People v. Clayton

Full title: THE PEOPLE, Plaintiff and Respondent, v. ADIO KAMAU CLAYTON, Defendant and…

Court: Court of Appeal of California

Date published: Oct 30, 2008

No. H031165 (Cal. Ct. App. Oct. 30, 2008)

Opinion

H031165

10-30-2008

THE PEOPLE, Plaintiff and Respondent, v. ADIO KAMAU CLAYTON, Defendant and Appellant.

Not to be Published

Rushing

STATEMENT OF THE CASE

A jury convicted defendant Adio Kamau Clayton of forcible sodomy, forcible rape, two counts of false imprisonment, and infliction of corporal punishment on a spouse. (Pen. Code, §§ 286, subd. (c)(2), 262, subd. (a)(1), 236, 237, 273.5, subd. (a).)¹ After a court trial, the court found that defendant had suffered a prior strike conviction for which he had served a prison term. (§§ 667, subds. (a), (b)-(i), 667.5, subd. (b), 1170.12.) The court sentenced him to 35 years in prison.

1 All unspecified statutory references are to the Penal Code.

On appeal from the judgment, defendant claims (1) there is insufficient evidence to support convictions for two counts of false imprisonment; (2) court erred in failing to give a unanimity instruction concerning two counts of false imprisonment; (3) the instructions permitting jurors to infer from evidence of prior uncharged acts of domestic violence (CALCRIM No. 852) and sexual offenses (CALCRIM No. 1191) a likelihood that he would and did commit the charged offenses violated his constitutional right to due process; (4) his attorney rendered ineffective assistance in failing to object to copies of his prior convictions; (5) the court erred in refusing to allow him to impeach the victim with evidence of perjury and welfare fraud; and (6) the court erroneously restricted defense counsels final argument concerning reasonable doubt.

We conclude that the evidence supports only one conviction for false imprisonment. Therefore, we amend the judgment to strike one conviction and affirm the judgment as amended.

FACTS

The Charged Offenses

The victim, D., married defendant in 2001 and over the next two years had two daughters, T. and L. Defendant physically abused D. often, pulling her hair and hitting and choking her, and they separated several times, sometimes for up to 10 months. She overlooked his abuse, hoping things would change, and defendant promised they would. But on four occasions, D. called the police.

In May 2004, the family was living at the Alameda Lake apartments in San Jose. However, by May 26, 2004, defendant and D. had separated. Nevertheless, on that day, defendant drove her and the children to a doctors appointment. On the ride back home, D. spoke to a friend on the phone, and after the call, defendant asked whether she had been talking about their separation. She said that everyone knew, and he got angry. This scared her because he had a look that meant they were going to have a fight.

When he parked the car, he told her to get out, but she refused. He then forcibly pulled her out and, despite her resistance and screaming, he dragged her to the elevator and took it to their second-floor apartment.² There, they fought over the keys, and she knocked them out of his hand to avoid going inside. However, he managed to open the door and pulled her inside and then into the bedroom. She screamed at him to get the children, but he threw her onto the bed and started yelling at her and beating her with his fists. He then decided to get the children, so he dragged her into the bathroom and tied her to the shower door. When she resisted, he made her get on her knees and tied her hands over her head and behind her to the rail of the shower door, using phone cord, a power cord, and a towel. She screamed and broke free, but defendant caught and retied her, this time putting a sock into her mouth. He then left.

2 Defendant is 5 feet 11 inches tall and weighs between 150 and 160 pounds; D. is 5 feet 2 inches tall and weighs 97 pounds.

D. freed herself and went into the kitchen. Fearful of more physical abuse, she grabbed a knife to protect herself and hid the rest of them. D. testified that she ran to the balcony and screamed to the maintenance man, Leonard Mendoza, to call the police, warning that someone might be killed. She saw defendant leaving the garage with their children. Defendant appeared to be "laughing it off" and told Mendoza that they argued a lot and were just having marital problems. She said he left the children downstairs in some bushes and came up to the apartment. She waved the knife at him. He told her to calm down and went back down to get the children. As defendant returned, Mendoza told him to come to the office. When defendant left, D. went to a neighbors apartment and called the police.³

3 The incident on May 26, 2004, was the basis for two convictions for false imprisonment and one for spousal abuse.

Mendoza testified that he saw D. with a knife on the balcony with defendant. She asked him to call the police. Defendant was calm, grabbed D.s wrist, and gently pushed her into the apartment. Defendant then came downstairs to get his children, who were in the bushes crying. Defendant told him not to call the police because everything was fine. However, Mendoza told his supervisor, who called the police.

Officers John Ward and Robert Aguilar Chavez of the San Jose Police Department responded to a call about an incident at the apartment building. D. looked upset, fearful, and nervous. She said defendant had pulled her into the bedroom, thrown her on the bed, and tied her to the shower door. The officers found a power cord just outside the bathroom, and a telephone cord and towel hanging on the shower door. They also saw red marks on D.s wrists that correlated with the width of the power cord.

After the incident, D. and the children moved to a womens shelter, then to her stepsisters home, and then to a friends apartment. During this time, which last around 10 months, defendant constantly called her, despite her requests that he not do so, and she sometimes took his calls. He wanted to reconcile with her, but she was reluctant and wanted him to get counseling.

At one point, D. allowed defendants mother to take the children to see defendant, and D. came by with diapers for them. Defendant begged her to stay, and, to prevent her from leaving, he lay down behind her car so she could not move it. He told her he had changed and things would be different. However, D. said she would not return until he received counseling. He said he was.

After that day, defendant visited D. at her friends apartment and physically fought with her a couple of times. As a result, the friend made D. leave. She went to defendants apartment on East St. James Street in San Jose because she had nowhere else to go. He said he would move out and find another place for himself, but he never did. She thought she signed a lease in May 2005 and lived there from April or May to November 2005.

On November 25, 2005, defendant and D. were in the apartment and got into an argument. D. had spent Thanksgiving with her father, and defendant got angry because she had put her father ahead of him. Although she protested that she wanted to be with him and the children as a family on holidays, she finally said she preferred her father because he did not yell at her. At this, defendant attacked D. and started hitting the side of her head with his knuckles. As she cried, he dragged her into the bathroom, swearing at her. He said he wanted to "make up" and have sex after hitting her. Knowing that he would force himself on her, she screamed "no," begged him to stop, and tried to resist by holding onto the wall.

Once defendant got her inside the bathroom, he took off her clothes. She knew he would try to have anal intercourse because she had refused to have regular intercourse with him, and he said that is what he wanted.⁴ She struggled against him, but he wrestled and choked her and got her onto the floor. When she was on all fours, he reached for the Vaseline, and she screamed even more. He then coated himself and her and forcibly penetrated her anus. She screamed for him to stop because it hurt, and after a minute he stopped. However, he then said he wanted to have regular intercourse. She did not want to have sex at all but thought it was better than anal intercourse so she turned over onto her back and lay there. Defendant then had intercourse with her for another minute. She could not recall if defendant kissed her, but she did not kiss him.⁵

4 D. testified that defendant had tried to have anal intercourse with her in the past, but it was too painful for her.

5 This incident was the basis of defendants convictions for forcible rape and sodomy.

When he finished, defendant went into the other room and watched television. D. dressed herself and sat in the bathroom crying. T. got scared and also started to cry; L. did not know what was going on. D. came out and tried to call her brother, but defendant took the phone from her. D. also tried to run out of the apartment, but defendant grabbed her and dragged her back inside. He would not let her leave the rest of the night and forcibly kept her on the day bed with him. Eventually, he went to sleep on the couch, taking D.s purse and keys with him.

The next morning, defendant left but asked D. to be home when he returned. He took her car. She said she would be there but after he left, she went to a pay phone, called defendants mother, who was not home, and then called the police and reported the sexual assault. Officer Tomio Nakamura of the San Jose Police Department responded to the call and interviewed D. She was calm but cried throughout the interview. She reported that defendant had forcible anal and vaginal intercourse with her despite her resistance. She did not mention that he had prevented her from leaving the apartment.

Later that morning, Joyce Summers, a Sexual Assault Response Team nurse, examined D. Summers did not see any injuries except for a scratch on D.s neck, which was consistent with D.s statement that defendant had choked her. However, D. complained that her neck, left temple, jaw, ribs, waist, and hip were tender. And this was consistent with being choked and being assaulted while on all fours.

Summers noted injuries, redness, and abrasion to D.s vagina and anus, which were consistent with D.s description of the assault. Summers opined, however, that these conditions could also be consistent with consensual activity. She noted that in determining whether or not sexual activity was consensual, she considers whether the two people knew each other. She explained that a woman familiar with an attacker will often allow him to do what he is going to do because she can anticipate it ending; as a result, she will sustain fewer injuries than a woman who is unfamiliar with the attacker and strenuously resists the entire time.

Summers collected vaginal and rectal swabs, and testing revealed defendants semen on the former swabs and defendants and D.s DNA on the latter swabs. A swab of D.s neck also revealed the DNA of both.

Defendant was arrested that morning in D.s car. He had her purse, keys, and cell phone. He made two calls to his mother from the jail. In the first call, defendant denied that he was trying to hurt D. However, in the second call, he said, "I wanted everything I [could] from her if this was going to be the last time, . . . or whatever. If she wanted t leave, or whatever."

After the incident, D. left defendant, moved away, and changed her phone number.

Prior Acts of Domestic Violence and Sexual Misconduct

D. testified that on July 6, 2003, she and defendant argued because she did not want to have sex with him so soon after giving birth to L. and without birth control. Defendant got angry, slapped her several times, tied her to the bed, and had sex with her anyway. She testified that she resisted, but at some point she stopped resisting and let him finish.⁶ Later, when she tried to leave, he pulled her back, started slapping her again, and slept near the door with what she variously described as a butter knife or box cutter to prevent her from leaving. He also stacked chairs against the patio door to slow her down if she tried to use that door.

6 On cross-examination, D. admitted that she told police after the incident that she did not think she had been "raped" and that the incident had been forgotten.

The next day, defendant again forced her to have sex, and, during the incident, defendant got a phone call and acted as if nothing was happening. Later, things quieted down, and defendant and D. started talking to each other. She told him she had to go to the store, and he let her leave. However, when she left, she called her cousin, who told her to leave immediately. She said she could not leave her children, so her cousin suggested that she tell defendant she was going to take them to Chuck E. Cheese the next day. The next day, July 8, 2003, she left, went to her cousins house, and called the police.

Officer Steve Nelms of the San Jose Police Department responded to the call and met with D. and her cousin. She said that defendant had forced her to have sex with him after they argued about birth control. She said they continued to argue the next day. At one point, he wanted to have sex, took her into the bedroom, and forcibly removed her clothes. However, she struggled against him and refused, and he stopped. They continued to argue, and, when she left the apartment, he dragged her back in and slapped her. At that point, defendant received a phone call, and she screamed that he was hitting her. Defendant hung up and continued to hit her. He then took her into another room and tied her up using towels. She said she freed herself, and he caught her and tied her up again a total of three times. After freeing herself the last time, she went into another room and took a nap. Defendant joined her, and, when they woke, they had sex two times. She did not want to have sex but did not want to argue either, and so she just let him do "`his thing."

Officer Richard Bravo of the San Jose Police Department conducted a follow-up interview. D. told him that defendant raped her on July 6. The next day, he wanted to have sex again, but she refused, and they argued. Defendant physically assaulted her, forcing her to a bed and removing her clothing. But she resisted him, and he stopped. She said that when she tried to leave, defendant forced her back into the apartment, hit her, and tied her to the bed with a baby towel. She said he tied her down three times because she kept freeing herself. After the third time, defendant said he would not tie her down if she stayed quiet. She reported that she and defendant had sex twice on July 7. At first she refused him, but thereafter she offered no resistance. She did not think she was being raped because she and defendant were married.

As a result of this incident, defendant was convicted of misdemeanor false imprisonment and misdemeanor spousal battery, and a certified copy of those convictions was admitted into evidence (Exhibit 14).

D. testified that on April 4, 2004, during a period when she and defendant were separated, he started choking her until she could not breathe and continued for about 10 seconds and stopped when someone knocked on the door. Defendant then covered her mouth, and they stayed quiet until the person left. He then said he wanted to have sex. When she refused, he pulled off her clothes and had forcible sexual intercourse with her despite her resistance and T.s presence nearby.

D. testified that on April 9, 2004, she and defendant got into an argument outside. He wanted to be with her, but she wanted to remain separated. When she got into her car to leave, he grabbed the drivers side window, which was partially opened, and broke it. He then followed her, and, after he tried to cut her off and run her off the road, D. called the police. Officer Chavez responded to the call and met her at a parking lot. She was crying in her car. The window was broken. She then told Officer Chavez what had happened. However, his report does not mention that defendant had tried to run D. off the road.

On direct, D. testified that on April 9, she also reported the April 4 incident, but on cross-examination, she corrected herself and said she mentioned the April 4 incident at follow-up interviews on April 12 and 14. At those interviews, she told police that she did not want to talk about the April 4 incident, and during the latter interview, she apologized and said, "Im messed up right now." D. testified that she did not really want to report the April 4 incident because she did not want defendant to be in any more trouble than he was going to be in.

Defendant was later convicted of misdemeanor vandalism, misdemeanor spousal battery, and misdemeanor violation of a protective order, and a certified copy of those convictions was admitted into evidence (Exhibit 13).

MULTIPLE CONVICTIONS FOR FALSE IMPRISONMENT

Defendant contends that the evidence of the incident on May 26 was insufficient to support two convictions for false imprisonment. He argues that there was a single, continuous restraint on D.s liberty that supported only one conviction. We agree.

False imprisonment is necessarily included in the greater crime of kidnapping, in that both involve the nonconsensual detention or confinement of another person, and one cannot commit a kidnapping without restraining the victims liberty—i.e., committing false imprisonment.⁷ (People v. Chacon (1995) 37 Cal.App.4th 52, 65; People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121; People v. Gibbs (1970) 12 Cal.App.3d 526, 547; People v. Morrison (1964) 228 Cal.App.2d 707, 713; People v. Hernon (1951) 106 Cal.App.2d 638, 639-640.)

7 Under section 207, subdivision (a), "Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping."
Section 236 defines false imprisonment as "the unlawful violation of the personal liberty of another." "Any exercise of force, or express or implied threat of force, by which in fact the other person is deprived of his liberty or is compelled to remain where he does not wish to remain, or go where he does not wish to go, is false imprisonment." (People v. Agnew (1940) 16 Cal.2d 655, 659-660.)

Kidnapping is considered a continuing offense: once the forcible movement of a person commences, the kidnapping is ongoing and continues "until such time as the kidnapper releases or otherwise disposes of the victim and has reached a place of temporary safety . . . ." (People v. Barnett (1998) 17 Cal.4th 1044, 1159; accord, People v. Palacios (2007) 41 Cal.4th 720, 726.) In other words, "as long as the detention continues, the crime continues." (People v. Masten (1982) 137 Cal.App.3d 579, 588, disapproved on other grounds in People v. Jones (1988) 43 Cal.3d 585, 592, fn. 4.) For this reason, the continuous detention of a victim during a simple kidnapping cannot be divided into separate incidents to permit multiple convictions for that offense. (People v. Jackson (1998) 66 Cal.App.4th 182 (Jackson), 189; People v. Thomas (1994) 26 Cal.App.4th 1328, 1334-1335 (Thomas).)

For example, in Thomas, supra, 26 Cal.App.4th 1328, the defendant was convicted of two counts of abducting the victim to rob her of different items of her personal property. The defendant pointed a gun at the victim and forced her into her car. He took her wallet with credit cards and $35 in it. When the defendant said that he wanted her automatic teller machine (ATM) card, she told him it was at her apartment. Defendant drove the victim toward her apartment but stopped along the way to sexually assault her. He then drove to the apartment and told her get her ATM card while he waited outside. The victim went inside and called the police. The defendant fled before the police arrived. (Id. at pp. 1331-1332.) On appeal, the court reversed one of the kidnapping for robbery convictions on the ground that one continuous asportation of the victim could not be divided into two separate kidnapping for robbery offenses. (Id. at pp. 1334-1335.) The court reasoned that there had been a single abduction, followed by a continuous period of detention. The fact that the defendant may have changed his approach or focus as to the robbery, or engaged in other crimes after the abduction, did not transform the offense into two separate kidnappings. (Id. at p. 1335.)

Similarly, in Jackson, supra, 66 Cal.App.4th 182, the defendant accosted the victim at gunpoint on the steps of her apartment, forced her to walk to her car, and then to her apartment, where he sexually assaulted her. He then asked if she had any money or an ATM card, took her back to her car, and had her drive to an ATM machine to get money. She withdrew cash and gave it to him. He then told her to walk away and left. (Id. at pp. 185-186.) On appeal, the Attorney General argued that, apart from the defendants separate convictions for kidnapping for purposes of robbery and rape, the evidence supported a third conviction for simple kidnapping based on the defendants initial act of forcing the victim from the steps of her apartment to her car. (Id. at p. 189.) Citing Thomas, this court disagreed and reversed the simple kidnapping conviction because simple kidnapping was necessarily included in the kidnapping for purposes of sexual assault and robbery, and the kidnapping was continuous and could not be subdivided so as to permit multiple convictions. (Id. at pp. 189-190.)⁸

8 The defendant in Jackson did not challenge the separate convictions for kidnapping for purposes of sexual assault and kidnapping for purposes of robbery, we upheld them. Multiple convictions were proper despite the continuous nature of the victims detention because the two offenses have different intent elements. A defendant "may be charged with and convicted of multiple offenses based on a single act or indivisible course of conduct." (People v. Pearson (1986) 42 Cal.3d 351, 354, italics added.) Where the charges arising from a single act or an indivisible course of conduct involve different offenses entailing different elements of proof, a defendant may be properly convicted of both, unless one is a necessarily included offense of the other. (Id. at p. 355; People v. Rocha (1978) 80 Cal.App.3d 972, 975.)

Because ongoing confinement or detention of the victim renders kidnapping a continuous offense, it also renders the necessarily included offense of false imprisonment a continuous offense. (Parnell v. Superior Court (1981) 119 Cal.App.3d 392, 405-410 [where detention was ongoing, crimes of kidnapping and false imprisonment were not complete long after abduction, and therefore, statute of limitations had not run on either offense].) Therefore, we consider the reasoning of Thomas and Jackson applicable in determining whether here defendant may be convicted of multiple counts of false imprisonment based on a continuous period of confinement or detention.

Turning to the facts, we note that defendant pulled D. out of a car, dragged her to the elevator, took her to their apartment, pulled her inside and then into the bedroom, pushed her onto the bed, and beat her. He then dragged her into the bathroom and tied her to the shower door. Although she was able to untie herself and tried to escape, defendant prevented her from doing so and retied her to the door, put a sock into her mouth, and left. She then freed herself and retrieved a knife from the kitchen.

The Attorney General argues that the evidence would have supported three convictions: one based on defendants taking D. from the car to the bedroom; a second based on his taking her into the bathroom and tying her up the first time; and a third based on his catching her after she untied herself and tying her up again.

The Attorney General does not distinguish, or even acknowledge, Jackson and Thomas despite defendants reliance on them in his opening brief. Moreover, the Attorney Generals view of the incident confirms the uncontradicted evidence of a continuous, uninterrupted restraint of D.s liberty from the time defendant pulled her from the car to the time he left the apartment and she was able to free herself. Under the circumstances, we find that defendants course of conduct cannot be divided into separate and discrete incidents so as to support multiple convictions. Rather, the uninterrupted restraint of D. constitutes a single violation of section 236 that supports but one conviction. Accordingly, one of defendants convictions for false imprisonment must be reversed.⁹

9 Given our conclusion, we need not address defendants related claim that the court erred in giving a unanimity instruction requiring jurors to unanimously agree on the acts underlying a finding of guilt for each count of false imprisonment. We note, however, that such a claim concerning kidnapping has been rejected. (People v. Masten, supra, 137 Cal.App.3d 579, 588 [unanimity instruction unnecessary despite separate movements of the victim because evidences established continuous course of conduct and kidnapping is a ongoing offense that lasts as long as initial detention continues].)

CALCRIM NOS. 852 AND 1191

Defendant contends that CALCRIM Nos. 852 (Evidence of Uncharged Domestic Violence) and 1191 (Evidence of an Uncharged Sexual Offense) violated his right to due process because (1) they permitted jurors to use a preponderance-of-the-evidence standard to infer from uncharged prior misconduct that he "was likely to commit and did commit" the charged offenses; and (2) the instructions permitted jurors to base a finding of guilt solely on propensity evidence.¹⁰

10 In accordance with CALCRIM No. 1191, the court instructed the jury as follows: "The People presented evidence that the defendant committed the crime of spousal rape by force that was not charged in this case. This crime is defined for you in these instructions. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense. [¶] Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. [¶] A fact is proved by a preponderance of the evidence if you conclude that its more likely than not the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offense, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision also conclude that the defendant was likely to commit and did commit sodomy by force and spousal rape by force as charged here. [¶] If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. [¶] It is not sufficient by itself to prove that the defendant is guilty of sodomy by force and spousal rape by force. The People must still prove each element of every charge beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose."
In accordance with CALCRIM No. 852, the court instructed the jury as follows: "The People presented evidence that the defendant committed domestic violence that was not charged in this case, specifically spousal battery and false imprisonment in 2003 and 2004. [¶] Domestic violence means abuse committed against an adult who is a spouse. [¶] Abuse means intentionally or recklessly causing or attempting to cause bodily injury[,] or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. [¶] Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] . . . [¶] If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, find or conclude from this evidence that the defendant was disposed or inclined to commit domestic violence, and based on that decision, also conclude that the defendant was likely to commit and did commit false imprisonment by violence and inflicting injury on a spouse as charged here. [¶] If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. [¶] Its not sufficient by itself to prove that defendant is guilty of sodomy—excuse me—of false imprisonment by violence or inflicting injury on a spouse. [¶] The People must still prove each element of every charge beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose."

Use of the Preponderance Standard

In support of his claim that the instructions erroneously permitted jurors to draw inferences using a preponderance standard, defendant cites People v. Reliford (2003) 29 Cal.4th 1007 (Reliford). In Reliford, the Supreme Court upheld the constitutionality of CALJIC No. 2.50.01 (1999 Revision), an instructional predecessor to CALCRIM No. 1191, that, like CALCRIM Nos. 1191 and 852, allowed jurors to infer from similar uncharged misconduct that he was "`likely to commit and did commit" the charged offenses. (Id. at p. 1012.) The court addressed whether the instruction, in permitting jurors to find the prior acts by a preponderance of the evidence, also allowed jurors find him guilty under that standard rather than beyond a reasonable doubt. In rejecting that suggestion, the court stated, "Nothing in the instructions authorized the jury to use the preponderance-of-the-evidence standard for anything other than the preliminary determination whether defendant committed a prior [uncharged misconduct]." (Id. at p. 1016, italics added.) The court continued, "The instructions instead explained that, in all other respects, the People had the burden of proving defendant guilty `beyond a reasonable doubt. (CALJIC Nos. 2.61, 2.90; see CALJIC No. 10.65.) Any other reading would have rendered the reference to reasonable doubt a nullity. In addition, the jury was told that circumstantial evidence could support a finding of guilt of the charged offenses only if the proved circumstances could not be reconciled with any other rationale conclusion (CALJIC No. 2. 02)—which is merely another way of restating the reasonable-doubt standard. [Citation.] The jury thus would have understood that a conviction that relied on inferences to be drawn from defendants prior offense would have to be proved beyond a reasonable doubt." (Reliford, supra, 29 Cal.4th at p. 1016.)

Citing the italicized portion of the courts analysis, defendant argues that jurors may properly use the preponderance standard only to find that the defendant committed the uncharged misconduct, and therefore, in drawing inferences from that misconduct, jurors must use the beyond-a-reasonable-doubt standard. Defendant claims that CALCRIM Nos. 852 and 1191 are flawed because they permitted jurors to apply the preponderance standard to the entire chain of inferences from the uncharged offenses—i.e., that defendant has a disposition to commit similar offenses and further that he was likely to commit and did commit the charged offenses.

"In assessing a claim of instructional error, `we must view a challenged portion "in the context of the instructions as a whole and the trial record to determine "`whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." [Citations.]" (People v. Jablonski (2006) 37 Cal.4th 774, 831, quoting Reliford, supra, 29 Cal.4th at p. 1013 & Estelle v. McGuire (1991) 502 U.S. 62, 72.)

First, the whole passage quoted above defeats defendants claim that the instructions permitted jurors to use the preponderance standard to draw inferences from his prior offenses. Like the 1999 version of CALJIC No. 2.50.1, the CALCRIM instructions did not authorize the jury to use the preponderance-of-the-evidence standard for any purpose other than the preliminary determination of whether he had previously committed spousal rape by force, spousal battery, and false imprisonment. Moreover, the CALCRIM instructions go further than the CALJIC instruction. They did not just generally tell jurors that the uncharged offenses were insufficient to prove guilt beyond a reasonable doubt. The instructions expressly told jurors that the evidence was not sufficient by itself to prove defendants guilt but is only one factor to be considered along with the other evidence and that the prosecution still had the burden to prove each element of every charge beyond a reasonable doubt. Moreover, as in Reliford, the court instructed jurors about circumstantial evidence, informing them that they could rely on such evidence to find defendant guilty only if guilt is the only reasonable conclusion supported by that evidence and only if the prosecution has proved that guilt beyond a reasonable doubt. (CALCRIM No. 224.) The courts other instructions on the presumption of innocence (CALCRIM No. 220), defendants right not to testify (CALCRIM No. 355), sodomy by force (CALCRIM No. 1030) and rape by force (CALCRIM No. 1000) all informed jurors that the prosecution had the burden to prove guilt beyond a reasonable doubt.

Last, we note that the jurors were told "[p]ay careful attention to all of these instructions and consider them together." (CALCRIM No. 200.)

Under the circumstances, we conclude, as did the court in Reliford, that jurors would have understood "that a conviction that relied on inferences to be drawn from defendants prior offense would have to be proved beyond a reasonable doubt." (Reliford, supra, 29 Cal.4th at p. 1016.) It is no more likely that jurors would think the preponderance standard applied to inferences they drew from uncharged offenses than, as found in Reliford, they would think that the lesser standard applied to the ultimate determination of guilt.

Moreover, insofar as jurors could reasonably have understood the CALCRIM instructions to permit them to draw inferences based on a preponderance of the evidence, the instructions did not violate defendants right to due process.

Our analysis on this point is guided by Ulster County Court v. Allen (1979) 442 U.S. 140 (Ulster). There, four people were charged with illegally possessing handguns found inside a car, in which they were riding. At issue was the constitutionality of an instruction based on a statute that permitted jurors to infer an element of the offense—possession—from the mere presence of a firearm inside the car. (Ibid.)

The court announced that to pass constitutional muster under the due process clause, an instruction creating a permissible inference "must not undermine the factfinders responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt. [Citations.]" (Ulster, supra, 442 U.S. at p. 156.) The court explained that, because a permissive inference "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. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination." (Id. at p. 157.) In other words, to protect the proper application of the beyond-a-reasonable-doubt standard, there must be a "`rational connection" between the established fact and the inference drawn from it, which, the court explained, meant that the inferred fact must "`more likely than not" flow from the underlying fact. (Id. at 165, quoting Tot v. United States (1943) 319 U.S. 463, 467; Leary v. United States (1969) 395 U.S. 6, 36 [reaffirming Tot].)

The defendants challenged the application of a permissive inference, arguing that it must be determined under the reasonable-doubt standard, rather than the preponderance or more-likely-than-not standard. (Ulster, supra, 442 U.S. at p. 166.) However, the court disagreed. It explained that the defendants claim "overlooks the distinction between a permissive presumption on which the prosecution is entitled to rely as one not necessarily sufficient part of its proof and a mandatory presumption which the jury must accept even if it is the sole evidence of an element of the offense. [¶] In the latter situation, since the prosecution bears the burden of establishing guilt, it may not rest its case entirely on a presumption unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt. But in the former situation, the prosecution may rely on all of the evidence in the record to meet the reasonable-doubt standard. There is no more reason to require a permissive statutory presumption to meet a reasonable-doubt standard before it may be permitted to play any part in a trial than there is to require that degree of probative force for other relevant evidence before it may be admitted. As long as it is clear that the presumption is not the sole and sufficient basis for a finding of guilt, it need only satisfy the [more-likely-than-not] test . . . ." (Ulster, supra, 442 U.S. at pp. 166-167, fn. omitted, italics added.)

Here, it is clear that the CALCRIM instructions given by the court create permissive inferences. Each instruction allows—but does not require—the trier of fact to infer a disposition or propensity to commit certain types of misconduct from evidence of similar uncharged misconduct and further infer a likelihood that the defendant would and did commit the charged offense. (Schnabel (2007) 150 Cal.App.4th 83, 87 (Schnabel) [CALCRIM No. 1191 creates permissive inference]; see People v. McCall (2004) 32 Cal.4th 175, 183, fn. 5 [explaining permissive inferences].)

Next, we note that the instructions explain to jurors how evidence of uncharged misconduct can be relevant and demonstrate how to consider such evidence. Specifically, the instructions outline the chain of reasoning that jurors must engage in to link the commission of uncharged misconduct to the commission of the charged offenses. First, they must determine whether the defendant committed the uncharged misconduct. If they so find, then they may infer that the defendant has a propensity to commit such misconduct. And if they draw that inference, then they may infer that the defendant was likely to commit and further that he did commit the charged offense.

Obviously, the purpose of permitting jurors to infer a likelihood that a defendant would commit the charged offense is to permit jurors to rely on that inference in determining whether defendant actually committed the charged offense. Thus, to be complete, the instruction had to include the last link in the chain of reasoning. However, even though the last inference encompasses the ultimate issue—i.e., that defendant committed the charged offense—permitting jurors to draw it by a preponderance of the evidence does not automatically or necessarily render the CALCRIM instruction constitutionally defective.

As Ulster teaches, permitting jurors to infer an element of an offense by a preponderance of the evidence passes constitutional muster if it does not undermine the jurys duty to find all of the elements of an offense beyond a reasonable doubt based on all of the evidence and if it clearly informs jurors that the inference is not the sole and sufficient basis for a finding of guilt. (Ulster, supra, 442 U.S. at pp. 156, 166.)

The CALCRIM instructions at issue expressly inform jurors that the underlying fact and permissible inferences are not themselves sufficient to prove the defendant guilty of the charged offenses but are only one factor to be considered along with the rest of the evidence in determining guilt. The instructions also expressly warn jurors that, notwithstanding the uncharged offenses and permissible inferences, the prosecution must still prove each element of every charged offense beyond a reasonable doubt. Given these warnings and the courts other instructions, which reiterated the prosecutions burden, we conclude that the CALCRIM instructions do not undermine the jurys duty to find the essential elements of an offense beyond a reasonable doubt or suggest that inferences from the uncharged offenses could be the sole and sufficient basis for a finding of guilt. Accordingly, the CALCRIM instructions are not constitutionally infirm insofar jurors might understand them to allow inferences to be drawn by a preponderance of the evidence. (See People v. Pescador (2004) 119 Cal.App.4th 252, 259 [suggesting that instructions properly permit inferences based on preponderance standard].)

Defendant acknowledges Ulster but suggests that due process permits jurors to draw an inference by a preponderance of the evidence only if the instruction requires jurors to find the underlying fact beyond a reasonable doubt. Thus, he argues that where, as here, jurors are allowed to find the underlying fact—the commission of uncharged offenses—by a preponderance of the evidence, the permissible inferences must be drawn beyond a reasonable doubt.

Defendant cites, and we can find, no case imposing such a requirement or even suggesting it. Moreover, we note that in Ulster, the court did not base its analysis on the fact that the jury had found the underlying fact—the presence of the weapons inside the defendants car—beyond a reasonable doubt. The court did not even mention that fact. Nor did the court in any way indicate that if an instruction creates a permissive inference, then due process invariably requires jurors to use the reasonable-doubt standard at some point in the process of drawing the inference—i.e., either in finding the underlying fact or in inferring an element of the offense from it.

Furthermore, defendant does not explain why such a requirement is necessary to protect a defendants right to due process and avoid lessening the prosecutions burden. Nor can we conceive of compelling reason for such a requirement. Rather, under Ulster, as long as the instruction as a whole does not undermine the jurys duty to find the elements of the offense beyond a reasonable doubt; and as long as the instruction makes it clear that the uncharged offenses and inferences are just one factor to be considered along with all of the evidence and by themselves are not sufficient to support a finding of guilt, there is no constitutional defect in an instruction that permits jurors to use the preponderance standard both to find the underlying fact and draw inferences.

Conviction based on Propensity Evidence

Citing People v. James (2000) 81 Cal.App.4th 1343, defendant next claims the CALCRIM instructions erroneously allowed jurors to base a guilty verdict on propensity evidence. In this regard, he again notes that the instructions permitted jurors to infer from the uncharged offenses that he "was likely to commit and did commit" the charged offenses. (Italics added.)

In People v. James, supra, 81 Cal.App.4th 1343, the court dealt with the 1997 version of CALJIC No. 2.50.02 that permitted jurors to infer that the defendant was likely to commit and did commit the charge offenses. (Id. at pp. 1349-1350.) Because the instruction did not inform jurors that the evidence of uncharged offenses and permissible inferences from it were not sufficient, standing alone, to support a conviction or that, notwithstanding that evidence and those inferences, the prosecution still had the burden to prove every element of the charged offenses beyond a reasonable doubt, the court concluded that the instruction violated the defendants right to due process by "opening the door to conviction based merely on propensity." (Id. at p. 1346, italics added.)

In a footnote, the court noted that instruction had subsequently been revised, and the 1999 revision did warn jurors that the propensity evidence was not enough by itself to prove guilt beyond a reasonable doubt. (People v. James, supra, 81 Cal.App.4th at p. 1349, fn. 6.)

As noted, in Reliford, supra, 29 Cal.4th 1007, the court dealt with the 1999 revision of the instruction and held that it correctly stated the law and did not violate the defendants right to due process or lessen the prosecutions burden to prove guilt beyond a reasonable doubt. (Id. at pp. 1009, 1016.) The court also opined that the subsequent revision in 2002 further improved the instruction by warning jurors that "`[i]f you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime." (Id. at p. 1016.)

Recently, in both People v. Schnabel, supra, 150 Cal.App.4th 83 and People v. Cromp (2007) 153 Cal.App.4th 476 (Cromp), the courts opined that the version of CALJIC No. 2.50.01 upheld in Reliford is similar in all material respects to CALCRIM No. 1191 concerning its explanation of the law on permissive inferences and the burden of proof; and, for that reason, the courts felt compelled to reject a due process challenge to CALCRIM No. 1191. (Schnabel, supra, 150 Cal.App.4th at p. 87; Cromp, supra, 153 Cal.App.4th at p. 480; see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Moreover, we note that, for the purpose of analyzing defendants claim, CALCRIM Nos. 852 and 1191 are identical, and both provide more explicit guidance and thus are more protective of due process rights than the 2002 revision of CALJIC No. 2.50.01. As noted, the CALCRIM instructions expressly warn jurors not only that (1) evidence of other uncharged misconduct is not enough by itself to prove guilt and (2) such evidence is only one factor to be considered along with the rest of the evidence in determining guilt, but also that (3) prosecution must still prove each element of every charged offense beyond a reasonable doubt.

In sum, we consider People v. James, supra, 81 Cal.App.4th 1343 to be inapposite. Its analysis of the 1997 version of CALJIC No. 2.50.01 does not suggest that the CALCRIM instructions are constitutionally defective because they do not permit jurors to base a finding of guilt on propensity evidence. Moreover, given the holding in Reliford, we reject such a view. Indeed, as the courts in Schnabel and Cromp concluded, we are in no position to disregard—let alone reach a conclusion contrary to—the holding in Reliford. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)

DOCUMENTARY EVIDENCE OF PRIOR CONVICTIONS

Defendant contends that he received ineffective assistance of counsel, in that his attorney failed to object to the admission of certified copies of his prior convictions and/or seek to have them redacted.

Background

The record reveals that prior to trial, defense counsel objected to testimony by D. and police officers concerning the incidents on April 4 and July 6. He argued that the evidence was inadmissible under Evidence Code sections 1108, 1109, and 352 because the prejudice from testimony about the incidents outweighs any probative value it might have, especially testimony from police officers about the assaultive conduct. In particular, counsel stated, "I wanted to first point out in the April incident that [defendant] was only convicted of a misdemeanor restraining order violation, a misdemeanor domestic violence related battery, [section] 243 [subdivision] (e)[1], and a vandalism misdemeanor. And then in the 2003 incident, he was convicted of a misdemeanor false imprisonment and a misdemeanor battery, domestic-violence related. Thats the (e) subsection. [¶] So I wanted to make the argument that under [Evidence Code section] 352, allowing more of these facts that were alleged originally is highly prejudicial to [defendant] and its more prejudicial than probative in this case because what he was convicted of should be considered the truth about what happened. That these misdemeanors, that he violated a restraining order, that he falsely imprisoned her, was it causing injury analogy [sic], allowing this evidence that you knew there was some protracted domestic violence struggle, that he follows her, that she thinks hes going to kill her. This is not what he was convicted of. And if thats the case, I think the jury will be misled by that fact. They will be misled that that actually is what happened and that he was convicted of all of this. [¶] Im very concerned that they are going to assume that this situation was a lot more serious than the Courts belief that it was because this only related—resulted, should say, in misdemeanor convictions for domestic violence." Counsel further argued that "allowing this, you know, full litigation of what happened back in 2003 and 2004, its not only time consuming, it misleads the jury about the truth of the accusations."

The court overruled counsels objection and ruled that the testimony was admissible. Later, after the close of evidence, the prosecutor offered and the court admitted certified copies of the convictions that resulted from charges arising from the two incidents. At that time, defense counsel did not object to the admission of those documents.

During closing argument concerning the uncharged incidents, defense counsel argued, "April of 2004. She has made an allegation in April of 2004 that there was some forcible sex. But then remember how she went back and forth about that? She kind of equivocated. She was more concerned about the broken window. Who is more concerned about a broken window in a car than about a violation like that? [¶] [She said] I dont want to get into it. Thats not something I want to talk about. I dont want to bring that up. Im messed up right now. [¶] Same thing in July of 2003. She talked about letting him do his thing. After this alleged sexual assault that she told us about, they take a nap together. They laid down for a rest together. It doesnt sound like shes been forcibly raped. Later on after the nap, she removes her own clothes. They have consensual sex. I believe the testimony was two times that day. [¶] She is also stating things like I dont actively participate, I dont feel like I have been raped. The incidents pretty much forgotten. This is the going back and forth. That in that incident on November 25 of 2005, you can use all of this evidence to judge whether you think that the district attorney has proven that [defendant] could not beyond all reasonable doubt have had an actual and reasonable belief in consent. [¶] Now we had some evidence about these priors, about the 2003 incident and also the 2004 incident. I think its very, very important that you take a long hard look at Peoples Exhibit 14 and Peoples Exhibit 13. This is what came out of the police reports and the prosecution in 2003 and 2004."

Counsel continued, "In her argument [the district attorney] made it very clear that these are serious, important crimes, that these are worth prosecuting. Thats why we are all here. The District Attorneys Office thought they were worth prosecuting. These incidents in 2003 and 2004, he was never charged with rape. He was never charged with sexual assault. Look very carefully at these. Hes convicted of a vandalism, restraining order violations, a misdemeanor battery. Its all in there."

Discussion

To obtain reversal due to ineffective assistance, a defendant must first show "that defense counsels performance fell below an objective standard of reasonableness, i.e., that counsels performance did not meet the standard to be expected of a reasonably competent attorney . . . ." (People v. Cunningham (2001) 25 Cal.4th 926, 1003; Strickland v. Washington (1984) 466 U.S. 668, 688.) Where the record on direct appeal "does not show the reason for counsels challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Anderson (2001) 25 Cal.4th 543, 569.) Because the defendant bears this burden, "[a] reviewing court will indulge in a presumption that counsels performance fell within the wide range of professional competence and that counsels actions and inactions can be explained as a matter of sound trial strategy." (People v. Carter (2003) 30 Cal.4th 1166, 1211.) Second, defendants must show that there is "a reasonable probability that defendant would have obtained a more favorable result absent counsels shortcomings." (People v. Cunningham, supra, 25 Cal.4th at p. 1003.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Staten (2000) 24 Cal.4th 434, 450-451.)

Ordinarily, matters involving trial tactics are not subject to judicial hindsight and the courts will not attempt to second-guess trial counsel since trial counsel was in the best position to determine trial tactics in light of his or her observations of the jurys apparent reactions to the proceedings. (People v. Frierson (1979) 25 Cal.3d 142, 158; People v. Najera (1972) 8 Cal.3d 504, 516-517, disapproved on other grounds in People v. Wiley (1995) 9 Cal.4th 580, 589, fn. 6.) Only when a critical tactical decision would not have been made by diligent, ordinarily prudent criminal trial attorneys will a reviewing court find ineffective assistance of counsel in the choice of trial tactics. (People v. Pope (1979) 23 Cal.3d 412, 424.)

Generally, "[a]n attorney may choose not to object [to proffered evidence] for many reasons and the failure to object will rarely establish ineffective assistance of counsel." (People v. Kelly (1992) 1 Cal.4th 495, 540; accord, People v. Lewis (2001) 25 Cal.4th 610, 678; People v. Avena (1996) 13 Cal.4th 394, 444-445; People v. Ghent (1987) 43 Cal.3d 739, 772; People v. Frierson, supra, 25 Cal.3d at p. 158.) Moreover, "[t]he failure to object to admissible evidence does not constitute ineffective assistance of counsel when to do so would have been futile. [Citations.]" (People v. Ferraez (2003) 112 Cal.App.4th 925, 934-935.)

Here, we first note that, for the purpose of proving a disposition to commit domestic violence or sexual offenses under Evidence Code sections 1108 and 1109, the record of a conviction is admissible to prove that defendant committed the prior offenses. (Evid. Code, § 452.5, subd. (b); People v. Wesson (2006) 138 Cal.App.4th 959, 967-968; People v. Duran (2002) 97 Cal.App.4th 1448, 1461.) Thus, subject to exclusion under Evidence Code section 352 as more prejudicial than probative, the records of defendants convictions were admissible.

Evidence Code section 352 provides: "The 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." Prejudicial evidence means "`"evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues."" (People v. Bolin (1998) 18 Cal.4th 297, 320.) "`In applying section 352, "prejudicial" is not synonymous with "damaging." [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638.)

Under the circumstances, counsel reasonably could have concluded that a "352" objection would have been overruled. The exhibits were admissible to prove the prior offenses. Their admission would not have consumed much time, and did not do so. The evidence had little tendency to confuse the issues or mislead the jury. Indeed, from defendants perspective, the convictions could have helped jurors evaluate D.s testimony about the underlying incidents. And because the convictions were directly related to and far less inflammatory than D.s testimony, they carried little risk of evoking an irrelevant and unique emotional bias against defendant as an individual.

The record also suggests a reasonable basis for counsels omission. After the court overruled counsels objection to testimony about defendants uncharged conduct, counsel reasonably could have declined to object because defendants convictions reflected far less serious offenses than D.s description of felonious conduct—i.e., choking her, raping her, tying her up numerous times, and beating her. Thus the convictions enabled counsel to impeach D. by arguing that she grossly exaggerated defendants uncharged conduct and was grossly exaggerating his charged conduct as well. Indeed, that is what counsel did during closing argument. Counsel argued that shortly after the charged offenses, D. did not tell the police everything that she told the jury at trial. Counsel was also able to show that D. related things to the police differently than she related them at trial. Thus counsel argued that D.s "stories are escalating, are exaggerating everytime she tells them."

Under the circumstances, defendant fails to demonstrate that, as a matter of law, counsels failure to object was unreasonable.

Defendant alternatively claims that counsel was ineffective in failing to seek the redaction of "irrelevant, highly inflammatory information" in the certified copies of the convictions. He points out that Exhibits 13 and 14 included two minute orders, which reflected that he had twice been ordered to attend domestic violence counseling, stated the terms and length of defendants sentences as well as the fees and fines that were imposed, and indicated that he was sentenced on May 24, 2004, only two days before committing three of the offenses charged in this case. He argues that this information was irrelevant and "extremely prejudicial."

We note that the exhibits contained many documents, but the first document in each exhibit was the charging document. Each exhibit also included numerous minute orders, which are the standard, preprinted, multi-purpose forms enumerating the wide variety of things that can take place at a hearing and providing boxes that the clerk can check to record what happens. The forms are mostly comprised of technical terms of art, code sections, and abbreviations. There are also spaces for the clerk to make notations. The two orders that defendant refers to are filled with much information and have numerous checked boxes, circled items, and abbreviated hand-written notations. The orders also note several different dates.

Next, we note that when the exhibits were formally admitted, the prosecutor recited only the various Penal Code sections under which defendant had been convicted. During her closing argument, the prosecutor noted that the exhibits had been admitted to show the convictions that had resulted from the events D. had described at trial. The prosecutor then named the specific offenses and told jurors that, if necessary, they could refer to the charging document in each exhibit to correlate the names of offenses with the corresponding Penal Code sections. The prosecutor did not refer to the minute orders or suggest that they would be helpful for any purpose.

Defense counsel referred to the exhibits and, as noted, urged jurors to note the difference between D.s testimony and the minor offenses of which he was convicted. Counsel also did not expressly refer to the minute orders or suggest that jurors should consult them for any reason.

Neither the prosecutor nor defense counsel mentioned defendants domestic violence programs, the fees, fines, penalties, and sentences that had been imposed on defendant, or the proximity between the date of sentencing and the commission of certain charged offenses.

Given the number of minute orders in each exhibit, the obviously technical nature of the references on them, and their purpose, defense counsel reasonably could have deemed it a remote possibility that jurors would carefully study and be able to decipher the abbreviations and references in each one, focus on a few of the notations, and draw negative inferences from them. Counsel also reasonably could have considered the prejudice from any such inferences negligible in light of D.s testimony about defendants force and violence against her. Finally, counsel could have thought that redaction might draw attention and trigger distracting speculation concerning what had been redacted and why. Under the circumstances, defendant does not conclusively demonstrate that counsels failure to seek redaction was unreasonable as a matter of law.

In any event, for these same reasons and because there was overwhelming evidence of guilt, we would not find that counsels omission compelled reversal.

Again, any prejudicial inferences that jurors might possibly have drawn from a few obscure references in the minute orders were insignificant compared with the highly inflammatory nature of D.s testimony about both the prior incidents and the charged offenses.

Moreover, there was strong and substantial evidence corroborating D.s testimony about the charged offenses. First, the uncharged misconduct clearly established that defendant had a disposition to commit acts of force against D., in that he had a stormy, physical, and abusive relationship with her that included, at a minimum, the violation of a protective order, spousal battery, and false imprisonment.

Concerning the May 2004 incident, two police officers corroborated D.s testimony that defendant had tied her to the shower door with electrical cords and towels. The officers found towels and an electrical cord in or near the bathroom and saw red marks on D.s wrists that were the same size as the electrical cord. Moreover, Mendoza corroborated D.s testimony that she grabbed a knife to protect herself once defendant returned to get the children, whom he had left in the bushes downstairs. Mendoza saw the children in the bushes and observed D. wielding a knife at defendant.

Concerning the November 2004 incident, medical evidence and testimony concerning a scratch on D.s neck; tenderness on her temples, ribs, jaw, waist, and hips; and injuries, redness, and abrasions to her genital and anal areas corroborated D.s testimony about being attacked, choked, raped, and sodomized. Moreover, defendants second call to his mother corroborated D., in that he admitted that he wanted "everything [he] could get from her" if this was going to be the "last time" because she wanted to leave.

Simply put, given the evidence of guilt, defendant cannot establish a reasonable probability that the jury would have reached a more favorable verdict had a few obscure references in two of the many minute orders in Exhibits 13 and 14 been redacted.¹¹

11 Defendant claims that jurors apparently had doubts about D.s credibility and was not "immediately persuaded" by her testimony because they asked for a transcript of her testimony about the November 2005 incident.
We consider defendants inference of doubt from the jurys request to be speculative. The request just as readily implies that jurors were diligently working their way through the charges with special care, given the seriousness of the case and the fact that there were two sets of charges based on two incidents and the serious nature of the case. (Cf. People v. Houston (2005) 130 Cal.App.4th 279, 301 [length of deliberations indicative of diligence and not necessarily the closeness of the case].) Indeed, the jury did not request the testimony concerning the May 2004 incident.

CROSS-EXAMINATION ¹²

12 In this section, all unspecified statutory references are to the Evidence Code.

Defendant contends that the court erroneously restricted the cross-examination of D., in that the court would not permit counsel to impeach her with evidence that she lied in an application for certain welfare benefits. Alternatively, defendant claims his attorney rendered ineffective assistance of counsel in failing to renew her request to impeach D. on this ground.

Background

Prior to trial, defense counsel sought the release of records concerning any social services and welfare benefits that D. had received. Counsel sought the records to investigate possible perjury and welfare fraud, asserting that the records might show that when D. applied for benefits, she stated, under penalty of perjury, that she was living alone when, in fact, defendant was living with her at the time. The court granted the request subject to a protective order concerning the records. Thereafter, counsel informed the court that she intended to impeach D. with evidence of false representations on benefit applications that she was living alone from March 1 to the end of August 2005. The prosecutor objected on the ground that evidence a person receives public assistance is privileged. (See Welf. & Inst. Code, § 10850.) The court did not rule on the admissibility of the evidence at that time.

Before D. testified, the court expressed concern that her testimony about when defendant was living with her might be self-incriminating and advised her of her right to an attorney and her privilege against self-incrimination. She said she understood, waived her rights, and elected to testify.

As noted, D. testified that when she could no longer live with her friend, she needed to find a place and moved into defendants apartment on St. James Street. He was not supposed to stay and promised to move out, but he never found his own place. She said she thought that she signed the lease sometime in May. D., her children, and defendant lived together there from April or May 2005 to late November 2005.

During a break in cross-examination and outside the presence of the jury, the court discussed whether counsel could impeach D. with documentary evidence that in March and later in May, D. signed benefits application under penalty of perjury, averring that she was living alone with her children and no one else was contributing to their support. Later, the court recounted on the record its discussion with counsel. The court explained that, in light of D.s testimony, "I dont find that those facts could reasonably support any finding of perjury or false statement on the part of the witness, that I would not allow a violation of privilege and use of those records. However, I did also indicate to you that if you believed the circumstances change or your burden or level of proof would change, that you were free to raise that issue again with the Court."

Initial Exclusion of Evidence

Section 780 specifies that, in evaluating a witnesss credibility, "the court or jury may consider . . . any matter that has any tendency in reason to prove or disprove the truthfulness of his [or her] testimony at the hearing, including but not limited to any of the following: [¶]. . . [¶] (e) [Her] character for honesty or veracity of their opposites. [¶] (f) The existence or nonexistence of a bias, interest, or other motive. [¶] . . . [¶] (i) The existence or nonexistence of any fact testified to by [her]." (See also Cal.Const., art. I, § 28, subd. (d) [conduct reflecting moral turpitude admissible to impeach].)

Questions of admissibility under section 780 are addressed to the sound discretion of the trial court. We review a courts ruling under the deferential standard of abuse of discretion and will uphold it "unless the trial court `exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]" (People v. Ledesma (2006) 39 Cal.4th 641, 705, People v. Thornton (2007) 41 Cal.4th 391, 428; People v. Lavergne (1971) 4 Cal.3d 735, 743.) In general, we review the correctness of the trial courts ruling based on the record at the time it was made and not on evidence or information that subsequently became available. (People v. Panah (2005) 35 Cal.4th 395, 434, fn. 10.)

Here, defendant proffered that in March and again in May 2005, D. falsely declared that she and her children were living alone—i.e., not with defendant—and no one else was contributing to their support. Her direct testimony was that defendant moved into the St. James apartment in April, she started living there in April or May, and signed a lease in May.

Given the ambiguity of D.s testimony concerning whether she ever lived in the apartment in April and when in May she first moved in and the lack of any evidence that defendant contributed anything to the familys support at the time D. applied for benefits, we find that the court reasonably concluded that the proffered evidence did not show perjury of false statements. Thus, the court acted within its discretion in excluding the proffered impeachment evidence on the grounds that it was irrelevant and potentially misleading and confusing. Accordingly, we do not find that the courts initial ruling was arbitrary, capricious, or patently absurd such that it resulted in a manifest miscarriage of justice. This is especially so because the court invited defense counsel to renew her effort to use the evidence if she elicited additional evidence on cross-examination that might change the courts view.

Defendant notes that during direct examination, the prosecutor showed D. photographs of the St. James apartment and asked whether they "accurately represent what your apartment looked like as of April 26, 2005 (sic)?" D. responded, "Yes." Defendant argues that this exchange conclusively established that D. was living with him in April before she signed her application for benefits in May. We disagree.

The record reflects that after D. said that she and defendant lived at the apartment until November 2005, the prosecutor asked her to describe the place. The prosecutor then showed D. six photographs of the living room and bathroom. Concerning the first photograph, she asked D. if it "fairly and accurately depict[ed] what your apartment looked like as of November 26, 2005," which was the day after one of defendants attacks. D. replied that it did. The prosecutor then went through three more photographs and asked whether they reflected what the apartment looked like on "April 26, 2005 (sic)?" (Italics added.) D. said "[y]es." The prosecutor asked who else she was living with, and D. said defendant and her daughters. The prosecutor then asked if she was living there as of November 25, 2005, and whether she remembered an incident that occurred on that day. D. said she did and then testified about that incident.

Viewed in context, the exchange noted by defendant does not conclusively establish that defendant and D. were living together in April before she applied for benefits. The prosecutor initially asked whether the first photographs reflected the apartment on November 26, the day D. reported the attack and when police would have had a reason to take photographs of it. April 26, on the other hand, is not a date of particular significance to any issue in the case. Thus, the prosecutor had no reason to ask D. whether the other photographs taken in November reflected what the apartment looked like that particular day. Finally, we point out that the focus of the direct examination at this point was on the November 25 attack, and the ostensible purpose of the pictures was to illustrate and help jurors visualize where that attack occurred.

Under the circumstances, the passage cited by defendant more strongly suggests that the prosecutor misspoke and mistakenly referred to April 26 when she meant November 26. Indeed, it appears that the court reporter wondered about the prosecutors April reference because the transcript includes "(sic)," presumably to make it clear that "April" was not a possible error in transcription but what the prosecutor actually said. In short, we are not convinced that the courts initial ruling was error as a matter of law.¹³

13 Given our conclusion, we need not address defendants claim that the court erred excluding the evidence of perjury and welfare fraud on the ground that it was privileged without having first determined whether defendants need to use the information for his defense outweighed the need to keep the information confidential under Welfare and Institutions Code section 10850.

We further conclude that, even if the court should have allowed counsel to use the welfare applications to impeach D., the error would not compel reversal.

In this regard, we note that when the allegedly false statements were made, D. had no place to stay other than defendants apartment, he was not supposed to be there and had promised to move out, and D. had no way of knowing at the time she applied for benefits that he would never do so. Thus, although the averment that she and her children were living alone without the support of anyone else was technically false, the circumstances do not strongly suggest that she was purposefully trying to conceal the fact that defendant was permanently living with her so that she could wrongfully obtain benefits to support her family.

Next, we observe that although a false averment would implicate D.s honesty, veracity, and credibility, it would not directly contradict or necessarily cast doubt on her specific testimony about the events in May 2004 and November 2005. In that regard, the discrepancies in D.s preliminary hearing and trial testimony about the incidents, her inability at trial to remember key aspects, her failure to report some details to the police in a manner consistent with her testimony, all of which defense counsel brought out, constituted a direct and pertinent form of impeachment.

Last, as discussed above, there was strong evidence of guilt, including corroboration by third parties of key portions of D.s testimony, and defendants statement to his mother about wanting to get all he could from her if this was going to be the last time because she wanted to leave.

On balance, we do not find it reasonably probable that impeaching D., a young mother of two who expected defendant to move out, with evidence of false statements in a welfare application about living alone would have so significantly changed the jurors view of D.s credibility that they would have disbelieved her testimony and returned a verdict more favorable to defendant. (People v. Watson (1956) 46 Cal.2d 818, 836.)¹⁴

14 We reject defendants claim that, because the restriction violated his constitutional rights to cross-examination, confrontation, due process, and a fair trial, the courts error would be reviewable under the federal standard in Chapman v. California (1967) 386 U.S. 18.
The Sixth Amendment guarantees the right of cross-examination, that is, "`an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. [Citation.]" (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679, quoting Delaware v. Fensterer (1985) 474 U.S. 15, 20, italics in Fensterer.) Under the Sixth Amendment, trial courts retain wide latitude to reasonably restrict the nature and subject matter of cross-examination based n concerns about harassment, prejudice, confusion of the issues, repetitiveness, and marginal relevance. (Delaware v. Van Arsdall, supra, 475 U.S. 673 ; People v. Carpenter (1999) 21 Cal.4th 1016, 1051.) Indeed, "[a]s a general proposition, the ordinary rules of evidence do not infringe on a defendants right to present a defense. [Citation.] Trial courts possess the `traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice." (People v. Frye (1998) 18 Cal.4th 894, 945, quoting People v. Hall (1986) 41 Cal.3d 826, 834.) Thus, for example, it is settled that the exclusion of impeachment evidence under section 352 does not violate the right of cross-examination unless a reasonable jury might have received a "significantly different impression" of the witnesss credibility had the excluded cross-examination been permitted. (Delaware v. Van Arsdall, supra, 475 U.S. at p. 680; People v. Quartermain (1997) 16 Cal.4th 600, 623-624.)
As noted, defense counsel repeatedly seized the opportunity to impeach D. with discrepancies in her testimony at trial and at the preliminary hearing and her statements to the police. Again, we do not find that the excluded impeachment evidence would have given jurors a significantly different impression of D.s honesty, veracity, and credibility.

Failure to Renew Effort to Use the Evidence

When counsel resumed her cross-examination of D., D.testified that she signed the lease for the apartment sometime in May after she moved in, which was in April or May 2005. She reiterated that she lived there continuously until November 2005, and, although defendant was not supposed to be there and had promised to leave, he never found a place and was there during that time.

Defendant argues that further cross-examination established "beyond dispute" that in May 2005, defendant was living with D., and she applied for benefits. Thus, he argues that counsels failure to renew her effort to use the evidence constituted ineffective assistance. We disagree.

In our view, D.s subsequent testimony was not substantially different from her previous testimony on direct and did not conclusively establish that defendant and D. were living together before she applied for benefits. For that reason, counsel reasonably could have deemed it unnecessary, if not futile, to renew the request. Under the circumstances, therefore, we do not find as a matter of law that counsel could not have had a tactical reason for her omission. Thus, defendant fails to demonstrate that he received ineffective assistance.

Moreover, for the same reasons that we would find judicial error in initially excluding the impeachment to be harmless, we would find counsels omission to be harmless. Simply put, we do not find a reasonable probability that defendant would have obtained a more favorable verdict or result had counsel renewed her effort to use the evidence. (Strickland v. Washington, supra, 466 U.S. at pp. 688, 694.)

CLOSING ARGUMENT

Defendant contends that the court erred in unduly restricting defense counsels ability to argue the meaning of the reasonable doubt standard.

The record reflects that after the court instructed jurors that the People must prove defendants guilt beyond a reasonable doubt, which meant "proof that leaves you with an abiding conviction that the charge is true," defense counsel argued that "abiding" meant "forever," stating, "It doesnt mean that you render your verdicts and next week you are thinking, geez, you know, I really have some concern that maybe I didnt do the right thing. Im still mulling over this evidence. It doesnt quite work out. Maybe that wasnt the right way to go. This is not an abiding conviction. You need to be sure beyond any reasonable doubt."

Counsel continued, "Next week, next month, five years from now, 30 years from now. The kind of care and consideration that you use in a criminal trial to determine whether the standard has been met I like to describe this way. Say that you are—there is a pilot and he likes to go out by himself. Hes got a little Cessna and its a beautiful, clear day and he decides that this is the day that hes going to take himself for a spin in this little plane. He drives out to the airfield. He checks out his plane. It looks great. He talks to the mechanic, this mechanic he trusts, very skilled worker. And the mechanic says, I checked out your plane just five minutes ago, its fine, everything is a go. [¶] So the pilot hops in the cockpit. Starts his way down the runway. Hes waiting, hes taxiing and waiting for the all clear to take off from the radio tower and thats when he hears it. A hiccup in the engine. And he keeps going. He keeps taxiing, but his heart[]s beating a little bit faster now, he starting to get a little bit nervous and hes got to decide do I fly this plane. That hiccup in the engine is reasonable doubt."

At this point, the court sustained the prosecutors objection to the argument. Counsel then continued, "The law demands of you to apply the highest standard that we have in the law, to use that same care and consideration to make your most important life decisions."

Citing People v. Barnett (1998) 17 Cal.4th 1044, 1156-1157 (Barnett), cert. den. sub nom. Barnett v. California (1998) 525 U.S. 1044, defendant claims that counsels argument was proper because she was simply saying that "if the jury had a gut feeling that told them [defendant] was not guilty, or that the People did not prove their case to the requisite level of proof, that is reasonable doubt." He further claims the courts erroneous restriction compels reversal. "By sustaining the objection, the jurors were essentially told that reasonable doubt could not be as simple as seriously doubting the decision in a situation where the consequences are dire, when indeed, that is the definition of reasonable doubt." (Italics added.)

In Barnett, the prosecutor argued, "`If you have that feeling, that conviction, that gut feeling that says yes, this man is guilty, hes guilty of these crimes and guilty of the robbery and guilty of the special circumstances, thats beyond a reasonable doubt." (Barnett, supra, 17 Cal.4th at p. 1156.) In rejecting a claim that the argument could not have misled the jury about the reasonable doubt standard, the court observed that the prosecutor "was not purporting to define `moral certainty as having a `gut feeling; rather, he was directing the jurors to trust their gut feelings in assessing the credibility of witnesses and resolving the conflicts in the testimony." (Id. at p. 1157.)

Even if we deem defense counsels extended pilot argument analogous to the prosecutors "gut feeling" argument in Barnett, the circumstances are distinguishable. Barnett held only that it is permissible to urge jurors to consider their gut feelings when assessing credibility and resolving factual conflicts.

Next, we note that in People v. Nguyen (1995) 40 Cal.App.4th 28, the prosecutor argued: "`The standard is reasonable doubt. That is the standard in every single criminal case. And the jails and prisons are full, ladies and gentlemen. [¶] Its a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as youre driving. If you have reasonable doubt that youre going to get in a car accident, you dont change lanes. [¶] So its a standard that you apply in your life. Its a very high standard. And read that instruction, too. I wont paraphrase it because its a very difficult instruction, but its not an unattainable standard. Its the standard in every single criminal case." (Id. at p. 35.)

In strongly disapproving such argument, the court observed, "The prosecutors argument that people apply a reasonable doubt standard `every day and that it is the same standard people customarily use in deciding whether to change lanes trivializes the reasonable doubt standard. It is clear the almost reflexive decision to change lanes while driving is quite different from the reasonable doubt standard in a criminal case. The marriage example is also misleading since the decision to marry is often based on a standard far less than reasonable doubt, as reflected in statistics indicating 33 to 60 percent of all marriages end in divorce. [Citations.]" (Nguyen, supra, 40 Cal.App.4th at p. 36.)

Citing Nguyen, the court in People v. Johnson (2004) 115 Cal.App.4th 1169, opined, "The same applies to making decisions to take vacations and get on airplanes. We can all describe situations where people make serious decisions in spite of grave reservations about the outcome. For example, a couple may overextend themselves financially to buy a home in spite of significant and reasonable doubts about whether it will prove to be a wise investment. Such situations cannot be equated to the level of conviction necessary for finding guilt in a criminal case. [¶] We are not prepared to say that people planning vacations or scheduling flights engage in a deliberative process to the depth required of jurors or that such people finalize their plans only after persuading themselves that they have an abiding conviction of the wisdom of the endeavor. Nor can we say that people make such decisions while aware of the concept of `beyond a reasonable doubt." (Id. at p. 1172.)

As the court opined long ago in People v. Brannon (1873) 47 Cal. 96 (Brannon), "The judgment of a reasonable man in the ordinary affairs of life, however important, is influenced and controlled by the preponderance of evidence. Juries are permitted and instructed to apply the same rule to the determination of civil actions involving rights of property only. But in the decision of a criminal case involving life or liberty, something further is required." (Id. at p. 97.)

Given Nguyen, Johnson, and Brannon, we cannot say that the court erred in sustaining the prosecutors objection to counsels argument on the ground that the process of deliberation over defendants guilt and the level of certainty necessary to convict are not the same as the decision a pilot might suddenly make on the spur of the moment while preparing to take off.

In any event, even if the court should have permitted the argument, defendant cannot demonstrate reversible, or any, prejudice. The trial court properly instructed the jury on the reasonable doubt standard; and, in the absence of evidence to the contrary, we presume that jurors understood and followed it. (People v. Prieto (2003) 30 Cal.4th 226, 255; People v. Osband (1996) 13 Cal.4th 622, 687.) Moreover, the prosecutor correctly emphasized the presumption of innocence and the Peoples burden to prove guilt beyond a reasonable doubt, which meant jurors had to have an abiding conviction a belief in the truth of the charge. And, despite the prosecutors objection, defense counsel was nevertheless able to argue that "[t]he law demands of you to apply the highest standard that we have in the law, to use that same care and consideration to make you most important life decisions."

Under the circumstances, we do not find any reasonable possibility that jurors would have interpreted the objection to counsels argument to mean that they could convict defendant even if they had serious doubts about whether he was guilty. Accordingly, we would find the alleged error harmless under any standard of review. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.)

DISPOSITION

The judgment is modified to strike one of defendants convictions for false imprisonment. As modified, the judgment is affirmed. The Clerk of the Superior Court is directed to prepare a new abstract of judgment that reflects our modification.

WE CONCUR:

PREMO, J.

ELIA, J.