grace,’ reflecting a pragmatic determination that the interests of the state are best served by forgoing prosecution in some cases. Such laws, including California’s criminal statutes of limitation, generally seek to protect both the judicial system and the defendant from the burden of litigating claims after a specified time has passed, and after relevant evidence is presumably less reliable or no longer available.... [T]he statute of limitations is often said to work in an ‘arbitrary’ or ‘mechanical’ fashion to insulate from prosecution even those individuals whose conduct otherwise satisfied all elements of a penal statute, and who were otherwise subject to criminal punishment, at the time the conduct occurred.” (People v. Frazer (1999) 21 Cal.4th 737, 758, fns. omitted, reversed on other grounds in Stogner v. California, supra, 539 U.S. at p. 633.)
The purpose, operation, and effect of statutes of limitations do not suggest that when a period of limitations expires, the nature of prior unlawful acts changes to non-criminal or innocent conduct; rather, expiration of the period means only that the perpetrator cannot be prosecuted and punished for that particular conduct. Defendant cites no authority for the proposition that statutes of limitations have any effect on the relevance or admissibility of evidence. On the contrary, in Roman Catholic Archbishop of Los Angeles v. Superior Court (2005) 131 Cal.App.4th 417, the court concluded that the admissibility of uncharged misconduct under sections 1101 and 1108 is not restricted by the statute of limitations. (Id. at p. 458.)
Nor do the purposes served by statutes of limitations favor an interpretation of the term “sexual offense” that would exclude unlawful conduct for which the statute of limitations has expired. Section 1108 is not a penal statute and does not proscribe conduct for which a defendant can be prosecuted and punished. (People v. Story (2009) 45 Cal.4th 1282.) Thus, although the jury must determine whether the defendant committed prior acts in order to consider them evidence of a criminal disposition, the defendant is not being prosecuted for those acts; nor is he or her subject to punishment for it. Indeed, the jury is expressly instructed that such evidence by itself is not enough to convict the defendant of charged offenses. (CALCRIM No. 1191.)
In sum, we conclude that the term “sexual offense” in section 1108 was intended to apply broadly to any rape committed by a defendant regardless of whether the statute of limitations for that conduct has expired. In other words, “sexual offense” includes any prior conduct in violation of Penal Code section 261.
Even if “sexual offense” were ambiguous and reasonably susceptible of defendant’s interpretation, the rule of lenity would not require us to select the interpretation more favorable to defendant because the rule does not apply to the Evidence Code. (People v. Story, supra, 45 Cal.4th 1282 [rule of lenity applies to criminal statutes only]; Jauregi v. Superior Court (1999) 72 Cal.App.4th 931, 943 [same].)
We now focus on whether the court properly exercised its discretion to admit evidence of Judth’s rape.
First, we observe that this is the type of case envisioned by the Legislature when it enacted section 1108. Danielle accused defendant of sexually assaulting her, there were no witnesses, and defendant denied the charge, claiming instead that Danielle was accidentally injured when she kept falling off his bed. Under the circumstances, the jury should have been entitled to consider evidence that defendant sexually assaulted another woman in determining his and Danielle’s credibility and whether he is disposed toward such conduct.
Moreover, although the alleged rape of Judth occurred during an otherwise consensual sexual encounter and resulted in a completed sexual act, the rape was sufficiently similar to the charged conduct and probative of his disposition because defendant sexually assaulted both women by force and banged their heads against a hard surface. Moreover, but for the fortuitous intervention of Robinson, defendant may have been able to complete his intended sexual act against Danielle.
Given the similarity in conduct, we do not find that the age of the prior incident—13 years old—robbed it of probative value or otherwise suggests that the trial court abused its discretion. (People v. Soto, supra, 64 Cal.App.4th at p. 991 [“the passage of a substantial length of time does not automatically render the prior incidents prejudicial”]; e.g., People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt) [12-year-old act properly admitted]; People v. Wesson, supra, 138 Cal.App.4th 959 [14-year-old act properly admitted]; People v. Branch, supra, 91 Cal.App.4th 274 [same re 30-year-old conduct]; People v. Waples, supra, 79 Cal.App.4th 1389 [conduct between 15 and 22 years old]; People v. Soto, supra, 64 Cal.App.4th 966 [22- and 30-year-old conduct].)
Furthermore, admitting evidence concerning the incident with Judith did not pose much, if any, danger of confusing the issues because as it turned out, the testimony was brief, comprising less than 14 pages of transcript, and defendant concedes that presenting the evidence involved a “relatively brief amount of time.” Accordingly, admitting the evidence did not necessitate or cause a potentially distracting mini-trial with a trial.
We note that the prosecution had evidence of other sexually related misconduct, but the court narrowed the admissible evidence to the rape of Judith and written threats against Officer Moore.
Next, and contrary to defendant’s argument, evidence of the completed rape of Judith was not more inflammatory than the charged offenses. On the contrary, the evidence of defendant’s alleged conduct toward Danielle was far more inflammatory, in that it was more graphic and reflected predatory behavior that exploited the intoxicated state of a total stranger rather than a woman with whom defendant had a regular consensual sexual relationship. Moreover, although defendant was never prosecuted or punished for raping Judith, the jury was not made aware of that fact and thus had no motivation to impose the punishment he apparently had escaped for the prior offense by convicting him of the charged offenses regardless of his guilt.
In our view, the trial court reasonably could have found that the probative value of the evidence was strong and outweighed the possibility that it would necessitate undue consumption of time, confuse or mislead the jury, or uniquely evoke an emotional bias against defendant as a person. (People v. Bolin, supra, 18 Cal.4th at p. 320.) Moreover, the court also could have found that any possible prejudice would be ameliorated by instructions informing jurors that the prosecution had the burden to prove defendant’s guilt of the charged offenses beyond a reasonable doubt; if they believed that defendant raped Judith, they could, but were not required to, find that defendant was disposed to commit sexual offenses; and the prior act was only one factor to consider in determining defendant’s guilt and was not enough by itself to find him guilty. (CALCRIM No. 1191.)
Under the circumstances, defendant does not convince us that the trial court’s ruling to admit Judith’s rape was arbitrary, capricious, or so patently absurd as to cause a manifest miscarriage of justice. Thus, we find no abuse of discretion.
Defendant’s reliance on People v. Harris, supra, 60 Cal.App.4th 727 is misplaced. There, the prior offense involved a gruesome, bloody attack on and genital mutilation of a female tenant in an apartment complex managed by the defendant, for which he was convicted only of burglary; the jury was presented with an incomplete and distorted description of the incident; the incident happened 23 years before the charged offenses; and the charged offenses were less shocking and totally dissimilar breaches of trust, in which the defendant licked and fondled a woman and a former consensual sexual partner. (Id. at p. 733-735.) On appeal, the court found that the remoteness of the incident and its great dissimilarity to the charged offenses gave it little, if any, probative value concerning the charged offenses. Moreover, the prior incident was vastly more inflammatory than the charged offenses, and there was a possibility of confusion since the jury may have speculated about why the defendant suffered only a burglary conviction. As a result, the jury might have wanted to punish him for the horrible assault by convicting him of the charged offenses. Under the circumstances, the court held that the trial court had abused its discretion in finding that the evidence was more probative than prejudicial. (Id. at pp. 739-740.)
Unlike Harris, the relevant factors here did not militate against the admission of evidence concerning the rape of Judith. Accordingly, we find Harris to be distinguishable.
Given our analysis and conclusion, we need not discuss the Attorney General’s claim that the evidence was also admissible under Evidence Code section 1101, subdivision (b) to prove defendant’s motive and intent.
Written Statements and Threat to Officer Moore
The parties agree that the trial court probably admitted the sexually suggestive statements and threats that defendant made in letters to Officer Moore under section 1101, subdivision (b) to prove his state of mind, intent, and motive. Indeed, the prosecutor expressly stated that he was not offering the evidence under section 1108, and the court did not refer to that evidence when it instructed the jury on the use of evidence admitted under that code section.
Apart from section 1108, evidence of uncharged misconduct is not admissible solely to prove a criminal disposition, but it is admissible to prove a disputed, material fact—such as motive, opportunity, intent, preparation, common plan or scheme, knowledge, identity, absence of mistake or accident. (§1101, subds. (a) and (b); Ewoldt, supra, 7 Cal.4th at pp. 402-403.) To be admissible, however, the uncharged misconduct must be relevant, that is, it must be sufficiently similar to the current charges to support a rational inference concerning such a material fact. (Ibid.) “The strength of the inference in any case depends upon two factors: (1) the degree of distinctiveness of individual shared marks, and (2) the number of minimally distinctive shared marks.” (People v. Thornton (1974) 11 Cal.3d 738, 756, italics omitted, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)
The degree of similarity needed to show relevance varies depending upon the type of fact the uncharged misconduct is offered to prove. (Ewoldt, supra, 7 Cal.4th at pp. 402-403.) “The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ [Citation.]” (Id. at p. 403.)
“A lesser degree of similarity is required to establish relevance on the issue of common design or plan. [Citation.] For this purpose, ‘common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.’ [Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 371, quoting Ewoldt, supra, 7 Cal.4th at pp. 403-403.) And “[t]he least degree of similarity is required to establish relevance on the issue of intent. [Citations.] For this purpose, the uncharged crimes need only be ‘sufficiently similar [to the charged offenses] to support the inference that the defendant “ ‘probably harbor[ed] the same intent in each instance.’ [Citations.]” ’ ” (People v. Kipp, supra, 18 Cal.4th 349, 371, quoting Ewoldt, supra, 7 Cal.4th at p. 402.)
On appeal, the trial court’s ruling to admit uncharged misconduct is reviewed for abuse of discretion. (People v. Gray (2005) 37 Cal.4th 168, 202.)
Presumably, the court admitted defendant’s threat to beat Officer Moore before having her orally copulate him because it describes a possible future use of force and violence similar to that used against Danielle in his effort to have her orally copulate him. Apparently, the court found this similarity relevant to show defendant’s state of mind, intent, and motive toward Danielle. We disagree with such an analysis.
“[T]he doctrine of chances teaches that the more often one does something, the more likely that something was intended, and even premeditated, rather than accidental or spontaneous.” (People v. Steele (2002) 27 Cal.4th 1230, 1244.) Thus, evidence of prior quarrels and threats by a defendant against a specific person are admissible to show state of mind, intent, and/or motive where, for example, the defendant is accused of unlawful conduct against the same person. (E.g., People v. San Nicolas (2004) 34 Cal.4th 614, 668; Rufo v. Simpson (2001) 86 Cal.App.4th 573, 585; People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1610; People v. Daniels (1971) 16 Cal.App.3d 36, 46.)
Even when a defendant makes generic threats against a definable category of persons, such threats are admissible to show state of mind, intent, and motive if the evidence brings the victim within the threatened category. (People v. Karis, supra, 46 Cal.3d at p. 636.) For example, in People v. Rodriguez (1986) 42 Cal.3d 730, the defendant was charged with killing two police officers when they stopped him for driving a stolen vehicle, and the trial court properly admitted evidence of a generic threat he had made in the preceding months that he would kill any officer who attempted to arrest him. (Id. at pp. 756-758.) In People v. Karis, supra, 46 Cal.3d 612, the defendant was charged with kidnapping two women, raping one, and shooting them both, one of whom died, and the trial court properly admitted a statement that the defendant had made three days before the abduction that he would not hesitate to eliminate witnesses if he committed a crime. (Id. at pp. 626, 635-638.) In People v. Lang (1989) 49 Cal.3d. 991, the defendant was prosecuted for murder but claimed he acted in self-defense. The court properly admitted a statement the defendant had made a month earlier that he would “waste any mother fucker that screws with me.” (Id. at pp. 1013-1016; see also, e.g., People v. Cruz (2008) 44 Cal.4th 636, 651, 671; People v. Cartier (1960) 54 Cal.2d 300, 311; People v. McCray (1997) 58 Cal.App.4th 159, 172.)
Moreover, even where the evidence does not establish that the victim came within the category of persons targeted by a generic threat, that threat may still be relevant to prove motive when there is no other apparent motive for the crime. (E.g., People v. Thompson (1988) 45 Cal.3d 86, 109-110.)
On the other hand, the court in People v. Karis, supra, 46 Cal.3d 612, observed, that a threat of future harm has a “great a potential for prejudice in suggesting a propensity to commit crime as evidence of other crimes,” a purpose for which such evidence is not admissible. (Id. at p. 636.) “Therefore, the content of and circumstances in which such statements are made must be carefully examined both in determining whether the statements fall within the state-of-mind [hearsay] exception, as circumstantial evidence that defendant acted in accordance with his stated intent, and in assessing whether the probative value of the evidence outweighs that potential prejudicial effect.” (Ibid.) And where the evidence establishes that the victim comes within the scope of some previous threat, the evidence is generally admissible “unless the circumstances in which the statements were made, the lapse of time, or other evidence suggests that the state of mind was transitory and no longer existed at the time of the charged offense.” (Id. at p. 637.)
Here, defendant threatened a specific person, not Danielle. Moreover, he was in jail when he made the threat and directed it to a female corrections officer whom he allegedly loved and wanted to marry. Even if those circumstances suggested a potential category of persons who might also be potential targets—i.e., women involved in law enforcement with some authority or power over defendant—Danielle does not come within that category. For this reason, defendant’s threat of future action against Officer Moore has no tendency to reveal defendant’s motive for sexually assaulting Danielle some 13 to 17 years later under radically different circumstances; nor does the threat have much tendency to reveal his state of mind or intent toward Danielle. Furthermore, although the threat and the charged conduct involved the use of force in connection with oral copulation, such conduct is general and indistinctive and the common aspects too few to give the threat much, if any, probative value concerning defendant’s particular mental state, intent or motives several years later.
On the other hand, however, defendant’s prior threat had a strong tendency to suggest that defendant had a propensity toward the use of force and violence to obtain sexual pleasure. Indeed, in defending the admission of the evidence, the Attorney General argues that the similarity between the threatened conduct toward Officer Moore and defendant’s conduct toward Danielle establishes defendant’s “penchant for mixing sex and violence” and his “proclivity toward violent, unprovoked attacks on women” which, in turn, revealed his state of mind and intent toward Danielle and a motive for the sexual assault. (Italics added.)
However, admitting uncharged misconduct to show a penchant or proclivity toward sexual assaults is the same as using it to prove a criminal disposition and inviting the jury to find that defendant later acted in conformance with that disposition in attacking Danielle. Thus, where, as here, the prior uncharged misconduct is not sufficiently similar to the later charged conduct to show defendant’s mental state, intent, and motive toward his latter victim, the Attorney General’s two-step analysis—threat shows disposition which shows state of mind, intent, and motive—does not mask the fact that the evidence was improperly admitted to prove defendant’s criminal disposition. Accordingly, we conclude that the court abused its discretion in admitting evidence of the threat.
We review the error under People v. Watson (1956) 46 Cal.2d 818. (Evid. Code, § 353; People v. Malone (1988) 47 Cal.3d. 1, 22; Harris, supra, 60 Cal.App.4th at p. 741.) We find the error to be harmless.
The evidence was far less inflammatory than the admissible evidence concerning the instant offenses and the rape of Judith. Moreover, the court properly admitted the latter evidence to show his disposition to commit sexual offenses, and the jury was instructed that it could consider the evidence to show his disposition and the likelihood that he committed the charged offenses. Insofar as the threat represented additional evidence of that criminal disposition it was cumulative and thus did not improperly inject the issue of defendant’s criminal disposition into the jury’s consideration. Moreover, as noted, the court’s instruction on the disposition evidence prevented jurors basing a guilty verdict solely on that evidence.
Furthermore, there was compelling direct and circumstantial evidence of guilt. In addition to Danielle’s testimony, the evidence showed that Danielle screamed for help while inside defendant’s motor home and fled as soon as the door opened. She was in a state of undress. She was very agitated and immediately said that she had been sexually attacked. She suffered numerous injuries on various parts of her body, which were consistent with her version of events.
On the other hand, the jury had many reasons to question defendant’s explanation to Officer Vasquez. He gave different reasons for bringing her home, none of which included the hope of having sex with her that night. For some reason, however, she was undressed inside the motor home. Defendant also indicated that Danielle seemed fine and friendly on the ride to the motor home, but inside she suddenly became completely incapacitated, obnoxious, and out of control. He claimed they did not touch each other, but Danielle had extensive injuries, and he had scratches. He explained that she hurt herself by repeatedly falling off his bed. However, one could reasonably question how a fall would cause injuries to her throat that were consistent with being strangled and how a fall would result in Danielle losing some of her hair. Moreover, when defendant’s neighbor asked him why he had not let Danielle leave, he gave an answer that did not seem to make any sense: she wanted to go outside and get dressed. After the incident, defendant left and did not return. Later, he asked a neighbor to check on the motor home for him.
Under the circumstances, we do not find it reasonably probable that defendant would have obtained a more favorable outcome had the court excluded the evidence concerning the threat. (People v. Watson, supra, 46 Cal.2d at p. 836.)
IV. CALCRIM No. 1191
Defendant contends that the court’s instruction on the use of the evidence of uncharged rape of Judith. violated his right to due process in that it permitted the jury to convict him of the charged offenses solely on the basis of his disposition to commit sexual offenses.
The court gave CALCRIM No. 1191, the standard instruction concerning evidence admitted under section 1108. As given, the instruction provided as follows: “The People presented evidence that the defendant committed the crimes of rape that was not charged in this case. [¶] We are talking about the testimony of [Judith]. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. If you decide that the defendant committed the uncharged offenses, you may but are not required to conclude from that evidence that the defendant was disposed to or inclined to commit sexual offenses and, based on that decision, also conclude that the defendant was likely to commit and did commit the charged offense. If you conclude that the defendant committed the uncharged offenses, 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 is guilty of the charged offense. The People must still prove each element of the charged—charge offenses beyond a reasonable doubt. Do not consider this evidence for any other purpose.”
In Reliford, supra, 29 Cal.4th 1007, the California Supreme Court upheld the constitutionality of a version of former CALJIC No. 2.50.01, a predecessor to CALCRIM No. 1191 that, for purposes of discussion here, had essentially the same provisions. There, the defendant claimed that in permitting jurors to find the uncharged offense by a preponderance of the evidence, the instruction permitted them to rely solely on it to convict him of the charged offenses. (Id. at p. 1013.) In rejecting this claim, the court pointed out that the instruction did not tell jurors they could rest a conviction solely on evidence of prior offenses and instead informed them that if they found that defendant committed the uncharged offense, that evidence was not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime. Viewing the instruction as a whole, the court found that it “could not have been interpreted to authorize a guilty verdict based solely on proof of uncharged conduct.” (Ibid.)
Given Reliford and the identity between former CALJIC No. 2.50.01 and CALCRIM No. 1191, courts have upheld the latter instruction against constitutional challenges. (People v. Wilson (2008) 166 Cal.App.4th 1034, 1049; People v. Cromp (2007) 153 Cal.App.4th 476, 480; People v. Schnabel (2007) 150 Cal.App.4th 83, 87.)
Defendant acknowledges Reliford but argues that his claim raises a different issue. He argues that although the instruction informs jurors that evidence of the uncharged offense is not enough by itself to support a conviction, it does not also inform jurors that the conclusions they may draw from that uncharged offense—i.e., that defendant is disposed to commit sexual offenses and was likely to have committed the charged offense—are not enough by themselves to support a conviction. In other words, while the instruction prevented a verdict based solely on the evidence of uncharged offenses, it did not prevent a verdict based solely on his criminal disposition and the likelihood that he committed the charged offenses.
Assuming for purposes of argument that Reliford does not compel us to reject defendant’s challenge (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we nevertheless do so.
“When a claim is made that instructions are deficient, we must determine whether their meaning was objectionable as communicated to the jury. If the meaning of instructions as communicated to the jury was unobjectionable, the instructions cannot be deemed erroneous. [Citations.] The meaning of instructions is no longer determined under a strict test of whether a ‘reasonable juror’ could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a ‘reasonable likelihood’ that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel. [Citations.]” (People v. Dieguez (2001) 89 Cal.App.4th 266, 276-277, italics in Dieguez.)
First, the language of the instruction does not tell jurors (or suggest) that they may base a verdict solely on the conclusion they draw from the uncharged offense. Second, the jury was told that they must consider all of the instructions together. In addition to CALCRIM No. 1191, the court instructed that defendant was presumed innocent, and the prosecution had the burden to prove defendant guilty of the charged offenses beyond a reasonable doubt. The court also told jurors that the charged offenses required the union or joint operation of act and wrongful intent, explained the elements of each charged crime, and instructed them that the prosecution had the burden to prove each element beyond a reasonable doubt. Finally, we note that in their final arguments, neither the prosecutor nor defense counsel suggested that the jury could find defendant guilty based solely on the inference from the uncharged offense that he had a disposition to commit sexual offenses.
We note that the parties and the court spent a considerable amount of time discussing the admissibility of evidence under Evidence Code section 1108; they reviewed the proposed instructions, including CALCRIM No. 1191; and later, the court gave that instruction. At no time did defense counsel suggest that the instruction was flawed or ambiguous or suggest that it be modified. Thus, it does not appear that defense counsel understood the instruction in the way defendant now asserts or considered it reasonably susceptible of such an interpretation.
Under the circumstances, we do not find a reasonable likelihood that jurors would distinguish between the uncharged rape of Judith and the inferences they were permitted to draw and understand that while they could not base a conviction solely on the rape, they could find all elements of the charged offenses beyond a reasonable doubt based solely on defendant’s disposition to commit the offense regardless of the other evidence. Rather, we believe CALCRIM No. 1191 properly cautions jurors that if they find that defendant committed the uncharged offense, they are not required to draw incriminating inferences or conclusions; but if they do, the uncharged offense and inferences therefrom are not enough to support a conviction but simply one factor to consider in determining whether the prosecution proved the elements of the offense beyond a reasonable doubt.
V. Instructions on Self-Defense
Defendant contends that court erred in denying his request for instructions on self-defense.
“A trial court has no duty to instruct the jury on a defense—even at the defendant’s request—unless the defense is supported by substantial evidence.” (People v. Curtis (1994) 30 Cal.App.4th 1337, 1355.) In other words, if the evidence is “minimal and insubstantial,” the trial court need not give the instruction. (People v. Flannel, supra, 25 Cal.3d 668, 684.) In deciding whether there is substantial evidence, “the trial court does not determine the credibility of the defense evidence, but only whether ‘there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt....’ ” (People v. Salas (2006) 37 Cal.4th 967, 982.)
To justify an act of self-defense for an assault, the defendant must have an actual and reasonable belief that bodily injury is about to be inflicted on him. (People v. Minifie (1996) 13 Cal.4th 1055, 1064; see also People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) “The threat of bodily injury must be imminent [citation], and ‘... any right of self-defense is limited to the use of such force as is reasonable under the circumstances.’ ” (People v. Minifie, supra, 13 Cal.4th at pp. 1064-1065; Pen. Code, §§ 692, 693.) The test of reasonableness is objective; it is determined from the point of view of a reasonable person in the defendant’s position. (People v. Humphrey, supra, 13 Cal.4th at pp. 1082-1083.)
Thus, to support self-defense instructions, there had to be some evidence that defendant (1) reasonably believed he or she was in imminent danger of suffering bodily injury, (2) reasonably believed that the immediate use of force was necessary to defend against that danger, and (3) used no more force that was reasonably necessary to do so. (See CALCRIM No. 3470.) Moreover, “[i]t is well established that the ordinary self-defense doctrine—applicable when a defendant reasonably believes that his safety is endangered—may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created the circumstances under which his adversary’s attack or pursuit is legally justified.” (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.)
In support of self-defense instructions, defendant notes (1) his statement to Keller that he and Danielle had fought; (2) the injuries on various parts of his body; (3) and his statement to Officer Vasquez that he could not communicate with Danielle, who was stumbling around the motor home in a bizarre fashion.
This evidence does not reasonably support an inference that Danielle initially assaulted defendant or posed a danger of physical harm or that he reasonably feared that he was in imminent danger of physical harm, or that a reasonable person in defendant’s position would have thought so, or that defendant assaulted Danielle only out of necessity to protect himself. Indeed, according to defendant, Danielle was so incapacitated that she could not stay safely on a bed or control her bodily functions; he also denied that she touched him. Thus, defendant’s own version of events to Officer Vasquez negated any arguable inference that he acted in self-defense. Moreover, Danielle testified that defendant assaulted her first.
Under the circumstances, we conclude that the court properly rejected defendant’s request. Simply put, the evidence was too minimal and insufficient to raise a reasonable doubt concerning whether defendant assaulted and injured Danielle in self-defense.
VI. Denial of Motion for New Trial
Defendant contends the court erred in denying his motion for new trial.
Background
After trial, defendant moved for a new trial based on a claim that defense counsel had rendered ineffective assistance in failing to call defendant to testify and refusing to honor his demand to do so. In his declaration in support of the motion and his testimony at the hearing, defendant said that before and during trial he demanded to testify several times, but defense counsel said he could not because the prosecutor would “tear me apart” on cross-examination and reveal his prior criminal history. He did not respond and kept his mouth shut because he felt counsel was the “boss” and “did what he wanted to do.” Defendant claimed that counsel was belligerent and hostile, and he felt trapped, paranoid, afraid and pressured. However, he admitted that he did not testify in his prior manslaughter prosecution, and in this case, he had no difficulty expressing his dissatisfaction with counsel directly to the court and having tried to obtain different counsel. He conceded that he did not at that time say that one reason for his dissatisfaction was that he wanted to testify.
Defendant further asserted that had he testified, he would have been able to refute Danielle’s testimony about how she was injured and explain that Danielle was incoherent and unable to communicate, and she repeatedly fell off the bed, vomited and violently attacked him. He said he could have explained that he “was moving away denying sexual contact from [her] and told her to leave” and she “clawed at myself for no reason I caused.” He also could have denied wanting to have sex with her.
Defendant admitted that he had prior felony convictions for manslaughter and drunk driving and understood that he could have been impeached had he testified. He also acknowledged that his trial on the charges and prior conviction allegations had been bifurcated so jurors would not learn about his prior convictions.
Defense counsel denied preventing defendant from testifying. He explained that they discussed the topic a number of times before and during trial. He advised defendant about the pros and cons, noting that because the trial was bifurcated the jury would not learn of his two felony convictions unless he testified. He recommended that he not testify but left the choice to him. It remained an open question while the prosecution was presenting its case. Counsel remembered a conversation after the prosecution rested concerning whether the defense would put on evidence. He also had a discussion with defendant when the moment to decide arrived. They had a practice session. In a note about the meeting, counsel wrote that he “[f]inally convinced defendant not to testify. Explained that if defendant testifies, will become a credibility contest between defendant and victim. And then my opinion nobody will believe defendant and defendant will not succinctly answer my questions or the D.A.’s, for that matter. Explained the D.A. much better at cross-exam than cop. Downside, in other words, what I’ve explained no self-defense instruction. However, has record for appeal.”
Counsel further explained to defendant that the videotape of defendant’s interview with Officer Vasquez was a better way to present his story than he was going to accomplish at trial, especially because Officer Vasquez was not as aggressive in questioning defendant as the prosecutor would be. Moreover, any contradiction between his explanation of events to Officer Vasquez and his trial testimony would be “disastrous.” Counsel stated that defendant agreed to take his advice and let counsel make the call concerning his testimony. When, after other defense witnesses had testified, it was time to make the call in court, defendant did not state or otherwise indicate that he had changed his mind, and counsel announced that the defense would rest.
The issue did, however, come up during final argument. After the prosecutor’s opening argument, defendant wrote on a pad, “Would it now look better if I testify” and counsel wrote, “no.”
Counsel noted that defendant had not been shy about expressing his views and challenging counsel’s approach. He knew that defendant had written to the court, and he advised defendant against doing so.
After hearing from defendant and counsel, the court denied the motion for a new trial.
Discussion
In reviewing the denial of defendant’s motion, “[w]e accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence.” (People v. Nesler (1997) 16 Cal.4th 561, 582 (lead opn. of George, C.J.).)
In denying defendant’s motion, the court resolved the credibility contest between defendant and counsel in counsel’s favor and implicitly found that counsel did not prevent defendant from testifying or otherwise ignore his demand to testify; rather, counsel left the decision to defendant, and he accepted counsel’s advice and elected not to testify.
In essence, defendant claims that as a matter of law, counsel’s explanation of events was incredible and thus, does not constitute substantial evidence to support the court’s ruling. We disagree.
Counsel’s testimony was not inherently incredible, and his and defendant’s written notes do not clearly and necessarily contradict counsel’s testimony. Moreover, the defendant’s credibility was undermined by his prior convictions; and, given defendant’s actual complaints about counsel and effort to get new counsel, the court could have rejected his claim that he was too scared to tell the court that counsel was ignoring his demand to testify. Finally, we reject defendant’s claim that counsel’s written statement that he had “finally convinced” defendant not to testify necessarily shows that counsel had unilaterally decided that defendant was not going to testify regardless of whether defendant wanted to. In our view, the trial court reasonably could have understood the statement to mean only that up to that time, defendant was not certain that the disadvantages and dangers of testifying outweighed any advantages, but he finally accepted counsel’s opinion and advice on the matter and decided not to take the stand.
In sum, therefore, we do not find that the court erred in denying the motion for new trial.
VII. Ineffective Assistance of Counsel
Defendant contends that counsel rendered ineffective assistance in failing to have him testify and failing to object to some comments by the court.
To obtain reversal due to ineffective assistance, a defendant must first show “that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney[.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1003; Strickland v. Washington, supra, 466 U.S. at p. 688.) Where the record on direct appeal “does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation.” (People v. Anderson (2001) 25 Cal.4th 543, 596.) Because the defendant bears this burden, “[a] reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” (People v. Carter (2003) 30 Cal.4th 1166, 1211.) Second, a defendant’s must show that there is “a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham, supra, 25 Cal.4th at p. 1003.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Staten (2000) 24 Cal.4th 434, 450-451.)
Failure to Have Defendant Testify
Defendant argues that counsel rendered ineffective assistance in refusing to honor his demand to testify. However, given our analysis and conclusion that the court properly denied the motion for a new trial, we reject this claim.
Defendant claims counsel should have had him testify to (1) explain how Danielle fell off his bed and sustained her various injuries; (2) bolster his claim that he acted in self-defense; and (3) address “specific allegations” that Danielle made for the first time at trial that he could not have known about and refuted during his interview.
At the hearing on the motion for new trial, defense counsel explained why he advised defendant against testifying. From his discussions with defendant and after question-and-answer sessions, counsel questioned whether defendant would appear credible to the jury and be able to answer questions succinctly. Moreover, defendant would be able to present his version of events vividly through the DVD of the interview with Officer Vasquez, who did not question him harshly, and avoid the inevitably more difficult and aggressive cross-examination by the prosecutor. Defendant would also avoid being impeached by potential inconsistencies between his interview and testimony and, more importantly, by his two prior felony convictions.
Defendant does not convince us that counsel’s analysis was unreasonable or that his advice fell below the standard of performance expected of competent counsel.
The jury saw defendant’s interview with Officer Vasquez and thus heard him explain that Danielle injured herself by repeatedly falling off his bed. The jury also saw the defense video of a person trying to sit and lie on defendant’s very unstable bed. Thus, the jury could evaluate whether Danielle could have hurt herself in that way. Moreover, the record does not suggest how defendant could credibly explain the many injuries to different parts of her body, including the loss of some hair, by failing off a bed, no matter how many times she may have fallen. Under the circumstances, it was reasonable for counsel to conclude that defendant would have difficulty convincing the jury and that the benefits of trying to do so were outweighed by actual benefits he would obtain by avoiding cross-examination and impeachment by his prior convictions.
Concerning the theory of self-defense, defense counsel perceived some marginal benefit from having instructions on an alternative defense, even though it was significantly inconsistent with his primary defense and statement to Officer Vasquez. Obviously, however, counsel did not intend to have defendant testify to support it. Had defendant done so, he would have been impeached with his prior explanation that he did not touch Danielle and that her injuries were self-inflicted. Moreover, defendant would have had to plausibly explain that he had to use force against Danielle because she attacked him for no reason and he feared bodily injury even though he had told Officer Vasquez that she was incapacitated, stumbled around, tripped over things, and repeatedly fell off the bed. Finally, defendant would have been further impeached with his prior convictions. Under the circumstances, counsel could have thought that the threat of impeachment by inconsistent statements and prior convictions and the risk to the defense based on the statement to Officer Vasquez outweighed the benefit of having defendant provide additional support for an alternative, inconsistent, and perhaps less plausible theory of defense.
As noted, at the motion for new trial, defendant claimed he would have testified that Danielle violently attacked and clawed him for no reason.
As noted, the court refused to give self-defense instructions because defendant’s statements to Keller and Officer Vasquez, by themselves, were not enough to support the theory. However, given the risks and dangers of having defendant testify, we do not find counsel’s decision to seek self-defense instructions based solely on his prior statements and thereby risk losing that potential theory tactically unreasonable as a matter of law.
Finally, defendant does not specify any particular allegations that Danielle made for the first time at trial. Therefore, he has not shown that how the failure to have him testify to refute those allegations was unreasonable.
Failure to Object to Statements about the O. J. Simpson Case
Defendant notes that during voir dire of prospective jurors, the court alluded to the O. J. Simpson case in trying to clarify for a juror the difference between “not guilty” and “innocent.” The said, “Let me use the horrible case, horrible for any number of reasons, including embarrassment to the state of California, the O. J. Simpson case. Jury in that case, well-publicized case, virtually everybody followed it in some sense, but when the jury came back and said that he was not guilty it that case, they were not making a determination that he was innocent of those charges. They were making a determination that his guilt had not been proven beyond a reasonable doubt. [¶] Does that help you any in terms of what we’re talking about?”
Later, the court asked a prospective juror, “.... [W]ere you listening when they went through the hypothetical this morning about the probably guilty defendant, and how did that set with you?” The juror replied, “That’s interesting, because I was thinking about this at recess, when you talked about the O. J. case.” The court responded, “I hate to bring it up.” The juror said, “I know but that’s what I thought of.” The court said, “You can still sense my disgust, but go ahead.” The juror continued, “I have a hard time figuring out the not guilty verdict and innocent. I don’t see that.” The court explained, “This is really basic to how the system works. Again, we are like beating on a drum over here. [The prosecutor] has to prove the defendant guilty beyond a reasonable doubt. If he doesn’t, the jury merely determines that he has failed to carry his burden of proof and so the defendant is not guilty. So with our hypothetical small but reasonable doubt, the defendant is not guilty. Well, that does not equate to a system in another country, wherever, where there actually may be a determination that someone is factually innocent.... We’re not interested in concepts of innocence in American criminal litigation.”
The court had set up a scenario in which a juror heard all the evidence and instructions and began to deliberate. “And you got a pretty good idea after this process that [defendant] is probably guilty of exactly what the People are trying to prove. However, there is an explanation available to yourself that makes some sense to you based upon the evidence and the law that points to [defendant] being not guilty, even though that explanation or that rationale is less persuasive to you than the one that he is guilty. If that lesser explanation, no matter how slight it is, is based upon reason, even though you think [defendant] is probably guilty, how do you vote?” A prospective juror answered “not guilty,” and the court agreed that that was the correct answer.
Defendant claims that counsel should have objected because the court’s reference to the O. J. Simpson case in effect told jurors that this case was like the Simpson case and “planted the seed” in the jurors’ minds that defendant was probably guilty but would have to be set free if the prosecution could not prove guilty beyond a reasonable doubt. Defendant further argues that the court suggested that the acquittal in the Simpson case was “horrible,” and an “embarrassment” and thereby implied that a similar result in this case would be horrible and cause jurors to suffer similar embarrassment.
“ ‘[J]udges presiding at trials should be exceedingly discreet in what they say and do in the presence of a jury lest they seem to lean toward or lend their influence to one side or the other.’ [Citation.] ‘ “The [trial] judge has a duty to be impartial, courteous and patient... and its violation may be so serious as to constitute reversible error.” ’ [Citation.] ‘It is completely improper for a judge to advise the jury of negative personal views concerning the competence, honesty, or ethics of the attorneys in a trial.... When the court embarks on a personal attack on an attorney, it is not the lawyer who pays the price, but the client.’ [Citation.] [¶] Socrates succinctly counseled: ‘Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially.’ [Citation.]” (People v. Burnett (1993) 12 Cal.App.4th 469, 475.)
“A California trial court may comment on the evidence, including the credibility of witnesses, so long as its remarks are accurate, temperate, and ‘scrupulously fair.’ [Citation.] Of course, the court may not express its views on the ultimate issue of guilt or innocence or otherwise ‘usurp the jury's exclusive function as the arbiter of questions of fact and the credibility of witnesses.’ [Citation.]” (People v. Melton (1988) 44 Cal.3d 713, 735.)
We find the subtle inferences and hidden messages that defendant conjures from the court’s brief references to the Simpson case to be unreasonable. Those references played a miniscule part in the court’s extended effort to explain the concept of “reasonable doubt,” describe the sort of doubt the prosecution must eliminate in order to satisfy its burden of proof and obtain a conviction, and then clarify the difference between “not guilty” and “innocent,” which some jurors had difficulty understanding. At all times, however, the emphasis and focus of the court’s discussion with jurors was on those concepts and making sure that that jurors understood them and agreed to abide by them in determining defendant’s guilt. Viewed in light of their obviously illustrative purpose, the court’s references were designed to prevent jurors from convicting defendant because they thought he was probably guilty or because the evidence did not clearly establish his innocence.
Having reviewed the pertinent parts of the voir dire in their entirety, we doubt that anyone reasonably could have thought that the court conveyed its personal views about the case and defendant’s guilt. Under the circumstances, defense counsel could have reasonably declined to object and seek a cautionary admonition. Indeed, a request for a cautionary instruction was unnecessary because the court expressly told jurors not to take a cue from the court’s comments. The court instructed that “[i]t is not my role to tell you what your verdict should be. Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be.”
Under the circumstances, defendant cannot show that counsel’s omission was unreasonable or that he would have obtained a more favorable result had counsel objected and the court give an additional admonition.
Failure to Object to Comments about Defendant’s Failure to Testify
At the close of the prosecution’s case and just before excusing the jury until the next morning, the court stated, “At that point I expect more evidence from defense, again, not talking about the substance of the evidence, but it will be brief in terms of the time it will take. I expect that I will instruct you on the law tomorrow morning. Counsel will argue the case after the noon break tomorrow, okay. So the evidence part is not going to take terribly long and that will be—I expect that’s going to be it. I don’t know for sure. For one thing I can’t predict or anticipate whether Mr. Shafer is going to testify or not, okay.”
Defendant claims that counsel should have objected because this statement improperly commented on defendant’s “prospective failure to testify,” in violation of his constitutional rights. According to defendant, the comment reflects an assessment concerning whether defendant should testify, a judicial opinion that the defendant should not testify, and an improper implication that defendant was guilty. Indeed, defendant asserts that later, outside the presence of the jury, the court acknowledged that its comment was improper and regretted having made it.
Again, we find defendant’s interpretation of the court’s comments strained and unreasonable. Unmistakably, the entire passage relates to scheduling and represents an effort to provide jurors with information about what to expect the next day. In doing so, the court simply noted that the length of the defense case would depend on whether defendant testified, something he could not predict. In our view, counsel reasonably could have declined to object because the comment does not imply that the court had an opinion one way or the other about whether defendant would testify, let alone whether he should testify. Moreover, even if the court’s comments suggested that defendant might not testify, they did not have any reasonable tendency to suggest that the court thought defendant was guilty.
Moreover, we disagree that the court later acknowledged the impropriety of his comment and expressed regret for making it. The record reflects that after the jury was excused and the court and parties were going through the possible instructions, the court mentioned an instruction about the defendant not testifying, stating, “The next instruction I get—you know, we’re still—I don’t have. Obviously, I don’t know. I’m sorry to tip my hand that I suspect the defendant is not going to testify. It’s not appropriate. But, in any case, I still don’t have the instruction for the defendant not testifying.”
We do not read the court’s statement as an acknowledgment that his prior comment in front of the jury was improper or as an expression of regret for making it; rather, the court simply acknowledged that that it was premature for the court to propose an instruction about defendant not testifying and inappropriate to “tip his hand” on the subject before defendant and defense counsel had decided whether or not defendant was going to testify.
In short, defendant has not shown that counsel’s failure to object to this comment was unreasonable.
VIII. Denial of the Romero Motion
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
In Romero, supra, 13 Cal.4th 497, the court stated that a trial court’s discretion to dismiss strikes in furtherance of justice is “limited.” (Id. at p. 530.) The trial court must consider both the constitutional rights of the defendant and the interests of society. (Ibid.) It may not dismiss a strike to accommodate judicial convenience, relieve court congestion, or respond to a guilty plea. (Id. at p. 531.) Nor may a court dismiss a strike because it disagrees with the harsh effects the “Three Strikes” law would have on the defendant and without first considering the defendant’s background, criminal history, and the nature of his present offense. (Ibid.)
For example, in People v. Williams (1998) 17 Cal.4th 148, the trial court dismissed one of the defendant’s strikes because it was 13 years old and after it, the defendant had not committed another violent crime. However, the California Supreme Court found that the trial court abused its discretion. (Id. at pp. 162-164.) The court noted that the defendant had a 19-year criminal history that included strike convictions for attempted robbery and rape as well as non-strike convictions for spousal battery, possession of firearms, and driving under the influence. The court explained, that in exercising its discretion, the trial court should give no weight to “factors extrinsic to the [Three Strikes] scheme” and must accord “preponderant weight... to factors intrinsic to the scheme, such as the nature and circumstances of the defendant’s present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects.” (Id. at p. 161.) The critical determination is whether the defendant “may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Ibid.)
In People v. Carmony (2004) 33 Cal.4th 367, the California Supreme Court explained that “the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (Id. at p. 376.) In light of this presumption, an abuse of discretion in declining to dismiss a strike occurs only in “limited circumstances.” (Ibid.) For example, where the trial court is “ ‘unaware of its discretion’ to dismiss [citation]”; “where the court considered impermissible factors in declining to dismiss”; where application of the sentencing norms established by three strikes law produces “ ‘ “an arbitrary, capricious, or patently absurd” result’ under the specific facts of a particular case”; or “where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme,” that is, where the relevant factors “manifestly support striking of a prior conviction and no reasonable minds could differ....” (Ibid.)
On appeal, we presume the trial court acted to achieve legitimate sentencing objectives (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978), and therefore defendant bears the burden to show that the court’s refusal to dismiss was “so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony, supra, 33 Cal.4that p. 377; People v. Jordan (1986) 42 Cal.3d 308, 316; People v. Barrera (1999) 70 Cal.App.4th 541, 554.)
At sentencing, defendant requested dismissal of his 1985 strike conviction for vehicular manslaughter because (1) it was old; (2) he had no other serious or violent felonies and his only other felony conviction was a 1995 conviction for drunk driving; (3) he struggled with a lifelong addiction to alcohol; (4) he also struggled with the consequences of a head injury he suffered from a motorcycle accident in the 1980’s; and (5) he has never had the opportunity to complete a long term residential treatment program.
The probation report stated that defendant had “an extensive criminal history dating back to the early 1970’s” that included three felonies and 15 misdemeanor convictions and included two prior prison commitments. The report also included defendant’s statement that he suffers deep depression and takes Risperdol and Motrin.
On appeal, defendant contends that the court should have deemed him outside the spirit of the Three Strikes law because his strike is old, his intervening crimes are non-violent and alcohol related, and he has a history of mental illness and suffers depression. However, this claim simply reiterates the arguments raised below, and although the trial court could conceivably have accepted them and dismissed the strike, it did not, and its refusal to do so does not automatically mean that the court acted irrationally or arbitrarily. Nor does the record establish as a matter of law that it did.
The age of the strike does not militate in favor of dismissal because defendant hardly led a blameless life thereafter. Indeed, he was sentenced to eight years, and after his release he resumed criminal conduct, suffering convictions every year from 1993 to 1996. Moreover, his latest offenses reflect an escalation in seriousness, in that they involved the personal sexual assault and use of violence.
Defendant’s addiction to alcohol does not demand dismissal or suggest that it is appropriate. Defendant fails to explain how he was prevented from completing or not given the opportunity to complete a treatment program, even a voluntary program. (See People v. Martinez (1999) 71 Cal.App.4th 1502, 1511 [long term addiction not mitigating factor when defendant fails to pursue treatment].) Moreover, it does not appear that his alcohol addiction played any part in his current offense, and it did not figure into his defense.
Finally, defendant does not explain how his head injury or depression affects his behavior or ability to lead a law-abiding life. Nor does he suggest that his mental issues were related to his prior or current offenses or otherwise rendered him less culpable.
In sum, the record does not establish as a matter of law that the trial court’s ruling was irrational or arbitrary. Accordingly, we find no abuse of discretion.
IX. Disposition
The judgment is affirmed.
WE CONCUR: REMO, J. ELIA, J.