Opinion
NOT TO BE PUBLISHED.
Santa Clara County Super. Ct. No. CC507418.
BAMATTRE-MANOUKIAN, ACTING P.J.
Defendant Michael Anthony Shephard was convicted after jury trial of forcible rape (Pen. Code, § 261, subd. (a)(2)). The trial court sentenced him to the upper term of eight years in state prison.
Further unspecified statutory references are to the Penal Code.
Defendant contends on appeal that: (1) The trial court denied him due process and a fair trial by erroneously admitting impeachment evidence and counsel rendered ineffective assistance by failing to object to the evidence on those grounds and by failing to request a limiting instruction. (2) The trial court denied him due process and a fair trial by erroneously admitting hearsay evidence and counsel rendered ineffective assistance by failing to request a limiting instruction and by failing to seek to redact the evidence. (3) The trial court denied him due process and a fair trial by erroneously instructing the jury with Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 362. (4) The trial court prejudicially erred by instructing the jury with CALCRIM No. 1191. (5) The cumulative effect of the above errors denied him due process and a fair trial. (6) The trial court prejudicially erred by imposing the upper term. As we agree with defendant’s last contention, but find no other reversible error, we will reverse the judgment and remand the matter for resentencing.
FACTS AND PROCEDURAL HISTORY
Defendant was charged by information with one count of forcible rape. (§ 261, subd. (a)(2).) The prosecutor filed motions in limine seeking, in part, to introduce under Evidence Code section 1108 the testimony of two women, Dorothea and A., who allege that defendant previously raped them; to introduce letters sent by defendant to A. and her friend J.; and to impeach defendant, should he testify, with his prior juvenile adjudication for attempted first degree murder. Defendant filed opposition to the request for admission under Evidence Code section 1108 of evidence of his alleged prior sex offenses. He separately filed motions in limine seeking, in part, to exclude under Evidence Code section 352 evidence of previous allegations of rape against him, of his juvenile record, and of his extrajudicial statements; and to prohibit his impeachment with his prior juvenile adjudication for attempted murder. Following a hearing, the trial court granted the motion to admit the Evidence Code section 1108 evidence, and deferred ruling on the motion to impeach defendant with his prior juvenile adjudication, and on the motion to admit his letters to A. and J.
The Prosecution’s Case
The Current Offense
L. has a congenital hearing disability and cannot hear anything without the assistance of hearing aids. With hearing aids she can hear “average.” She can read lips as long as the person speaking is moving his or her lips slowly. On July 3, 2003, L. wore two hearing aids.
L. testified that she walked from her home to her bank around 10:00 a.m. on July 3, 2003. As she was returning home around 11:00 a.m., defendant approached her on a bicycle. Defendant said something to her but she could not understand him because he was talking too fast. She did not want to talk to him and she told him that she is deaf. He followed her and touched her on her leg and her butt, so she decided to go to a nearby church. As nobody was at the church, she sat on a bench outside the church at defendant’s request. Defendant sat next to her and continued to talk to her. He said that he was in the Navy and he showed her his driver’s license and other identification. The name on all of the identification cards was Michael Shephard. The driver’s license had a San Diego address but the other cards listed addresses in different cities. Defendant asked to see her identification, but she refused to show it. Defendant touched L.’s butt and tried to touch her vagina, and he put his finger in her mouth. She pushed his hand away and told him no. She felt frightened and very uncomfortable and told defendant that she had to go home.
L. was assisted by two interpreters: a court-certified American Sign Language interpreter, and a deaf relay interpreter who was sworn in by the courtroom clerk.
L. walked towards the post office and defendant followed her. She went inside and he stayed outside with his bicycle. When she left the post office about five minutes later, defendant approached her again. She told him to leave her alone. Defendant asked her to watch his bicycle and then went into a senior center to get a pen and some paper. When he returned he wrote his name and phone number on the paper, gave it to her, and asked her for her phone number. She wrote down her name and her work number, said good-bye, and tried to leave. Defendant followed her, tried to talk to her, and put his arm around her shoulder. She told him to stop touching her and to go away.
L. turned down a dirt path in an attempt to get away from defendant by using a shortcut to her home, but he followed her. He dropped his bicycle, put his arm around her neck from behind, and pulled down her pants. She was terrified. She screamed “no, no” and struggled with him. She saw that his pants were down and she could see his erect penis. When she realized that defendant was going to rape her, she gave him a condom that was in her fannypack. He tried to put the condom on and then penetrated her vagina with his penis. He then removed his penis, removed the condom, grabbed her, and penetrated her again. It was painful and L. screamed “no.”
When defendant finally pulled his penis out of L.’s vagina, she saw him masturbate and ejaculate, and she saw sperm on the ground. Defendant pulled up his pants and tried to kiss her and then he left on his bicycle, taking the condom with him. L. pulled up her pants and fled home. She called her father and told him that she was raped. She then called the police. Before the police arrived, she took a shower and changed her clothes. Although she had trouble communicating with the responding officers, she did tell them that defendant put his penis in her vagina. Both she and the police called the phone number defendant gave her but they found that it was false.
L.’s father testified that L. called him at work on July 3, 2003, and told him that she was raped. He told her that she needed to contact the police. L. was very upset when he arrived home about 30 or 40 minutes later. He was concerned because L. has seizures and some mental disabilities. L. told him what happened and took him to where she said it happened. They returned home and waited for the police.
Around 3:00 p.m. on July 3, 2003, Milpitas Police Officer Aurelio Armas responded to L.’s home. L. was upset and crying. Armas had problems communicating with L. because of her hearing impairment and because no interpreters were available. L. attempted to describe verbally, in writing and by using gestures, what happened, but Armas found it difficult to communicate with her.
Officer Armas testified that L. reported that she had been assaulted around 10:30 a.m. that day. She indicated that a Black man she did not know, who had a tattoo on his hand, rode by her on a bicycle and attempted to flirt with her. She continued walking and the man attempted to talk to her again, but she said that she did not want to talk to him. The man told her that he would like to date her. He said that his name was Michael Solomon and he wrote down a local phone number, but the driver’s license he showed her listed his last name as Shephard and his address as San Diego. As she was walking home on a dirt path, the man approached her from behind and grabbed one of her breasts. He tried to pull her back, grabbing her by the pants, and her pants went down to her ankles. She pulled her pants up and told the man no. He lowered his pants and she saw his boxer shorts and his erect penis. He fondled himself and kissed her forcibly on the lips. She said that she wanted to go home and pulled away from him. She did not say that the man penetrated her vagina with his penis. L. took Officer Armas to the location where she said the attack occurred, which is relatively secluded, and he looked for physical evidence but he did not see any.
At the prosecutor’s request, defendant showed his left hand to the jury. The record states that defendant “has tattoos on the foreknuckles on the forefingers of his hand.”
L. was examined at Kaiser on July 7, 2003. She told the personnel there that she was raped on July 3, 2003, at 12:30 p.m.
Milpitas Police Sergeant Gregory Mack testified that he met with L. and a police sketch artist on July 18, 2003. At the time, Mack assumed that he was investigating an attempted rape. However, during the interview L. made it clear that she was raped. L. said that a man on a bicycle touched her on her buttocks, breast, and vaginal areas, and that she did not want the man’s attention or his touching. She also said that the man grabbed her from behind, pulled down her pants, and penetrated her vagina with his penis a few times, and that the man ejaculated onto the ground. Mack asked L. why she did not tell the first officer that she was raped. L. responded that she did, but that she had a problem communicating with the officer. Using the information that L. provided him, Mack did a computer search and learned that defendant had an outstanding warrant for a sexual assault in San Diego. He asked the San Diego police to interview defendant.
On November 21, 2003, Sergeant Mack showed L. a photographic lineup that did not include defendant’s photo. L. picked out the photo of a man named Johnny Key, saying that she was 85 percent certain that he was the person involved in the July 3, 2003 incident. Mack interviewed Key at the Santa Rita jail and eliminated him as a suspect. L. was shown a second photographic lineup on November 26, 2003, and identified defendant’s photo.
On September 14, 2005, San Diego Police Detective Jana Beard interviewed defendant while he was in custody. The interview was tape-recorded and a copy of the tape was played for the jury. During the interview, Detective Beard falsely told defendant that his DNA was found during the investigation of a sexual assault in Milpitas. Defendant did not deny that it was his DNA that was left at the scene. Defendant admitted having sex with a woman “who had a speech impediment” that he met in Milpitas while on his bicycle, but stated that the woman initiated it and that it was consensual.
Evidence Code Section 1108 Evidence
Around 11:00 p.m. on June 23, 2003, A. and her friend J. were walking from a San Diego movie theater to the trolley. Defendant and his passenger drove up beside them and defendant tried to get their attention. A. and J. kept walking. Defendant drove past them and stopped. The passenger got out of the car and met A. and J. as they tried to pass. Defendant stayed in the car. The passenger revealed a gun and said it was a robbery. He directed A. and J. to go behind a nearby van and ordered them to empty their pockets. A. and J. did so. J. turned over $30 to $40, but A. had only her ATM card and her ID. Because the passenger seemed upset, A. offered to take him to an ATM. The passenger directed J. to stay where she was because he would bring A. back, and directed A. back to defendant’s car.
A. sat in the front seat of the car as directed by the passenger and the passenger sat behind her. He told defendant to drive to an ATM. During the drive, defendant and the passenger tried to talk to A., and the passenger took two cell phones out of A.’s backpack. Defendant said that A. has nice lips and he asked her sex-related questions. The first ATM they went to was out of order. When they finally stopped at a working ATM, both defendant and the passenger remained in the car. A. withdrew $20 and gave it to the passenger. Defendant told A. to get in the backseat of the car and to perform oral sex on the passenger. A. complied because she did not want to get hurt. While she was bent over in the open car doorway with her pants down, defendant stood behind her and put his penis inside her vagina. After a few seconds, defendant withdrew his penis and the passenger said that she could stop. Defendant got something out of the trunk of the car and wiped A. between her legs. They told her to get back into the front seat, drove her to a freeway entrance, and then told her to get out. A. got out, ran, and contacted the police.
That night, J. told her mother Diane what happened. Diane spoke to A. the following morning and again after a few days. A. said that she had been abducted and raped and that a gun was involved. Sometime later, but before J. and A. testified in San Diego, Diane received a phone call from defendant. Diane considered the phone call to be threatening.
On May 30, 2006, A. received a letter from defendant at her home address. The letter talks about murder and indicates that defendant’s family lives close to her. Defendant apologizes for his part in the San Diego incident, and requests that A. not testify against him. A. felt threatened and she gave the letter to Diane. Sometime in June 2006, Diane intercepted a letter to J. sent by defendant to their home. The letter talks about people getting killed in “Oak town,” which is not far from where Diane and J. live. The letter states that defendant is not a fan of “ ‘black-on-black’ ” crime. Defendant apologizes for whatever role he played in the San Diego incident, and he requests that J. not come to court and testify. Defendant also acknowledges having called and talked to Diane. After reading the letter, Diane felt afraid for herself and her children, and she called the D.A. in the San Diego case. She later gave both J.’s and A.’s letters to the police.
The Defense Case
Defendant testified that he was in the Navy from August 2001 to April 2002. In 2003 he was living with his wife in San Diego and working as a bus driver. He was a member of Amnesty International, which he described as “like a peace activist organization, humanitarian organization.”
On June 23, 2003, he was driving around San Diego in his new car with a man he knew through his cousin. He had agreed to give the man a ride downtown. Once they arrived downtown, defendant saw two women walking by them holding hands. Defendant said something to them, and they said that he should take his passenger home because the passenger looked “ ‘kind of fucked up.’ ” Defendant drove off but his passenger said that the women wanted to buy some marijuana and he asked defendant to turn around. Defendant did so and stopped. The passenger got out of the car, walked up to the two women, and the three of them went behind a van.
After three to five minutes, defendant’s passenger returned to defendant’s car with one of the women and said that they needed to go to an ATM. The woman got in the front seat and the man got in the back seat. Defendant drove to the nearest ATM, but the man got angry about their location. Defendant turned around and saw that the man had a gun in his lap. Defendant froze. The man told defendant to find another ATM and defendant did. The man took defendant’s keys and then he and the woman went to the ATM. When they returned to defendant’s car, the man told defendant that the woman was going to orally copulate him. The man then told defendant to search the woman. Defendant hit the woman’s pockets and said that she did not have anything. The man took the woman’s backpack from her and they all got back in the car.
The man told defendant that they needed to go to another ATM. The man went through the woman’s backpack, taking out and using a cell phone while defendant drove. When defendant parked, the man told defendant to tell the woman that he wanted her to orally copulate him. Defendant told the woman what the man said, knowing that she did not have any choice. She said that she would do whatever it took for her to be returned to her friend. The man directed the woman to get into the back seat. Defendant got out of the car and stood in front of it. He did not remove the woman’s pants or otherwise touch her. Nor did he take something out of the trunk and wipe the woman with it.
Both the man and the woman got out of the car. The man told defendant to drive slowly on the sidewalk. The woman went to the ATM and returned to the car. She got back into the front seat and gave some money to the man. The man told her to get out of the car and said that she was a fool if she thought they would take her downtown. The woman got out and the man told defendant to take him home. Defendant did so. He then went home and told his wife what happened. He did not call the police because his wife, who was six weeks pregnant, said that she would get an abortion if he did so.
Defendant sent the letters to A. and J. because he felt that he was also a victim in the case and he wanted them to know that he empathized with them. The part of the letters talking about people being killed was just part of a song he had written, and he wanted the two women to know that he did not condone “black-on-black” crime. He called the mother of one of the women but he did not tell her that her daughter should not testify. Rather, he “expressed some type of sympathy.”
On July 3, 2003, defendant was riding a bicycle in Milpitas when he met L. at a stoplight. They talked as he walked the bike next to her. He told her that he was staying with a cousin a few blocks away. As they passed a church he suggested that they sit and continue their conversation. L. agreed. They talked for about 15 minutes. He showed her his picture identification because she made some comment about his hairstyle. They slapped each other’s thigh as they talked and laughed. When he commented that her breasts were coming out of her shirt, she hit his hand, then grabbed it and put it on her breast, saying “ ‘They are in there.’ ” He noticed that she stuttered a lot but he did not notice any hearing aids. He denied that he placed his fingers in L.’s mouth or that he took her hand and put it in his mouth.
After they left the church, they went to the post office. L. said that she had to mail something and he said that he would wait for her outside. When she returned she offered to give him her phone number. He told her to write it down. He went into the senior center to use the restroom while she stayed with his bike. When he returned she told him to get a pen. He went back inside, got a pencil, wrote down a number for her, and got her number. He made up the number he wrote down. L. said that if defendant called her at work that night they could make plans to meet the next day. Defendant offered to walk L. home.
L. decided to turn onto a dirt trail. She said that she did not want defendant to walk her all the way home because she did not want her mother to see him. They stood on the trail and made plans to get together. L. asked defendant to give her a hug. He gave her a hug and rubbed her arms. L. rubbed defendant’s penis over his pants then unzipped his pants, exposing his penis. He said that people would be able to see them, but L. said “ ‘real quick.’ ” He said no and she asked why not. She got a condom out of her fanny pack and gave it to him. He gave it back. She squatted down in front of him and put the condom on him. She motioned to the ground but he refused to lie down. She bent over and he stood behind her and inserted his penis into her vagina. He did not grab her forcibly around the neck and he did not threaten her with harm if she did not have sex with him.
Defendant was uncomfortable because of their surroundings. He removed his penis from L.’s vagina, pulled off the condom and said “later.” L. said okay. Defendant does not remember what he did with the condom. He told L. that he would call her that night, and L. asked him to promise it. He hugged her and gave her a kiss on the cheek. She kissed him on the lips and he said he would call. They parted on good terms and he did not think about the incident again until he was contacted by a detective in 2005.
Defendant denied that he was a former associate of the Rolling 40s Crips street gang or the Garden Players street gang, but testified that he has relatives who are gang members. Defendant admitted that when he was 14 he accidently shot somebody, but denied that he had attempted to murder anybody. On June 26, 2003, the police stopped defendant and the man he was with on June 23, 2003, and took DNA samples from both of them. His semen was found under the front passenger seat of his car, but the semen was from a sexual encounter he had had with his wife. He left San Diego without notifying his employer the day after the police stopped him. He and his wife visited family in Riverside and in the Bay Area. He then went to Connecticut and Chicago. While traveling he used the name Mikail Mansur. Defendant acknowledged that he was accused of forcible rape by a woman named Dorothea in San Diego in 2002, but he testified that he was never charged in that incident.
Verdict and Sentencing
On August 22, 2006, the jury found defendant guilty of forcible rape (§ 262, subd. (a)(2)). The probation officer’s report recommended that defendant be sentenced to the middle term of six years, citing three factors in aggravation and none in mitigation. On September 15, 2006, the court sentenced defendant to the aggravated term of eight years.
DISCUSSION
Impeachment Evidence
In this court, defendant contends that the trial court erred in allowing the prosecution to impeach him with evidence of his prior juvenile adjudication of attempted murder, with questions about his prior association with two criminal street gangs, and with questions about a prior unsubstantiated allegation of rape. He also contends that he was denied his Sixth Amendment right to effective assistance of counsel as trial counsel failed to object to the inadmissible impeachment evidence and failed to request a limiting instruction.
First, defendant concedes that the prior juvenile adjudication for attempted murder was admissible for impeachment because it involves moral turpitude (see People v. Wheeler (1992) 4 Cal.4th 284, 295-296 (Wheeler); People v. Hinton (2006) 37 Cal.4th 839, 888; People v. Lee (1994) 28 Cal.App.4th 1724, 1738-1740), but he argues the court ruled that the evidence was inadmissible under Evidence Code section 352 and nothing he later said on direct examination opened the door to introduction of the evidence. Therefore, the evidence remained inadmissible under Evidence Code section 352, and it was also inadmissible under People v. Steele (2002) 27 Cal.4th 1230.
Second, defendant argues that whether or not he was associated with two criminal street gangs was irrelevant to his credibility, nothing he said on direct examination opened the door to the admission of this evidence, and the evidence was inadmissible under Evidence Code section 352.
Third, defendant argues that evidence of Dorothea’s unsubstantiated allegation of rape was more prejudicial than probative and that the evidence should not have been allowed under Evidence Code section 352.
Lastly, defendant argues that his trial counsel rendered ineffective assistance by failing to object to the impeachment evidence on due process and fair trial grounds, and by failing to request that the jury be given a limiting instruction regarding the use of the evidence.
Respondent argues that the trial court properly admitted evidence for impeachment purposes of defendant’s prior juvenile adjudication and evidence of Dorothea’s uncharged rape. Respondent further argues that defense counsel did not render ineffective assistance by failing to object to impeachment evidence regarding defendant’s gang associations and by not requesting an admonition or limiting instruction on the use of the impeachment evidence.
Background
At the hearing on the motions in limine, the trial court granted the prosecutor’s Evidence Code section 1108 motion to introduce testimony by A. and Dorothea regarding their allegations that defendant raped them on separate occasions. In doing so, the court stated: “[T]he court does find that the evidence which the People seek to introduce is probative and relevant, specifically because of the similarities between all three of the incidents . . . . [¶] Further, the court finds that this evidence or the presentation of this evidence will not necessitate an undue consumption of time and will not create a substantial danger of undue prejudice, because the uncharged conduct is not remote in time. In fact, both uncharged acts occurred relatively recently . . . . [¶] And further, that although rapes are inherently brutal, the uncharged conduct which the people seek to introduce were no more brutal than the instant case, and therefore, not unduly inflammatory.” A. testified at trial. However, Dorothea did not.
Neither the prosecution nor the defense requested an in limine ruling on the admissibility for impeachment purposes of evidence of defendant’s prior association with a criminal street gang. However, both parties informed the court that the prosecution had turned over all “information which they intend to use to impeach” defendant.
Prior to defendant’s direct testimony, the court tentatively ruled that defendant’s sustained juvenile petition for attempted murder and the conduct underlying the petition could not be used to impeach defendant “because it appears to the court to be remote and unduly prejudicial.” The prosecutor stated, “Your Honor, should the defendant say something during his testimony and open the door to that where I feel it should be revisited, I will ask to approach . . . and I would ask to revisit the issue.” The court responded, “And certainly. And that’s the case of all rulings on motions in limine. They are, essentially, fluid. So, in the event that the defendant opens the door, do approach. [¶] And I have to tell you, I went back and forth on this call, but I think that in light of the fact that he was 14 years of age, I know that he was in custody for most of the interim between the time that petition was sustained and the time of this alleged incident. And I know it’s probative to the issue of credibility. However, it just is remote in time and would be unduly prejudicial, especially in light of the [Evidence Code section] 1108 evidence that was presented to the jury. I want to make sure that he’s tried on the basis of this case and this case only. [¶] But [defense counsel], you are on notice if the door is opened, [the prosecutor] will be able to drive through it.”
Following defendant’s direct testimony and before the prosecutor began his cross-examination, the court granted the prosecutor’s request to approach the bench. After a discussion off the record, the prosecutor began his cross-examination of defendant by asking defendant whether he “started off [his] direct examination” by stating that he is “a member of some peace organizations, such as Amnesty International.” When defendant answered affirmatively, the following occurred.
“[THE PROSECUTOR]: Isn’t it true that you are also a former associate of the Rolling Forties Crips criminal street gang?
“[DEFENDANT]: No.
“[THE PROSECUTOR]: That previously you were associated with the Garden Player Legitimate Street Gang in San Diego?
“[DEFENDANT]: No, that’s actually Garden. That’s East Palo Alto.
“[THE PROSECUTOR]: Ah. That’s right. [¶] Isn’t it true that in 1990, you committed a crime with attempted first degree murder involving a firearm?
“[DEFENDANT]: In 1990? I had just turned 14. I don’t know exactly what I pled to.
“[THE PROSECUTOR]: Yes or no?
“[DEFENDANT]: I didn’t attempt to murder anyone.
“[THE PROSECUTOR]: You committed the crime of – you committed the crime of attempted murder, first degree murder, involving a firearm, isn’t that true?
“[DEFENDANT]: I accidentally shot someone.
“[THE PROSECUTOR]: You shot someone.”
The prosecutor then cross-examined defendant regarding L.’s and A.’s testimony. At the end of that portion of the cross-examination, the following occurred.
“[THE PROSECUTOR]: And you heard [A.] say that you put your penis inside of her? You heard her say that in court?
“[DEFENDANT]: Yes. Yes.
“[THE PROSECUTOR]: And you are saying that she was just traumatized, didn’t realize what was happening to her?
“[DEFENDANT]: She was confused. It could have been anything.
“[THE PROSECUTOR]: Let’s talk about other people who have been confused. Besides A. Doe and L. Doe, you’ve also been accused of rape before; isn’t that true.
“[DEFENDANT]: I was accused, yes.
“[THE PROSECUTOR]: And that was in 2002
At this point, defense counsel objected and the court granted defense counsel’s request to approach the bench. After a discussion off the record, the court allowed the prosecutor to proceed, and the following occurred.
“[THE PROSECUTOR]: There was another woman named Dorothea in San Diego in 2003 who also accused you of rape, correct?
“[DEFENDANT]: Yes.
“[THE PROSECUTOR]: She also accused you of forcibly orally copulating her, correct?
“[DEFENDANT]: I don’t know the details.
“[THE PROSECUTOR]: She also said that you forcibly raped her, correct?
“[DEFENDANT]: Yes.”
On redirect examination, defendant testified that he was never charged with the offenses alleged by Dorothea and that he never was a gang member but he has relatives who are. He further testified that he was 14 when he shot somebody while he was playing with a gun in the backyard, that his public defender told him that if he pleaded guilty he would be sent to a camp and get out, and that he did not understand what he was pleading guilty to.
After the defense rested, outside the presence of the jury the court asked the parties whether they wished to memorialize the substance of the bench conferences. Defense counsel stated that he objected to the questions regarding Dorothea “because it was unsubstantiated. There was nothing to back it up. It was not a previous charge.” The prosecutor stated that “it was covered” in the in limine motions and discussions and he “thought it was fair comment, fair cross-examination topic to go into with the defendant,” and the court stated that defendant’s objection was overruled.
Defense counsel stated that he objected to discussion of defendant’s sustained juvenile petition because “the fact that he says today that he doesn’t condone [black-on-black] violence still, in my mind, does not open the door to something that happened when my client was 14 being admitted here before the jury.” The prosecutor stated: “Your Honor, evidence of the defendant’s character pursuant to Evidence Code section 1102 was offered in the nature of he belongs to peace organizations: Amnesty International. He does not condone black-on-black crime. He, I think, was giving the jury a false impression of his character . . . . [¶] I simply asked in 1990, had he committed the crime. That was limited to conduct. It was a very brief area. I felt that the jury was being misled with regards to his character. This was something that he brought up. He was warned yesterday that if he went into that area, that this could be a possibility. He was on notice. And I approached, dealt with it at side-bar. I think it was only appropriate to let them know the true nature of the man that we are dealing with.” The court responded, “And it was for those reasons that that objection was . . . overruled.”
Analysis
Ineffective Assistance of Counsel
“To establish a violation of the constitutional right to effective assistance of counsel, a defendant must not only ‘identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment,’ but he or she must also show that counsel’s deficient performance ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ (Strickland v. Washington (1984) 466 U.S. 668, 690 [(Strickland)]; see also People v. Kipp (1998) 18 Cal.4th 349, 366.)” (People v. Earp (1999) 20 Cal.4th 826, 870.) “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at p. 694.) “[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.” (Id. at p. 697.)
Impeachment Evidence
Evidence of past misconduct is admissible to impeach the credibility of a witness if the conduct reflects moral turpitude. (Wheeler, supra, 4 Cal.4th at p. 295; People v. Castro (1985) 38 Cal.3d 301, 314, 317 (Castro); see Cal. Const., art. I, § 28, subd. (d).) “Misconduct involving moral turpitude may suggest a willingness to lie [citations], and this inference is not limited to conduct which resulted in a felony conviction.” (Wheeler, supra, at pp. 295-296.)
“[T]he admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude. Beyond this, the latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad.” (Wheeler, supra, 4 Cal.4th at p. 296, fn. omitted.) “When exercising its discretion under Evidence Code section 352, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area. [Citations.] But additional considerations may apply when evidence other than felony convictions is offered for impeachment. . . . Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (Id. at pp. 296-297, fn. omitted; see also Castro, supra, 38 Cal.3d at p. 306.) “The exercise of this statutory discretion will not be disturbed on appeal ‘ “except on a showing that the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” . . .’ ” (People v. Frazier (2001) 89 Cal.App.4th 30, 42, fn. omitted, quoting People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
Prior Juvenile Adjudication
In this case, the trial court tentatively excluded defendant’s prior juvenile adjudication for attempted murder under Evidence Code section 352. However, the court informed defendant that it would revisit its ruling after defendant testified. Defendant testified on direct examination that he was a member of Amnesty International, “a peace activist organization,” in 2003, the year that the incident at issue as well as the incident involving A. and J. occurred. He also testified that he wrote the letters to A. and J. because he wanted them to know that he did not condone “black-on-black” crime. The prosecutor argued that this testimony by defendant opened the door to his impeachment with his prior juvenile adjudication for attempted murder, and the court agreed.
While evidence of defendant’s juvenile adjudication for attempted murder, a crime involving moral turpitude (People v. Hinton, supra, 37 Cal.4th at p. 888), may have been prejudicial in the broad sense of the word, it was also probative on the issue of defendant’s credibility. The jury “may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing.” (Evid. Code, § 780.) “Evidence tending to contradict any part of a witness’s testimony is relevant for purposes of impeachment. [Citations.]” (People v. Lang (1989) 49 Cal.3d 991, 1017.) As both prejudicial and probative on the issue of defendant’s credibility, the evidence was admissible in the court’s discretion. (Evid. Code, § 352; People v. Lankford (1989) 210 Cal.App.3d 227, 240-241; People v. DeSantis (1992) 2 Cal.4th 1198, 1226 (DeSantis).) Defendant was allowed to explain the facts underlying his juvenile adjudication, and no evidence was presented to contradict his testimony. Accordingly, we cannot say that the trial court abused its discretion in admitting defendant’s juvenile adjudication for impeachment purposes.
People v. Steele, supra, 27 Cal.4th 1230, cited by defendant, does not require a contrary finding. In that case, the court stated that “a party should not be allowed to take advantage of an obvious mistake [by a witness] to introduce prejudicial evidence.” (Id. at p. 1248.) However, the court also stated that a party should also not be allowed to ask relevant questions then prevent cross-examination responding to the same point by asserting that its own questions were improper. (Ibid.) “[T]he matter lies within the discretion of the trial court, which should strive to prevent unfairness to either side when one side presents evidence on a point, then tries to prevent the other side from responding.” (Ibid.) In this case, after defendant was asked questions on direct examination regarding his character for peacefulness, the trial court properly ruled that the prosecution could present evidence on the same point during cross-examination.
Gang Association
“Gang evidence should not be admitted at trial where its sole relevance is to show a defendant’s criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense. [Citations.] Such evidence is only admissible when it is logically relevant to some material issue at trial other than character trait evidence.” (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449; People v. Ruiz (1998) 62 Cal.App.4th 234, 240.) Although testimony or evidence of gang membership can be prejudicial (see e.g., People v. Maestas (1993) 20 Cal.App.4th 1482, 1497-1498), in this case we fail to find a sufficient showing of undue prejudice.
Defendant testified that at the time of the alleged offenses against A. and L. he was a member of Amnesty International, which he described as a “like a peace activist organization, humanitarian organization.” He also testified that he wrote the letters to A. and J. because he wanted the two women to know that he did not condone “black-on-black” crime. The prosecutor then attempted to impeach defendant’s credibility with questions regarding his prior association with criminal street gangs. Defendant denied that he was ever associated with a gang and was allowed to explain that, nevertheless, some of his family members were gang members. In addition, there was no mention of what crimes, if any, members of the named gangs were accused or convicted of committing. It is not reasonably probable that a result more favorable to defendant would have occurred if defense counsel had objected to the gang association evidence. (Strickland, supra, 466 U.S. at p. 694.)
Prior Uncharged Rape
Rape is a crime involving moral turpitude. (People v. Lewis (1987) 191 Cal.App.3d 1288, 1295; People v. Mazza (1985) 175 Cal.App.3d 836, 843-844.) Therefore, evidence of an uncharged rape is admissible for impeachment. (Wheeler, supra, 4 Cal.4th at p. 297.) The trial court did not abuse its discretion in allowing the prosecutor to impeach defendant with evidence of his uncharged rape unless the evidence was more prejudicial than probative. (DeSantis, supra, 2 Cal.4th at p. 1226.) The trial court engaged in the required analysis under Evidence Code section 352 during the hearing on the motions in limine and decided that the evidence was probative, particularly in light of defendant’s continuing pattern of similar conduct. It also determined that the evidence was not unduly prejudicial, given the evidence regarding the charged rape in this case. The prosecution did not present testimony by Dorothea regarding the uncharged rape, and only attempted to impeach defendant with evidence of it after defendant testified that his sexual contact with L. was consensual and that A. was “confused” about what happened during the incident involving her. Accordingly, we cannot say that the trial court abused its discretion in allowing the prosecutor to impeach defendant with evidence of Dorothea’s accusation of an uncharged rape. (Ibid.)
Ineffective Assistance of Counsel
Defendant also contends that admission of all of this evidence violated his due process right to a fair trial. Defendant has waived this argument by failing to object on federal due process grounds below. (People v. Catlin (2001) 26 Cal.4th 81, 122-123; People v. Champion (1995) 9 Cal.4th 879, 918.) In addition, he offers no persuasive authority establishing that state law permitting the admission of evidence of uncharged crimes violates a defendant’s right to a fair trial. (See People v. Catlin, supra, 26 Cal.4th at p. 123.) Accordingly, we cannot fault defense counsel for failing to object to the admission of the evidence on due process or fair trial grounds.
Defendant contends that a reasonably competent attorney would have requested that the court instruct the jury that all of this evidence was admitted for the limited purpose of impeachment. Our Supreme Court has “repeatedly stressed ‘that “[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ [Citations.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) In this case, a reasonable defense counsel may have concluded that the risks of having a limiting instruction—the risk, for example, that such an instruction may suggest to the jury that the impeachment evidence was relatively strong—was not worth the questionable benefits such an instruction would provide. (See People v. Hawkins (1995) 10 Cal.4th 920, 942; People v. Freeman (1994) 8 Cal.4th 450, 495.)
Hearsay Evidence
Background
On direct examination, the prosecutor asked Diane if her daughter J. was the victim of a robbery and if J.’s friend A. was the victim of a sexual assault in San Diego in June 2003. Diane responded that she was not sure of the date. The prosecutor asked Diane if she spoke to J. or A. shortly after the offense occurred. Diane responded that she spoke to J. that night and to A. the following morning. When the prosecutor asked Diane if A. told her that she had been raped, defense counsel objected on hearsay grounds. In response to a question by the court, the prosecutor stated that he was presenting the evidence under the “[f]resh complaint doctrine, Your Honor. And I can lay another exception as well, if you’d like.” After the court allowed the prosecutor to continue, Diane testified that when she talked to A. the next morning, A. sounded upset. Over a period of time, starting about two days later and while she still appeared upset, A. went into greater detail about what happened to her. The prosecutor then stated, “Your Honor, I believe it’s also a spontaneous statement,” and the court overruled defense counsel’s hearsay objection. Diane then testified that A. told her that she had been abducted and raped and that a gun was involved.
At this point, the court gave the jury a limiting instruction regarding use of evidence of an uncharged offense. (CALCRIM No. 1191.)
Diane also testified, without objection, that J. and A. testified in San Diego, and their “testimony and being involved in the court process” has caused them to be “more subdued, quieter, irritable, moody.” We do not view this portion of Diane’s testimony to be part of the evidence the court admitted as a fresh complaint and/or spontaneous statement.
Defendant contends that the court violated his rights to due process and a fair trial by admitting evidence under the fresh complaint doctrine of the hearsay statements A. and J. made to Diane. He argues that Diane’s testimony “went beyond the mere fact that a complaint was made. In addition, even assuming, without conceding, the testimony was properly admitted, trial counsel should have requested the jury be given a limiting instruction advising them not to consider the testimony for its truth.”
Respondent contends that the court properly admitted Diane’s testimony under the fresh complaint doctrine as well as the spontaneous statement exception to the hearsay rule. Respondent argues that Diane’s testimony “simply revealed that A. had been abducted as well as raped and a gun had been involved. No other details were revealed. Thus, A.’s statement was properly admitted under the ‘fresh complaint’ doctrine.” Respondent further argues that, because the testimony was also properly admitted as spontaneous statements, and statements admitted under such a hearsay exception may be properly considered for their truth, any request by defense counsel for a limiting instruction would have been futile.
Analysis
Fresh Complaint
In People v. Brown (1994) 8 Cal.4th 746 (Brown), our Supreme Court concluded in part: “under principles generally applicable to the determination of evidentiary relevance and admissibility, proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose—namely, to establish the fact of, and the circumstances, surrounding, the victim’s disclosure of the assault to others—whenever the fact the disclosure was made and the circumstances under which it was made are relevant to the trier of fact’s determination as to whether the offense occurred.” (Id. at pp. 749-750, italics omitted.) “[I]n light of the narrow purpose of its admission, evidence of the victim’s report or disclosure of the alleged offense should be limited to the fact of the making of the complaint and other circumstances material to this limited purpose. Caution in this regard is particularly important because, if the details of the victim’s extrajudicial complaint are admitted into evidence, even with a proper limiting instruction, a jury may well find it difficult not to view these details as tending to prove the truth of the underlying charge of sexual assault [citation], thereby converting the victim’s statement into a hearsay assertion [citation].” (Id. at p. 763.) “[T]he ‘fact of complaint’ [does] not include details of the incident, but [does] include evidence demonstrating that the complaint ‘ “related to the matter being inquired into, and [was] not a complaint wholly foreign to the subject . . . .” ’ [Citation.]” (Id. at p. 756, italics in original.)
In this case, A.’s testimony was admitted under Evidence Code section 1108, as evidence that defendant committed a prior sexual offense. A. testified that defendant’s passenger displayed a gun, that defendant and his passenger abducted her, and that defendant raped her. Accordingly, it was proper for the prosecutor to elicit from Diane that A. had told her within a few days of the incident that defendant abducted her and raped her, and that a gun was involved, without asking Diane for the details of when, where, or how the abduction and rape allegedly occurred. Diane’s testimony merely demonstrated that A.’s complaint related to the matter being inquired into, and was not a complaint wholly foreign to the subject. (Brown, supra, 8 Cal.4th at p. 756.) Diane’s testimony regarding A.’s report to her was properly admitted as a fresh complaint.
Spontaneous Statements
Defendant contends that A.’s reports to Diane about what happened to her were not properly admitted as spontaneous statements because they “were not made contemporaneous to the incident to which the statements related, nor were they made under circumstances that would support a finding that their reflective powers were still in abeyance when they made the statements.”
“Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.” (Evid. Code, § 1240.) The decision whether to admit a statement pursuant to Evidence Code section 1240 lies within the discretion of the trial court, and we review the trial court’s decision for abuse of discretion. (People v. Roybal (1998) 19 Cal.4th 481, 516 (Roybal).) The trial court’s discretion is broadest in determining whether the requirement in subdivision (b) of the section has been met. (People v. Poggi (1988) 45 Cal.3d 306, 318-319 (Poggi).)
“A spontaneous statement is one made without deliberation or reflection. [Citation.] ‘The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is . . . the mental state of the speaker. The nature of the utterance—how long it was made after the startling incident and whether the speaker blurted it out, for example—may be important, but solely as an indicator of the mental state of the declarant.’ ” (People v. Raley (1992) 2 Cal.4th 870 (Raley), 892-893; Roybal, supra, 19 Cal.4th at p. 516.) “Neither lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.” (People v. Washington (1969) 71 Cal.2d 1170, 1176; Raley, supra, 2 Cal.4th at p. 893.) “Under the same reasoning, the fact that the declarant has become calm enough to speak coherently also is not inconsistent with spontaneity.” (Poggi, supra, 45 Cal.3d at p. 319.) “ ‘[U]ltimately each fact pattern must be considered on its own merits, and the trial court is vested with reasonable discretion in the matter.’ ” (Roybal, supra, 19 Cal.4th at p. 516.)
In this case, Diane testified that when A. first spoke to her about the incident, she sounded upset. Over the next few days, A. went into greater detail about what happened to her while she still appeared upset. There was no indication that A.’s statements were elicited by Diane’s questioning. On this record, we cannot say that the court abused its discretion in admitting under Evidence Code section 1240 Diane’s limited testimony about what A. told her.
Nor can we fault counsel for not requesting an instruction telling the jury not to consider Diane’s testimony for its truth. A. testified about what happened to her during the San Diego incident and Diane testified that A. reported the incident to her while still upset about the incident. “Spontaneous declarations are admissible for their truth, not merely for the state of mind of the declarant. . . . Evidence admitted under a traditional hearsay exception does not violate the confrontation clause if there are sufficient indicia of reliability to allow the trier of fact to evaluate the truth of the out-of-court statement. [Citations.] Statements admitted under the spontaneous declaration exception to the hearsay rule are considered reliable because their spontaneity ensures that the declarant has not had time to reflect and fabricate.” (People v. Pensinger (1991) 52 Cal.3d 1210, 1266.)
Defendant’s Letters to A. and J.
Background
In the motion in limine, the prosecutor sought to admit the letters for three purposes: to show that defendant acknowledges and apologizes for participating in the San Diego rape; as Evidence Code section 1108 evidence; and, to show the implied threats to A. and J. and defendant’s request that they not testify against him. Defense counsel objected to admission of the letters, arguing that defendant only acknowledges being present during the San Diego rape and that, as evidence of implied threats, the letters should be excluded under Evidence Code section 352. The court deferred ruling on the motion until the prosecutor laid a proper foundation for admission of the letters.
Diane testified that she intercepted a letter from defendant to J. at their home and A. testified that she received a letter from defendant at her home. Both Diane and A. testified that the letter they received mention killings not far from their home, that defendant apologizes for his part in the San Diego incident, and that defendant requests that J. and A. not testify against him. A. testified that she felt threatened by her letter and Diane testified that she felt afraid. Defendant admitted that he sent the letters, but claimed that he did not mean to ask A. and J. to not testify against him and that he did not mean to frighten them: “That’s taking the letters out of context.”
When the prosecutor sought to admit the redacted letters into evidence, defense counsel objected on relevancy and Evidence Code section 352 grounds. The prosecutor argued that the letters were relevant to show consciousness of guilt in the San Diego incident, and because they were sent to A. and J. after defendant was put on notice that evidence of the San Diego incident might be admitted in this case. The court admitted the letters “over the defendant’s objection.”
The redactions were made, at least in part, to keep A.’s and J.’s identity private.
The redacted letter to A. states: “3 Tha hard way – You know I Gotta say What’s upper, to my folks getting’ Hyphy in the Bay My Fam is comin’ outta E.P.A. East Palo Alto, And the whole Citi is a Ghetto – Yeah they tryin’ to build But let’s keep it real, they (White Folks) Don’t Care about we Let’s Flashback to 1993, Murder Capital of the nation and today Look at what we’re Facing across the water in OakTown, where every other day Somebody’s getting’ Laid down – To Rest, the Situation is a mess – And the Black Genocide is Being called ‘Oakland’s Crime Crisis’ . . . [¶] Yeah all this Black on Black crime must stop! From Frisco to Rich Town, Blacks in the Bay are being programmed to self hate . . . [¶] May, 2006 [¶] Dear A[.] [¶] Peace Sista [¶] I hope this notation has found you in the best of health, mentally, spiritually and physically. [¶] A[.], I apologize for my part in what happened to you. I didn’t know ole boy was going to get out of my car trippin like that. Had I known he was robbin’ ya’ll, I would’ve drove away and left his dumb ass. I didn’t know what he was about because I didn’t hang out with him, he was my cousin’s homeboy. I am sorry you had to go thru that. [¶] The fool had a gun A[.] and was high on P.C.P. Had I tried to fight the punk, me or you could’ve ended up shot. [¶] Anyway, things are what they are. [¶] Thru all of this I’ve written a book “Hip Hop Soul: Hip Hop from Da Soul” And I have songs for many soulful artists. I’m just tryin’ to get myself established right now. Then I can help others, you feel me. [¶] Listen to me sista, when I spoke to J[.]’s mom, I didn’t threaten her – First off, I got people all over the Bay Area and someone could’ve just popped up at the door and threatened her if that’s what kind of shit I was on. She called the D.A. talkin’ that nonsense and you know that the D.A. don’t give a damn about only a conviction. That’s all these devils care about. [Redaction] Thanks to Allah. A[.] please don’t allow the D.A. to put you in a situation that you don’t wonna be in. And you don’t have to get on the stand and lie for these people. They would love to put a good brother under but truth be told, they can’t stop me. And that’s real talk! [¶] You are my sister and I got a lot of love for you So please forgive me for allowing myself to be pulled into that Bullshit . . . But some things are out of our control. But remember God is always in control. And he is the best Judge. So if you’re still angry, don’t be, let it go and wait on your blessings. God is Great and they can never turn off the Light of Islam. They say 9.11 was the worst act of terrorism in the U.S.A. – Well have they forgot about Slavery – That was worst by far, over 100 years later and Black folks are still scarred. [¶] Take care of yourself and may God Bless you. [¶] Very truly yours, Menelick Mansur [¶] Santa Clara County Jail [¶] P.S. Only the strong survive . . . so keep ya head up and strive for betterment . . . Don’t let the system have you bent or livin’ in pretense. One Love.” The letter to J. has similar language.
Defendant contends that the court violated his rights to due process and a fair trial by admitting the letters defendant wrote to A. and J. and that counsel rendered ineffective assistance by failing to seek to redact the letters once they were admitted. He argues that “[t]he fact that [he] allegedly wrote ‘threatening’ letters to A. or J[.] or that he apologized for what happened in San Diego was not relevant to any element of the charged crime”; they “simply have no bearing on the issue of whether L. was raped or whether she and [he] engaged in consensual sexual intercourse.” He further argues that the letters had no relevance to the Evidence Code section 1108 evidence because J. was not the victim of any prior sex offense, the letters did not constitute an admission that he committed any sex offense against A., and defendant’s statements in the letter did not constitute a threat. In a concomitant contention, defendant argues that, once the letters were admitted over his objection, his counsel rendered ineffective assistance by failing to request redaction of the letters “to reflect only the apology and the so-called threat.”
Respondent contends that the letters were properly admitted as they tended to corroborate A.’s testimony that defendant raped her in 2003 and they demonstrated his consciousness of guilt regarding that incident.
Analysis
Defendant did not object to admission of the letters on due process or fair trial grounds, and has therefore waived that claim. (People v. Partida (2005) 37 Cal.4th 428, 433-434.) Defendant objected to admission of the letters only on relevancy and Evidence Code section 352 grounds. Evidence Code section 352 authorizes the trial court, in its discretion, to exclude relevant evidence “if its probative value is substantially outweighed by the probability that its admission will . . . create a substantial danger of undue prejudice.” (Ibid.; see also People v. Sanders (1995) 11 Cal.4th 475, 512.) A trial court’s Evidence Code section 352 ruling is reviewed under the abuse of discretion standard. (Sanders, supra, at p. 512.)
In this case, we do not find the relevance of defendant’s letters to be substantially outweighed by their potential prejudice. Defendant’s defense in this case was that the admitted sexual encounter with L. was consensual and that he did not participate in the sexual offense that occurred in San Diego. The letters could easily be interpreted as veiled threats to keep A. and J. from testifying in this case as to the facts underlying the San Diego sex offense. The letters were sent by defendant from jail after A. and J. testified in the San Diego case and while he was in custody on the pending charge in this case. The letters let A. and J. know that defendant had their addresses as well as J.’s telephone number. Defendant apologizes for his role in the San Diego incident, asks that A. and J. not allow the D.A. to put them on the stand in this case, and states that defendant has family near them that he could have “show up” at A. and J.’s doors at any time. Consequently, we cannot find that the trial court abused its discretion by admitting these letters.
Nor can we find that defense counsel rendered ineffective assistance by failing to request redaction of the letters once they were admitted. Counsel may have had sound tactical reasons for not requesting that the letters be redacted. First, defendant admitted only being present during the alleged San Diego robberies by his passenger and apologizes for that fact. He does not admit having taken part in a sexual offense during the incident. Second, defendant states that he did not mean to threaten Diane, and that her phone call to the district attorney saying he did was nonsense. Third, the letters include encouraging and supportive words for A. and J. and what they are going through. Lastly, defendant testified that he did not mean to threaten A. and J. and that such an interpretation takes his words out of context. The jury would need to see the entire letters in order to evaluate defendant’s testimony. Consequently, we must reject defendant’s ineffective assistance claim. (Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
CALCRIM No. 362
Background
During the on-the-record discussion of proposed jury instructions, defense counsel objected to the giving of CALCRIM No. 362. He argued that there were no statements attributed to defendant that would be deemed false statements: “He’s testified here to a version of events which is contrary to the accuser. I don’t see any false statements that we can say [defendant] gave on either direct or cross such that this particular instruction should be heard by the jury.” The prosecutor responded that there were numerous misleading statements during defendant’s testimony before the jury concerning the incidents involving A. and L. “It’s left up to the jury to decide the meaning and importance.” The court ruled: “Very well. If there is nothing further on this issue, 362 is given over the objection of the defendant.”
Defendant contends on appeal that the court violated his rights to due process and a fair trial by instructing the jury with CALCRIM No. 362 over his objection. He argues that there was no foundational or evidentiary basis that he made any willfully false or misleading statements at or before trial. Respondent contends that there was sufficient evidence to support the instruction.
Analysis
As given by the court in this case, CALCRIM No. 362 provides: “If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.” (See also CALJIC No. 2.03.)
Defendant contends that the giving of CALCRIM No. 362 “is justified only if there exists evidence that defendant fabricated a story to explain his conduct. This instruction is not applicable in the situation where a defendant makes an explanation of behavior to the police which is consistent with his self-serving testimony at trial that conflicts with the prosecution’s evidence before the jury.” (People v. Rubio (1977) 71 Cal.App.3d 757, 769, disapproved on another point in People v. Freeman (1978) 22 Cal.3d 434, 439; accord, People v. Green (1980) 27 Cal.3d 1, 40-41, overruled on another point in People v. Martinez (1999) 20 Cal.4th 225, 241.) However, contrary to defendant’s claim, the giving of CALCRIM No. 362 does not depend on a variance between the defendant’s pretrial statement and his trial testimony. (People v. Edwards (1992) 8 Cal.App.4th 1092, 1102.) That is, the fact that defendant maintained his story at trial does not render CALCRIM No. 362 inapplicable. Defendant’s reliance on Rubio is misplaced as changes in the law after the Rubio decision require a different analysis. (People v. Williams (1995) 33 Cal.App.4th 467, 478 (Williams).)
In Edwards, the defendant’s pretrial statements and his trial testimony contained minor discrepancies, but were overall consistent. (Edwards, supra, 8 Cal.App.4th at p. 1103.) However, the appellate court found that “[i]f the jury believed the testimony of other witnesses, it could reasonably have found defendant’s pretrial statements were willfully false and deliberately misleading. From this, the jury could have inferred a consciousness of guilt.” (Id. at p. 1104) Therefore, the court found the evidence sufficient to justify the giving of CALJIC No. 2.03. (Ibid.; see also, Williams, supra, 33 Cal.App.4th at pp. 478-479)
Here, in defendant’s pretrial statement and at trial, he claimed that the admitted sexual encounter he had with L. was consensual. However, L.’s testimony that defendant sexually assaulted her was directly inconsistent with defendant’s testimony. If the jury believed J., it could have reasonably found defendant’s pretrial statements and trial testimony to be “willfully false and deliberately misleading [and from] this, the jury could have inferred a consciousness of guilt.” (Edwards, supra, 8 Cal.App.4th at p. 1104.). Thus, there was a foundational and evidentiary basis for the giving of CALCRIM No. 362.
Even if we were to find that there was insufficient evidence to warrant the giving of CALCRIM No. 362, we would not find that defendant was denied due process or a fair trial. CALCRIM No. 362 merely provides that jurors may draw an inference of guilt from such evidence if they find evidence to establish that defendant made a false or misleading statement. Alternatively, if the jurors did not believe L.’s testimony, they were not required to infer consciousness of guilt. (Edwards, supra, 8 Cal.App.4th at p. 1104.) Therefore, we conclude that the giving of CALCRIM No. 362 did not violate defendant’s rights to due process and a fair trial because the jurors were free to disregard an inference of guilt if they believed defendant and did not find that he made a false or misleading statement.
CALCRIM No. 1191
Defendant contends that the giving of CALCRIM No. 1191 violated his rights to due process and a fair trial because it allowed the jury to find the fact of the alleged prior offense to be true and to infer predisposition using a preponderance-of-the-evidence standard of proof, and because it allowed the jury to infer his guilt of the charged offense merely from propensity evidence. He argues that “the logical interpretation of the instruction is that the entire chain of reasoning leading to a conclusion of predisposition is governed by the preponderance-of-the-evidence standard [and such] an interpretation is contrary to the law.” He also argues that, based on the holding and reasoning of People v. James (2000) 81 Cal.App.4th 1343, the court erred by not deleting “and did commit” from the standard instruction.
Respondent contends that defendant forfeited this claim by not raising an objection below. Respondent further contends that our Supreme Court rejected a similar claim in People v. Reliford (2003) 29 Cal.4th 1007 (Reliford).
Analysis
The trial court instructed the jury with CALCRIM No. 1191 as follows. “The People presented evidence that the defendant committed the crime of Rape that was not charged in this case. This crime is defined for you in these instructions. [¶] 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 offense. 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 offense, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit Rape, as charged here. If you conclude that the defendant committed the uncharged offense, 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 rape. The People must still prove each element of the charge beyond a reasonable doubt.” (Italics added.)
In Reliford, our Supreme Court found that “the 1999 version of CALJIC No. 2.50.01 correctly states the law.” (Reliford, supra, 29 Cal.4th at p. 1009.) It also found that the 2002 revision of the instruction, which deleted one sentence and added another, was “an improvement.” (Id. at p. 1016.) “The version of CALJIC No. 2.50.01 considered in Reliford is similar in all material respects to . . . CALCRIM No. 1191 (which was given here) in its explanation of the law on permissive inferences and the burden of proof.” (People v. Schnabel (2007) 150 Cal.App.4th 83, 87, fn. omitted.) “Although the instruction considered in Reliford was the older CALJIC No. 2.50.01, there is no material difference in the manner in which each of the instructions allows the jury to conclude from the prior conduct evidence that the defendant was disposed to commit sexual offenses and, therefore, likely committed the current offenses. CALCRIM No. 1191, as given here, cautions the jury that it is not required to draw these conclusions and, in any event, such a conclusion is insufficient, alone, to support a conviction. Based on Reliford, we therefore reject defendant’s contention that the instruction violated his due process rights.” (People v. Cromp (2007) 153 Cal.App.4th 476, 480; see also, Schnabel, supra, 150 Cal.App.4th at p. 87; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Cumulative error
Defendant contends that reversal is required due to the cumulative effect of all the errors he claims “because they all unnecessarily and unfairly impugned [his] credibility, emasculating the defense. In a case such as this, where credibility was everything, the combined effect of these errors is not harmless.” Respondent argues that there was no cumulative error. We agree with respondent.
As defendant acknowledges, “[i]t is well-settled that defendants are entitled to ‘fair trials’ but not ‘perfect ones.’ (People v. Bradford (1997) 14 Cal.4th 1005, 1057; People v. Osband (1996) 13 Cal.4th 622, 702.) ‘[T]he litmus test is whether defendant received due process and a fair trial.’ (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349; People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)” In this case, we have found that no prejudicial evidentiary or instructional error occurred and that defendant did not carry his burden of demonstrating that he received ineffective assistance of counsel. Accordingly, we reject defendant’s claim of cumulative error.
Sentencing Error
The trial court sentenced defendant to state prison for eight years, stating: “The eight-year term is the aggravated term, and the Court is imposing the aggravated term in this matter for two reasons: First, because the victim was particularly vulnerable, as she was hearing and speech impaired; and second, because the defendant attempted to intimidate two of the witnesses in this case.” Defendant contends that his sentence must be reversed. He argues that the court cited two reasons for imposing an upper term sentence and neither aggravating factor comes within the exceptions set forth in Blakely v. Washington (2004) 542 U.S. 296 (Blakely), therefore imposition of the upper term violated his Sixth Amendment rights as established in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct.856] (Cunningham) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). Respondent argues that, although defendant did not admit and the jury did not find the facts that exposed him to the upper term as required by Cunningham, the error was harmless under Sandoval.
Analysis
In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) In Blakely, the court further considered the issue and determined that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant.” (Blakely, supra, 542 U.S. at p. 303.) In Cunningham, the court concluded that under California’s determinate sentencing law the middle term is the “statutory maximum” for Apprendi purposes. (Cunningham, supra, 127 S.Ct. at p. 868.) The court held that, by allowing imposition of an upper term sentence based on aggravating circumstances found solely by the judge, California’s determinate sentencing law “violates Apprendi’s bright-line rule” (ibid.), and that the upper term may be imposed only if the factors relied upon comport with the requirements of Apprendi and Blakely. (Cunningham, supra, 127 S.Ct. at p. 871.)
In Sandoval, the trial court relied upon several aggravating circumstances to support its imposition of the upper term, including the fact that the offense involved a great amount of violence and the victims were particularly vulnerable. (Sandoval, supra, 41 Cal.4th at p. 837.) Because none of the aggravating circumstances had been found true by the jury or admitted by the defendant, and none of them were based on a prior conviction, our Supreme Court concluded that the defendant’s Sixth Amendment rights had been violated by the imposition of the upper term. (Id. at pp. 837-838.) The same is true here. The reasons given by the trial court for its imposition of the upper term, like the reasons given by the trial court in Sandoval, were not admitted by defendant or found true by the jury, and were not based on a prior conviction. Although defendant had a prior criminal history, the court did not rely on that fact as an aggravating circumstance. Accordingly, defendant’s Sixth Amendment rights were violated by imposition of an upper term based on the two factors the trial court did rely on. (Ibid.) However, “if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Id. at p. 839.)
“[T]o the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.” (Sandoval, supra, 41 Cal.4th at p. 840.) “Many of the aggravating circumstances described in the [sentencing] rules require an imprecise quantitative or comparative evaluation of the facts.” (Ibid.) “In addition, the trial court may consider aggravating circumstances not set forth in rules or statutes. Such aggravating circumstances need only be ‘reasonably related to the decision being made.’ [Citation.] Aggravating circumstances considered by the trial court that are not set out in the rules are not subject to clear standards, and often entail a subjective assessment of circumstances rather than straightforward finding of facts.” (Ibid.)
Respondent contends that this court should conclude, beyond a reasonable doubt, that each of the circumstances cited by the trial court in imposing the upper term would have been found by the jury beyond a reasonable doubt because each was overwhelmingly established by the evidence at trial. As the court noted in Sandoval, “the reviewing court cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury. Although the aggravating circumstances found by the trial court were based upon the evidence presented at trial, they were not part of the charge” (Sandoval, supra,41 Cal.4th at p. 839), and did not have to be found true beyond a reasonable doubt. On the record before us, we cannot “conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.” (Id. at p. 840.) Accordingly, since we cannot conclude that the Sixth Amendment error in this case was harmless beyond a reasonable doubt, the imposition of the upper term must be reversed and the matter must be remanded for resentencing. (Id. at p. 843.)
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court for the limited purpose of resentencing in accordance with People v. Sandoval (2007) 41 Cal.4th 825.
WE CONCUR: MIHARA, J., MCADAMS, J.