Opinion
H031682
9-29-2008
THE PEOPLE, Plaintiff and Respondent, v. DARRICK WYLIEMOORE LEE, Defendant and Appellant.
Not to be Published
Defendant Darrick Wyliemoore Lee was convicted after jury trial of forcible rape (Pen. Code, § 261, subd. (a)(2)). The jury further found true the allegation that the rape was committed during the commission of a burglary and the special allegation that the victim was particularly vulnerable. After denying defendants motion for new trial, the trial court sentenced defendant to 25 years to life. (§ 667.61, subds. (a) & (c).)
Further unspecified statutory references are to the Penal Code.
On appeal, defendant contends that: (1) he was denied due process and a fair trial when the court gave an additional instruction to the jury sua sponte that favored the prosecution immediately following the prosecutors closing argument; (2) he was denied due process and a fair trial due to the delay between the offense and the time the prosecutor first charged him with the offense (hereafter referred to as precharging delay); (3) he was denied due process and a fair trial when the court admitted evidence of the conduct underlying his prior convictions; (4) he was denied his right to effective assistance of counsel when counsel failed to adequately raise objections to evidence and instructions during trial; and (5) the cumulative effect of the above errors denied him due process. As we disagree with defendants contentions, we will affirm the judgment.
BACKGROUND
Defendant was charged by information with forcible rape (§ 261, subd. (a)(2)). The information further alleged that he committed the rape during the commission of a burglary. (§ 667.61, subds. (a) & (c).) He filed a motion to dismiss the information due to precharging delay, and the prosecutor filed opposition to the motion. At the hearing on in limine motions, the trial court denied defendants motion to dismiss due to precharging delay, but agreed to reconsider the motion during trial. Defendants counsel informed the court that defendant would not be testifying at trial. The court stated that all of defendants prior convictions, four felonies and two misdemeanors, were admissible for impeachment, but that the court would revisit the issue should defendant later decide to testify. The court ruled that an incident in December 1995 involving victim Melissa "is of a sexual nature," and that evidence regarding the incident was admissible under Evidence Code section 1108 and on the issues of intent, motive, and lack of mistake under Evidence Code section 1101. The court further ruled that evidence of a prowling offense in January 1993 was admissible under Evidence Code section 1101 but not section 1108, but that evidence of a prowling offense in June 1989 was admissible under both sections.
The Prosecutions Case
The Current Offense
In August and September 1995, then 63-year-old Susan lived with four cats in a first floor condominium in Mountain View. She worked as a psychic medium and had an office in her home. On September 1, 1995, she was weak due to the loss of blood two days before when a vein in her ankle broke open. Around 9:00 p.m. that night, she walked to the corner market and bought a half-bottle of wine. After she drank all the wine, it was late and she became drowsy. She left her back patio sliding door open about four or five inches so that a cat she could not find outside would be able to get back inside, and then she lay down on the daybed in her office and dozed off.
Susan awoke to find defendant standing inside the doorway of her office and waiving his arms from side to side. He said his full name and that he had followed her from the bar. His speech was slurred. She responded that she had not been to a bar. She stood up and tried to scream and leave the room, but he grabbed her by the throat and pressed on it. He shook her and said that if she kept it up he would kill her. He threw her down on the daybed on her back, which caused her head to hit the bars at the end of the bed.
Susan identified defendant at trial.
Defendant put a pillow over Susans face and got on top of her. He held her legs between his legs. She turned her head to the side so that she could breathe, and started talking to defendant in an attempt to calm him down. She asked him his age, whether he had a girlfriend, and whether he had HIV. Defendant said that he was 36, that his girlfriend was in Texas, and that he did not have HIV. He said "you are going to enjoy this," and then put his penis in her vagina. He also said, "I want you to suck me off," but she did not respond. He said, "Im going to come now, is it alright?" He then ejaculated inside her.
Defendant fell asleep with part of his body on top of Susan and his legs clamped around her legs. She could not move and she feared that trying to do so would make defendant angry. She fell asleep. When she awoke, defendant was still asleep on top of her and light was coming in the window. Because she needed to give one of her cats some medication, she got up, went into the kitchen, and did so. She did not telephone anybody because she did not want to wake defendant and make him angry. When she returned to her office, defendant was still asleep. She poked him with a bottle and woke him. He said "oh, youre a psychic," "Im a psychic too." She asked him how he found her, and he responded in the yellow pages, but she does not list her address in the yellow pages. He appeared dazed as he put on his clothes, and he ran out of the house when she told him that if he did not leave something bad would happen to him.
Susan watched from her window as defendant ran away. She felt dizzy and was having trouble getting from room to room. She finally telephoned her daughter to come get her and take her to the hospital. She did not tell her daughter that she was sexually assaulted. Her daughter took her to Stanford Hospital, where during the course of her examination she told a nurse that she had been sexually assaulted.
Mountain View Police Officer Ted Rodgers met with Susan at the Stanford Hospital emergency room. Susan described to him in detail her sexual assault. She said that she was on her back on the bed and that her assailant was on top of her with his arms and elbows on her torso and upper arms, and his knees on her legs. The officer could see small bruising on one of Susans upper arms and large bruising on a thigh. He drove her to Valley Medical Center.
Linda Alexander, a Sexual Assault Response Team (SART) nurse, examined Susan on September 2, 1995, at Valley Medical Center beginning at 8:00 a.m. Alexander noted that Susan was disheveled, shaking, disoriented, complaining of a very dry mouth, and had alcohol on her breath. However, Susan did not appear intoxicated. She stated that she was assaulted between midnight and 7:00 a.m. that morning. Her assailant grabbed her and held her down by her arms, penetrated her vagina with his penis, and put his tongue in her mouth. She would not "suck him off" when he asked her to, and he said that he would choke her if she did not comply, so she became very passive. Alexander noted bruising on Susans right outer arm and left inner thigh consistent with the forced vaginal penetration Susan described, and a scratch on Susans back. Alexander also noted redness, a tear, an abrasion, and bleeding in Susans vaginal opening, and a clear discharge. Alexander collected three swabs from Susans vaginal area, one swab of saliva from her mouth, and some pubic hair.
After Susans examination, Alexander gave Officer Rodgers the SART kit with everything Alexander had collected. The officer then took Susan to her home, where he collected the bed sheets and Susans nightgown. He did not find any fingerprints or footprints and Susan said that nothing had been stolen. The officer booked the SART kit and the items collected at Susans home into evidence. The evidence from the SART kit was submitted to the DNA lab at the Department of Justice in 1995, and was resubmitted in 2003. In 2005, the lab contacted the Mountain View Police Department to tell them that there was a match.
The parties stipulated that, "[t]hrough proper DNA testing, the defendant, Darrick Lee, is the donor of the semen found inside Susan[s] vagina. The semen was properly collected on 9-2-1995 in a medical facility and Darrick Lees DNA was properly collected in 1995 for an unrelated matter. The tests were properly performed by the California Department of Justice and the results of the two tests were linked up in January 21, 2005, confirming that Darrick Lee was the donor of the semen. [¶] These results from the Department of Justice were verified by the Santa Clara County Crime Lab on June 21, 2005, that properly tested a new sample of defendants blood against the semen collected in Susans vagina."
Susan testified that she used to go to the St. James Infirmary restaurant to drink a double brandy after teaching a night class, and then go home alone, but she had not been there for some time prior to September 1, 1995. She did not think that she ever met or talked to defendant there, as she is "just not attracted to Blacks."
Other Crimes Evidence
Only evidence of the facts underlying defendants conviction for prowling in 1989 and his conviction for burglary and false imprisonment in 1995 were presented during the prosecutions case-in-chief. Evidence of the facts underlying these and defendants other convictions was introduced during the prosecutions cross-examination of defendant as impeachment evidence.
Around 1:07 a.m. on January 4, 1989, Palo Alto Police Officer Dennis Burns responded to the report of a person attempting to enter a first floor apartment on Bayshore Road. Two Caucasian females in their early 20s lived in the apartment. The officer parked his patrol car close to the apartment and, as he got out of the car, he saw defendant running away from a closed window of the apartment. The officer commanded defendant to stop, but defendant did not comply and a foot chase ensued. Eventually, defendant was knocked to the ground by a police dog and handcuffed. The officer went back and looked at the bedroom window. He saw no signs of forced entry but did see smudged fingerprints that he believed matched defendants fingerprints. After defendant waived his Miranda rights, he stated that he lived in the apartment complex, that he was attracted to one of the occupants of the apartment, and that he was trying to get a look at her. Defendant, who was 19 years old at the time, was convicted of prowling. (Former § 647, subd. (g) [now subd. (h)].)
Miranda v. Arizona (1966) 384 U.S. 436.
Around 3:30 a.m. on December 17, 1995, Melissa returned home to her ground floor apartment in Palo Alto from a Christmas party in San Francisco. After she unlocked the front door and stepped inside, her dog came running towards her from the kitchen and she heard her back door slam shut. She thought that it was odd because she had locked the dead bolt on the back door. When she walked into her kitchen, defendant slammed open the back door and rushed inside. She yelled at him to get out and a scuffle ensued, causing significant bruising on her arms, neck, and lower back. Defendant put his hand over her mouth and told her that he would not have to hurt or kill her if she were quiet. She kicked him in the leg and ran to her front door. Before she could unlock the door, defendant grabbed her, tackled her, and lay on top of her, pinning her down on her futon. He said that he was attracted to her, so she looked him in the eyes and asked him, "Are you going to rape me?" Defendant then jumped up and said, " `I am not going to rape you. What do you think brothers have to rape. " He grabbed a pillow, approached her, and said that she needed to be quiet or somebody would hear. She screamed for him to leave her alone and he backed off. This happened again and again. Finally, Melissa calmly said that she wanted defendant to leave and she promised defendant that she would not call the police. She opened the front door and defendant told her his name and then limped out. Melissa locked the front and the back door, then saw that the lock on her kitchen window had been jimmied, the window was open, and the screen was missing. She watched defendant pick up the window screen from her patio and walk off with it. She called a friend and 911. After she gave the 911 operator defendants name, the operator said that defendant lived in her apartment complex. The police found the window screen and Melissas wallet on the roof of the apartment complex. The next day Melissa recalled that she had previously seen defendant once before around the complex. Defendant was subsequently convicted of burglary and false imprisonment as a result of the incident.
The Defense Case
Mountain View Police Detective Lora Messina interviewed Susan on September 15, 1995. Susan said that on the night of September 1, 1995, she drank a half-bottle of sherry over a period of 30 minutes. She said that she never goes to bars. She occasionally goes to St. James Infirmary to have a double brandy to help her sleep, but she did not go to there on the night of the assault. She said that she has never noticed anyone following her home from there or from the store.
Willy Young met defendant when they were both going to Foothill College around 1993 or 1994, and thereafter Young would see defendant around Palo Alto and at St. James Infirmary. In 1995, Young worked as a health and physical education teacher during the day and as a bouncer and part-time bartender at St. James Infirmary about four evenings a week. He worked at St. James Infirmary through 1997, and the establishment burned down in 1999. The restaurant area of the establishment would close by 9:00 p.m., and the tables would be moved to the back to create a dance floor. There were two bars, one with seats and one without seats. Young remembers seeing defendant at the establishment in September 1995, he remembers that Susan frequented the establishment during that time, and he remembers seeing defendant talk with Susan at the bar of the establishment.
Defendant testified in his own defense that he was not employed in September 1995. He had a drinking problem then and frequented a lot of bars, including St. James Infirmary. On September 1, 1995, he remembers going to St. James Infirmary and talking to Susan there, but at the time Susan called herself Dagmar. He told her that he was 36 and that his girlfriend lived in Atlanta. She told him that she was a psychic, that she could "`chart " him, and that she lived nearby. They left the bar together and walked to Susans home. There, Susan changed into a nightgown and then they sat together on a daybed. She asked him about his girlfriend and whether he had AIDS. They ended up having consensual sex. Susan was straddling him, and he remembers asking her, "is it okay if I come?" Afterwards, he fell asleep and did not wake up until Susan touched him in the morning. She told him that he had to leave or that something bad was going to happen to him. He left through the front door and he did not see Susan again until his preliminary examination. He was arrested in 2005 and was told that he was being charged with rape. An officer interrogated him about this case and showed him Susans picture. The officer did not give him any information about the alleged victim and he did not remember who Susan was.
In 1989, when he was 19, he lived in the same complex as, and was friends with, the two women whose window he was looking into. The women were good looking but he did not go to the window because of that. It was late and he wanted some aspirin, so he first knocked on the door and then he tapped the window with his hands because there was a light on in the room. He did not announce himself, but he could see that a woman was inside so he thought that she would come to the window. Nobody came to the window or to the door. The police then arrived and he ran because he was frightened. A police dog got him, he was arrested, and he was later convicted of prowling.
In March 1990, he was working as a salesman in mens clothing at Macys. While on a work break with a friend, he told the friend to go into the store to buy something and he would give the friend some free clothing. The friend went in, bought something, and defendant put extra items in his bag for both himself and the friend. Defendant suffered a conviction for his conduct.
In January 1993, he was convicted again of prowling. He was walking home after drinking at a bar and ended up by the backyard gate of a house that was a few blocks from his home and that belonged to people he did not know. He does not remember how long he was there, but he probably intended to steal something. The residents were not home and their neighbors called the police.
In December 1995, he came home late from a Christmas party in Concord, he was intoxicated, and he was locked out of his mothers Palo Alto apartment. Nobody answered when he knocked on the windows of the apartment, or when he knocked on the managers door. While walking around the complex, he heard Melissas dog barking. He did not know Melissa but he had seen her and her dog around the complex. He looked in her window and saw a wallet with some money sticking out of it. He removed the window screen, stuck his hand in the window, opened the door, removed the wallet, and took out the money. When he opened the door again to put the wallet back, Melissa was standing there. She told him to leave and started yelling at him and waiving her arms, and he "freaked out." They got into a scuffle, and he put his hand over her mouth and asked her not to yell. She kicked him and started for the front door. He tripped her, she fell onto a futon, and he held her down. He does not remember threatening to kill her, but he did say that he was attracted to her. When she asked him if he planned to rape her, he said "no" and backed away from her. He did not pick up a pillow or use one on her. He repeatedly asked her to not call the police. Before he left, he told Melissa his name and where he lived. After he left he grabbed the window screen and threw it on top of the carport. He was later convicted of first degree burglary and false imprisonment, and spent time in prison.
In March 2003, he suffered a conviction for violating Vehicle Code section 2800.2, evading an officer, for an incident that occurred the previous December.
Rebuttal Evidence
Susan testified that she did not meet defendant at St. James Infirmary on September 1, 1995, and that they did not have a conversation about an astrological reading. She knows nothing about astrology and she does not do astrological readings. Dagmar is her real name, she has used that name all her life, and she usually introduces herself using that name. She did not tell defendant when he was at her home that her name was Dagmar, but there were several items in her office that had her name on them. In addition, she used that name at the preliminary examination.
Evidence Code section 402 Hearing
After all the evidence was presented, but prior to the submission of the matter, the court held an Evidence Code section 402 hearing on defendants motion to dismiss. Defense counsels investigator Anne Fields testified at the hearing that she began investigating the case in May 2005. St. James Infirmary had a major fire in 1997, and was no longer in operation, and Fields was not able to contact its owners. She was not able to find all the potential witnesses from the bar, the apartment complex, and the convenient store, and most of the witnesses she could find had no information about the alleged incident. The doctor who examined Susan the day after the incident had no memory of the case. The biggest problem she had was the length of time that had passed since the alleged incident occurred.
The court found that the fact that some memories have faded or had been lost is prejudicial to the defense. However, no evidence was presented that any DNA evidence the prosecution had in 1995 could have been tested in 1998 or 2000 when the DNA database was assembled, that any hit could have occurred prior to 2005 when it did, or that any of the witnesses that were called to testify would have had a better memory of the relevant events in 1998 or 2000. Susan, Young, and defendant all testified at trial that they had a good memory of the September 1995 events. Therefore, the court again denied defendants motion to dismiss.
Verdicts, New Trial Motion, and Sentencing
Also prior to submission of the matter, the court granted the prosecutors request for a special finding by the jury on the issue of whether the victim was particularly vulnerable. On February 15, 2007, the jury found defendant guilty of forcible rape (§ 261, subd. (a)(2)). The jury further found true the allegation that defendant committed the rape during the commission of a burglary and the special allegation that the victim was particularly vulnerable. On April 30, 2007, defendant filed a motion for new trial, contending that the prosecutor was suspended from the practice of law for nonpayment of bar dues during October 2006, the time this matter was originally set for trial, and the prosecutor filed opposition to the motion on June 7, 2007. On June 14, 2007, the court denied the motion for new trial, denied defendants request for a continuance of sentencing, and sentenced defendant to state prison for 25 years to life. (§ 667.61, subds. (a) & (c).)
DISCUSSION
CALCRIM No. 226
Prior to trial, defense counsel informed the court that defendant did not intend to testify. Outside the jurys presence, the court placed on the record what had occurred during the parties discussion of the proposed instructions with the court. As to CALCRIM No. 226, the court stated: "226, the factors that were chosen by the attorneys was given." Later, just prior to Youngs testimony, defense counsel informed the court that defendant wished to testify in his own behalf. During defendants testimony, but outside the presence of the jury, the court stated that it modified some of the jury instructions because defendant had testified, however the court did not mention CALCRIM No. 226 as one of the instructions it modified. After defendant testified, but before Susans rebuttal testimony, the court provided copies of the modified instructions to the parties. The parties reviewed the modified instructions, informed the court that they had "no problems" with the modified instructions, and stipulated to them.
The court originally instructed the jury pursuant to CALCRIM No. 226 as follows: "You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true or accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have including any based on the witnesss gender, race, religion or national origin. You may believe all or part or none of any witnesss testimony. Consider the testimony of each witness and decide how much of it you believe. In evaluating a witnesss testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: [¶] How well did the witness see or hear or perceive the things about which the witness testified? [¶] How well was the witness able to remember and describe what happened? [¶] What was the witnesss behavior while testifying? [¶] Did the witness understand the questions and answer them directly? [¶] Was the witnesss testimony influenced by a factor such as a bias or prejudice, a personal relationship with someone involved in the case or a personal interest in how the case is decided? [¶] What was the witnesss attitude about the case or about testifying? [¶] Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony? [¶] How reasonable is the testimony when you consider all the other evidence in the case? [¶] Did other evidence prove or disprove any fact about which the witness testified? [¶] Has the witness engaged in conduct that reflects his or her believability? [¶] Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently. [¶] If you do not believe a witnesss testimony that he or she no longer remembers something, that testimony is inconsistent with the witnesss earlier statement on that subject. [¶] If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says or if you think the witness lied about something, but told the truth about others, you may accept the part that you think is true and ignore the rest."
Immediately after the prosecutor gave his closing argument, the court stated: "Ladies and gentlemen, I am adding two factors. You alone must judge the credibility or believability of the witnesses. Two factors which I inadvertently left out, I am going to insert. I wrote them in pen. They are: Has the witness been convicted of a felony, and did the witness admit to being untruthful? [¶] Please understand that these are only two factors. The fact I am adding them at this time is not an indication they should be given any greater weight in the instruction. It was an oversight on my part, they should be added. And just because something is written in pen does not make any difference, they are to be given with equal importance. [¶] Does everybody understand and accept that? Everyone is shaking [sic] their heads. Thank you." The court then instructed the jury on choosing a foreperson and how to conduct their deliberations.
One added factor was written in just before, and the other one just after, the factor, "Has the witness engaged in conduct that reflects on his or her believability?"
After the jury began deliberations, the court stated on the record outside the presence of the jury: "When the jury instructions were put together, the defendant was definitely not testifying and that was a certainty by defendant. And so, I think nobody noticed that one of the factors that had to be included was whether someone suffered a prior conviction of a felony and the admission of untruthfulness by the defendant when he testified. [¶] This did not dawn on me until I heard the closing argument of the district attorney and he was referring to the jury instructions as if it was in there. I debated whether I should include or draw attention to that fact, but the same time I cant misinstruct the jurors so I had to include it as a factor because I had to instruct the jurors properly even though it was adding it after I already read the instructions which I dont think impinge on any constitutional rights on any of the parties." The prosecutor agreed, but there was no response by defense counsel.
Defendant now contends that the trial courts sua sponte instruction immediately following the prosecutors closing argument emphasized credibility factors that favored the complaining witness and were damaging to defendant. He argues that the court should have conferred with the parties prior to giving any additional instruction, and/or the court should have reread all of CALCRIM No. 226 instead of just adding the two new factors. He argues that the two added factors unfairly emphasized the factors the prosecutor argued should be utilized to discredit defendants testimony and bolster Susans testimony, and that this denied him due process and requires reversal of his conviction. The Attorney General first contends that defendant forfeited the issue by failing to raise it below. The Attorney General further contends that the instruction was proper and did not unfairly favor the prosecution.
We need not determine whether defendant waived the issue of instructional error he raises on appeal because we find the claim lacks merit. Our review begins with a review of the trial courts obligation to give jury instructions.
A trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154; see also, §§ 1093, subd. (f), 1127.) This duty includes giving correct instructions regarding the credibility of witnesses. (People v. Horning (2004) 34 Cal.4th 871, 910; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883-884.) CALCRIM No. 226, like CALJIC No. 2.20, describes factors the jury should consider in determining witness credibility. (People v. Fraser (2006) 138 Cal.App.4th 1430, 1451-1452, fn. 6; Evid. Code, § 780.) Thus, the court has a sua sponte duty to give the substance of CALCRIM No. 226 in every criminal case, although it may omit factors that are inapplicable under the evidence. (Horning, supra, 34 Cal.4th at p. 910; People v. Rincon-Pineda, supra, 14 Cal.3d at pp. 883-884.)
When the court instructs the jury prior to the parties closing arguments, the court may in its sound discretion refuse to reread instructions after the arguments, even when a party requests it. (People v. Chung (1997) 57 Cal.App.4th 755, 758; People v. Valenzuela (1977) 76 Cal.App.3d 218, 221.) However, the court has a duty to reinstruct the jury if it becomes apparent that the jury may be confused on the law. "[T]he judge must always be alert to the possibility that counsel in the course of argument may have befuddled the jury as to the law. If this occurs, then either at the time the confusion arises or as part of the final instructive process the court should rearticulate the correct rule of law. Just as the law imposes a sua sponte obligation to instruct on certain principles of law in the first place . . . so does it impose on the judge a duty to reinstruct on the point if it becomes apparent to him [or her] that the jury may be confused on the law." (Valenzuela, supra, 76 Cal.App.3d at p. 221; see also Chung, supra, 57 Cal.App.4th at p. 758.)
In this case, when the court and the parties discussed the instructions to be given to the jury, they thought that defendant would not be testifying. Thus, some of the factors included in CALCRIM No. 226 applicable to defendants credibility were not included when the court instructed the jury prior to the parties arguments. After the court instructed the jury, the prosecutor argued that the jury could consider defendants prior convictions and admitted untruthfulness when assessing his credibility. Yet, these were factors that had not been included in the version of CALCRIM No. 226 the court had read to the jury. The court considered not instructing the jury on the two additional factors, because it was afraid that by doing so it would highlight the factors. However, the court correctly determined that it had a duty to reinstruct jury as the omitted factors were relevant to the jurys determination. (Chung, supra, 56 Cal.App.4th at p. 758; Valenzuela, supra, 76 Cal.App.3d at p. 221; compare People v. Murillo (1996) 47 Cal.App.4th 1104, 1107.)
"In charging the jury the court may instruct the jury regarding the law applicable to the facts of the case, and may make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the case . . . ." (§ 1127, italics added; see also § 1093, subd. (f).) The instruction the court gave after the prosecutors closing argument was a correct statement of the law, was phrased in neutral terms, and could apply to witnesses called by either party. Although the prosecutor had argued that the factors the court added applied to defendants testimony, nothing about the courts added instruction prohibited a juror from applying it to a prosecution witness. In addition, to the extent the jury could reasonably infer that defendant was not testifying truthfully in whole or part, defendant was not entitled to a false aura of veracity. (See People v. Millwee (1998) 18 Cal.4th 96, 159-160.) The court explicitly admonished the jury that by adding the two factors when it did it was not indicating that the factors should be given any extra weight, and that all the factors should be given equal importance. Jurors are presumed to understand and follow the courts instructions (People v. Holt (1997) 15 Cal.4th 619, 662), and the court made sure all the jurors understood its admonition. Accordingly, we find that the court did not err by adding the additional language to CALCRIM No. 226 when it did. (People v. Millwee, supra, 18 Cal.4th at pp. 159-160; Valenzuela, supra, 76 Cal.App.3d at p. 221.)
Precharging Delay
Defendant contends that he was denied his due process right to a fair trial because of the long precharging delay in this case. He argues that he established that he was prejudiced by the delay in that there was a loss of evidence and material witnesses from St. James Infirmary, the corner market where Susan testified she bought wine, and from Susans medical examination after her assault. The Attorney General notes that defendant was prosecuted within the 10-year statute of limitations, and contends that the court properly refused to dismiss the case because defendant failed to meet the threshold showing of delay and prejudice.
"Defendants state and federal constitutional speedy trial rights (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15, cl. 1) are not implicated in this case. Neither applies until at least the defendant has been arrested or a charging document has been filed. [Citation.]" (People v. Nelson (2008) 43 Cal.4th 1242, 1250 (Nelson).) Defendant was not charged with or arrested for the rape until 2005, so his speedy trial rights did not attach until that time. He does not complain of delay after that time; he complains only of delay between the time of the rape and the time the prosecution first charged him with that offense.
"Although precharging delay does not implicate speedy trial rights, a defendant is not without recourse if the delay is unjustified and prejudicial. `[T]he right of due process protects a criminal defendants interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence. [Citation.] Accordingly, `[d]elay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay. [Citation.]" (Nelson, supra, 43 Cal.4th at p. 1250.)
"The statute of limitations is usually considered the primary guarantee against bringing overly stale criminal charges. [Citation.] There is no general right to a prosecution speedier than that laid down by the statute of limitations." (People v. Archerd (1970) 3 Cal.3d 615, 639; see also Nelson, supra, 43 Cal.4th at p. 1250; United States v. Marion (1971) 404 U.S. 307, 322.) The statute of limitation for section 261, subdivision (a)(2), is 10 years. (§§ 801.1, subd. (b); 290, subd. (c).) The alleged rape occurred on September 1, 1995, and defendant was first arrested on the rape charge sometime in 2005. (See § 804.) At no time during these proceedings has defendant claimed that the prosecution was commenced outside the statute of limitations. Therefore, to avoid the rape charge defendant must affirmatively show prejudice. (See Nelson, supra, 43 Cal.4th at p. 1250.)
The prejudice demonstrated by defendant must then be balanced against the justification for the delay in prosecution. "The state and federal constitutional standards regarding what justifies delay differ. . . . [T]he exact standard under [the federal] Constitution is not entirely settled. It is clear, however, that the law under the California Constitution is at least as favorable for the defendant in this regard as the law under the United States Constitution. Accordingly, we can and will apply California law." (Nelson, supra, 43 Cal.4th at p. 1251.)
"[U]nder California law, negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process." (Nelson, supra, 43 Cal.4th at p. 1255.) "Purposeful delay to gain an advantage is totally unjustified, and a relatively weak showing of prejudice would suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation." (Id. at p. 1256.)
In this case, defendant demonstrated some prejudice due to the precharging delay. Defendant showed that the doctor who examined Susan the day after the incident had no memory of the case, and that the defense was unable to contact some witnesses from St. James Infirmary or from the corner store where Susan testified she bought wine on the night of the incident. The overall prejudice was slight, however, considering that defendant was able to call Young, who testified that he remembers seeing defendant and Susan talking at the St. James Infirmary around the time of the rape, and defendant did not call another witness he was able to contact because the witness had no information favorable to the defense. Nevertheless, defendant demonstrated sufficient prejudice to require the prosecution to justify the precharging delay.
The prosecution presented evidence in this case, as the prosecution did in Nelson, that "[t]he delay was investigative delay, nothing else. The police may have had some basis to suspect defendant of the crime shortly after it was committed in [1995]. But law enforcement agencies did not fully solve this case until [2005], when a comparison of defendants DNA with the crime scene evidence resulted in a match, i.e., until the cold hit showed that the evidence came from defendant. Only at that point did the prosecution believe it had sufficient evidence to charge defendant. A court should not second-guess the prosecutions decision regarding whether sufficient evidence exists to warrant bringing charges." (Nelson, supra, 43 Cal.4th at p. 1256.)
Nor can we say that the states failure to make the DNA comparison until 2005 was negligent. "It is not enough for a defendant to argue that if the prosecutorial agencies had made his or her case a higher priority or had done things a bit differently they would have solved the case sooner." (Nelson, supra, 43 Cal.4th at p. 1257.) "A court may not find negligence by second-guessing how the state allocates its resources or how law enforcement agencies could have investigated a given case." (Ibid.) " `[T]he difficulty in allocating scarce prosecutorial resources (as opposed to clearly intentional or negligent conduct) [is] a valid justification for delay . . . . [Citation.]" (Ibid.)
In this case, therefore, balancing the prejudice defendant demonstrated against the strong justification for the precharging delay, we find no due process violation. The delay was the result of the limits of forensic technology and insufficient evidence to identify defendant as a suspect until 2005; the delay was not purposeful in order to gain an advantage. When available forensic technology identified defendant as a suspect and helped establish his guilt, the prosecutor promptly proceeded to charge and try defendant. This justification for the precharging delay outweighed defendants showing of prejudice. (See Nelson, supra, 43 Cal.4th at p. 1257.)
Evidence Code section 1108 Evidence
The court ruled in limine that the incident in December 1995 involving Melissa "is of a sexual nature," and that evidence regarding the incident was admissible under Evidence Code section 1108 and on the issues of intent, motive, and lack of mistake under Evidence Code section 1101. At trial, Melissa testified regarding the December 1995 incident, and the prosecutor presented evidence that defendant was convicted of first degree burglary and false imprisonment as a result of the incident. The court instructed the jurors in accordance with CALCRIM No. 1191 in part that "[t]he People presented evidence that the defendant committed the crimes of assault with intent to commit a sex offense and/or attempted rape, the alleged victim being Melissa Doe, that were not charged in this case. These crimes are defined for you in these instructions. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. [¶] . . . If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses and based on that decision also conclude that the defendant was likely to commit and did commit rape as charged here. [¶] If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty of rape. The People must still prove each element of the charge beyond a reasonable doubt."
Defendant contends that admission of evidence of the 1995 incident involving Melissa and the giving of CALCRIM No. 1191 violated his constitutional rights. He argues that the incident involving Melissa was not "another sexual offense" within the meaning of Evidence Code section 1108 because the evidence clearly reflects that defendant entered Melissas apartment with the intent to commit theft rather than any sexual offense, and he was not convicted of a sexual offense as a result of the incident. He argues that he did not kiss Melissa, fondle her, remove her or his own clothes, or attempt to do anything else of a sexual nature. And, when Melissa asked him if he was going to rape her, he denied it.
The Attorney General contends that there was ample evidence that the incident involving Melissa constituted an offense "of a sexual nature," as the trial court found, and that the court did not abuse its discretion in admitting evidence of the incident under Evidence Code section 1108 and in giving CALCRIM No. 1191.
Evidence Code section 1108, subdivision (a), states: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." Evidence Code section 1101, subdivision (a), states in pertinent part: "Except as provided in this section and in Section[] . . . 1108, . . . evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." Thus, under Evidence Code section 1108, evidence of uncharged sexual offenses may be admitted to show that the defendant had a disposition or propensity to commit such crimes. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013; People v. Falsetta (1999) 21 Cal.4th 903, 915 (Falsetta).)
Evidence of a prior act may be introduced pursuant to Evidence Code section 1108 even if, as a result of that act, the defendant was convicted of a crime that was not a sexual offense. (People v. Lopez (2007) 156 Cal.App.4th 1291, 1298-1299.) "A defendant may avoid conviction of a sexual offense because of the more stringent burden of proof, either because the prosecutor may not feel he or she can meet the burden, or because the jury concluded the prosecution failed to meet the burden. When the evidence is introduced at a subsequent trial as evidence of a prior sex offense, however, the jury may conclude the same evidence meets the preponderance of the evidence standard and utilize the evidence as permitted by law." (Id. at p. 1299.) "The issue is, and should be, whether the prior act is a sexual offense." (Ibid.)
Under Evidence Code section 1108 trial courts "retain broad discretion to exclude disposition evidence if its prejudicial effect, including the impact that learning about defendants other sex offenses makes on the jury, outweighs its probative value." (Falsetta, supra, 21 Cal.4th at p. 919; see also Evid. Code, § 352.) Accordingly, the standard of review for an order admitting evidence of prior sex offenses is abuse of discretion. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1315.) "A trial courts exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
In this case, the testimony provided by Melissa provided substantial evidence, if believed, that defendant assaulted Melissa with the intent to commit rape. Melissa testified that defendant entered her apartment late at night and struggled with her when she screamed at him to leave. When she kicked him and ran to her front door and tried to unlock it, defendant grabbed her, tackled her, and lay on top of her, pinning her down on her futon. He then said that he was attracted to her. Melissa thought that defendant intended to rape her so she looked him in the eyes and asked him if he was going to rape her. Although defendant jumped up and denied it, defendants actions reasonably led Melissa to believe that defendants assault was with the intent to rape her, whether or not he had such an intent when he originally entered Melissas apartment. Accordingly, we cannot say that the trial courts finding that the incident involving Melissa was "of a sexual nature" was arbitrary, capricious, or patently absurd. The court did not abuse its discretion in admitting evidence of the incident involving Melissa under Evidence Code section 1108.
Evidence Code section 1101 Evidence
During its case in chief, in addition to the evidence of the 1995 incident involving Melissa, the prosecution introduced evidence of a 1989 incident involving defendant that resulted in a conviction for prowling. (Former § 647, subd. (g) [now subd. (h)].) When cross-examining defendant, the prosecutor questioned defendant about the 1989 prowling incident, a 1990 commercial burglary incident at Macys, a 1993 prowling incident, and the 1995 incident involving Melissa. Outside the presence of the jury, the court stated that it was allowing the prosecutor to introduce evidence of the facts of defendants prior offenses in order to impeach defendant, as defendant opened the door by his testimony regarding his intent in the current case. "Specifically the prowling is at issue because hes indicated he was not prowling and the purpose for breaking in is at issue because the defendant has testified to Susan Doe letting him into the apartment willingly followed by consensual sex." The court later instructed the jury on how it could consider the evidence of all of these prior offenses in accordance with CALCRIM No. 375.
The court instructed the jury in relevant part as follows:" The People presented evidence that the defendant committed the offenses of residential burglary, the alleged victim being Melissa Doe; commercial burglary, the alleged victim being Macys; assault with intent to commit a sex offense or attempted rape, the alleged victim being Melissa Doe; prowling, the alleged victim being Tonya Doe; and prowling from 1993 that were not charged in this case. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the offenses. . . . [¶] . . . . If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide the defendant committed the offenses, you may, but are not required to consider the evidence for the limited purpose of deciding whether or not the defendant acted with the intent to commit rape and/or burglary against Susan Doe. [¶] The defendant had a motive to commit the offenses alleged against Susan Doe. The alleged prior burglary and prowlings can be used solely for this purpose and not for any other purpose. [¶] The alleged prior assault to commit a sex offense and/or attempted rape can also be used for the limited purpose for determining if the defendant had a propensity to commit sexual offenses. See the other instruction on this issue. [¶] If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor for you to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged rape . . . the alleged victim being Susan Doe. The People must still prove each element of the current rape charge beyond a reasonable doubt."
Defendant contends that none of the evidence of the facts underlying his four prior convictions was admissible under Evidence Code section 1101. Defendant further contends that, even if evidence was admissible for some purpose, the court erred in refusing to exclude any of the evidence pursuant to Evidence Code section 352. "The Macys burglary had no similarity whatsoever to the charged offense. In the two `prowling incidents, [defendant] was found outside a residence. He did not enter the residence. And, the Melissa Doe incident exhibited more signs of dissimilarity than similarity[.]" He contends that his conviction must be reversed because admission of the evidence of the uncharged offenses severely prejudiced him.
The Attorney General contends that the court did not err in admitting evidence of all the uncharged offenses because of the similarities of the offenses to the offense at issue. The Attorney General further contends that any error in admitting the evidence was harmless.
We have found that the court did not abuse its discretion in admitting the evidence of the incident involving Melissa under Evidence Code section 1108. We also find that the court did not abuse its discretion in admitting evidence of the facts underlying that offense as well as evidence of defendants commercial burglary and two prowling offenses under Evidence Code sections 1101 and 352. " `Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition; but evidence of uncharged crimes is admissible to prove, among other things, . . . the intent with which the perpetrator acted in the commission of the charged crimes. (Evid. Code, § 1101.) Evidence of uncharged crimes is admissible to prove . . . intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of . . . intent. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) " (People v. Carter (2005) 36 Cal.4th 1114, 1147.) The least degree of similarity is required to establish relevance on the issue of intent. (People v. Ewoldt, supra, 7 Cal.4th at p. 402.) "To be admissible to show intent, `the prior conduct and the charged offense need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance. [Citations.] Moreover, to be admissible, such evidence ` " `must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. " [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1194.) "We review for abuse of discretion a trial courts ruling on relevance and admission or exclusion under Evidence Code sections 1101 and 352. [Citations.]" (Id. at p. 1195.)
The conduct underlying defendants convictions for prowling and commercial burglary and the incident involving Melissa were sufficiently similar to the conduct underlying the charged offense to support the inference that defendant probably harbored the same intent in each instance. The jury could reasonably infer from all the evidence of the current offense that defendant went to Susans home late the night of the incident with the intent to steal something if Susan was not home, but also with the intent to commit a sex offense if she was home. The evidence of defendants other offenses would also support such an inference, and thus was highly probative on this issue.
In the 1995 incident at issue at trial, after defendant had been drinking at a bar, he entered the nearby apartment of a woman late that night. When she saw him and jumped up and screamed, he grabbed her and told her that he would hurt her if she kept it up. He then threw her down on a daybed, put a pillow over her face, got on top of her, held her down and raped her.
In the 1995 incident involving Melissa, defendant entered her apartment late one night. He had come home after drinking at a party and Melissas apartment was in the same apartment complex. He claimed he entered Melissas apartment with the intent to steal money from her wallet, yet when she screamed he grabbed her and threatened to hurt her if she kept it up. He then tackled her onto a futon, got on top of her and pinned her down, and told her that he was attracted to her. After denying that he intended to rape her and jumping up, he then grabbed a pillow and started toward her again. She continued to scream and he finally left after she promised him that she would not call the police.
In the first prowling incident, late one night in 1989, defendant was seen outside the window of two women who lived in his apartment complex. The women reported that defendant was trying to enter their apartment and defendant told the responding officer that he was attracted to one of the apartments occupants.
In the 1990 Macys incident, defendant entered the store with the intent to steal some items for himself and his friend.
In the second prowling incident, late one night in 1993, defendant was walking home after drinking at a bar and ended up outside the home of people he did not know. The neighbors called the police, and defendant testified that he was probably at the home with the intent to steal something.
As the least degree of similarity is required to establish relevancy on the issue of intent, we cannot say that the trial court abused its discretion in finding that defendants uncharged offenses were sufficiently similar to permit introduction of evidence of each of them under Evidence Code sections 1101 and 352 on the issue of intent. In addition, defendant suffered convictions as a result of each of the uncharged offenses, so there was no danger that the jury might doubt that he committed the charged offense but convict him anyway because of their belief he committed the uncharged offenses. (See People Ewoldt, supra, 7 Cal.4th at p. 405; People v. Carpenter (1997) 15 Cal.4th 312, 380.) And, defendant appeared to agree with the Attorney General at oral argument that evidence of the 1990 Macys burglary incident was admissible for impeachment purposes, so any error in also admitting evidence of the offense under Evidence Code section 1101 was harmless. Reversal of defendants conviction in this case is not required.
Ineffective Assistance of Counsel
"To prevail on a claim of ineffective assistance of counsel, the defendant must show counsels performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsels challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. (People v. Pope (1979) 23 Cal.3d 412, 426.) Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., that, ` " `but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the outcome. " [Citations.]" (People v. Anderson (2001) 25 Cal.4th 543, 569; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Strickland, supra, at p. 697.) We will discuss each of defendants claims of ineffective assistance of counsel seriatim.
Defendant first contends that counsel failed to raise an objection when the court supplemented CALCRIM No. 226. As we have found that the court properly supplemented CALCRIM No. 226 as it did, defendant cannot demonstrate that he was prejudiced by any failure by his trial counsel to object to the supplementation.
Defendant next contends that counsel failed to object when the court ruled that evidence of the 1993 prowling and the 1990 Macys incidents could be admitted both for impeachment and under Evidence Code section 1101. Defendant also contends that counsel failed to object to CALCRIM No. 375, and that an objection "should have been successful" because the evidence of the uncharged offenses was not admissible under Evidence Code section 1101. As we have found that the court did not abuse its discretion in admitting the evidence under Evidence Code sections 1101 and 352, and defendant appeared to agree with the Attorney General at oral argument that evidence of the 1990 Macys incident was admissible for impeachment, defendant cannot demonstrate that he was prejudiced by any failure by his trial counsel to object to admission of the evidence and to the giving of CALCRIM No. 375.
Lastly, defendant contends that counsel should have requested that he be allowed to voir dire Melissa outside the presence of the jury as to her qualifications to give opinion testimony, and as to what her opinion would be. We begin our analysis by presenting some background information.
At the beginning of her testimony, Melissa testified that she is a child psychologist, that she has a Ph.D., and that she has testified in court as an expert in child abuse, parenting capabilities, and family violence. She further testified that she has 17 years of experience in domestic violence, sexual assault, physical assault, and emotional abuse. At the time of her 1995 assault, she was completing an internship at the childrens hospital at Stanford.
During defense counsels cross-examination of Melissa, she testified that she, and not defendant, first used the word "rape." Defense counsel then asked her whether defendant then said, " `No, I am not going to rape you?" Melissa responded, "Thats what he said. And if you are familiar with the dynamics, dynamics of rape its about power and control and I took the control away." Defense counsel objected to Melissas answer as nonresponsive and asked that it be stricken, and the court sustained the objection.
After defense counsel finished his cross-examination, the prosecutor stated that he had "just one area" he wanted to address on redirect. The following then occurred.
"[THE PROSECUTOR:] On cross-examination you wanted to say the dynamics of rape. In your education and studies to become a Ph.D. in psychology, did you ever go over the dynamics of rape in your class?
"[MELISSA:] Yes.
"[DEFENSE COUNSEL:] Objection, your honor, this is irrelevant. She hasnt been, shes hadnt been determined to be an expert by this court.
"THE COURT: I believe thats what [the prosecutor] is attempting to establish, so overruled.
"[THE PROSECUTOR:] Any classes in the dynamics of rape?
"[MELISSA:] Yes.
"[THE PROSECUTOR:] I think you taught a class on the dynamics of rape?
"[MELISSA:] Yes. For the family system and Ph.D., yes.
"[THE PROSECUTOR:] In your total career, have you dealt with and helped victims of sexual assault and specifically rape?
"[MELISSA:] Yes, family violence, domestic violence, yes, which involves sexual assault, yes.
"[THE PROSECUTOR:] I believe you were talking about that one moment where he was on top of you and you were staring him dead in the eye and you said `are you going to rape me? And you were going to talk about the dynamics of rape. What were you going to say?
"[MELISSA:] If you read some of the dynamics, the act of rape is not sex itself. It is really about power and control and being able to have control over the situation and feeling powerful over someone. So in a sense by asking that question, I basically shifted the power in the situation and while I cant say specifically what Mr. Lees intentions were in that moment, I know what I was fearful of. Perhaps I was lucky having all of those years in training that I had and perhaps that may have helped me through my experience that Ive had.
"[THE PROSECUTOR:] I have nothing further.
"THE COURT: Anything else?
"[DEFENSE COUNSEL:] No, Your Honor."
Defendant contends that Melissas testimony "was objectionable as it was irrelevant and, as it was the very last testimony in the prosecutions case-in-chief, it was extremely prejudicial to [defendant]." Accordingly, defendant argues that counsel should have objected to Melissas qualifications to give opinion testimony and should have asked for a hearing outside the presence of the jury in order to find out what her testimony would be. Counsel may have made a tactical decision to not object to Melissas testimony. (See People v. Wilson (1992) 3 Cal.4th 926, 936 [it is inappropriate for an appellate court to speculate as to the existence or non existence of a tactical basis for a defense attorneys course of conduct].) As defense counsel was aware of what Melissas opinion testimony would be, given that she testified similarly to her earlier stricken testimony, and defendant does not contend on appeal that Melissa was not qualified to give the testimony she did, we cannot fault defense counsels failure to object to Melissas qualifications and testimony. In addition, as Melissas opinion testimony related to her own experience and did not specifically address the incident at issue at trial, it is not reasonably probable that the result of the proceeding would have been different had counsel objected to Melissas qualifications and opinion testimony.
Cumulative Error
Defendant contends that, even if no one of his claimed errors requires reversal in itself, the cumulative effect of all the errors resulted in a miscarriage of justice, necessitating reversal of the judgment. Our Supreme Court has recognized that "a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844.) However, we have found no error or abuse of discretion in the rulings of the trial court, no ineffective assistance of counsel, and defendant appeared to agree with the Attorney General at oral argument that evidence of the 1990 Macys incident was admissible for impeachment. Accordingly, we reject defendants claim of cumulative error.
DISPOSITION
The judgment is affirmed.
We concur:
MIHARA, J.
MCADAMS, J.