Opinion
A127406
09-08-2011
THE PEOPLE, Plaintiff and Respondent, v. VINCENT HILTON HOPKINS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. 161125)
Vincent Hilton Hopkins appeals from convictions of kidnapping for the purpose of robbery, rape, sodomy, penetration by foreign object, and oral copulation. He contends that there was insufficient evidence to support several of the convictions and sentence enhancements; the trial court erred in responding to a question from the jury in the absence of defense counsel; the prosecutor engaged in misconduct; defense counsel rendered ineffective assistance; and the cumulative effect of the errors at trial requires reversal of the convictions. We affirm.
STATEMENT OF THE CASE
Appellant was charged by information filed on May 29, 2009, with kidnapping for the purpose of robbery (Pen. Code, § 209, subd. (b)(1)), rape (§261, subd. (a)(2)), sodomy by force (§ 286, subd. (c)(2)), penetration by foreign object (§ 289, subd. (a)(1)), and two counts of forcible oral copulation (§ 288a, subd. (c)(2)). In connection with all but the first count, it was alleged that the kidnapping substantially increased the risk of harm over the risk inherent in the underlying sexual offense (§ 667.61, subd. (d)(2)) and that appellant kidnapped the victim of the sexual offense in violation of section 207, 208, 209 or 209.5 (§ 667.61, subd. (e)(1)). It was further alleged that appellant had suffered a prior felony conviction.
All further statutory references will be to the Penal Code unless otherwise specified.
Jury trial began on November 2, 2009. On November 25, the jury found appellant guilty as charged and found the section 667.61 enhancement allegations true. On January 22, 2010, appellant was sentenced to a prison term of 125 years to life: 25 years to life for the forcible rape and accompanying section 667.61, subdivision (d)(2) enhancement, with the 15 years to life term under the section 667.61 subdivision (e)(1) enhancement stayed; consecutive terms of 25 years to life for each of the other four sex offenses, with stays of the section 667.61, subdivision (e)(1) enhancements; and a concurrent term of life imprisonment for the kidnap for robbery.
Appellant filed a timely notice of appeal on January 25, 2010.
STATEMENT OF FACTS
Shortly before 3:00 a.m. on December 11, 2008, Jane Doe left her house near Lake Merritt in Oakland for her daily walk around the lake. Carrying her Walkman and a water bottle, she walked on the sidewalk around the lake, then took a path that went closer to the lake. She did not come into contact with any people and the lighting was poor. About 20 or 25 minutes into her walk, while she was on a paved portion of the path leading to the beach, she heard footsteps and a man jumped on top of her from behind, grabbed her shoulders and neck, put a hand across her mouth and stuffed a rag into her mouth. The area was isolated, not near the streets surrounding the lake. Jane Doe was scared and crying, screaming for help and for him to let her go, and trying to fight him. He hit her in the head repeatedly and told her to shut up. She did not remember whether he asked her for money at that point, but thought she told him she did not have any. Jane Doe weighed about 99 pounds; the man was a lot bigger and stronger. She could not see his face but could see from his hands that he was African American.
Jane Doe testified that the man "dragged" her off the path, down the embankment toward the water. He was "right on top" of her, "pulling" her as she tried to resist; she was thinking she was going to die. She described the embankment as "pretty steep," enough "[t]hat it's a struggle to climb up without using your hands," with a lot of trees. After taking her down the embankment, the man pushed her to the ground near a tree root that was depicted in photographs later taken of the scene. She lay on her back with her head facing the road and her feet facing the lake. Jane Doe indicated the distance she was taken from the edge of the path, which the court estimated to be 17 feet. Jane Doe was sure the area they were in could not be seen from the parking lot beyond the trees.
Appellant suggests that "dragged" might not be the appropriate word to describe what was happening and that it "seems more likely" he and Jane Doe were "struggling and the pulling and tugging and, as a result of the struggle, tumbled down the incline." In support of this suggestion, appellant states that Jane Doe's "feet were always on the ground until appellant pushed her down just prior to assaulting her," and she was "generally upright until she and appellant went down the incline." He also cites a portion of the transcript in which Jane Doe stated that when she visited the scene with the prosecutor to show him the exact location of the sexual assaults, they "stumbled" on the way down because it was steep.
Jane Doe testified that the "bottom of her feet" were on the ground the whole time, with her weight on her feet or "pulled into [appellant]"; she was not dragged in the sense of "horizontal being dragged, feet just leaving in a trail of dirt and leaves." But there is absolutely nothing in her testimony to suggest she and appellant accidentally tumbled down the incline, as appellant now appears to suggest. Jane Doe described appellant as "dragging" her and "pulling" or "push[ing]" her to the location where he sexually assaulted her.
The man, who Jane Doe identified in court as appellant, pulled off her left shoe, pulled down her sweat pants and underwear, pulled down his pants and boxers, and "attempted vaginal intercourse." He was not able to "fully" insert his penis into her vagina, but there "definitely" was "some penetration." Appellant attempted vaginal intercourse at least five or six times, inserting his penis "almost all the way." She continued trying to fight, cry and scream, and he continued to hit her, on her jaw and temples when she was lying on her back and on the back of her head when she was on her stomach. Jane Doe testified that she did not remember the exact sequence of events, but appellant made her put her mouth on his penis at least three times, penetrated her anus with his penis, put his fingers in her vagina once or twice, and put his mouth on her vagina. She did not think he ejaculated. The assault lasted over an hour, then appellant stopped and allowed her to get dressed. He asked her "again" if she had money and she said "no." He put his hands into her sweatshirt pockets for money and pulled out the Kleenex she had there. She was standing at this point, although she had trouble doing so because of the steepness of the embankment. Appellant asked if she had money at her home and if she would take him there and she said she did not have money. He uncapped her water bottle and poured water over her genital area; she did not remember whether she had not yet pulled her pants up or he pulled them down again to do this. He might also have had her pour water on herself, and she thought he took the bottle away from her and tossed it. She pulled up her pants and ran away, scrambling up the hill using her hands to help, then running down the path and home. She did not have the baseball cap she had been wearing, her left sock or her Walkman when she left the scene.
At home, Jane Doe pounded on the door and her husband opened it. She was crying and said she had been raped, and he called 911. The police arrived and took Jane Doe to the scene, where appellant had been detained; she identified him as her assailant. She was then taken to Highland Hospital for a sexual assault examination.
On cross-examination, Jane Doe testified that appellant initially asked her for money when she was on the path, before he pulled down her pants. He pulled or pushed her continuously to the location where the sexual assault occurred; she was not dragged horizontally, her weight was on her feet or "pulled into him." She remembered saying during the sexual assault examination at the hospital that appellant "attempted" rather than "completed" vaginal penetration with his penis; what she meant was that appellant did not achieve full penetration, not that he failed to penetrate her at all. Similarly, she told the police that she did not think appellant penetrated her vaginally but he tried to, meaning that he penetrated her partially but not fully. She had the feeling appellant was not "all there" mentally and told the police he might have been on drugs.
Physician's assistant Kevin Binder, qualified as an expert on sexual assault examination, examined Jane Doe at Highland Hospital. Binder did not have an independent recollection of the examination, but testified based on his contemporaneous documentation on the Sexual Assault Response Team form. Following the questions on the form, Binder asked Jane Doe about whether specific acts were part of the assault and recorded her responses of "attempted" to "penetration of vagina by penis" and "yes" to "penetration of the vagina by object," "penetration of the anus by penis," and oral copulation. Jane Doe had a laceration by her eyebrow and bruising to her eye lids. Genital examination revealed dirt and leafy matter, increased redness to the posterior fourchette (the tissue outside the lower end of the vagina) and introitus (the entrance to the vagina), and multiple tears and slight swelling and bruising around the anus. The redness to the area outside Jane Doe's vagina could have been caused by a penis inserted into the vagina or by an attempt without penetration.
Oakland Police Sergeant Jamie Kim arrived at Jane Doe's home at about 4:46 a.m., within about five minutes of her husband's 911 call. He transported Jane Doe to the location by Lake Merritt where other officers had detained appellant. She identified appellant instantaneously. Kim then went with Jane Doe and her husband to the general area where the assault took place. He testified that the hill from the path down to the water was so steep that he had to grab the bushes and grass to climb back up from the bottom. Later that morning, Kim saw a water bottle and baseball cap about 25 to 30 feet along the hillside from where he had been with Jane Doe.
Evidence technician Katharyne Potter went to the scene at about 5:00 a.m. on December 11. She described the terrain from the pedestrian walkway to the lake as very steep and slippery, with a lot of trees. She photographed two pieces of tissue that Jane Doe pointed out on the ground and said her assailant had taken from her pocket. Potter photographed appellant and blood on the boxer shorts he was wearing. Later in the day, evidence technician Regina Bucher collected a water bottle, a baseball cap, a BART pass, a Walkman and two socks from the embankment by Lake Merritt. She testified that although photographs of some of the items she recovered made the ground look flat, all were recovered from a slope she described as "more than 45 degree slope of foliage, roots, trees, bushes . . ." and "about 15-20 feet steep." Because of the slope and foliage making it difficult to get her footing, in order to collect the items, Boucher tied a rope around a tree and then around her waist and used it for support.
Lance Smith performed a sexual assault examination on appellant on December 11. Appellant had a small laceration on his left wrist. An area on his right knee fluoresced under the Wood's lamp, as did the glans of his penis, and there was a dried blood-like substance around the draw-string of his pajama bottoms and dried leaves stuck to one of his socks.
The parties stipulated that Laura Silva, a forensic chemist and expert in analysis of biological material, could not eliminate Jane Doe as the donor of blood on two areas of a sock found at the scene which was similar to appellant's sock, as a contributor to biological material found on the hill, or as a donor of biological material on the water bottle. Appellant could not be eliminated as a contributor to the biological material found on the hill or as a donor of material on the sock, but was eliminated as a donor of material on the water bottle. Appellant could not be eliminated as the donor of sperm on Jane Doe's rectal swab, or as a biological donor of areas on Jane Doe's underwear. No sperm or male DNA was detected on Jane Doe's vaginal swab.
The parties also stipulated that Officers Jocum and Ward were dispatched to the sailboat house at Lake Merritt at 4:48 a.m. on December 11, 2008, in response to a 911 call from appellant asking to be taken to jail for an outstanding misdemeanor warrant. During the search incident to appellant's arrest, the officers noticed what appeared to be blood on his boxer shorts. Dispatch notified Officer Jocum that there had been a sexual assault in the area and the description of the suspect matched appellant, and Sergeant Kim brought the assault victim to the scene of appellant's arrest.
The only witness for the defense was Paul Perez, an investigator with the Alameda County Pubic Defender's Office. Perez measured the slope of the hill in the area of the assault by extending a string horizontally from the path toward the lake, then measuring the vertical distance at various points from the ground to the string level. Eighteen feet out from the path, the vertical distance was 52 inches; at 26 feet out, the vertical distance was 109.5 inches. Perez testified that the slope was "very steep" and he had to grab onto tree roots or branches to pull himself up the hill.
DISCUSSION
I.
The jury found true allegations that, in committing each of the sexual offenses against Jane Doe, appellant kidnapped her and his movement of her "substantially increased the risk of harm" to her "over and above that level of risk necessarily inherent in the commission of" the sexual offense, within the meaning of section 667.61, subdivision (d)(2). Appellant argues the evidence was insufficient to support these findings.
Section 667.61, subdivision (a), requires imposition of a sentence of 25 years to life when a defendant is convicted of committing enumerated sexual offenses including rape, penetration by foreign object, sodomy, and oral copulation under one or more of the circumstances specified in subdivision (d). One of the specified circumstances is that the defendant "kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense . . . ." (§ 667.61, subd. (d)(2).) Section 667.61, subdivision (d)(2), has been interpreted consistently with section 209, subdivision (b), which defines aggravated kidnapping as applying only when the defendant kidnaps the victim to commit robbery or specified sexual offenses and "the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense." (People v. Diaz (2000) 78 Cal.App.4th 243, 245-249.)
"[F]or aggravated kidnapping, the victim must be forced to move a substantial distance, the movement cannot be merely incidental to the target crime, and the movement must substantially increase the risk of harm to the victim. Application of these factors in any given case will necessarily depend on the particular facts and context of the case." (People v. Dominguez (2006) 39 Cal.4th 1141, 1153 (Dominguez).) In determining whether the movement of the victim substantially increased the risk of harm, "the jury must 'consider[] the "scope and nature" of the movement,' as well as 'the context of the environment in which the movement occurred.' [Citations.]" This standard suggests a multifaceted, qualitative evaluation rather than a simple quantitative assessment. Moreover, whether the victim's forced movement was merely incidental to the rape is necessarily connected to whether it substantially increased the risk to the victim. 'These two aspects are not mutually exclusive, but interrelated.' [Citation.]" (Dominguez, at pp. 1151-1152, quoting People v. Rayford (1994) 9 Cal.4th 1, 12.)
"The essence of aggravated kidnapping is the increase in the risk of harm to the victim caused by the forced movement." (Dominguez, supra, 39 Cal.4th at p. 1152.) The circumstances the jury should consider include "whether the movement decreases the likelihood of detection, increases the danger inherent in a victim's foreseeable attempts to escape, or enhances the attacker's opportunity to commit additional crimes." (Ibid. ) "[N]o minimum distance is required to satisfy the asportation requirement [citation], so long as the movement is substantial [citation]. [¶] Measured distance, therefore, is a relevant factor, but one that must be considered in context, including the nature of the crime and its environment." (Ibid.)
Appellant urges that the forced movement in the present case was brief and insubstantial, from one dark and isolated location to another similar location a short distance away, and did not increase the risk to Jane Doe over that inherent in the robbery or sexual offenses. He likens the case to People v. Stanworth (1974) 11 Cal.3d 588, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 237. In Stanworth, while the victim was walking along a road on the way home from a shopping center in the early evening, the defendant grabbed her from behind, held an ice pick at her throat, threatened to rape her, dragged her into an open field about 25 feet from the road, bound her hands, raped her, and took money from her purse. (People v. Stanworth, at p. 597.) The court found that the movement of the victim was not substantial but "merely incidental" to the commission of the rape and robbery, and that there was no evidence the "relatively brief movement . . . removed her from public view or in any other manner substantially increased the risk, beyond that inherent in the underlying crimes, that she would suffer physical harm." (Id. at p. 598.)
In Dominguez, the evidence showed that, in the middle of the night, the defendant forced the victim to move from the shoulder of a road, down a 10- to 12-foot embankment and partially into a walnut orchard, about 25 feet away from the road. (Dominguez, supra, 39 Cal.4th at pp. 1150-1151.) Because of the steepness of the embankment and trees in the orchard, it was unlikely a driver on the road would see the victim in the area to which she was moved. (Id. at p. 1153.) Thus, although she was not moved a great distance, the court concluded that the movement "changed the victim's environment from a relatively open area alongside the road to a place significantly more secluded, substantially decreasing the possibility of detection, escape or rescue." (Ibid. ) Distinguishing Stanworth, the Dominguez court concluded that the movement was not "merely incidental" to the rape, but rather removed the victim from public view and substantially increased her risk of harm. (Id. at p. 1154.)
The present case is more like Dominguez than like Stanworth. While the likelihood of passersby at that time day was small, the defendant moved Jane Doe from a paved path to a location down a steep hill covered with trees and other foliage. Jane Doe testified this area could not be seen from the parking lot nearby without walking to the road she was pulled off of and "peer[ing] over the side." Appellant and Jane Doe were therefore substantially less likely to be seen in the area to which he moved her than on the path where he first accosted her. Moreover, by all accounts, the embankment was so steep that it was difficult to get a foothold or to climb up or down. Appellant therefore moved Jane Doe to an area from which escape would be more difficult than from the path where she had been walking. Even the act of transporting the victim increased the risk of harm over that inherent in the underlying offenses, as appellant forcibly dragged Jane Doe down an incline that witnesses described as very difficult to negotiate. Ample evidence supports the jury's findings under section 667.61, subdivision (d)(2).
II.
Appellant also challenges the jury's findings that he kidnapped Jane Doe in violation of section 207, within the meaning of section 667.61, subdivision (e)(1). Subdivision (b) of section 667.61 provides that a person convicted of committing enumerated sexual offenses including rape, penetration by foreign object, sodomy, and oral copulation under one of the circumstances specified in subdivision (e) shall be punished by imprisonment for 15 years to life. The circumstance specified in subdivision (e)(1) is that the defendant "kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5."
Simple kidnapping under section 207 requires proof that the defendant moved the victim "a distance that was 'substantial in character.' " (People v. Martinez, supra, 20 Cal.4th at p. 237.) It does not require proof that the movement increased the risk of harm to the victim. (Ibid. ) In determining whether the movement is "substantial," however, "the jury should consider the totality of the circumstances. Thus, in a case where the evidence permitted, the jury might properly consider not only the actual distance the victim is moved, but also such factors as whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim's foreseeable attempts to escape and the attacker's enhanced opportunity to commit additional crimes." (Ibid. ) While the jury should consider all the circumstances, not just "abstract concepts of distance," "contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance." (Ibid. )
Here, appellant contends Jane Doe was moved only a "very short distance" and none of the contextual factors elevated this distance to "substantial in character." Clearly, having found the evidence sufficient to support the jury's findings that the movement substantially increased the risk of harm to Jane Doe, we find it sufficient to satisfy the lesser standard required for proof of simple kidnapping.
III.
Appellant additionally argues the evidence was insufficient to support his conviction for kidnapping for the purpose of robbery. Kidnapping for robbery requires movement of the victim that "is not merely incidental to the commission of the robbery, and which substantially increases the risk of harm over and above that necessarily present in the crime of robbery itself." (People v. Rayford (1994) 9 Cal.4th 1, 12.) It also requires that the defendant "have the specific intent to commit a robbery when the kidnapping begins." (People v. Lewis (2008) 43 Cal.4th 415, 519.) " ' "[K]idnapping without intent to rob constitutes kidnapping but not kidnapping for purpose of robbery; and a robbery during a kidnapping where the intent was formed after the asportation is a robbery and not a kidnapping for purpose of robbery." [Citations.]' " (People v. Curry (2007) 158 Cal.App.4th 766, 779, quoting People v. Tribble (1971) 4 Cal.3d 826, 831.)
Appellant's contention that the movement of Jane Doe was incidental to any attempt to take money from her and did not increase the risk of harm is no more persuasive in this context than in that of the sexual offenses discussed above. Rather than simply attempting to rob Jane Doe on the path where he first grabbed her, appellant dragged her some 17 feet down a steep embankment, increasing the risk to her by the very nature of the forced movement through difficult terrain as well as by bringing her to a location in which the two were less likely to be seen and from which escape would be more difficult than from the path.
Appellant also urges that Jane Doe's testimony on direct examination did not establish that he intended to rob her when the movement that comprised the kidnapping began. Jane Doe testified on direct that she did not remember whether appellant asked her for money at the point he first grabbed her, but thought she told him she did not have any. After he dragged her down the embankment and committed the sexual offenses, he asked her "again" if she had money, then put his hands into her sweatshirt pockets, and asked if she had money at home. On cross-examination, defense counsel asked a series of questions that elicited Jane Doe's testimony that appellant asked for money on the path, while he was pulling her and before he pulled down her pants.
Jane Doe's testimony that appellant first asked for money before he dragged her down the embankment is sufficient evidence that he intended to rob her when the kidnapping began. That this testimony was given on cross-examination does not undermine its sufficiency.
Appellant's true complaint with regard to this issue is revealed in his argument that his attorney rendered ineffective assistance of counsel by asking Jane Doe questions that "allowed the prosecution to establish the necessary element missing for appellant's conviction of kidnapping for the purpose of robbery." Appellant urges that the testimony elicited by the prosecutor was insufficient to prove the required intent and no defense attorney could have a tactical reason for establishing an element of an offense carrying a life term in prison that the prosecution had failed to prove.
"Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694; In re Wilson (1992) 3 Cal.4th 945, 950.) A 'reasonable probability' is one that is enough to undermine confidence in the outcome. (Strickland v. Washington, supra, 466 U.S. at p. 694; In re Jones (1996) 13 Cal.4th 552, 561.)" (People v. Dennis (1998) 17 Cal.4th 468, 540-541.) To demonstrate prejudice, the defendant " 'must establish that as a result of counsel's failures the trial was unreliable or fundamentally unfair. [Citation.] "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Strickland v. Washington, supra, 466 U.S. at p. 686.)' (In re Visciotti [(1996)] 14 Cal. 4th 325, 351-352.)" (In re Cudjo (1999) 20 Cal.4th 673, 687.)
"Our review is deferential; we make every effort to avoid the distorting effects of hindsight and to evaluate counsel's conduct from counsel's perspective at the time. (In re Jones, supra, 13 Cal.4th at p. 561.) A court must indulge a strong presumption that counsel's acts were within the wide range of reasonable professional assistance. (Strickland v. Washington, supra, 466 U.S. at p. 689.)" (People v. Dennis, supra, 17 Cal.4th at pp. 540-541.)
Appellant fashions his argument around the principle that defense counsel is obliged to fully investigate the facts and law applicable to the case. (People v. Farley (1979) 90 Cal.App.3d 851, 865; People v. Ledesma (1987) 43 Cal.3d 171, 222; In re Neely (1993) 6 Cal.4th 901, 919-920.) The cases upon which he relies involve ineffectiveness of counsel based on defense counsel's failure to investigate a defense supported by the evidence (People v. Ledesma, at p. 222) or raise a basis for suppression of incriminating evidence (In re Neely, at pp. 919-920; People v. Farley, at p. 865).
What occurred in the present case was nothing like the " 'failure to have an appropriate adjudication of a defense that reduces the trial to a "farce or a sham" ' " and "thus renders a defendant's trial fundamentally unfair.' " (People v. Farley, supra, 90 Cal.App.3d at p. 859, quoting People v. Rodriguez (1977) 73Cal.App.3d 1023, 1028.) Appellant does not suggest Jane Doe's full testimony fails to provide a sufficient basis for his conviction of kidnapping for robbery. Rather, he claims that if defense counsel had not asked Jane Doe certain questions, appellant might have benefitted from an inadvertent omission in the prosecutor's presentation of the evidence. Even without the testimony on cross-examination, Jane Doe's testimony at least arguably provided sufficient evidence that appellant intended to rob her at the outset of the kidnapping. While she testified that she did not remember whether appellant asked her for money when he first grabbed her on the path, she remembered telling him she did not have money and, when she described him asking for money after the sexual offenses, she said he asked for money "again." The focus of appellant's defense was that there was no kidnapping, that the movement of the victim was insufficient to satisfy the required standard. It is likely defense counsel viewed the prosecution's direct examination as establishing appellant's intent to rob Jane Doe and did not focus on the possibility that more specific testimony might be needed. At best, defense counsel's questioning eliminated the possibility of an unwarranted boon for appellant. It did not render the trial fundamentally unfair.
IV.
Appellant next urges that his rape conviction was unsupported by substantial evidence, in that there was insufficient evidence of penetration. Section 261, subdivision (a)(2), defines rape as "an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, . . . [¶] . . . [¶] . . . accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." Section 263 provides: "The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime." "The penetration which is required is 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, 233, disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8; see People v. Wallace (2008) 44 Cal.4th 1032, 1079; People v. Quintana (2001) 89 Cal.App.4th 1362, 1366.) The jury was instructed in accordance with CALCRIM No. 1000 that "[s]exual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required."
Appellant contends the evidence was insufficient because although Jane Doe testified that she was penetrated, she also said appellant had "attempted" to penetrate her and the "physical evidence stated in rather stark terms that there had been no penetration of Jane Doe's genitalia by appellant's penis."
Jane Doe testified that appellant "attempted vaginal intercourse" five or six times, that he was not able to "fully" insert his penis into her vagina but there "definitely" was "some penetration," and that he inserted his penis "[a]lmost all the way." When she arrived home, she immediately told her husband she had been "raped." She testified that she remembered saying during the sexual assault examination at the hospital that appellant "attempted" rather than "completed" vaginal penetration with his penis, and that what she meant was that appellant did not achieve full penetration, not that he failed to penetrate her at all. Similarly, when she told the police she did not think appellant penetrated her vaginally but he "tried to," she meant that he did not achieve full penetration, and she also told the police there was "partial" penetration."
The physician's assistant who examined Jane Doe at the hospital found broken epidermal cells in her rectal area but none in the vaginal area. Binder observed redness to the posterior fourchette, which is outside the vagina, and to the introitus, the "entrance" to the vagina. He testified that these observations corroborated Jane Doe's description of an "attempt" to insert a penis into her vagina, but that it was also possible the injuries were caused by insertion of a penis. Jane Doe's vaginal swab revealed no sperm cells and no male DNA.
Contrary to appellant's assertion, the physical evidence does not demonstrate an absence of vaginal penetration. As Binder expressly testified, his findings were consistent with either "attempted" penetration or penetration. Jane Doe's testimony amply supports a determination that there was at least "slight penetration" of Jane Doe's vaginal and genital area with appellant's penis. No more is required.
V.
Appellant further contends his rape conviction must be reversed because the court responded to two questions from the jury regarding this count without contacting counsel, and answered the questions incorrectly. The questions at issue were, "Is the posterior fruchette [sic] & entrotis [sic] part of the genitalia?" and, "If a man places his penis on the genitalia area, is this sexual intercourse?" The court responded, "[T]hese are factual issues and their determination is the sole function of the jury."
The record does not reflect any communication between the court and counsel regarding these questions. The questions above were the jury's eighth of nine requests during deliberations for information or read back of testimony. For four of these requests (Nos. 1, 3, 4 and 7), both the court's minute order and the reporter's transcript document discussions between the court and counsel. The record does not clearly indicate whether request No. 2 was discussed or what response was given to the jury. For jury request Nos. 5, 6, 8 and 9, the record reflects only the statement in the court's minutes that the court's response was delivered to the jury. The record reflects no objection to the responses delivered to the jury on request Nos. 5, 6, 8 and 9, and the response to request No. 8 is the only one appellant challenges on this appeal.
" '[I]t has long been the rule that the trial court should not entertain communications from the jury except in open court, with prior notification to counsel. "[A]ll communications should be made in open court. . . . Ordinary procedure would require that the trial judge afford the parties an opportunity to be apprised of any such communication and to have the opportunity to make timely objection to any action by the court or jury which might be deemed irregular." [Citations.]' (People v. Hogan (1982) 31 Cal.3d 815, 848-849, disapproved on another point in People v. Cooper (1991) 53 Cal.3d 771, 836.)" (People v. Avila (2006) 38 Cal.4th 491, 613.) As noted in People v. Hawthorne (1992) 4 Cal.4th 43, 68, footnote 14, our Supreme Court has not definitely settled what standard governs the determination of prejudice resulting from improper communication between the court and a deliberating jury, at times having used the "miscarriage of justice" standard and at times the "harmless beyond a reasonable doubt" test for constitutional error, "on the theory that the ex parte communication denied the defendant the right to have counsel present at all critical stages of the proceedings."
Relying upon the principles that the party challenging a judgment has the burden of affirmatively showing error by an adequate record (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575; People v. Malabag (1997) 51 Cal.App.4th 1419, 1422-1423), respondent urges us not to accept appellant's assumption that the court did not discuss its response to the jury's questions with counsel. This point is well taken. As we have said, the record does not directly demonstrate that the court consulted counsel regarding several jury requests other than request No. 8, and appellant does not challenge any of these. Jury request No. 8 was dated November 25, 2009, 10:10 a.m., and the minutes indicate the court's response was delivered to the jury room at 10:33 a.m. The minutes suggest counsel were not present in court, as there is no statement that they were present at the morning session, and the minutes note the court stood in recess "to assemble the attorneys" when the jury announced it had reached a verdict that afternoon. But there is nothing in the record to demonstrate the court did not consult with counsel off the record, perhaps by telephone, regarding the jury's question.
The court's response, however, was at least partially incorrect. The jury instruction relevant to the questions it asked in request No. 8 directed the jury that "[s]exual intercourse means any penetration no matter how slight of the vagina or genitalia by the penis." The jury asked whether the specific anatomical parts referred to in the trial testimony, the fourchette and the introitus, were part of the genitalia, the term used in the instruction it was required to apply. It also asked whether sexual intercourse was established if a man "places his penis on the genitalia area." As to the second of these questions, the court's response—that this was a factual issue for the jury's determination—was patently incorrect. As discussed above, a conviction for rape requires, at least, proof of "penetration of the external genital organs." (People v. Karsai, supra, 131 Cal.App.3d at p. 233.) This is a legal point, not a factual one. It was for the jury to determine from the evidence whether there was penetration of the genitalia. But the jury did not ask whether penetration occurred; it asked, in essence, whether penetration was required. Instead of answering this legal question, the court told the jury to make a factual determination.
Nevertheless, reversal is required only if the court's error was prejudicial. (People v. Beardslee (1991) 53 Cal.3d 68, 97.) Appellant urges that it was, emphasizing that the jury asked several other questions regarding the rape count in addition to request No. 8, that the victim's prior statements indicated a completed rape had not occurred, and other defense evidence "strongly suggest[ed]" the victim had not been raped. As discussed above, this characterization of the evidence is not correct. Jane Doe's pretrial statements to the police and Binder that appellant had "attempted" penetration of her vagina did not indicate a rape had not occurred. Jane Doe explained that she meant appellant had achieved partial rather than full penetration. Moreover, the question for the jury was whether there was penetration of the genitalia, not just of the vagina. Even if Jane Doe's pretrial statements were taken to mean he did not succeed in penetrating her vagina, they do not suggest he failed to penetrate even slightly the external genitalia. Binder testified that the physical evidence was consistent with either attempted or completed insertion of a penis into the vagina; he was not asked about penetration of the genitalia. He explained that the areas where he found increased redness were outside the vagina. And Jane Doe's unequivocal trial testimony that there was "some penetration" of her vagina by appellant's penis and that he inserted it "almost all the way" necessarily demonstrates penetration of her genitalia.
By answering the jury's questions as it did, the court left the jury with the original instructions as its only guide on the requirements for a rape conviction. The relevant instruction correctly informed the jury that only "slight" penetration of the vagina or genitalia was required. No instruction suggested the jury could find appellant had committed rape without evidence of at least "slight" penetration. By referring to penetration of "the vagina or genitalia," the instruction made clear that vaginal penetration was not necessarily required. Short of completely rejecting Jane Doe's testimony, which the verdict demonstrates the jury did not do, there is simply no way the jury could have believed appellant's penis did not at least slightly penetrate Jane Doe's genitalia. On this record, it is virtually impossible to believe the jury would have reached a different verdict if the court had responded to its question by reiterating the legal rule that a finding of sexual intercourse requires proof of penetration of the genitalia, "no matter how slight."
VI.
Appellant contends that the prosecutor committed prejudicial misconduct in numerous instances during his opening statement and closing argument, improperly appealing to the jurors' passion and prejudices, asking them to view the crimes through Jane Doe's eyes and attempting to have them decide the case based on sympathy and compassion for her, vouching for Jane Doe's credibility, misstating facts, and impugning the integrity of defense counsel.
" ' "The applicable federal and state standards regarding prosecutorial misconduct are well established. ' "A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' " ' (People v. Gionis (1995) 9 Cal.4th 1196, 1214; People v. Espinoza (1992) 3 Cal.4th 806, 820.) Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' (People v. Espinoza, supra, 3 Cal.4th at p. 820.)" (People v. Samayoa (1997) 15 Cal.4th 795, 841.)' (People v. Hill (1998) 17 Cal.4th 800, 819.)
"Regarding the scope of permissible prosecutorial argument, ' " 'a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] . . .' . . . 'A prosecutor may "vigorously argue his case and is not limited to 'Chesterfieldian politeness' " [citation], and he may "use appropriate epithets . . . ." ' " (People v. Wharton [(1991)] 53 Cal.3d [522,] 567-568.)' (People v. Williams (1997) 16 Cal.4th 153, 221.)
"Finally, 'a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. (People v. Berryman (1993) 6 Cal.4th 1048, 1072.)' (People v. Samayoa, supra, 15 Cal.4th at p. 841.)" (People v. Stanley (2006) 39 Cal.4th 913, 951-952.) Appeals to the jury's passions
Appellant's examples of misconduct begin with the prosecutor's very first remarks in opening statement: "Sometimes in your life you hear about facts that are just so brutal and so heinous that it makes your body shake. Ladies and gentlemen, I'm speaking to you here today because I want you to feel what Jane Doe felt." There was no objection to these statements.
In closing argument, the prosecutor told the jury that this was a particularly bad rape: "Some rapes are . . . bad, but some rapes are just the worst of the worst. And ladies and gentlemen, this rape is one of those rapes." The prosecutor emphasized the location and duration of the attack on Jane Doe, telling the jury, "When you take someone for an hour, and you abuse them that way, the psychological scars are a lot deeper. The harm that that person goes through is a lot more scary. A robbery takes a matter of seconds, maybe minutes. It doesn't take an hour. It doesn't take an hour. How do you believe that she felt being down in this dark, wet, dirty—." At this point, defense counsel objected to the prosecutor asking the jurors to put themselves in the victim's position, the court overruled the objection, and the prosecutor continued with an argument that the juror had to consider whether the victim was "psychologically scarred" as well as whether she was "physically scarred."
" 'We have settled that an appeal to the jury to view the crime through the eyes of the victim is misconduct at the guilt phase of trial; an appeal for sympathy for the victim is out of place during an objective determination of guilt. [Citations.]' (People v. Stansbury (1993) 4 Cal.4th 1017, 1057.)" (People v. Martinez (2010) 47 Cal.4th 911, 957.) Respondent concedes the prosecutor's invitation to the jury to view the evidence from Jane Doe's perspective was improper.
But the prosecutor's comments must be viewed in context. (People v. Stansbury, supra, 4 Cal.4th at p. 1057.) The prosecutor emphasized the brutality and length of the assault on Jane Doe, and this portrayal was undeniably disturbing, but it was justified by the evidence and did not exceed "fair comments on the evidence." (People v. Martinez, supra, 47 Cal.4th at p. 957.) The prosecutor's two references to how the victim must have felt were unlikely to have impermissibly swayed the jury. Even without invitation from the prosecutor, it would have been difficult to hear the evidence in this case and not imagine how the victim must have felt. Both the court and defense counsel explicitly reminded the jurors not to let such considerations guide their deliberations. Defense counsel made a point of warning the jury that the prosecutor was trying to appeal to their emotions by his portrayal of the victim, appellant and the offenses, and urged the jurors not to let bias, sympathy, prejudice or public opinion influence their decision. The court so instructed the jury: "Do not let bias, sympathy, prejudice or public opinion influence your decision. Bias includes, but is not limited to, bias for or against the witnesses, attorneys, defendant or alleged victim, based on disability, gender, nationality, national origin, race or ethnicity, religion, gender, identity, sexual orientation, age, or socioeconomic status." We presume the jury followed the court's instructions. (People v. Martinez, at p. 957.) And had the jurors been so influenced by the prosecutor's exhortations that they failed to weigh the evidence objectively, they would not have struggled with the verdict to the extent reflected by their careful questions during deliberations.
Appellant also urges that the prosecutor also asked each juror to "substitute the 'community' view of the evidence" for his or her "impartial and independent view." In this portion of his argument, the prosecutor described a class he had taken on the jury system, in which "one of the most powerful things" his professor said was that "when we do public trials, when we have trials that are exposed to the community, they expose wrong, they expose what people do to other people. He also talked about condemnation of people who commit these crimes." We do not find in these comments a plea for the jurors to depart from their obligation to evaluate the case impartially and independently. Improper vouching
Appellant contends the prosecutor improperly vouched for Jane Doe's credibility by telling the jury that appellant had admitted having "raped the white woman" without presenting evidence to support this statement; by telling the jury that he had talked to Jane Doe and "it's difficult to get her to tell you when something happened and the order when something happened, because it was so brutal and it took so long"; and by telling the jury that he would not prosecute a fellow African American unless he was personally convinced the charges were true.
"A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. (People v. Sully (1991) 53 Cal.3d 1195, 1235 . . . ; People v. Anderson (1990) 52 Cal.3d 453, 479.) Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness's truthfulness at trial. (United States v. Roberts (9th Cir. 1980) 618 F.2d 530, 536-537.) However, so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the 'facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,' her comments cannot be characterized as improper vouching. (People v. Medina (1995) 11 Cal.4th 694, 757 . . . ; see also People v. Williams (1997) 16 Cal.4th 153, 256 . . . . )" (People v. Frye (1998) 18 Cal.4th 894, 971, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
The first of the comments appellant complains of was made in opening statement, when the prosecutor stated that, after being arrested, appellant admitted that "he was out to rob someone" and "he raped the white woman with the glasses." In fact, the prosecution did not present evidence that appellant made this statement to the police. But "remarks made in an opening statement cannot be charged as misconduct unless the evidence referred to by the prosecutor was so patently inadmissible as to charge the prosecutor with knowledge that it could never be admitted." (People v. Davenport (1995) 11 Cal.4th 1171, 1212-1213.) Appellant does not argue that the prosecutor could not have introduced evidence of appellant's statements to the police, only that he did not do so. A defense motion to suppress appellant's statement to the police was denied before trial. Defense counsel acknowledged in his opening statement that the evidence would show appellant committed sodomy and forcible oral copulation against Jane Doe, telling the jury that the key issue in the case was whether a kidnapping occurred. Given this defense stance, the prosecutor may have simply decided it was unnecessary to present evidence of appellant's statements. The court instructed the jury, both before counsel delivered their opening statements and after counsel concluded closing argument, that nothing the attorneys said in their opening statements, questions during trial or closing arguments was evidence. (See People v. Wrest (1992) 3 Cal.4th 1088, 1109.)
Appellant's next challenge is to the prosecutor's statement, in the course of his argument that by moving the victim to the location of the sexual assault appellant increased the risk of harm so as to support the kidnap allegations, "I've talked to her, it's difficult to get her to tell you when something happened and the order when something happened, because it was so brutal and it took so long." To the extent these comments suggested the jury should draw a conclusion based on the prosecutor's evaluation of Jane Doe's credibility outside the courtroom, they were improper. But defense counsel did not object to this portion of the prosecutor's comments, only to his subsequent invitation to the jury to imagine how Jane Doe felt during the assault. The prosecutor's statement that it was difficult to get Jane Doe to describe the order of events during the attack was entirely consistent with Jane Doe's testimony at trial, in which she described a lengthy attack and said she could not remember "the exact order of events." Read in the context of the surrounding argument, the point of the prosecutor's comments was to emphasize the brutality of the offenses—the victim could not remember the order of events "because it was so brutal and it took so long"—not to suggest the prosecutor had outside information regarding appellant's guilt.
Appellant's argument that the prosecutor improperly told the jury he would not prosecute a fellow African American without being personally convinced the charges were true is not supported by the record. The passage appellant quotes to support his assertion is as follows: "[I] didn't just call him a rapist, I talked about how bad this rape was and how bad he was for doing it. And what I was doing in this, and it's important that you guys know this is to enlighten you. Some rapes are . . . bad, but some rapes are just the worst of the worst. And ladies and gentlemen, this rape is one of those rapes." "I called him a rapist because he is a rapist." As the prosecutor told the jury, he was responding to defense counsel having "made a point that I had called [appellant] a rapist." Defense counsel did not object, again waiving a claim based upon these comments. Nothing in the comments appellant quotes comes close to a statement that the prosecutor would have to be personally convinced of an African American's guilt before he would prosecute; the comments do not even refer to the prosecutor's or appellant's race. Nor do they suggest that the prosecutor's view of the facts was formed on evidence other than that presented at trial. Appellant does not cite any other portion of the record to support his assertion that the prosecutor made the statement appellant attributes to him, and our review reveals none.
In fact, as far as our review of the record discloses, the first references to race in counsels' remarks to the jury came in defense counsel's closing, when he urged the jurors to resist the prosecutor's attempt to appeal to their emotions and prejudices. Defense counsel argued that the prosecutor had created an image of Jane Doe as a "strong, heroic victim, she was violated, raped, abused, feared for her life, she's white, she's petite" and "Vincent Hopkins, he's a [sic] animal, he's repugnant . . . . This man, he's disgusting; he's a rapist. He's African American." The prosecutor responded in his closing argument: "In my time during this job, I have never ever had anyone create an image of me as a racist. Never ever have I felt that way. When I look at someone—when I'm prosecuting someone, I look at their conduct. I look at what they do, not who they are. As an African American male, I don't want anyone looking at me for who I am, but what I do. And for him to stand up here and say those words about me, it hurt. I called him a rapist because he's a rapist. It absolutely nothing to do with his color or her color it's what he did."
The prosecutor's references to race were thus in response to the defense characterization of the prosecutor's argument. They did not suggest that the prosecutor had outside information of appellant's guilt or a particularly high bar for deciding to prosecute a "fellow African American." Derisive comments
Appellant also contends the prosecutor engaged in misconduct by making derisive comments toward the defense. He first points to a portion of the closing argument in which he says the prosecutor's discussion of what he termed the "okey doke" improperly suggested the defense was employing "tricks" and misstating evidence.
"A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel." (People v. Hill, supra, 17 Cal.4th at p. 832.) "A defendant's conviction should be based on the evidence adduced at trial, and not on the purported improprieties of his counsel. (People v. Sandoval (1992) 4 Cal.4th 155, 183.) When a prosecutor denigrates defense counsel, it directs the jury's attention away from the evidence and is therefore improper. (Id. at pp. 183-184.) In addressing a claim of prosecutorial misconduct that is based on the denigration of opposing counsel, we view the prosecutor's comments in relation to the remarks of defense counsel, and inquire whether the former constitutes a fair response to the latter. (U.S. v. Lopez-Alvarez (9th Cir. 1992) 970 F.2d 583, 597.)" (People v. Frye, supra, 18 Cal.4th at p. 978.)
Appellant did not object to any of the remarks he now challenges and so waived this claim of error. In any event, the argument did not amount to misconduct. Much of defense counsel's closing was devoted to the argument that appellant did not move Jane Doe to a location that increased her risk of harm, including that the evidence did not show that appellant dragged Jane Doe down the slope, that there were discrepancies in the evidence as to exactly where the sexual assault took place, and that at 3:00 or 3:30 a.m. in the morning, the distance appellant moved Jane Doe did not increase her risk of harm. In response, the prosecutor discussed Jane Doe's testimony about where the offenses occurred and told the jury that the importance of various witnesses the prosecution had presented was to give the jury an idea what the area was like. He argued, "And for counsel to stand up there and to say there's . . . no difference between being attacked at noon, compared to 3:00 a.m. is laughable. So if it's not a kidnapping at noon, it's not a kidnapping at 3:00 a.m., because that's absolutely makes no sense, but because the law tells you to look at all the surrounding circumstances. [¶] One of those surrounding circumstances is time of day."
The prosecutor then made the remarks appellant challenges, beginning as follows: "So I know a Prosecutor, he was talking to me and he told me, I was asking, when you are doing rebuttal, how do you handle it. What do you look for, and he told me wait four [sic] the okey doke. I'm like, the okey doke. He said the okey doke. And I said what's the okey doke, and he explained it. It's the slight of hand, the misstatement of evidence, misstatement of words, tricks, wait for that. That's your rebuttal. You just listened to the okey doke. That is what that is." The prosecutor criticized various other points made by the defense, then returned to the issue of the location of the assault, telling the jury that the defense had tried to show through pictures and measurements that the assault did not occur on a steep slope, and that they should not be persuaded by this tactic. The prosecutor reminded the jury that Regina Bucher had testified the photographs made an area look flat that in fact was so steep she had to use a rope to descend the slope. He then continued, "Ladies and gentlemen, it's the okey doke. Let me bring out my investigator to do these measurements and then make it look like the rape happened somewhere else. The victim told you, I asked her the question from where you were located when you were raped, could anyone see you, she said, no, they would have to come over and look over the slope. I'm not making this up, this is her testimony. But he's like slight of hand, let me bring these measurements in, let me have my investigator. And an investigator didn't realize where I was going, he didn't realize I wasn't really interested in the measurements, I was interested in the conditions, the conditions that she was in, because ladies and gentlemen, he changed her environment. He put her at a greater risk of both physical and psychological harm. That's what is at play here, that is why, and I told you there's the count one, the kidnapping for robbery and then there's the enhancements to every single sex act, enhancements mean that there was something more done to the person."
These further remarks, which appellant also quotes as part of his claim of misconduct, were:
"When someone stands up here and the first words out of their mouth is to attack the Prosecutor, he even attacked me for things I did not say, he said some prosecutors say this. Mr. Wilson didn't say this, but Mr. Wilson didn't say like he's anticipating that I will say nothing. It's called the okey doke. It's called the trick. It's not right, and it's not evidence. That's what I say and what he says is not evidence. Ladies and gentlemen, I told you. Look at the elements of kidnapping. Think about this, if he didn't talk [about] count one and the first enhancements of the kidnapping, may be there's a reason for that, maybe that's somewhere to start. Look at it, and I ask you, look at it, and also look at the one he did talk about and you'll see what I'm talking about. You'll see why I called the husband, you'll see why the witnesses' [sic] testified they did. You'll see why I didn't worry about distances, because it's the evidence. That's what I told you guys, it's the evidence. And no one is trying to trick you. I am giving it to you like it is, it's about the evidence, it's the testimony, it's the consistency in the testimony.
"He even had the nerve to say, well, Jane Doe said one thing to the SART examiner and then she testified to something totally different here. No, she testified to what she believed was an attempt. She didn't realize, as I explained to you, that under the law any slight penetration is a rape, she doesn't know that she's not trying to trick you, she's not lying, you were able to look at her. You were able to look at her. Decide if she's credible or not, so she's saying that she's credible on some things and not credible on other things, that makes absolutely no sense, it makes absolutely no sense."
As the prosecutor's last quoted remarks make abundantly clear, the "okey doke" was not a personal attack on defense counsel, it was a comment on the defense view of the evidence. "[T]he prosecutor has wide latitude in describing the deficiencies in opposing counsel's tactics and factual account." (People v. Bemore (2000) 22 Cal.4th 809, 846.) Argument of a similar nature has been upheld in many cases. For example, in People v. Frye, supra,18 Cal. 4th at pages 977-978, the court found no misconduct where the prosecutor accused defense counsel of being " 'irresponsible' " for raising suspicion against a prosecution witness. The court explained that "the point of [the prosecutor's] criticism was counsel's lack of evidentiary support for such a claim. (Id. at p. 978.) "Because the focus of her comment was on the evidence adduced at trial, rather than on the integrity of defense counsel, it was proper." (Ibid.) Similarly, People v. Seaton (2001) 26 Cal.4th 598, 663, rejected a claim that the prosecutor improperly attacked defense counsel's integrity by describing the defense case as " 'ludicrous,' 'contrived,' 'concocted,' and 'bogus' " because the remarks "were comments on the evidence." (Ibid.) In People v. Medina, supra, 11 Cal. 4th 694, 759, the court found unobjectionable a prosecutor's argument that " 'any experienced defense attorney can twist a little, poke a little, try to draw some speculation, try to get you to buy something . . . . ' " People v. Gionis, supra, 9 Cal.4th 1196, 1215-1217, rejected a claim of prosecutorial misconduct where the prosecutor argued that defense counsel was "arguing out of both sides of his mouth" and "this was an example of 'great lawyering' which 'doesn't change the facts, it just makes them sound good[,]' " and read the jury several "classic quotations about lawyers" on the theme of lawyers' ability to manipulate facts. As in many of these cases, the prosecutor's argument here " 'did little more than urge the jury not to be influenced by [defense] counsel's arguments, and to instead focus on the testimony and evidence in the case.' " (People v. Dykes (2009) 46 Cal.4th 731, 771, quoting People v. Stanley, supra, 39 Cal.4th at p. 952.)
Appellant also urges that the prosecutor falsely accused defense counsel of injecting race into the case when in fact it was the prosecutor who "was the purveyor of racial fear and animus." He cites the prosecutor's comments that "I didn't go into any sympathy, irrelevant facts, misstatement, it's a personal attack on me instead of attacking the evidence. It's just wrong. I hope you guys got this." These comments had nothing to do with race. Instead, when read in context, it is obvious that they were a direct response to defense counsel's argument that the prosecutor had Jane Doe's husband testify for the sole purpose of appealing to the jurors' emotions by adding a second victim. The prosecutor responded, "[H]e made a point of me bringing in the husband, saying it creates another victim. Remember when I talked to you guys, I said it's the risk of physical and psychological harm. It's an instruction that you are given. [¶] The first person that has contact with her, who better to assess her physical and psychological condition, if you think about the questions I asked him, how was she emotionally, what does she look like when you saw her, what's the first thing that she said to you. I didn't go into any sympathy, irrelevant facts, misstatement, it's a personal attack on me instead of attacking the evidence. It's just wrong. I hope you guys got this." Misstatement of law
Appellant further urges that the prosecutor misstated the law with respect to the kidnap enhancements by conflating the psychological harm inherent in any sexual assault or robbery with the psychological harm involved in determining whether there was "substantial movement" to support the enhancement and telling the jury to consider psychological harm that occurred after all movement had ceased. The challenged remarks were as follows: "She told you that she believed she was going to die. If he just robs her on that path, that is temporary, it lasts as long as a robbery. When you take someone for an hour, and you abuse them that way, the psychological scars are a lot deeper. The harm that that person goes through is a lot more scary. A robbery takes a matter of seconds, may be minutes. It doesn't take an hour. It doesn't take an hour. How do you believe that she felt being down in this dark, wet, dirty—[¶] . . . [¶] . . . You have to look at the issue of being psychological [sic] scarred as well as physically scarred. I want you guys to remember that, because it's in the instruction, it's not just if she was physically scarred, it's whether what he did to her psychologically scarred her." At this point, defense counsel objected that the prosecutor had misstated the law and the court overruled the objection. The prosecutor continued, "That is what you guys look at. That is the law. He raped her for an hour, this prolonged and isolated attack, there has to be both physical and psychological scars, you can't get around it, you can't get around it. You don't have to be a psychiatrist or a psychologist to realize that. You do not have to. I want you guys to remember this. It is not the actual harm. We have harm in this case, but it's the risk of harm what the statute is addressing, and I want you guys to look at the statute."
These remarks were part of the prosecutor's argument that appellant moved the victim away from the path where he first assaulted her, down a steep slope to an isolated area from which it would be more difficult for anyone to see them and more difficult for the victim to escape. Addressing the several kidnapping clauses involved in the case, the prosecutor stated: "Now, this is not a legal definition right here, but this is something I want you to think about, a kidnapping results when you make the environment and the movement that results in an increased risk of harm to the victim. What that means is that if someone takes a person from one environment into a totally different environment, and increased the risk of harm to that person, that's a kidnapping." When defense counsel objected that the prosecutor had misstated the law, the prosecutor pointed out that he had told the jury this was not "the law" and the court overruled the objection. The prosecutor went on to argue that appellant did not have to move Jane Doe from the path in order to rob her, that the "substantial distance" required for the kidnap enhancements meant "more than a slight or trivial distance," and that there had to be movement that "substantially increased . . . the risk of physical or psychological harm to the person beyond that necessarily present in the robbery." The prosecutor emphasized the steepness of the slope and nature of the environment to demonstrate that appellant isolated the victim in a place from which escape was more difficult than from the path, making the remarks challenged above as part of his illustration of how moving the victim allowed appellant to commit a longer and more brutal attack. The prosecutor's argument was consistent with the law, not a misstatement.
In sum, most of the comments appellant now claims as misconduct were not objected to and not objectionable. The prosecutor did improperly ask the jurors to put themselves in the victim's position and referred to having formed a view of Jane Doe as credible when he talked to her outside the trial. But as we have said, these comments were not at all likely to have resulted in prejudice. Defense counsel specifically warned the jury that the prosecutor was trying to appeal to their emotions and prejudices, and the court specifically instructed them not to let such considerations sway their view of the evidence. The prosecutor's reference to Jane Doe being unable to describe the order of events during the assault was consistent with Jane Doe's own testimony and did not suggest the prosecutor had outside information that had not been presented to the jury. The jury's many questions during deliberations suggest a careful consideration of the charges rather than a passionate or biased decision based on improperly aroused emotions. In sum, this case did not involve "extreme instances of prosecutorial misconduct" (People v. Gionis, supra, 9 Cal.4th at p. 1220) such as would warrant reversal of the convictions.
VII.
Appellant contends he was denied effective assistance of counsel in that his attorney's cross-examination of Jane Doe established the necessary element of intent for the count of kidnapping for the purpose of robbery that the prosecutor had failed to establish, and his attorney failed to object to various instances of prosecutorial misconduct. The first of these claims was discussed and rejected in part III of this opinion, above. The second fails for want of prejudice. We have discussed appellant's claims of prosecutorial misconduct and found the majority lacking in merit; the few objectionable comments did not render the trial fundamentally unfair or amount to "deceptive or reprehensible means of persuasion as to which there is a reasonable likelihood the jury was misled." (People v. Samayoa, supra, 15 Cal.4th at p. 844.) It necessarily follows that appellant was not prejudiced by defense counsel's failure to object.
VIII.
Finally, appellant urges that his convictions must be reversed due to cumulative error even if the individual errors are insufficient to require reversal. We are not persuaded. The few errors here did not increase the impact of each other such that their cumulative effect became prejudicial. (People v. Thomas (2011) 51 Cal.4th 449, 489.) Appellant received a fair trial, which is all the Constitution requires. (People v. Alcala (1992) 4 Cal.4th 742, 810.)
The judgment is affirmed.
Kline, P.J. We concur: Haerle, J. Lambden, J.