Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF149505 Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood, and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I
INTRODUCTION
Defendant Henry Richard Herrera (defendant) appeals from judgment entered following jury convictions for a lewd and lascivious act upon a child by force or fear (Pen. Code, § 288, subd. (b)(1); counts 1 & 2); forcible oral copulation with a child (§ 269, subd. (a)(4); count 3); aggravated sexual assault of a child (§ 269, subd. (a)(5); count 4); and rape of a child (§ 269, subd. (a)(1); count 5). The trial court sentenced defendant to a determinate term of 12 years, plus an indeterminate term of 45 years to life in prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends there was insufficient evidence to support his rape conviction (count 5). Defendant also argues the trial court erred in failing to give sua sponte a unanimity instruction as to counts 1 and 2. In addition, defendant argues he received ineffective assistance of counsel because his trial attorney failed to argue effectively the admissibility of evidence of specific incidents of the victim lying and failed to object to prosecutorial misconduct committed during closing argument. We reject defendant’s contentions and affirm the judgment.
The People acknowledge in their appellate reply brief that they erroneously refer to the rape count as the fourth count, whereas defendant intends to challenge his conviction for rape, charged in the fifth count.
II
FACTS
At a relatively young age, defendant and M.H. married in 1997. They have three children, H.H. (born in 1995), A.H. (born in 2003), and Jane Doe (born in 1998).
In February 2003, M.H., defendant and their children moved to an apartment in Long Beach. Before that, M.H. and defendant did not live together, but they saw each other now and theN.M.H. lived with her mother in Compton, and defendant, H.H., and Jane Doe lived with defendant’s parents in Moreno Valley.
While M.H., defendant, and their children were living in Long Beach, in 2003, M.H. worked during the week. While M.H. was at work, either M.H.’s mother or defendant watched H.H. and Jane Doe. At the end of August or beginning of September 2003, defendant was arrested. M.H. and the children moved out of the Long Beach apartment and moved back in with M.H.’s mother in Compton. After September, Jane Doe and H.H. moved in with defendant’s parents, in Moreno Valley. M.H. remained with her mother in Compton, and stayed there after giving birth to A.H.
At times during the marriage defendant and M.H. reconciled and lived together with the children as a family. Defendant and M.H. “broke up” in 2006, when Jane Doe was eight years old, and divorced in October 2008.
In February 2006, defendant and M.H. got into an argument after returning from a trip to Las Vegas. Defendant wanted all three children to live with him in Moreno Valley. M.H. did not want defendant to take A.H. The argument ended when the police arrived. The police let H.H. and Jane Doe decide where they wanted to live. H.H. went with defendant and Jane Doe stayed with M.H. and A.H. After defendant and the police left, M.H. noticed something was bothering Jane Doe and asked Jane Doe if defendant had ever touched her inappropriately. Jane Doe said, “Yes.” The next day M.H. took Jane Doe to the police department and filed a report.
On April 14, 2006, M.H. took Jane Doe to the Riverside Community Hospital Medical Center for a Riverside Child Assessment Team interview (RCAT interview). Jane Doe was eight years old. During the RCAT interview, conducted by a Child Protective Services forensic interviewer, Jane Doe said that, while living in Long Beach, defendant told her to lick his penis or he would hit her. The first time he told her this, Jane Doe refused. Another time, defendant grabbed her hand and made her touch his penis. Defendant started touching her when her mother was pregnant and they were living in Long Beach. Her mother was at work when defendant molested her.
Also while living in Moreno Valley, defendant made Jane Doe touch his penis. Another time, he touched her breasts. More than once, while in Long Beach and Moreno Valley, defendant put his finger and penis inside her vaginal area. Sometimes he would “pee” on her. Defendant told her not to tell anyone or she would be sent to live in a foster home.
Sergeant Wade of the Riverside County Sheriff’s Department investigated the charges. He testified he heard Jane Doe say during the RCAT interview that defendant had penetrated her with his penis. Sergeant Wade did not believe a sexual assault exam was necessary because five months had elapsed between the initial molestation report and the RCAT interview. In addition, Jane Doe had become ill during the RCAT interview.
During the trial, when Jane Doe was 12 years old, she testified that defendant touched her genital area with his penis but did not penetrate her. On one occasion when Jane Doe was living in Long Beach and her mother was at work, defendant touched her breasts over her clothing. Defendant also hugged her around her waist in a way he had not done before. It made her uncomfortable.
Jane Doe testified that when she was living in Moreno Valley, defendant touched her breasts under her clothing and touched her front genital area under her clothes, but over her underwear. On another occasion at Jane Doe’s grandparents’ house in Moreno Valley, while Jane Doe lay in bed with defendant and H.H., defendant whispered repeatedly to Jane Doe, “Give it to me, ” which meant defendant wanted to touch her. Jane Doe turned away from defendant and tried to sleep. Defendant pulled her towards him and hugged her. H.H. was sleeping when this happened. Another time at Jane Doe’s grandparents’ home, defendant made her lick his penis. Defendant showed her his “front private” part on more than one occasion. Another time, defendant asked her to go with him to his room, pulled down his pants and her pants, and rubbed her bottom with his penis. Defendant did this on other occasions as well. Jane Doe did not tell anyone what defendant had done because she did not know who to tell.
Jane Doe further testified that her parents started arguing, after returning from a trip to Las Vegas, because Jane Doe did not want to return to Moreno Valley with defendant. Jane Doe did not feel safe there with defendant because he had been touching her. Jane Doe chose to stay with her mother. Late that night, Jane Doe told her mother what defendant had been doing to her. Jane Doe also told a woman in Riverside. Jane Doe remembered what defendant had done to her better then because it was fresher in her mind. She was eight or nine years old then, and told the woman the truth.
Later, when she went to visit defendant’s parents in Moreno Valley, her grandmother asked Jane Doe if the things she had said about defendant were true. Jane Doe told her defendant had not touched her because Jane Doe knew her grandmother would always defend defendant. Her grandmother loved him, and it was too difficult to tell her grandmother the truth. M.H. testified that Jane Doe usually told the truth but sometimes lied about minor things. Jane Doe did not lie about anything “big.”
H.H. and Jane Doe lived with defendant’s parents in Moreno Valley during most of their lives. H.H., who was 14 years old at the time of trial, testified that, when he lived with defendant’s parents, defendant did not live with them, but visited on weekends. Defendant slept in the same room as H.H. and Jane Doe. Defendant and H.H. slept in a bunk bed and Jane Doe had her own bed. H.H. did not notice any unusual behavior between defendant and Jane Doe, even after Jane Doe had made the accusations against defendant. Jane Doe appeared not to take the accusations seriously. H.H. believed nothing happened between defendant and Jane Doe because H.H. was always with Jane Doe. According to H.H., Jane Doe was known to be a liar. H.H.’s family would tell Jane Doe she was a liar because she constantly lied. She had lied to H.H.
Defendant’s mother and his sister-in-law, T.L., testified Jane Doe was a liar. Jane Doe told them the accusations were false and that her mother told her to make them so that defendant would go to jail.
III
SUFFICIENCY OF EVIDENCE OF RAPE
Defendant contends this court must reverse his rape conviction (count 5) because there was insufficient evidence that defendant penetrated Jane Doe.
In determining whether there is sufficient evidence, this court must determine whether the evidence, and reasonable inferences to be drawn from the evidence, provides substantial evidence of each element of the charged crime. (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) “‘In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the [conclusion of the trier of fact], not whether the evidence proves guilt beyond a reasonable doubt.’ [Citations.]” (Id. at p. 139, quoting People v. Mincey (1992) 2 Cal.4th 408, 432.)
Section 261 defines rape as an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under various situations, including intercourse accomplished against a person’s will by force, violence, duress, menace, or fear of immediate bodily injury. (§ 261, subd. (a)(2).) The requisite act of sexual intercourse must include an act of penetration. In this regard, section 263 states: “Any sexual penetration, however slight, is sufficient to complete the crime” of rape. The issue here is whether there was evidence of penetration.
“Penetration” means “sexual penetration and not vaginal penetration. Penetration of the external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not thereafter succeed in penetrating into the vagina.” (People v. Karsai (1982) 131 Cal.App.3d 224, 232, disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.) Penetration may be proved by circumstantial evidence, as well as direct evidence. (People v. Stevenson (1969) 275 Cal.App.2d 645, 650.)
In the instant case, Jane Doe testified at trial in May 2010, when she was 12 years old, that defendant did not put his penis inside her. She testified defendant touched her “back private” or “bottom” with his penis, but did not go inside. But Jane Doe also testified that her memory of what happened was better during her RCAT interview, when she was eight years old, a couple of weeks after Jane Doe told her mother defendant had molested her. Jane Doe said her memory was better then because everything was fresh in her mind at that time. The RCAT interview was conducted in 2006, by Denise Bowman, a Child Protective Services forensic interviewer.
The jury heard an audiotape recording and was shown a videotape of portions of the RCAT interview. During the RCAT interview, Jane Doe stated that defendant put his “weiner” [sic] and his finger “[i]nside where the pee comes out.” She also said defendant put his “private” inside her “private” and put his “weiner [sic] in there.” When asked what it felt like when he did this, Jane Doe said it felt like “crawling in there like spiders.”
Jane Doe’s trial testimony and her statements made during her RCAT interview provided more than sufficient evidence to support a reasonable finding that defendant penetrated Jane Doe. In addition, Sergeant Wade, who investigated the charges against defendant, testified at trial that he listened to the RCAT interview and heard Jane Doe say that defendant penetrated her with his penis. Wade observed the interview through a mirror window at the Riverside County Regional Medical Center. Since there was substantial evidence supporting a finding of penetration, we conclude there was sufficient evidence supporting defendant’s rape conviction.
IV
UNANIMITY INSTRUCTION
Defendant contends the trial court prejudicially erred in failing to give sua sponte a unanimity instruction as to counts 1 and 2, alleging defendant committed lewd and lascivious acts against Jane Doe (§ 288, subd. (b)(1)). Defendant argues that, because the prosecution presented evidence of multiple and different acts to prove each of the two counts, a unanimity instruction was required.
“When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act.” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)
In the instant case, defendant was charged with two separate counts of lewd and lascivious conduct with Jane Doe. (§ 288, subd. (a).) Each of the counts charged that the crimes were committed during the period of 2003 through 2006. The prosecution based count 1 on defendant touching Jane Doe, and count 2 on defendant causing Jane Doe to touch defendant. The court instructed the jury on this differentiation between counts 1 and 2.
The evidence establishing that defendant touched Jane Doe included Jane Doe’s testimony that defendant touched her breasts over her clothes and hugged her waist when she was in Long Beach. When she was living in Moreno Valley, defendant touched her breasts and “front private area.” Another time defendant hugged her from behind, in bed, while saying “Give it to me, ” meaning, “[c]ome here and let me grab you.” He then pulled her toward him and hugged her. Jane Doe also testified defendant touched her “privates” or “bottom” with his penis. He did this more than once, but she only remembered the details of the one instance she described. Jane Doe stated during her RCAT interview that defendant “squished her boobs” under her clothes when she was in Moreno Valley, and put his finger in “where the pee comes out.” During closing argument, the prosecutor argued that evidence defendant touched her breasts and vagina, and also rubbed his penis on her bottom, established defendant was guilty of count 1.
As to count 2, the prosecution presented evidence of multiple acts of defendant causing Jane Doe to touch defendant. Jane Doe stated in her RCAT interview that, in Long Beach, defendant grabbed her hand and made her touch his “wiener.” There were also other times she had to touch it. Jane Doe testified at trial that, while in Moreno Valley, defendant lay down next to her in bed and made her lick his private part. The prosecutor argued to the jury during closing argument that defendant was guilty of count 2 based on evidence that Jane Doe said that several times defendant made her touch his penis. The prosecutor noted that defendant was charged with only one count, count 2, for his multiple acts of forcing Jane Doe to touch his penis: “We could have separated each of those touchings into separate counts, but we didn’t do that.”
The People argue that, assuming the trial court erred in not giving a unanimity instruction as to counts 1 and 2, the error was harmless.
There is a split of opinion as to the harmless error standard applicable to error in failing to give a unanimity instruction. (People v. Wolfe (2003) 114 Cal.App.4th 177, 185 [Fourth Dist., Div. Two]; People v. Smith (2005) 132 Cal.App.4th 1537, 1545.) As we explained in Wolfe, we apply the federal harmless error standard: “‘Th[e] requirement of unanimity as to the criminal act “is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.” [Citation.]’ [Citations.] When the trial court erroneously fails to give a unanimity instruction, it allows a conviction even if all 12 jurors (as required by state law) are not convinced that the defendant is guilty of any one criminal event (as defined by state law). This lowers the prosecution’s burden of proof and therefore violates federal constitutional law. [Citations.] We conclude that we must apply the Chapman standard. [Citation.]” (Wolfe, at pp. 187-188; see also Smith, at p. 1545.)
Chapman v. California (1967) 386 U.S. 18, 24.
Under the Chapman harmless error standard, “the question is ‘“whether it can be determined, beyond a reasonable doubt, that the jury actually rested its verdict on evidence establishing the requisite [elements of the crime] independently of the force of the... misinstruction.”’ [Citation.] [¶]... ‘Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless. [Citation.]’ [Citation.]” (People v. Curry (2007) 158 Cal.App.4th 766, 783.)
On the record before us, we conclude any error in failing to instruct on unanimity was harmless under the Chapman standard. The defense to counts 1 and 2 consisted of arguing that Jane Doe was a liar, her accusations were false, and there was no evidence corroborating Jane Doe’s statements that defendant committed the charged offenses. Defense counsel argued Jane Doe had a reputation for lying, as established by defendant’s family’s testimony. Defendant did not testify in his own defense.
The jury apparently rejected the defense, finding defendant guilty of all the charged crimes, including counts 1 and 2. The jury thus must have believed Jane Doe’s RCAT statements and trial testimony. “‘Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless. [Citation.]’ [Citation.]” (People v. Curry, supra, 158 Cal.App.4th at p. 783.) Also, where the defendant offered the same defense to all the charged criminal acts, and “the jury’s verdict implies that it did not believe the only defense offered, ” then the failure to give the instruction is harmless error. (People v. Diedrich (1982) 31 Cal.3d 263, 283, called into doubt on other grounds in People v. Greenberger (1997) 58 Cal.App.4th 298, 370.)
Defendant argues that reversal is required under People v. Smith, supra, 132 Cal.App.4th 1537, because the jury could have convicted defendant, not based on a single act, but by amalgamating the evidence as to the different theories or acts. In Smith, the court reversed the defendant’s sex offense conviction based on the trial court’s failure to give a unanimity instruction. The defendant was charged with 10 counts of lewd and lascivious conduct. (Id. at p. 1540.) The jury convicted the defendant of the first count, but was unable to agree on the related substantial sexual conduct allegation. The jury also failed to reach a verdict on count 2, and found the defendant not guilty on counts 3 through 10. (Ibid.) The Smith court concluded there was the possibility the defendant was convicted without agreement among the jurors as to which act constituted the charged crime as to count 1. (Ibid.)
Smith is inapposite because in Smith, the jury found the defendant guilty of only one of 10 counts of lewd and lascivious conduct. Here, the jury found defendant guilty of all of the charged crimes, and thus rejected defendant’s defense that Jane Doe had lied and fabricated the charged sex crimes. The failure to give a unanimity instruction was harmless beyond a reasonable doubt since the record demonstrates that the jury believed Jane Doe and thus must have agreed on the specific acts upon which the jury based its findings of guilt as to counts 1 and 2. (People v. Curry, supra 158 Cal.App.4th at p. 783; People v. Brown (1996) 42 Cal.App.4th 1493, 1501-1502.) Had the trial court given the unanimity instruction, the result would have been the same. The jury would have found defendant guilty of counts 1 and 2. The failure to give a unanimity instruction therefore constitutes harmless error.
V
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues his trial attorney committed two instances of ineffective assistance of counsel (IAC): (1) defense counsel failed to present legal authority and argue that evidence Jane Doe lied when she denied kissing her cousin, was admissible and not subject to the noticed motion requirement (Evid. Code, § 782), and (2) defense counsel failed to object to the prosecutor arguing during closing argument that defense counsel had failed to introduce evidence of any specific instances of when Jane Doe was lying.
A. Applicable Law
To secure the reversal of a conviction based on IAC, a defendant must show (1) his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney, and (2) counsel’s deficient performance so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. The appellate court must presume counsel’s conduct fell within the wide range of reasonable professional assistance and accord great deference to counsel’s tactical decisions. (People v. Lewis (2001) 25 Cal.4th 610, 674.)
Further, because it is inappropriate for a reviewing court to speculate about the tactical reasons for counsel’s actions, when the reasons are not readily apparent in the record, the court will not reverse unless the record discloses no conceivable tactical purpose. (People v. Lewis, supra, 25 Cal.4th at pp. 674-675.) If the record sheds no light on the reasons for counsel’s actions, a claim of IAC is more appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
B. Failure to Provide Controlling Authority on the Noticed Motion Requirement
At the beginning of the trial, the prosecution moved under Evidence Code sections 780 and 782, to exclude testimony by defendant’s witnesses, stating that Jane Doe had engaged in inappropriate sexual conduct with someone other than defendant. Before ruling on the motion, the trial court asked defense counsel if he intended to introduce such evidence. Defense counsel responded that he believed the evidence was not subject to Evidence Code sections 780 and 782, requiring a noticed motion to introduce the evidence, because the evidence was not sexual conduct with another person.
When the court asked the prosecutor what she anticipated H.H. was going to say, the prosecutor quoted H.H.’s statement made in the investigator’s report that “He said a year ago while visiting his maternal grandmother, [Jane Doe] jumped on his back and started rubbing on him in a sexual manner.” Because it was unclear as to what this meant, the court told the prosecutor and defense counsel to ask H.H., before he testified, what he was going to say. The court concluded it did not have enough information to rule on the matter. Therefore the court took the matter under submission and said it would wait to rule on the prosecution’s objection until counsel had a chance to find out what H.H. was going to say.
The court further stated that if there was testimony as to sexual conduct, it most likely would be excluded because defense counsel did not give notice to the prosecution. The court stated, “[I]f I conclude it is sexual conduct, then I think you’ve conceded, Mr. Miranda [defense counsel], you haven’t given notice to the other side.” Defense counsel agreed.
The prosecutor then informed the court that three defense witnesses were going to testify that Jane Doe kissed her female cousin on the mouth in a sexual manner (the kissing evidence). The cousin, who is T.L.’s daughter, is the same age as Jane Doe. The court said it did not know what kissing in a sexual manner meant.
Defense counsel responded that he did not intend to ask about the incident during the trial since it was “a little remote in regards to those two individuals.” The only way defense counsel could anticipate it coming up was as an example of Jane Doe lying since he denied the incident when confronted with it. Defense counsel said he would instruct his witnesses not to mention the incident since “it’s a little collateral in regards to our particular case.”
The court added that, if the conduct was sexual, defendant had failed to give the prosecution proper notice of the evidence. Defense counsel agreed, and added, “I’d rather not even address it, ‘cause I think... it goes into another realm of stuff.” The court instructed defense counsel to inform the court first, if defense counsel intended to ask T.L. about the kissing incident.
Defendant argues that under People v. Franklin (1994) 25 Cal.App.4th 328, 335, the testimony regarding the kissing evidence was admissible, even if it was evidence of sexual conduct, because it could have been used to show that Jane Doe lied and thus was not a credible witness. Also, the evidence was not sexual conduct evidence subject to the notice requirements under Evidence Code section 782. Therefore, defendant concludes his trial attorney’s failure to argue the evidence was admissible and not subject to the notice requirements, constituted IAC.
Together, Evidence Code sections 1103, subdivision (c)(5) (the credibility exception) and 782, allow evidence of the complaining witness’s sexual conduct to be admitted to impeach the credibility of the complaining witness, provided the defense follows the procedures set forth in Evidence Code section 782. “[T]he term ‘sexual conduct’ in section 782 is interpreted broadly.” (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1456.) Evidence Code section 782 requires the defendant, the proponent of the impeachment evidence, to file a written motion and an affidavit stating an offer of proof concerning how the evidence is relevant to the credibility of the complaining witness. (Evid. Code, § 782.)
The procedures outlined in Evidence Code section 782 “diminish the potential abuse” of the credibility exception in part by requiring that the trial court apply section 352 and assess whether the probative value of the sexual conduct evidence, on the issue of credibility, is substantially outweighed by the danger that its admission will confuse the issues or result in undue prejudice. (People v. Chandler (1997) 56 Cal.App.4th 703, 707-708.) The trial court must also balance the need to preserve the defendant’s confrontation rights, on the one hand, against the policy of limiting public exposure of the complaining witness’s sexual history, on the other. (See ibid.; People v. Blackburn (1976) 56 Cal.App.3d 685, 690-691.)
Here, it is not reasonably probable that, even if defense counsel argued the kissing evidence was admissible, the trial court would have admitted it under section 352, since it concerned a minor collateral matter, which had no probative value, other than showing Jane Doe lied on one occasion.
Unlike in People v. Franklin, supra, 25 Cal.App.4th at pages 335-336 and People v. Tidwell, supra, 163 Cal.App.4th at pages 1454-1456, cited by defendant, here, the evidence regarding Jane Doe kissing her cousin, was not evidence that Jane Doe had made prior false complaints of sexual abuse. In addition, in Tidwell, the court upheld the exclusion of the evidence because it “was weak on the issue of [the victim’s] credibility and would require an undue consumption of time.” (Tidwell, at p. 1457.)
Furthermore, defense counsel could have decided it was tactically unwise to introduce the kissing evidence at trial because the jury might infer from it that Jane Doe learned such conduct from defendant sexually molesting her.
Since there were valid tactical reasons for excluding the evidence and it was reasonably probable that the trial court would have excluded the evidence, even if defense counsel argued it was admissible, we reject defendant’s IAC challenge to his trial attorney not arguing the admissibility of the evidence. In addition, even if the kissing evidence had been presented to the jury, it is not reasonably probable the outcome would have been any different.
C. Prosecutorial Misconduct
Defendant argues that the prosecutor committed misconduct by arguing the following during closing argument: “But do you hear any specific instances of when [Jane Doe] lied or why she has this reputation for being a liar? No. Instead, those family members take the stand and just tell you, You know what? She has a reputation for [being] a liar. Based on what? Absolutely nothing.”
Defendant asserts this argument was misconduct because the prosecutor inferred there were no specific incidents of Jane Doe lying, when the prosecutor knew there was such evidence but it was excluded because the prosecutor objected to it.
Defendant forfeited his objection to prosecutorial misconduct by not raising it in the trial court. (People v. Guerra (2006) 37 Cal.4th 1067, 1124.) Defendant therefore argues his trial attorney’s failure to object to the misconduct constituted IAC. But defendant has not established that (1) his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney or, (2) even if deficient, it so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (People v. Lewis, supra, 25 Cal.4th at p. 674.)
Defendant’s attorney’s performance was not deficient since there was no prosecutorial misconduct, and thus no reason to object. Although there may have been evidence of instances of Jane Doe lying, defense counsel chose not to introduce the evidence. The trial court considered the admissibility of evidence Jane Doe lied about kissing her cousin but deferred ruling on the matter and never decided the issue because defense counsel decided not to introduce the evidence.
Defendant’s reliance on People v. Daggett (1990) 225 Cal.App.3d 751 (Daggett), People v. Varona (1983) 143 Cal.App.3d 566 (Varona), and People v. Castain (1981) 122 Cal.App.3d 138, 146 (Castain), is misplaced. Defendant cites these cases for the proposition the prosecution committed misconduct by arguing there was no evidence of specific instances of Jane Doe lying, when the prosecutor knew such evidence existed but it was excluded. In Daggett, the court concluded the trial court erred in excluding prior sexual acts evidence without holding a hearing to consider whether the evidence was admissible under Evidence Code section 782. The Daggett court further concluded that this error was compounded by prosecutorial misconduct committed when the prosecutor argued to the jurors that, if they believed the victim had molested other children, the victim must have learned the behavior from being molested by the defendant. (Daggett, at p. 757.)
The court in Daggett held that the failure to conduct an Evidence Code section 782 hearing, in conjunction with the prosecutorial misconduct, constituted prejudicial error. (Daggett, supra, 225 Cal.App.3d at p. 758.) The Daggett court explained: “The prosecution may argue all reasonable inferences from the record, and has a broad range within which to argue the facts and the law. [Citation.] The prosecutor, however, may not mislead the jury. [¶] The prosecutor asked the jurors to draw an inference that they might not have drawn if they had heard the evidence the judge had excluded. He, therefore, unfairly took advantage of the judge’s ruling. Vigorous advocacy is admirable, but when it turns into a zeal to convict at all costs, it perverts rather than promotes justice.” (Id. at pp. 757-758.)
Unlike in Daggett, Varona, and Castain, here, there was an Evidence Code section 782 hearing on the admissibility of the kissing evidence. More importantly, the trial court did not exclude the evidence but, rather, deferred ruling on its admissibility, to allow the parties an opportunity to investigate further what the witnesses might say at trial. Defense counsel chose not to present the evidence. As a consequence, the trial court did not rule the evidence was inadmissible, and the prosecutor’s statement to the jury that it had not heard third party testimony of any specific instances of Jane Doe lying, was true. This was not because the court excluded the evidence. It was because defense counsel chose not to present the evidence to the jury. Varona and Castain are likewise inapposite. The courts in Varona and Castain, held the trial court erroneously excluded evidence, and the prosecutor committed misconduct by arguing a falsehood that the erroneously excluded evidence refuted. (Varona, supra, 143 Cal.App.3d at pp. 569-570; Castain, supra, 122 Cal.App.3d at pp. 144, 146.)
Furthermore, even if the prosecutor’s argument constituted misconduct, defense counsel’s failure to object does not constitute IAC since the prosecutor’s argument did not undermine the trial. (People v. Lewis, supra, 25 Cal.4th at p. 674.) “When the issue ‘focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ [Citations.] A prosecutor is given wide latitude during closing argument. The argument may be vigorous as long as it is a fair comment on the evidence, which can include reasonable inferences or deductions to be drawn therefrom....” (People v. Harrison (2005) 35 Cal.4th 208, 244.)
Here, it is not reasonably probable the jury construed the prosecutor’s remarks in an objectionable fashion or that the jury would have reached a more favorable result had defense counsel objected. Jane Doe’s RCAT interview and trial testimony provided strong evidence that defendant committed the charged offenses. Even though several witnesses testified Jane Doe had a reputation for being a liar and Jane Doe admitted she had lied when she told her grandmother the accusations were not true, the jurors’ verdict demonstrates the jury nevertheless believed Jane Doe’s RCAT statements and trial testimony describing the charged offenses.
It is not reasonably probable the jury would have found defendant not guilty had the prosecutor not argued there was no evidence of specific instances of Jane Doe lying. Likewise, it is unlikely there would have been a more favorable result had defense counsel objected to the prosecutor’s argument.
VI
DISPOSITION
The judgment is affirmed.
We concur: RICHLI Acting P. J. MILLER J.