Opinion
NOT TO BE PUBLISHED.
San Mateo County Super. Ct. No. SC064190A
Richman, J.
Defendant Mario Aaron Martinez-Delgado was charged by information with committing four offenses on or about July 1, 2007, on a minor named as Jane Doe—three felonies and a misdemeanor. At the conclusion of the prosecution’s case-in-chief, the trial court granted the defense motion to dismiss the charge of assault with intent to commit a lewd or lascivious act upon a minor under the age of 14 (Pen. Code, §§ 220, 288) In accordance with the court’s instructions, the jury convicted defendant of one of the two charges that he violated Penal Code section 288: the count charging that he committed a lewd or lascivious act upon Jane Doe “by use of force, violence, menace, or fear” within the meaning of Penal Code section 288, subd. (b)(1). The jury acquitted defendant of the same charge without the “force, violence, menace, or fear” component. The jury also found defendant guilty of the misdemeanor charge of falsely imprisoning Jane Doe without violence, menace, fraud, or deceit (Pen. Code, §§ 236, 237, subd. (a)). The trial court sentenced defendant to state prison for the mitigated term of three years on the felony count, and to time served on the misdemeanor.
Defendant contends the trial court erred in “improperly excluding evidence” showing that (1) no prior complaints of misbehavior with children had been made against him, and (2) when arrested he had no criminal record up to the time of the Jane Doe charges. We conclude that both claims have merit because the record cannot sustain the trial court’s in limine ruling which precluded defendant from telling the jury that this was his first encounter with the criminal justice system. Nevertheless, we also conclude that the errors were not prejudicial, and we affirm.
BACKGROUND
Although the case was vigorously contested at trial, matters have been considerably simplified for purposes of this appeal. The number of charges has been halved, and defendant does not claim here that the evidence introduced was insufficient to support the jury’s verdicts. Thus, the following narrative will suffice:
Defendant was born in Mexico, where his family lives, and where he returns to live with them for about four months every year. During the other eight months he was in this country, defendant worked six days a week as a push-cart vendor of ice cream. The location he worked was chosen by his employer, who also provided the apartment where defendant lived with seven other vendors.
On the afternoon of July 1, 2007, defendant was pushing his ice cream cart through a neighborhood in San Mateo, an area where defendant was a familiar figure. Accompanied by her sister, Jane Doe approached defendant without fear because “he used to give me ice cream for free.” This time Jane Doe had money, but defendant told her he would give her the ice cream for free if she gave him a kiss. Jane Doe said no, but defendant grabbed her by her arms, pulled her towards him, and kissed her. During the kiss, defendant put his tongue inside her mouth. Defendant called her “Mi Amor.” Once able to pull free, Jane Doe ran home crying and told her mother what had happened.
The mother notified police. The officer who first spoke with Jane Doe described her as “hysterical.” Jane Doe provided a description of defendant, and he was quickly apprehended.
Defendant initially told police that what happened was “he inadvertently head butted one of the sisters as they were looking down into the ice cream cart,” but he had not kissed the girl. Following his arrest, when defendant was questioned at the San Mateo jail, he first said nothing had happened; then he admitted he kissed Jane Doe on her cheek; and finally he acknowledged kissing her on her mouth, but only after she asked for a kiss.
Defendant’s version at trial was that he did ask Jane Doe for a kiss. “She gave it to me and left.” Defendant did not grab her, and although he did kiss her on her lips, he did not stick his tongue into her mouth. When asked if had “any sexual feelings” for Jane Doe, defendant replied, “Never. No. That would be horrible. Never.” Defendant admitted that his initial explanation to police was untrue, but this was because he was nervous.
The gist of the defense’s closing argument was that defendant had done something inappropriate, but there was no lewd or lascivious intent, as shown by the setting: “This is not something done in secret.... It was done on a public street on July 1st, late afternoon.... No place to run. No place to hide. No place to have this lewd act covered up. People are looking out of their windows. People driving by in their cars. It just isn’t the place that somebody is going to commit a lewd act on a child. [¶]... [¶] The reasonable inferences that you can draw from the circumstantial evidence of where this took place, and what he did afterwards, and the fact that he had nowhere to run, nowhere to hide, nowhere to go. He had his cart. What was he going to do? [¶]... [¶] There’s no evidence of a lewd intent on his part because of the circumstances of where this happened and how it happened and the fact that he was going to be coming back to that neighborhood everyday, and there’s no ‘Don’t tell anybody about this. Don’t you tell anybody. Let this be our secret.’ There was none of that.”
The jury deliberated less than two hours before returning its verdicts.
DISCUSSION
Because both of defendant’s contentions stem from an in limine motion filed by the prosecution, it will simplify matters to discuss that motion and related proceedings at the outset.
The prosecution’s motion was entitled “Motion In Limine to Prevent the Introduction of Evidence of Defendant’s Lack of Criminal Record or Other Evidence for the Purpose of Jury Nullification Pursuant to Evidence Code Sections 402 and 352.” The motion covered a number subjects—nine in all—most of which were unexceptional and not relevant here. With respect to the two subjects that are relevant on this appeal, the prosecution took the position that the absence of prior complaints about defendant or his lack of a criminal record was “opinion and reputation evidence pertaining to Defendant’s character” governed by Evidence Code section 1102. The prosecution thus “move[d] to exclude any statements or evidence of Defendant’s character traits unrelated to the charged offenses [and] further requeste[d] that the court require Defendant... to conduct an evidentiary hearing pursuant to... Evidence Code Section 402 prior to the introduction of any evidence under Evidence Code Section 1102 in order for the court to determine any relevancy and undue prejudice of the proffered testimony.”
The subjects of the motion included, for example, defendant’s immigration status; that “the victim’s sexual history” is “irrelevant and should be omitted”; and that the jury should be instructed not to consider punishment.
But one other matter arose in chambers. Its first mention on the record came in the following remarks by the prosecutor:
“MR. FITZGERALD: Judge, there was... one remaining 402 issue discussed in chambers, but not pled by either party.
“Mr. Chase [defense counsel] indicated a desire to reference the fact that the defendant had for the last ten years been operating an ice cream business and never had a problem with any other children. And the People had some objection to any evidence in that realm coming into evidence because it’s irrelevant and also unduly prejudicial to this specific charged case.
“The People would be requesting a motion to exclude any reference by the defense attorney, any witnesses or any argument concerning the absence of any other victims or any other complaining witnesses.
“THE COURT: I think that’s appropriate.
“MR. CHASE: If I may. Mr. Martinez-Delgado has been the ice cream vendor in this neighborhood for seven years. Has sold ice cream to Jane Doe and her sisters on numerous occasions prior to this. He’s well known in the neighborhood.
“THE COURT: I didn’t exclude that, Mr. Chase.
“MR. CHASE: Okay. So—and I believe that in summation, I can certainly argue to the jury that there’s no evidence of any behavior on his part with any of these children at any time or any children in the neighborhood prior to this.
“THE COURT: I will think about it. I’m going to take that under submission.
“MR. CHASE: Okay.
“THE COURT: Don’t refer to it in any jury selection or opening statements, please. At least the latter part about no prior complaints or whatever.
“MR. CHASE: I won’t do it. I will do it using proverbs.
“THE COURT: Doing it in proverbs?
“MR. CHASE: Not the Bible.
“THE COURT: Are we biblical?
“MR. CHASE: Not in the book of the Bible, but there is a question that I ask jurors that has to do with a proverbial statement, which is do you—what do you think of the statement that ‘a leopard can never change its spots.’
“THE COURT: I think that’s sufficiently obtuse, so you can go ahead and do that, Mr. Chase.
“MR. CHASE: Thank you.”
Jury selection was not reported, so we presume that defense counsel complied with the court’s ruling. Defense counsel’s opening statement was reported, but the closest he got to the subject was when—without drawing an objection from the prosecution—he mentioned that defendant was “well known to the people in that neighborhood.” There was no further mention of either the prosecution’s motion, or the absence of prior complaints against defendant prior to the start of the prosecution’s case-in-chief.
Defendant was asked on direct examination about his state of mind when he was first halted on the street: “How did you feel when the police officer approached you?” His response: “Nervous. I don’t know. I never had problems... [¶]... [¶] With the police” was interrupted by the prosecutor interjecting “Objection. Move to strike.” The trial court sustained the objection and granted to the motion to strike “as to the last part of the answer.”
During closing argument, defense began developing the theme of how defendant was “a fixture” in the neighborhood. “He sells ice cream in large part to little kids. Did you hear one witness come in and testify that in all the years or time that he was selling ice cream in that neighborhood that he attacked a child?” The prosecutor immediately objected “402 ruling. Motion to exclude. [¶]... [¶] Move to strike the last statement of Mr. Chase.” The trial court sustained the objection and granted the motion to strike.
We now turn to defendant’s claims.
The Trial Court’s Rulings Were Erroneous, But Not Prejudicial
The subjects of defendant’s contentions have generated a congeries of clashing arguments. Defendant begins by arguing that he was “improperly precluded both from introducing evidence and from arguing to the jury that no prior complaints had been brought against him for improper conduct with children.” Defendant goes on that this category of evidence is not made inadmissible by Evidence Code section 1102, and cannot have been excluded as unduly prejudicial within the accepted meaning of Evidence Code section 352. The Attorney General responds that the merits of defendant’s argument were not preserved for review because defendant failed to make the offer of proof required by Evidence Code section 354, subdivision (a). In a similar vein, the Attorney General asserts that defendant would have been incompetent to testify himself as to any prior lack of complaints. Finally, the Attorney General argues that even if the ruling was error, defendant cannot establish that it was prejudicial to him. Defendant argues that if any act or omission of his trial counsel precludes us examining the merits, then he has a claim for ineffective assistance of counsel.
At the outset, we note that—notwithstanding certain gaps in our knowledge—the type of evidence defendant apparently wanted to introduce may, in general, be admissible. According to our Supreme Court:
“Evidence Code section 1101, subdivision (a) declares the general rule that ‘evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.’ Section 1102 of the same code (hereafter section 1102) provides the exception that defendant here sought to invoke: ‘In a criminal action, evidence of the defendant’s character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is: [¶] (a) Offered by the defendant to prove his conduct in conformity with such character or trait of character.’ This exception allows a criminal defendant to introduce evidence, either by opinion or reputation, of his character that is ‘relevant to the charge made against him.’ [Citation.] Such evidence is relevant if it is inconsistent with the offense charged... and hence may support an inference that the defendant is unlikely to have committed the offense. In appropriate cases, such circumstantial evidence ‘may be enough to raise a reasonable doubt in the mind of the trier of fact concerning the defendant’s guilt.’ [Citations.]
Subdivision (b) of section 1102 deals with the converse of subdivision (a), that is when “evidence of the defendant’s character or a trait of his character” is “[o]ffered by the prosecution to rebut evidence adduced by the defendant under subdivision (a).”
In its first modern decision in this area, our Supreme Court explained the relevancy of such evidence: “In the determination of probabilities of guilt, evidence of character is relevant. [Citations.] ‘The purpose of the evidence as to the character of the accused is to show his disposition, and to base thereon a probable presumption that he would not be likely to commit, and, therefore, did not commit, the crime with which he is charged.’ ” (People v. Jones (1954) 42 Cal.2d 219, 223-224.) As more tersely stated in a contemporary treatise: “We assume that persons typically act ‘in character.’ On that assumption, a person’s good character decreases the probability that he would commit a criminal act.” (Imwinkelried & Garland, Exculpatory Evidence (3d ed. 2004) § 9-2.a, p. 307.)
“We recently held that a defendant charged with child molesting may introduce such character evidence by means of opinion testimony of an expert witness. (People v. Stoll (1989) 49 Cal.3d 1136.) Following our decision in People v. Jones (1954) 42 Cal.2d 219, 222-225, we held in Stoll that in a child molestation case (1) the fact that the defendant is not a sexual deviant is a relevant character trait within the meaning of section 1102, and (2) the statute allows a defendant to prove that trait by the opinion testimony of an expert witness.” (People v. McAlpin (1991) 53 Cal.3d 1289, 1305-1306, (McAlpin).)
The court in Stoll stated its holding as follows: “We decide whether a criminal defendant charged with committing lewd and lascivious acts upon a child may introduce a psychologist’s opinion testimony, based upon an interview and professional interpretation of standardized written personality tests, that defendant displays no signs of ‘deviance’ or ‘abnormality.’ Under existing laws and the facts of this case, the evidence bears on a defense claim that the charged acts did not occur. Professional testimony regarding the absence of sexual deviance also is authorized under statutory rules permitting a criminal defendant to introduce evidence of his ‘good character.’ ” (People v. Stoll, supra, 49 Cal.3d 1136, 1140.)
The Supreme Court went on to hold that lay opinion could be admissible under section 1102 if it was based on the witness’s personal knowledge or observation of the defendant’s conduct and behavior. The court explained how this holding applied to the evidence at issue:
“In the case at bar we apply this rule to the proposed testimony of defendant’s three... character witnesses that in their opinion defendant is not a ‘sexual deviant,’ i.e., in the words of defendant’s offer of proof, ‘a person of lustful or lewd conduct with children.’ The proposed opinion testimony of the male character witness to this effect was not based on personal observation of defendant’s ‘conduct with the children’; under the foregoing cases, therefore, the trial court did not abuse its discretion in disallowing his testimony. To the extent that the same opinion of the women character witnesses was based on their private sexual experiences with defendant rather than on their observation of his behavior with their daughters, the trial court could disallow it for the same reason.
“The opinion of the women character witnesses, however, was also based on their observation of defendant’s conduct with their daughters. According to the offer of proof, the women proposed to testify that in the course of their relationship with defendant they observed his conduct with their daughters and saw no unusual behavior either by defendant or by their daughters, and that it is their opinion, based on those personal perceptions, that defendant is not a person given to lewd conduct with children. Because the latter conclusion of the witnesses was based on their direct observation of defendant’s behavior with their daughters, it was both a proper subject of lay opinion testimony and relevant to the charge of child molestation. Indeed, the People do not claim otherwise. Rather, the People claim the testimony was inadmissible on a wholly different ground, i.e., that its admissibility would have violated the rule against proving a character trait of the accused by means of specific acts. [Citations.] The trial court so ruled and the Court of Appeal agreed, but we do not.
“A fair reading of the offer of proof shows that the women witnesses would not have limited their testimony to specific instances in which defendant had the opportunity to, but did not, molest their daughters. Instead, the witnesses proposed to testify that they observed defendant’s behavior with their children throughout the course of their relationship with him, and their opinion that he is not a person given to lewd conduct with children arose from that experience as a whole. Thus viewed, the proffered testimony was intended to prove the relevant character trait not by specific acts of ‘nonmolestation,’ but by the witnesses’ opinion of that trait based on their long-term observation of defendant’s course of consistently normal behavior with their children. The trial court should have allowed the testimony.” (McAlpin, supra, 53 Cal.3d 1289, 1308-1310, fns. omitted.)
It is apparent that the Supreme Court in McAlpin had the benefit of a recorded offer of proof that allowed appellate review. We do not have that benefit. Nevertheless, we will not accept the Attorney General’s argument that this absence is fatal to defendant’s obtaining review of the merits.
“When a trial court denies a defendant’s request to produce evidence, the defendant must make an offer of proof in order to preserve the issue for consideration on appeal. Evidence Code section 354 states the rule: ‘A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: [¶] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means....’ [¶]...[¶]
“ ‘ “ ‘Before an appellate court can knowledgably rule upon an evidentiary issue presented, it must have an adequate record before it to determine if an error was made.’ [Citation.].” [Citation.] “The offer of proof exists for the benefit of the appellate court. The offer of proof serves to inform the appellate court of the nature of the evidence that the trial court refused to receive in evidence.... The function of an offer of proof is to lay an adequate record for appellate review....” [Citation.]’ ” (People v. Foss (2007) 155 Cal.App.4th 113, 126-127.) On the other hand, our Supreme Court has repeatedly stated that the purpose of an offer of proof is to “ ‘inform the trial court of the “purpose, and relevance of the excluded evidence....” ’ ” (People v. Valdez (2004) 32 Cal.4th 73, 108, italics added.)
Here, although we do not have a detailed offer of proof preserved in the record on appeal, that is not to say that the trial court was likewise necessarily in the dark. It appears from the excerpts of the record quoted above that the matter of the prosecution’s motion was discussed in chambers. It also appears that the precise subject of defendant’s contention was described by the prosecutor—without challenge from defense counsel—as an “issue discussed in chambers, but not pled by either party.” The prosecutor then stated the substance of what the defense sought to introduce. Defense counsel did not quarrel with that characterization, and the trial court seemed to be familiar with the nature and purpose of the evidence defendant wanted to introduce. It thus appears that the trial court was armed with the benefits intended by Evidence Code section 354. Although it was unfortunate that effort was not taken to ensure that this court enjoyed a comparable level of knowledge, we will not treat this omission as disqualifying defendant from getting review of the merits.
Nevertheless, the dearth of detail in the record does saddle defendant with at least one distinct disadvantage, namely, we do not know how his trial counsel proposed to establish that defendant had never been the subject of a complaint of misconduct with children. And when the prosecutor objected during closing argument on the basis of “402 ruling,” one might conclude that the reference was to a ruling made at the conclusion of the evidentiary hearing held in accordance with Evidence Code section 402. But there is no transcript of such a hearing in the record. Counsel does not explain in his briefs for this appeal what means were to be employed to inform the jury that there was no instance of prior misconduct with children by defendant.
Even so, some informed speculation is feasible. It seems unlikely that, as a person accused for the first time and sitting in the county jail, defendant received the type of professional attention that would lead to expert opinion of the types considered in People v. Stoll, supra, 49 Cal.3d 1136, and People v. Jones, supra, 42 Cal.2d 219. It is even more problematic to assume that defense counsel intended to introduce lay opinion what would satisfy McAlpin. To do that, counsel would have needed a parade of parents and/or children who would testify from personal knowledge that would not be founded on the anecdotal. On the other hand, such an intent might explain the prosecutor anticipating difficulties with the defense proof being “irrelevant and also unduly prejudicial.” If this was the means defense counsel planned to use to establish that no similar complaint had ever been lodged against defendant, the unreported in-chambers discussion may have convinced counsel that his plan was either legally flawed or logistically unrealistic, and in any event did not seem to have found favor with the trial court.
However, there appear to be no problems with other avenues to the same goal. One way in which the information could have been brought before the jury would be to have the custodian of records for the San Mateo police testify whether there was any record with defendant’s name on it. Because the only interest would be the simple existence or nonexistence of reported complaints, the ordinary concerns of hearsay entries in most police-report-as-business-record situations would not be presented. (Evid. Code, §§ 1270-1271; Gov. Code, § 6254; Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 126.) Most pertinently for defendant, the absence of a report would be evidence that he had not been the subject of an official criminal investigation. (Evid. Code, § 1272, subd. (a); People v. Torres (1962) 201 Cal.App.2d 290, 296-297; Fed. Rules Evid., rule 803(7), 28 U.S.C.)
If both sides agree, the information could be in the form of an affidavit or declaration (see People v. Dickinson (1976) 59 Cal.App.3d 314, 319-320), or a stipulation.
Although the Attorney General suggests that defendant himself may have lacked competence “to testify as to [the] lack of complaints,” this depends on how the question is framed. If, as the Attorney General suggests, defendant was asked whether any complaints of molesting children had been made against him, he would obviously not be competent to testify about such a matter, particularly if a complaint was made but the police, for whatever reason, took no action on it that came to defendant’s attention. However, if the question is a direct and more precise interrogatory directed to defendant—such as “Have you ever been arrested by the San Mateo police?” or, even more broadly, “Have you ever been questioned by San Mateo police?”—his competence to answer could hardly be doubted.
Although it may not satisfy the most fastidious definition of relevance, or square with every corner of Euclidian logic, the connection between innocence and the absence of dealings with law enforcement is readily made—and easily grasped. (See, e.g., People v. Champion (1995) 9 Cal.4th 879, 926 [noting argument “suggesting that Reed and Brown were innocent because they had no criminal record”].) But it is a connection that is easily snapped by the argument “There’s a first time for every criminal.” It is similarly vulnerable to the riposte that “Just because he’s never been arrested before does not mean that he can’t be guilty of this charge.” And proof that the defendant here did have a prior record would of course be lethal.
But we believe it not unreasonable to assume that pretrial discovery had confirmed to defense counsel that defendant had no prior arrests, and may have also shown the total absence of complaints to police of defendant acting inappropriately with children.
Thus, we are driven to conclude that evidence of defendant’s lack of a criminal history was certainly relevant. (See McAlpin, supra, 53 Cal.3d 1289, 1305; fn. 2, ante, and authorities cited.) Indeed, we are hesitant to accept that California law will not permit a criminal defendant to testify at trial that, prior to the instant proceeding, he or she had never been arrested or investigated by the police. (See, e.g., U.S. v. Scheffer (1998) 523 U.S. 303, 308 (plurality opn.) [referring to criminal defendant’s “right to present relevant evidence”]; Rock v. Arkansas (1987) 483 U.S. 44, 50-53 [criminal defendant has a right to testify in his or her defense].) The Attorney General appears to think it a metaphysical impossibility to “convert the absence of evidence into evidence,” but this is merely artful phrasing. A more simple—and more accurate—way to characterize the situation is to speak of evidence concerning the absence or non-occurrence of a specific type of event perceivable to the senses. Such events are no different than an accused testifying about never previously having been either arrested or “in trouble with the law.” Certainly there can be no dispute that such matters are within the accused’s personal knowledge and competence. (Evid. Code, §§ 700, 702; People v. Lewis (2001) 26 Cal.4th 334, 356-357; McAlpin, supra, 53 Cal.3d 1289, 1308-1310.) And, because evidence of the absence of arrests and/or criminal history for defendant should have been admitted, it follows that defense counsel would be entitled to refer to it in argument. (See People v. Gray (2005) 37 Cal.4th 168, 216; People v. Dennis (1998) 17 Cal.4th 468, 522; People v. Farmer (1989) 47 Cal.3d 888, 922.)
However, we cannot conclude that these errors—individually or collectively—were prejudicial. We are dealing with a species of character evidence (see fn. 2, ante) which possesses a robustness that, since 1872, has been “sufficient to create a reasonable doubt of guilt.” (People v. Jones, supra, 42 Cal.2d 219, 224, citing People v. Ashe (1872) 44 Cal. 288, 291 [“The good character of the prisoner, when proven, is itself a fact in the case—it is a circumstance tending, in a great or less degree, to establish his innocence”].) However, that robustness can be illusory. Such is the case here, because defendant admitted that he had behaved inappropriately with Jane Doe. Thus, he was not able to invoke an unimpeachable history of conduct around children to convince the jury that he had departed from that history. The only question left to the jury was whether defendant’s admitted inappropriate behavior was done with force and the intent proscribed by Penal Code section 288.
Ordinarily, that question would be resolved by the jury deciding whether the prosecution or the defense version was the more credible, whose witnesses were found more believable. The testimony that Jane Doe was found in a state of hysteria when the responding officer spoke to her at home shortly after the incident could be accepted by the jury as discrediting defendant’s version that the incident was utterly benign and consensual. Her agitation would also reinforce her testimony that force had been used. And defendant testified that it was he who initiated matters by asking Jane Doe for a kiss. On the other hand, perhaps the most potent argument for the defense was counsel’s rhetorical question whether a child molester would in fact do such a shameful act in the middle of the day, in a neighborhood where he was regularly seen, while he was afoot and could be easily apprehended, and when he made no attempt to escape or flee from the area. But defendant’s apparently clean record (see fn. 5, ante) would do nothing to bolster the logic or force of that argument, not in light of his testimony that his conduct had strayed from the perfect. Nor would it be seen as compatible with the increasingly inculpatory versions of the incident defendant provided to police once he was taken into custody. If the jury found Jane Doe’s testimony more credible than defendant’s, that election would obliterate any assistance that proof of his heretofore clean record might have provided.
In light of the foregoing, the odds clearly favored the prosecution. Even if defendant had been permitted to present evidence and argument of a blameless history, the odds would not have been appreciably reduced, because defendant had already told the jury that on July 1, 2007, he had in effect acted contrary to that history. After a full examination of the record, we perceive no reasonable probability that the jury would have returned a more lenient verdict. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment of conviction is affirmed.
We concur: Kline, P.J., Lambden, J.