Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F03734
NICHOLSON, Acting P.J.
A jury convicted defendant Joshua Michael Allred of six counts of aggravated sexual assault of a child (Pen. Code, § 269, subds. (a)(1), (a)(4), (a)(5); counts one through six) and two counts of lewd and lascivious acts with a child under age 14 (§ 288, subd. (a); counts seven & eight). It found true an allegation that he committed these offenses against two or more victims. (§ 667.61, subd. (e)(5).) He was sentenced to state prison for 120 years to life (eight consecutive terms of 15 years to life).
Further undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred by (1) instructing the jury with Judicial Council of California Criminal Jury Instructions, (2005-2006), CALCRIM Nos. 220 and 222, (2) using the term “defendant” in CALCRIM Nos. 1000, 1015 and 1045, and (3) denying his mistrial motion. He further claims the foregoing errors were cumulatively prejudicial. We affirm the judgment.
FACTS
Prosecution case-in-chief
T.Z. met defendant in January 2005 when she was six years old and he was dating her older sister, R.Z. One Saturday evening, defendant and R.Z. arrived at T.Z.’s house. Defendant spent the night in T.Z.’s bedroom while she slept with her mother. The next morning, T.Z. showered and went to her bedroom, still occupied by defendant. Defendant walked toward T.Z., grabbed her wrists, and put her on the floor. He held her feet, preventing her from getting up, and he touched her “noni” “inside and outside” with his finger (count six). When he stopped, she immediately ran to her mother’s bedroom. She did not report the incident to anyone that day.
T.Z. explained that her “noni” was below her stomach and circled the area on a diagram.
Eventually, T.Z. told R.Z. what defendant had done but R.Z. did not believe her. T.Z. also told her aunt, who in turn told T.Z.’s mother, who spoke with T.Z. and then called the police. T.Z. told her mother that she could not reveal what defendant had done, because defendant and R.Z. had promised to take T.Z. to Disneyland.
T.Z. spoke to a police officer in February 2005. She told him that defendant touched the inside of her vagina with his finger. Later that evening, the officer spoke with defendant and confronted him with T.Z.’s accusation. He denied touching her in an inappropriate way.
T.Z.’s cousin, K.H., is one year older than T.Z. On K.H.’s birthday in February 2005, she went to dinner at a Roseville restaurant with her mother, her cousin R.Z. (T.Z.’s sister), and R.Z.’s boyfriend, defendant. After dinner, defendant took K.H. to the second floor of the restaurant where she sat on a couch and he sat next to her. Defendant put both his hands down K.H.’s underwear and touched her “private” (count seven). Eventually K.H. returned to her mother at the dinner table. In the car on the way home, K.H. told her mother what defendant had done. K.H. also told R.Z. that defendant had “put his fingers inside of her.” In May 2005, K.H. identified defendant in a photographic lineup. She did not identify him at trial in June 2006 and explained that her memory of what the perpetrator had looked like had been better in May of the previous year.
In 2005, the parents of nine-year-old E.H. hired defendant to clean their cars. One day in February 2005, E.H.’s mother left the house while defendant cleaned a car. E.H. went to the garage to get a toy. Defendant, who was in the garage, approached E.H. in order to “feel” her pajamas. He pulled the waistband of the pajama bottoms away from her body and “look[ed] at [her] private” (count eight). He allowed her to leave the garage after she claimed that she had heard her sister calling to her.
In April 2005, defendant’s photograph appeared in a newspaper. Upon questioning by her mother, E.H. revealed the molestation. E.H. later told a sheriff’s officer that defendant pulled the waistband of her pajamas and looked at her private parts.
On an evening in April 2005, nine-year-old B.R. rode around her apartment complex on a small motorcycle. Defendant approached B.R. and started talking to her. He touched the cycle and asked how much it had cost. Then he trapped B.R. in a corner, asked her about her shirt, and then lifted her shirt. He stared at her chest and then turned her around. She tried to get away from him, but he grabbed her wrist and asked to see her underwear. She started crying because she was scared. She ran from him, but she could not get away. He grabbed her, put his arm around her neck in a headlock “and pulled it really tight and put his hand on [her] mouth and nose.” He told her to remove her clothes and lay down on the ground. She complied because she did not know if he was armed. He got on top of her and put his penis in her vagina (count one). She told him he was hurting her, so he put his penis in her mouth instead (count two). Then, after a few minutes, he reinserted his penis in her vagina (count three). At some point, he put his penis in her anus. After that, he put his fingers in her vagina (count four). Then he reinserted his penis in her mouth (count five). During that act, B.R. “felt something else in [her] mouth besides his penis” and defendant told her to swallow it. Instead, she spit it out. After he ejaculated, he told her she could leave and said something about him wanting to do this again. She ran home crying and told her brother to call the police.
The parties stipulated that three latent fingerprints were lifted from B.R.’s motorcycle. None matched fingerprints of defendant.
Police Officer Jonathan Lasater responded to the call. B.R. told him that she had been assaulted. Lasater was present with B.R. while other officers presented people for in-field show-up identifications. After B.R. viewed one man whom she did not recognize, officers presented defendant. B.R. said he looked like the man who assaulted her, but she asked to hear his voice. After hearing his voice, B.R. said “that sounds like the guy.” The next day, B.R. identified defendant in a photographic lineup. She was “99 percent sure” of her identification.
Using an ultraviolet lamp, an officer searched for traces of semen at the crime scene and in B.R.’s apartment without success.
On the night of the B.R. incident, defendant told an officer that he had been in his apartment with R.Z. the entire night. However, R.Z. told the officers that defendant had left the apartment to go to a store and get soda at the clubhouse. Defendant had instructed R.Z. to tell the officers that they had been together all night. After that night, defendant shaved his head and goatee.
A few days after the B.R. incident, defendant told a different officer a similar version of his whereabouts at the time of the incident. Defendant handed the officer a pair of jeans that he claimed to have been wearing on the night of the incident. He told an officer that there might be semen on the crotch of the pants because he had had sexual intercourse with R.Z. on the night of the B.R. incident. R.Z. later told the officer that they had not had sex for two months. During a search of defendant’s apartment, officers found a newspaper article describing the assault on B.R.
Although B.R. did not initially remember that she had seen defendant before the night of the assault, her friend, L.B., reminded her that the two girls had seen him about a month prior to the incident. On the previous occasion, the girls had noticed a man walking around the apartment complex. The girls were walking near a swimming pool and the man approached them and asked if they needed help. The man also asked the girls if they wanted to go to his house. On the night following the attack on B.R., L.B. selected defendant’s photograph from an array as the man she had seen by the pool. However, L.B. did not see the man in court when she testified at trial.
A nurse practitioner viewed photographs from a sexual assault examination of B.R. and concluded her injuries were consistent with the history she provided.
Defense
The defense recalled Gloria, the mother of T.Z. and R.Z. Gloria testified that K.H. spent about a week with her several months after defendant molested T.Z. Gloria did not know whether T.Z. and K.H. had talked about what defendant had done to them.
DISCUSSION
I
Defendant contends the trial court erred by instructing the jury with CALCRIM Nos. 220 and 222 on the consideration of evidence at trial. He reasons that by instructing the jury that it could consider only evidence presented in the courtroom, the trial court prevented the jury from considering “the absence of evidence which logically would have existed had the prosecution’s theory of the case been correct.” He claims the error requires reversal of his convictions on counts one through five (involving B.R.), where his primary defense was identity and “the defense relied substantially on the absence of certain evidence which the jury could have expected to have been present if [defendant] had been the perpetrator.” The point has no merit.
CALCRIM No. 220 told the jury in relevant part: “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 trial -- the entire trial.”
CALCRIM No. 222 told the jury in relevant part: “You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom. ‘Evidence’ is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.”
Defendant claims these instructions precluded the jury from considering three items of evidence, which we consider in turn.
DNA evidence
A criminalist testified as an expert in the areas of DNA and bodily fluid identification. She received a bag of clothing that B.R. had been wearing on the night of her assault and a series of swabs that had been obtained from B.R. during her forensic examination. The criminalist found no semen on the clothing and no semen or sperm on the swabs. The prosecutor argued in summation that the absence of DNA (semen) was not significant.
Contrary to defendant’s argument, CALCRIM Nos. 220 and 222 did not “preclude[] the jury from considering whether the absence of DNA evidence” raised a reasonable doubt of his guilt. The criminalist testified that no semen or sperm was found, and CALCRIM No. 222 correctly told the jury that her testimony was evidence. Because that evidence had been received in the trial, CALCRIM No. 220 required the jury to consider the evidence that no semen or sperm had been found.
Fingerprint evidence
The perpetrator touched B.R.’s small motorcycle and asked how much it had cost. The parties stipulated that three latent fingerprints were lifted from the motorcycle, and that none matched fingerprints of defendant. The prosecutor argued in summation that the absence of defendant’s fingerprint was not significant because “[y]ou can touch something without leaving a print.”
Contrary to defendant’s argument, CALCRIM Nos. 220 and 222 did not “preclude[] the jury from considering whether the absence of [his] prints on the [cycle]” raised a reasonable doubt of his guilt. The parties stipulated that the found prints did not match defendant, and CALCRIM No. 222 correctly told the jury that it must “accept” stipulated facts “as true.” No reasonable juror could have believed he or she was forbidden from considering stipulated facts when determining whether guilt was proved beyond a reasonable doubt.
Ultraviolet lamp evidence
A Folsom police officer testified that he used an ultraviolet lamp to search for traces of semen at the B.R. crime scene and in her apartment without success.
Contrary to defendant’s argument, nothing in CALCRIM Nos. 220 and 222 precluded the jury from considering whether the absence of semen “raised a reasonable doubt whether all, or at least some, of the offenses described by [B.R.] had even actually occurred.” CALCRIM No. 222 correctly told the jury that the officer’s testimony was evidence. Because that evidence had been received in the trial, CALCRIM No. 220 required the jury to consider that the ultraviolet lamp had failed to disclose any semen where it might logically have been found. There was no error.
II
Defendant contends the trial court’s use of the word “defendant” in CALCRIM Nos. 1000, 1015, and 1045 effectively directed verdicts of guilt on counts one through five (involving B.R.), because that word “convey[ed] to the jury the message the judge believe[d] the defendant was the perpetrator.” We disagree.
The trial court instructed the jury on the elements of the charged offense of aggravated sexual assault of a child (counts one through six), using CALCRIM No. 1123. The court then instructed on the underlying offenses of rape (CALCRIM No. 1000), oral copulation (CALCRIM No. 1015), and sexual penetration (CALCRIM No. 1045), each committed by force, violence, duress, menace or fear.
Regarding duress in the context of rape, the court instructed: “Duress means a direct or implied threat of force, violence, danger, or retribution that would cause a reasonable person to do or submit to something that she would not do or submit to otherwise. When deciding whether the act [was] accomplished by duress, consider all the circumstances, including the female’s age and her relationship to the defendant.” (Italics added.) The instructions on duress in the contexts of oral copulation and sexual penetration were virtually identical.
The parties agree, and we concur, that the sexual assaults in counts one through six were accomplished by force, not duress. Nothing in the evidence invited the jury to apply the duress instruction. The jury was instructed with CALCRIM No. 200 as follows: “Some of these instructions may not apply, depending on what you find about the facts of the case. Do not assume just because I gave a particular instruction I am suggesting anything about the facts.” The jury was further instructed with CALCRIM No. 3550: “It is not my role to tell you what your verdict should be. Do not take anything I have said or done during the trial as an indication of what I think the facts, the witnesses, or what your verdict should be.” Nothing in the record suggests the duress instruction played any part in the determination of this case.
Nor does the record suggest that any juror “assume[d]” from the trial court’s giving of the duress instructions that it somehow was “suggesting” that the evidence showed defendant to be the perpetrator. The jury is presumed to have followed its instructions, including CALCRIM Nos. 200 and 3550. (E.g., Francis v. Franklin (1985) 471 U.S. 307, 324-325, fn. 9 [85 L.Ed.2d 344, 359-360]; People v. Hardy (1992) 2 Cal.4th 86, 207-208.) Defendant’s claim that the instructions directed a verdict for the prosecution has no merit.
In any event, the instruction to consider any “ongoing or pre-existing relationship” between the victims and defendant could not have been prejudicial. Contrary to his argument, this instruction did not “have meaning for the jury’s determination of the case only if the defendant was the perpetrator.” The defense to the B.R. counts was mistaken identity, which any significant ongoing or preexisting relationship would have undercut. Defendant and B.R. had no prior relationship, except for her prior sighting of him near the swimming pool. This supported the defense theory that defendant was not the perpetrator. It is not reasonably probable that omission of the duress instruction would have yielded a more favorable result. (People v. Watson (1956) 46 Cal.2d 818, 836.)
III
Defendant contends the trial court erred by denying his mistrial motion after a police officer “deliberately” testified to facts ruled to be inadmissible at an in liming hearing. We disagree.
Background
Prior to trial, the court ruled that evidence of adult pornography found at defendant’s residence was not admissible at trial. However, during testimony, Detective Robert Challoner explained that he and his partner “were assigned to go with the girlfriend of the defendant’s to the apartment to look for some pornographic videos which she indicated were there.” The prosecutor immediately changed the subject, stating, “I’m going to stop you there. What is the name of the girlfriend?” No further questions were asked about pornography.
Shortly thereafter, out of the presence of the jury, the trial court asked the detective why, despite a specific ruling to the contrary, he had mentioned the pornography. The detective responded, “I’m sorry, Your Honor. I was just repeating what I was ordered to do at that time.” (Italics added.) The court reiterated the question, asking why, despite the fact that the prosecutor had advised him not to mention pornography, he had brought up the subject. Again, the detective answered, “I didn’t mean to. I was just repeating what I was ordered to do, so . . . .” The court asked for clarification and the detective began to explain that “[t]he Detective, Sergeants --.” The court interrupted the detective and stated, “The point is, sir, we ordered you not to refer to pornography. You injected an issues [sic] that creates error. Defense counsel is going to move for mistrial. Why did you do such a foolish thing?” The detective’s only response was, “I’m sorry, Your Honor.” The court asked counsel if they had any questions for the witness; defense counsel answered in the negative. The court again reprimanded the witness, and then dismissed him.
The trial court then asked the prosecutor what advice she had given to the deputy in light of the pornography ruling. The prosecutor responded, “Just that we were not going to talk about pornography.” She explained that during the prior week, she had informed the detective that they would just be talking about a different subject.
Defense counsel then moved for a mistrial. The trial court responded: “All right. Counsel, I’m going to deny the motion, but I’m going to give you some options. The reason I’m going to deny the motion is it slipped in. It wasn’t something that was heavily focused on by the deputy. He said he found some pornography. [¶] As far as prejudice or damaging evidence, the case quite bluntly in light of the testimony of the young victim describing a violent rape of a girl, which in my opinion, during testimony had a tremendous impact on the jurors. I hardly think the mention of pornography would have more impact than live testimony of that victim or any of the victims. [¶] Notwithstanding that, it is some thing that should not have come into the case. I’m going to deny the motion.”
The trial court then asked defense counsel if he would like an admonition explaining that it was legal, adult pornography. Defense counsel affirmed that he “would like that.”
When the trial resumed, the court gave this admonition: “Ladies and gentlemen, the last officer that testified violated an order that I have given in a motion that I had ruled on prior to the trial. He made a reference to pornography, so I’m going to tell you, it’s adult pornography. If it was child pornography, it would be a crime. If it were a crime, you would know about it, and he would be charged. I ordered it excluded because I thought it would distract the jury from the issues that are here. [¶] Number two, it is legal to have adult pornography, no less than a Supreme Court Justice in his confirmation hearing, . . . disclosed that he had possessed that. It came up on an unrelated issue. So it is legal and constitutional for people to possess such items. [¶] I’m ordering you to disregard that subject. It’s totally irrelevant to this case. You may not consider it or discuss it during your deliberations. Is there any one of you that could not follow that order? That is, that you would violate my order and discuss the pornography or consider it in the decision that you’re going to be called upon to make? [¶] Is there anyone that could not follow my order to totally disregard it and not discuss it? [¶] All right. I see no hands. Thank you.”
Analysis
In his opening brief, defendant writes: “Although the detective truncated his explanation as to why he violated what he knew to be the court’s order not to mention pornography, the context of the above-quoted colloquy leaves no room to doubt that he was pressured by his colleagues, other detectives and sergeants, in the Folsom Police Department to slip in that item of very damaging information to help assure [defendant] was convicted. This kind of subversion of the criminal justice system, and denial of a defendant’s right to a fair trial based upon only admissible evidence, should be answered here by a reversal of the judgment of conviction.”
The Attorney General responds that there is “no support for [defendant’s] assertion that the detective tried to subvert the judicial process by introducing the pornography evidence to ensure [defendant] was convicted.” In his view, the “detective’s explanation makes it clear that he only made the pornography statement to explain what his role was on the day he searched [defendant’s] apartment.”
Defendant replies that the Attorney General’s assertion is “untenable” and reiterates that the detective “deliberately violated [the court’s] instructions because he was pressured to do so by other officers.”
Defendant’s incendiary arguments overlook the detective’s testimony that he was “just repeating what [he] was ordered to do at that time.” (Italics added.) Read in context, the words “do at that time” refer to what he was ordered to do at the time of the search, not what he was ordered to say at the time the prosecutor asked her question. The detective’s reiteration that “[he] was just repeating what [he] was ordered to do” by “[t]he Detective, Sergeants,” also refers back to what he had been ordered to do at the time of the search.
Fairly read, the appellate record contains no reference to any “pressure” applied “by other officers” at the time the detective testified. Defendant’s contrary assertion is utterly without merit. He relies on a case of deliberate misconduct by a police officer. (People v. Bentley (1955) 131 Cal.App.2d 687, 690-691, overruled on other grounds in People v. White (1958) 50 Cal.2d 428.) His reliance on Bentley is misplaced because, fairly read, the appellate record contains no reference to any “pressure” applied “by other officers” at the time the detective testified.
This leaves defendant’s assertion that the trial court’s “admonition,” although “strong,” was inadequate because “some bells cannot be unrung.” (Citing People v. Hill (1998) 17 Cal.4th 800, 845-846.) In Hill, the judgment was reversed because “the jury heard not just a bell, but a constant clang of erroneous law and fact.” (Id. at p. 846.) In contrast, where the evidence of guilt is strong and the volunteered testimony is fleeting and insignificant in the context of the entire trial, a trial court may properly deny a mistrial. (People v. Valdez (2004) 32 Cal.4th 73, 128; People v. Bolden (2002) 29 Cal.4th 515, 555.)
In this case, the reference to adult pornography was fleeting and immediately interrupted by the prosecutor. The trial court gave a lengthy admonition, and every juror indicated (by lack of response) that he or she could follow the admonition by disregarding the statement. We presume the jury followed its admonition. (People v. Pinholster (1992) 1 Cal.4th 865, 918-919.) Moreover, the case was not particularly close. The primary contested issue was identity on the B.R. counts, and the court opined that B.R.’s testimony “had a tremendous impact on the jurors.” Under these circumstances, the reference to pornography did not irreparably damage defendant’s chances of receiving a fair trial. (See People v. Bolden, supra, 29 Cal.4th at p. 555.) Thus, his mistrial motion was properly denied.
IV
Defendant contends the cumulative effect of the foregoing errors was prejudicial and mandates reversal. Having rejected each claim of error, we also reject the claim of cumulative prejudice.
DISPOSITION
The judgment is affirmed.
We concur: HULL, J., CANTIL-SAKAUYE, J