Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FSB53337. Marsha Slough, Judge. Affirmed.
Richard Jay Moller, under appointment by the Court of Appeal; Law Offices of Alan Fenster, Alan Fenster; and Jerald W. Newton for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch, William M. Wood and Michael Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
Defendant was charged by information with: residential burglary (count 1; Pen. Code, § 459); robbery (count 2; Pen. Code, § 211); rape (count 3; Pen. Code, § 261, subd. (a)(2)); sexual penetration by a foreign object (count 4; Pen. Code, § 289, subd. (a)(1)); false imprisonment by violence (count 5; Pen. Code, § 236); possession of a firearm by a felon (count 6; Pen. Code, § 12021, subd. (a)(1)); and possession of methamphetamine (count 7; Health & Saf. Code, § 11377, subd. (a)). Relative to the first six counts, it was further alleged that defendant personally used a handgun (Pen. Code, §§ 12022.5, subd. (a), 12022.53, subd. (b)); and with respect to counts 3 and 4, that he committed the offenses during the commission of a burglary of an inhabited dwelling house (Pen. Code, § 667.61, subds. (a), (d)), while personally using a firearm and binding the victim (Pen. Code, § 667.61, subds. (a), (b), (e)). A jury found him not guilty on counts 1 and 4, and found not true the allegation that he committed the rape during the commission of a burglary. He was found guilty on all other counts and the remaining enhancement allegations were found true. He was sentenced to a total term of 14 years plus 25 years to life.
Defendant argues: (1) he was deprived of due process as a result of certain statements made by the prosecutor during closing argument; (2) the court erred in denying his motion for new trial because he was denied the effective assistance of counsel; (3) a juror who overheard a prosecution witness outside the courtroom should have been either dismissed or called as a prosecution witness; (4) he was denied due process and the right to present a defense when the court excluded certain witnesses from testifying; (5) he was denied due process when the court permitted evidence of prior bad acts; and (6) the court prejudicially erred in instructing the jury pursuant to Judicial Council of California Criminal Jury Instructions, CALCRIM No. 361 that jurors could draw adverse inferences from his failure to explain or deny evidence against him. We reject these contentions and affirm the judgment.
I. Summary of Facts
In November 2005, Benita Avila-Bolanos (Benita) lived in a house in San Bernardino with her husband, Eliazer Bolanos (Eliazer), their two sons, and her husband’s brother, Hector Fredy Bolanos (Hector). Hector slept in a room on the second floor. Eliazer, Benita, and the children slept on the first floor.
Defendant and Eliazer had been childhood friends in Mexico. In early 2002, defendant moved to California and lived in the Bolanos home for approximately two months. In May 2002, defendant moved next door into an apartment behind the residence of the Bojorquez family.
For a time, defendant and Eliazer worked together, building homes for Castle Construction. In February 2003, the two had a falling out after Castle Construction promoted defendant into the position held by Eliazer.
In October 2003, defendant married the Bojorquez’s daughter, Lisette.
In November 2004, while Eliazer was on a trip to Oregon, defendant called Benita’s home phone. He did not speak; instead, he played recordings of two songs, then hung up. Benita thought the caller was Eliazer. A few minutes later, defendant called back. According to Benita, defendant said, “Hello, my queen. This is your secret admirer. This is not your husband.” Benita asked defendant why he did that. Defendant explained that he had had feelings for her for some time, but did not have the nerve to tell her. Benita told him that “it wasn’t right,” and asked defendant if she had ever given defendant a reason to disrespect her in that way. Defendant said he knew it was not right, but he regretted marrying his wife because he had feelings for Benita. Benita kept telling defendant that it was wrong for him to be calling her, and eventually hung up. When Eliazer returned home, Benita told him about defendant’s call. Eliazer became angry, confronted defendant, and broke defendant’s car windshield.
In December 2004, defendant and Lisette moved to a house located one block away.
In November 2005, Eliazer went to Mexico with his aunt to sell a truck. He was scheduled to return home on November 23, 2005. On November 22, 2005, Hector went to sleep in his upstairs bedroom at approximately 7:00 or 7:30 p.m. Benita put her two sons to bed around 9:00 p.m., then went to sleep in her bedroom. At approximately 3:00 in the morning of November 23, 2005, Benita woke to the sounds of footsteps in the hallway outside her bedroom and saw a light coming under the door. A man entered carrying a gun and a flashlight. He shined the flashlight in her face and pointed the gun at her. A second man then entered the room. The first man was wearing a black hooded sweatshirt and a white bandanna over his face. The second man wore a ski mask over his face. Both men wore latex gloves on their hands.
The first man told Benita to be quiet, and said they were only there for money. He spoke in Spanish, with a “Chicano” accent. Benita did not recognize the voice. He asked where the money was kept, who else was in the house, and the whereabouts of her husband. Benita told him who was in the house, that her husband was in Mexico, and that there was $500 in her nightstand drawer. The man took the money and demanded more. Benita told him there was $100 in her purse, which he took. The man became angry and said that her husband owed $16,000 for drugs, and that they were there for the money her husband owed.
The men used duct tape to bind Benita’s hands behind her back and her ankles together. Tape was also put over her mouth. They took a black eye mask from her drawer and placed it over her eyes. Benita could see out from under the bottom of the mask.
The second man, who never spoke during the incident, leaned against her and made “smacking kisses” in her ear. He pulled down her pajama bottoms and underwear. He put a gun to her back and told her to stop tensing up and to stop fighting. The first man said that Benita’s husband had had sex with the second man’s wife. The second man then pulled his pants down and, with the gun at Benita’s head, raped her. Benita believed that the man had ejaculated. She suspected that the man was defendant.
According to Benita, at this point, the second man put his finger in her vagina. This act was the basis for the charge of sexual penetration by a foreign object. The jury acquitted defendant of this charge.
The first man told Benita that if she called the police, they would return and kill her or her family. The men left through the front door. Benita heard what sounded like an “older car” start up and drive away.
In addition to money, the men took credit cards, Benita’s driver’s license, and other items from Benita’s wallet. They also took watches and a personal check made out to Jose Madrigal Guerrero from a wooden box on the dresser in Benita’s bedroom.
Benita wriggled her hands loose from the tape and crawled to the front door and locked it. She then cut the tape from her ankles. She checked on her children and went upstairs to Hector’s room. Crying, she told Hector that two men had broken into the house. She said she thought that defendant was one of the men. She did not tell Hector she had been raped because she was embarrassed. Although Benita was afraid to call the police, Hector insisted. They tried to use the telephone, but the phone line had been cut from outside the house. Hector then called 911 with his cell phone. Benita told the dispatcher that she had been raped.
Sheriff’s deputies responded to the dispatch. When they arrived at the house, Benita was hysterical and crying. She had duct tape on her wrists and ankles. She told a deputy that she had been raped. She was taken to a hospital, where she curled up into a fetal position and refused to talk. Eventually, she was examined by a nurse and sexual assault examiner. The examination revealed genital redness, swelling, and an abrasion consistent with nonconsensual sex. A vaginal swab was collected. Although the nurse did not see sperm on the slide from the swab, a DNA analysis revealed the presence of defendant’s sperm.
Hector told the deputies that Benita told him that defendant was the second man. While she was at the hospital, Benita also told one of the deputies that defendant was the second man.
Because returning to the house was too traumatic for Benita, she never again lived there. Her bed was given to charity and the furniture was sold.
Two or three days after the incident, Benita and Eliazer went to the house to pick up clothing and belongings. They saw defendant in the driveway to the Bojorquez residence next door. Defendant looked at Benita and “sneered and laughed.” Eliazer became upset and had “words” with defendant.
Defendant was arrested on December 2, 2005. In his truck, an arresting officer found a loaded .357 magnum revolver, a blue box containing four or five pairs of latex gloves, and a partially used roll of duct tape. Benita testified that the gun taken from the truck looked “exactly like” the gun that was used during the crime. The following items taken from Benita’s house that night were also found in the truck: Eliazar’s expired employment authorization card, Eliazer’s Sears Mastercard, Eliazar’s Circuit City card, Benita’s driver’s license, Benita’s Visa card, Benita’s Wells Fargo Visa card, Benita’s American Express card, and Benita’s Visa check card.
At the time of his arrest, defendant had a baggie with 0.45 grams of methamphetamine in the pocket of his pants. In defendant’s wallet, deputies found the personal check made out to Jose Madrigal Guerrero and the social security card with the same name that had been taken from the wooden box in Benita’s bedroom.
Sheriff’s deputies also found in defendant’s truck several items not stolen from Benita’s house. These included: a California driver’s license in the name of Margarita Parraza-Gomez; social security cards in the names of Mario Mignon, Daniel Tapia C. (Tapia), and Francisco Garcia; a California driver’s license in Tapia’s name; and Oregon driver’s licenses in the names of Mario Mignon and Francisco Garcia. The licenses in the names of Mr. Mignon, Tapia, and Mr. Garcia had defendant’s photograph on them.
In an interview following his arrest, defendant denied raping Benita, having sex with her, or going to Benita’s house on the night of the incident. He said that when he lived in Benita’s house, he could have had sex with her, but that he did not care for her “body type.” He said he knew of the gun found in his truck. Regarding the duct tape and latex gloves, he explained that everyone has duct tape and latex gloves and that he uses them in his work. He said he was wearing someone else’s pants when he was arrested and was unaware of the methamphetamine found in the pocket. However, he was aware of a methamphetamine pipe also found in his pocket. He denied any knowledge of the credit cards and other items found in his truck that belonged to Benita or Eliazer.
While defendant was in custody, police recorded a telephone call between him and his wife, the following portion of which was played to the jury:
“Lisette: ([I]naudible) are you willing to put up with that[?] [W]hy don’t you just, why don’t you just say, why don’t you just you know (sigh) go with (sigh) the whole you and her were lovers? Why not? Uhhhh (sigh)[.]
“[Defendant]: ([I]naudible) because . . . .
“Lisette: Look (inaudible) the, the neighbor in front said one day she went to Stater Bros[.] and she saw Benita in a car with a man[.] [W]hat was Benita doing in a car with a man that’s not her husband? It wasn’t her brother.
“[Defendant]: ([I]naudible)[.]
“Lisette: Who was it?
“[Defendant]: Okay[.] [T]hen uhmm (sigh) yeah (inaudible) well yes.
“Lisette: Not only that[,] why did Benita . . . get mad when you married me[?] Why did Benita get mad[?] [W]hy was she all mad?
“[Defendant]: Well what my attorney say, what my attorney says is all true.
“Lisette: Okay[.] [S]o I’m, I mean . . . .
“[Defendant]: Okay[.] [W]e’re going to play that game then[.] [A]nd uhmmm (sigh) another thing, call Curtiss.”
In his defense, defendant testified that he and Benita had an affair that began in approximately July 2005. It began after Benita called him to find out if Eliazer was cheating on her. They had sex on approximately six occasions: two or three times in a motel, once when they “got lost” driving toward the mountains, and twice at Benita’s house in the two days before the incident. Regarding the last two encounters, defendant testified that he went to Benita’s house at her request. On November 21, 2005, he went to her house at approximately 2:30 in the morning. They had sex at that time.
The last encounter occurred during the early morning of November 23, 2005. He went to Benita’s house at approximately midnight or 1:00 a.m. After having consensual sex, Benita said she was going to divorce Eliazer and that she wanted defendant to divorce his wife so they could marry. When defendant refused, Benita became upset. Defendant then “walked away.”
Defendant further testified that he brought Benita with him on three occasions to a jobsite where he was working with Curtis Rowe. Mr. Rowe corroborated this testimony.
Defendant met Mr. Rowe while being held in the Glen Helen detention center in late 2004 or early 2005. On cross-examination, Mr. Rowe admitted prior convictions for petty theft in 1996, fraud in 1997, felony petty theft in 1998, and felony possession of stolen property in 2000.
Defendant also testified that Eliazer was in a “loving relationship” with a woman in Oregon, and that he saw the two holding hands and kissing.
Regarding the two telephone calls to Benita on November 1, 2004, defendant said that he intended the music-only call for his wife, but he misdialed the telephone. He called Benita a few minutes later to apologize.
Defendant denied that the check made out to Jose Madrigal Guerrero was in his wallet at the time of his arrest. He said that he had never seen the various credit cards and other items taken from Benita’s house that were found in his truck. He was aware of the identification cards found in his truck that were not taken from Benita’s house. He admitted that these were fraudulent and explained that he used them to avoid taxation of his wages. He said that Tapia had given him permission to use the driver’s license with Tapia’s name and defendant’s picture. The duct tape found in the truck was his.
Defendant testified that he injured his knee working for Castle Construction about two weeks before the incident. He did not thereafter work for that employer. On November 21, 2005, he was working on a roofing job for a house in Compton owned by a relative. On that day, he went to a Castle Construction site in Palm Springs to pick up certain materials—“shear panels”—for the Compton roofing job. He said that Tapia, a foreman with the company, told him he could take the shear panels.
Defendant and Lisette explained the recorded jailhouse phone call by testifying that Lisette was asking defendant if he had been sleeping with Benita and defendant admitting that he had been cheating on her. Thus, when he said in the phone call, “what my attorney . . . says is all true,” he was referring to statements by his attorney to Lisette that he had been cheating on her.
Defendant’s father-in-law and Benita’s next door neighbor, Gonzalo Bojorquez, testified that around Thanksgiving 2005, he saw defendant leave Benita’s house around 4:00 in the morning. (Thanksgiving day 2005 was on November 24, 2005, the day after the incident.) Benita kissed defendant good-bye at the door as he was leaving. Mr. Bojorquez told Lisette about what he had seen prior to December 2005.
In rebuttal, Benita testified that she did not like defendant when he lived in her house, has never been attracted to him, has never had consensual sex with defendant, and had never seen Mr. Rowe prior to seeing him in court.
Two close friends of Benita, Maria Ocegueda and Alma Estrada, testified that Benita was happily married, never expressed dissatisfaction with her marriage or with Eliazer, never expressed interest in other men, and is an honest person.
Tapia testified for the prosecution that he is a general supervisor for Castle Construction and that he did not allow defendant to use his social security card or driver’s license. Nor did he give defendant permission to remove materials from a Castle Construction jobsite. He learned that roofing panels were taken from a Palm Springs jobsite in late November 2005, and said that defendant “had no business taking something that was not his.”
Investigator Robert Heard testified about his interview with defendant on the day defendant was arrested. Defendant told him that he had not been to Benita’s home for a year or more, did not see Benita during the week of Thanksgiving, and had never had sex with Benita.
In defendant’s surrebuttal case, David Garcia, defendant’s brother, testified that Tapia told him that the district attorney had called Tapia and indicated that if Tapia did not come to court to testify, that Tapia “was going to have problems.”
The prosecution called Tapia back to the stand. Tapia said that David Garcia’s testimony was not true, and that he had not been threatened or intimidated into testifying.
Additional facts will be discussed below where pertinent to the issues raised in this appeal.
II. Analysis
A. Statements Regarding Duct Tape by Prosecutor
Defendant contends that he was deprived of his right to a fair trial as a result of certain statements the prosecutor made during closing argument. We disagree.
1. Relevant Facts
During closing argument, the prosecutor said the following:
“Nobody planted the latex gloves in his truck. He said they were his. No one planted the duct tape in his truck. He said it was his. Nobody planted the gun in his truck. He said it was his.
“Now, it’s time for a little show and tell. I’ve got a little box of gloves that I got for you. So if you want to look at this stuff in the jury room, I suggest you put on the gloves. So you don’t get too dirty because it has fingerprint powder on it.
“When you get back in there, on the issue of how much you want to believe Benita or not, think about the tape that she was tied up with. It’s the defendant’s tape by his own admission. It’s his tape, nor hers. It’s his tape.
“[DEFENSE COUNSEL]: Objection, your Honor. It misstates the evidence.
“THE COURT: The jury will determine whether or not it misstates the evidence.
“You’ve heard all the evidence. And it is up to you to determine what the evidence demonstrated during this trial.
“The objection is overruled.
“[PROSECUTOR]: I believe he testified—and you trust your own collective memories, more than mine. I think that he testified that it was his tape.
“Now, Exhibit 21 is the roll of duct tape taken from the back of his pickup truck. You know what is interesting about this? I don’t know if you can see it. It’s kind of ribbed up and down like it’s been out in the weather or something. I don’t know if you can see it, but when you get back in the jury room, you will be able to look at it very closely.
“Now, when you compare the ribbing or that pattern on the duct tape that [defendant] admitted was his, and you compare it to the duct tape that was taken off her ankles, I think you’re going to—when you look at it close enough, you’re going to see it is ribbed. It has that same exact pattern.
“From Exhibit 13, which is an envelope that has two envelopes in it, here is an even better example. I mean, it is ribbed. That’s my word for it. It has that exact same pattern as the duct tape taken from [defendant’s] truck. The duct tape that he said was his.
“In fact, I’m doing it the hard way. Let’s put them together. It looks just the same. I think you don’t need a scientific investigation or a scientific analysis to look at them and say, ‘Boy, those are the same. It probably came off the same roll.’ It’s more than probable. It’s very likely.
“Those of you who have seen duct tape before and bought it new will be able to talk to the other jurors about what it looks like when it’s new. And this particular duct tape, both that found on Benita and that found in the truck, will probably—or will convince you that it is the same, or that it came off the same roll.”
2. The Statement: “It’s the defendant’s tape by his own admission”
Defendant contends that the prosecutor’s statement, “It’s the defendant’s tape by his own admission,” misstated the evidence and deprived him of his right to a fair trial. Defendant interprets the phrase, “it’s the defendant’s tape” to mean the tape that was used to bind Benita. Defendant correctly points out that while defendant admitted owning the tape found in his truck, he did not admit that the tape used to bind Benita was his tape. The People contend that, viewed in context, the prosecutor was referring to the tape found in his truck.
Our threshold inquiry is “whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Berryman (1993) 6 Cal.4th 1048, 1072, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 822–823.) On this point, we agree with defendant. The prosecutor told the jury to “think about the tape that she was tied up with. It’s the defendant’s tape by his own admission. It’s his tape, not hers.” It is reasonably likely that the ambiguous pronoun, “it,” was understood by the jurors as referring to “the tape she was tied up with.” Thus, the jurors likely understood that the prosecutor was asserting that defendant admitted that his tape was used to tie up Benita.
Nevertheless, we find that the misstatement did not “‘infect[] the trial with unfairness as to make the resulting conviction a denial of due process.’” (See Darden v. Wainwright (1986) 477 U.S. 168, 181, quoting Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643; accord, People v. Morales (2001) 25 Cal.4th 34, 44.) Nor did it violate our state Constitution by using “deceptive or reprehensible methods to attempt to persuade either the court or the jury.” (See People v. Strickland (1974) 11 Cal.3d 946, 955.)
Following defendant’s objection, the jurors were promptly admonished that it is they who will determine what the evidence demonstrated during trial. The prosecutor echoed the admonition, telling the jurors to “trust [their] own collective memories, more than mine.” He then proceeded to discuss the duct tape evidence based upon the assumption that defendant did not make the admission—by comparing the tape found in the truck, which he “admitted was his,” with the “tape that was taken off [Benita’s] ankles.” Moreover, the jurors were instructed that “[n]othing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence.” Thus, although the prosecutor incorrectly asserted that defendant admitted that the tape used to bind Benita was his tape, viewed in its context, the misstatement did not constitute a deprivation of defendant’s federal constitutional rights or California law.
3. Suggestion That Jurors Compare the Duct Tape
Defendant contends that the prosecutor’s suggestion that the jurors compare the duct tape found in defendant’s truck with the duct tape used to bind Benita, and for the jurors familiar with duct tape to talk to the others about what new duct tape looks like, deprived him of due process.
Preliminarily, we find that defendant has forfeited this argument by failing to object below. “To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the impropriety.” (People v. Cole (2004) 33 Cal.4th 1158, 1201.) Defendant did not object to the prosecutor’s misconduct. He argues, however, that any objection or request for an admonition would have been futile. (See ibid.) We disagree. Defendant’s complaint about the prosecutor’s suggestion is that the jurors were not qualified to make the suggested comparison and that the conclusions arrived at from such a comparison would constitute extraneous facts. An objection on this ground would have been qualitatively different from the previously asserted objection that the prosecutor misstated the evidence. There is no reason to believe that the second objection would have been overruled merely because the court overruled the prior objection. Nor would a new objection have compounded any prejudice caused by the prosecutor’s suggestion, as defendant asserts. Moreover, assuming the suggestion was improper, an admonition to the jury would likely have cured any prejudice. The argument, therefore, has been forfeited.
Even if the argument had been preserved for appeal, any error does not require reversal. The prosecutor argued that the patterns on the duct tape found on Benita and the duct tape found in defendant’s truck match, and that the jurors can see these patterns by closely examining them. Whether the tape that bound Benita came from the roll of tape found in defendant’s truck was a factual issue in the case. Examining the two items of evidence for observable patterns to aid in determining that fact was well within the “‘scope and purview of the evidence’” presented. (See People v. Bogle (1995) 41 Cal.App.4th 770, 781, quoting Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651, 657.) We see no error in this suggestion.
We believe, however, that the further suggestion by the prosecutor that jurors who have bought duct tape “talk to the other jurors about what it looks like when it’s new” was arguably improper. New duct tape was not in evidence and there was no testimony as to the characteristics of new duct tape or how it changes with the effects of weather and time. The prosecutor’s statement thus called upon the jurors to consider extrinsic evidence, i.e., the statements of jurors who have bought duct tape. Although the suggestion was arguably improper, there is nothing in the record to indicate that any juror actually said anything about new duct tape. The assertion that the jury considered matters not in evidence by discussing the characteristics of new duct tape is thus pure conjecture. Reversal on this ground is therefore not required.
B. Ineffective Assistance of Counsel
Defendant contends that he was deprived of his constitutional right to effective assistance of counsel because his counsel failed to: (1) call Ernesto Esquivel Peña as a witness; (2) introduce telephone records concerning the November 1, 2004, telephone calls to Benita; and (3) conduct a fingerprint examination of the stolen items found in defendant’s truck. These grounds were raised in his motion for new trial, which the court denied.
In support of this argument, defendant has requested that we take judicial notice of the fact that his trial counsel resigned from the State Bar with disciplinary charges pending. The People do not oppose the request. We grant the request. (See Evid. Code, § 459, 452, subd. (h).)
A claim of ineffective assistance of counsel may be asserted before the trial court as grounds for a new trial. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) In order to establish such a claim, the defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it “fell below an objective standard of reasonableness. . . . [¶] . . . under prevailing professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 688.) Unless a defendant establishes the contrary, we presume that “counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” (People v. Carter (2003) 30 Cal.4th 1166, 1211.) If the record “sheds no light on why counsel acted or failed to act in the manner challenged,” an appellate claim of ineffective assistance of counsel must be rejected “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . .” (People v. Pope (1979) 23 Cal.3d 412, 426, fn. omitted.) If the defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington, supra, at p. 694.)
When the trial court denies a motion for new trial based upon ineffectiveness of counsel and the same grounds are asserted on appeal, we independently review the record to determine whether defendant has satisfied his burden of establishing both that his trial counsel’s performance was deficient and resulted in prejudice. (See In re Resendiz (2001) 25 Cal.4th 230, 248-249; People v. Ault (2004) 33 Cal.4th 1250, 1266.) However, we will give great weight to the court’s factual findings, particularly with respect to findings related to the credibility of witnesses the court heard and observed, if they are supported by the record. (In re Resendiz, supra, at pp. 248-249; People v. Wallin (1981) 124 Cal.App.3d 479, 483; cf. People v. Nesler (1997) 16 Cal.4th 561, 582.)
1. Failure to Call Ernesto Esquivel Peña as a Witness
Defendant’s motion for new trial was supported by a report of an investigator’s interview with Mr. Peña. According to the investigator, Mr. Peña lived with defendant and Lisette in 2005. Mr. Peña told the investigator that defendant said he was having an affair with Benita, and that he twice heard defendant talking on his cell phone with Benita. The last cell phone call took place a few days prior to the alleged rape. During that call, defendant said that he was “‘missing her’ and that they needed to “see each other again.” Mr. Peña further stated that he was drinking with Hector (who Mr. Peña refers to as “Freddy Bolanos”) and a man named “Giovani” a few days after defendant’s arrest. Hector told Mr. Peña that on the night of the alleged rape, he saw defendant leave the house through the front door. Hector then confronted Benita. According to the investigator’s summary: Hector “immediately called [Eliazer] in Mexico and told him about seeing [defendant] leaving the house. They both came to the conclusion that [defendant] and Benita were having an affair. [Hector] gave the telephone to Benita for her to speak with [Eliazer] and [Eliazer] then confronted Benita about what was going on between her and [defendant]. Benita begged [Eliazer] to forgive her. [Eliazer] told her that the only way he would forgive her was if she said she had been raped by [defendant] and not admit that she was having an affair with [defendant].” Mr. Peña also told the investigator that he had spoken with a person named Omar Ramirez, who said that he had also heard what Hector had told Mr. Peña. Ramirez also told Mr. Peña that he knew that Benita and defendant were having an affair.
In the written motion for new trial, defendant’s new attorney asserted that Mr. Peña would appear at the hearing on the motion to testify regarding the matters set forth in the investigator’s report. At the hearing, defendant’s counsel informed the court that Mr. Peña has refused to appear at the hearing because of threats allegedly made by Eliazer. In response to defendant’s request to continue the hearing to secure Mr. Peña’s presence, the prosecutor said he would waive the hearsay objection to Mr. Peña’s statement. After some discussion among counsel and the court, the court accepted a stipulation between counsel that everything Mr. Peña said to the investigator and set forth in the investigator’s report is true and correct.
At the hearing, Lisette testified that Mr. Peña lived at her and defendant’s house at the time of the crime. She knew him only by the name, “Neto.” After defendant’s arrest, Mr. Peña moved to Washington State. Lisette did not have his telephone number. She testified that she told defendant’s trial counsel about Mr. Peña before the trial began and that he should call Mr. Peña as a witness. After the trial, Lisette went to Washington and, with the help of Mr. Peña’s relatives, made contact with him. She hired the investigator and called him from Mr. Peña’s home in Washington. The investigator then interviewed Mr. Peña by telephone.
The prosecutor called Hector to testify. Hector said that the statements attributed to him in the investigator’s report are not true. He said that he did not see defendant leaving the house that night, did not confront Benita about defendant, and did not call Eliazer.
The court ruled that defendant had not carried his burden of showing that counsel was ineffective. With respect to defense counsel’s failure to call Mr. Peña as a witness, the court implicitly rejected Lisette’s testimony that defendant’s trial counsel was told about Mr. Peña before the trial, and pointed out that if defense counsel had “known of Mr. Peña, he would have cross-examined [Hector] on that point.”
Defendant has not established that his counsel was constitutionally deficient by failing to call Mr. Peña. First, if defense counsel had no knowledge of Mr. Peña or of the possibility that he might have exculpatory evidence, he could not have been deficient in failing to call him as a witness. The only evidence that defense counsel had any knowledge of Mr. Peña was Lisette’s testimony at the hearing. Significantly, defendant offered no declaration of his trial counsel indicating that the attorney had been informed of Mr. Peña or of any reason to investigate the possibility that Mr. Peña had information helpful to defendant. The court, which had the opportunity to observe Lisette and evaluate her credibility, apparently gave no credence to her testimony that she had told defense counsel about Mr. Peña. Moreover, to accept Lisette’s testimony, the court would have to have concluded that defendant’s counsel also failed to ask Hector about his alleged statements to Peña during cross-examination. The court could reasonably conclude that it was more likely that counsel’s failure to cross-examine Hector on these points was due to the fact that he was never informed about Peña, rather than incompetence. In light of this credibility determination and finding by the court, there is no factual basis to support the assertion that defense counsel was aware of Mr. Peña’s purported evidence.
Second, even if defense counsel knew of Mr. Peña, the record “sheds no light on why counsel acted or failed to act in the manner challenged.” (People v. Pope, supra, 23 Cal.3d at p. 426.) “‘Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 980.) Defendant’s counsel may well have been unable to locate Mr. Peña (Lisette testified that she did not have a telephone number for Mr. Peña and found him after the trial only after driving to Washington and talking with Mr. Peña’s relatives). Counsel may also have determined that Mr. Peña would not have been a credible or effective witness and actually harm the defense. He may have also rationally concluded that even if Peña was credible, his testimony would have had minimal value because the statements purportedly made by Hector to Peña would probably have been excluded as hearsay. Because we cannot conclude on this record that there was no rational tactical purpose for not calling Mr. Peña as a witness, defendant has failed to establish that his counsel was deficient.
Defendant asserts that once the prosecution was on notice that ineffective assistance of trial counsel was being raised, the prosecution had the burden of producing a declaration or oral testimony from defendant’s trial counsel explaining his actions or omissions. He does not provide any authority for this argument. Indeed, it is well settled that the burden of showing ineffective assistance, as well as resulting prejudice, is on the defendant. (People v. Lopez (2008) 42 Cal.4th 960, 966; People v. Ledesma (2006) 39 Cal.4th 641, 745-746.) We reject his attempt to shift the burden to the prosecution.
Nor has defendant satisfied his burden that any deficiency in failing to call Mr. Peña to testify would have resulted in a different result at trial. The evidence of defendant’s guilt was strong: His sperm was found on the swab taken from Benita; credit cards and other items stolen from Benita were found in his truck and his wallet; duct tape, latex gloves, and a gun that looked like the gun used in the rape were found in his truck; and the recorded jailhouse conversation between defendant and his wife suggests that the defense theory of an affair between defendant and Benita was concocted after the crime. The evidence of a criminal act (as opposed to consensual sex) is also apparent from the cut telephone line, the duct tape on Benita’s ankles and wrists, the evidence of genital injuries, the ransacked bedroom, the theft of money and other items from Benita’s home, and Benita’s emotional and hysterical behavior following the incident. If Peña had testified, it is unlikely that he would have been permitted to testify to Hector’s hearsay statements to him. Without this testimony, Peña’s testimony would have amounted to evidence that defendant was having an affair. Defendant did present evidence to support his theory of an affair through numerous witnesses, including himself, Curtis Rowe (who purportedly saw defendant and Benita together on three occasions), and Golanzo Bojorquez (who testified he saw Benita kissing defendant goodbye). The jury rejected this theory. In light of the great weight of the evidence against defendant, it is not reasonably probable that the additional testimony by Mr. Peña would have produced a different result.
2. Failure to Introduce Telephone Records Corroborating Defense Evidence
Both defendant and Benita testified about the two telephone calls that took place on November 1, 2005. Both agree that the first call consisted entirely of the playing of music. Their testimony differs regarding the second call. Benita testified that defendant called and told her he was a “secret admirer” and had feelings for her. Defendant testified that he mistakenly made the previous call and called Benita the second time to apologize, and that Benita said “that it was all right.” His attorney did not ask him to elaborate further.
In a declaration supporting his motion for new trial, defendant states: The telephone record of the second phone call reflects an 18-minute call; during this call, Benita told him that she wanted to leave her husband, that she wanted defendant to leave his wife, and that she wanted the two of them to move away and live together; the “conversation lasted a long time because Benita was very upset and insistent upon her plan”; that he kept talking to Benita to tell her that he could never leave his wife; and that he told his lawyer during trial that he wanted him to put this telephone record before the jury and tell the jury what really happened during the conversation; his lawyer ignored these requests. The motion is also supported by a copy of defendant’s telephone bill, which shows that the second call lasted 18 minutes. He argues that his counsel’s failure to introduce the telephone record and to solicit his testimony about what was said during the conversation constituted ineffective assistance.
Initially, we reject defendant’s assertion that Benita “described a conversation lasting a few minutes, not 18 minutes.” Benita was not asked how long the conversation lasted. Her testimony, however, indicates that they spoke for a significant length of time. According to Benita, defendant told her: he was her “secret admirer”; she asked why he was calling, and defendant explained that he had feelings for her; she told defendant it was not right and asked why he was doing it; he told her that he couldn’t help himself; she responded by asking if she “had ever given him a reason to be disrespecting [her] that way”; defendant told her he knew it was wrong, that he knew they were married, but he regretted marrying his wife because of his feelings for Benita; Benita “kept trying to get an answer from him so [she] could understand why he would call [her]”; she told defendant to think about the friendship he had with Eliazer and that defendant needed to respect her; defendant then told her that he couldn’t help himself, and that he admired her because she always presented herself with respect; she “kept saying that [it was wrong] over and over again”; and each time defendant said that “he knew” it was wrong. Based on this testimony, it appears that their conversation could easily have lasted 18 minutes. Thus, even if the telephone record was introduced to show the 18-minute length of the call, it would have been entirely consistent with Benita’s description of the call.
Second, defendant’s declaration as to what he would have said if his counsel had allowed him to testify further about the telephone call is inconsistent with his trial testimony. In his declaration, he states that Benita told him that “she wanted to leave her husband, that she wanted [defendant] to leave [his] wife, and she wanted [the two of them] to move away and live together.” The call lasted 18 minutes, he explains, because she “was very upset and insistent upon her plan.” The declaration thus indicates that they were having their affair at the time of the telephone call. According to his trial testimony, however, his affair with Benita did not begin until June or July 2005—at least seven months after the November 1, 2004, telephone call. He further testified that prior to the beginning of the affair in June or July 2005, he had not indicated to Benita that he even liked her. Moreover, he knew Benita’s phone number on November 1, 2004, because he had previously lived in her and Eliazer’s house; not because they were having an affair. A lengthy conversation about leaving their spouses and moving away together would have been inconsistent with his trial testimony about their relationship at that time. Thus, if defendant’s counsel stopped him from providing the proffered explanation about the call, it appears to have been with good reason—to prevent defendant from contradicting himself about the timing of his alleged affair. Because there is a possible tactical reason for not introducing the telephone bill (which was consistent with Benita’s testimony) and for failing to ask defendant further about the telephone call (to avoid defendant’s inconsistent testimony regarding the timing of the affair), defendant has failed to establish that his counsel’s performance was deficient.
3. Failure to Conduct Fingerprint Examination of Items Belonging to Benita Found in Defendant’s Truck
Defendant contends that his attorney should have conducted a fingerprint or forensic examination of the credit cards found in his truck and the check found in his wallet. He argues that such an examination might have showed that his prints were not on these items, thereby weakening the evidence tying him to the crime. The argument is without merit. First, there is no evidence as to what investigation or examination trial counsel conducted concerning the credit cards. Second, if an examination was not conducted, there is nothing in the record to show what an examination would have revealed. Finally, even if our record disclosed that counsel failed to conduct an examination and it was shown that such an examination would have revealed the absence of defendant’s fingerprints on the cards, it is unlikely that such evidence would have influenced the jury. Because both intruders were wearing latex gloves during the crime, jurors would have reasonably expected that the credit cards and other items stolen from Benita’s house would not have defendant’s fingerprints on them. Thus, it is not reasonably probable that the absence of his fingerprints on the items would have produced a different result.
4. The Failure to Dismiss or Call Juror as a Witness to Statement Made By Tapia
After both sides had rested and prior to closing arguments, a juror told the court that she overheard prosecution witness Tapia tell another person in the hallway outside the courtroom, “I’m tired of this. They’re telling me to say different things. And I don’t even know what to say anymore.” When asked if she had an impression as to who Tapia was referring to by the word “they,” the juror said, “I just had the impression that he was being, like, pressured because that’s the way he stated himself when he was speaking in Spanish.” She did not recognize the man with whom Tapia was talking. The juror told the court that she had not spoken with any other juror about what she heard, and the court instructed her not to do so. She told the court that what she had overheard would not impact her decision in the case and that her decision would be based on the evidence alone.
Defendant’s counsel asked that the juror be disqualified and for a mistrial, contending that what the juror heard “is absolutely critical to the defense in this case. Absolutely right at the center of the attack on Daniel Tapia C.” The court denied the motion, indicating that defendant had failed to show any prejudice.
On appeal, defendant contends that the court erred in denying his motion for mistrial and that he was denied his constitutional right to trial by a fair and impartial jury based upon “the various insidious ways in which this kind of jury misconduct can infect the proceedings.” He does not, however, explain how the statement the juror heard infected the proceedings or resulted in any prejudice. We will not presume such prejudice. (See People v. Lucero (1988) 44 Cal.3d 1006, 1023, fn. 9.) Indeed, as the trial court noted, the juror’s impression of Tapia that he felt pressured was consistent with the defense evidence that Tapia told David Garcia that he was being pressured by the district attorney to testify. Thus, even if the juror disregarded the admonishment to decide the case based on the evidence and gave any weight to Tapia’s hallway statement, the fact could not have prejudiced defendant. The court’s denial of defendant’s motion to disqualify the juror and for mistrial was not error. (See People v. Zapien, supra, 4 Cal.4th at p. 997.)
Defendant also contends that defense counsel should have called the juror as a defense witness. The statement overheard by the juror, he argues, would have corroborated the testimony by David Garcia that Tapia was being threatened to testify for the prosecution. Because counsel failed to seek the juror’s testimony, defendant asserts, his counsel was constitutionally deficient. We disagree.
The standards for establishing ineffective assistance of counsel are set out in the previous section. Here, our record does not disclose why trial counsel did not call the juror as a witness or that counsel was asked for an explanation for his decision. The decision whether to call the juror as a witness was necessarily a tactical one. (People v. Jones (1981) 123 Cal.App.3d 83, 92; People v. Haylock (1980) 113 Cal.App.3d 146, 151.) Unless there is no conceivable explanation for counsel’s decision, we must indulge a strong presumption that his conduct was within the wide range of reasonable professional assistance. (See People v. Maury (2003) 30 Cal.4th 342, 389; People v. Frye (1998) 18 Cal.4th 894, 979.) Counsel, who had the opportunity to observe the juror and hear her explanation of what she heard, may reasonably have decided that the juror would not have aided the defense. Indeed, in arguing his motion for mistrial on this matter, defendant’s trial counsel expressly disagreed with the trial court’s suggestion that the overheard statement was favorable to the defense (although the reason for his disagreement was not made clear for the record). We cannot conclude on this record that counsel’s failure to call the juror as a witness was outside the range of effective assistance. Moreover, defendant has failed to establish how the result in this case would have been different if the juror had testified.
In the absence of an objection, a juror may testify as a witness in the trial of an action in which the juror is impaneled. (Evid. Code, § 704, subd. (d).)
C. Right to Present a Defense
Defendant argues that the court deprived him of his constitutional right to present a defense by excluding certain defense witnesses and testimony. We disagree.
1. Testimony of Cynthia Salazar and Teresa Aranda
Defendant sought to call Cynthia Salazar to testify that she witnessed a romantic affair between Eliazer and Ms. Salazer’s cousin, Maya, in July 2004 and early 2006. The testimony was offered to corroborate defendant’s testimony that he had seen Eliazer on a date with Maya and to discredit evidence that Eliazer and Benita had a good marriage. Ms. Salazar also would have testified that Eliazer called her shortly before she was to testify. Following an Evidence Code section 402 hearing, the court excluded the evidence on the ground that it was “impeachment on a very collateral matter.”
Defendant further argues that the court erred in excluding certain testimony of Teresa Aranda, the sister of defendant’s wife and Benita’s next door neighbor. At trial, Ms. Aranda was asked what Benita had told her about Eliazer. Ms. Aranda answered that Benita told her that she “didn’t care . . . when or how her husband brought in money to her household.” The court sustained the prosecutor’s relevance objection and granted the prosecutor’s motion to strike the answer. Later, defense counsel requested that the court reconsider this ruling and stated that Ms. Aranda would have further stated that she told Benita that Eliazer was seeing other women. The court did not allow counsel to question Ms. Aranda further, stating: “Maybe it does go to impeach the alleged victim in this case, but a statement she may have made a year before these events I find it to be too remote such that it’s not relevant. And I’m not going to have her come back and testify about a statement that was made over a year before this occurred.”
Irrelevant evidence is not admissible. (Evid. Code, § 350.) Evidence that is relevant may be excluded if its probative value is substantially outweighed by the probability that its admission will either necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Id., § 352.) “A court has substantial discretion under Evidence Code section 352 to exclude evidence on collateral issues.” (People v. Hayes (1992) 3 Cal.App.4th 1238, 1248.) Generally, the ordinary rules of evidence do not impermissibly infringe upon an accused’s constitutional right to present a defense. (People v. Hall (1986) 41 Cal.3d 826, 834.) “Although a criminal defendant is constitutionally entitled to present all relevant evidence of significant probative value in his favor, this does not mean the court must allow an unlimited inquiry into collateral matters; the proffered evidence must have more than slight relevancy.” (People v. Marshall (1996) 13 Cal.4th 799, 836.)
The evidence proffered by Ms. Salazar’s testimony—that Eliazar had an affair with a woman in Oregon—had little, if any, relevance in the case. The evidence would have contradicted Benita’s testimony that she had a good, loving relationship with Eliazer and there had been no problems with cheating in the marriage. However, the quality of Benita’s marriage was an issue only to the extent that it supported or negated the defense theory that Benita initiated the alleged affair with defendant because Benita suspected that Eliazer was cheating on her. The relevant area of inquiry, however, is not whether Eliazer was cheating on Benita, but whether Benita knew or believed that he was cheating; if Eliazer was cheating on Benita and she was unaware of it, then the alleged reason why Benita initiated the affair with defendant would not have existed. Regarding Ms. Salazar’s proffered testimony, there was no evidence that Benita knew of or suspected Eliazer of having the alleged affair in Oregon. Without such evidence, the fact that such an affair occurred was a collateral matter that had only slight, if any, relevance to the issues in the case. Therefore, the exclusion of Ms. Salazar’s testimony did not deprive defendant of his constitutional right to present a defense.
Defendant also asserts that the court improperly excluded a witness named Irma who would have testified that “someone had tried to dissuade Ms. Salazar from testifying in the case.” Because the court did not err in excluding Ms. Salazar’s testimony, the court acted within its discretion in excluding Irma’s testimony.
Defendant contends that the court’s exclusion of Ms. Salazar’s testimony is particularly unfair in light of the testimony of two of Benita’s friends. These friends testified that given their close relationship with Benita, Benita would have told them if she thought that Eliazer was cheating on her or that she was having an affair; but Benita never told them such things. Such testimony, however, was relevant to Benita’s knowledge and belief about her marriage, not to the collateral issue of whether Eliazer was in fact cheating on her. The testimony was thus of a different nature than Ms. Salazar’s proffered testimony, and the admissibility of the friends’ testimony is not inconsistent with the exclusion of Ms. Salazar’s testimony.
Regarding the offer of proof that Ms. Aranda would have testified that she told Benita that Eliazer was cheating on her, the proffered testimony concerns a statement made more than one year prior to the crime and at least six months prior to the beginning of the alleged affair with defendant. The court could rationally conclude that its remoteness in time rendered the statement irrelevant. The decision was not, therefore, an abuse of discretion; nor did it deprive defendant of his right to a defense.
2. Testimony of Demetrio Garcia
Defendant testified that Tapia had given defendant permission to put defendant’s photograph on Tapia’s driver’s license, and that Tapia had authorized him to pick up construction materials and use them for a private construction job. In rebuttal, the prosecutor called Tapia, who testified that he did not give defendant such permission or authorization. To impeach Tapia, defendant sought to introduce the testimony of Demetrio Garcia (Demetrio), defendant’s brother, who (according to defendant’s counsel) would have testified regarding “financial arrangements and kickbacks between [defendant] and [Tapia] in return for materials.” The court did not permit Demetrio to testify on this subject. There is no error. It does not appear from the record that Demetrio had any knowledge regarding the construction materials that were the subject of Tapia’s testimony. The court could thus conclude that his testimony would not have impeached Tapia or was otherwise relevant.
D. Evidentiary Issues
Defendant contends that the court prejudicially erred in admitting evidence of (1) altered or fraudulent driver’s licenses found in his truck, (2) Tapia’s testimony regarding his alleged permission to allow defendant to use his driver’s license and to take building materials for a private job, and (3) testimony of Scott Shaeffer about an incident in which defendant threatened him with a gun. We find no error.
The jurors were instructed: “In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. [¶] Among the factors that you may consider are: . . . What is the witness’s character for truthfulness? Has the witness been convicted of a felony? Has the witness engaged in other conduct that reflects on his [or] her believability?”
We first consider the use of the driver’s licenses. “[I]f past criminal conduct amounting to a misdemeanor has some logical bearing upon the veracity of a witness in a criminal proceeding, that conduct is admissible, subject to trial court discretion, as ‘relevant’ evidence . . . .” (People v. Wheeler (1992) 4 Cal.4th 284, 295.) It is a misdemeanor to alter a driver’s license or to possess a fraudulently altered or fraudulently obtained driver’s license. (Veh. Code, §§ 14610, subd. (a)(1), (8), 40000.11, subd. (m).) A witness’s unlawful alteration and possession of a fraudulent driver’s license logically bears upon his veracity as a witness. Such acts have a clear purpose: to misrepresent oneself as the person named on the license. Jurors can reasonably infer that one who is willing to misrepresent himself in that manner has shown a “readiness to lie” at trial. (People v. Castro (1985) 38 Cal.3d 301, 314-315.) The driver’s licenses were thus relevant to the issue of defendant’s veracity, and defendant has failed to show that the court abused its discretion under Evidence Code section 352.
The nature of defendant’s argument regarding Tapia’s testimony is not clear from his brief. Tapia’s testimony that defendant did not have permission to use his driver’s license or to take building materials from a jobsite directly impeached defendant’s contrary testimony. There is no error.
Regarding Scott Shaeffer, Mr. Schaeffer testified that defendant had been hired to perform certain construction work; when defendant was not paid in full (because the work was not fully performed), defendant pulled a gun on him and said that “he would get the money out of [Mr. Shaeffer] one way or another, dead or alive”; the gun found in defendant’s truck appeared to be the same gun that defendant pulled on Mr. Shaeffer. Defendant objected to this evidence as irrelevant and inadmissible under Evidence Code section 352. The court allowed the testimony “given that [Benita] state[d] that the perpetrator used a gun during the commission of this alleged crime.” In response to defendant’s motion for new trial, the court further explained that the testimony was “impeachment evidence as well as evidence of moral turpitude.” The ruling is not an abuse of discretion. Regardless of whether the conduct described by Mr. Shaeffer amounted to a felony or misdemeanor, the court could have reasonably concluded that threatening Mr. Shaeffer with a gun for nonpayment of wages indicated moral turpitude and was thus relevant to impeach defendant. (See People v. Wheeler, supra, 4 Cal.4th at p. 297, fn. 7; People v. Ayala (2000) 23 Cal.4th 225, 273; People v. Lepolo (1997) 55 Cal.App.4th 85, 89-90.) The court could also have reasonably concluded that the probative value of such impeachment evidence was not substantially outweighed by any prejudice. Therefore, the court did not abuse its discretion in allowing the evidence over defendant’s Evidence Code section 352 objection or deprive defendant of due process of law.
E. Use of CALCRIM No. 361
The court gave the jury the following instruction under CALCRIM No. 361: “If the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based upon what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure.” This instruction can be given only when there are facts in evidence within the defendant’s knowledge that he does not explain or deny. (People v. Saddler (1979) 24 Cal.3d 671, 681-682.)
Defendant contends that this instruction was improper because he did not fail to explain or deny any important evidence against him. The People concede that there is no basis for the instruction, but argue that the giving of the instruction is harmless. The parties agree that the applicable harmless error inquiry is whether it is reasonably probable that a more favorable verdict would have resulted if the instruction had not been given. (See People v. Lamer (2003) 110 Cal.App.4th 1463, 1471; People v. Peters (1982) 128 Cal.App.3d 75, 86.)
Defendant contends that the instruction is prejudicial because the “case was purely a credibility contest between Benita and [defendant], and this instruction suggested [defendant] was a liar because he had not explained evidence.” We disagree. As discussed above, the evidence that a rape occurred and that defendant was the perpetrator was strong: In addition to Benita’s testimony, items taken from Benita’s room that night were found in defendant’s truck and his wallet, duct tape, latex gloves, and what appeared to be the gun used during the crime were found in the truck, Benita’s physical examination indicated nonconsensual sex, the presence of defendant’s sperm on the vaginal swab, and Benita’s emotional behavior following the incident (as described by Hector and the responding sheriff’s deputy) were consistent with being a victim of rape. Based upon our review of the entire cause, we find that it is not reasonably probable that a different result would have been reached if the erroneous jury instruction had not been given.
III. DISPOSITION
The judgment is affirmed.
We concur: McKinster, Acting P.J., Richli, J.