Opinion
E055424
12-17-2014
THE PEOPLE, Plaintiff and Respondent, v. CHAUNCEY DION MARTIN, Defendant and Appellant.
Joshua W. Glotzer and Daniel C. Leib for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Theodore Cropley and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.Nos. FWV1002931 & FWV1101876) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Sachs, Judge. Affirmed with directions. Joshua W. Glotzer and Daniel C. Leib for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Theodore Cropley and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
In this appeal, defendant Chauncey Dion Martin raises various issues concerning his trial for physically assaulting two women. He also petitions for a writ of habeas corpus in case No. E058884. We ordered the writ petition considered with this appeal and will address it by separate order.
I. STATEMENT OF THE CASE
On February 15, 2011, the San Bernardino County District Attorney filed an information charging defendant with corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)), forcible rape (§ 261, subd. (a)(2)), and forcible sodomy (§ 286, subd. (c)(2)). With respect to the forcible rape and sodomy charges, it was alleged that defendant personally inflicted great bodily injury on the victim, Jennifer J. (Jennifer) (§§ 667.61, subd. (b), 12022.7.) On August 10, 2011, another information was filed against defendant in the same county charging him with attempted murder (§§ 664, 187, subd. (a)), pimping (§ 266h, subd. (a)), corporal injury to a cohabitant (§ 273.5, subd. (a)), and torture (§ 206). With respect to the charge of corporal injury to a cohabitant, it was alleged that defendant personally inflicted great bodily injury on the victim, Jessica D (Jessica). (§ 12022.7, subd. (a).)
All further statutory references are to the Penal Code unless otherwise indicated.
The two cases were consolidated upon the prosecutor's motion, and the consolidated counts were sequentially renumbered to reflect counts 1 through 3 involving Jennifer, and counts 4 through 7 involving Jessica.
A jury convicted defendant of corporal injury to a cohabitant (Jennifer), attempted voluntary manslaughter (Jessica), pimping (Jessica), corporal injury to a cohabitant (Jessica) and torture (Jessica). With regard to the corporal injury to a cohabitant (Jessica), the jury also found true the great bodily injury enhancement. Defendant was acquitted of the remaining charges and allegations. On January 13, 2012, the trial court sentenced defendant to state prison for a total term of nine years four months, plus life with the possibility of parole.
The people point out that the clerk's minutes and the abstract of judgment mistakenly indicate defendant was sentenced on count 7 (torture) to life without the possibility of parole, while the reporter's transcript correctly indicates the sentence is life with the possibility of parole. The proper term for torture is life with the possibility of parole and the oral pronouncement of judgment controls (People v. Farell (2002) 28 Cal.4th 381, 383, fn. 2). Accordingly, we shall order the clerk's minutes and the abstract of judgment corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
II. FACTS
Defendant was charged with various offenses against Jennifer and Jessica.
A. Offenses involving Jennifer
Jennifer met defendant in June 2010, and they began an intimate dating relationship, with defendant moving into her home. Jennifer admitted to prostituting herself five or six times for "fun" or "sport" and giving all the money she made to defendant. After months of living together, defendant moved back home to Chicago, but returned to California in November 2010. In December, they stayed at a Days Inn hotel in Ontario, where they drank alcoholic beverages. After some time, defendant asked Jennifer to leave because he had some of his "pimp partners coming to visit." He also asked her to "get [him] some money."
Jennifer left the hotel, met a Hispanic man named "Rene," went home with him, smoked methamphetamine, and had some sexual contact. The man returned her to the gas station by the hotel. Defendant had been calling her, but she had not answered his calls until she was at the gas station. When defendant asked where she was, she told him she was at the police station. She lied because she had been gone so long she feared that defendant would get mad and beat her. The two met, and upon returning to the hotel room, defendant became angry because he figured out that she had lied. Defendant questioned Jennifer as to where she had been. Jennifer testified that defendant punched, raped, and sodomized her (to the point her anus was bleeding) for hours. Defendant stopped when Jennifer admitted she had been with a man, whom she claimed had raped her. Jennifer was unable to ask anyone to help her during this time because defendant never left her alone.
Defendant's nickname is Diamond.
Two of defendant's friends picked them up at the hotel. They went to Orange County, where defendant bought a prepaid cell phone for Jennifer, made her dress in a "little dress," and then told her to "go make money." Jennifer went outside, and when a car drove up, she asked for a ride to the hospital, telling the man that her boyfriend had beaten her up.
At the hospital in Orange County where Jennifer was dropped off, she reported the assault. The police transported her to a hospital in Upland, where she had a rape examination. A nurse testified that Jennifer's injuries were significant and "out of the ordinary" because they were on every part of her body that was examined. Jennifer's injuries were consistent with the history she had provided as to how she received them. The jury saw photographs of the injuries.
Jennifer was taken to the Ontario Police Department, where she was asked to make a "pretext" call to defendant using the phone he had given her. Defendant told Jennifer he was sorry for everything and that he thought she was dead. After Jennifer told defendant that she was "messed up" and her whole body was hurting, defendant told her that he would make up for it. He agreed to take her to the hospital once she returned. He assured her that he was not mad at her and would not "bomb[]" on her. When Jennifer attempted to get defendant to be more specific in his assurance that he would never beat her again like he did, defendant explained that he did not know where she was, did not know what was going on with her, and did not want to talk about it on the telephone.
B. Offenses involving Jessica
Jessica met defendant in January 2011. They had first met on the phone and talked to each other for two weeks before she travelled from Illinois to California to meet him. They began a romantic and sexual relationship. Jessica had been prostituting in Illinois since she was 20 or 21, and she and defendant also began a "prostituting" relationship. Defendant was her second pimp and she hoped to marry him. In the few years prior to defendant's trial, Jessica was arrested for prostitution approximately 20 times.
According to Jessica, three days after arriving in California, her relationship with defendant turned into a "pimp and hoe" relationship, where she would "walk the track," and "do dates" for money, which she would give to defendant. Defendant used the money for clothes, shoes, food, jewelry, and hotel rooms for "dates." In addition to walking the track, Jessica also advertised on the Internet with defendant's assistance.
See footnote 11 post, "prostitution track."
On April 7, 2011, Jessica was staying at a Motel 6 in Ontario with defendant. They argued because defendant was told that she was "doing drugs" in exchange for dates. Jessica denied the accusation and told defendant that she did not use drugs at all. Defendant "brutally beat" her, punching her in the eye with a "huge bondage sex tool," placed a rope around her neck and strangled her with it five or six times, and burned her leg with a curling iron. He called her a "bitch" and a "hoe" and said he was going to kill her. Jessica was afraid to leave because her only source of income was from prostituting, she had no car or driver's license, and she relied on defendant and his mother for transportation. Photographs taken a week later showed Jessica's two black eyes, strangulation marks on her neck, and a burn on her leg.
On April 9, 2011, when defendant was out of the motel room, Jessica called 911from the room to report the assault. She told 911 she needed law enforcement immediately. Defendant came back before the police arrived and Jessica left with him. When they returned to the hotel, defendant saw the police outside, grabbed Jessica, and forced her to go the other way. Jessica subsequently went to the hospital and received pain medication and a prescription.
On April 14, 2011, Jessica was arrested in Orange County for prostitution. When a detective interviewed her about her injuries, she initially lied because she was afraid of defendant and said she had been "jumped by some girls." Defendant was at the police station but not in the same interview room. After Jessica told the detective that defendant had beaten her, she was placed in a hotel room for protection.
Jessica maintained contact with defendant's mother, Hester Martin, via Facebook. Jessica also lied to Mrs. Martin, telling her that some girls had "jumped" her. After visiting defendant in jail, Jessica went to Illinois, and at defendant's request, stayed with his mother. Mrs. Martin paid for Jessica's airline ticket. Jessica said she went to Illinois so she would not have to "deal" with the defendant's case and because she perceived doing so to be part of the "rules of the game" of being in a pimp/prostitute relationship. Also, Jessica had feelings for defendant and she did not want to testify against him.
Jessica lived in Illinois for 23 weeks, and then, at defendant's and his mother's insistence, she moved to Washington. Defendant's mother paid for Jessica's train ticket, and she stayed with defendant's nephew. After a few months, she flew back to Illinois, and then two days later, she returned to California, where she resumed working for defendant as a prostitute.
In July 2011, Jessica was taken into custody to testify at the preliminary hearing in this matter. Prior to the hearing, Jessica and defendant were being transported to court on a sheriff's bus when defendant passed a letter to her. The letter stated, in part: "They are gonna try to break you down, but you gotta be strong and stubborn. . . . Yo bi-polar split personality will play a big part in this, you know," and "Let'em know you choked yoself because of your Bipolar personality." (Capitalization omitted.) He told her, "You have to look 'sincere' Babe. You can do it," and reminded her, "Make sure you let 'em know about yo personality disorder [and] bipolar." (Capitalization omitted.) Defendant added, "I love you, stay down. We can do it. I need you to be the star and let 'em know." (Capitalization omitted.)
Jennifer Pasco (Pasco), a prostitute who knew defendant and Jessica, testified that she went with them to a sex shop, where she purchased the rope that defendant used to choke Jessica. The three of them intended to use the bondage rope together for sexual purposes. Pasco saw Jessica's injuries, and Jessica explained she had been "disciplined" by defendant for "getting high." Pasco testified that she was familiar with the "rules of the prostitution game," and generally prostitutes were not permitted to exchange sex for drugs. The consequence of a prostitute who did so would be similar to what happened to Jessica. Pasco testified that defendant told her that he "fucked that bitch up" for getting high. Defendant said he was upset about what she had done and wanted to kill her, but Pasco did not understand defendant's comment to be literal.
According to Anaheim Police Officer Michael Cunha who had interviewed Pasco, Pasco told him that she asked defendant if he was really trying to kill Jessica and defendant replied, "'hell, yeah. I was trying to kill her.'"
Sergeant Craig Friesen of the Anaheim Police Department testified that he had been a police officer for approximately 17 years and a sergeant in charge of the vice detail for just over two years. He was trained with respect to prostitution, "johns and pimping." He also taught a human trafficking and pimping investigation class. Sergeant Friesen testified as to how prostitutes work, including specific areas in Orange County and Ontario. He explained that the relationship between a prostitute and a pimp is like an employee/employer situation in which the pimp is the boss and the prostitute is the money earner. The pimp decides where and how the prostitute is going to work. The prostitute brings back all the money to the pimp, who spends it on whatever he sees fit. Prostitutes are generally not allowed to perform a sex act for drugs rather than money, because the pimp "wants his money." Motels are used to commit the acts of prostitution, and the prostitute rents the room so the pimp can remain anonymous and remain removed from the acts.
The pimp/prostitute relationship has rules (termed "rules of the game") made by the pimp to "keep the girls in line" in order to remain dominant. The rules reinforce the hierarchy within the organization. If a prostitute breaks the rules, she could get beaten and could get money or clothes taken away. There are "'Finesse Pimps'" who are "smooth talkers," who can get a woman to do anything, and there are "'Gorilla Pimps,'" who use brute force and physical violence.
The ultimate goal for a pimp is to make money. If a prostitute is sent out to make money and returns without any, she would be subject to some form of discipline. A disciplined prostitute generally will not leave her pimp because she has been "manipulated from a very early age." Most prostitutes come from broken homes and crave attention from the pimp. The prostitutes have been manipulated to think they are in a boyfriend/girlfriend or a husband/wife relationship.
Sergeant Friesen had contacted Jessica on the street and interviewed her in April 2011. She told him that she was making approximately $400 to $600 a day working as a prostitute for defendant, who acted as a pimp or bodyguard. The money she earned was turned over to him. He kept her under constant supervision to make sure she was not leaving the area or conducting acts of prostitution that he did not know about. When Sergeant Friesen interviewed Jessica, defendant possessed her social security card, Illinois identification card, and birth certificate. Possessing these items demonstrated defendant's control. Based on the interview, Sergeant Friesen opined that Jessica was a prostitute and defendant was her pimp.
III. DISCUSSION
In addressing defendant's contentions, we do not follow the order they were raised in his brief.
A. Right to a Speedy Trial
On April 5, 2011, defendant's counsel, Deputy Public Defender Angela Howard, requested a continuance of the trial on defendant's case involving Jennifer in order to, inter alia, review new information and interview four witnesses defendant had just informed her about. Defendant objected to the continuance. Concerned that defendant be provided a fair trial, the court granted the request for 30 days. When the matter reconvened on May 6, 2011, the public defender was relieved and retained counsel took over. Defendant waived time for trial until July 5, 2011. Subsequent appearances resulted in a waiver of time for trial to October 12, 2011. On July 25, 2011, defendant was arraigned on his case involving Jessica. On appeal, he contends he was denied his right to a speedy trial in his case involving Jennifer.
Defendant contends that April 5, 2011, was the "last day" set for trial; however, the minutes from a pretrial hearing on March 18, 2011, indicate that defendant waived time until April 25, 2011.
To begin with, we note that defendant does not provide any substantive legal analysis or citation of legal authority to support his claim. "Where a point is merely asserted by counsel without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion. [Citations.]" (People v. Ham (1970) 7 Cal.App.3d 768, 783, overruled on another ground in People v. Compton (1971) 6 Cal.3d 55, 60, fn. 3.) "Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived. [Citations.]" (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.) Accordingly, we deem defendant's contention to be waived by his failure to cite authority or provide any legal analysis.
Even if we considered the issue on its merits, we would conclude that defendant was not denied his constitutional right to a speedy trial. According to the record, the only period in which the matter was delayed over defendant's objection was from April 5, 2011 to May 6, 2011. Thereafter, defendant agreed to all further continuances and waived time on multiple occasions until the start of trial on October 12, 2011. Defendant's counsel requested a continuance on April 5 for the purpose of reviewing new information, interviewing four witnesses she had just learned about from defendant, and getting copies and transcripts of audiotapes containing defendant's statements. Her request was also made a day after the court's ruling with respect to Evidence Code sections 1108 and 1109 consideration. Given defendant's conflicting rights to a speedy trial and effective assistance of counsel, his right to effective assistance of counsel prevails such that the 30-day continuance was reasonable. (People v. Kowalski (1987) 196 Cal.App.3d 174, 180-181 [defense counsel's request for additional time was treated as a defense time waiver, although the defendant personally objected because the request served the defendant's constitutional right to be represented by competent counsel].)
Actually, it should be April 25, 2011, given his waiver through April 25. (See fn. 6 ante.)
B. Consolidation of Cases
On August 10, 2011, the prosecution sought to consolidate the cases involving Jennifer and Jessica on the grounds that the charges in both cases similarly showed that defendant abused women who had a personal relationship with him. The trial court agreed and consolidated the cases. On appeal, defendant challenges consolidation, arguing that it violated his constitutional rights. Prior to trial, defendant moved to prevent Jennifer from testifying or mentioning any issues related to pimping and prostitution to prevent her testimony from "bootstrapping" Jessica's case. The prosecutor agreed, stating that he would specifically tell Jennifer there was not to be any discussion about prostitution or pimping, or the people with whom defendant associated, because those topics were irrelevant to the charged crimes. The court granted defendant's request to limit Jennifer's testimony. Defendant asserts this ruling is inconsistent with the court's decision to consolidate the two cases and the People's theory that both victims were harmed for disobeying defendant and/or violating the "rules of the game."
We review the trial court's ruling for abuse of discretion, but we must consider whether a gross unfairness occurred that denied the defendant a fair trial or due process. (People v. Smith (2007) 40 Cal.4th 483, 510.) A trial court's ruling under section 954 is examined based on the evidence available to the court at the time. (People v. Cummings (1993) 4 Cal.4th 1233, 1284.)
Section 954, governing the joinder of counts in a single trial, provides that "if two or more accusatory pleadings are filed," charging "two or more different offenses of the same class of crimes or offenses," the trial court, in its discretion, may order the cases consolidated. (§ 954; see also People v. Soper (2009) 45 Cal.4th 759, 771.) A pleading may charge two or more different offenses so long as at least one of two conditions is met. (§ 954.) The offenses are "(1) 'connected together in their commission,' or (2) 'of the same class.'" (People v. Soper, supra, at p. 771, fn. omitted.) Offenses "'of the same class'" are those offenses possessing common characteristics or attributes. (People v. Rhoden (1972) 6 Cal.3d 519, 524-525.)
Murder, torture, corporal injury to a cohabitant, and rape are "'offenses of the same class of crimes'" for purposes of section 954, as they are all "'assaultive crimes'" against the person. (People v. Ramirez (2006) 39 Cal.4th 398, 438-439.) Charges of rape and sodomy belong to the same class of crimes within section 954. (People v. Lindsay (1964) 227 Cal.App.2d 482, 492.)
Additionally, the consolidated matters here were "connected together in their commission . . . ." (§ 954.) The cases construing this language have uniformly allowed joinder of several offenses for trial even though they do not relate to the same transaction and were committed at different times and places and against different victims, where there is a "'common element of substantial importance'" in their commission. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.) The common element here is defendant's relationship with the victims. While the offenses certainly had some significant differences, they also had several "'"common element[s] of substantial importance."'" (Id. at p. 1218, italics omitted.) All of the consolidated charges were based on defendant's relationship to the victims as that of pimp to prostitute and/or defendant's need to control the victims' actions, i.e., to make the victims play by the "rules of the game." When the victims did something that defendant did not like, he violently assaulted them so that the pain would deter any future thought of disobeying him. We find these common elements sufficient to support the consolidation of the charges. The statutory criteria authorizing consolidation were therefore met.
We turn to defendant's claim that the court's decision to limit Jennifer's testimony about pimping is inconsistent with the decision to consolidate. According to defendant, despite an in limine motion, Jennifer testified about pimping and prostitution. In response, the People assert that defendant misrepresents the context in which the trial court granted the defense request to limit Jennifer's testimony. We agree. When the trial court and the parties were discussing the need for a hearing to establish Sergeant Friesen's foundation in order to testify as an expert witness, defendant pointed out there was no pimping charge in his case involving Jennifer, and thus, she should not be allowed to testify as to pimping unless she could provide her foundation. The court agreed and stated, "Jennifer . . . is precluded from offering any opinion regarding pimping unless there's foundation for that opinion." While Jennifer was precluded from offering an expert opinion, she was not precluded from testifying about pimping and prostitution as it related to her personal knowledge or experience. Pimping and prostitution were her life, if only for a short period while she was with defendant. To allow her to testify about it from that perspective, but not provide expert testimony, was not inconsistent with the court's reasons for consolidating the cases. Again, both cases involved the personal and professional relationships between the victims and defendant; in both cases, the victims suffered physical injuries as a result of doing something, or not doing something, defendant did not, or did, want them to do; and in both cases, the victims worked as prostitutes for defendant. The fact that Jennifer was not allowed to offer any expert opinion on pimping did not undercut the court's reasons for joinder.
Once the statutory requirements for joinder are met, the defendant must make a clear showing of prejudice to demonstrate that the trial court abused its discretion. (People v. Zambrano (2007) 41 Cal.4th 1082, 1128-1129, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Improper consolidation violates due process only if it results in a trial that is fundamentally unfair. (Park v. California (9th Cir. 2000) 202 F.3d 1146, 1149.) Error involving misjoinder affects substantial rights and requires reversal if it results in actual prejudice because it had substantial and injurious effect or influence in determining the jury's verdict. (United States v. Lane (1986) 474 U.S. 438, 449.)
The burden is on the defendant to demonstrate a reasonable probability that the joinder affected the jury's verdicts. (People v. Grant (2003) 113 Cal.App.4th 579, 588 [Fourth Dist., Div. Two].) The factors to be considered include: (1) cross-admissibility of the evidence; (2) whether some charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case; and (4) whether one of the charges is a capital offense, or the joinder of charges converts the matter into a capital case. (People v. Mendoza (2000) 24 Cal.4th 130, 161 (Mendoza).)
Here, evidence of defendant's assaults against Jennifer and Jessica is not cross-admissible. Evidence of each assault would have been excluded in the other trial as uncharged bad acts or character evidence under Evidence Code section 1101, subdivision (a). Generally, character or propensity evidence is inadmissible to show conduct in conformity with that character. (Evid. Code, § 1101, subd. (a).) Although we recognize there are exceptions to this rule, we need not consider them because lack of cross-admissibility is not, by itself, sufficient to show prejudice and bar joinder. (People v. Stitely (2005) 35 Cal.4th 514, 532-533.)
Concerning the other relevant factors, we disagree with defendant's assertion that the rape and sodomy of Jennifer were more inflammatory than the torture and attempted murder of Jessica. We find the facts pertaining to the rape and sodomy charges to be on par with the beating, strangulation, attempted murder, and torture charges. In any event, the jury was not convinced beyond a reasonable doubt that Jennifer was raped or sodomized, given its acquittal of defendant on those charges. Nor, contrary to defendant's assertion, could it be said the case involving Jennifer was a weaker case. Defendant argues that because Jennifer was not a credible witness, the jury only convicted him of the charge of corporal injury because the case was joined with the case involving Jessica. The People respond that the jury's acquittal of the more serious counts involving Jennifer (rape and sodomy), "demonstrated that joinder of the cases did not unfairly bolster the case involving Jennifer." We agree with the People. Finally, none of the charges carried the death penalty.
We reject defendant's counterclaim that the case involving Jessica had problems that were overcome by joinder with Jennifer's case. Each case had its own strengths and weakness; however, neither case was particularly stronger than the other, and defendant has not shown that any alleged spillover prejudiced him with respect to either case.
Consolidating the two cases was not patently absurd or an abuse of discretion, since the key issues in both cases were the relationship between the victims and defendant and defendant's use of physical punishment to control their actions. Consolidation was economical and was not prejudicial, particularly since there was strong evidence in both cases proving that defendant assaulted the victims. We thus reject defendant's contention that consolidation resulted in a denial of due process or an unfair trial.
C. Charge of Torture
Defendant challenges the conviction for torture (count 7 involving Jessica), raising the following issues: (1) the jury should have been instructed on the lesser included offenses of battery and assault; (2) there was insufficient evidence to support his conviction of torture; and (3) CALCRIM No. 810's failure to indicate a definition of, or intent requirement for "persuasion" lessened the prosecution's burden of proof.
1. Sufficiency of Evidence
In two separate argument headings, defendant contends there was insufficient evidence to support his conviction for torture, which involves the infliction of great bodily injury upon the person of another "with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose," and the actual infliction of great bodily injury upon the victim. (§ 206.) Initially, he asserts that the evidence fails to show he intended to cause Jessica cruel or extreme pain and suffering. Later on, he claims the evidence is not sufficient to show that, when he inflicted the injury, he did so for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.
"'The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] [¶] . . . But it is the jury, not the appellate court, which must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute its judgment for that of the jury.' [Citation.]" (People v. Sanchez (1998) 62 Cal.App.4th 460, 468.) Rather, we "'"presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."'" (People v. Davis (1995) 10 Cal.4th 463, 509.) It is not our job to reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Here, defendant brutally beat Jessica upon learning she was exchanging sex for drugs rather than money. He punched her in the eye with a bondage sex tool. He placed a rope around her neck and strangled her with it five or six times. He burned her leg with a curling iron. And, he told her that he was going to kill her. Jessica was in a great deal of pain and went to the hospital, where she received pain medication and a prescription. Photographs of her taken a week later showed two black eyes, strangulation marks on her neck, and a burn on her leg.
"'Torture has been defined as the "Act or process of inflicting severe pain, esp. as a punishment in order to extort confession, or in revenge." (Webster's New Int. Dict. (2d ed.).)'" (People v. Barrera (1993) 14 Cal.App.4th 1555, 1563.) The courts distinguish between crimes involving severe injuries caused by heated passion and crimes displaying a calculated intent to torture. (People v. Mincey (1992) 2 Cal.4th 408, 432.) An act of calculated violence, as opposed to an indiscriminate attack, may establish the intent to torture. (People v. Quintero (2006) 135 Cal.App.4th 1152, 1163.) Defendant cites a litany of cases involving acts held to constitute torture, which he contends were far more egregious than in this case, in which he asserts that his acts merely resulted in Jessica obtaining a prescription for pain and resuming work two days later.
We reject defendant's arguments because we conclude sufficient evidence shows defendant had a specific intent to cause cruel or extreme pain and suffering to Jessica for the purpose of persuasion or a sadistic purpose, and she sustained significant or substantial injuries. (§ 206.)
In People v. Jung (1999) 71 Cal.App.4th 1036, 1042, the defendants also argued the nature of the acts inflicted on the victim were not comparable to the nature of the acts involved in other reported torture cases. The appellate court explained: "The emphasis is rightfully placed on the perpetrator, one who for revenge or other prohibited purpose, inflicts great bodily injury on the victim and intends to cause the victim severe pain and suffering. That other victims of torture may have suffered more than the victim in this case sheds no light on the sufficiency of the evidence of defendants' intent to cause [the victim] severe pain and suffering." (Id. at pp. 1042-1043.) Nor does it suggest that Jessica's injuries are insufficient to support a torture conviction. (People v. Hale (1999) 75 Cal.App.4th 94, 108.) "Section 206 only requires 'great bodily injury as defined in Section 12022.7,' which is 'a significant or substantial physical injury.' [Citation.] 'Abrasions, lacerations and bruising can constitute great bodily injury.' [Citation.]" (Ibid.) Jessica's black eyes, strangulation marks, and burn marks are sufficient evidence of great bodily injury. In arguing that Jessica's injuries are insufficient to support his torture conviction, defendant "misses the critical point that torture as defined in section 206 focuses on the mental state of the perpetrator and not the actual pain inflicted. [Citation.]" (Ibid.)
Regarding defendant's intent, we note that intent to cause cruel or extreme pain, like other forms of intent, is rarely susceptible of direct proof and must usually be inferred from the circumstances surrounding the offense and other circumstantial evidence. (People v. Jung, supra, 71 Cal.App.4th at p. 1043.) Here the circumstances showed, as argued by the prosecutor, that defendant intended to punish Jessica for exchanging sex for drugs, and to persuade her to do her job and play by the rules of the game by subjecting her to extreme pain and suffering. According to Jennifer Pasco, prostitutes generally are not permitted to exchange sex for drugs, and the consequences of doing so would be similar to what happened to Jessica. As for defendant's argument that a pimp would not want to permanently disfigure or permanently harm the person earning money for him, the People respond that the intent to cause cruel or extreme pain and suffering does not necessarily include an intent to disfigure or permanently harm the victim. We agree with the People.
Defendant's argument that "there is a mixed issue of fact and law as to whether disciplining someone constitutes persuasion" is confusing at best. It appears he is arguing the term "persuasion" should be read in light of the term "sadistic purpose." Having failed to provide this court with a coherent argument, citation to authorities and analysis, we deem this contention waived. (People v. Ham, supra, 7 Cal.App.3d at p. 783.) "Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived. [Citations.]" (Jones v. Superior Court, supra, 26 Cal.App.4th at p. 99.) Moreover, it appears that this argument goes to his challenge to the jury instruction, which we later address.
2. Jury Instructions
Defendant complains that the jury should have been instructed on the lesser included offenses of assault by means likely to inflict great bodily injury, simple assault, simple battery, and aggravated battery (count 7), and that CALCRIM No. 810's failure to indicate a definition of or intent requirement for "persuasion" lessened the prosecution's burden of proof.
The law is well settled on this issue. "'[A] trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present.' [Citation.] Conversely . . . a trial judge has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction. [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) A lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense such that the greater cannot be committed without also committing the lesser. (People v. Breverman (1998) 19 Cal.4th 142, 154.)
Defendant contends that assault by means likely to inflict great bodily injury, simple assault, simple battery, and aggravated battery are lesser included offenses of torture. According to defendant, it is impossible to inflict the great bodily injury required for a conviction of torture without assaulting and battering the victim. We disagree. As we stated in People v. Lewis (2004) 120 Cal.App.4th 882, 887), battery and aggravated battery are not lesser included offenses of torture. Battery is "any willful and unlawful use of force or violence upon the person of another." (§ 242.) An aggravated form of battery occurs when the battery results in serious bodily injury. (§ 243, subd. (d).) Aggravated battery requires proof that the defendant used physical force or violence against the victim, the use of force or violence was willful and unlawful, and the use of force or violence inflicted serious bodily injury on the victim. (CALCRIM No. 925.) In contrast, torture merely requires proof that the defendant inflicted great bodily injury on the victim with the specific intent to cause cruel or extreme pain and suffering for revenge, extortion or persuasion or any sadistic purpose. (§ 206.)
Here, as the People point out, neither battery nor aggravated battery is the lesser included offense of torture, because the "statutory definition of torture does not require a direct use of touching, physical force, or violence, but instead is satisfied if the defendant, directly or indirectly, inflicts great bodily injury on the victim. Thus a defendant may commit torture without necessarily committing a battery." (People v. Lewis, supra, 120 Cal.App.4th at p. 888.) Moreover, the accusatory pleading with respect to count 7 did not allege the use of force or violence against Jessica. It merely alleged that defendant "did unlawfully and with the intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion and for a sadistic purpose, inflict great bodily injury, as defined in Penal Code section 12022.7, upon [Jessica]." Accordingly, neither battery nor aggravated battery is a lesser included offense of torture under either the elements test or the accusatory pleading test.
With respect to assault or aggravated assault, we need not resolve the issue of whether they are lesser included offenses of torture, because there was no substantial evidence supporting the giving of instructions on those crimes as lesser offenses of torture in this case. The prosecution's evidence clearly showed defendant had repeatedly beaten Jessica and had inflicted great bodily injury on her, in addition to supporting a finding that he had intended to cause her pain for the purpose of extortion or persuasion when he did so. Thus, there was no substantial evidence supporting the giving of assault or aggravated assault instructions as lesser included offenses to torture. In other words, there was no substantial evidence that only the lesser crimes of assault or aggravated assault, and not the greater offense of torture, were committed. (See People v. Breverman, supra, 19 Cal.4th at p. 162.)
For the above reasons, we conclude the trial court did not have a sua sponte duty to instruct on assault, aggravated assault, battery and aggravated battery as lesser included offenses of the torture charge.
Notwithstanding the above, defendant asserts that the standard jury instruction regarding torture (CALCRIM No. 810) lessened the prosecution's burden of proof and confused the jury. More specifically, he focuses on CALCRIM No. 810's requirement that the prosecution prove he intended to cause cruel and extreme pain for the purpose of "'revenge, persuasion, or for any sadistic purpose'" when inflicting great bodily harm. Pointing out that the instruction informs the jury that someone acts for a sadistic purpose "if he or she intends to inflict pain on someone else in order to experience pleasure himself or herself," defendant faults the instruction for failing to use the word "intent" in defining "persuasion." He argues that such failure means "the jury is more likely to confuse motive with the persuasion requirement which does not have to be proved as opposed to intent which does have to be proved beyond a reasonable doubt."
A fatal problem with this argument is that defendant did not object to or ask the trial court to modify CALCRIM No. 810. It is well settled that "'. . . defendant is not entitled to remain mute at trial and scream foul on appeal for the court's failure to expand, modify, and refine standardized jury instructions.'" (People v. Valentine (2001) 93 Cal.App.4th 1241, 1246-1247, fn. omitted, overruled on other grounds as stated in People v. Leal (2004) 33 Cal.4th 999, 1010.) By failing to object or request modification of CALCRIM No. 810, defendant has forfeited his right to assert the jury instruction challenge on appeal. (People v. Bolin (1998) 18 Cal.4th 297, 326; People v. Dennis (1998) 17 Cal.4th 468, 514.)
In any event, the claim fails on its merits. The jury was instructed that the prosecution had to prove that when the injury was inflicted, the defendant did so for the purpose of persuasion or the other listed purposes. There was no need to define persuasion or use the word intent with it. (People v. Massie (2006) 142 Cal.App.4th 365, 371 ["revenge, extortion, and persuasion are self-explanatory"].) In contrast, sadistic purpose is not necessarily self-explanatory and thus is the reason for the instruction's definition. Furthermore, rather than offer a coherent alternative definition for "persuasion," defendant proposes merely that the court should have provided a "definition or an intent requirement for 'persuasion,'" and speculates that a juror may have considered "persuasion" a "motive rather than an aspect of the intent element of torture especially when the instruction does not connect the word[']s intent to persuasion but does connect it to sadistic purpose." We disagree. The commonly understood definition of persuasion was sufficient given the facts of this case.
D. Admission of Defendant's Letter to Jessica and CALCRIM No. 371
1. Admission of Letter to Jessica
Over defendant's objection, the trial court admitted into evidence a letter that defendant passed to Jessica while they were both on a sheriff's custody bus. On appeal, defendant contends the court erred in admitting the letter which was hearsay and lacked a proper foundation.
Regarding defendant's claim that the letter constituted hearsay evidence, the People aptly note that no objection on such ground was raised, and thus, the contention is forfeited. (People v. Mitchell (2005) 131 Cal.App.4th 1210, 1220.) Nonetheless, even if defendant had objected based on hearsay, the letter was not offered for the truth of the matters asserted (Evid. Code, § 1200) and any statement in the letter was an admission by defendant that would qualify as an exception to the rule against hearsay (Evid. Code, § 1220), so the hearsay rule would not bar its admission. Thus, we focus our analysis on defendant's primary assertion that because Jessica never authenticated the letter, there was no proper foundation for its admission.
A writing must be authenticated before it may be received into evidence. (Evid. Code, § 1401.) The proponent of the proffered evidence has the burden to produce evidence of authentication. (Evid. Code, § 403, subd. (a).) Under Evidence code section 403, authentication is a preliminary fact, which is first determined by the trial court and is then subject to redetermination by the jury. (Evid. Code, § 403, subds. (a)(3), (c)(1); People v. Fonville (1973) 35 Cal.App.3d 693, 708-709.) "The court should exclude the proffered evidence only if the 'showing of preliminary facts is too weak to support a favorable determination by the jury.' [Citations.]" (People v. Lucas (1995) 12 Cal.4th 415, 466.)
Evidence Code section 1400 defines "authentication" of a writing as the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent claims it to be or the establishment of such facts by any other means provided by law. Those means include: admission, by the party against whom it is offered, that the writing is genuine (Evid. Code, § 1414); evidence the handwriting is genuinely that of the maker (Evid. Code, § 1415); identification by a person familiar with the handwriting (Evid. Code, § 1416); comparison of the handwriting by the trier of fact (Evid. Code, § 1417); comparison by an expert witness (Evid. Code, § 1418); evidence of a reply to the writing (Evid. Code, § 1420); and evidence of the content of the writing (Evid. Code, § 1421). However, these methods are not exclusive or the only ones available. (Evid. Code, § 1410; People v. Olguin (1994) 31 Cal.App.4th 1355, 1372-1373.) Thus, circumstantial evidence, content and location, are valid means of authentication as well. (Olguin, supra, at pp. 1372-1373 [rap lyrics found in defendant's home adequately authenticated]; People v. Gibson (2001) 90 Cal.App.4th 371, 382-383 [handwritten and typed manuscripts authenticated as belonging to defendant by location and content].)
Evidence Code section 1421 provides that a writing may be authenticated "by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing." Appellate courts have upheld a trial court's preliminary finding of authentication based on the contents of a writing under circumstances where it was "improbable that anyone could have forged them" (Chaplin v. Sullivan (1945) 67 Cal.App.2d 728, 734), and where it was "unlikely anyone other than [the defendant] authored the notes" (People v. Lynn (1984) 159 Cal.App.3d 715, 735). Thus, this method of authentication may apply if it is unlikely that someone other than the claimed author would have authored the document given the information contained therein.
A trial court's decision as to whether the document has been authenticated is reviewed for abuse of discretion. (People v. Lucas, supra, 12 Cal.4th at p. 466.)
Beyond the fact that Jessica testified that the letter was handed to her on the sheriff's bus, she admitted hearing defendant tell another inmate to pass the letter to her, and she identified defendant's handwriting. Moreover, only a narrow class of persons would have known about the matters discussed in the letter or could have authored the letter, i.e., those intimately familiar with the charges and the details of defendant's life, Jessica's injuries, and the identity of "G-Bear," a nickname referred to in the letter. The letter refers to the fact that defendant was charged with torture, which carries a life sentence; that Jessica was choked; that she was prostituting; and that the police found them leaving the hotel in a hurry. The information in the letter was corroborated by the evidence adduced at trial. Furthermore, there is no indication the letter was fabricated by the police or anyone else. Based on these facts, we do not find that the trial court abused its discretion in admitting the letter under Evidence Code section 1421.
"G-Bear" is defendant's mother, Mrs. Martin.
2 CALCRIM No. 371
In a related argument, defendant contends the trial court committed reversible error in instructing the jury with CALCRIM No. 371 which, in part, told the jury: "If the defendant tried to hide evidence or discourage someone from testifying against him, that conduct may show that he was aware of his guilt." (Boldface omitted.) He argues that the instruction prejudiced him by implying he was guilty of the crimes charged because he hid evidence and/or discouraged Jessica from testifying. The People respond that the instruction was proper considering the evidence of a "pact" between Jessica, defendant, and his mother.
CALCRIM No. 371 is properly given where there is some evidence in the record that, if believed by the jury, sufficiently supports an inference of consciousness of guilt. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102 [concerning CALJIC Nos. 2.04 & 2.06].) The instruction makes "clear to the jury that certain types of deceptive or evasive behavior on a defendant's part could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendant's guilt, and allowing the jury to determine the weight and significance assigned to such behavior. The cautionary nature of the instruction benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. [Citations.]" (People v. Jackson (1996) 13 Cal.4th 1164, 1224, abrogated in part on another point as stated in McGee v. Kirkland (C.D. Cal. 2009) 726 F.Supp.2d 1073, 1080.) The inference of guilt suggested by CALCRIM No. 371 is a permissive one. (Cf. People v. Rankin (1992) 9 Cal.App.4th 430, 436.) The instruction applies "'to situations where a defendant attempts to induce a witness to lie for him in a judicial proceeding or otherwise tries to fabricate evidence when a trial or prosecution is pending.'" (Jackson, supra, at p. 1225.) Where there is no evidence to support the instruction, "at worst" it is "superfluous," and, where the evidence of guilt is strong, reversal is not warranted. (People v. Pride (1992) 3 Cal.4th 195, 249; see also Jackson, supra, at p 1225.)
When discussing the instruction, the trial court explained the evidence showed that while on a sheriff's bus, defendant passed a note to Jessica, which told her, among other things, "'you need to stay strong.'" Jessica testified that she understood this comment to mean she needed "to be strong and not testify." In a recorded jail telephone conversation between Jessica and defendant, Jessica indicated she had a pact with defendant and his mother. She testified about the telephone conversation and that defendant knew about the pact between her, defendant, and his mother. In another recording, defendant told Jessica not to talk to anyone about any business. The court recognized that the instruction was a cautionary one, in that it told the jury evidence was offered by the People that may have suggested defendant tried to encourage Jessica not to testify and that it was up to the jury to decide the meaning and importance of that evidence. The instruction also told the jury that such evidence could not itself prove guilt.
The note said to "be strong and stubborn," telling Jessica to "stay down. We can do it." (Capitalization omitted.) In his reply brief, defendant notes that because Jessica saw the note for the first time at trial, her interpretation was irrelevant and too speculative. We disagree. In addition to the telephonic jail conversations Jessica had with defendant, she knew the note was from him and recognized his handwriting. Thus, her interpretation was not irrelevant or too speculative.
Given the above, the jury could reasonably conclude that defendant attempted to encourage Jessica not to testify, as set forth in CALCRIM No. 371. From such conclusion the jury could—but was not required to—infer a consciousness of guilt. We see no error in the court's decision to instruct the jury with CALCRIM No. 371.
E. Admission of Jessica's 911 Call
Defendant challenges the trial court's decision to admit Jessica's 911 call that was made two days after the alleged incident. He contends the recording of the call contains hearsay evidence, and because of the two-day delay in Jessica placing the call, there was no exception that would have allowed its admission. He argues the only conceivable exception would be the excited utterance exception in Evidence Code section 1240, but that exception does not apply. We disagree.
The hearsay exception for spontaneous statements is defined in Evidence Code section 1240, which provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." Consequently, the statute requires the proponent of the evidence to show the following: "'(1) [T]here must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.' [Citations.]" (People v. Poggi (1988) 45 Cal.3d 306, 318.) Whether these requirements have been met is "largely a question of fact" for the trial court. (Ibid.) The trial court's ultimate decision whether to admit the evidence is reviewed for abuse of discretion and upheld if supported by substantial evidence. (People v. Phillips (2000) 22 Cal.4th 226, 236; see also Poggi, supra, at pp. 318-319 [abuse of discretion standard applies to questions about the existence of the foundational facts necessary to satisfy a hearsay exception].)
Defendant argues that because Jessica's 911 call was not made until two days after the event, the "circumstances are not as extreme or as closely tied to the exciting event as required by case authorities." This is not an entirely correct statement of the law. The intervening time between the event and the statement "'is not dispositive, but will be scrutinized, along with other factors, to determine if the speaker's mental state remains excited.' [Citations.]" (People v. Clark (2011) 52 Cal.4th 856, 926.)
"'[N]either lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.' [Citation.]" (People v. Raley (1992) 2 Cal.4th 870, 893.) Accordingly, "[t]he requirement is for a spontaneous declaration, not an instantaneous one." (People v. Riva (2003) 112 Cal.App.4th 981, 995.) Cases applying these principles have upheld the admission of spontaneous statements despite long lapses of time between the startling event and the declarant's statement. (People v. Trimble (1992) 5 Cal.App.4th 1225, 1235 [statement made two days after homicide found spontaneous by declarant who had been sequestered at home in the interim and became hysterical and described the events at first opportunity]; Raley, supra, at pp. 893-894 [statement made 18 hours after startling event by declarant who was near death and bleeding from traumatic head injury, and who had been unconscious]; People v. Smith (2005) 135 Cal.App.4th 914, 923 [sufficient evidence to show declarant spoke spontaneously "notwithstanding the three to six hours that may have passed after the crime"].)
The evidence in this case shows Jessica was assaulted over the course of two or three hours on April 7. Afterwards, she was terrified and remained in the hotel room with defendant. However, as soon as she had an opportunity to call for help, she took it. When defendant left the room at one point on April 9, Jessica bolted the door, called the front desk to have them disarm all keys, and called 911. During the call, Jessica was whispering, in case defendant could somehow hear her. She repeatedly asked the dispatcher to please hurry and send help. She explained that defendant left the room to make a phone call, that he had punched her in the eye, which was still swollen, and that she needed to get "checked completely." This evidence supports the court's implied determination the statements were made without deliberation or reflection and while under the stress of defendant's assault.
For the above reasons, the trial court did not abuse its discretion in admitting evidence of Jessica's 911 call.
F. Sustaining of Prosecutor's Objection to Defense Question
Defendant challenges the trial court's sustaining of the prosecutor's objection to a defense question to Jessica regarding pressure from the police to testify. While defendant claims that Jessica's belief that law enforcement knew about her probation and parole issues was relevant because it suggested her statement was biased, i.e., she made it to protect herself, he does not actually engage in any analysis to support the conclusion. Rather, he assumes the evidence was so prejudicial as to warrant reversal.
In response, the People correctly note defendant has mixed up the witnesses, because the discussion defendant sets forth in his opening brief involves the testimony of Jessica Pasco, not Jessica D. Defendant amended his discussion in his reply brief. Regardless, this issue could be considered waived because defendant failed to support it with meaningful analysis and citation to authority. (People v. Weaver (2001) 26 Cal.4th 876, 986-987.) In any case, however, the People offer sound reasoning why the claim fails on its merits.
During Pasco's cross-examination, defense counsel elicited testimony that she had initially refused to speak to the police until they were investigating her because, in general, she "just [doesn't] talk to the police." Upon further questioning, Pasco admitted that at the time the police were trying to contact her, she was on parole and was wearing a GPS tracking ankle bracelet and had a curfew. At this point, defense counsel asked, "Now that they have all that information and leverage on you, you were willing to start talking to them, right?" The prosecutor's objection on grounds that the question was argumentative and speculation was sustained. Those grounds were well taken and the trial court's ruling was proper. Pasco could only speculate as to whether the police officers who were attempting to talk to her were aware of her parole and probation status, and the question argued that Pasco only spoke with the officers because they had leverage on her due to her parole/probation status.
Notwithstanding the above, the evidence defendant argues was prejudicially excluded actually came in upon further questioning by defense counsel. Pasco was asked why she spoke with the police. She explained they told her they knew about her parole situation and she could talk to them about Jessica, or they would arrest and book her for prostitution, which would result in her doing a year for her parole violation. Pasco admitted that she felt threatened by the police.
For the above reasons, defendant's claim fails.
G. Admission of Expert Testimony
Sergeant Friesen testified as an expert witness on the subject of prostitution, specifically in Orange County and Ontario. Defendant contends the trial court erred in permitting this testimony because it amounted to "improper profile evidence." The People argue forfeiture. A defendant's failure to challenge the qualifications of a witness to offer an opinion based on special skill, training, and experience at trial constitutes a forfeiture of the issue on appeal. (People v. Bolin (1998) 18 Cal.4th 297, 321-322.) However, even if the issue were not forfeited, we would hold the trial court acted within its discretion in permitting the testimony.
Evidence Code section 720 provides: "(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert. [¶] (b) A witness' special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony." Qualified law enforcement officers may testify as experts on the modus operandi of criminals. (People v. Crooks (1967) 250 Cal.App.2d 788, 789-790 [officer testified to a ruse used by prostitutes].) Sergeant Friesen testified that he had been a police officer for 17 years. Prior to his current assignment, he had worked in a unit that conducted prostitution and john investigations. He had been in his current assignment for two years, during which time he received training in regard to prostitution, johns, and pimping. He had taught some of the training classes, including human trafficking and pimping investigation, throughout the state. He had worked undercover with the police department policing the internet. He had also worked the two "prostitutions tracks" in Anaheim. He was familiar with popular tracks in other cities, such as Ontario. His knowledge is based on his "day-to-day experience talking to actual prostitutes or speaking to other investigators with more vice experience," along with reading materials about prostitution tracks and attending training courses. Without abusing its discretion the trial court could conclude that Sergeant Friesen's testimony involved matters beyond common experience.
A prostitution track is known as the "area where prostitutes congregate" within a city.
Evidence Code section 801 provides: "If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." Even if the jury has some knowledge of the topic, expert opinion may be admitted if it would assist the jury. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300.) Opinions are not inadmissible simply because they "embrace[] the ultimate issue to be decided by the trier of fact." (Evid. Code, § 805.) We review a challenge to the admission of a witness's expert opinion for an abuse of discretion. (McAlpin, supra, at p. 1299.)
As the People point out, Sergeant Friesen's testimony about the roles and relationships of pimps and prostitutes, as previously set forth in this opinion, was based on his experience and contacts and fits within the category of proper expert testimony. Moreover, Sergeant Friesen's testimony was comparable to that of gang investigators regarding the inner workings of street gangs in the community. (See People v. Gardeley (1996) 14 Cal.4th 605, 617-620; People v. Champion (1995) 9 Cal.4th 879, 919.)
Nonetheless, defendant argues that Sergeant Friesen's testimony amounted to a type of profile testimony prohibited in People v. Robbie (2001) 92 Cal.App.4th 1075, 1084 (Robbie). We disagree. Sergeant Friesen's testimony related to the experiences and relationships of the girls drawn into prostitution by pimps, rather than profiling or categorizing defendant. This is not a case where a hypothetical inquiry was presented to a witness and the circumstances matched those of the charges against the accused as was the case in Robbie and the authority it discussed. (Id. at pp. 1082-1087.) The type of profile evidence that defendant objects to has been described as follows: "In [People v. Walkey (1986) 177 Cal.App.3d 268], the prosecution introduced expert evidence that the most important factor in the profile of a child abuser was that he had himself been abused as a child, elicited an admission from the defendant that he had been abused as a child, then argued that the defendant was guilty because he fit the profile of a child molester. [Citation.] The Court of Appeal held the evidence inadmissible and the prosecution's argument improper. [Citation.] [¶] In [Robbie], a prosecution expert testified that many rapists use only minimal force, and described in detail a scenario in which the rapist is in effect acting as if he thinks of the sexual acts as consensual. [Citation.] Not coincidentally, the behavior the expert described matched the testimony of the alleged victim. The expert conceded that the same behavior would be consistent with a truly consensual encounter. The Court of Appeal in Robbie characterized this evidence as inadmissible 'profile evidence.' It explained: '[The evidence] implies that criminals, and only criminals, act in a given way. In fact, certain behavior may be consistent with both innocent and illegal behavior, as the People's expert conceded here.' [Citation.] Other cases excluding profile evidence include People v. Castaneda (1997) 55 Cal.App.4th 1067, 1072 . . . (drug dealer profile), People v. Martinez (1992) 10 Cal.App.4th 1001, 1006 . . . (truck thief profile), and U.S. v. Beltran-Rios (9th Cir. 1989) 878 F.2d 1208, 1210 (drug courier profile)." (People v. Smith (2005) 35 Cal.4th 334, 357-358.)
In People v. Smith, 35 Cal.4th 334, the Supreme Court identified when profile evidence is inadmissible: "'Profile evidence,' however, is not a separate ground for excluding evidence; such evidence is inadmissible only if it is either irrelevant, lacks a foundation, or is more prejudicial than probative." (Id. at p. 357.) At another point, the Supreme Court noted, "Profile evidence is objectionable when it is insufficiently probative because the conduct or matter that fits the profile is as consistent with innocence as guilt." (Id. at p. 358.) We review issues of relevance and undue prejudice for an abuse of discretion. (People v. Panah (2005) 35 Cal.4th 395, 474.)
The testimony at issue was not inadmissible profile evidence. To begin with, Sergeant Friesen's testimony, which dealt with the pimp/prostitute relationship and experiences of prostitutes, was relevant to all of the charges (pimping, assault, attempted murder, corporal injury) pertaining to Jessica. According to the prosecution's theory, defendant was violent towards Jessica because she exchanged sex for drugs rather than money. Unlike the situation in Robbie, supra, 92 Cal.App.4th at page 1084, here Sergeant Friesen was not answering hypothetical questions that incorporated the victim's description of defendant's conduct. Moreover, the People assert that "there is nothing about the relationship between a pimp and a prostitute—which involves pimping, pandering, assault, and other violence as a means to compel obedience—that is consistent with innocent conduct." We agree. (People v. Smith, supra, 35 Cal.4th at p. 358.) No abuse of discretion occurred.
Furthermore, we reject defendant's claim that various portions of Sergeant Friesen's testimony were irrelevant and/or "hypothetical pimp situations that lacked any credible foundation . . . ." The portions include: (1) testimony that the officer never met a prostitute that started out without a pimp; (2) the pimp/prostitute relationship is an employer/employee relationship; (3) motels rooms are used for sex acts; (4) rules are to "'keep the girls in line'" and every prostitute knows the rules; (5) breaking the rules can result in a beating and there are "finesse" and "gorilla" pimps; (6) other prostitutes have admitted they were beaten for breaking the rules of the game; (7) prostitutes are manipulated at a young age and do not leave their pimps; (8) Jessica must have been "out of pocket" and got disciplined; (9) defendant is a pimp and Jessica is his prostitute; and (10) being a pimp is a greater crime than being a prostitute. Each of these identified portions of the testimony was relevant to providing an overview of the pimp/prostitution relationship and probative of establishing such a relationship between Jessica and defendant. Furthermore, other witnesses corroborated that defendant and Jessica used a motel room; defendant taught Jessica the rules of the game; the rules of the game restricted certain behavior; and that the rules provided consequences for breaking them. Defendant faults Sergeant Friesen for not identifying every prostitute he spoke to and when he spoke to them. However, we are unaware of, and defendant does not provide, any authority that creates such requirement. In sum, Sergeant Friesen's testimony was relevant to the issues in the case, and any comment that reflected the officer's personal philosophy was "tangential and rather benign."
For the above reasons, the trial court properly admitted the expert testimony of Sergeant Friesen.
H. CALCRIM NO. 357
Defendant claims the evidence did not support the trial court's decision to instruct the jury with CALCRIM No. 357, the adopted admission instruction, regarding Jennifer's pretextual call to him. He maintains that the error in giving CALCRIM No. 357 mandates reversal.
As modified, CALCRIM No. 357 (Adoptive Admissions) told the jury: "If you conclude that someone made a statement outside of court that accused the defendant of the crime or tended to connect the defendant with the commission of the crime and the defendant did not deny it, you must decide whether each of the following is true: [¶] 1. The statement was made to the defendant or made in his presence; [¶] 2. The defendant heard and understood the statement; [¶] 3. The defendant would, under all the circumstances, naturally have denied the statement if he thought it was not true; [¶] AND [¶] 4. The defendant could have denied it but did not. [¶] If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true."
When discussing this instruction with counsel, the trial court observed that during the pretext telephone call Jennifer made to defendant, Jennifer confronted defendant with what he did to her, and defendant did not deny it. Specifically, when Jennifer mentioned the injury to her anus, defendant made no reference to another individual who may have caused the injury or gave any indication that maybe someone raped her other than himself. Nonetheless, defendant maintained that the instruction was not warranted, because at some point in the conversation he voiced his denial, "'It's nonsense. Stop it.'" He also said that he did not want to talk about it on the telephone. Based on the court's reasons and Jennifer's direct accusation ("'[t]he way you did me there, my whole body hurts'"), the prosecutor argued the evidence supported the instruction. The prosecutor added that if there may be two different reasonable interpretations of the conversation, then the instruction should be given for the jury to make the determination. The court agreed with the prosecutor.
Here, the jury heard the telephone conversation between Jennifer and defendant. At the beginning of the call, when defendant realized it was Jennifer, he said, "I'm just happy that you're fine. I've been just thinking about, I've been just thinking about your kidneys all night. I'm so sorry for everything babe." When Jennifer told defendant, "I'm upset too. The way you did me . . . . I was messed up[,] [m]y whole body hurting[,]" defendant replied, "Yea, I'm gonna make up for it." Later, she said, "I don't want you behind my door and shit you start bombing on me. That's the thing." Defendant replied, "Oh no. Oh come on we're not going through that no more. I told you, you['re] too sick for that." In other responses to Jennifer's accusations, defendant was evasive. Such responses could constitute an adoption of her statements that he had attacked her, thereby making instruction on the issue proper. (People v. Flannel (1979) 25 Cal.3d 668, 685 [A trial court should instruct the jury on every theory of the case to the extent each theory is supported by substantial evidence], superseded by statute on other grounds as stated in In re Christian S. (1994) 7 Cal.4th 768, 777.)
Defendant claims the trial court failed to review the transcript of the recorded phone call; however, he fails to provide any proof of such contention. The fact that the jury heard the telephone conversation means the trial court also heard it.
Notwithstanding the above, even if we assume the court erred in giving CALCRIM No. 357 to the jury, the People argue that it amounted to harmless error, because defendant was acquitted of rape and sodomy and only convicted of corporal injury. Further, the People note the instruction does no more than offer the jury a permissive inference that the jury could draw from the evidence. However, if the jury fails to make the necessary findings, the instruction does not apply. We agree. A jury instruction that "suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion," does not unconstitutionally lessen the prosecution's burden of proof. (Francis v. Franklin (1985) 471 U.S. 307, 314, fn. omitted.)
I. CALCRIM NO. 3160
In count 6 (corporal injury on a cohabitant, namely Jessica) the information added a special allegation of great bodily injury. In count 1, defendant was also charged with corporal injury on a cohabitant, namely Jennifer; however, there was no special allegation of great bodily injury as to this count. The jury was instructed with CALCRIM No. 3160, and the written instructions, in relevant part, provided: "If you find the defendant guilty of the crime charged in Count Six, you must then decide whether, for that crime, the People have proved the additional allegation that the defendant personally inflicted great bodily injury on Jennifer J[.] and Jessica D[.] . . . . (Italics added.) Defendant asserts that the instruction "is simply erroneous as Count Six only concerns alleged victim Jessica J[.]" He argues the error is reversible per se, because it "'necessarily render(s) a trial fundamentally unfair' and deprives [him] 'basic protections . . . .'" We disagree.
The written version of CALCRIM No. 3160 provided: "If you find the defendant guilty of the crime charged in Count Six, you must then decide whether, for that crime, the People have proved the additional allegation that the defendant personally inflicted great bodily injury on Jennifer J[.] and Jessica D[.] in the commission of that crime. You must decide whether the People have proved this allegation for Count Six and return a separate finding for that count. [¶] You may use this jury instruction to assist you in your evaluation as to whether the Defendant inflicted Great Bodily Injury on Jennifer J[.] as alleged in Counts Two and Three. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] Committing the crime of [Penal Code section] 261 (a)(2), Rape and [Penal Code section] 266 (c)(2), Sodomy is not by itself the infliction of great bodily injury. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved."
Despite the mistake in the written version, the trial court correctly instructed the jury orally by omitting the reference to Jennifer in the first sentence. As the People aptly point out, while count 6 (corporal injury to Jessica) did not involve Jennifer, CALCRIM No. 3160 instructed on the great bodily injury allegations with respect to all pertinent counts involved in the trial, i.e., counts 2 (rape of Jennifer), 3 (sodomy) of Jennifer, and 6 (corporal injury to Jessica). The reference to Jennifer in the second paragraph with respect to the infliction of great bodily injury on her regarding counts 2 and 3 was proper, along with the instruction that committing rape and sodomy is not by itself the infliction of great bodily injury. Thus, with the exception of Jennifer's name in the first sentence, both victims were properly addressed in the written version of CALCRIM No. 3160.
Nonetheless, even if we assume error as a result of the inclusion of Jennifer's name in the first sentence of the written version of CALCRIM No. 3160, we conclude the error was harmless. The charging allegations in count 6 clearly did not identify Jennifer. The jury was expressly told that the victim in count 6 was Jessica. There were no verdict forms with respect to Jennifer involving count 6. While the jury found it true that defendant inflicted great bodily injury on Jessica, it found it not true that he did the same as to Jennifer, and the jury further found defendant not guilty of raping or sodomizing her. Contrary to defendant's suggestion, the jury was not allowed "to consider whether [he] was guilty of inflicting great bodily injury on Jessica D[.] by determining whether he inflicted great bodily injury to Jennifer J." The record is devoid of any indication that the jury was confused with respect to the alleged victim in count 6. We conclude the error in the written version CALCRIM No. 3160 was minor and harmless under any standard.
J. CALCRIM NO. 300
The jury was instructed with CALCRIM No. 300. According to the reporter's transcript, the trial court instructed the jury as follows: "Either side is required to call all witnesses who may have information about this case or to produce all physical evidence that might be relevant." (Italics added.) However, the written instruction given to the jury provided: "Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant." (Italics added.) Defendant contends the trial court erred in orally instructing the jury with the word "either" and thus "trample[d] on [his] fundamental constitutional rights," and shifted the burden of proof from the People to him. The People disagree, noting that it is more likely than not the court reporter inadvertently transcribed the word "neither" to "either." We agree. If the trial court had actually said the word "either," counsel would have objected and asked for the correct instruction. The fact that neither side objected to the court's reading of CALCRIM No. 300 suggests that there was no error; it was simply a mistake in transcription.
Even assuming the oral instruction is an accurate transcription of the judge's statements to the jury, we do not believe reversal is warranted on this ground. Our Supreme Court has repeatedly held that "the misreading of a jury instruction does not warrant reversal if the jury received the correct written instructions." (People v. Prieto (2003) 30 Cal.4th 226, 255; see also People v. Box (2000) 23 Cal.4th 1153, 1212 ["misreading instructions is at most harmless error when the written instructions received by the jury are correct"], overruled in part on other grounds as stated in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10.) Here, the jury received the written version of CALCRIM No. 300, which correctly included the word "neither." Given the elements of the charges upon which the jury's verdict depended, coupled with the jurors' questions during deliberations, it would be speculative, at best, to assume the jurors worked through the case nuances based solely on their recollection of the trial court's oral recitation of CALCRIM No. 300. Rather, as there is no indication to the contrary, we presume the jury followed all of the proper instructions it received for purposes of its deliberations.
K. CALCRIM NO. 350
Defendant faults the trial court for instructing the jury with CALCRIM No. 350 when he did not introduce any character evidence.
Pursuant to CALCRIM No. 350, the trial court instructed: "You have heard character testimony that defendant is a good person. [¶] You may take that testimony into consideration along with all the other evidence in deciding whether the People have proved that the defendant is guilty beyond a reasonable doubt. [¶] Evidence of the defendant's character for good person can by itself create a reasonable doubt. However, evidence of the defendant's good character may be countered by evidence of his bad character for the same trait. You must decide the meaning and importance of the character evidence."
CALCRIM No. 350 instructs the jury to consider evidence of defendant's good character. Defendant contends no evidence that he was a good person was introduced at trial. We disagree. When the defense cross-examined Pasco, counsel elicited her testimony that defendant had never been violent with her, never hit her, and never beat her. Pasco claimed she had been intimate with defendant and he never raped her, never threatened her life, and never tried to kill her. The primary issue in the case was whether defendant had assaulted the victims. Thus, the trial court did not err in giving CALCRIM No. 350 to the jury.
To the extent defendant argues that CALCRIM No. 350 misinformed the jury that bad character alone could establish his guilt, this argument is refuted by the express language of the instruction, which states: "You may take that testimony into consideration along with all the other evidence in deciding whether the People have proved that the defendant is guilty beyond a reasonable doubt." (CALCRIM No. 350, italics added.) In addition, CALCRIM No. 221 instructed the jury that the People were required to prove the allegations beyond a reasonable doubt. The instructions did not invite the jury to convict defendant simply because he might have a bad or violent character.
L. Trial Court's Comment on the Absence of Defendant's Mother at Trial
According to Jessica, she was in contact with defendant's mother, Hester Martin, and communicated to her that defendant did not do what he was being charged with. Jessica testified that Mrs. Martin helped her move back to Illinois prior to the trial. Jessica never testified that Mrs. Martin had contacted her and told her to remain silent or lie. Instead, Jessica stated that she did not want to hurt Mrs. Martin's feelings. The People subpoenaed Mrs. Martin to testify, and she appeared at one of defendant's hearings in September 2011, where the trial court ordered her back to trial pursuant to the prosecution's subpoena. Mrs. Martin failed to return; however, she provided the court with a note from a medical provider indicating she was too ill to travel. The court found the note unsatisfactory to relieve her of her duty to appear; however, it did not issue a bench warrant, nor did the People request such a warrant. Rather, the People requested that the trial court inform the jury that Mrs. Martin had been subpoenaed but had failed to show up for trial. The court granted the People's request and let the jury know that Mrs. Martin was subpoenaed by the People; that she sent a note claiming medical reasons prevented her from traveling, and that the court found the note insufficient. Defense counsel did not believe he could object because Mrs. Martin was a witness for the People.
Prior to closing argument, the trial court informed the jurors they may be asked to consider the failure of Mrs. Martin to appear and testify. The court stated that Mrs. Martin was ordered to appear; however, she submitted a letter from a medical provider indicating she had a medical issue preventing her from traveling. The court explained that because the letter was signed by someone other than a doctor, it had informed Mrs. Martin the letter was not sufficient to excuse her presence. During closing argument, the prosecutor commented on Mrs. Martin's failure to show up at trial. The prosecutor noted that the only person who could refute Jessica's testimony "refused to show up for the trial."
On appeal, defendant contends the trial court committed prejudicial error by informing the jury about Mrs. Martin's failure to show up for trial and then allowing the prosecutor to comment on this during closing argument. He cites In re Keller (1975) 49 Cal.App.3d 663 (Keller) and argues "the trial court failed to do the only thing it could do which would have been to issue a bench warrant on the People's motion and/or hold Mrs. Martin in contempt." Otherwise, he contends only that allowing the irrelevant and inadmissible information about Mrs. Martin "violates Evidence Code section 352 and denied . . . [defendant his right] to [a] constitutionally fair trial and his constitutional right to confront and cross-examine the State's witnesses."
In Keller, the witness did not refuse to appear at court; he refused to answer questions. (Keller, supra, 49 Cal.App.3d at pp. 664-666.) The court observed: "When . . . the witness' testimony is necessary for either the prosecution or the defense, the only recourse presently available is either by the coercive power of the court to jail the offender while the trial is in progress [citation], or by the punishment power of the court as it was attempted in this case [citation], or by requesting that the person be prosecuted for violation of Penal Code, section 166, subdivision 6." (Id. at p. 670.) The facts of Keller differ from the facts in this case. Here, there is no indication that Mrs. Martin was a necessary witness and she was not present in court, refusing to testify. Rather, she claimed that her presence was medically excused. What constitutes a sufficient excuse rests within the sound discretion of the trial court. (See People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 906-907.) On this record, we conclude the trial court did not abuse its discretion in finding that Mrs. Martin failed to show good cause for her nonappearance. As the trial court noted, she offered a letter signed by someone other than her doctor. The trial court was in the best position to judge the credibility and sufficiency of this evidence. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.) Furthermore, under the circumstances of this case, we can find no fault with the court's decision to comment on Mrs. Martin's failure to appear at trial.
As for defendant's remaining claims, he does not engage in any analysis to support the conclusion. Rather, he assumes the evidence was so prejudicial as to deny him his due process rights to a fair trial and to confront and cross-examine witnesses. We need not address a contention that is not supported by meaningful analysis and citation to authority. (People v. Weaver, supra, 26 Cal.4th at pp. 986-987.) Because defendant has not addressed the underlying question of the prejudicial effect of the evidence, we decline to address defendant's contentions that the court's comment on Mrs. Martin's failed excuse for not appearing and the prosecutor's reference to her failure to appear were either a prejudicial abuse of discretion or a violation of due process.
The People submit that defendant's claim that he was denied his right to confront and examine Mrs. Martin is "inapt" because she failed to testify. We agree.
M. Jury's Mid-deliberation Questions
Defendant complains there were "a number of jury questions presented to the Court that were handled informally by the Court without the presence of Defendant or his counsel." Specifically, the jury presented the following four questions: (1) "Was there a DNA result from the rape kit that was done on JJ?"; (2) "Was Rene or Matt F. questioned by any police officers, attorneys or investigators?"; (3) "Is Count #4 solely . . . related to the strangulation to . . . JD from the rope?"; and (4) Is the torture charge . . . (count #7) solely based on the victim being burned with the curling iron?" Regarding questions (1) and (2), defendant complains that the court had the bailiff/deputy call counsel and ask for permission to answer "No" to both questions. Eight minutes later, the court provided the answer "No" to questions (1) and (2). Regarding questions (3) and (4), the court called counsel outside the presence of defendant and without his participation, consent or waiver of presence. The court then responded by answering "Yes" to question (3) and "No. Could be any activity . . . supported by the facts" to question (4).
Defendant contends the "lack of consideration, sloppiness and vacuousness of the court's response virtually guaranteed a miscarriage of justice as described in [People v.] Thompkins [(1987) 195 Cal.App.3d 244, 251-253)]." He further asserts that he was deprived of due process and his constitutional right to be present and consulted during the court's "mid-deliberation response" to jurors' questions. The People respond by arguing forfeiture and invited error. Defendant failed to object to the trial court's responses and, in fact, expressly agreed with the responses given. We agree.
1. Waiver
Defense counsel's acquiescence in the trial court's response to the jury's questions forfeits a claim of error on appeal as to those responses. (People v. Rogers (2006) 39 Cal.4th 826, 877.) In People v. Harris (2008) 43 Cal.4th 1269, the defendant claimed that during its deliberations, the jury demonstrated confusion over the sentencing choices by asking the trial court for a definition of a phrase in a jury instruction. After consulting and obtaining the agreement of both sides, the court told the jury that the phrase had been adequately defined and there was no need for further definition. (Id. at pp. 1316-1317.) On appeal, defendant complained that the court's answer was no response at all. In rejecting this claim, our Supreme Court stated that defendant "has waived this argument by specifically agreeing below to the court's handling of the jury's question. [Citations.]" (Id. at p. 1317; see also People v. Marks (2003) 31 Cal.4th 197, 237 [rejecting a defendant's contention that a court's response to a jury inquiry regarding its instructions was incorrect and stating, "if defendant favored further clarification, he needed to request it," and "[h]is failure to do so waives this claim"]; People v. Hughes (2002) 27 Cal.4th 287, 402 [rejecting a claim that the court gave an insufficient response to a jury inquiry about deadlock, stating "this claim is waived by defense counsel's agreement with the trial court that informing the jury of the consequences of a deadlock would have been improper"]; People v. Ross (2007) 155 Cal.App.4th 1033, 1048 ["defendant may forfeit an objection to the court's response to a jury inquiry through counsel's consent, or invitation or tacit approval of, that response"]; People v. Bohana (2000) 84 Cal.App.4th 360, 373 ["[w]here, as here, appellant consents to the trial court's response to jury questions during deliberations, any claim of error with respect thereto is waived"].)
2. Trial Court's Answers to Jury's Questions
Even if we overlook defense counsel's failure to object or request a different response, defendant's claim that the trial court erroneously responded to the jury's questions has no merit.
Regarding question (2), i.e., whether Rene or Matt was questioned, defendant faults the trial court for answering the question in the affirmative, "despite the fact that it was new evidence not proved or presented at trial." Defendant argues "the answer by the court would result in a negative inference about [him] by a fact not proved beyond a reasonable doubt at trial resulting in a denial of [his] federal and state constitutional right to a fair trial." We disagree. The trial court's response did not result in a factual finding. Rather, it simply answered with a simple "no" the jury's question of whether Rene or Matt were ever questioned by the police.
Rene is the man Jennifer was with immediately prior to defendant beating and allegedly sexually assaulting her.
Matt is the man Jessica was with for more than a day and who wanted to help her escape from her life of prostitution.
We believe defendant meant to say "negative."
Regarding question (4), whether torture could be based solely on the fact that Jessica was burned with a curling iron, defendant contends the court's response (torture could be based on any activity supported by the facts) "abrogates the People's burden of proof under torture and allows the jury to just pick any fact to support the charge of torture . . . ." Defendant faults the court for not giving the torture instruction again. The court's answer did not expand the crime of torture; rather, it merely told the jury that the charge could be based on any activity supported by the facts. The jury instructions set forth the elements of torture with regard to great bodily injury and intent, and the jury was charged with following the instructions. We presume the jurors understand and follow the instructions. (People v. Wilson (2008) 44 Cal.4th 758, 803.)
Regarding question (3), defendant claims the court's statement that count 4 "is solely related to the strangulation [of Jessica] from the rope" was "highly prejudicial and confusing as it presumes that [defendant] had strangled [Jessica] with the rope." He asserts "the jury should have been instructed that the attempted murder charge is related to the allegation that [Jessica] was strangled by a rope that needs to be proven beyond a reasonable doubt." We reject his assertion. The prosecution's theory of the attempted murder charge was based on the evidence that defendant strangled Jessica with a rope with the intent to kill her. The trial court's answer to question (3) did not inform the jury that it should presume or assume defendant strangled Jessica. Rather, it simply affirmed that the attempted murder charge was based on the strangulation with the rope.
Nonetheless, defendant asserts the trial court erred in answering the question "in a way that would allow the jury to presume that if [he] acted in a certain way that he had the requisite intent." Specifically, defendant notes the answer came after the testimony of Jennifer Pasco (i.e., defendant said "I want to, like, kill [Jessica]" but he was not stating that he "literally" wanted to kill her) was read back to the jury. He adds that the court's answer "presumed that Jessica was strangled and that alone was sufficient to convict on Attempted Murder or [its] lesser included of Attempted Manslaughter both of which had an intent to kill mens rea requirement." Thus, defendant argues the court's "nonchalant answer . . . allowed the jury to ignore evidence of lack of intent and to find intent alone based on the strangulation of the rope." To claim the court's answer to question (3) allowed the jury to find intent based only on the strangulation is pure speculation. The jury was aware of Pasco's testimony, other evidence surrounding the charge, the presumption of defendant's innocence and the prosecution's burden of proof. The jury found defendant guilty of attempted manslaughter rather than attempted murder. Clearly, the court's response did not have the effect of directing a verdict as defendant suggests.
3. Defendant's Right to be Present and Consulted
Defendant contends he was deprived of due process and his constitutional right to be present and consulted during the court's mid-deliberation response to jurors' questions and the read back of Pasco's testimony because a criminal defendant has a statutory and constitutional right to be present at all critical stages of the proceedings. Defendant cites Fisher v. Roe (9th Cir. 2001) 263 F.3d 906, 915 [reversal because defendants or their counsel were absent during a read back of a substantial part of the prosecution's case], overruled on other grounds in Payton v. Woodford (9th Cir. 2003) 346 F.3d 1204, 1218, fn. 18, and Shields v. United States (1927) 273 U.S. 583, 584-585, 587-588 [ex parte communication to jury during deliberations in the absence of defendant or his counsel].
A criminal defendant has a statutory and constitutional right to be present during such phases of trial as are important to his or her defense unless he or she is voluntarily absent. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; Pen. Code, §§ 977, subds. (b)(1), (2), 1043, subds. (a), (b); People v. Freeman (1994) 8 Cal.4th 450, 511.) However, "'[a] defendant . . . "does not have a right to be [personally] present at every hearing held in the course of a trial." [Citation.]'" (People v. Cleveland (2004) 32 Cal.4th 704, 741.) More specifically, under the due process clause of the Fourteenth Amendment, a criminal defendant does not have a right to be personally present at a particular proceeding unless the proceeding is "'critical to [the] outcome' and 'his presence would contribute to the fairness of the procedure.' [Citation.]" (People v. Waidla (2000) 22 Cal.4th 690, 742.) Similarly, under the California Constitution, "'"the accused is not entitled to be personally present during proceedings which bear no reasonable, substantial relation to his opportunity to defend the charges against him . . . . [Citation.]"'" (People v. Davis (2005) 36 Cal.4th 510, 530.)
Section 1138 states: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to the prosecuting attorney, and the defendant or his counsel, or after they have been called." (Italics added.)
Section 977 provides in pertinent part: "In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present as provided by paragraph (2). If the accused agrees, the initial court appearance, arraignment, and plea may be by video, as provided in subdivision (c)." (§ 977, subd. (b)(1).)
Assuming, without deciding, that the issue has not been forfeited, we find that defendant's absence did not constitute error. Defendant's presence at the discussion between his trial counsel and the court concerning the jury's questions had no reasonable and substantial relation to defendant's full opportunity to defend against the charges. In addition, the jury's questions were discussed in the presence of defendant's counsel, who agreed with the proposed responses to the questions.
"Under section 15 of article I of the California Constitution, a criminal defendant does not have a right to be personally present 'either in chambers or at bench discussions that occur outside of the jury's presence on questions of law or other matters as to which [his] presence does not bear a "'"reasonably substantial relation to the fullness of his opportunity to defend against the charge."'"'" (People v. Waidla, supra, 22 Cal.4th at p. 742.) For example, the rereading of testimony or discussion of a jury note is not a critical stage of the proceedings (People v. Ayala (2000) 23 Cal.4th 225, 288), because the reading back of testimony ordinarily is not an event that bears a substantial relation to the defendant's opportunity to defend (People v. Horton (1995) 11 Cal.4th 1068, 11201121). Neither the readback of Pasco's testimony nor the jury's questions posed a situation mandating defendant's presence.
Numerous trial situations, far more closely connected to the trial itself than that presented in the instant case, have been held not to constitute a critical stage. (See, e.g., Kentucky v. Stincer (1987) 482 U.S. 730, 745-747 [the defendant's due process rights were not violated by his exclusion at a hearing in which the trial judge determined the competency of child witnesses]; People v. Horton, supra, 11 Cal.4th at p. 1121 [rereading of testimony is not a critical stage of a criminal proceeding]; People v. Moon (2005) 37 Cal.4th 1, 20 [jury view of the crime scene is not a critical stage]; People v. Perry (2006) 38 Cal.4th 302, 312 [the defendant's absence from a bench conference discussing exclusion of his wife from the courtroom was not a critical stage of the proceedings—"a defendant may ordinarily be excluded from conferences on questions of law, even if those questions are critical to the outcome of the case, because the defendant's presence would not contribute to the fairness of the proceeding"]; People v. Rogers (2006) 39 Cal.4th 826, 855-856 [the defendant had no state statutory or federal constitutional right to attend jury screening discussions]; United States v. Gagnon (1985) 470 U.S. 522, 526-527 [trial court's ex parte discussion with juror was not a critical stage]; People v. Morris (1991) 53 Cal.3d 152, 210 [discussion of jury instructions was not a critical stage].)
Even if we were to assume there was a violation of the right to be present at a critical stage of the proceedings, defendant has the burden of showing that his absence prejudiced his case or denied him a fair and impartial trial. (People v. Cleveland, supra, 32 Cal.4th at p. 741; People v. Ervin (2000) 22 Cal.4th 48, 74.) Defendant has not met this burden. "'A conviction will not be reversed for a violation of section 1138 unless prejudice is shown.' [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 1027; see also People v. Jennings (1991) 53 Cal.3d 334, 384-385 [finding error based on violation of section 1138 harmless beyond a reasonable doubt]; People v. Ainsworth (1988) 45 Cal.3d 984, 1020 [applying state standard of review to find similar error harmless].) Reversal is required only if it is reasonably probable that defendant would have received a more favorable result had the trial court read the jury's request in his presence or had the trial court allowed him to be viewed from the side without his glasses. (See Ainsworth, supra, at p. 1020.)
Similarly, "[u]nder the federal Constitution, error pertaining to a defendant's presence is evaluated under the harmless-beyond-a-reasonable-doubt standard set forth in Chapman v. California (1967) 386 U.S. 18, 23 [17 L.Ed.2d 705, 87 S.Ct. 824].) [Citations.] Error under sections 977 and 1043 is state law error only, and therefore is reversible only if '"it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." [Citation.]' [Citations.]" (People v. Davis, supra, 36 Cal.4th at pp. 532-533.)
Defendant claims the answers provided to the jury were "not instructional, confusing and incorrect . . . . Here, the instruction[s] given . . . were incorrect on multiple grounds and [he] may have been able to provide insight to the trial court and counsel to the important factual and legal issues actually posed if he had been present and participating at this critical stage of the proceedings." This argument is entirely speculative. (See People v. Horton, supra, 11 Cal.4th at p. 1121.) Defendant has not shown that his absence during the readback of Pasco's testimony or the discussion of the jury's questions affected the jury's verdict in any way. We cannot detect prejudice to defendant on this record. The issue was one which his counsel was equipped to handle. Further, it is most likely that if defendant had been consulted, defendant would have followed his counsel's advice. Accordingly, defendant cannot show that his presence would have benefited the defense.
Because defendant provides no basis on which we could conclude the result of his trial would have been different had he been present at the hearing where the jury's request was discussed, we find defendant's absence was harmless. For the same reason, his absence did not offend his constitutional rights to due process or a fair and reliable trial. A review of the record leads us to conclude that even if the court had erred in denying the jury's request in defendant's absence, it was harmless beyond a reasonable doubt. (See People v. Davis, supra, 36 Cal.4th at pp. 533-534.)
N. Prosecutorial Misconduct
Defendant asserts five separate instances of prosecutorial misconduct. None have merit, even if they were not forfeited.
1. General Legal Principles
"The standards governing this claim are well established. A prosecutor's conduct violates the federal Constitution when it infects the trial with such unfairness as to make the resulting conviction a denial of due process. Conduct by a prosecutor that does not rise to this level nevertheless violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citations.] To preserve a prosecutorial misconduct claim for appeal, the defendant '"must make a timely and specific objection and ask the trial court to admonish the jury to disregard the impropriety"' unless doing so would be futile or an admonition would not cure the harm. [Citation.]" (People v. Whalen (2013) 56 Cal.4th 1, 52.)
"'A defendant's conviction will not be reversed for prosecutorial misconduct . . . unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.] . . . .'" (People v. Tully (2012) 54 Cal.4th 952, 1010.) "When a trial court sustains defense objections and admonishes the jury to disregard the comments, we assume the jury followed the admonition and that prejudice was therefore avoided. [Citation.]" (People v. Bennett (2009) 45 Cal.4th 577, 595.)
2. Forfeiture
The People argue that defendant forfeited his claims of prosecutorial misconduct by failing to raise a timely objection and request a curative admonition, or by moving for new trial based on these alleged improper comments. (People v. Whalen, supra, 56 Cal.4th at p. 52.) In response, defendant claims that (1) no objection would have cured the "pervasive misconduct" committed by the prosecution, (2) forfeiture is excused due to a prosecutor's misconduct, and (3) any failure to object causing forfeiture results in ineffective assistance of counsel. It is within our discretion to review a forfeited claim. (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7.) Despite the fact that defendant has forfeited his prosecutorial misconduct claims, we exercise our discretion to review them on their merits.
3. Misleading Court and Counsel Regarding Evidence and Misrepresenting the Evidence
Defendant contends the prosecutor committed misconduct by misleading defense counsel and the trial court regarding his intent to use evidence of pimps and prostitutes and relating it to both victims. In a related claim, defendant faults the prosecutor for referring to facts (that the victims came from broken homes or were homeless and broke) not in the record during closing argument.
(a) Additional factual and procedural background
As previously discussed, defense counsel moved, in limine, to prevent Jennifer from giving any opinion regarding pimping because there was no charge of pimping alleged with respect to her. The prosecutor responded: "That's a good point. Let me just make it clear because it was going to come up in a motion that I had. In regards to Jennifer J., I am going to specifically tell her that because of the way the case is charged as it relates to her, there's not going to be any discussion about prostitution or pimping or her mentioning any idea that she might have of what [defendant] was doing at the time or people he was associating with or anything else. I don't think it's relevant as to the crimes that are charged. So that shouldn't be a problem in terms of Jennifer J. talking about any of those issues." The trial court granted the defense motion and precluded Jennifer "from offering any opinion regarding pimping unless there's a foundation for that opinion."
The prosecutor offered the expert testimony of Sergeant Friesen, who testified as to general characteristics and dynamics between pimps and prostitutes. During his interview with Jessica, the officer learned that she turned over all her money to defendant, who paid for everything she needed. Jessica confirmed this in her testimony.
(b) Analysis
"It is misconduct for a prosecutor to violate a court ruling by eliciting or attempting to elicit inadmissible evidence in violation of a court order. [Citation.]" (People v. Crew (2003) 31 Cal.4th 822, 839.) A prosecutor may properly comment on the evidence presented at trial and offer the jury his or her views of the inferences that should be drawn from the evidence. (People v. Beivelman (1968) 70 Cal.2d 60, 76-77 ["'"The right of counsel to discuss the merits of a case, both as to the law and facts, is very wide, and he has the right to state fully his views as to what the evidence shows, and as to the conclusions to be fairly drawn therefrom."'"].) All reasonable inferences from evidence on the record may be presented in closing argument. (People v. Bolton (1979) 23 Cal.3d 208, 212.) A prosecutor may vigorously argue the case. (People v. Fosselman (1983) 33 Cal.3d 572, 580.)
Here, the prosecutor did not elicit any improper testimony from Jennifer, who merely testified about her personal relationship and experiences with defendant. While defendant argues that Jennifer did not consider herself a prostitute, we note she testified that she prostituted for defendant, who was her boyfriend. In order to understand the world of pimping and prostitution, the prosecutor offered expert testimony from Sergeant Friesen. Sergeant Friesen testified as to the general characteristics of the pimp/prostitute relationship, how girls come into prostitution, and common traits shared by prostitutes. From this expert testimony, Jessica's interview statements, and both victims' testimonies, the prosecutor's argument that the jury should view the evidence through the "pimp prism" was appropriate. The prosecutor's argument did not inject new facts into the case. Rather, it explained the facts presented by the victims. The victims' backgrounds may not be an exact match to the typical background of a prostitute; however, providing evidence to assist the jury in understanding the pimp/prostitute relationship was relevant. Regarding the prosecutor's reference to defendant's mother's refusal to show up to testify, as we previously noted, the trial court informed the jury about defendant's mother's unexcused absence. Thus, any comment on her absence was proper.
4. Prosecutor's Appeal to the Jury's Passion and Prejudice and Stating a Personal Opinion
Defendant contends the prosecutor committed misconduct by "improperly appeal[ing] to the passion and prejudice of the jury by arguing that the victims came from broken homes at an early age, had no food, shelter, money and 'nobody' to rely on in their life to somehow make the jury feel sorry for their circumstances." Additionally, defendant contends the prosecutor stated a personal opinion when he argued to the jury that the victims are not similarly situated to the members of the jury.
(a) Additional factual background
During closing argument, the prosecutor explained to the jury why the victims continued to turn to defendant even when he had physically harmed them. However, defendant focuses on the following specific comments made by the prosecutor: "These girls have no money, no car, no support, no roof over their head, no food. [Jessica] describes in the interview with [Friesen] and Cunha that the pimp pays for the cell phone bills, the medical bills, the clothes, the makeup, everything. These girls don't have anything. These women are different than the lifestyle that we have chosen to live. They're not similarly situated to the ladies and gentlemen of the jury. You're able to drive yourself to court and drive yourself home each and every day. If you choose, you can go buy your own meal at lunch or you have the ability to go fix it if you go home. They don't."
(b) Analysis
"When a claim of misconduct is based on the prosecutor's comments 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."' [Citation.]" (People v. Williams (2013) 56 Cal.4th 630, 671.)
These comments were made while the prosecutor was explaining the dynamics between defendant and the victims. The prosecutor explained why defendant targeted these victims, how he was able to manipulate them, why Jessica ran, and why she was being pressured by defendant and his mother not to testify. The comments addressed the victims' credibility by explaining why they would be hesitant to accuse defendant of any wrongdoing, or recant any claim that he had assaulted them. The comments were not inflammatory or a statement of the prosecutor's opinion. The prosecutor merely stated the obvious and uncontroverted fact that the victims, admitted prostitutes, lived a lifestyle that was different from what is considered to be the norm.
5. Misstating the Law in Closing Argument
Defendant claims the prosecutor misstated the law in closing argument when he told the jury that once it found defendant was a pimp, he was guilty of all the crimes charged.
(a) Additional factual background
During closing argument, the prosecutor argued the following: "It's important to put all of the other actions aside from the pimping that the defendant does in this case through the context of him being a pimp because that is why he does everything else that he does in this case, and that's why the evidence is sufficient to prove each and every crime beyond a reasonable doubt. And I call it, for lack of a better term, the pimp prism. The pimp prism is what you have to look through to understand the context and explain, despite what these women went through, why they go back, why they live the lifestyle they do, why they have to rely on him after he has put them through some horrible, horrible experiences.
"The pimp prism is provided by [Jessica]; Jennifer Pasco, who probably knows the rules of the game better than anybody, she's been at it since she was 13, poor thing, but she provides the pimp prism. And finally, Sergeant [Friesen] clearly provided the pimp prism for you this morning as he testified. So as I go through, I want you to keep in mind what has been proved beyond a reasonable doubt initially, which is that the defendant is a pimp, and as I walk through all this, understand why that's the important context with which you have to look at the rest of the crimes."
(b) Analysis
It is improper for the prosecutor to misstate the law generally, and particularly, to attempt to absolve the prosecution from its burden of proof. (People v. Hill (1998) 17 Cal.4th 800, 829.) "Arguments of counsel which misstate the law are subject to objection and to correction by the court." (Boyde v. California (1990) 494 U.S. 370, 384 [110 S.Ct. 1190, 108 L.Ed.2d 316].)
Contrary to defendant's claim, the foregoing argument by the prosecutor did not tell the jury that it could convict defendant of all charges once it found that he was a pimp. Instead, the argument told the jury to view defendant's acts in the context of his being a pimp, which the prosecutor argued had been proven. As the People note, the prosecutor was setting forth his theory of the case and how the charges should be viewed. To that end, the prosecutor argued: "This case is all about power and control and money." Likewise, there was no misstatement of the law or lessening of the burden of proof with respect to the torture charge. The prosecutor merely emphasized the need to view the evidence in the context of a pimp/prostitute relationship which explained the reason defendant injured the victims, namely, for purposes of persuading and controlling.
O. Defendant's Right to Read a Prepared Statement Prior to the Pronouncement of Judgment
After the parties presented their sentencing arguments, but prior to the pronouncement of judgment, defendant interjected, "I have a statement that I prepared." Defense counsel inquired whether the court would allow defendant to make a statement, and the court replied that he was not entitled to make a statement at that point in time. On appeal, defendant contends the trial court erred by sentencing him without allowing him to make a statement. We disagree.
In People v. Evans (2008) 44 Cal.4th 590 (Evans), the California Supreme Court discussed a defendant's right to address the court at sentencing. It held that, under sections 1200 and 1201, a defendant has a statutory right to state reasons why judgment should not be pronounced at all, but not to state reasons why a more lenient judgment should be pronounced. (Evans, supra, at p. 597.) In addition, under section 1204, a defendant does have a statutory right to state why a more lenient judgment should be pronounced, but only under oath and subject to cross-examination. (Evans, supra, at p. 598.) The court added there is no federal due process right to address the court at sentencing other than under oath and subject to cross-examination. (Id. at p. 600.)
In Evans, at sentencing after discussing the appropriate sentence, defense counsel stated, "'Submitted.'" (Evans, supra, 44 Cal.4th at p. 593.) During the pronouncement of judgment, the defendant asked, "'Can I speak, your honor?'" The trial court replied, "'No.'" (Ibid.) The Supreme Court noted, "Defense counsel made no attempt to call defendant to testify, and defendant himself did not ask to do so." (Id. at p. 600.) It concluded, "Under these circumstances, there was a forfeiture of defendant's right to testify in mitigation of punishment." (Ibid.) Finally, the court stated: "It was only after the trial court had denied probation and was in the process of sentencing defendant to prison that defendant asked, 'Can I speak, your honor?' Assuming for the sake of argument that this may be construed as a request to testify in mitigation of punishment, it came too late; it should have been made before the court started to pronounce defendant's sentence. [Citations.]" (Ibid.)
Here, prior to pronouncement of sentence, defense counsel acknowledged having reviewed the probation officer's report and the prosecution's sentencing memo. Counsel argued for a mitigated term. Accordingly, defendant did present mitigating evidence through his statement to the probation officer and his counsel's argument at sentencing. Also, the court was in receipt of a letter from Jessica claiming that she had lied. After listening to counsel, the trial court noted that Jessica was invited to attend the sentencing hearing, where she could tell "her story under penalty of perjury"; however, she declined to do so. The court complimented defense counsel on "effectively" arguing to the jury to give little weight to Jessica's testimony. Nonetheless, the court observed, "this case screams out for the aggravated term, not the mitigated term." Thus, the court announced it was ready to proceed, and defendant stated that he had a prepared statement.
Given the above, the court did not err in precluding defendant from reading a prepared statement immediately prior to the pronouncement of judgment.
P. Motion for New Trial
Defendant moved for a new trial on the grounds of jury misconduct and newly discovered evidence. He argued that one of the jurors was sleeping during the trial and also that Jessica had recently admitted she was coerced to testify against defendant in exchange for the prosecutor's promise that he would take care of her legal matters. The trial court denied the motion, and defendant challenges the denial. Moreover, defendant claims that if this court rejects this claim because defense counsel failed to secure a proper declaration from Jessica and/or to request a continuance in order obtain such declaration, then he was denied effective assistance of counsel.
1. Additional Factual Background
Defendant requested a new trial. In support of this request, defendant submitted an unsworn statement from his sister stating that she had seen the jury foreman sleeping during portions of Jessica's testimony and when portions of the "audio-tape interrogation" were played. At a hearing on the matter, defendant's sister testified that she was present for a good portion of the trial and she read her declaration into the record and affirmed that it was true. On cross-examination, she admitted that she and the prosecutor exchanged greetings from time to time and she never told the prosecutor about the sleeping juror. Neither the prosecutor nor defense counsel noticed a sleeping juror.
In addition to the claim that a juror was sleeping, defendant submitted a letter his counsel had recently received from Jessica. In it, she claimed she was pressured into lying about defendant. She claimed that she had put the rope around her neck; she had dropped the curling iron on her leg; she did not believe that she was being tortured; and she did not believe that her life was in danger. Instead, she testified under the prosecutor's threat that she would be put in jail for up to one year, along with his promise to take care of all her legal issues.
In his opposition, the prosecutor explained that on the day of the preliminary hearing in this matter, Jessica was in custody as a result of a material witness warrant because she had fled the jurisdiction to avoid testifying. She also had a misdemeanor case in California and a "no bail" warrant in Illinois. The prosecutor explained that Jessica was appointed an attorney for all matters, and that he (prosecutor) never advised her regarding her testimony in this case. Rather, her attorney and the judge advised her. The prosecutor stated Jessica was never told her other charges would be dropped, and in fact, she subsequently pled guilty to a misdemeanor case and received 24 days in custody. She also pled guilty in a misdemeanor case in Orange County. She was granted immunity for her testimony in this case relating only to matters she would testify about because she was an admitted prostitute and engaged in prostitution during the times she was with defendant. The prosecutor explained that he had no jurisdiction over Jessica's felony probation status in Illinois and had made no promises to her regarding her probation status there.
At the hearing, defense counsel stated he had told Jessica to appear at the hearing on the motion for new trial; however, she failed to do so. The court explained that the letter written by Jessica was not a proper declaration, was not "appropriately sworn under penalty of perjury," and was inadmissible. Regarding the sleeping juror, the trial court explained that it was the court's custom and practice to advise the bailiff to report any perceived juror sleeping, nodding off, or not paying attention. The bailiff would observe the situation and the court would also take a break so that jurors could walk around and get refreshed. Similarly, if the bailiff observed a sleeping juror, the bailiff would pass a note to the judge. The court noted that neither of those scenarios took place in this matter. The court also pointed out that it was not uncommon for jurors to close their eyes and think about what is going on. The court noted the juror in question was picked as the foreman and the court believed the juror had previously served as a foreman in another trial.
Ultimately, the court found there was insufficient evidence to set aside the verdict.
2. Standard of Review
This court reviews the trial court's ruling on a motion for new trial under the deferential abuse of discretion standard. (People v. Howard (2010) 51 Cal.4th 15, 43.)
3. Analysis
(a) Jury misconduct
"[A] jury's failure to pay attention to the evidence presented at trial is a form of misconduct which will justify the granting of a new trial if shown to be prejudicial to the losing party. [Citation.] The duty to listen carefully during the presentation of evidence at trial is among the most elementary of a juror's obligations. Each juror should attempt to follow the trial proceedings and to evaluate the strengths and weaknesses of the evidence and arguments adduced by each side so that the jury's ultimate determinations of the factual issues presented to it may be based on the strongest foundation possible. Were the rule otherwise, litigants could be deprived of the complete, thoughtful consideration of the merits of their cases to which they are constitutionally entitled. [Citations.]" (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 411.)
"In ruling on a request for a new trial based on jury misconduct, the trial court must undertake a three-step inquiry. [Citation.] First, it must determine whether the affidavits supporting the motion are admissible. [Citation.] If the evidence is admissible, the trial court must determine whether the facts establish misconduct. [Citation.] Lastly, assuming misconduct, the trial court must determine whether the misconduct was prejudicial. [Citations.]" (People v. Dorsey (1995) 34 Cal.App.4th 694, 703-704.) To determine whether misconduct occurred, "[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.] Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court's independent determination. [Citations.]" (People v. Nesler (1997) 16 Cal.4th 561, 582.)
Clearly, if a juror was sleeping during defendant's trial, then the juror committed misconduct. However, a new trial is required only upon a showing that defendant was prejudiced by the juror's inattentiveness. (Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 415.) We presume prejudice from jury misconduct (People v. Honeycutt (1977) 20 Cal.3d 150, 156); however, this presumption may be rebutted, "and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice . . . . [Citations.]" (In re Hamilton (1999) 20 Cal.4th 273, 296.) Cases that have addressed the prejudicial effect of juror in attentiveness have "'uniformly decline[d] to order a new trial in the absence of convincing proof that the jurors were actually asleep during material portions of the trial.'" (People v. Bradford (1997) 15 Cal.4th 1229, 1349.)
Here, the only evidence that the juror was asleep came via defendant's sister's assertion. There is no evidence in the record that any of the other participants in the trial, i.e., the judge, the attorneys, or bailiff, noticed the juror sleeping during the trial. Accordingly, we find it highly unlikely that the juror was sleeping for portions of the trial. Moreover, there is nothing in the record to suggest that this juror did not listen to all of the evidence, the attorneys' arguments, and the court's instruction. Nor is there any evidence that would suggest he did not fully participate in the jury's discussion of the evidence once deliberations began, especially given the fact that this particular juror was selected as the foreperson.
Based on the above, the trial court did not err in denying the motion for new trial based on juror misconduct.
(b) Newly discovered evidence
The trial court may grant a new trial "[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. . . ." (§ 1181, cl. (8).) "In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: '"1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits."' [Citations.]" (People v. Delgado (1993) 5 Cal.4th 312, 328.) The trial court may consider the credibility of the evidence was well as its materiality in determining whether introducing the evidence in a new trial would make a different result reasonably probable. (People v. Howard, supra, 51 Cal.4th at p. 43.)
To begin with, we agree with the trial court's observation that the letter from Jessica was not a declaration and was not sworn; thus, it was inadmissible. Absent a sworn declaration or witness, there was no newly discovered evidence. Nonetheless, defendant argues his counsel was ineffective for failing to seek a continuance of the hearing in order to obtain a proper declaration.
Assuming for purposes of argument the evidence was newly discovered and could not with reasonable diligence have been discovered earlier and produced at trial, we note that Jessica was not a credible witness and her most recent claim of providing false testimony was inconsistent with the stronger evidence that supported the verdict. Jessica had fled prior to the trial in an attempt to avoid testifying. She explained that she had done this because it was part of the rules of the game and because she had feelings for defendant and did not want to testify. She testified under oath that she was not being pressured to testify against defendant. Defendant had sent her a note while they were both being transported on a sheriff's bus which told her to claim that she had choked herself. In contrast to her claims in the letter to defense counsel, the 911 call she made, her interview with Sergeant Friesen, and the photographs of her injuries, all corroborated her trial testimony.
Based on the foregoing, even if the trial court had considered Jessica's recent claims refuting her trial testimony, it is not reasonably probable that a new trial would yield a different result. Thus, we conclude the trial court did not abuse its discretion in denying the motion for new trial.
Q. Admission of Uncharged Acts of Domestic Violence
In a supplemental letter brief filed on March 28, 2013, defendant raises the issue of whether the trial court erred in admitting the uncharged acts of domestic violence concerning defendant and relating to both victims. He further faults the trial court for failing to weigh the evidence under Evidence Code section 352 and failing to instruct the jury with CALCRIM No. 852. As was typical of his opening brief, defendant's supplement brief provides a cursory reference to the evidence and a limited legal analysis.
1. Additional Factual Background
Jennifer's testimony that defendant had beaten her on occasions prior to the incident in question was elicited during defense counsel's cross-examination. Jennifer testified about the three-hour incident when she went to a man's house where she smoked methamphetamine and had sexual contact with him. Defense counsel then questioned Jennifer as follows:
"Q. You had some conversations with Rene and you both speculate [defendant] is going to be mad at [you], right?
"A. Oh, yeah. I was thinking that because I've had incidents with him in the past before that where he beat me up before, and yeah, he would be mad.
"Q. Okay. So you're saying he's beat[en] you up in the past?
"A. But not like the way he did that night, but he's beat me up, yeah.
"Q. So is it okay that he beats you up sometimes and not others?
"A. No.
"Q. You're sure?
"A. Yeah, I'm sure."
The above questioning shows that the evidence of any prior domestic violence between defendant and Jennifer was limited, not specific, and introduced by defendant. Thus, there was no notice requirement on the part of the prosecution.
Regarding Jessica, she testified that in February 2011, defendant went with her to a hospital after he had beaten her. She was prostituting for him at the time. At defendant's direction, she told the hospital staff she had been kidnapped and brutally beaten by a man named "Matt" whom she had met. She provided the false information at defendant's direction because that was part of the rules of the game. She sought treatment because defendant told her to and because it was easier to get dates when one's face was not all bruised and swollen. In truth, Jessica had spent about a day and half with a man named Matt, who wanted to help her get away from prostitution but did not have the financial means to support her. They created a plan to tell defendant that she had been kidnapped and beaten; however, Jessica left Matt, called defendant, and confessed the plan was a lie. Defendant never objected to this evidence. Instead, on cross-examination, he used it to attack Jessica's credibility.
2. Analysis
The People argued the above evidence was not admitted pursuant to Evidence Code section 1108 or 1109, rather than Evidence Code section 1101, subdivision (b), or as evidence relevant to the nature of defendant and Jessica's ongoing relationship. In fact, when discussing jury instructions, the court and the prosecutor noted that no evidence was admitted pursuant to Evidence Code section 1108 or 1109. Accordingly, we summarily reject defendant's claim that the trial court erred in not sua sponte instructing the jury with CALCRIM No. 852 [Evidence of Uncharged Domestic Violence]. Nonetheless, as the People point out, the Bench Notes to CALCRIM No. 852 state that the court must give this instruction on request when evidence of other domestic violence has been introduced. The Bench Notes cite People v. Falsetta (1999) 21 Cal.4th 903, 924. Here, when discussing the jury instructions, the following exchange occurred:
"[THE COURT]: Now one thing that I neglected to talk to you about, [Evidence Code section] 852 is a Jury Instruction you requested that I didn't believe was appropriate to include and I didn't."
"[PROSECUTOR]: Okay. 852.
"THE COURT: Yes. Let me see what it was.
"[PROSECUTOR]: Evidence of Uncharged Domestic Violence. Yes. There. We didn't call those witnesses in. Yeah. That's out. I agree."
Defendant raised no objection, nor did he request that the instruction be included. Thus, any claim of error is forfeited. (People v. Dennis, supra, 17 Cal.4th at p. 514.)
Notwithstanding the above, defendant contends his counsel was ineffective for failing to raise these issues at the trial level. For defendant to prevail on this claim, he must show that defense counsel was not only deficient, but this deficiency was prejudicial. "A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687.)
With regard to the first component, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." (Strickland v. Washington, supra, 466 U.S. at p. 688.) He "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" (Id. at p. 689.) Here, as previously noted, the evidence at issue was not admitted pursuant to Evidence Code sections 1108 or 1109. Thus, any request for CALCRIM No. 852 would have been rejected. Counsel may not be criticized for not making a futile request. (People v. Hines (1997) 15 Cal.4th 997, 1038, fn. 5.) Because the challenged action may be reasonable, defendant has failed to establish that his counsel was constitutionally ineffective.
Furthermore, even if the failure of defendant's counsel to object fell below the requisite standard of reasonableness, he has failed to establish prejudice. To establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.) The defendant "must carry his burden of proving prejudice as a 'demonstrable reality,' not simply speculation as to the effect of the errors or omissions of counsel." (People v. Williams (1988) 44 Cal.3d 883, 937.) He has failed to do so. The evidence at issue was benign in the context of all the evidence presented against defendant. The evidence was neither lengthy nor particularly inflammatory when compared to the charged offenses. Despite having heard that defendant previously beat up Jennifer, or that he went with Jessica to the hospital after beating her in February 2011, it still acquitted defendant of two charges. Even if defendant's counsel had raised an objection to this evidence, or requested that the jury be instructed with CALCRIM No. 852, any possible prejudice of the jury hearing this evidence is insufficient to undermine confidence in the outcome of this case.
IV. DISPOSITION
The matter is remanded to the trial court with the following directions: The trial court clerk is directed to correct the January 13, 2012, minute order to reflect that the court imposed a sentence of life with the possibility of parole on count 7; and the trial court is directed to correct the abstract of judgment to reflect that defendant received a sentence of life with the possibility of parole on count 7, and to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur: KING
J.
MILLER
J.