Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC095528
Sepulveda, J.
Defendant was found guilty by jury trial of the following charges in connection with an assault on his accountant: felony assault with attempt to commit rape (Pen. Code, § 220—count 2), felony sexual battery by restraint (§ 243.4, subd. (a)—count 3), and misdemeanor sexual battery (former § 243.4, subd. (d), now § 243.4, subd. (e)—count 4). He claims on appeal that (1) the trial judge violated his ethical duties by failing to disclose information revealing possible bias, (2) his right to a speedy trial was violated, (3) there is insufficient evidence to support his convictions, (4) he is not guilty because of mistakes of law and fact, (5) he was denied his right to an interpreter during the investigatory phase of the case, (6) the prosecution committed prejudicial misconduct, (7) the verdict was impermissibly decided by compromise, and (8) the trial court erroneously instructed the jury. We conclude that defendant was improperly convicted of misdemeanor sexual battery, because it was a lesser included offense of felony sexual battery by restraint. We otherwise affirm the judgment.
All statutory references are to the Penal Code unless otherwise indicated.
I.
Factual and Procedural Background
A woman identified as Jane Doe, who is originally from China, started working at a San Rafael accounting firm in 1994. The firm was on the second floor above an Italian restaurant, and a restaurant owned by defendant was next door. The victim began handling defendant’s taxes in 1995.
Defendant argues that “[t]he prosecutor could have inquired why the complainant insisted on using ‘Jane Doe’ during trial, suggesting that [defendant] was a threat to her when he was not.” As the trial court instructed the jury, the complainant had the right to remain anonymous. (§ 293.5.) We refer to her in this opinion as the victim.
The victim testified that in February 1997, defendant dropped by her office with tax information. As the victim walked into an office to retrieve a business card, defendant grabbed her, put his hand under her clothes, and squeezed her breast tightly. She pushed him away. Defendant then told her (referring to his penis), “Touch it. Touch it. It’s very hard.” The victim was scared and surprised, and ran out of the office. After this incident, she was “very afraid” of being alone with defendant.
About 9 a.m. on March 3, 1997, the victim walked from her office downstairs to the Italian restaurant to get payroll information from the restaurant’s owner, who also was a client of hers. She saw defendant in the restaurant, and he followed her upstairs to her office. Although the victim was alone in the office, she lied to defendant that her boss was in the bathroom, because she was worried that defendant would behave the way he had in February, and she was afraid of being alone with him. The victim retrieved defendant’s prepared tax return for his signature. Before defendant signed the return, the victim received a telephone call asking for the victim’s boss. The victim told the caller that her boss had left for the bank and would return within half an hour.
The victim walked from behind her desk to where defendant was sitting to show him where to sign. After defendant signed his return and wrote a check, he stood up and grabbed the victim from behind, locking her arms with his hands. He then placed both his hands into the victim’s jeans. Because the victim’s jeans were tight, he started to loosen her zipper. The victim told defendant to stop and tried to push him away, but he continued. He placed his finger into the victim’s vagina. The victim squatted down in order to get defendant’s hand out of her. Defendant then “exploded” and pushed the victim onto the floor. He told the victim that his penis was hard, and yanked her hand so that the back of her right hand was touching it. He also pushed up her clothing, started kissing both her nipples, then pulled down her pants and started kissing the area near her vagina. As the victim was struggling to stop defendant, her boss walked into the office. She called out her boss’s name, and he told defendant to get off the victim, leave, and never come back.
Defendant, who was born in Korea and is a Taiwanese citizen, testified that he and the victim had a romantic relationship, and that they previously had had sexual intercourse in the victim’s office. He denied that he touched her in the office in February 1997 as the victim had testified. As for the March 3 incident, defendant claimed that the victim had invited him to her office, and that they had discussed investing in a partnership together. Defendant testified that after he finished signing his tax return and gave her a check, he and the victim started kissing across her desk; the victim then walked around and sat on his lap, where they continued kissing. He acknowledged that he put his hands in her jeans and kissed her, but claimed that she helped him open her jeans, and that she appeared to enjoy the encounter.
The victim reported the incident to police about a week later. As part of their investigation, police arranged for the victim to place a tape-recorded “pretext” telephone call to defendant on March 17, 1997. Police provided the victim with “some words to speak about, some dialogue to speak about to entice [defendant] into speaking about” the incident. The transcript of the call reveals several admissions by defendant.
For example, the victim asked defendant whether her boss saw defendant’s hand inside her pants. Defendant stated that “he [the victim’s boss] wasn’t there yet. When he came, I had my hand on your breast. . . .”
A police officer went to defendant’s house to interview him. Defendant admitted kissing the victim and touching her breasts and vagina. Defendant told the officer that the victim “ ‘was not a hundred percent against it, more like 50/50,’ ” and that she did not want to be touched at first but ended up liking it. The officer placed defendant under arrest.
The trial court took judicial notice of the fact that the victim filed a civil lawsuit against defendant in March 1998, and a default judgment was entered against defendant in 1999 when he failed to appear to defend or answer the lawsuit.
Defendant was charged with felony assault with intent to commit rape, felony sexual battery by restraint, and misdemeanor sexual battery, in connection with the
March 3 incident. He was convicted of those charges by jury trial. The trial court suspended imposition of sentence and placed defendant on probation for three years, and he was ordered to serve nine months in jail. This timely appeal followed.
As discussed more fully below, defendant failed to appear for a trial scheduled for July 1997. He was apprehended in February 2005 in Nebraska, and his trial took place in November 2005.
Defendant also was charged with felony sexual penetration by a foreign object (§ 289, subd. (a)) in connection with the March 3, 1997 incident, and with felony sexual battery by restraint (§ 243.4, subd. (a)) and misdemeanor sexual battery (former § 243.4, subd. (d), now 243.4, subd. (e)) in connection with the alleged assault that took place in February 1997. The jury was unable to reach a verdict on those three counts, and the trial court declared a mistrial as to them.
II.
Discussion
A. No Valid Claim for Violation of Judicial Ethical Duties.
1. Background.
The jury reached its verdict on November 17, 2005, and defendant was sentenced on August 14, 2006. On the same day that defendant filed his notice of appeal, he also filed a motion for release on bail pending appeal. (§ 1272.1.) In his reply brief in support of the motion, defendant argued that the denial of bail would confirm that the trial court was “partial.” Defendant’s trial counsel (who represents defendant on appeal) stated that he had recently followed up on a “passing comment” he received before trial about an attack on the judge’s wife; after “exhaustive” research he learned that the judge’s wife had in fact been the victim of a brutal sexual attack in 1985 that left her with severe and permanent injuries, as detailed in the opinion affirming a jury verdict against her attacker. (People v. Allen (Jan. 20, 1989, A035724) [nonpub. opn.].) Defendant argued, as he does on appeal, that the trial judge should have disclosed the attack pursuant to canon 3(E) of the California Code of Judicial Ethics, because he could not be expected to make impartial decisions about anyone charged with rape.
The motion was not contained in the record on appeal. On June 18, 2007, this court granted defendant’s motion to augment the record with defendant’s motion, the prosecution’s opposition, defendant’s reply, and the transcript of the hearing on the motion.
As amended effective January 1, 2008, the canon provides, “In all trial court proceedings, a judge shall disclose on the record information that is reasonably relevant to the question of disqualification under Code of Civil Procedure section 170.1, even if the judge believes there is no actual basis for disqualification.”
At the hearing on defendant’s motion to release him on bail pending appeal, the trial judge stated, “I do not believe it [the attack on his wife] was something because it was 21 years ago, over 21 years it occurred and it simply was not in my mind nor do I believe it has any effect on any rulings.” The court denied defendant’s motion. Defendant filed a petition for a writ of habeas corpus challenging the ruling; this court denied the petition on December 7, 2006. (In re Boo, A116011.)
2. Analysis.
Defendant again argues that the trial judge “violated his ethical duties” by failing to disclose the 1985 attack on his wife, which he claims “involve[ed] some of the same charges as those brought against the defendant.” He claims it is “questionable” whether the judge could ever be unbiased toward a defendant accused of rape in light of “such horrid memories.”
Defendant’s judicial bias argument amounts to an improper collateral attack on various evidentiary rulings by the trial court. The statutory provision that covers a judge’s duty to disclose is Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii), which provides that a judge shall be disqualified if “[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” Defendant’s remedy if he felt that the trial judge failed to properly disqualify himself was to file a motion pursuant to Code of Civil Procedure section 170.3, subdivision (c)(1). Defendant filed no such motion.
This statute provides, in relevant part, “If a judge who should disqualify himself or herself refuses or fails to do so, any party may file with the clerk a written verified statement objecting to the hearing or trial before the judge and setting forth the facts constituting the grounds for disqualification of the judge. The statement shall be presented at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.”
Respondent argues that defendant’s claim of potential judicial bias is untimely, because it is based on matters that occurred after judgment. Even assuming this court may consider a matter occurring after judgment—the denial of defendant’s request to be released on bail pending appeal—the fact is that defendant does not raise that issue on appeal. Although he raised the issue of failure to disclose a decades-old attack on the trial judge’s wife in connection with defendant’s bail motion, he never actually argued that the judge should disqualify himself, nor does he do so on appeal. Instead, he argued below that the denial of his release on bail pending appeal would be further evidence that the court was complying with the prosecution’s efforts to retaliate against him for fighting the case. On appeal, he now claims that the trial judge’s alleged prejudice led to a number of other purportedly incorrect rulings. Although he was free to challenge those rulings on appeal, he may not raise a claim of alleged judicial bias, where he never formally sought below to have the trial court disqualified.
The facts highlighted by defendant would not have required the judge to disqualify himself, even if any party had requested that he do so. (People v. Chatman (2006) 38 Cal.4th 344, 361, 363-364 & fn. 11 [fact that judge’s daughter was victim of knifepoint robbery 14 or 15 years previously did not disqualify him], citing Mann v. Thalacker (8th Cir. 2001) 246 F.3d 1092, 1096-1097 [trial judge’s personal history as a child sexual abuse victim did not disqualify him in a sex abuse case].)
Defendant includes a laundry list of allegedly erroneous trial court rulings without any supporting legal argument, other than his claim that the trial court was supposedly biased when it made the rulings. “He presents th[ese] claim[s] perfunctorily and without supporting argument, and we reject [them] in similar fashion.” (People v. Jones (1998) 17 Cal.4th 279, 304.)
B. No Denial of Right to Speedy Trial.
1. Background.
Defendant was charged by information on May 2, 1997, and arraigned three days later. He was present with counsel and an interpreter at the arraignment, and a jury trial was set for July 16, 1997. Defendant failed to appear on the day of trial. A bench warrant was issued for defendant’s arrest on July 17, 1997. Law enforcement officers took several steps over the years to locate defendant, including (1) interviewing defendant’s ex-wife (with whom defendant had reunited in the late 1980s) in San Jose; (2) searching the San Jose home of defendant’s son before determining that defendant was not living there as they suspected; (3) obtaining a fugitive warrant (unlawful flight to avoid prosecution warrant pursuant to 18 U.S.C. § 1073); (4) gaining approval of extradition of defendant from other states and requesting that the arrest warrant be entered into the FBI’s national crime information center; (5) seeking the FBI’s help in tracking down defendant; (6) placing taps on the victim’s work telephone after defendant called her office; and (7) taking steps to have defendant extradited after they learned that he was living in Taiwan. Defendant was arrested for domestic assault on February 24, 2005, in O’Neill, Nebraska, where he had been living since 2001 under an assumed name. Nebraska authorities learned that defendant was wanted in California, and he was placed in the custody of the Marin County Sheriff on April 25, 2005.
Defendant filed a motion to dismiss the charges against him, arguing that the more than eight-year delay between his arrest and trial violated his Sixth Amendment right to a speedy trial. (U.S. Const., 6th Amend. [“In all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial . . . .”].) The trial court denied the motion, finding that defendant waived his right to a speedy trial by fleeing.
4. Analysis.
It is well settled that “the right to a speedy trial is ‘fundamental’ and is imposed by the Due Process Clause of the Fourteenth Amendment on the States.” (Barker v. Wingo (1972) 407 U.S. 514, 515 (Barker).) To determine whether a defendant’s speedy trial right has been violated, the court uses a balancing test, taking into consideration four factors: length of delay, the reason for the delay, defendant’s assertion of the right, and prejudice to the defendant. (Id. at p. 530.) As the Supreme Court has recognized, however, “We hardly need add that if delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine . . . .” (Id. at p. 529; see also People v. Perez (1991) 229 Cal.App.3d 302, 308 [defendant who flees jurisdiction of court for the purpose of avoiding prosecution waives right to a speedy trial].) Defendant does not dispute that he fled the jurisdiction to avoid prosecution, and we agree with the trial court and respondent that defendant’s actions waived any speedy trial claim. (Id. at p. 308.)
The trial court found that even assuming that defendant did not waive his right to a speedy trial and the balancing test set forth in Barker, supra, 407 U.S. 514 applied, defendant was not entitled to relief. The trial court concluded that although the length of delay raised a presumption of prejudice, the reason for the delay was attributable almost solely to defendant. Defendant suggests that applying a balancing test is inappropriate here, because an eight-and-a-half-year delay in bringing him to trial violated his right to a speedy trial “as a matter of law.” He cites no speedy trial authority for this novel proposition, which is contrary to well-settled jurisprudence. (Doggett v. United States (1992) 505 U.S. 647, 650-651 [applying balancing test where there was eight-and-a-half-year delay in bringing defendant to trial]; Barker, supra, 407 U.S. 514.)
Defendant claims that the Supreme Court’s decision in Crawford v. Washington (2004) 541 U.S. 36 regarding the Sixth Amendment’s guarantee of the right to confrontation “suggests that fundamental rights protected by the 6th Amendment cannot be frittered away by ad hoc balancing of the circumstances.” Barker set forth at length the reasons why a balancing test is appropriate when considering the right to a speedy trial (which is “generically different from any of the other rights enshrined in the Constitution for the protection of the accused”), and defendant cites no compelling reason to depart from the high court’s approach (even assuming we were permitted to do so). (Barker, supra, 407 U.S. at pp. 519-530.)
In arguing in the alternative that Barker’s balancing test compels a conclusion that he was deprived of his right to a speedy trial, defendant focuses on law enforcement’s alleged lack of due diligence in searching for him. Defendant simply ignores most of the evidence in the record regarding efforts to locate him, as well as the trial court’s express finding that the prosecution did all it was expected to do in order to find defendant, a finding we review for substantial evidence. (Doggett v. United States, supra, 505 U.S. at p. 652 [trial court’s determination of negligence in seeking defendant entitled to “considerable deference”]; People v. Mitchell (1972) 8 Cal.3d 164, 167 [determination of whether prosecution made sufficient effort to bring defendant to trial is a factual one that is reviewed for substantial evidence].) Defendant claims, without citation to the record, that it would have been “simple” to “keep track” of defendant’s ex-wife (with whom he was eventually found), and that law enforcement “would have found” defendant had they done so. Given all the evidence in the record of law enforcement’s significant efforts to locate defendant after he fled the jurisdiction, substantial evidence supports the trial court’s finding that those efforts were sufficient.
Defendant also complains about the prejudice he suffered as a result in the delay in bringing him to trial, such as trying a case where memories had faded and without access to witnesses who were unavailable. Again, however, as the trial court found, any prejudice was due almost “exclusively” to defendant’s conduct, which weighs against finding that he was deprived of his right to a speedy trial. The trial court properly denied defendant’s motion to dismiss the charges against him.
C. Sufficient Evidence Supports Defendant’s Convictions.
Defendant argues that there was insufficient evidence to support his convictions for assault with intent to commit rape (§ 220—count 2), sexual battery by restraint (§ 243.4, subd. (a)—count 3), and sexual battery (§ 243.4, subd. (e)—count 4). “ ‘In reviewing [a claim regarding] the sufficiency of the evidence, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.] “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] We “ ‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” ’ ” (People v. Osband (1996) 13 Cal.4th 622, 690.)
As the trial court instructed the jury in the present case, assault with the intent to commit rape occurs when a person is assaulted, and the assault is made with the specific intent to commit rape. (§ 220; People v. Osband, supra, 13 Cal.4th at p. 692.) Sexual battery by restraint consists of the following elements: (1) a person touched an intimate part of the victim, (2) the touching was against the victim’s will, (3) the touching was done with specific intent to cause sexual arousal, gratification, or abuse, and (4) the touching occurred while the victim was unlawfully restrained by defendant. (§ 243.4, subd. (a); People v. Elam (2001) 91 Cal.App.4th 298, 309-310.) Sexual battery consists of touching an intimate part of another, against the victim’s will, with the specific intent of sexual arousal, gratification, or abuse. (§ 243.4, subd. (e); People v. Chavez (2000) 84 Cal.App.4th 25, 29.)
Defendant acknowledges that this court may not reweigh the evidence, reappraise the credibility of witnesses, or resolve factual issues (People v. Tripp (2007) 151 Cal.App.4th 951, 955), but then proceeds to ask us to do just that. He argues, without citation to the record or any legal authority, that “[n]o rational[] trier of fact could find beyond a reasonable doubt that [defendant] would attempt to rape [the victim] in broad daylight in an open access office with the door open to which he knew that [the victim’s boss] was due to return within minutes.” He likewise claims that “[t]he only reasonable inference possible in this case is that [the victim] had cultivated the [defendant] all along, knowing that he was a reasonably wealthy entrepreneur separated from his wife.” The jury’s verdict reflects an acceptance of the victim’s testimony and the rejection of defendant’s. Defendant essentially asks this court to disregard testimony that supports defendant’s convictions, something we may not do on appeal. (Ibid.) To the extent that defendant argues that the victim’s testimony was inherently improbable, we note that “ ‘ “[t]o warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.” ’ ” (People v. Mayberry (1975) 15 Cal.3d 143, 150.) Having reviewed the victim’s testimony, we conclude that it was by no means inherently improbable.
Defendant argues that, based on statements the victim made during defendant’s advances and during the pretext telephone call, the victim “was objecting to the time and the place” for sexual conduct, as opposed to the conduct itself. Jurors were correctly instructed that they could not find the requisite criminal intent if defendant had a reasonable and good faith belief that the victim voluntarily consented to engage in the sexual activity involved. (People v. Mayberry, supra, 15 Cal.3d at p. 155.) Whether (contrary to her testimony) the victim objected only to the “time and place” of defendant’s actions or (as overwhelming evidence in the record suggests) to sexual advances from defendant under any circumstances, the fact is that the victim’s lack of consent for whatever reason made defendant’s actions unlawful.
Where a victim’s consent is an issue, “[t]he critical inquiry is whether the resistance was sufficient to ‘reasonably manifest’ her refusal to” the defendant. (People v. Guthreau (1980) 102 Cal.App.3d 436, 441, original italics [appeal of convictions of forcible rape and oral copulation by force].) The victim testified that she did not want to have a sexual relationship with defendant and that she took several actions to communicate to this to him: she pushed his shoulder away from her, tried to prevent defendant from putting his hand in her pants, told him to take his hands away from her, squatted down after he placed his hand in her vagina so that his hand would come out, told him that someone was coming soon in order to scare defendant away, spoke “very loud” in Chinese and told defendant, “ ‘Let me get up. Hurry. Leave. Hurry. Go away. Somebody is about to come inside,’ ” and “yell[ed], ‘Leave. Leave. Get away.’ ” Her actions were sufficient to reasonably manifest her refusal to defendant, and defendant’s repeated suggestion that the victim did no more than say “no” to him (and that this case was part of “the prosecution’s political agenda . . . to advance at [defendant’s] expense the feminist slogan of ‘what part of “no” don’t you understand’ ”) is plainly contradicted by the record.
When asked on cross-examination why she did not do even more to resist defendant’s advances, the victim explained, “I didn’t even know what other types [of resistance] were out there at that moment. I did not know as to what other forms or what other types were available. I just did not know what was happening to me because I was surprised at what he was doing. I had no idea whatsoever what to do.”
Defendant argues, without citation to the record or any legal authority whatsoever, that “[a]ny woman subjected to rape, whatever her culture, would scream for help in English and fight with fury, not mildly resist with Chinese admonitions that ‘someone is coming.’ ” A similar argument was rejected more than 86 years ago in People v. Norrington (1921) 55 Cal.App. 103, 110, which concluded that “it would be a reproach to the law to make the crime [of assault with intent to commit rape] hinge on the utmost exertion by the woman.” (See also People v. Meichtry (1951) 37 Cal.2d 385, 389 [“absence of an immediate outcry” does not conclusively refute guilt]; People v. Stewart (1952) 109 Cal.App.2d 334, 343 [“A woman is not required when in the clutches of a rapist to resist with violence.”]) We likewise reject defendant’s argument that there was no proof of intent to commit rape because had he intended to rape her, the victim “would have fought like a tiger.”
Finally, we reject out of hand defendant’s brief argument that there was insufficient proof of his intent to “injure, hurt, cause pain, or cause discomfort” to sustain his sexual battery conviction, because the victim did not actually suffer “pain, injury, or even discomfort, except for her feigned embarrassment at getting caught.” Sexual battery by restraint requires proof that defendant “touche[d]” an intimate part of another “for the purpose of sexual arousal, sexual gratification, or sexual abuse,” not necessarily for the purpose of causing injury. (§ 243.4, subd. (a), italics added; see also People v. Elam, supra, 91 Cal.App.4th at pp. 309-310.) “Touches” is defined in the statute as “physical contact with the skin of another person.” (§ 243.4, subd. (f).) There is no requirement that the prosecution prove that defendant intended to cause physical pain or discomfort, let alone that the victim actually suffered such physical harm. (See also In re Shannon T. (2006) 144 Cal.App.4th 618, 622 [“sexual abuse” in § 243.4, subd. (e)(1) includes touching a woman’s breast, even if the touching does not result in actual physical injury]; People v. Dayan (1995) 34 Cal.App.4th 707, 716 [“ ‘touches’ ” does not require actual contact with skin for conviction of misdemeanor sexual battery].)
D. No Reversal Based On Mistake Of Law.
Defendant argues that his conviction should be reversed because he was operating under “mistakes of law.” He suggests that because neither he nor the victim was sufficiently familiar with “American laws or customs about sex,” they were both “ignorant” that his actions were criminal. Insofar that defendant again argues that we should reject the jury’s finding that defendant did not have the victim’s consent, we reject it for the same reasons set forth above.
We agree with respondent that defendant did not rely on a mistake of law defense at trial. He did not testify about his understanding about “American laws” or whether he had violated them. Even if he had, a defendant is of course not entitled to a mistake of law defense just because he does not know “which precise statute or code section he [is] violating.” (People v. Smith (1966) 63 Cal.2d 779, 793.) “[T]he law recognizes honest purpose, not dishonest ignorance of the law, as a defense to a charge of committing a crime requiring ‘specific intent.’ ” (Ibid.) We agree with respondent that any alleged ignorance of the law here did not negate the necessary mental state to find defendant guilty.
The victim testified that under “Chinese customs and habits,” the fact that defendant touched her breasts in February would not be considered a crime in China, and male perpetrators would not get into trouble for such actions. She later explained that as to the conduct she reported, “In mainland China such offense is considered illegal to female, but under the Communist regime such behavior in the male is not going to be punished by the government.” She also testified that rape is against the law in China. We agree with the trial court that the victim’s testimony did not establish that she did not understand that defendant’s actions were legal in China, and that her understanding of whether his conduct was considered criminal in China was irrelevant in any event.
E. No Reversal Because Of Mistake Of Fact.
Defendant also argues that he is not guilty “because of mistakes of fact.” He claims that he “reasonably believed that [the victim’s] resistance went to the time and place of the touching, not to the touching itself,” and “[b]y not getting really angry; by not swearing, kicking, screaming, biting, hitting, and gnashing at [defendant], [the victim] signaled . . . a fear of getting caught, not a fear of getting raped.” This is essentially a repackaging of defendant’s argument that the victim did not do enough to reasonably manifest her lack of consent to the victim, which we have already rejected.
We also reject defendant’s argument that the trial court had a duty to instruct the jury sua sponte that he “had a good faith belief that what he was doing was not wrong.” Defendant’s unsupported argument that the trial court had the duty to insure “that the jury understood that a good faith belief, even an unreasonable good faith belief that his conduct was not wrong, as distinct from being consented to, would negate the criminal intent element of the offenses” is wholly unsupported by case law. (People v. Mayberry, supra, 15 Cal.3d at p. 155 [no wrongful intent if defendant had “reasonable and bona fide belief” he had victim’s consent]; People v. Burnham (1986) 176 Cal.App.3d 1134, 1141 [defendant’s belief that victim consented must be “reasonable”].) Jurors were correctly instructed that they could not find the requisite criminal intent if defendant had a reasonable and good faith belief that the victim voluntarily consented to engage in the sexual activity involved. (People v. Mayberry, supra, 15 Cal.3d at pp. 156-157.)
People v. Reed (1996) 53 Cal.App.4th 389, cited by defendant, is not to the contrary. The Reed court rejected a defendant’s argument that he could not be guilty of attempted child molestation where he had corresponded with a sheriff’s detective posing as a mother offering her two girls for sexual activities, because the girls were in fact “ ‘imaginary.’ ” (Id. at pp. 394-397.) Here, as in Reed, “[d]efendant showed no honest and reasonable, or even unreasonable, belief that his actions would have a legal outcome.” (Id. at p. 397.)
F. No Denial Of Right To An Interpreter.
Defendant argues in passing that his due process rights were violated because the detective who first interviewed him ignored his request for a Chinese interpreter. The detective who first interviewed defendant testified that defendant answered her questions cooperatively, but that after she placed defendant under arrest, “he pretended he didn’t speak English anymore.” Defendant testified that he did not tell the detective that he did not understand her questions “because she [the detective] tried to explain to me her questions.”
Although it is true, as defendant argues, that article I, section 14 of the California Constitution mandates that a “person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings,” this right is limited to proceedings “held before a judicial tribunal.” (People v. Gutierrez (1986) 177 Cal.App.3d 92, 100 [probation interview is not “proceeding” where interpreter is constitutionally mandated].) Even assuming that defendant did not understand English, and that his request for an interpreter was denied, an investigatory interview is not a “proceeding” that triggers defendant’s constitutional right to an interpreter. (Ibid.) Moreover, defendant did not object when the detective who interviewed him testified at trial about his statements made to her when he supposedly did not understand her, and he has therefore waived any objection to their admission. (Id. at p. 102.)
G. No Reversal For Alleged Prosecutorial Misconduct.
Defendant argues that “[t]he verdict must be reversed due to deliberate and prejudicial prosecutorial misconduct.” Although he raises a number of supposedly prejudicial errors, he focuses primarily on the prosecution’s alleged failure to timely turn over a translation of the pretext telephone call. Because the record is somewhat unclear on the history of the transcript, and because defendant misrepresents some of that history in his appellate brief, we set forth the production of the transcript in some detail.
5. Background.
The victim and defendant spoke primarily in Mandarin during the pretext telephone call. Calvin Nee, an interpreter hired by defendant’s counsel, provided a transcribed translation of the telephone call in May 1997. The transcript of Nee’s translation states that the victim said at the beginning of the pretext call, “There’s been a lot of pressure these last couple of days.”
The prosecution in June 1997 hired a different interpreter, Mary So, to provide a transcription of the call. So completed a new transcription of the tapes, because she found “several areas that needed correction.” One difference in her translation was that she indicated that the victim started the call by stating that “the pressure has been very great these two years” (as opposed to a “couple of days”). (Italics added.) So’s transcription included an endnote that explained the change from “days” to “years.”
The endnote stated, “Translator’s note: The translator is aware of a major discrepancy with another translated version of the same tape in which the word ‘day’ is used instead of ‘year’ as stated in this translation. It should be noted that both the female and male voices on this tape speak Mandarin with a Shanghainese-like accent. The translator has listened to this portion of the tape alone in excess of fifteen times and heard the word ‘year’ being said and not ‘day.’ In order to ascertain the accuracy of translation and eliminate any doubt regarding this word, the translator also solicited help from others in listening to this portion of the tape together several times, including another Certified Court Interpreter who is Shanghainese. Without exception, all listeners heard the word ‘year’ used here.”
The victim was provided an opportunity in 1997 to review So’s translation of the pretext telephone call, and she annotated the translation with various changes. The copy of So’s translation that she annotated did not have So’s endnote explaining the change from “days” to “years”; however, one of the changes the victim made was to cross out the word “years” and write “days.”
On August 9, 2005, defendant filed a motion to set aside the information pursuant to section 995. Defendant attached interpreter Nee’s translation of the pretext telephone call and argued, among other things, that the transcript undermined her allegations. He claimed that her statements such as “Someone saw us! That’s all I think about, whenever this comes to mind,” and “Why didn’t you ask me out? Why did you do it in my office?” showed that the victim was not really concerned about defendant’s behavior, but about the fact that her employer saw her in an embarrassing situation. The trial court denied defendant’s motion.
On October 16, 2005, the prosecutor sent an e-mail to defendant’s counsel that stated, “I have just learned that one of our witnesses, the interpreter Mary So, will be out of town on vacation the date of our Jury Trial. Since she would only be testifying to authenticate the translation of the audio tapes (the two transcriptspreviously provided in discovery), I was wondering if you would be willing to stipulate that the transcripts are a valid interpretation of the audio tape into English, and allow them to be introduced at the trial for that purpose.” So did not testify at trial.
It is unclear to which “two transcripts” the prosecutor was referring. It is likewise unclear when the two versions of So’s translation (the one with the endnote and the one with the victim’s annotations) were provided to defendant, although statements by counsel during trial indicate that at least one of the versions was not given to defendant until after the first day of cross-examination of the victim.
On November 3, 2005 (a Thursday), the victim was called as the prosecution’s first witness. She was asked on direct examination about the pretext telephone call, but was not shown a transcript of the call. Defendant’s counsel apparently was provided with an annotated version of So’s translation on the first day of cross-examination (on November 3). On the second day of cross-examination (on Monday, November 7), defendant’s counsel showed the victim a clean copy of So’s translation (without the victim’s annotation). The version that defendant’s counsel showed to the victim included So’s endnote about changing the word “days” to “years.” Counsel asked the victim several questions about the transcript, but did not ask her about the endnote, or her use of the word “years.”
On redirect, the victim was shown a version of So’s transcript with her annotations (the one without the endnote about changing the word “days” to “years”). The victim testified that she listened to the tape recording after it had been transcribed, and made appropriate corrections to the translation. She also explained that she noted on the transcript certain questions that had been provided by police. The victim testified that she made all annotations in 1997, not in 2005.
Neither of So’s transcripts was included in the record on appeal but were subsequently transferred to this court for review. (Cal. Rules of Court, rule 8.224(d).)
After the victim testified, the trial court and counsel discussed outside the presence of the jury the admission of the copies of the transcripts. The trial court admitted defendant’s copy of the transcript; however, it deferred ruling on the admissibility of the prosecutor’s annotated version while the prosecutor (who had come onto the case “at the very last minute”) sought a “clean copy” of the document without her own notations on it.
The following day, the prosecutor offered into evidence the original version of the annotated transcript. Defendant’s counsel remarked that on the original version, one could tell that annotations were made in both red ink and in pencil, something he had been unable to detect on a copy of the same transcript. He shared his theory that after he filed his section 995 motion and claimed that the transcript of the pretext telephone call showed that the victim was concerned only about the location of defendant’s conduct (as opposed to the conduct itself), the prosecution had the victim add certain notations in pencil to address issues he had raised in his motion. The prosecutor denied that the victim had added any annotations after 1997, which was consistent with the victim’s testimony. The original annotated version of the transcript was admitted into evidence. Defendant then “withdrew” the unannotated version of the transcript (which included So’s endnote) in light of the fact that the annotated version was admitted.
The victim was called as a rebuttal witness to answer questions about whether she had an intimate relationship with defendant as he claimed during his testimony. She was again shown the transcript that she had annotated and was asked why some notations were in red ink, and why some were in pencil. She explained that she used red ink to make corrections as she listened to the audio tape, and she used pencil to make annotations explaining that she had asked certain questions because police had told her to do so. She also testified that she made the annotations within days of making the recording, and that she made the annotations all at the same time.
Following defendant’s conviction, defendant filed a motion for a new trial. He argued, among other things, that although the victim testified that she annotated a transcript of the pretext call in 1997, the annotation “was clearly a recent product.” He claimed that it was produced “at trial” in response to a defense that was not raised in 1997, and that he was entitled to discovery on the origin of the annotation. Defendant provided a declaration from interpreter So explaining the efforts she took to determine whether she heard the victim said “days” or “years” during the pretext telephone call. In denying defendant’s motion for a new trial, the trial court commented that it did not appear that the prosecution had breached its duty to turn over evidence to defendant.
6. Analysis.
Defendant argues that the verdict must be reversed because of “deliberate and prejudicial prosecutorial misconduct.” He cites various supposed failings by the prosecution, which we address in turn.
a. Production of annotated transcript.
Defendant reasserts his theory on appeal that “[i]t appears that Jane Doe fabricated the annotated transcript near the rebuttal stage of trial and the People vouched for her.” To the extent that defendant argues that he was not provided with a copy of the annotated transcript until the “rebuttal stage of trial,” this claim is not borne out by the record. Defendant was provided with a copy of the annotated transcript before he completed his cross-examination of the victim, apparently shortly after cross-examination began. The only thing new that was provided after he completed cross-examination was the original version of the annotation, which revealed that the annotation was completed in both red ink and pencil. Defendant was provided the opportunity during rebuttal to question the victim about why she annotated the transcript the way she did. As the trial court observed when it denied defendant’s motion for a new trial, defendant did not object that the annotation was provided late in the process, and he did not request a continuance. Moreover, defendant had at least three days after he received the transcript to prepare for continued cross-examination of the victim.
Defendant argues that the prosecution’s “suppression” of the transcript violated its obligation under Brady v. Maryland (1963) 373 U.S. 83 to disclose evidence. “Under the due process clause of the United States Constitution the prosecution must disclose to the defense any evidence that is ‘favorable to an accused’ and is ‘material’ on either guilt or punishment. (Brady v. Maryland [, supra, 373 U.S. at p. 87].) Failure to do so violates the accused’s constitutional right to due process. [Citation.] ‘Evidence is material under the Brady standard “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” [Citation.]’ [Citation.] Evidence that is material to defendant’s guilt, innocence or punishment and that impeaches a prosecution witness must be disclosed. [Citations.]” (People v. Cook (2006) 39 Cal.4th 566, 587 [belated disclosure of interviews with four witnesses until after trial began did not violate Brady where defendant was not prejudiced].)
Defendant does not sufficiently identify how the result of the trial would have been different had the prosecution produced the annotated version of the transcript sooner. (People v. Cook, supra, 39 Cal.4th at p. 587.) He highlights the fact that the victim wrote which questions were provided by police, and that she made certain changes to So’s translation. As the trial court stated in denying defendant’s motion for a new trial, “[A]ny party to a conversation is as good if not the best reliable source for what was actually said, and that’s really essentially what the victim did in the—in making the annotations as they’ve been referred to on the translated transcript of that, where she noted that she disagreed with the retained interpreter. Clearly, there was no hiding of that it appears to me.”
For example, the victim changed defendant’s statement “Think of our joint . . . partnership . . . then . . .” to “Think about that we will be cooperate.”
Defendant also makes much on appeal about the fact that in So’s translation, the victim said that she had been under pressure for two years (as opposed to two days), which fit defendant’s claim that he and the victim had been having an affair. We first note that defendant actually withdrew from evidence the version of So’s translation that included the endnote highlighting this change. Notwithstanding the withdrawal of the version with the endnote, jurors obviously noted the fact that the victim changed the words. They sent two notes to the trial court during deliberations asking whether they should give more weight to the typewritten transcript or the victim’s handwritten notes, specifically asking “should we look at 2 days or 2 years?”
Defendant’s counsel candidly admitted during the hearing on defendant’s motion for a new trial that “I confess I did not pick it up, didn’t think it was that important. I didn’t doublecheck it. Prosecution removed that [the endnote].” He claims on appeal that the victim was able “to tell the jury that what she really had said was that she was under pressure for ‘two days.’ ” In fact, she was asked no questions about the change to those particular words.
In short, defendant fails to show that there was a reasonable probability that, had the transcripts that were turned over to him before the end of his case been disclosed to him sooner, the result of the proceeding would have been different, and we reject his Brady v. Maryland claim.
b. No duty to investigate the victim’s divorce.
The victim testified during cross-examination that she was no longer married to the man to whom she was married in 1997. Defendant argues, without citation to the record, that the prosecution “successfully blocked inquiry into the identity of [the victim’s] 1997 husband or her 1998 divorce,” and that “[t]he prosecution’s duty was to investigate whether or not the divorce was caused by [defendant’s] affair with [the victim].” He also claims that “[t]he prosecutor should have informed the defense of [the victim’s] divorce, her remarriage, and her new married name.” We agree with respondent and the trial court that there was no requirement for the victim to reveal such information, and that such information would not have been relevant to any defense of the charges against defendant.
c. No improper closing argument.
Defendant argues that “the prosecutor’s closing argument was suffused with impermissible personal opinions and interpretations having no support in the evidence.” This argument lacks merit.
The prosecutor showed the jury copies of the transcript of the pretext telephone call and highlighted, without objection by defendant, inferences to be drawn from defendant’s answers to the victim’s questions. Defendant claims that the prosecutor “walked the jury through [the victim’s] mindset as to the means and manner by which she successfully entrapped [defendant] into a confession that is not there. . . . At the same time and by the same argument, she is vouching for [the victim’s] honesty and credibility, again not supported by any evidence, when that very issue is before the jury.” Having reviewed the cited pages of the transcript, we find nothing objectionable about the prosecutor’s argument. Even assuming arguendo that the prosecutor said something objectionable, defendant’s failure to object below waived the issue. (People v. Hill (1998) 17 Cal.4th 800, 820 [defendant may not complain on appeal of prosecutorial misconduct unless it was raised below]; People v. Bell (1989) 49 Cal.3d 502, 538-539 [waiver rule apples even where counsel arguably misstates law during rebuttal argument].)
The prosecutor also stated during closing argument, again without objection by defendant, “[T]o believe the defendant, we have to have [the victim] lying about everything. We have to have her boss Joe lying about the fact that he saw her struggling, trying to push the defendant off her, and not being in comfort and ecstasy.” Defendant argues on appeal that this statement misrepresented the facts of the case, because the victim’s boss “saw no such thing.” In fact, the victim’s boss testified that he “saw [the victim] and the defendant on top of her, and she was struggling, and she was trying to push the defendant away then.” Although the victim’s boss was not permitted to speculate on whether the encounter was consensual, he testified that after he ordered defendant to leave and he went to check on the victim, she looked “upset.” We disagree with defendant’s suggestion that the prosecutor mischaracterized the testimony of the victim’s boss during closing argument.
During defendant’s closing argument, counsel pointed to the victim’s statements during the pretext telephone call and argued that the victim was “upset about the prospect of getting caught. It’s not the conduct. It’s the time and the place that she’s saying here.” He closed his argument by stating, “I’m not saying that someone doesn’t have a right to say no. On the other hand, I am saying that the fact that she did no more than what she reported doing shows that her credibility is deeply impaired.” The prosecutor began her rebuttal argument by stating, without objection by defendant: “Well, I think what sums this up is the phrase what part of no don’t you understand? The claim is that the victim only said, ‘No’ because she didn’t want to be found. But if we were to buy in[to] that scenario, he is still guilty. . . . [T]he fact that he comes in and does that at a time that she says, ‘No’ because she doesn’t want to be caught is still no. It’s still lack of consent.”
Defendant argues on appeal that the prosecutor’s statement “twist[ed] the criminal case into ‘a woman has a right to say no’ case,” which was “detrimental in the extreme, since it shifted the emphasis from crime to civil rights.” Even assuming that this issue was not waived by defendant’s failure to object below (People v. Hill, supra, 17 Cal.4th at p. 820; People v. Bell, supra, 49 Cal.3d at pp. 538-539), we find no error. We disagree with defendant’s assertion that the prosecutor was “twisting” the case in any way, as the prosecutor was simply focusing on the victim’s lack of consent. Defendant’s counsel acknowledged during closing argument that consent was defendant’s “main defense.”
In short, we reject defendant’s claim that the judgment must be reversed because of prosecutorial misconduct.
H. Jury Properly Reached Verdict.
Jurors sent the trial court 10 notes during their deliberations, which took place over four days. Defendant focuses on appeal on three of the questions they asked. The first note included the following question: “Hand written notes or type written[?] [S]hould we look at 2 days or 2 years?” After the trial court requested clarification because the question was not clear, the jury wrote, “On the pretext phone call: shall we go by the original translation only or do we take into consideration [the victim’s] changes? [¶] Do both versions carry the same weight?” After conferring with counsel, the trial court sent the following response: “Re the ‘pretext phone call’ transcript, you may consider the ‘changes’ made by the [victim] as well as the printed translation. The weight to be given to the translation or to the changes and the reasons for them is for the jury’s determination.”
Jurors asked in the same note, “What happens if we can’t reach a verdict? And what does it mean for the defendant?” After conferring with counsel, the trial court sent the following response: “The jury is not to be concerned about the consequences of a verdict or a failure to reach a verdict. If at the conclusion of deliberations the jury can reach no verdict on any of the counts, you should notify the court.” Defendant claims, without citation to any legal authority, that “[t]he jury was entitled to be told that if they could not reach a verdict, there would be a mistrial and that the defendant could be retried.” In fact, “[t]he trial court ‘is not required to “educate the jury on the legal consequences of a possible deadlock.” ’ ” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1193 [no improper response to jury question sent during penalty phase].)
Defendant also argues, again without citation to any legal authority, that the “verdict was decided by compromise rather than by a fair expression of opinion on the part of all the jurors.” As respondent notes, defendant does not allege any juror misconduct, and there is no evidence of misconduct in any event. We also agree with respondent that the jury’s verdicts and its failure to reach agreement on certain counts were not, as defendant argues, indicative of “an obvious compromise verdict.” Likewise, there is no evidence that the jury was “bitterly divided.” We reject defendant’s unsupported argument.
I. No Instructional Errors.
Citing People v. Bushton (1889) 80 Cal. 160, defendant argues for the first time on appeal that “[t]he jury in this case should have been instructed that the defendant’s burden was to prove his defenses by only such evidence as will raise in the minds of the jury reasonable doubt about his guilt of the offenses charged.” In Bushton, unlike here, the jury was erroneously instructed that defendant had the burden to prove his defenses by a preponderance of the evidence. (Id. at pp. 162-164.) We agree with respondent that the jury here was correctly instructed that the prosecution had the burden to prove defendant guilty beyond a reasonable doubt, and that it must acquit defendant if it harbored a reasonable doubt about his guilt.
Finally, defendant argues that the trial court failed to give a unanimity instruction. (CALJIC No. 4.71.5.) Such an instruction is mandatory where, unlike here, a “defendant is charged in a single count with several offenses and the evidence tends to show that he committed more than one such offense.” (People v. Madden (1981) 116 Cal.ApP.3d 212, 219; see also People v. Jones (1990) 51 Cal.3d 294, 321 [“In a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, the standard unanimity instruction should be given.”].) The instruction is not necessary where, as here, “ ‘the acts are so closely connected that they form part of one and the same transaction, and thus one offense.’ ” (People v. Gunn (1987) 197 Cal.App.3d 408, 412.) We agree with respondent that the incident on March 3, 1997 (the sole incident for which defendant was convicted) comprised a continuing course of conduct, which made a unanimity instruction unnecessary. (People v. Haynes (1998) 61 Cal.App.4th 1282, 1295 [two encounters “ ‘so closely connected in time’ ” that continuous course of conduct exception applied].)
This instruction provides in relevant part that “in order to find the defendant guilty, you must unanimously agree upon the commission of [the same specific act [or acts] constituting the crime] [all of the acts described by the alleged victim] within the period alleged.”
J. Defendant Improperly Convicted of Lesser Included Offense.
We requested that counsel be prepared to address a related issue at oral argument, which was not briefed by the parties. That issue was whether defendant could be convicted both of the felony and misdemeanor charges of sexual battery relating to the March incident. At oral argument, defense counsel argued that his client could not be convicted of both charges. Respondent argued that, because there were a number of different acts committed by defendant during the March incident which might form the basis of the two counts of sexual battery, defendant could be convicted of both. Defendant has the better of the argument.
The information charges both counts (3 and 4) as occurring on March 3 and indicates that the misdemeanor count is “a different offense from but connected in its commission with” the felony count. Neither count specifies what specific act or acts it is based upon. However, during closing argument the district attorney indicated that these two counts of sexual battery were “basically the same charge, the same act, except one charges restraint and one does not.” Later she indicated there were multiple touchings where the victim was restrained on March 3, and that the difference between the felony and misdemeanor count “is that restraint is not an element.” The district attorney delineated which touchings could form the basis of the felony count and argued that the victim was restrained when they occurred. She never argued that some of those touchings, or any of them, were committed without restraint and thus could separately be the basis of the misdemeanor count. It appears to this court that the most reasonable interpretation of the method of charging these crimes, in light of the district attorney’s argument regarding them, is that the misdemeanor count was charged in the alternative to the felony count, in case the jury did not find that there was sufficient evidence that the victim was restrained at the time the various touchings occurred, and that both counts were intended to relate to the same subset of unlawful sexual touchings that occurred during the March incident.
That being the case, defendant could not be convicted of both charges, as the misdemeanor sexual battery charge was a lesser included offense of the felony count. (People v. Reed (2006) 38 Cal.4th 1224, 1227 [multiple convictions based on necessarily included offense prohibited]; People v. Kilborn (1970) 7 Cal.App.3d 998, 1003 [proper appellate procedure where defendant impermissibly convicted of crime and lesser included offense is to reverse conviction of lesser offense and permit the conviction of the greater offense to stand].) We therefore order the misdemeanor conviction of sexual battery on count 4 to be stricken.
III.
Disposition
The judgment is reversed as to count 4 (misdemeanor sexual battery). In all other respects, the judgment is affirmed.
We concur: Ruvolo, P.J., Reardon, J.