Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC775765
PREMO, J.
A jury convicted defendant Anthony Easley of assault with intent to commit rape during commission of a first degree burglary and first degree burglary. The jury and the trial court also found true various special allegations for purposes of sentence enhancements and the Three Strikes law. The trial court sentenced defendant to 36 years to life. On appeal, defendant contends that (1) the trial court erred by failing to instruct the jury sua sponte on the lesser included offense of simple assault, (2) he received ineffective assistance of counsel because counsel failed to object to (a) the admission of a prior sexual assault conviction, (b) the trial court’s sanitization of a prior lewd conduct conviction, and (c) prosecutorial misconduct during argument, and (3) the prosecutor engaged in misconduct during cross-examination and argument. We affirm the judgment.
The People point out that the abstract of judgment correctly shows that defendant received 10 years for two serious felony priors and one year for a prior prison term but incorrectly shows the total years for these enhancements as one year. We will order the abstract corrected to indicate a total of 11 years for the enhancements.
BACKGROUND
The victim arrived at Casino San Pablo near midnight on a June evening in 2007 and patronized the establishment for about four hours. She then got into her car and drove to her home in San Jose. She parked in her driveway, exited the car, and approached her front door. She used her key to open the front door. She then turned around and saw defendant, a stranger, running toward her. Defendant reached the victim and pushed her inside the home. The victim fell on the floor and her wallet spilled out of her purse. Defendant leaned over the victim with both legs to the side of her face and started choking her with one hand. The victim tried to stab defendant with her keys but was unsuccessful. She screamed, and defendant told her to “shut up” and tightened his grip. The victim’s pit bull then appeared and attacked defendant. Defendant fought the dog with his free hand. He tried to get the dog outside while maintaining his grip on the victim but could not. The victim freed herself and pushed defendant outside. Defendant then walked away. The victim followed defendant to a black car and memorized part of the license plate number. She returned home and called 911. The police took photographs of the victim that displayed a bruise on her neck in the shape of a handprint, a bruise on her leg, and a broken fingernail. The victim called the Rape Crisis Center about a week or two after the incident using a telephone number noted on a card given to her by a police officer. About two months after the incident, she met with a police artist who prepared a sketch of her attacker. Near the same time, a blood swab taken from the pit bull’s face proved to contain defendant’s DNA profile. The victim then identified defendant from a photo lineup.
Defendant was the sole witness for the defense. He related a different scenario.
Defendant lived in Vallejo with his fiancée and was a patron of Casino San Pablo. In May 2007, he met the victim in the casino. Two weeks later, they met again. At some point, they left the casino in defendant’s car, rented a motel room, and engaged in sex. Afterward, defendant drove the victim back to the casino where she picked up her car and drove home. On the evening of the incident, the two met in the casino and began gambling. At about 2:00 a.m., defendant told the victim that he was going home to check up on his fiancée and would later return. Defendant returned to the casino in his fiancée’s black car. He met the victim outside, and the two went into the victim’s car. The victim produced cocaine that the pair ingested. At some point, the victim invited defendant to her home. But she returned to the casino while defendant stayed in the car and telephoned his fiancée. When the victim had finished gambling, she met defendant and again invited him to her home. Defendant followed the victim home in his car. He pulled into her driveway behind her, but she directed him to park around the corner. After defendant parked, he walked back to the victim’s home intending to engage in consensual sex with the victim. He entered the home while talking to his fiancée on the cell phone. The victim became upset, and defendant hung up the phone. The victim then took the phone away from defendant. Defendant “just reacted, and... grabbed [the victim], not intentionally, grabbed [the victim] by the throat, and as [he] was trying to grab her, she slipped and fell to the floor.” Defendant did not realize he was choking the victim because “she could breathe.” He let go when the victim fell. As he reached down to pick up his phone, the victim’s dog bit him. He announced that he was leaving, and the victim picked up her dog and pushed him out the door. Defendant then walked to his car and drove away.
Defendant testified that he had been convicted of assault to commit rape in 1989, two counts of robbery in 1992, felony sexual assault in 1997, and felony domestic violence in 2002. According to defendant, the victim was “lying completely.”
The victim testified in rebuttal and denied a prior relationship with defendant and the attendant details of defendant’s scenario.
LESSER INCLUDED OFFENSE--SIMPLE ASSAULT
Defendant contends that the trial court erred by failing to instruct the jury sua sponte on the lesser included offense of simple assault. He urges that the defense theory was that “the whole incident was a consensual encounter gone badly.” He claims that there was substantial evidence to support a simple assault conviction because he admitted grabbing the victim’s throat and argued to the jury that he had committed a battery. “This is a case where the complaining witness and the defendant offered conflicting accounts of what actually happened. The jury had to decide the case based on... credibility. But even if the jury believed [the victim] and rejected [defendant’s] version of the event, the prosecution’s evidence for intent to commit rape was still weak. [The victim] testified that [defendant] never attempted to take off her clothes, never tried to kiss her, and never said anything of a sexual nature. There was no evidence of intent to commit rape other than [the victim’s] speculation after the fact that [defendant] intended to rape her and the [1989] prior.”
A trial court must instruct the jury on lesser included offenses for which there is substantial evidentiary support. (People v. Breverman (1998) 19 Cal.4th 142, 162.) We conclude that, even if the trial court should have instructed the jury on simple assault, any error in this regard was harmless.
In a noncapital case, the failure of a trial court to instruct sua sponte on a lesser included offense is evaluated under the prejudice standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Breverman, supra, 19 Cal.4th at pp. 176-178.) Under this standard, a conviction will be reversed only if it appears reasonably probable that the defendant would have obtained a more favorable outcome had the error had not occurred. (Id. at p. 178.)
First, the evidence of defendant’s guilt “was so relatively strong, and the evidence supporting a different outcome was so comparatively weak, that there is no reasonable probability that the claimed error affected the result.” (People v. Beames (2007) 40 Cal.4th 907, 929.) This ensues because defendant admits the conduct of the crime--following the victim home from Casino San Pablo, entering the victim’s home, and grabbing the victim’s neck. Moreover, evidence of the mental state of the crime is not as weak as defendant suggests, especially considering defendant’s 1989 conviction for a similar offense. In People v. Nye (1951) 38 Cal.2d 34 disapproved on another ground in People v. Rinco-Pineda (1975) 14 Cal.3d 864, 882 (attack in victim’s bedroom; defendant admitted intent to have sex, not to rape), the court reasoned: “When a strange man enters a woman’s bedroom, covers her mouth with his hand, grasps her wrist while she screams and kicks, releases her when she bites his hand, and makes no effort to take any property, it is reasonable to infer that he intended to commit rape, particularly when such an intent is shown by his attempt to rape another woman under similar circumstances.” (Id. at pp. 34-35.) The same reasoning applies to defendant’s scenario that supposes a perpetrator who is an acquaintance. “Admittedly, defendant did not kiss [the victim], remove her panties, touch her private parts or engage in certain other conduct commonly associated with [intent to] rape. However, his failure to do so tells us more about [the victim’s] pluck [and pit bull] than about defendant’s intentions.” (People v. Pendleton (1979) 25 Cal.3d 371, 377.)On the other hand, the evidence supporting a different outcome depends upon accepting defendant’s consensual scenario in the face of his several felony convictions and lack of corroboration. Moreover, defendant’s specific explanation that he reacted to the victim by unintentionally grabbing her throat strains credulity given that it is not apparent how one unintentionally grabs someone’s throat. And defendant’s specific explanation that he failed to realize he was choking the victim is inconsistent with the physical evidence of the victim’s neck bruise.
A motel receipt or motel manager who registered defendant and the victim would corroborate defendant’s scenario. So would a casino employee who saw defendant and the victim socializing.
And second, the verdict forms required the jury to find not only whether defendant committed an aggravated assault (intent to rape), but also whether he committed a burglary, namely, “ENTERING WITH INTENT TO COMMIT A THEFT OR FELONY, to wit: rape....” The jury found defendant guilty of burglary with intent to commit rape. This negates the possibility that the jury would have found defendant guilty of simple assault had the trial court instructed it on simple assault as a lesser included offense of aggravated assault. For this reason, any error in not instructing the jury on the lesser included offense was harmless. (E.g., People v. Beames, supra, 40 Cal.4th at p. 929.)
INEFFECTIVE ASSISTANCE OF COUNSEL
“Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) That right “entitles the defendant not to some bare assistance but rather to effective assistance.” (Ibid.) But “The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.” (Yarborough v. Gentry (2003) 540 U.S. 1, 8.)
“To establish constitutionally inadequate representation, a defendant must demonstrate that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058; see Strickland v. Washington (1984) 466 U.S. 668, 687-696.) ‘When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of representation provided by counsel. “If the record 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, ’ [citation], the contention must be rejected.” ’ ” (People v. Samayoa (1997) 15 Cal.4th 795, 845.)
Defendant bears a burden that is difficult to carry on direct appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436.) Our review is highly deferential; we must make every effort to avoid the distorting effects of hindsight and to evaluate the challenged conduct from counsel’s perspective at the time. (In re Jones (1996) 13 Cal.4th 552, 561; Strickland v. Washington, supra, 466 U.S. at p. 689.) In evaluating whether trial counsel’s representation was deficient “we accord great deference to the tactical decisions of trial counsel in order to avoid ‘second-guessing counsel’s tactics and chilling vigorous advocacy by tempting counsel “to defend himself [or herself] against a claim of ineffective assistance after trial rather than to defend his [or her] client against criminal charges at trial.” ’ ” (In re Fields (1990) 51 Cal.3d 1063, 1069.) A court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. (Strickland v. Washington, supra, at p. 689; People v. Hart (1999) 20 Cal.4th 546.) The burden is to establish the claim not as a matter of speculation but as a matter of demonstrable reality. (People v. Garrison (1966) 246 Cal.App.2d 343, 356.) As to the failure to object in particular, “[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540.) This is the case especially when trial counsel might reasonably have concluded that an objection would be futile. (People v. Price (1991) 1 Cal.4th 324, 387.)
SEXUAL ASSAULT PRIOR
For purposes of proving propensity (Evid. Code, § 1108) and intent (§ 1101), the People called B.D. as a witness. She testified as to the following facts underlying defendant’s 1989 conviction for assault with intent to commit rape.
Further unspecified statutory references are to the Evidence Code.
B.D. and defendant were high school acquaintances who met at a graduation party in Winters. They left the party with a third person, and defendant drove the three to Davis. The group returned to Winters, and defendant took the third party home. Defendant then drove to his home with B.D. They entered the home but soon left to drive around. Defendant drove to a back road and stopped the car. He started to kiss B.D. against her will. He unzipped his pants and pulled off B.D.’s pants. He then climbed over and put his legs between B.D.’s legs. B.D. tried to escape the car by rolling down the window to operate the door handle, but defendant rolled the window back up. Defendant climbed on top of B.D. and unsuccessfully tried to penetrate her. He forced her into different positions while demanding that she assist with penetration. B.D. resisted and refused, and defendant used her bra and T-shirt to choke her. Defendant put his fingers in B.D.’s vagina and forced B.D. to orally copulate him. Afterward, he began getting dressed but would not let B.D. get dressed. He rubbed B.D. and put his finger into her vagina again. He finally allowed B.D. to get dressed and threatened her against remembering the incident.
Defendant contends that his trial counsel was constitutionally ineffective because he failed to object to evidence of his 1989 conviction and B.D.’s testimony. He reasons that the trial court abused its discretion under section 352 by admitting the evidence because the evidence was inflammatory (forcible sex acts on an acquaintance) dissimilar to the charged offense (nonsexual acts--according to defendant’s theory--on a stranger according to the People’s theory), and remote (20 years). He continues that trial counsel’s failure to object was not a tactical choice and prejudicial. Defendant’s analysis is erroneous.
Defendant’s point does not concern the admissibility of evidence. The evidence in this case was admitted without objection--the trial court did not exercise discretion. We therefore decline to follow defendant’s lead and review an evidentiary ruling that the trial court did not make.
Defendant’s point instead concerns whether trial counsel had reason to refrain from objecting and, if not, whether the failure to object subjected defendant to prejudice. Thus, defendant must necessarily demonstrate at the threshold that the trial court would have sustained an objection had trial counsel made one. This follows because failure to make such a showing is a concession that (1) the trial court could have ruled either way on the objection, and (2) trial counsel could therefore have reasonably concluded that an objection would be futile. Defendant fails to make such a showing.
Section 1108, subdivision (a), provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101 [generally prohibiting character evidence such as past conduct to prove that defendant committed the offense in question], if the evidence is not inadmissible pursuant to Section 352.” In other words, section 1108 is an exception to the rule that character evidence is inadmissible to prove conduct on a specific occasion. (§ 1101, subd. (a).) It expressly provides that evidence of prior sexual offenses is admissible for the purpose of showing a propensity to commit such crimes, subject to section 352.
Under section 352, “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” “For this purpose, ‘prejudicial’ is not synonymous with ‘damaging, ’ but refers instead to evidence that ‘ “uniquely tends to evoke an emotional bias against defendant” ’ without regard to its relevance on material issues.” (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
“By reason of section 1108, trial courts may no longer deem ‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.] [¶]... [T]he probative value of ‘other crimes’ evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense. [Citation.]... [T]he prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term.” (People v. Falsetta (1999) 21 Cal.4th 903, 916-917.)
We add that prior-sex-offense evidence need not share some distinctiveness with the charged offense in order to be similar. This point was explained and rejected in People v. Nible (1988) 200 Cal.App.3d 838, 849-850, as follows: “An example best illustrates the irrelevancy of distinctiveness to the chain of inferential reasoning leading from a prior crime to the defendant’s intent during the charged crime. Had defendant used a blow torch to remove the window screens of his prior two victims, and had there been evidence of the use of a blow torch [in the instant case], then the distinctiveness of defendant’s method of entry would be highly probative on the issue of the identity of the person who entered [the victim’s] apartment. However, where the issue is intent, rather than identity, the evidence of blow[-]torch entry adds little or nothing to the determination of defendant’s intent on either occasion. [¶] In this case, distinctiveness is irrelevant to the chain of inference leading from defendant’s prior crimes to his intent at the time he committed the instant offense. In the prior crimes, defendant entered the open bedroom windows of women at night after removing their window screens. During one of the crimes, he placed his hand on the victim’s vagina. During the other, he touched the victim on the shoulder and continued to move toward her, although she screamed, until another member of the woman’s household scared him away. Neither crime is so distinctive that it gives rise to the inference defendant was the same person who entered [the victim’s] apartment [in this case]. However, both prior offenses give rise to a strong inference defendant intended to rape the victims or to commit some other felonious sexual crime. In the instant case, defendant was caught in the midst of the same preparatory acts used during the commission of the earlier offenses. Although the circumstances were not distinctive, they nevertheless shared substantially similar characteristics to warrant the inference defendant’s intent was the same on each of the three occasions. The prior offenses are therefore substantially relevant to the material fact of defendant’s intent at the time of the commission of the instant offense.”
In any event, specific similarity between a prior sex offense and the charged offense is not required. The 1995 Historical and Statutory Notes for section 1108 state: “ ‘At the hearing before the Judiciary Committee, there was discussion whether more exacting requirements of similarity between the charged offense and the defendant’s other offenses should be imposed. The decision was against making such a change, because doing so would tend to reintroduce the excessive requirements of specific similarity under prior law which AB 882 is designed to overcome, ... and could often prevent the admission and consideration of evidence of other sexual offenses in circumstances where it is rationally probative. Many sex offenders are not “specialists, ” and commit a variety of offenses which differ in specific character.’ ” (Historical and Statutory Notes, 29B Pt. 3B West’s Ann. Evid. Code (2009 ed.) foll. § 1108, p. 352.) In short, “Evidence of a prior sexual offense is indisputably relevant in a prosecution for another sexual offense.... Indeed, the rationale for excluding such evidence is not that it lacks probative value, but that it is too relevant.” (People v. Fitch (1997) 55 Cal.App.4th 172, 179.)
We also observe that, though the remoteness of a prior offense is an appropriate factor in weighing probative value against potential prejudice, there is no bright-line rule for determining when remoteness eliminates the probative value of a prior offense. (See, e.g., People v. Branch (2001) 91 Cal.App.4th 274, 285 [30 years]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [20 years]; People v. Soto (1998) 64 Cal.App.4th 966, 991-992 [more than 20 years]; but see People v. Harris (1998) 60 Cal.App.4th 727, 739 [remote--23 years--inflammatory, nearly irrelevant, likely to confuse and distract the jury].) And defendant provides no support for, and we question, his implicit view that one’s criminal conduct has no relevance in revealing one’s propensities 20 years later, especially in the area of sexual conduct. Although the court in People v. Harris, supra, 60 Cal.App.4th 727, found that the trial court had abused its discretion in admitting evidence of a 23-year-old burglary conviction that involved a sexual assault, the remoteness of the prior was not the only reason for the holding.
In short, the admissibility of prior-sex-offense evidence is a highly subjective, fact-specific question. Defendant’s points about the supposed inflammatory, dissimilar, and remote nature of the prior in this case illustrate arguments for inadmissibility as a matter of discretion rather than inadmissibility as a matter of law. Given that the trial court could have rationally ruled either way on a supposed objection to the evidence in question, trial counsel could have reasoned that an objection would have been futile. Defendant therefore fails to demonstrate ineffective assistance of counsel.
Defendant concedes as much by arguing “There is a reasonable probability that, but for counsel’s ineffectiveness, the court might not have permitted the introduction of the evidence of the 20-year-old sexual assault conviction.”
LEWD CONDUCT PRIOR
During in limine proceedings, the People proposed to introduce evidence of defendant’s 1997 conviction for lewd or lascivious acts with a child of 14 or 15, which consisted of consensual kissing and fondling. The trial court tentatively ruled that it would admit the evidence for purposes of impeachment. Defendant argued that the evidence was unduly prejudicial because the conviction involved a child and there were other priors available for impeachment. He asserted: “You know, what I would like to do is urge the Court under a [section] 352 analysis to keep it out or in the alternative to sanitize it in light of the fact of the Court’s previous rulings and for the following reasons. [¶] First of all, if we go to the probative value... and taken in the context of all the other priors that are coming in that the probative value of that particular felony conviction is marginal. [¶] If the Court was to say the defendant committed a serious felony in 1997. [¶] If the court were worried about the date, I think that would sanitize, that type of ruling would sanitize that prior and reduce its prejudicial effect in light of all the other prior convictions that the prosecution is going to be able to present against, if my client testifies, if it’s the iffue [sic] of proving up the prison priors, the two Prop 8 priors, the defense is inclined at this point in time to admit that strike prior, Your Honor.” The prosecutor countered that the instant charge was inflammatory, the admissible 1989 conviction was more inflammatory than the 1997 conviction, and the jury should hear about conduct directly relevant to defendant’s moral turpitude. The trial court ruled as follows: “I’m going to permit it, but I’m going to sanitize it, and it will be characterized as a sexual assault so that he was convicted of a felony sexual assault in 1997.” During trial, defendant answered the following question affirmatively on direct examination: “And in 1997, you were convicted of a sexual assault case; correct?” And he answered the following question affirmatively on cross-examination: “And then in 1997, you were convicted of another felony sexual assault; is that right?”
Defendant contends that his trial counsel was constitutionally ineffective because “reasonably competent counsel would have objected to the improper sanitization of the... prior as another ‘felony sexual assault.’ ” According to defendant, labeling the prior as another felony sexual assault was “worse” than the conviction because it implied that the underlying conduct was forcible as was the 1989 conviction. Defendant concludes that “Reasonably competent counsel would have asked for better sanitization or gone back to the actual crime and its elements.” Defendant’s analysis is erroneous.
Trial counsel argued the sanitization issue in the face of the People’s strong opposition. He urged the trial court against admitting the conviction. He alternatively suggested labeling the conviction as a serious felony. The trial court disagreed with defendant and made its ruling. At this point, the issue was over and the ruling was extant for appellate review. Stated another way, once a trial court has made a discretionary ruling on an evidentiary objection, reasonably competent counsel cannot be required to persist with challenges to the ruling. Arguably, one might suppose the contrary if the ruling is erroneous as a matter of law. Here, however, though defendant states that the trial court’s sanitization was “improper, ” he cites no authority for the proposition that the sanitization was improper as a matter of law. Defendant again fails to carry his burden.
PROSECUTORIAL MISCONDUCT
Misconduct involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. (People v. Haskett (1982) 30 Cal.3d 841, 866.) And, of course, it is misconduct for a prosecutor to mischaracterize the evidence (People v. Hill (1998) 17 Cal.4th 800, 823), misstate the law (People v. Bell (1989) 49 Cal.3d 502, 538), or appeal to the passion of the jurors (People v. Pensinger (1991) 52 Cal.3d 1210, 1250).
“When a defendant believes the prosecutor has made remarks constituting misconduct during argument, he or she is obliged to call them to the court’s attention by a timely objection. Otherwise no claim is preserved for appeal.” (People v. Morales (2001) 25 Cal.4th 34, 43-44.)
Here, defendant concedes that he did not object to certain arguments to the jury. He contends that trial counsel was constitutionally ineffective because he failed to object. (See People v. Pitts (1990) 223 Cal.App.3d 606, 693.)
When the claim of misconduct is based on arguments or comments the prosecutor made before a jury, “ ‘the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ ” (People v. Ochoa (1998) 19 Cal.4th 353, 427.) If the challenged statement or argument was not misconduct then, of course, it would not be outside the range of competence for counsel to fail to object. Even where the prosecutor may have engaged in objectionable conduct, mere failure to object does not establish incompetence. (People v. Wharton (1991) 53 Cal.3d 522, 567.) Defendant must show that counsel’s omission involved a critical issue, and that the failure to object could not be explained as a reasonable trial tactic. (People v. Lanphear (1980) 26 Cal.3d 814, 828-829, reiterated at People v. Lanphear (1980) 28 Cal.3d 463; People v. Jenkins (1975) 13 Cal.3d 749, 753.) A failure to object in closing argument can often be explained by an attorney’s tactical determination that: (1) the objectionable statement is not sufficiently damaging to warrant objection; or (2) an objection would highlight the objectionable statement (or inference to be drawn from that statement), causing more prejudice than the objectionable statement alone. Given these considerations, and the split-second decision required to lodge a timely objection during an opponent’s closing argument, courts routinely have recognized that “the decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one” (People v. Padilla (1995) 11 Cal.4th 891, 942, overruled on other grounds in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1), and that “a mere failure to object to... argument seldom establishes counsel’s incompetence.” (People v. Ghent (1987) 43 Cal.3d 739, 772.)
If counsel’s performance does fall outside the range of reasonable competence, defendant then bears the burden of showing that counsel’s omission resulted in prejudice. (People v. Ledesma, supra, 43 Cal.3d at p. 217.)
The first of three arguments deemed objectionable by defendant is as follows.
“She was thrown so hard into her house that one of her shoes flew off onto the porch, the rug got rolled up in her struggle, the defendant had a dog bite on his arm from [the pit bull]. [¶] There is blood on [the pit bull]. [¶] There are photos where he grabbed her around the neck and if you don’t think the marks showed up very well in the photo, you heard Officer Fry testify, the one who had taken the photos, he said he tried to catch the redness that looked like a hand that grabbed her around the throat, grabbed her hard enough to leave marks. [¶] He’s trying to capture for you the scraping on her leg, the broken fingernail, all consistent with what she told you happened. [¶] She fought; she fought hard. [¶] Did she fight to save her money? [¶] The man was there to rape her; she saw rape in his eyes.”
Defendant argues that the prosecutor referred to facts not in evidence because the victim “never testified that she saw rape in the man’s eyes.” But he concedes that the victim “testified at trial that she thought [defendant] wanted to hurt her and rape her.” The concession belies defendant’s claim.
Here, the victim testified that she thought defendant wanted to rape her. Since it is literally impossible to see rape in someone’s eyes, trial counsel could have reasonably construed the prosecutor’s reference as being a metaphor or hyperbole rather than a misstatement of the evidence. (People v. Herring (1993) 20 Cal.App.4th 1066, 1074 [prosecutor can “argue vigorously and include opprobrious epithets and forceful language when warranted by the evidence”].) He therefore could have concluded that an objection was unnecessary because there was no reasonable likelihood that the jury construed or applied the remark in an objectionable fashion.
The second argument deemed objectionable by defendant is as follows.
“So I know the defense counsel already asked questions about, well, you just started believing this was rape after you found out that he had a sexual assault prior, no, she sought out the assistance of the rape crisis center long before [defendant] was the perpetrator, and then the police told you that it is not common that someone randomly selects a woman just to assault her, there’s a purpose behind that assault, and the police know the purpose is rape.”
Defendant argues that the prosecutor referred to facts not in evidence by stating that the police know that the purpose of a random assault is rape. He agrees that a police officer “testified that the case was assigned to the sexual assault unit because he believed that it was sexually motivated.” But he urges that “The police did not ‘know’ that the purpose behind the assault was rape.” According to defendant, “This improper statement by the prosecution during closing argument was basically an expert opinion by the prosecutor, and as such, was improper and inadmissible.” For reasons similar to those applicable to defendant’s previous point, the claim must fail.
The prosecutor is given wide latitude to argue broadly the law and facts of a case. (People v. Lucas, supra, 12 Cal.4th at p. 473.) The prosecutor may comment on the actual state of the evidence (People v. Medina (1995) 11 Cal.4th 694, 755) and may “urge whatever conclusions he deems proper.” (People v. Lewis (1990) 50 Cal.3d 262, 283.) The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. (People v. Ward (2005) 36 Cal.4th 186, 215.) “Their reasoning may be faulty, their deductions from the premises illogical, but this is a matter for the jury ultimately to determine, and not a subject for exception on the part of opposing counsel.” (People v. Willard (1907) 150 Cal. 543, 552.)
Here, the police officer opined that the purpose of the assault was sexual. Since it is impossible for someone other than defendant to know the purpose of the assault, trial counsel could have reasonably construed the prosecutor’s reference as being a conclusion from the police officer’s opinion rather than a misstatement of the police officer’s opinion. He therefore could have refrained from objecting because there was no reasonable likelihood that the jury construed or applied the remark in an objectionable fashion.
The third argument deemed objectionable by defendant is as follows.
“To let you guys understand that sexual offenders or sexual predators reoffend and you get to know who he is before you ever hear from the victim who is going to tell you that he is a sexual predator. [¶] So you got to hear from [B.D.]... [¶]... [¶]... and he also humiliated her, and after all this time you don’t get over that, whatever pleasure and sickness this defendant gets out of that, he doesn’t get over that either. [¶] That’s something he’ll always enjoy, and all that he is seeking out.”
Defendant argues that the prosecutor appealed to the passion and prejudice of the jurors by repeatedly suggesting that defendant “was an unreformed, dangerous sexual predator who would ‘always enjoy’ assaulting women.” Again, defendant’s argument fails.
The prosecutor doubtless founded his belief that defendant was a sexual predator based on the victim’s testimony. Moreover, defendant’s sexual behavior towards other young women was amply reflected in the evidence presented at trial. “It is not... misconduct to ask the jury to believe the prosecution’s version of events as drawn from the evidence.” (People v. Huggins (2006) 38 Cal.4th 175, 207; see, e.g., People v. Edelbacher (1989) 47 Cal.3d 983, 1030 [references to defendant as a “contract killer, ” a “snake in the jungle” and a “pathological liar” were not misconduct]; People v. Friend (2009) 47 Cal.4th 1, 84 [nothing improper in referring to the defendant as a “ ‘sociopath, ’ ” “ ‘without feeling’ ”]; People v. Ward, supra, 36 Cal.4th at p. 215 [a prosecutor may vigorously argue his case and is not limited to “ ‘Chesterfieldian politeness’ ”].)
Again, trial counsel could have reasonably construed the prosecutor’s remarks as being a conclusion from the evidence rather than a misstatement of the evidence and refrained from objecting therefore.
PROSECUTORIAL MISCONDUCT
I. Defendant first contends that, during cross-examination of him, “the prosecutor repeatedly commented on [his] post-arrest silence” in violation of his federal constitutional rights and the Doyle rule. (Doyle v. Ohio (1976) 426 U.S. 610.) The source of his contention arises from the following three exchanges within which we italicize the objectionable comments.
One
“Q. And then what did you tell your girlfriend when you got home?
“A. I told her I went to the gas station and I got attacked by a dog.
“Q. So, you lied?
“A. That is correct.
“Q. And so, you lied so that you wouldn’t get in trouble; right?
“A. That is correct.
“Q. Wouldn’t you agree, Mr. Easley, that today you are the one who has the most reason to lie here so that you won’t get in trouble?
“A. I have no reason to lie.
“[Defense counsel]: Objection, argumentative.
“THE COURT: The objection is sustained.
“[Defense counsel]: Move to strike.
“THE COURT: The answer will be stricken. [¶] That means that you are to disregard the question and answer, that last one.”
Two
“Q. And as your attorney indicated, you [sic] been sitting in Elmwood now for a year; correct?
“A. That’s correct.
“Q. So you have had a year to think of a story that would explain all of this evidence that I have presented; is that correct?
“[Defense counsel]: Objection, argumentative.
“THE COURT: Sustained.”
Three
“Q. Now, Mr. Easley, this is the first time I have heard this story; correct?
“[Defense counsel]: Objection. [¶] May I have a sidebar?
“THE COURT: The objection is sustained. [¶] Counsel, that’s an improper question. [¶] Don’t go there. [¶] Ladies and gentlemen, you’re to ignore that, and you’re not to draw any inference from that [sic] particular questions. [¶] It is not evidence.”
In Doyle, the defense theory at trial was that the two defendants had been framed by a government informant. On cross-examination, the prosecutor asked the defendants why they had not protested their innocence at the time of their arrest. The trial court overruled defense counsel’s timely objection. The Supreme Court reversed the convictions and held that it was a violation of due process to have given Miranda warnings, as had been done in the case of both defendants, and then to use the defendants’ subsequent silence to impeach an explanation offered at trial. “The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony.” (Wainwright v. Greenfield (1986) 474 U.S. 284.)
Miranda v. Arizona (1966) 384 U.S. 436.
“Silence” within the meaning of Doyle refers to the defendant’s personal refusal to speak, or his affirmative invocation of the right not to speak. In Gravley v. Mills (6th Cir. 1996) 87 F.3d 779, 787-788, the prosecutor breached the rule by repeated references to defendant’s invocation of his right to remain silent during police interrogation, his failure to testify at a preliminary hearing, and his failure to testify at a probation revocation hearing. In Wainwright v. Greenfield, supra, 474 U.S. at page 287, the error was the prosecutor’s suggestion that defendant’s postarrest refusal to answer questions without consulting an attorney was inconsistent with an insanity defense. And in Fields v. Leapley (8th Cir. 1994) 30 F.3d 986, 990, the prosecutor impermissibly referred to defendant’s statements, “ ‘I ain’t saying nothing, ’ ” and “ ‘I won’t talk to you about that without an attorney, ’ ” during postarrest interviews.
We question whether all cited comments involve the kind of reference that is prohibited by Doyle. For example, the reason-to-lie question related to defendant’s credibility in general rather than his refusal to speak.
In any event, where the prosecutor’s questions could be construed to implicate defendant’s right to remain silent, we must consider the impropriety in light of Greer v. Miller (1987) 483 U.S. 756, 763 (Greer). In Greer, the Supreme Court explained that a Doyle violation has two components. The first component is that the prosecution makes use of a defendant’s postarrest silence for impeachment purposes. The second component is that the trial court permits that use, such as when it overrules a defense objection, thereby giving the jury the unmistakable impression that what the prosecution is doing is legitimate. Both elements are essential. (Id. at pp. 761-764.)
Here, the trial court sustained defendant’s objections to each of the assailed references. It admonished the jury to disregard two of the questions and answers. And it later instructed the jury in the language of CALJIC No. 1.02 as follows: “Statements made by the attorneys during the trial are not evidence. [¶] However, if attorneys have stipulated or agreed to a fact, you must regard that fact as proven. [¶] If an objection was sustained to a question, do not guess what the answer might have been. [¶] Do not speculate as to the reason for the objection. [¶] Do not assume to be true any insinuation suggested by a question asked a witness. [¶] A question is not evidence and may be considered only as it helps you to understand the answer. [¶] Do not consider for any purpose any offer of evidence that was rejected or any evidence that was stricken by the court; treat it as though you had never heard of it.”
Therefore, just as in Greer, “the trial court... did not permit the inquiry that Doyle forbids.” (Greer, supra, 483 U.S. at p. 764.) Thus, defendant’s postarrest silence was never submitted to the jury as evidence from which it could draw an impermissible inference. No Doyle violation occurred.
II. Defendant second contends that, during argument to the jury, the prosecutor shifted the burden of proof by suggesting that “the defense had the burden to prove [his] innocence.” The source of his contention arises from the following three themes within which we italicize the objectionable statements.
One
“[Defense counsel] was incorrect, we do have forensic evidence. [¶] DNA is forensic evidence. [¶] It was on the dog, and thank goodness somebody discovered that there was a drop of blood on the dog, otherwise justice may have never been served in this case. [¶] We do have photos. [¶] We have photos of the scene that corroborate exactly what [the victim] told you happened. [¶] We have photos of the injuries that corroborate her fight to protect her person. [¶] So, we do have evidence. [¶] The defense has none to corroborate their client’s testimony. [¶] They have the same powers that I do, to subpoena--” At this point, defendant objected by assailing the argument as a “mischaracter of the defense, ” but the trial court overruled the objection opining that the argument was “fair comment.”
Two
“Reasonable doubt. [¶] This isn’t a weighing of two reasonable interpretations of the evidence. [¶] Someone is lying; someone is lying. [¶] If you don’t believe the defendant, which you should not, he is guilty as charged, guilty as charged. [¶] If you believe him, then he should be acquitted. [¶] He is not believable. [¶] For the defendant to be found [not] guilty, this is what you have to believe. [¶] You have to believe [the victim’s]--[¶] [trial court overrules defense objection asserting ‘improper argument’] [¶] You have to believe that [the victim] carries on a complete alternate life style, a different life style than her family and her friends would know her to have, that she uses drugs, that she goes to hotel rooms and has sex with strangers, that she has weed in her car, and that she drinks, a complete alternate life style than what anybody here who knows her testified.”
Three
“[The victim] told you that she doesn’t drink at the casino, she does not do drugs. [¶] Her boyfriend said that he’s dated her for seven years, certainly he knows if she was using drugs, that she does not drink. [¶] When we go to the casino, she plays the slots. [¶] You would have to believe that [the victim] invited the defendant into her home, it’s getting light out when her boyfriend gets off of work at--I can’t remember if he said 6:00 or 6:30, and invite this home [sic] down into her home, it is not believable. [¶] Instead, the alternative, and they got a hotel room like the defendant said they had done in the past, and [t]hat she contacted the rape crisis center to somehow bolster her story and then that he came to trial. [¶] I don’t know what other purposes she would have to seek out the rape crisis center unless that actually happened to her. [¶] You’d have to believe that she made that whole thing up, that she called that number, and abused the services that our county provides for victims, and why would she do that. [¶] You would have to believe she staged the scene, that these photos with the rug before she called 911, that she rolled up the rug, and that she placed some cash here perhaps to corroborate that she had been to the casino the night before, and that she made this whole scene up, that she threw her purse on the floor, the items starting to come out before the police came, because she thought that it would sound better to stage all these things, the broken nail, the scrape on her leg, the choke mark on her neck, and she would know that [the pit bull] got a chunk out of the defendant, you would have to believe that she staged all of this and that she mustered her best academy award winning performance to dial 911 and act with the hysteria of someone that had just been assaulted in her home.”
Defendant has forfeited his claim.
We reiterate that to preserve a misconduct claim a defendant must make a timely objection and request an admonition; only if an objection would have been futile and admonition would not have cured the harm is the misconduct claim preserved for review. (People v. Cook (2006) 39 Cal.4th 566, 598.) In the absence of a timely objection, the claim is forfeited. (Ibid.)
Here, defendant (1) did not object to the corroboration argument on the ground he raises here (misstating-the-evidence below; shifting the burden of proof here), (2) made no cognizable objection to the alternate-lifestyle argument (improper argument), and (3) did not object to the staged-scene argument. Nor did he request admonitions. He claims that admonitions would not have cured the harm, but we disagree. It is conceivable that, if asked, the trial court could have admonished the jury to disregard the prosecutor’s supposed burden shifting and instead follow the instructions on the applicable law. Had defendant so requested, we would be in a position to review the effect of a grant or denial of the request.
Defendant’s claim fails on the merits in any event.
In examining whether there is a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner, “we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Frye (1998) 18 Cal.4th 894, 970 disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421.) “Juries are warned in advance that counsel’s remarks are mere argument, missteps can be challenged when they occur, and juries generally understand that counsel’s assertions are the ‘statements of advocates.’ Thus, argument should ‘not be judged as having the same force as an instruction from the court.’ ” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21; Boyde v. California (1990) 494 U.S. 370, 384-385.) “This is not to say that prosecutorial misrepresentations may never have a decisive effect on the jury, but only that they are not to be judged as having the same force as an instruction from the court. And the arguments of counsel, like the instructions of the court, must be judged in the context in which they are made.” (Boyde v. California, supra, at pp. 384-385.) “[W]e cannot focus exclusively on a few erroneous words... and then reverse the conviction unless it is ‘reasonably likely’ that the jury applied the erroneous standard described or implied by those few words. We must examine the overall charge that the jury heard for a better view of the standard the jury took into its deliberations and applied.” (Chalmers v. Mitchell (2nd Cir. 1996) 73 F.3d 1262, 1267; United States v. Park (1975) 421 U.S. 658, 674-675.) The instructions are particularly significant because “ ‘[t]he crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions.’ ” (People v. Delgado (1993) 5 Cal.4th 312, 331.) Thus, “[w]e presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.” (People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8; see also People v. Smith (2005) 35 Cal.4th 334, 372.)
Here, in the corroboration argument, the prosecutor urged that defendant had no evidence to corroborate his testimony. But such a remark can be construed as “ ‘comments on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses’ ” (People v. Turner (2004) 34 Cal.4th 406, 419) rather than comments suggesting that defendant must prove something. Similarly, the alternate-lifestyle and staged-scene arguments can be construed as pointing out the obvious from the evidence--either the victim or defendant was lying--and urging why was the victim worthy and defendant unworthy of belief rather than comments suggesting that defendant was required to prove that he was worthy of belief.
Moreover, the trial court properly instructed the jury on the prosecution’s burden of proving defendant’s guilt beyond a reasonable doubt in the language of CALJIC No. 2.90 and the prosecutor herself argued that (1) “The elements that I have to prove and I have proven beyond a reasonable doubt through [the victim’s] testimony and all the corroborating [evidence]... that [the victim] was assaulted, ” and (2) “Now, the defendant never has to present any evidence at a trial.” The trial court also advised the jurors in the language of CALJIC No. 1.00 that they must accept and follow the law as stated by the court and “If anything concerning the law said by the attorneys is [sic] their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions.” Defendant also emphatically informed the jury in his argument that the People had the burden of proof. Defendant argued (1) “I don’t have to prove anything here, ” (2) “the conduct that has been proved beyond a reasonable doubt is, the moderate harm, which is a battery, ” (3) “you’re going to have to make a determination as to the facts... and whether or not the district attorney has proved her case beyond a reasonable doubt, sufficiency of the evidence, not me, ” and (4) “[t]he presumption [of innocence] places upon the People the burden of proving him guilty beyond a reasonable doubt.”
In light of the instructions given by the trial court and the argument of the prosecutor and defense counsel, which accurately placed the burden of proving defendant’s guilt on the People, there is no reasonable likelihood that the jury construed or applied the assailed remarks in an objectionable fashion. Indeed, the circumstances convince us that defense counsel’s failure to object on the ground raised here was because the supposed misconduct and any potential prejudice are more apparent than real, more arguable on appeal than actual at trial.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment to indicate a total of 11 years for the sentence enhancements.
WE CONCUR: RUSHING, P.J., ELIA, J.