Opinion
H045890
04-22-2020
THE PEOPLE, Plaintiff and Respondent, v. MARIO QUINTERO BAEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1630215)
Defendant Mario Quintero Baez was convicted by jury trial of forcible rape (Pen. Code, § 261, subd. (a)(2)), forcible sodomy (§ 286, subd. (c)(2)), and misdemeanor sexual battery (§ 243.4, subd. (e)(1)). The trial court sentenced defendant to 12 years in prison.
Subsequent statutory references are to the Penal Code unless otherwise noted.
On appeal, defendant argues: (1) there was insufficient evidence to support his convictions, (2) the trial court erroneously admitted evidence that the victim was "gay," (3) the trial court erroneously admitted evidence that defendant was married, (4) the prosecutor committed prejudicial misconduct in closing argument, and (5) the cumulative effect of these errors warrants reversal. We find no reversible error and we affirm.
Defendant has also filed a petition for writ of habeas corpus, which we will dispose of in a separate order.
I. Background
A. Prosecution Case
The offenses underlying the case occurred on October 18, 2015. The victim, Priscilla Doe, then 19 years old, worked at a grocery store in San Jose, where defendant, then 33 years old, also worked. Doe had worked at the grocery store for four or five months. Defendant was a supervisor and had worked there for 16 or 17 years. Doe and defendant worked in different departments, and only saw each other occasionally at work. The two did not socialize or interact outside of work. Doe was "a little bit over 140" pounds, while defendant was "a lot bigger than" her—six feet, two inches tall and 245 pounds. She identified as "gay," and had never had sexual intercourse with a man. A week prior to the offenses, Doe had seen defendant in the breakroom and given defendant half of her sandwich. Defendant indicated that he "owed" Doe lunch. Doe told him it was not "that big of a deal," but defendant "persisted that he would get [her] lunch."
The day of the offenses, Doe saw defendant soon after she "punched in," and defendant asked her if he could take her to lunch that day. At around 2:00 p.m., defendant drove Doe to a nearby Panda Express in his four-door truck. On the drive over, defendant remarked that Doe's "hands were small . . . ." Doe laughed and said, "I get that a lot." Defendant then "raised his hand next to" Doe's to compare hand sizes, but also "kind of locked" his hand to Doe's hands. This made Doe uncomfortable and she moved her hand away. At some point during the ride over, defendant "randomly asked if [Doe] was ticklish." Doe said she was not. Defendant then "tried to see if [she] really was ticklish and reached over and grabbed [her] thigh to see if [she] was ticklish there." Doe moved defendant's hand away with her hand. Defendant did the same with Doe's neck, and she again moved his hand away. They eventually arrived at Panda Express. When they got there, defendant came around to open Doe's door. As they walked in, defendant asked Doe how much she weighed. They ordered their food to go because Doe only had a 30-minute lunch break.
After defendant and Doe started to drive back to work, defendant "mentioned that he [could] hear [her] stomach growling," after which he "placed his hand on [her] stomach and started to rub it." Doe pushed his hand away but "didn't say anything" because she "was scared." After waiting at a stop light and turning, defendant "did it again and placed his hand on [Doe's] stomach and started to rub it." This time Doe did nothing in response. Instead of continuing to work, defendant pulled his truck into a parking lot, exited the truck, and opened Doe's door. Doe exited the truck as well, and defendant "mentioned if he can lift" her. Doe said nothing in response because she "was very scared." Defendant picked her up "from [her] buttocks and lift[ed]" her for about five seconds. Defendant put her down "facing away from him" toward "the inside of the vehicle." Defendant moved her hair, kissed her neck, grabbed her waist, and groped her breasts. Doe did "[a]bsolutely nothing."
Defendant walked back to his side of the truck and got in. Doe was too "scared to do anything else other than get back in the car [sic]." When she got into the truck, defendant "told [her] that [they] would get back to work." Instead, defendant drove to another nearby parking lot. Defendant exited the truck and opened Doe's door. Doe got out of the truck "[b]ecause [she] didn't know what else to do." Doe followed defendant back to the driver's side and told him that she "needed to get back to work" or "she would be late," and she "didn't want to get in trouble." Defendant "told [her] that it would be fine and that [she] wouldn't get in trouble because he would let them know."
Defendant opened the backseat door and Doe turned to face the inside of the truck. Defendant then unbuttoned her pants, and pulled down her underwear. Doe did not "say anything" because she "was terrified." Defendant "push[ed] [her] toward the back" of the truck. Doe climbed into the back of the truck on her hands and knees. Defendant remained outside the truck. Defendant unzipped his pants, and "the next thing [Doe] felt" was "pressure" against her "vaginal area." Doe knew it was defendant's penis. Defendant placed his penis against her vagina "multiple" times, but had difficulty penetrating her because she was "not . . . lubricated."
Defendant spit on Doe to try to "add lubrication." Doe was "fighting against him" by "trying to keep [her] back straight," but defendant kept pushing down to force her to arch her back. At one point, Doe felt pressure "in [her] anal area," as defendant penetrated her anus, which was "[s]ickening" for Doe. Doe recalled that sometime during the assault defendant asked "if [she] was on [her] period," because she was bleeding. She told him she "wasn't on [her] period." Eventually, Doe saw a "lady walking her dog," and wanting defendant "to stop," she said "that someone was there and that's when he stopped." Doe exited the truck and pulled her pants back up. Defendant "tried to kiss" her. Doe "didn't do anything in response," meaning she kept her mouth closed.
Defendant "finally [took] [Doe] back to work and he ask[ed] if he could pick [her] up after work." In response, Doe "lied to him and told him that [her] dad would pick [her] up after work." Doe "figured a male figure would be scarier than [her] mom." Defendant also asked Doe for her phone number. Rather than give him her phone number, she told him that she "would grab his number" from the break room. When Doe got back to work, she walked inside and immediately "went to go see [her] supervisor." Doe's "mental state" was "[a]ll over the place," as she was crying and "couldn't . . . get a word out." Her supervisor did not seem to believe her at first, but then "started to listen" after Doe offered to show her that she was bleeding. The supervisor called the police.
Monica Urzua, who testified as an expert "in the area of examination of sexual assault victims," performed a Sexual Assault Response Team (SART) examination on Doe. Urzua found that Doe had suffered bruises and abrasions on her left knee and her hips, and also had visible trauma to her vaginal area—"tenderness and some red area . . . to the clitoris, to both sides," as well as redness "on both sides of the labia." Doe also had blood "oozing" from tears on her "posterior fourchette," which is the tissue separating the vagina and the anus. The injuries to Doe's vaginal area were "consistent with penetrating trauma" that Urzua "commonly [saw] in sexual assault patients." Urzua opined that the observed injuries were "consistent with force and penetration," that they would have been "painful," and that the injuries "were consistent with what [Doe] told" her.
B. Defense Case
Defendant testified that on October 18, 2015, he believed Doe was sexually attracted to him. She had "never said anything" about being "not attracted to men." Consistent with Doe's testimony, defendant testified that he offered to get lunch for Doe because she had previously shared her lunch with him. During the drive to Panda Express, Doe complained about being "fat" and lifted her shirt to show her "love handles" to him." Defendant told her she "looks good." With the "tips of [his] fingers," he then touched her exposed skin, and said, "Oh, look, you are ticklish." She replied, "No," and then defendant "touched her knee." He again asked her if she was ticklish there, and she said, "no." He then touched her ear, and again asked her if she was ticklish there. Again, she said, "no." He also asked Doe to place her hand on his to compare their hand sizes, which she did.
Defendant testified that as he and Doe were driving back to work, Doe stated that she did not want to go back and eat in the break room. Defendant asked if she wanted to eat in a nearby parking lot, and she answered, "yes." After pulling into the parking lot, defendant "started to talk about her," saying that he "couldn't believe that . . . she was . . . fat." He "offered [to] pick her up to see if it was true." Defendant got out, went to her side of truck, and asked again if he could pick her up. She got out of the truck and he picked her up. He put her down and "gave her a kiss on the neck" and "asked her if [they] could . . . make love on the other side of the street." Defendant wanted to move because they were near the "front of the building" and "there was [sic] a lot of people" around. Doe "told [him] okay," as "long as . . . after [they] were done [he] could take her back to work."
Defendant drove across the street to another parking lot, parked the truck, exited, and opened Doe's door. She got out and followed defendant to the driver's side of the truck. Defendant opened the back door to the truck and kissed the back of Doe's neck. He then "unbuckle[d] her belt and her pants and her zipper," and she proceeded to "pull[] down her pants and her underwear." Doe got into the back of the truck "on her knees," but was "not able to get all the way in because" there were "tool boxes there." Defendant tried to penetrate her, but was unable because she was "dry and [his penis] was not able to go in." He "added a little bit of saliva . . . and rubbed it in . . . and tried once again to see if [they] could do it." He still "couldn't, then [he] saw [his] penis and . . . asked her . . . if she was on her period." She responded that "she didn't believe she was." Defendant then asked if they could meet again to "do it better, like later, like at a hotel," and Doe "said yes." Defendant testified that he never tried to penetrate Doe anally.
"After that . . . [defendant] noticed that a person was coming by with a dog . . . in front of [them]." He asked Doe to hide on the floor in the truck until the dogwalker passed. "Doe hid on the floor." After the dogwalker passed, Doe put on her clothes, and defendant asked her if he "could give her a kiss on her breast." She raised her blouse and exposed her breasts, and defendant kissed one breast and touched the other one. Defendant asked for a kiss, and Doe kissed him "[o]n the lips" with "an open mouth." Defendant attempted to arrange a meeting after work, but Doe told him that her father would pick her up after work. He suggested that she tell her father that a friend would give her a ride home.
II. Discussion
A. Insufficient Evidence
Defendant argues "that due to the lack of verbal or physical resistance before the sexual intercourse, [he] reasonably believed that . . . Doe consented to their sexual encounter." Defendant contends that "without any evidence to rebut his reasonable belief, the evidence was insufficient to support his conviction." Defendant also contends that there was insufficient evidence of duress: "[Doe] never testified that she was threatened with violence or other retribution only that she was scared based on their relative size. This alone cannot uphold a verdict beyond a reasonable doubt."
"The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Jones (1990) 51 Cal.3d 294, 314.) Substantial evidence is evidence of " 'ponderable legal significance' " that is " 'reasonable in nature, credible, and of solid value.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.) "We view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Griffin (2004) 33 Cal.4th 1015, 1028.) "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends." (People v. Maury (2003) 30 Cal.4th 342, 403.)
"Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: [¶] . . . [¶] (2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." (§ 261, subd. (a)(2).) "Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy." (§ 286, subd. (a).) "Any person who commits an act of sodomy when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury" on the victim or another. (§ 286, subd. (c)(2).) Under both statutes, the terms "force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim" are used in the disjunctive, and thus a conviction may be upheld if there is substantial evidence the act was accomplished against the victim's will either by force, violence, duress, menace, or fear of bodily harm. In this case, the prosecutor invoked all five theories in his closing argument.
"[T]he element of fear of immediate and unlawful bodily injury has two components, one subjective and one objective." (People v. Iniguez (1994) 7 Cal.4th 847, 856.) "The subjective component asks whether a victim genuinely entertained a fear of immediate and unlawful bodily injury sufficient to induce her to submit to sexual intercourse against her will." (Ibid.) "In order to satisfy this component, the extent or seriousness of the injury feared is immaterial." (Ibid.) Meanwhile, "the objective component . . . asks whether the victim's fear was reasonable under the circumstances." (Id. at p. 857.)
Here, there was substantial evidence that Doe genuinely feared immediate and unlawful bodily injury sufficient to induce her to submit to sexual intercourse against her will. Doe testified she did not consent to the act of intercourse and that it was accomplished against her will. Doe also testified that she was afraid of defendant, that she was too scared to do anything to stop defendant, and that she "didn't know what else to do" but submit against her will. Immediately after the attack, Doe was so distraught she had trouble telling her supervisor what happened. As to the objective component, there was substantial evidence that Doe's fear of immediate and unlawful bodily injury was reasonable. Defendant, who was "a lot bigger" and older than Doe, attacked Doe in his personal vehicle. Doe, who was only 19 years old and relied on her parents to drive her to work, was entirely dependent on defendant to safely return her to work. Prior to the rape and sodomy, Doe indicated she wanted to go back to work, telling defendant that she "needed to get back to work" or "she would be late," and she "didn't want to get in trouble." Defendant ignored her request to go back to work and "told [her] that it would be fine and that [she] wouldn't get in trouble because he would let them know." Under the circumstances, Doe's fear was reasonable. Thus, a jury could reasonably have found that defendant accomplished the rape and sodomy by means of fear.
A jury also could reasonably have concluded that defendant accomplished the offenses by means of force. "[T]he Legislature did not intend the term 'force,' as used in the rape statute, to be given any specialized legal definition. [Citation.]" (People v. Griffin (2004) 33 Cal.4th 1015, 1023.) " '[I]n order to establish force within the meaning of section 261, subdivision (2), the prosecution need only show the defendant used physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will of the [victim].' [Citation.]" (Id. at pp. 1023-1024.) In this case, Doe suffered bruises and abrasions on her left knee and her hips, and also had considerable trauma to her vaginal area, including blood "oozing" from tears. The injuries were "consistent with [the type of] penetrating trauma" seen in "sexual assault patients." Doe also testified that defendant pulled her pants down and pushed her towards the truck. The physical evidence, combined with Doe's testimony, was sufficient to support a finding that defendant used force to have sexual intercourse against Doe's will.
Because substantial evidence supports the forcible rape and forcible sodomy convictions under a theory that they were accomplished by means of force or fear, we do not address defendant's arguments regarding duress.
Substantial evidence also supported the misdemeanor sexual battery conviction. Section 243.4, subdivision (e), provides in relevant part: "(1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery . . . . [¶] (2) As used in this subdivision, 'touches' means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim." As used in section 243.4, an " '[i]ntimate part' means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female." (§ 243.4, subd. (g)(1).) In this case, Doe testified that at one point defendant lifted her and touched her buttocks, and then groped her breast. She testified that this was done against her will. The jury could reasonably conclude that defendant did so for purposes of sexual arousal or gratification. Thus, substantial evidence supports the conviction for misdemeanor sexual battery.
To the extent defendant argues that he had a reasonable belief Doe consented based on her "lack of verbal or physical resistance," we note that the jury was given an instruction regarding whether defendant had a reasonable belief that Doe consented. By convicting defendant, the jury necessarily rejected such an argument. Defendant's argument here amounts to an invitation to reweigh the evidence on appeal, which is beyond the scope of our review.
B. Character Evidence: Victim's Sexual Orientation
Defendant argues that the trial court improperly admitted character evidence that Doe was "gay" in violation of Evidence Code section 1101, subdivision (a). Defendant contends that this evidence did not fall within the exception under Evidence Code section 1103, subdivision (a). The Attorney General contends that this claim is forfeited because defendant failed to object to the evidence on this particular ground.
1. Background
Defense counsel moved in limine to exclude evidence of Doe's sexual orientation as irrelevant and in violation of Evidence Code sections 352 and 782. Prior to trial, defense counsel argued: "The sexuality in the past, the sexuality in the past, the sexuality or alleged sexuality of the complaining witness at this point in time is not at issue. To bring that up at this point and as part of this case that is without a doubt more prejudicial than probative. There is the additional problem, that I, for instance am precluded, under Evidence Code Section 782 from getting into any prior sexual contact that she has had, any prior sexual activity of the complaining witness. So because I'm precluded from getting into it, in other words to argue that a person has sex here, has sex there, and so must be having sex, consensual sex at this point in time, the entire matter should be not part of this hearing. It doesn't add anything to the actual encounter that takes place between [defendant] and Priscilla Doe. Whether she self identifies as a lesbian or whether she is a virgin in terms of sexual activity with a man. That those are irrelevant points to what happened on this occasion. It is for instance absolutely possible that a person wishes to experiment. It is absolutely possible that people change their sexuality. [¶] So I believe strongly that these items are not relevant to this proceeding. What is relevant here is what happened between two people, you know, on a certain afternoon in a parking lot."
The trial court denied the motion. As described above, Doe testified that she was "gay" and had never had sexual intercourse with a man.
2. Analysis
"Evidence Code section 353, subdivision (a) allows a judgment to be reversed because of erroneous admission of evidence only if an objection to the evidence or a motion to strike it was 'timely made and so stated as to make clear the specific ground of the objection.' " (People v. Demetrulias (2006) 39 Cal.4th 1, 20 (Demetrulias).) The failure to raise a timely and specific objection forfeits a claim on appeal that evidence was erroneously admitted. (Ibid.) The requirement of a timely and specific objection serves to prevent error and allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps to minimize the prospect of reversal. (People v. Partida (2005) 37 Cal.4th 428, 434.)
Here, defendant's claim that the admission of evidence of the victim's sexual orientation violated Evidence Code sections 1101 and 1103 is not cognizable on appeal. Defendant forfeited this claim by failing to make timely objections or a timely motion to strike on that specific ground. Defendant asserts that it "would have been clear to the court" that his objection under Evidence Code section 782 implicated Evidence Code section 1103 "even though defense counsel didn't specifically cite section 1103(a)(2)." Evidence Code section 782, however, involves the procedure to be used when "evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness" at trial. An objection under Evidence Code section 782 did not alert the trial court to the argument defendant now makes for the first time on appeal that the evidence was inadmissible under Evidence Code sections 1101 or 1103. (Cf. Demetrulias, supra, 39 Cal.4th at p. 21 ["Contrary to defendant's argument, a relevance objection does not, in itself, alert the trial court to the claim that the testimony objected to is inadmissible character evidence."].) In sum, defendant's failure to raise a timely and specific objection on the ground now asserted forfeited his claim on appeal.
In his reply brief, defendant argues that allowing the prosecutor to present evidence that the victim was "gay" without providing defendant an opportunity to rebut it with evidence or cross-examination violated his rights to confrontation and to present a defense. We generally do not consider an issue that is raised for the first time in an appellant's reply brief. " '[S]uch consideration would deprive the respondent of an opportunity to counter the argument.' [Citation.] 'Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant.' [Citation.]" (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) " 'Hence the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.' " (Ibid.) Here, defendant has made no attempt to show any "good reason" for why he failed to raise this argument in his opening brief. Accordingly, we will not consider this claim.
Finally, defendant asserts, in a single sentence of argument, that the admission of Doe's sexual orientation was more prejudicial than probative and should have been excluded under Evidence Code section 352. Evidence Code section 352 provides that "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Evidence has probative value if it "ha[s] a 'tendency in reason to prove or disprove any disputed fact' [citation]." (People v. Prince (2007) 40 Cal.4th 1179, 1237.) " ' " 'Prejudice' as contemplated by [Evidence Code] section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant." ' " (People v. Scott (2011) 52 Cal.4th 452, 490.) " ' "The prejudice that section 352 ' "is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." [Citations.] "Rather, the statute uses the word in its etymological sense of 'prejudging' a person or cause on the basis of extraneous factors. [Citation.]" [Citation.]' [Citation.] In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." [Citation.]' [Citation.]" (Id. at p. 491.) A trial court's ruling on the admission or exclusion of evidence under Evidence Code section 352 is reviewed for abuse of discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 667-668.)
Here, the fact that Doe identified as "gay" and had never had sexual intercourse with a man was highly relevant and thus probative to the disputed fact of whether she consented. The crucial issue in this case involved whether Doe consented to sexual intercourse with defendant. Defendant testified that Doe explicitly and unequivocally consented to sexual intercourse. The fact that Doe had never had sex with a man and had no such interest in men was therefore probative of whether she consented on this occasion. The evidence was not of such nature as to inflame the emotions of the jury to punish defendant or to misuse the evidence for an illegitimate purpose. The evidence was prejudicial because it was relevant and highly probative; it was not unduly prejudicial. Thus, the probative value of the challenged evidence was not substantially outweighed by the probability of undue prejudice. The trial court did not abuse its discretion in admitting the challenged evidence under Evidence Code section 352.
C. Character Evidence: Defendant's Marital Status
Defendant argues that the trial court improperly admitted evidence that he was married in violation of Evidence Code section 1101, subdivision (a). Defendant also contends that the evidence was irrelevant, and even if marginally relevant, it was more prejudicial than probative.
1. Background
Defendant moved in limine to prevent any party from mentioning that defendant was married. He argued that it "would be negative character evidence" under Evidence Code section 1101, and it was "more prejudicial than probative and would result in the loss of a fair trial for [defendant]." The trial court granted the motion. However, during defendant's cross-examination, the court reversed its earlier ruling and allowed the prosecutor to elicit testimony from defendant that he was married at the time of the offenses. Specifically, the prosecutor asked defendant why he had never previously asked Doe for her phone number. Defendant responded that he "didn't like to ask for a girl's phone number." He elaborated that he "didn't like to ask for them there at work." The prosecutor asked, "Why not?" Defendant replied, "I don't know." The prosecutor then asked, "Could it be because you are married?" Defendant answered, "Yes." The prosecutor later asked defendant why he wanted to take Doe to a hotel and not his house. Defendant explained that he "live[s] with [his] family." The prosecutor also later asked, "Okay. So you are 33 years old and married with a family; right?" Defendant replied, "Yes."
After defendant's testimony concluded, the court explained its reasoning as follows: "Originally when we were discussing the case [the prosecutor] said he was not going to bring up [defendant's] marital status in his case in chief so that was not an issue basically, and we didn't even address it in limine. But after your client testified, I told you at the bench that it seemed to be relevant. Because if it was a fact known to people at work, usually people at work know their coworker's marital status, especially if you had been there 16 years. That topic usually comes up. So that would be some motive or lack of motive for this event to happen. So I thought it was relevant to bring it up at this point since your client testified the way he did."
During closing argument, the prosecutor characterized defendant's testimony that Doe consented to sexual intercourse as fanciful: "[Defendant] here, a married person, not particularly good looking, not particularly rich, not particularly anything would draw someone to him, was able to get a young lady he barely knew at all who is gay to engage in sexual conduct with him." Later, the prosecutor referred to defendant as a "[m]arried supervisor at her work who [Doe] barely knows, has no contact with, doesn't have any phone calls, nothing."
2. Analysis
Evidence Code "[s]ection 1101(a) prohibits the admission of character evidence if offered to prove conduct in conformity with that character trait, sometimes described as a propensity to act in a certain way." (People v. Bryant, Smith, and Wheeler (2014) 60 Cal.4th 335, 405-406.) Thus, Evidence Code section 1101, subdivision (a) "expressly prohibits the use of an uncharged offense if the only theory of relevance is that the accused has a propensity (or disposition) to commit the crime charged and that this propensity is circumstantial proof that the accused behaved accordingly on the occasion of the charged offense." (Id. at p. 406.) "If an uncharged act is relevant to prove some fact other than propensity, the evidence is admissible, subject to a limiting instruction upon request." (Ibid.)
In this case, the challenged evidence was not character evidence, and thus Evidence Code section 1101, subdivision (a) is inapplicable. That section prohibits the use of character evidence "to prove conduct in conformity with that character trait," or a "propensity to act in a certain way." Here, the prosecutor did not elicit the fact that defendant was married to show his conduct in conformity with a character trait, but rather to find out why defendant had not previously asked Doe for her phone number, why defendant did not offer to take Doe to his house, and why defendant would have been an unsuitable partner for a consensual relationship. Because the challenged evidence was not character evidence as defined in the Evidence Code, we reject defendant's argument that it was inadmissible character evidence.
For the first time in his reply brief, defendant asserts that the introduction of this evidence violated his due process rights. As we have already explained, we will not consider arguments raised for the first time in a reply brief.
Defendant also contends that the evidence that he was married was more prejudicial than probative and should have been excluded under Evidence Code section 352.
In our view, the fact that defendant was married was at best only marginally relevant to the proceedings. The Attorney General asserts that the evidence was probative as to the issue of consent because it explained why Doe would not have wanted to have sex with defendant. However, it was never established that Doe knew defendant's marital status. While the trial court reasoned that "usually people at work know their coworker's marital status, especially if [that person] had been there 16 years," Doe had been working at the grocery store for only four or five months, and by her own telling, she hardly knew or interacted with defendant. Without more, the fact of defendant's marriage was irrelevant. On the other hand, the evidence was potentially prejudicial. The fact that defendant was married meant that he had engaged in marital infidelity, something which could tend to uniquely evoke emotional bias against defendant. Because the evidence had essentially no relevance, its probative value was substantially outweighed by the danger of undue prejudice. Accordingly, the trial court abused its discretion in admitting the evidence.
Generally, the admission of evidence in violation of state law, here Evidence Code section 352, is reversible only upon a showing that it is "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.) Despite defendant's argument to the contrary, we fail to discern much, if any, prejudice in this case. That appellant may have engaged in acts of infidelity and thereby wronged his wife did not in any way suggest he was a rapist. In addition, the prosecutor did not single out defendant's infidelity or suggest he should be punished for it. Rather, the prosecutor referenced the fact of defendant's marriage to argue that it was improbable that Doe consented to some type of sexual relationship with a married man. Finally, however socially reprehensible the act of infidelity is viewed, it is impossible to imagine that it pushed the jury to convict defendant of forcible sex offenses. (Cf. People v. Tran (2011) 51 Cal.4th 1040, 1047 [risk of prejudice diminished when the "testimony describing the defendant's uncharged acts is no stronger or more inflammatory than the testimony concerning the charged offense"].) In sum, it is not reasonably probable that defendant would have obtained a more favorable result in the absence of this error.
D. Prosecutorial Misconduct
Defendant contends that the prosecutor committed prejudicial misconduct in closing argument by misstating the law, misstating the evidence, and misstating testimony.
1. Background
During closing argument, the prosecutor discussed count three, the misdemeanor sexual battery offense. He stated that count three was "different" than the other offenses. The prosecutor asserted that the moment Doe "freezes up, she gets to" stop the physical contact. The prosecutor continued: "There is no requirement that she fight. There is no requirement that she flee. There is a requirement that she agrees. And I think in 2018 we're beyond the point where we demand of women in particular that they fight back, that they yell and scream and say no. Because we've heard even in popular culture today with women way more powerful than this young lady, actresses[,] people who make millions of dollars who have froze in the face of things less severe, less traumatic --" Defense counsel objected, "Misstates the law, Your Honor. Improper argument." The trial court overruled the objection and the prosecutor continued.
Later, the prosecutor argued: "[Doe] told you exactly the truth. And there has been nothing, because they can't point to anything that suggests why she would come here and say the things she's saying unless they are all true. And I appreciate the fact that there are rape cases that people tie and bind and so forth. You will find that nowhere in the instructions as that being necessary for rape. Duress and force. And duress is just fear that something is going to happen to you. And she talks about --" Defense counsel objected: "Misstates the law, Your Honor." The trial court said, "Follow my instructions. These are just comments from the attorneys. But he's allowed to make a closing argument."
At another point, the prosecutor commented on a part of defense counsel's closing argument: "And quite frankly, you know [defense counsel] said [defendant] took the stand at the earliest opportunity and that's all good, and he was castigated for it. No, no. I point out that he read the reports, listened to it, listened to all of the testimony. He knew when he got up here what everybody else had said, what every single person has said. Significantly there is [sic] a bunch of questions about things that he said that were never asked of [Doe]. [¶] The Defense knew what he was going to say, and they didn't ask. For instance, that conversation that supposedly took place about, Let's have sex in the back of the car. She was here. Sitting right here. He never asked that question. And you know what she would have said. That never took place. That never happened." Defense counsel objected: "Misstates the evidence." The prosecutor continued: "Never took place. Never happened." The trial court said, "Overruled."
The prosecutor immediately continued: "Also [defense counsel] made a comment about the bruise on [Doe's] hip. I would invite you to go back and read actually the interplay that took place about that. [Defense counsel] actually said that. [¶] 'Don't you bang your hips on the counters'? [¶] And [Doe] looked at him and was like 'No.' [¶] 'Is it possible that you have done that every now and then?' [¶] 'No.' [¶] But this is not from that. So that's not actually what she said, about that injury. And significantly left out, her left knee. [¶] Where was her left knee? Banging on the bottom of a truck bed next to tools in the back of Casanova's car." Defense counsel interjected, "Objection, Your Honor." The trial court said, "Overruled."
2. Analysis
" ' "The applicable federal and state standards regarding prosecutorial misconduct are well established. ' "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.]" (People v. Gray (2005) 37 Cal.4th 168, 215-216.) "A prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence. [Citation.]" (People v. Ledesma (2006) 39 Cal.4th 641, 726.) "When the issue 'focuses on 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.' [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.) " 'In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 553-554.)
Defendant first contends that the prosecutor committed prejudicial misconduct in discussing the law regarding consent in rape cases. He identifies the prosecutor's statement—that there " 'there is a requirement that she agrees' "—as a misstatement of the law regarding rape, which he contends allows for acquittal if a defendant reasonably believed the victim consented. In this case, there is no reasonable likelihood that the jury understood the prosecutor's statement as foreclosing defendant's argument, as to the rape allegations, that he reasonably believed that Doe consented. This is so because the prosecutor clearly stated, prior to the complained-of statement, that he was addressing the misdemeanor sexual battery offense. Thus, it is inconceivable that the jury understood the statement as applying to the rape allegations.
Defendant next argues that the prosecutor committed prejudicial misconduct by misstating the law "when he stated that 'duress is just fear that something is going to happen to you.' " Defendant's argument here lacks merit. As used in section 261, " 'duress means a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted . . . .' [Citation.]" (People v. Leal (2004) 33 Cal.4th 999, 1006, italics removed.) Here, the prosecutor's passing reference to duress was not an authoritative statement of the definition of duress but simply a shorthand description of the concept. Although not fully complete, the prosecutor's statement reasonably reflected the actual definition of duress. Even if the jury somehow could have taken the statement to be authoritative, the court thereafter admonished the jury to "[f]ollow [the court's] instructions" because "[t]hese are just comments from the attorneys." Under the circumstances, there is no reasonable likelihood the jury construed or applied any of the complained-of remarks in an objectionable fashion.
Defendant next asserts that the prosecutor committed prejudicial misconduct because he "testified on behalf of [Doe]." He identifies the prosecutor's argument that Doe was never directly asked whether she consented. In particular, defendant points to the following statement: "She was here. Sitting right here. He never asked that question [i.e., whether she consented as defendant claimed]. And you know what she would have said. That never took place. That never happened." (Italics added.) Defendant argues that this comment "suggested to the jury that the prosecutor had extrajudicial knowledge" of what Doe would have said, and that the prosecutor's statement amounted to "impermissible vouching as to what [Doe] theoretically would have said had she been asked that question at any point during the trial."
In this instance, no misconduct occurred. The prosecutor's statement that Doe "would have" denied consenting to sexual intercourse was a reasonable inference based on the evidence. In her testimony, Doe repeatedly and vehemently denied that the sexual intercourse was consensual. Based on Doe's repeated denials, the only plausible inference was that if she had been asked on cross-examination whether she had consented as defendant described, she would have denied it. There was no basis for a juror to conclude that the comment was based on some evidence or factual basis that was not presented at trial. Because the prosecutor's comment was a reasonable inference based on the evidence adduced at trial, there was no misconduct.
Defendant also argues that the prosecutor "misstated the evidence" in two ways: first, by stating that Doe "never testified that she occasionally banged her hips on the counters at work"; and second, by later speculating that "Doe's bruises were caused by 'Banging on the bottom of a truck bed next to tools in the back of Casanova's car.' " Defendant contends that contrary to the prosecutor's statements, Doe testified that "it was possible that she bangs her hips against the counters at work on occasion," and that the prosecutor's second statement was "mere speculation" because Doe never testified that she banged against anything in the truck.
In order to preserve a claim of prosecutorial misconduct on appeal, " ' "a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument." ' [Citation.] A failure to 'object and request an admonition will be excused if doing either would have been futile, or if an admonition would not have cured the harm.' [Citation.]" (People v. Mendoza (2016) 62 Cal.4th 856, 905.) Here, defendant failed to object to the prosecutor's characterization of Doe's exchange with defense counsel regarding whether Doe ever banged her hips on counters. Defendant's only objection came later, after the prosecutor's statement that we address below. Before this court, defendant makes no argument that such an objection would have been futile or that it would not have cured the harm. Accordingly, the claim is not preserved for appeal.
We turn to the prosecutor's assertion that Doe's left knee was "[b]anging on the bottom of a truck bed next to tools in the back of Casanova's car." Although defendant did object to this part of the prosecutor's argument, the statement was not misconduct. People v. Collins (2010) 49 Cal.4th 175 (Collins) is instructive. In Collins, the defendant argued on appeal that "the prosecutor committed misconduct by arguing facts not in evidence regarding the manner in which the victim was killed." (Id. at p. 230.) At closing, "[t]he prosecutor argued that the victim was shot by [the] defendant while he 'was either on his knees pleading for mercy or running away in fear from this defendant.' " (Ibid.) Our high court concluded that "[t]he prosecutor's argument was proper" because it was based on "reasonable inferences" from the record, including evidence on the trajectory of the bullet. (Ibid.) Here, as in Collins, although no one definitively testified as to the manner in which Doe bruised her knee, there was evidence that Doe suffered lacerations and bruises to her knee. Doe also testified that she was forcefully handled while on her hands and knees in the back of defendant's truck. The SART examination found that Doe's injuries were "consistent with force and penetration," that the injuries would have been "painful," and that the observed injuries "were consistent with" what Doe had reported. Thus, the prosecutor's argument that Doe had bruised her knee while being raped and sodomized in the back of defendant's truck was a reasonable inference based on the evidence.
E. Cumulative Error
Defendant contends that the cumulative effect of these asserted errors warrants reversal. We have rejected each of defendant's individual claims of error, except for his claim regarding the trial court's admission of his marital status. We found that error harmless. Accordingly, because there are no errors to cumulate, defendant's cumulative error claim fails.
III. Disposition
The judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Premo, Acting P. J. /s/_________
Bamattre-Manoukian, J.