Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. VCF097881-02 of Tulare County. Gary L. Paden, Judge.
Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
Arthur Quintero Ramirez entered his neighbors’ house at about 3:00 o’clock in the morning, removed his shirt, got in bed with one of the sleeping occupants, and pressed his body against hers. He was convicted of burglary, assault with intent to commit rape, sexual battery, and resisting arrest. He now argues that there was insufficient evidence of assault with intent to commit rape and burglary; that there is no such offense as assault with intent to commit rape where the rape is of an unconscious or sleeping victim; that the court gave erroneous jury instructions; that there was insufficient evidence of resisting arrest; and that the prosecutor made improper statements in her closing argument.
We reverse the two misdemeanor convictions for resisting arrest because of instructional error. The balance of the judgment is affirmed.
FACTUAL AND PROCEDURAL HISTORIES
Visalia police officers responded to a call from A.E.’s house at about 8:00 o’clock in the morning on September 4, 2002. A.E. told the officers she woke up during the night when she felt someone behind her in her bed, pressing up against her. She turned and saw that it was Ramirez, her next-door neighbor. She screamed and he ran out.
The officers went to Ramirez’s house, but no one was home. They returned at about noon the same day, and Ramirez’s wife allowed them to enter. Ramirez was there and said he was at home in bed all night and never was at A.E.’s house. The officers left and went to A.E.’s house, where, after she identified Ramirez in a photo lineup, they had her sign a citizen’s arrest form. Two of them returned to Ramirez’s house, knocked, and were allowed back in. They informed Ramirez that he was under arrest and attempted to handcuff him, but he pulled his arm away. The officers took him to the ground, but he continued to try to keep his hands away from them. As they struggled with him, they called for help from another officer who was outside with the patrol car. The three officers finally succeeded in getting Ramirez’s hands close enough together to handcuff him with two sets of handcuffs linked together.
The district attorney filed an information charging assault with intent to commit rape (Pen. Code, § 220); burglary of an inhabited dwelling house with a person other than an accomplice present (§ 459); misdemeanor sexual battery (§ 243.4, subd. (e)(1)); and two misdemeanor counts of resisting arrest (§ 148, subd. (a)(1)). The information further alleged that Ramirez had a prior strike offense under the three strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and was also subject to a sentence enhancement under section 667, subdivision (a)(1).
Subsequent statutory references are to the Penal Code.
At trial, A.E. testified that she lived with her husband, her daughter, her parents, and her brother. She and her husband and daughter had moved in with her parents about a year before the incident on September 4, 2002. Ramirez lived next door with his wife and stepson. According to A.E.’s father, Ramirez sometimes watched their house when they were away and occasionally came over to visit with A.E.’s husband. A.E. did not talk with Ramirez often and “just didn’t really feel comfortable” with him and his family.
Ramirez knew that A.E.’s father and husband often traveled for their work. A few days before September 4, 2002, Ramirez asked for A.E.’s husband. A.E. told Ramirez that her husband was out of town working.
Early on the morning of September 4, 2002, A.E. was sleeping in her bed with her daughter, who was two years old. Her father and brother were home and in their bedrooms. As usual, the family had left the laundry room door, at the back of the house, unlocked.
A.E. woke up between 3:00 and 4:00 o’clock in the morning. She described what happened next:
“Q Now how did he wake you up? Where were you … when he woke you up?
“A I was asleep on my bed and I just felt somebody caressing my body, and I felt him rubbing against me, my back with his penis.
“Q His penis?
“A Uh huh.
“Q Do you know if his penis was hard or soft?
“A Hard.
“Q And where was he rubbing the penis. What part of your body did he touch with it?
“A My buttocks.
“Q Your buttocks. Did he-was he close to your body? Could you feel his weight on your body?
“A Yes. I felt him just like if he was trying to get closer to me. [¶] … [¶]
“Q Okay. So then what-at what point did you wake up?
“A When I just felt somebody just like grabbing me like I just.…
“Q Okay. And what did you do when you woke up?
“A I turned around and I saw him and I just got scared, nervous and I started yelling.
“Q Okay. Do you remember what you said?
“A I was calling-I told him to get out of my room.
“Q Okay. And when you-did you get a good look at him?
“A Yes.
“Q And so you knew who he was right away?
“A Yes.
“Q Did he say anything to you?
“A No.
“Q Do you recall how he looked at you?
“A Just shocked. [¶] … [¶]
“Q At some point before he got out of the room did he get something?
“A I just recall him picking up a shirt.
“Q Okay. And what did he do when he picked up that shirt?
“A Just kind of stared a little bit and then just-and then ran out of my room.”
Ramirez then ran out of the house through the laundry room.
A.E. did not believe Ramirez was naked and did not see his penis. He did not hit her, try to hold her down, try to cover her mouth, or try to take her clothes off. He did not have a weapon and was not wearing any kind of mask or disguise.
A.E.’s father got up when he heard the screaming. Through a window, he thought he saw the shadow of a person in the yard. After A.E. said what happened, he looked outside again and saw someone jumping over the fence that separated his yard from Ramirez’s yard.
A.E. did not call the police right away because she was frightened. She called them later that morning after speaking by telephone with her sister, who urged her to do it.
Ramirez’s defense at trial was that he was intoxicated from using PCP, had become disoriented, accidentally entered the wrong house, and believed he was getting in bed with his wife. His counsel argued that, because of this, Ramirez lacked the intent necessary for the sex offenses or the burglary. Ramirez did not testify.
Ramirez’s stepson, Ralph Luna, testified for the defense. He was staying at Ramirez’s house on the night of the incident and got up at about 4:30 a.m. to prepare for a trip to Southern California. As Luna was about to take a shower, he saw Ramirez walking around the house and then heading toward Luna’s room:
“A Yeah. I asked him what he was doing. And he just-he’s like, ‘What?’ And I, I go, ‘What are you doing?’ He’s, ‘Ah, nothing.’ And he just turned around and went towards his room.
“Q Okay. Did you notice anything unusual about his appearance or his demeanor at that time?
“A I did notice something.
“Q What did you notice?
“A He looked kind of like lost. Kind of spaced out a little bit.
“Q Why do you say that?
“A It was something that I recognized from a long time ago. I recognized the look of like something was wrong with him. It looked like something was wrong with him.
“Q Okay. Did you get a look at him up close?
“A Just for, just for a minute.
“Q What kind
“A I was able-I looked at his face.
“Q What kind of look did he have on his face?
“A Like I said, it was like a lost look like.
“Q Okay.
“A Didn’t just-I don’t know. It’s kind of hard to describe. Just lost
“Q Okay.
“A -is the best way to describe it.
“Q Have you ever seen him look that way before?
“A No.
“Q Okay. Did you notice anything unusual about the way he walked?
“A Yeah. It, it, it’s like kind of like slow motion almost. [¶] … [¶]
“Q Did you notice anything unusual about his voice or the way he talked at that point?
“A It was not normal.
“Q How so?
“A It just wasn’t a normal like the way I’m talking now. It was more slow.”
Luna went on to testify that, when he was younger, he had sometimes seen his mother high on PCP and that her behavior and appearance then were similar to that of Ramirez. He figured Ramirez must have been high on PCP that morning. Luna had never seen Ramirez look that way before, but knew Ramirez had used drugs in the past, before Ramirez met Luna’s mother.
An expert for the defense, Stephen Pittel, testified about typical effects of PCP intoxication. Some users experience PCP as a stimulant, others as a depressant, and still others as a hallucinogenic drug. The most common effect, at a relatively low dose, is called a “confusional state.” In this state, the user manifests a vacant or blank stare and his eyes wander both horizontally and vertically. The user also feels disoriented, “sort of like an out of body experience or some sort of dissociative kind of experience.” Other symptoms of PCP intoxication are incoherent mumbling, increased blood pressure, muscle rigidity, and insensitivity to pain. PCP users are sometimes thought to have superhuman strength, but this is really a manifestation of their insensitivity to pain. Users can be hard to subdue, but that is because they can fight back without feeling pain, not because they are stronger than usual. Users sometimes exhibit bizarre behavior. Pittel mentioned some examples of homicidal acts and self-mutilation. He said it is difficult to become sexually aroused while under the influence of PCP because “you’re not getting the feedback from the appropriate receptors,” but it is possible for a man using PCP to have an erection. Typically, the confusional state of PCP intoxication lasts four to six hours. A police expert gave testimony consistent with Pittel’s on the symptoms of PCP intoxication.
Two of the officers who contacted Ramirez at about noon following the incident testified that he showed no signs of PCP intoxication. Both of these officers believed a person under the influence of PCP would have superhuman strength, among other symptoms. A sergeant at the jail testified that Ramirez coherently filled out a questionnaire at the time of booking. The form did not show what time it was filled out, and the sergeant stated that it could have happened several hours after Ramirez was brought to the jail. On surrebuttal, Pittel, the defense expert, testified that Ramirez’s state at noon or later-eight hours or more after the incident-would not be any indication of whether he was under the influence of PCP when the contact with A.E. occurred.
The jury found Ramirez guilty as charged. The court found the prior conviction allegations true. It imposed a sentence of 13 years, consisting of the four-year middle term for assault with intent to commit rape, doubled for the prior strike, plus five years pursuant to section 667, subdivision (a)(1). It imposed and stayed a sentence, pursuant to section 654, for burglary. For the three misdemeanor convictions, sexual battery and two counts of resisting arrest, the court imposed concurrent sentences of 180 days.
What the court actually said at the hearing for each misdemeanor was that Ramirez was sentenced to 180 days but would receive “[c]redit for time served.” No time was deducted from Ramirez’s presentence credits, however, so we interpret these as three, 180-day terms to run concurrently with the sentence on the conviction for assault with intent to commit rape.
DISCUSSION
I. Sufficient evidence of burglary and assault with intent to commit rape
Ramirez argues that the guilty verdicts on the charges of burglary and assault with intent to commit rape were not supported by sufficient evidence. Ramirez’s contention with respect to both offenses is that the evidence did not show an intent to rape a sleeping victim. He argues the intent on which the burglary charge was based must be the same as the intent necessary to establish the felony he would commit once inside the house, so insufficient evidence of intent to rape a sleeping victim would be fatal to both convictions.
When the sufficiency of the evidence is challenged on appeal, we “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Section 220, subdivision (a), establishes the offense of “assault[ing] another with intent to commit mayhem, rape, sodomy, oral copulation, or any violation of Section 264.1, 288, or 289.…” As defined by statute, rape includes sexual intercourse “[w]here a person is at the time unconscious of the nature of the act, and this is known to the accused.” (§ 261, subd. (a)(4).) A victim is unconscious of the nature of the act if she is “unconscious or asleep.” (§ 261, subd. (a)(4)(A).) The People’s theory at trial was that Ramirez violated section 220 by assaulting A.E. with the intent to have sexual intercourse with her as she slept. At the request of the prosecution, the jury was instructed on the definition of rape pursuant only to Judicial Council of California, Criminal Jury Instructions (2007-2008) CALCRIM No. 1003, which defines rape of an unconscious or sleeping woman. As the parties agree, the substantial-evidence test is satisfied only if the record contains substantial evidence in support of the theory of the case presented via the jury instructions, not some other theory under which the charged offense could have been, but was not, presented. (See People v. Kunkin (1973) 9 Cal.3d 245, 251 [“We, of course, cannot look to legal theories not before the jury in seeking to reconcile a jury verdict with the substantial evidence rule”].)
The prosecution presented substantial evidence that Ramirez assaulted A.E. with the intent to rape her as she slept. Testimony established that Ramirez entered A.E.’s house without permission in the middle of the night, went to her bedroom where she lay sleeping, took off his shirt, got in her bed, and pressed his erect penis against her body. When she screamed, he got up and ran away. Earlier, Ramirez had learned from A.E. that her husband was away. From all this, the jury could infer that he intended to rape her. The testimony about PCP was contrary evidence about Ramirez’s intent. The jury could reasonably reject the contrary evidence, however, and find that Ramirez’s intent was to rape A.E. while she was sleeping.
Ramirez contends that, to have the intent necessary for rape based on a sleeping-victim theory, the perpetrator must have the “intent to have sexual intercourse [with] the sleeping woman while she slept, without awakening her.” He says there was no showing that this was what he intended. Further, he says, it would be irrational to have that intent, since no reasonable person would think the victim would not wake up; and there was no evidence from which an irrational intent on his part could be inferred.
This argument is mistaken for several reasons. First, there is no support in authority or logic for the view that one cannot be guilty of rape of a sleeping victim if the victim wakes up during the crime. If intercourse begins, however momentarily, while the victim is asleep, then rape of a sleeping victim has been accomplished, for “[a]ny sexual penetration, however slight, is sufficient to complete the crime.” (§ 263.) Ramirez might have had an additional intent to continue raping A.E. by force if she woke up, but that is immaterial. The prosecution was free to choose the charge it thought best supported by the evidence.
Second, there was a basis for imputing unreasonable expectations to Ramirez since there was evidence that he was intoxicated. The jury might reasonably have believed he was intoxicated enough to undertake a crime in which he would likely be caught, while at the same time rejecting his defense that he was so intoxicated he did not know which house he was in.
Third, regardless of the wisdom of trying to rape a sleeping victim, the question of whether Ramirez was foolish enough to try it was a question for the jury to answer by weighing the evidence. It is not a question for us to answer by reweighing the evidence on appeal. We can reverse a conviction for insufficient evidence only if it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755, italics added.)
Fourth, the Legislature went out of its way to define rape of an unconscious victim as sexual intercourse with a victim who is “unconscious or asleep” (§ 262, subd. (a)(4)(A), italics added), indicating that it thought this was something an offender could intend to do. Ramirez contends that “[u]nless the intruder had reason to believe that the woman was comatose or an unusually deep sleeper, or grossly intoxicated, no reasonable intruder would think it possible to commit that sort of rape.” We do not know whether the Legislature assumed rapists of sleeping victims would be “reasonable.” We do know the Legislature believed it was “possible to commit that sort of rape.” Here there was substantial evidence that Ramirez intended to do what the Legislature described.
II. The logical possibility of assault with intent to rape an unconscious victim
Ramirez argues that, as a matter of definition or logic, there can be no such offense as assault with the intent to rape an unconscious victim, because assault requires force, while raping an unconscious victim does not. He says:
“The People’s theory was legally untenable. The crime of assault with intent to commit rape requires an assault done with the intent to commit a forcible rape. Assault to commit rape requires an intent to use whatever force is required to complete the sexual act against the will of the victim. One cannot commit an assault with the intent to commit an unforced rape of an unconscious victim because that theory of rape does not involve the use of force to overcome the victim’s will.”
He also says “[t]he entire premise of assault to commit rape becomes senseless and unworkable when an unforced rape [i.e., a rape of an unconscious or sleeping victim] is intended” because an assault, by definition, requires force, while having sexual intercourse with a sleeping person does not.
Ramirez’s argument is based on a mistaken notion of what is an assault. An assault does not require any more force than is necessary to rape a sleeping victim. In People v. Williams (2001) 26 Cal.4th 779, 788, the Supreme Court explained that “a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct.” A battery, in turn, is defined as any harmful or offensive touching. (People v. Pinholster (1992) 1 Cal.4th 865, 961.) To be guilty of assault, then, a defendant need not intend to use more force than is necessary to cause an offensive touching. An assault with intent to commit rape of a sleeping or unconscious victim is an act that would naturally and probably result in a harmful or offensive touching of the victim where the victim is sleeping or unconscious and the perpetrator intends to have sexual intercourse with her. There is nothing “senseless or unworkable” about this definition.
The cases Ramirez relies on do not support his claim. They are cases of assault with intent to commit forcible rape, in which the court was responding to the defendant’s contention that he assaulted the victim with too little force to support an inference that he intended to rape her. In People v. Meichtry (1951) 37 Cal.2d 385, for instance, the defendant argued that the evidence was insufficient to show that he intended to use as much force as was necessary to complete the rape of a victim who was awake and resisting, so he should have been convicted of simple assault at most. (Id. at p. 388.) The Supreme Court held that there was sufficient evidence to support the jury’s conclusion that the defendant intended to use enough force to overcome the victim. (Id. at pp. 388-389.)
Ramirez, by contrast, argues that he could not have committed an assault with the intent to rape A.E. while she was asleep because an assault by definition involves too much force relative to the amount necessary for that type of rape. An assault does not, however, need to involve more force than a mere offensive touching. Even if it did, there is no logical reason why an assault with the intent to commit some further offense cannot exist if the further offense requires less force than the assault.
Ramirez says cases like Meichtry “show that the crime of assault to commit rape contemplates an assault to commit a forcible rape, and that evidence of an intent to commit a forcible rape is a necessary element of the offense.” We disagree with Ramirez’s characterization. To the contrary, the cases show that the crime of assault to commit a forcible rape contemplates a forcible rape, but they do not show that an assault to commit a rape of a sleeping victim contemplates a forcible rape.
Ramirez also advances the theory that “[t]here must be a facilitative nexus between the assault and the rape. The assault must be done with the intent to bring about the intended rape. The assault is the means by which the assailant seeks to overcome the victim’s will to accomplish the rape.” He says this shows there can be no such thing as an assault with intent to rape a sleeping victim. Assuming this is a correct description of assault with intent to commit a forcible rape, however, nothing we have said is inconsistent with an analogous description of an assault with intent to rape a sleeping victim. The offensive touching that forms the basis of the assault is the means by which the assailant attempts to accomplish sexual intercourse with the sleeping victim. Consequently, there is a “facilitative nexus between the assault and the rape.”
In the recent case People v. Leal (2009) 180 Cal.App.4th 782, which the People brought to our attention in a letter filed on January 12, 2010, the Court of Appeal rejected an argument similar to that of Ramirez. Leal broke into a stranger’s house through a window, found the victim sleeping in her bed, and penetrated her vagina with his finger. She woke up. Leal then lifted her up and penetrated her vagina with his penis. The victim had drunk a large amount of alcohol before going to bed and did not realize until morning that the man who had sex with her had not been her husband, who, also having had a lot to drink, was asleep beside her during the incident. Years later, a database matched a DNA profile prepared from evidence found on the victim with Leal’s DNA profile. He was convicted of several offenses, including assault with intent to commit rape. (Id. at pp. 785-786.) The Court of Appeal rejected his argument that there was insufficient evidence of his intent to forcibly rape the victim because he must have realized that, if he had used much force, the husband would have woken up. The court held that the assault element of assault with intent to commit rape required no more “force” than an offensive touching. (Id. at pp. 790-791.)
We agree with the analysis in Leal. Since an offensive touching is all that is required to establish the “force” element of the assault, there is no incompatibility between the definition of assault and the definition of rape of an unconscious or sleeping victim.
III. CALCRIM No. 890
Ramirez contends that CALCRIM No. 890, which was read to the jury, is erroneous because it does not state that an assault with intent to commit rape can only occur if the perpetrator intends to commit a forcible rape. He further argues that, because the jury was instructed on rape of an unconscious victim pursuant to CALCRIM No. 1003, and not on forcible rape pursuant to CALCRIM No. 1000, it was permitted to find an assault with intent to commit rape without finding that he used or intended to use enough force to commit a forcible rape. In other words, his argument is that the instructions contradicted his theory that assault with intent to commit rape of a sleeping victim is a logically impossible offense.
Our comments in the previous section explain why this argument is incorrect. An assault is an act done with knowledge that it will naturally and probably result in a battery. A battery is a harmful or offensive touching. A perpetrator who does such an act with the intent of having sexual intercourse with a sleeping or unconscious victim is guilty of assault with intent to rape a sleeping or unconscious victim. CALCRIM No. 890 expresses these requirements. As given in this case, the instruction stated:
“The defendant is charged in Count 1 with assault with intent to commit rape.…
“To prove that the defendant is guilty of this crime, the People must prove that:
“One, the defendant did an act that by its nature … would directly and probably result in the application of force to a person.
“Two, the defendant did the act willfully.
“Three, when the defendant acted he was aware of facts that would lead a reasonable person to realize that his act[] by its nature would directly and probably result in the application of force to someone.
“Four, when the defendant acted he had the present ability to apply force to a person.
“And five, when the defendant acted, he intended to commit rape.
“Someone commits an act willfully when he or she does it willingly or on purpose.
“The term application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way.
“Making contact with another person including through his or her clothing is enough. The touching does not have to cause pain or injury of any kind. The touching can be done indirectly by causing an object or someone else to touch the other person.
“The People are not required to prove that the defendant actually touched someone.… No one needs to actually have been injured by the defendant’s act, but if someone is injured, you may consider that fact along with other evidence in deciding whether the defendant committed an assault and, if so, what kind of assault it was.
“To decide whether the defendant intended to commit, commit rape, please refer to the instruction which defines that crime which is this.”
The court next instructed the jury in accordance with CALCRIM No. 1003, which defines rape of an unconscious victim. There was no error.
IV. Prosecutorial misconduct
Ramirez claims the prosecutor committed prejudicial misconduct by misstating the evidence during her closing argument. Misstatement of evidence by a prosecutor is prosecutorial misconduct. (People v. Davis (2005) 36 Cal.4th 510, 550; People v. Hill (1998) 17 Cal.4th 800, 827-828.) As we will explain, there was no prejudicial error, for Ramirez has not shown a reasonable probability of a more favorable verdict absent the challenged comments.
The comments Ramirez challenges suggested that he took his penis out of his pants before pressing it against A.E. and that he not only pressed his body against hers, but pulled her closer to him. After discussing the elements of assault with intent to commit rape, the prosecutor said:
“[Prosecutor]: [¶] … [¶] [T]he facts that fit these elements are in Count 1 you heard the victim [A.E.] testify. She testified that the defendant was moving his hands over her body and he took his erect penis and rubbed it up and down her buttocks area. While doing this, he was also bringing her closer to his body.
“[Defense counsel]: Objection, misstates the testimony.
“THE COURT: Ladies and gentlemen, you heard the testimony and it will be up for you to determine whether the facts actually are. Go ahead.
“[Prosecutor]: The defendant also voluntarily got inside her bed. [A.E.] testified that she felt him moving his hands around her body and pulling her closer to his erect penis. The defendant also placed himself behind [A.E.] in the bed. She was asleep and the defendant had the present ability to apply force and did so. The defendant … intended to rape her so the People have met the elements for Count 1.
“The defendant is charged in Count 2 with burglary. Now in order to prove a burglary the defendant enters a dwelling. When he entered the dwelling he intended to commit rape.
“Now this defendant entered [A.E.’s] house and he intended to go in there and rape her. He went in. Removed his shirt. Got in her bed. Got right behind her. Starts caressing her back. Pulls out his erect penis and starts moving it up and down her buttocks area. He had the intent to rape, but, but for the fact of her waking up and screaming that was his intent. That was his intent when he walked into that house.”
Later, the prosecutor repeated that Ramirez was “pulling her closer” and described how he “[t]akes out his erect penis and again starts rubbing it up against her simulating intercourse.…”
A.E.’s actual testimony was that she felt Ramirez pressing against her from behind, “grabbing” her, “trying to get closer to” her, and rubbing against her buttocks with his erect penis. She did not say he pulled her closer and did not say whether or not his penis was out of his pants. She did not see his penis.
The parties dispute whether defense counsel’s objection was sufficient to preserve the issue for appeal. We will assume it was adequate.
Our Supreme Court describes the federal and state standards for prosecutorial misconduct in People v. Samayoa (1997) 15 Cal.4th 795, 841:
“‘“A prosecutor’s … intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.] … Additionally, when the claim focuses upon comments made by the prosecutor before the 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.”
In this case, we conclude there is no violation of the federal Constitution. Assuming the challenged comments represented A.E.’s testimony inaccurately, they still did not comprise a pattern of conduct that resulted in a denial of due process. If there was a violation, it was a violation of the state standard. (See People v. Bolton (1979) 23 Cal.3d 208, 214, fn. 4 [“Courts of this state have generally assumed that prosecutorial misconduct is error of less than constitutional magnitude”].) This means we must determine whether, absent the error, there is a reasonable likelihood that Ramirez would have obtained a more favorable verdict. (People v. Garcia (1984) 160 Cal.App.3d 82, 93, fn. 12 [prejudice arising from claimed prosecutorial misconduct in violation of state law judged under reasonable-probability-of-different-result standard].)
Ramirez contends that the challenged comments improperly strengthened the prosecution’s claims that he used force against A.E. and that he intended to rape her. In our view, however, it is not reasonably likely that the jury would have returned a more favorable verdict if the prosecutor had never made the challenged comments. As we have said, the jury did not need to find any more “force” than an offensive touching, and the evidence that Ramirez got in A.E.’s bed and touched her sexually as she slept was uncontradicted. The question of whether he pulled her closer or only moved closer to her has little effect on this element. If his penis was outside rather than inside his pants, that might have strengthened the case for an intent to commit rape, but the court responded to defense counsel’s objection by telling the jury it must judge the evidence for itself. There is no reason to think the jury did not consider A.E.’s actual testimony, which did not say anything one way or the other on this point, instead of relying on the prosecutor’s assumption that Ramirez’s penis was exposed.
Ramirez attempts to bolster his claim of prejudice by saying that if it were not for the prosecutor’s challenged comments, the jury would have been likely to find the evidence “more consistent with the theory that [he] intended to seduce rather than to rape.…” In fact, Ramirez claims in several places in his briefs that the prosecution’s case really made out no more than an attempt to seduce A.E. This claim lacks any merit. Ramirez concededly entered A.E.’s house uninvited in the middle of the night, got in bed with her where she was sleeping with her two-year-old daughter, and began touching her in a sexual manner while she was still asleep. These are not features of a seduction. Further, the theory Ramirez’s trial counsel proposed to the jury contradicted this seduction theory. Counsel said Ramirez mistakenly entered the wrong house because he was disoriented by PCP intoxication. There is no likelihood that the jury would have generated the seduction theory for itself, and then believed it, if the prosecutor had not made the challenged comments.
V. Attempted rape as a lesser-included offense
Ramirez contends that the court erred when it did not, on its own motion, give the jury an instruction on attempted rape as a lesser offense necessarily included in assault with intent to commit rape. We conclude that the instruction was not required.
The parties agree that attempted rape is a lesser offense necessarily included in assault with intent to commit rape, since the only difference between the two offenses is that assault with intent to commit rape requires an assault, while attempted rape does not. (People v. Ghent (1987) 43 Cal.3d 739, 757.) A trial court must give an instruction on a lesser-included offense sua sponte if the evidence warrants the instruction. (People v. Cook (2006) 39 Cal.4th 566, 596.) The evidence warrants the instruction if there is substantial evidence that, if accepted, would absolve the defendant of the greater offense, but not the lesser. (People v. Waidla (2000) 22 Cal.4th 690, 733.) We review de novo the court’s instructions on lesser-included offenses. (People v. Cook, supra, at p. 596.)
The evidence in this case did not warrant an instruction on attempted rape. To find attempted rape instead of assault with intent to commit rape, the jury would have had to find that there was no assault. There was an assault if Ramirez willfully did an act that a reasonable person would realize will naturally and probably result in an offensive touching. It was undisputed that Ramirez entered A.E.’s house, bedroom, and bed in the middle of the night and pressed his erect penis (clothed or unclothed) against her buttocks. There was no evidence that he did not perform these acts. In his closing argument, defense counsel said, “There’s no doubt he did what A.E. said he did.” The jury could not reasonably have found all the elements of assault with intent to commit rape except for the assault. As a result, the instruction was not required.
Ramirez says the attempted rape instruction was required because assault with intent to commit rape requires an assault with enough force to carry out a forcible rape, and the jury reasonably could have found that Ramirez did not use that amount of force. We have already explained why that amount of force is not necessary to prove an assault with intent to rape a sleeping victim.
VI. Flight instruction
The court gave the jury a pattern instruction stating that it could infer consciousness of guilt if the defendant fled the scene. Ramirez contends the instruction was not warranted by the evidence and violated a constitutional rule on permissive evidentiary presumptions.
An instruction allowing the jury to draw an inference is proper only if the record contains evidence which, if believed, supports the inference. (People v. Hart (1999) 20 Cal.4th 546, 620.) Though Ramirez did not object to the instruction, we will assume that his failure to do so did not waive the issue. (See § 1259; People v. Smithey (1999) 20 Cal.4th 936, 982, fn. 12 [defendant did not waive flight-instruction issue by failing to object at trial].)
The court instructed the jury in accordance with CALCRIM No. 372:
“If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.”
This instruction gives effect to section 1127c, which provides:
“In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows:
“The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.
“No further instruction on the subject of flight need be given.”
A.E. testified that, after she turned around, saw Ramirez, and screamed, Ramirez jumped up, stared a moment, and ran out of the room. A.E.’s father testified that, moments after the scream, he saw a man jumping over the fence between the two yards. From this evidence, the jury could reasonably find that Ramirez fled immediately after the crime. The instruction was proper.
Ramirez argues that the evidence showed not his flight but his compliance with A.E.’s demand that he leave. He “did not run away like a guilty person would do,” he contends. Rather, he “left the premises after the homeowner demanded that he leave. He was legally required to obey the homeowner’s demand. His compliance with the demand to leave does not support a rational inference of guilt.” The jury was not, however, required to adopt Ramirez’s favored interpretation of the evidence. It could reasonably conclude that he ran away because A.E. screamed for help after he committed a crime and he did not want to be caught by anyone responding to her scream. The fact that Ramirez’s appellate counsel articulates an innocent explanation does not show that the jury was barred from inferring consciousness of guilt, especially since the proposed innocent explanation is weak and less plausible than the guilty one. The uncontradicted testimony was that Ramirez ran out of the bedroom, ran out of the house, and jumped over the fence. This behavior is much more compatible with consciousness of guilt than with innocent compliance to a request to leave.
Ramirez also says he was merely returning to his own home and that this does not show flight. He relies on People v. Pensinger (1991) 52 Cal.3d 1210. In that case, however, the Supreme Court merely stated that “[o]f course, evidence that the accused left the scene and went home is not evidence of flight that necessarily supports an inference of consciousness of guilt.” (Id. at p. 1244.) Leaving the scene and going home does not necessarily support an inference of consciousness of guilt. The manner in which the defendant goes home matters: he can merely go home, or he can flee home. Here, Ramirez ran out of A.E.’s room, ran out of the house he had entered without permission, and jumped over the fence to return home. This supported an inference of consciousness of guilt.
Finally, Ramirez contends the instruction contravened the constitutional holding of County Court of Ulster County, New York v. Allen (1979) 442 U.S. 140 (Allen). Allen concerned a jury instruction given in state court in New York under which the jury was permitted, but not required, to infer from the presence of a gun in a car that all the occupants of the car were in possession of the gun. (Id. at pp. 142, 145, 160-161.) Noting that the charge as a whole “plainly directed the jury to consider all the circumstances tending to support or contradict the inference,” the Supreme Court rejected the claim that the instruction denied due process under the circumstances of the case, since there were two large handguns in plain view in a 16-year-old girl’s open purse and the other occupants of the car were three adult males. (Id. at pp. 162, 163-164, 167.) It held that an instruction stating a permissive inference does not lower the prosecution’s burden of proof unless the facts of the case are such that the inference would be irrational:
“Because [a] permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the ‘beyond a reasonable doubt’ standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference.” (Allen, supra, 442 U.S. at p. 157.)
It was rational to conclude that the men stuck their guns in the purse in anticipation of a search. The California Supreme Court has quoted and applied this standard. (People v. Pensinger, supra, 52 Cal.3d at pp. 1243-1244; People v. Smithey, supra, 20 Cal.4th at p. 976.)
There was a rational way for the jury to make the connection in this case. Due to the fact that Ramirez ran out of the house and jumped the fence when A.E. screamed, it could reasonably be inferred that he knew he was doing something wrong.
In Allen, the Supreme Court relied on another standard, arguably in tension with the standard requiring a rational way to make the connection. This was that “‘a criminal statutory presumption must be regarded as “‘irrational’” or “‘arbitrary,’” and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.’” (Allen, supra, 442 U.S. at p. 166, fn. 28.) Contrary to Ramirez’s argument, the instruction was proper under this standard also. The “presumed,” i.e., inferred, fact is Ramirez’s consciousness of guilt. The proved fact on which it depends is Ramirez’s running away. Under the circumstances, it was more likely that he ran away because he knew he had done something wrong than that he was innocently leaving because A.E. had asked him to do so.
VII. Lawful arrest
To prove Ramirez guilty of resisting arrest, the People were required first to show that his arrest was lawful. The court gave jury instructions on how to determine whether the arrest was lawful. The parties agree, however, that the instructions given on this point were inappropriate in light of the evidence. If Ramirez’s arrest was lawful, it was because the officers entered his house by consent and possessed authority delegated by the victim to arrest him for a misdemeanor not committed in their presence. The jury instructions, however, said the jury could find the arrest lawful if Ramirez committed a misdemeanor in the officers’ presence and there were exigent circumstances supporting their warrantless entry into his house. The parties agree that Ramirez did not commit the offenses in the officers’ presence and that no evidence of exigent circumstances was presented.
The People apparently concede this and do not argue that the officers had any intention of arresting Ramirez for a felony. The first pleading filed in the case was a misdemeanor complaint.
Ramirez contends that this error in the instructions means the two misdemeanor convictions for resisting must be reversed because there was insufficient evidence to establish those offenses under the theory upon which they were presented to the jury. He argues a harmless-error analysis is inapplicable. The People concede that the evidence did not show a lawful arrest under those instructions, but claim the error is harmless under the beyond-a-reasonable-doubt standard because the jury would have found a lawful arrest if it had been given the right instructions.
In light of the undisputed facts, we agree with the parties that the jury could not rationally find a lawful arrest under the instructions given. It found exigent circumstances and a misdemeanor committed in the officers’ presence even though it heard no evidence of those things.
In this respect, this case is similar to People v. Kunkin, supra, 9 Cal.3d 245, in which the jury found the defendants guilty of receiving stolen property after being instructed that it needed to find the property had been taken via grand theft by larceny. The evidence might have been sufficient to prove the property was taken by embezzlement, but the Supreme Court declined to consider that, because the jury was not instructed on embezzlement. (Id. at pp. 250-251.) The court then concluded that the evidence was sufficient to uphold the finding of theft by larceny. (Id. at pp. 252-253.) Likewise, in People v. Smith (1984) 155 Cal.App.3d 1103, 1145, disapproved on other grounds by Baluyut v. Superior Court (1996) 12 Cal.4th 826, the Court of Appeal stated that “[i]t would deprive the defendant of his right to a jury trial if an appellate court could find a theft on a theory not presented to the jury.…” Ramirez says his resisting convictions must be reversed under these cases and harmless-error review does not apply.
We agree with the People, however, that this case is controlled by People v. Flood (1998) 18 Cal.4th 470, in which the defendant was convicted of evading a pursuing police car and causing serious injury. Instead of instructing the jury to determine whether the pursuing car was driven by a police officer, the trial court told the jury that was what had happened. (Id. at p. 477.) After reviewing the case law, our Supreme Court considered whether this error was subject to analysis for harmlessness. It concluded that harmless-error review under the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, was applicable:
“The foregoing United States Supreme Court decisions lead us to conclude that an instructional error that improperly describes or omits an element of an offense, or that raises an improper presumption or directs a finding or a partial verdict upon a particular element, generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the federal Constitution. Indeed, the high court never has held that an erroneous instruction affecting a single element of a crime will amount to structural error [citations], and the court’s most recent decisions suggest that such an error, like the vast majority of other constitutional errors, falls within the broad category of trial error subject to Chapman review.” (People v. Flood, supra, 18 Cal.4th at pp. 502-503.)
The court concluded that the erroneous police-officer instruction was harmless beyond a reasonable doubt because actions taken by defense counsel at trial were tantamount to a concession that the driver was a police officer. (Id. at pp. 504-505.) Similarly, in Neder v. United States (1999) 527 U.S. 1, the court held that an erroneous instruction removing an element of an offense from the jury’s consideration was harmless beyond a reasonable doubt. (Id. at pp. 6, 9, 16-17.)
In effect, the instructions the court gave on lawful arrest in this case amounted to the omission of instructions on the element of the resisting-arrest charge. The court did instruct on that element, but because the instructions it gave called for findings of facts that undisputedly did not exist, while failing to call for findings of suitable facts that might well have existed, its instructions were as good as none at all. Harmless error review under the Chapman standard applies. The question is whether there is a reasonable doubt that the jury would have found the element if properly instructed.
Under this standard, the error was not harmless. Proper instructions would have directed the jury to determine whether the officers had adequate consent to enter Ramirez’s house and whether A.E. properly delegated her authority to make a citizen’s arrest. On at least the first point, the evidence was far from overwhelming. The only evidence of consent to enter was testimony by one officer that, when he and another officer returned to Ramirez’s house for the arrest, someone let them in and they went to the living room, where they found Ramirez:
“A We went back to the defendant’s residence. Knocked on the door and we were allowed back in the residence.
“Q Did you make contact with the defendant?
“A Yes.
“Q Do you recall where he was located?
“A In the living room sitting on a couch I believe or a chair.”
This appears to mean that someone who was not Ramirez opened the door to let the officers in. This would not necessarily have been someone authorized to allow anyone in the house. It is possible that by “allowed back in,” the officer simply meant that no one stopped them from entering. It was inferable and perhaps likely that Ramirez’s wife let the officers in, since it was she who let them in the first time they contacted Ramirez a short time before. We cannot determine beyond a reasonable doubt, however, that the jury would have reached this conclusion.
The evidence on the second point, i.e., whether A.E. delegated authority to make a citizen’s arrest, was stronger. “[T]he delegation of the physical act of arrest need not be express, but may be implied from the citizen’s act of summoning an officer, reporting the offense, and pointing out the suspect.” (Padilla v. Meese (1986) 184 Cal.App.3d 1022, 1030-1031; see also People v. Johnson (1981) 123 Cal.App.3d 495, 499.) It is undisputed that A.E. summoned officers, reported the offense, and told them that Ramirez did it. Also, an officer testified that A.E. filled out a citizen’s arrest form, though the form was not introduced into evidence and no one testified about what, exactly, the form purported to authorize. Even assuming there is no reasonable doubt about what the jury would have found on this point, however, the weakness of the evidence on consent to enter bars a determination of harmless error.
We disagree with Ramirez’s claim that, even under appropriate instructions, the evidence would have been insufficient to support the convictions. As we have said, the evidence was not so strong that the jury was bound to make the necessary findings under the correct instructions. At the same time, however, we do not believe the evidence would fail the substantial-evidence test under the right instructions.
We also disagree with Ramirez’s contention that a new trial on the resisting-arrest charges would violate the constitutional bar against double jeopardy. A reversal for insufficient evidence bars a retrial under double-jeopardy principles because the appellate court’s determination that the evidence is insufficient is equivalent to a trial court’s directed verdict of acquittal on grounds of insufficient evidence. (Burks v. United States (1978) 437 U.S. 1, 10-11, 16 [“The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding”]; Greene v. Massey (1978) 437 U.S. 19, 24; People v. Pierce (1979) 24 Cal.3d 199, 209-210.) Here, however, we do not conclude that the evidence was insufficient to prove the offense, but that an error in the instructions prevented an element of the offense from being presented to the jury for determination.
In his reply brief, Ramirez argues there was no instructional error-only a lack of sufficient evidence-because the instructions, though not warranted by the evidence, contained no errors of law. He says this was “a tactical error in the exercise of prosecutorial discretion,” but not an error in the jury instructions. This claim contradicts Ramirez’s own argument that the convictions must “be reversed for instructional error because the jury was not properly instructed on the criteria necessary to establish a lawful entry and arrest.” More importantly, it is instructional error to give instructions that are not warranted by the evidence. “Giving an instruction that is correct as to the law but irrelevant or inapplicable is error.” (People v. Cross (2008) 45 Cal.4th 58, 67.) Omitting the instructions that are relevant is also error, for it is the court’s responsibility to instruct, with or without a request, on the principles relevant to the issues raised by the evidence. (People v. Michaels (2002) 28 Cal.4th 486, 529-530.)
This type of error is usually harmless (People v. Cross, supra, 45 Cal.4th at p. 67), but was not so here, since the court also omitted the relevant instructions, forcing the jury to choose between convicting based on evidence that did not fit the instructions and acquitting, though it may have found the prosecution’s case compelling.
In summary, the instructions on lawful arrest were erroneous, the jury could not properly find a lawful arrest under those instructions, and the error was not harmless beyond a reasonable doubt. This holding does not bar a retrial under double-jeopardy principles because it is based on instructional error, and the evidence was not insufficient to support a conviction under correct instructions.
VIII. Reasonable-doubt instruction
Ramirez claims CALCRIM No. 220, with which the jury was instructed, does not correctly define proof beyond a reasonable doubt. We disagree.
The relevant part of the instruction, as given by the court, was:
“A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.
“Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant is guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
In a conference, Ramirez’s trial counsel objected to this instruction, citing Stoltie v. Tilton (9th Cir. 2008) 538 F.3d 1296, in which the Ninth Circuit adopted the opinion of the district court, Stoltie v. California (C.D.Cal. 2007) 501 F.Supp.2d 1252. Reviewing various reasonable-doubt instructions, including CALCRIM No. 220, the district court concluded in dictum that the definition of proof beyond a reasonable doubt was “‘proof that leaves you with an abiding conviction that the charge is true,’” although a “step in the right direction” compared with older instructions, is not ideal because it “ still fall[s] short of conveying to jurors that they must be subjectively certain of the defendant’s guilt in order to convict.” (Stoltie v. California, supra, at p. 1261.) The court believed an instruction requiring “subjective certainty” would best comport with this statement of the Supreme Court in In re Winship (1970) 397 U.S. 358, 364:
“‘It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. [¶] 397 U.S. at 364 … (emphasis added).’” (Stoltie v. California, supra, 501 F.Supp.2d at p. 1259.)
The Ninth Circuit (see Stoltie v. Tilton, supra, 538 F.3d at p. 1296) did not adopt a portion of the district court’s opinion entitled “Need for Reform,” which says the abiding-conviction language of CALCRIM No. 220 is “antiquated,” “likely leaves jurors confused,” and should be replaced by “[c]olloquial words that describe subjective certainty.…” (Stoltie v. California, supra, 501 F.Supp.2d at pp. 1261, 1262.) Ramirez relies on Stoltie again now.
As Ramirez acknowledges, the Court of Appeal in People v. Zepeda (2008) 167 Cal.App.4th 25 (Zepeda) rejected an analysis similar to that of the district court in Stoltie. The court noted that in Jackson v. Virginia (1979) 443 U.S. 307, 315, the United States Supreme Court held that proof beyond a reasonable doubt requires “‘a subjective state of near certitude of the guilt of the accused.’” (Zepeda, supra, at p. 28.) Zepeda argued that CALCRIM No. 220’s requirement of an abiding conviction tells the jury its belief on the defendant’s guilt must be long lasting, but does not tell it how certain the belief must be; further, it does not tell the jury it must have a subjective feeling of certainty, as opposed to a mere objective comprehension of it. (Zepeda, supra, at p. 29.) The Court of Appeal held, however, that there is no constitutional requirement that a reasonable-doubt instruction “define any amount of subjective certitude required to make a finding of guilt.” (Id. at p. 30) It also held that “abiding conviction” serves as well as other phrases to tell the jury its belief in the defendant’s guilt must be deep as well as lasting. It cited a long line of cases approving the same phrase in CALJIC No. 2.90. (Zepeda, supra, at pp. 30-31.)
We agree with Zepeda and disagree with Stoltie. The district court in Stoltie never explained what it meant by subjective certainty or why the requirement of an abiding conviction fails to convey that meaning. It stated that instructions should use colloquial words that describe subjective certainty, but it did not say which colloquial words might serve the purpose. There is much thought-provoking material in the district court’s opinion in Stoltie. For example, there is a historical discussion suggesting that proof beyond a reasonable doubt originally meant a more airtight kind of proof than we are accustomed to considering, and that modern jury instructions represent a decay of the older attitude (Stoltie v. California, supra, 501 F.Supp.2d at pp. 1258-1259). We are not, however, persuaded that the language of CALCRIM No. 220 is inferior to other available language as a means of telling the jury the meaning of the beyond-a-reasonable-doubt standard.
DISPOSITION
The convictions and sentences on counts three and four for resisting arrest (§ 148, subd. (a)(1)) are reversed. The judgment is affirmed in all other respects.
WE CONCUR: Cornell, J., Poochigian, J.