Opinion
G056473
10-22-2019
THE PEOPLE, Plaintiff and Respondent, v. ERNESTO MEJIA, Defendant and Appellant.
David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Kristine A. Gutierrez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 15CF2770) OPINION Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals, Judge. Affirmed. David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant was convicted of raping his wife's cousin Marina while she was unconscious. On appeal, he contends: 1) the trial court erroneously admitted evidence he sexually assaulted Marina on a prior occasion; 2) the police violated his Miranda rights (see Miranda v. Arizona (1966) 384 U.S. 436 (Miranda)); and 3) the prosecutor committed prejudicial misconduct in closing argument. Finding these contentions unmeritorious, we affirm the judgment.
FACTS
On Saturday, September 19, 2015, Marina was living in Temecula. As she often did on weekends, she drove to her brother Manuel's house in Santa Ana to socialize with him. In addition to Manuel, several members of Marina's extended family lived at the house, including her cousin Jennifer and Jennifer's husband, appellant.
That night, Marina and Manuel visited several bars with Manuel's girlfriend Jazmin and two of Manuel's other friends. Everyone in the group was drinking, and Marina had at least six alcoholic beverages over the course of the evening. By her own admission, she was drunk when the group returned to Manuel's house at around 2:00 a.m. However, she was not so intoxicated as to be oblivious to what was going on around her.
Not long after the group arrived back at the house, Marina passed out on the living room couch. Then Manuel's friends left, and Manuel and Jazmin went to bed in his room. The only other person home at the time was appellant. Everyone else who lived there, including appellant's wife Jennifer, was in Tijuana for an overnight visit.
At the time, Marina was wearing a dress with Spanx shorts underneath.
At about 4:00 a.m., Marina awoke on the couch to find appellant raping her. She was lying on her back, with her legs draped over one end of the couch, and appellant was standing between her legs with his penis inside her vagina. Shocked to see what was going on, Marina kicked appellant and rolled off the couch. She then found her Spanx on the floor, put them on under her dress, ran to Manuel's bedroom and began banging on his door.
When Manuel and Jazmin opened the door, Marina was crying and upset and said appellant had taken advantage of her. As she was talking, appellant came over and insisted Marina was "drunk and crazy" and did not know what she was talking about. He then gave Manuel and Jazmin his side of the story. According to appellant, he heard a loud noise in the bathroom next to Manuel's room. When he went to investigate, he saw Marina lying in the bathtub with the shower curtain draped over her. He tried to help her up, but when he did so, she became hysterical and ran to Manuel's room.
Still half asleep and somewhat drunk, Manuel and Jazmin didn't know what to make of the situation. After Marina called a friend to pick her up, they went back to sleep in Manuel's room. Neither of them noticed anything amiss in the bathroom when they awoke later that morning.
That day, Sunday, Marina worked her scheduled shift at a retail store in Temecula. She also texted Jennifer to tell her appellant had tried to rape her. But Jennifer did not believe her so she called the police and reported the incident to them. She also underwent a forensic medical examination that revealed no significant findings.
At trial, Marina testified she never would have consented to having sexual intercourse with appellant on the couch that night because she did not like him. She said her dislike of appellant stemmed from the fact he tried to sexually assault her on her birthday in December 2013, roughly two years before. On that occasion, Marina and Manuel returned to Manuel's house after a night of drinking. They were asleep in Manuel's bedroom - with Manuel in his bed and Marina on a mattress on the floor - when appellant entered the room and pulled down Marina's pants and underwear. As he was doing so, Marina woke up and told appellant to leave her alone. She also tried to wake up Manuel, but he could not be awakened from his drunken slumber. Marina did not tell anyone about that incident because she was hoping to avoid problems in her family. But this rape had convinced her to reveal the truth about her history with him.
Appellant did not testify at trial. However, the jury did get to hear his interview with the police, which occurred on the same day Marina made her police report. During the interview, appellant elaborated on the story he told Manuel and Jazmin in the wake of the incident. He said that after finding Marina in the bathtub, he helped her onto the couch in the living room and told her to lie down. Drunk as she was, Marina had difficulty doing that, so he grabbed her legs to help her out. At that point, Marina proclaimed, "What the fuck?" and accused him of trying to take advantage of her. She then called appellant a pig and ran off to Manuel's room in a huff.
Believing there was more to the story, the interviewing officers asked appellant if it was possible he had consensual intercourse with Marina. Appellant then supplied the officers with further information. He claimed that while he was helping Marina get situated on the couch, she kissed him and urged him to have sex. He told her that would cause problems with his wife, but Marina assured him she would not tell anyone. He then pulled out his penis and inserted the tip of it into Marina's vagina. Marina was "wet" and "moaning" in anticipation, but appellant was unable to achieve an erection, so he gave up after less than a minute of intercourse. This made Marina very angry. When she realized appellant was not going to be able to "finish" what he had started, she ran to Manuel's room and accused him of raping her.
Throughout the interview, appellant denied that accusation, even though the officers expressed doubt about his claim that Marina wanted to have sex with him. Appellant also denied Marina's claim about the prior incident in 2013 that allegedly occurred in Manuel's bedroom. While admitting he always found Marina attractive, appellant insisted he never did anything inappropriate toward her.
The jury convicted appellant of raping Marina while she was unconscious (Pen. Code, § 261, subd. (a)(4)) and acquitted him of raping her while she was intoxicated (id., subd. (a)(3)), which was charged as an alternative offense. The trial court sentenced appellant to six years in prison for his actions.
DISCUSSION
Appellant's Prior Misconduct
Appellant contends the trial court erred in allowing Marina to testify about the 2013 incident in which appellant tried to sexually assault her in Manuel's bedroom, hereafter referred to as the bedroom incident or the prior incident. He contends this testimony was irrelevant and unduly prejudicial, but we uphold the trial court's decision to admit it.
Pursuant to Evidence Code Section 1101, evidence of the defendant's prior misconduct is generally inadmissible to prove his propensity to commit the charged offense. (Evid. Code, § 1101, subd. (a).) However, such evidence is admissible if it is relevant to prove some fact other than propensity, such as motive or intent. (§ 1101, subd. (b).) In addition, section 1108 permits propensity evidence in sex offense prosecutions if not otherwise barred by section 352. Under section 352, the trial court must weigh the probative value of the challenged evidence against "'the dangers of prejudice, confusion and undue time consumption. Unless these dangers "substantially outweigh" probative value, the objection must be overruled.' [Citation.]" (People v. Hart (1999) 20 Cal.4th 546, 606.)
All further statutory references are to the Evidence Code.
The trial court's decision to admit evidence of the defendant's prior misconduct under these provisions is reviewed under the deferential abuse-of-discretion standard. (People v. Foster (2010) 50 Cal.4th 1301, 1328-1329.) We will not reverse that decision unless the trial court acted in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (Ibid.)
In this case, the trial court addressed the admissibility of the bedroom incident on two separate occasions. Before trial, the court ruled the prosecution could present evidence regarding that incident because it was relevant to the nature of appellant and Marina's relationship, which bore on the issues of intent and lack of consent. After the evidentiary phase of trial, the court examined the issue again during a conference on jury instructions. The court decided the jury could not use the bedroom incident as propensity or character evidence pursuant to section 1108. However, it could use the incident to conclude appellant acted with the required mental state for the charged offenses. (§ 1101, subd. (b).) It also permitted the jury to use the evidence to find appellant had a motive to commit the charged offenses and that his actions were not the result of mistake or accident. (Ibid.)
Appellant argues that because the primary issue at trial was whether Marina consented to having intercourse with him, the bedroom incident had no logical bearing on his intent or mental state. We disagree.
Respondent contends appellant forfeited this argument by failing to raise it below. However, it is clear from the record that appellant opposed the admission of the bedroom incident evidence on any grounds set forth in section 1101, subdivision (b), including intent. Therefore, the forfeiture rule does not apply.
Rape is a general intent crime that requires proof the defendant had sexual intercourse with the victim against her will, i.e., without her consent. (People v. DePriest (2007) 42 Cal.4th 1, 48; People v. Key (1984) 153 Cal.App.3d 888, 898.) In determining the issue of consent, the focus is not on the defendant's subjective intentions, but the victim's state of mind. (People v. Key, supra, 153 Cal.App.3d at p. 898; People v. Bruce (1989) 208 Cal.App.3d 1099, 1104.) That's why evidence of the defendant's prior sex crimes against third persons is generally inadmissible on the issue of consent in rape cases; such evidence simply has little bearing on whether the present victim acquiesced to the defendant's sexual advances. (Ibid.; People v. Tassell (1984) 36 Cal.3d 77, 88, fn. 7, overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 398-402 (Ewoldt).)
Here, however, the prosecution did not try to prove intent/lack of consent by showing appellant committed a prior sex crime against a third person. Rather, it attempted to prove that issue by showing appellant had previously tried to sexually assault this victim. In this context, the prior incident had particular relevancy because Marina testified that incident made her dislike appellant - thus making it much less likely she consented to having sexual intercourse with him in this case. In other words, the prior incident had direct bearing on the central issue of whether appellant had sexual intercourse with Marina against her will, as she alleged at trial.
The prior incident was also relevant to appellant's motive. During his police interview, appellant admitted he always found Marina attractive. The fact he was unable to have his way with her on the prior occasion arguably fueled his desire to take advantage of her in the future. The persuasiveness of that argument was a matter for the jury to determine.
The court's final basis for admitting the bedroom incident evidence - to show absence of mistake or accident - was also legally sound. With respect to the alternative charge of raping an intoxicated person, the trial court instructed the jury appellant was not guilty of that offense if he actually and reasonably believed Marina consented to having sexual intercourse with him, even if that belief was wrong. The fact appellant tried to sexually assault Marina on a prior occasion lessened the likelihood that appellant mistakenly construed her actions in this case as giving him the green light for sex. Therefore, the prior incident was relevant for that purpose as well.
Respondent argues the bedroom incident was also relevant to the knowledge element of the charge of rape of an unconscious person because it proved appellant knew Marina was unable to resist his sexual advances when she was sleeping. The problem with this theory is that Marina actively resisted appellant during the bedroom incident. This indicates appellant was not a good judge of when Marina was incapacitated in her sleep.
Still, appellant contends the prior incident was unduly prejudicial because it involved an uncorroborated claim of misconduct by the very same person he was charged with victimizing in the present case. In his view, the complaining witness in a he said/she said case such as this should not be permitted to boost her own testimony by making additional allegations of misconduct against the defendant that are unsubstantiated. Support for this position can be found in People v. Stanley (1967) 67 Cal.2d 812 (Stanley), which observed, "[W]here the basic issue of the case is the veracity of the prosecuting witness and the defendant as to the commission of the acts charged, the trier of fact is not aided by evidence of other offenses where that evidence is limited to the uncorroborated testimony of the prosecuting witness." (Id. at p. 817.)
However, the Stanley decision was the product of another time and was repudiated by the Supreme Court in Ewoldt, supra, which concluded Stanley was "based upon the [false] premise that the sole purpose in admitting evidence of uncharged misconduct is to corroborate the testimony of the complaining witness." (Ewoldt, supra, 7 Cal.4th at p. 407.) While acknowledging "uncorroborated testimony by the complaining witness concerning the defendant's uncharged misconduct may have less probative value than testimony that is corroborated or testimony provided by a third party," Ewoldt determined such uncorroborated testimony "may be admitted to prove any fact material to the prosecution's case" subject to the considerations set forth in section 352. (Ibid.)
Applying this framework in Ewoldt, the Supreme Court upheld the admission of the victim's testimony that the defendant had molested her on numerous occasions other than those forming the basis for the charged offenses. Even though that testimony was uncorroborated, Ewoldt determined it was relevant to place the charged offenses in context, i.e., to show when the molestation began. (Ewoldt, supra, 7 Cal.4th at p. 408.) Furthermore, the testimony was not unduly prejudicial because it was no more inflammatory than the evidence pertaining to the charged offenses. (Ibid.)
Likewise here, the prior incident of sexual misconduct Marina recounted in her testimony was important in terms of putting the charged offenses in context. In particular, the incident enabled the jury to understand the acrimonious relationship that existed between appellant and Marina, which was relevant to the central issue of consent. As explained above, the incident was also relevant to the issues of motive and absence of mistake.
Equally important, the prior incident was not confusing, unduly remote, or any more inflammatory than the charged offense. Therefore, "its additional prejudicial effect was minimal. For the same reason[s], it was unlikely the jury would return a guilty verdict based upon the uncharged misconduct rather than the charged offenses. Indeed, it gave the defense a second story in which to poke holes, a second chance to undermine the complainant's credibility. Accordingly, the trial court did not abuse its discretion in admitting [Marina's] uncorroborated testimony regarding [appellant's] uncharged misconduct." (Ewoldt, supra, 7 Cal.4th at p. 408.)
Miranda Issue
Appellant also contends the trial court erred in denying his motion to exclude his police interview on Miranda grounds. Although he does not dispute the beginning of the interview was consensual, obviating the need for a Miranda advisement at that time, he claims the interview morphed into a custodial interrogation when it turned accusatorial, thus requiring the officers to read him his Miranda rights. The record does not support this claim, however, so we affirm the trial court's decision to admit appellant's interview into evidence.
The sole issue at the Miranda hearing was whether appellant was in custody for Miranda purposes when he was interviewed by the police. At the hearing, Santa Ana Police Officer Jaime Rodriguez testified to the circumstances surrounding the interview. He said he was dispatched to appellant's house at approximately 10:00 p.m. on Sunday, September 20, 2015, less than 24 hours after the incident between appellant and Marina. Rodriguez's responsibility was to act as a translator between appellant, whose primary language is Spanish, and the main investigator David Thai, who speaks only English. Upon arriving at the residence, Rodriguez and Thai contacted appellant and said they would like to speak to him about Marina's allegations. They also advised appellant he was not under arrest and did not have to talk to them.
Eager to tell his side of the story, appellant voluntarily agreed to come down to the police station for questioning. He was transported there in the back of Rodriguez's squad car and taken to an interview room on the third floor of the Santa Ana Police Department. Roughly 8' x 8' in size, the room contained a table and three chairs, one for each officer, and one for appellant. Rodriguez closed the door for privacy purposes, which appellant preferred, but it was not locked or obstructed. Nor was appellant physically restrained in any manner.
All told, appellant was interviewed for approximately 70 minutes. Although the interview was recorded in its entirety, the prosecutor told the court at the Miranda hearing that she did not believe it was necessary to play the entire recording in order for the court to determine whether appellant was in custody. Rather, it would suffice if she simply played the first part of the interview. When the court asked defense counsel if he was okay with this truncated procedure, he said yes. Thus, the prosecutor only played the first 11 minutes of the interview, which revealed the following:
At the outset of the interview, Rodriguez reminded appellant he was not under arrest. He also told appellant he was at the station voluntarily, and he was free to leave at any time. Appellant said he understood and was fine speaking with the officers under those circumstances.
With that, the officers asked appellant a few background questions about his job and family. Then they informed appellant they wanted to talk to him about what happened at his house the previous evening. Emphasizing the need for honesty, they told appellant it would only make things worse for him if he did not tell the truth. Rodriguez also added, "Even if you get in a bit of trouble [for saying what happened], it's not very serious[,]" like "you killed someone [or something] like that."
Appellant then started to explain how events unfolded between him and Marina the previous evening. At the point in the interview where he was telling the officers about hearing a loud noise in the bathroom and discovering Marina in the bathtub, the prosecutor turned off the recording and directed her attention back to Officer Rodriguez, who was still on the witness stand.
The prosecutor asked Rodriguez if the tone of the interview changed at any point after that. He answered in the negative, claiming the interview never "changed gears." He agreed with the prosecutor that the interview was essentially just a "conversation" between the officers and appellant. He also said appellant never indicated he wanted to stop talking or leave the room. And when the interview was over, he drove appellant back to his house because he did not believe he had probable cause to arrest him.
Based on Rodriguez's testimony and what he heard of appellant's interview, the trial judge ruled appellant was not in custody when he was questioned at the police station. Therefore, the officers were not required to advise him of his Miranda rights, and there was no basis for excluding his interview statements.
Appellant admits he was not in custody during the first part of the interview. However, he asserts that changed as the interview wore on, when the officers began to express skepticism about his claim that Marina wanted to have sex with him. Therefore, if the prosecutor had played the whole interview at the hearing, the judge would have been compelled to exclude at least some of his statements on Miranda grounds.
Appellant frames this argument in terms of prosecutorial misconduct, claiming the prosecutor engaged in a deceptive ploy by not playing the entire interview recording at the Miranda hearing. However, defense counsel not only failed to object to this procedure, he expressly endorsed it. Under these circumstances, appellant forfeited his right to challenge the prosecutor's actions. (People v. Hill (1998) 17 Cal.4th 800, 820.) Nevertheless, we will consider appellant's Miranda claim on the merits because he contends his attorney was ineffective for not insisting that the entire recording be played for the court. (People v. Williams (2000) 78 Cal.App.4th 1118, 1126 [addressing waived issue "to forestall a petition for writ of habeas corpus based on a claim of ineffectual counsel"].)
Appellant's custody argument is based on the fact that during the middle and latter part of his interview, the officers challenged his assertion that Marina wanted to have sex with him. In that regard, the record shows the officers repeatedly advised appellant this his claim contradicted Marina's allegations. They also suggested that they believed Marina's allegations and that his story did not add up. In fact, at some points during the interview, the officers expressly accused appellant of lying to them. In addition, they told appellant they would be able to determine from Marina's forensic examination whether he was telling the truth. Despite all this, appellant never wavered in his claim Marina consented to having intercourse with him.
The Miranda decision was designed to protect persons suspected of criminal activity from the inherently coercive circumstances attendant police interrogations. (Miranda, supra, 384 U.S. at p. 435.) By requiring the police to inform a suspect of his right to remain silent before questioning, the high court sought to implement the constitutional privilege against self-incrimination and ensure "the individual's right to choose between silence and speech remains unfettered throughout the interrogation process." (Id. at p. 469.)
However, "police officers are not required to administer Miranda warnings to everyone whom they question." (Oregon v. Mathiason (1977) 429 U.S. 492, 495.) "Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him 'in custody.'" (Ibid.) In determining whether the custody requirement has been met, we must assess the objective circumstances surrounding the interrogation to determine whether a reasonable person in the defendant's position would have felt at liberty to terminate the questioning and leave. (Thompson v. Keohane (1995) 516 U.S. 99, 112-113.) This depends on whether the defendant was formally arrested or his freedom of movement was restrained to the degree associated with a formal arrest. (Id. at p. 465; Stansbury v. California (1994) 511 U.S. 318, 322; People v. Leonard (2007) 40 Cal.4th 1370, 1400.)
No single factor is dispositive of the custody issue. (Howes v. Fields (2012) 565 U.S. 499, 509 [stating the totality of the circumstances must be considered].) However, in this case it is clear appellant voluntarily accompanied Officer Rodriguez to the police station for questioning, and once they arrived there, Rodriguez reiterated to appellant that he was not under arrest and free to leave. These circumstances strongly support the conclusion Miranda did not apply. Indeed, courts have consistently held that suspects who were questioned under similar circumstances were not in custody for Miranda purposes. (See, e.g., California v. Beheler (1983) 463 U.S. 1121; Oregon v. Mathiason, supra, 429 U.S. 492; Smith v. Clark (9th Cir. 2015) 804 F.3d 983; People v. Moore (2011) 51 Cal.4th 386, 402-403; In re Kenneth S. (2005) 133 Cal.App.4th 54; People v. Chutan (1999) 72 Cal.App.4th 1276.)
However, as appellant correctly observes, it is possible for the circumstances of an interview to change over time so as to transform a noncustodial interview setting into a custodial one for purposes of the Miranda requirements. Indeed, this is precisely what happened in United States v. Knowles (E.D.Wis. 1998) 2 F.Supp.2d 1135 (Knowles), the principal case upon which appellant relies. In that case, the defendant voluntarily agreed to be interviewed by federal agents and was told he was free to leave when the interview began. He then proceeded to answer questions for several hours before his cooperative spirit began to wane and he asked if he could leave the interrogation room. At that point, the agents showed him the cover page of a criminal complaint that had been filed against him. Then they continued to interview him for several more hours before finally arresting him. The court found the defendant was not in custody during the first few hours of the interview. But once the agents showed him the criminal complaint, "a reasonable person would have known that he had been charged with a crime and that what [the agent] had previously represented to him was untrue." (Id. at p. 1145, italics added.) Therefore, he should have been advised of his Miranda rights at that juncture of the interview. (Ibid.)
During appellant's interview, however, the officers did nothing to convey the impression he had already been charged with a crime. The officers certainly made it clear they had spoken to Marina about her allegations and believed they were true. But they also told appellant they wanted to hear his side of the story as part of their investigation. At no point did they suggest a charging decision had been made, and when the interview was over, they drove appellant back to his house and let him go free. So even though the interview was accusatory at times, we do not believe the officers' statements created the level of compulsion that was exerted on the defendant in Knowles by virtue of showing him a complaint that named him as a criminal defendant. (Also compare People v. Saldana (2018) 19 Cal.App.5th 432 [defendant found to be in custody during police interview that was highly confrontational, designed for the sole purpose of obtaining a confession, and resulted in the defendant's quick arrest].)
Appellant also relies on Haas v. State (Alk. 1995) 897 P.2d 1333 and State v. Champion (Minn. 1995) 533 N.W.2d 40, which found a custodial situation arose during police questioning once the suspect confessed to a serious crime. It is only natural that a suspect would feel less inclined to walk away from a police interview after admitting his involvement in a criminal offense. However, appellant never confessed to a crime during his questioning with the officers. While he admitted having sexual intercourse with Marina, he insisted it was consensual, and therefore Haas and Champion are of no assistance to him.
Moreover, although the officers accused appellant of lying about having Marina's consent, they did not raise their voices or threaten appellant. Nor did they make appellant any promises or physically restrain him in any fashion. Overall, the interview was conducted in a cordial and professional manner, and at no point did appellant express any reservations about talking to the officers. Considering all of the circumstances, we simply do not believe appellant was in custody for Miranda purpose at any point during the interview. Therefore, his suppression motion was properly denied, and defense counsel was not ineffective for acquiescing to the prosecutor's decision to play only part of the interview recording at the Miranda hearing.
Alleged Prosecutorial Misconduct in Closing Argument
In in her rebuttal argument, the prosecutor referenced CALCRIM No. 226 in discussing appellant's credibility. Invoking that instruction, she told the jurors they could reject all of appellant's extrajudicial statements - including his claim of consent - if they believed he initially lied about not having sex with Marina. Appellant contends the prosecutor's reliance on CALCRIM No. 226 in making this argument constituted prejudicial misconduct, but we cannot agree.
By its terms, CALCRIM No. 226 applies to "testimony" given by a "witness" in court. It permits the jury to disbelieve a witness' trial testimony in its entirety if it determines the witness deliberately lied about something significant in the case. Because appellant did not testify at trial, it was technically improper for the prosecutor to invoke CALCRIM No. 226 in urging the jury to disbelieve his extrajudicial statements. However, appellant did not object to this argument in the trial court, so he has forfeited his right to do so now. (People v. Hill, supra, 17 Cal.4th at p. 820.)
In any event, there are two reasons the prosecutor's reference to CALCRIM No. 226 was not prejudicial in this case. First, the basic idea that a single material falsehood can undermine a person's entire credibility is equally applicable to witnesses and nonwitnesses alike. Second, CALCRIM No. 226 does not require jurors to reject everything a person said if they believe the person lied about something significant. Rather, the instruction permits the jury to accept the statements they believe are true and ignore the rest. (CALCRIM No. 226.) Therefore, even if the jurors applied CALCRIM No. 226 to appellant's extrajudicial statements, the instruction would not have compelled them to reject appellant's claim of consent, but would only have directed the consideration of an appropriate factor.
All things considered, we do not believe it is reasonably probable appellant would have obtained a more favorable verdict had the prosecutor refrained from invoking CALCRIM No. 226 in discussing appellant's credibility. Therefore, the invocation is not cause for reversal. (People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is affirmed.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.