Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC471322
ELIA, J.A jury found appellant guilty of three counts of aggravated sexual assault on a child under the age of 14 and four counts of committing a forcible lewd act on a child. (Pen. Code, §§ 269, 288, subd. (b)(1).) The trial court sentenced him to a state prison term of 45 years to life plus 24 years. Appellant contends that he received ineffective assistance of counsel, that there was insufficient evidence as to three counts, that the trial court erred in admitting excerpts of testimony from the preliminary examination, that the prosecutor committed prejudicial misconduct, and that CALCRIM No. 220 is a defective reasonable doubt instruction. We modify the judgment. By separate order filed this day we dispose of appellant's petition for writ of habeas corpus.
Evidence at Trial
In July 2004, during the summer between second and third grade, eight-year-old S. met appellant when she was at a Vietnamese restaurant with her mother, Tuyet. Tuyet and appellant began dating and appellant spent almost every night at Tuyet's apartment.
On October 17, 2004, S. came to Rene Veitch's office at the North Valley Baptist Church Sunday School. Veitch was to talk to S. about baptism and salvation. Veitch testified that when she told S. that "God forgives us for all our sins," S. asked her "if God would forgive people for hating people." Veitch asked S. whom she hated and S. said that she hated her mother's boyfriend. S. said that sometimes he did "bad things" to her. She told Veitch, "He does this one thing that I can't tell anyone." S. said that she had told her mother but that her mother did not believe her. She then spelled out the word "sex." S. returned to Sunday school class and Veitch reported this disclosure to her supervisor Ginger Baines. Baines then spoke to S. in the chapel with Veitch present. Baines reported to the pastor Mike Zachary who contacted the police.
Later that day, San Jose police officers went to Tuyet's home, explained why they were there, and asked to speak to S. While Officer Desiree Thompson talked to S. in S.'s room, Tuyet yelled something in Vietnamese into the room that S. said meant, "Don't say too much." Nevertheless, Officer Thompson found S. "surprisingly forthcoming." S. told Officer Thompson that in the first incident with appellant, he put his hands up her shirt and was touching her chest. When she asked him if she could just go to sleep, he "told her to 'shh.' " Thompson testified that S. told her that this had happened "multiple times" and also described "contact between [appellant] and her vagina." S. was taken to the Children's Shelter.
When the prosecutor asked Officer Thompson, "What did [S.] say was the nature of that contact?" the court sustained defense counsel's hearsay objection and the question remained unanswered.
On October 19, 2004, San Jose Police Detective Ken Tran interviewed S. at the children's interview center. Although as a member of the sexual assault unit Detective Tran had received training in "the appropriate ways of interviewing children who are alleging sexual abuse," he testified that "[S.] was my very first." A DVD of the interview was played for the jury and the jurors were given transcripts as well. In the interview, S. told Tran that she had a problem with "sex" in that appellant "does it on me instead of my mom." She said, "I don't think kids get this problem a lot. They shouldn't."
S. appeared uncomfortable and embarrassed during the interview, sometimes putting her head down on the table and speaking softly, sometimes shouting her answers in an exasperated tone. Tran showed her diagrams of a boy and a girl and had her identify body parts. S. covered her mouth with her hand and spelled some of her answers rather than speaking words. Toward the end of the interview, when Tran said that he wanted to "clarify some stuff," S. complained that Tran "made me say it thousand times, two times or three, or four."
S. told Tran that appellant put his mouth on her chest every time he came over except for those times when she arrived home when he was about to leave. She said that this happened at night in the room where she watched television while her mother was in the kitchen, taking a shower, or drying her hair. S. said that "sexual abuse is not the only thing." Her "other problem" was appellant slapping her twice, scratching her by accident, and "biting [her] butt."
S. told Tran that when appellant would put his mouth on her body, she would tell him, "Get off, get off" and he would tell her to "shush." She would tell him to stop but "he didn't respond."
S. pointed to the male private part on the diagrams and said "it's all a part of my problem." Tran asked her to tell him about that, and she said, "But I can show you. I'm not telling you." She took the diagrams and gestured with them saying "He put his private . . . on my privates." When appellant would put his private on the "middle" of her "butt area" she would yell "Aaah" and try to push him. Once she rolled over and kicked him. Her hands were "stuck" because appellant was holding them.
Tran asked S. if she had seen appellant's private part and asked her to describe it. She said, "Medium. I mean, short and long, well not long, but short. . . . Half of it was reddish and pinkish. . . . And the other side was brownish and grayish. . . . And on the front was reddish and it had, I think it had a hole. . . . Little one." Tran asked S. to describe how it felt when his private was "on top" of her private. She said it felt "Wiggly. . . . And uppy and down." She also described it as "Squishy." S. told Tran that appellant's penis "kept pushing mine. In the privates." She said that it was "Outside."
Tran asked S. what she was wearing when appellant kissed her private parts and she said that "one time I was wearing a gymnastics suit, two times I was wearing pants, and um, for the rest of the times I was wearing shorts." S. asked Tran to "Write this down so I don't have to say that again."
S. told Tran that appellant slapped her and stuck out his tongue at her when she told him to "go home." S. said that she had not seen anything come out of appellant's private part but that when it was "in [her] private part" she could feel "Something wet." Tran asked S., "How did you know [his private part] was in you? In your private part?" S. said, "I felt it." She said that it felt "Ugly" and "scrunchy."
At trial, S. testified that she usually slept in the same bed as her mother because that made her feel safe. Later, she slept with appellant and her mother in the same bed. She said that she "never slept just with [appellant.]"
The first time appellant came to her home they played games on the computer. The first time appellant did something to S.'s body that she did not like she was playing a computer game with him in the bedroom while her mother was in another room. S. was sitting on appellant's lap. Although S. answered multiple times that she would "rather not say" what appellant did to her, she said that appellant put his hand underneath her top and was "pressing" and "squishing" for "two or one minutes." He pinched her nipples. After that, she was on her bed and he put his mouth on her chest. She could feel the weight of his body on top of her. After the first incident, appellant put his mouth on her chest more than five times.
S. testified at trial that appellant touched his number one private to her number one private "More than one time." She said his number one private would touch the outside of her private. They were wearing clothing but appellant had the zipper on his pants open. She demonstrated with dolls how appellant would lay on top of her. She said that he was moving his number one part. S. testified that this usually happened in the evening, that it happened more than five times, and that it happened "mostly" when her mother was home cooking or blow drying her hair. Appellant told S. not to tell her mother because "It wouldn't be fun." S. showed her mother red marks on her chest left by appellant. S. said that she told her mother "Once or twice" that appellant was "doing bad things" to her. When her mother did not believe her, S. felt "kind of" upset because, "She should have believed me because I wouldn't lie about this."
S. testified that appellant touched her number two private part with his number one private part more than five times over clothing.
In an effort to keep appellant from coming into the bedroom, S. taped signs on the bedroom door. These signs were introduced into evidence. Some had drawings of a skull and crossbones. The signs said, "No men," "Stay out," "Don't come in or else," and "Keep out." The signs did not keep appellant from coming into the bedroom.
After appellant started touching S., she began to feel a stinging pain in her number one private part. She thought appellant was causing the stinging or maybe it was caused by not being clean enough. To try to make the stinging stop, she put a wet Q-tip on the inside of her number one private part. She put it in "Not that very far." Her mother walked by the bathroom and asked her what she was doing. Her mother wanted her to go to a doctor.
S. testified that she told her teacher at Sunday school what appellant was doing to her because "I couldn't just keep it inside and . . . just thought I had to tell somebody." When the police came and took her to the Children's Shelter, she felt safer.
The prosecutor introduced into evidence portions of S.'s preliminary examination testimony. The first passage concerned how many times appellant had touched S.'s chest. S. had testified at trial that appellant touched her chest once, but at the preliminary hearing she had answered "yes" to the question "He did it more than once?"
During the preliminary examination testimony S. was asked, "When Mike tried to put his private part into your front private part, did it ever touch the skin of your private part?" and she answered, "Two times." S. also testified at that hearing that when appellant touched her "back private part" with his "private part" it "just pushed in." She answered "Yes" to the question "It just pushed in? Was the skin of his private part touching the skin of your back private part when that happened?"
Tuyet, S.'s mother, testified at trial that she sold nutrition products out of her two-bedroom condominium. She said that about a week after meeting appellant, she invited him to dinner at her home. After dinner, S. went to sleep in the smaller bedroom. At one point, Tuyet thought appellant was in the restroom, but when she walked past the bedroom she saw appellant sitting on the bed at S.'s feet watching her sleep. Tuyet asked appellant to leave the room. Tuyet lay down next to S., and appellant lay down next to them until he left around 2:00 a.m.
Tuyet and appellant started dating and he came to her home almost daily. When he spent the night, appellant would sleep in the same bed as Tuyet and S. Appellant wanted S. to sleep in the middle. Tuyet would not allow this and she slept in the middle. Tuyet testified that appellant, whom S. called Uncle Mike, was more interested in being with S. than with her and closer to S. than to her. After Tuyet had been dating appellant for about three weeks, S. complained to her that "Uncle Mike [is] being lewd with me." Tuyet testified that S. complained that "Uncle Mike put his hand under her shirt and touched her chest." S. showed Tuyet hand prints and marks on her body. Tuyet testified, "I asked Mike whether he had done that. . . . He said no." Later, S. complained to Tuyet that "Uncle Mike was lying on top of her body."
When Tuyet was sick, appellant said that S. would get sick if she slept with her, so S. and appellant slept in the other bedroom. Another time, Tuyet came out of the bathroom to find appellant bent over S. kissing her on the cheek while she slept. Tuyet testified that S. threw water at appellant and threw his pants out the window. When Tuyet found S. in the bathroom with the Q-tip, S. complained to her that "the opening to her body was burning." Tuyet saw that it was red. Tuyet said that she wanted to take S. to the doctor but that S. was embarrassed and refused to go.
In August 2004, Tuyet went to Vietnam for 19 days. She arranged for S. to stay with a friend, and gave appellant permission to pick S. up from school. Tuyet said that appellant "exert[ed] coercion" on her to get her to agree to this. Tuyet brought her grandmother back from Vietnam to live with her and S. When she returned, she saw appellant a few more times and he only stayed over once more.
Around the time Tuyet stopped dating appellant, she learned that he had been dating another woman whose name was Thuan. Tuyet spoke to Thuan on the telephone several times and went to Thuan's home with S. once. When asked at trial why she continued to date appellant when S. had complained to her about his conduct, Tuyet answered, "I don't know anymore."
Physician's Assistant Mary Ritter testified as an expert "in the area of child sexual assault examinations and in pattern of injury in those cases." She examined S. on October 20, 2004. Ritter testified, "Normally, the bottom portion of the hymen is the widest portion, and in [S.'s] case, there was very little hymen in that bottom portion." She said that the "likely cause" of the appearance of S.'s hymen was "a penetrating event." She said that "some hard object has penetrated through that opening and has torn it, and it's healed, but it has left that narrow, narrow edge. . . . [I]t's possible it could have been a penis, it could have been a finger, it could have been some sort of another object, but it's . . . something that actually went between the labia and penetrated through the opening and tore the -- that bottom portion of the hymen when it penetrated." In contrast to hymeneal tissue, anal tissue "heals completely about two weeks after a penetrating injury." Ritter testified that S.'s hymeneal tear was "well-healed" and that, after a penetrating injury, "it takes at least a couple of weeks for the bruising to all go away and the swelling to go away." Ritter also observed that S. had a skin condition on the outside of her vaginal area that causes itching, burning, and tissues that bleed more easily, but has nothing to do with sexual abuse.
Criminalists testified about the results of DNA testing on bedding taken from S.'s home. Of the five semen stains found, none contained bodily fluids from S. Three semen stains contained mixtures of appellant's and Tuyet's body fluids, one was a mixture of two females, and one was appellant's semen.
Ineffective Assistance of Counsel
Appellant contends, "Defense counsel provided inadequate representation when he made but did not keep promises that appellant would testify and that he would present other evidence to exonerate appellant of any acts of molestation."
Before trial, the prosecutor attempted to determine whether the defense planned to present third party culpability evidence. Defense counsel told the court, "It is not our intention to dispute [S.]'s having been molested at all during the course of this trial. . . . The issue in this case isn't whether she was molested or not. The issue is by whom." Counsel said, "we do intend to argue, or we have no defense at all, that Mr. Nguyen was not the perpetrator."
In opening statement, defense counsel said, "[S.]'s medical examination by Mary Ritter is definitive of some form of sexual trauma by someone. The question in this case, and the issue that I'll present through testimony, through the evidence, through witnesses, through documents, just as [the prosecutor] described, will be that Mike Nguyen did not do this to [S.]." He said, "The issue that I will present to you, the bird's eye view, is that Mike Nguyen did not do this to her." He said, "You'll hear from Mike Nguyen in this case. He will testify about these things that I'm telling you." He concluded his opening statement saying, "Mike Nguyen did not perpetrate these horrific acts which caused [S.]'s injuries."
Very near the conclusion of the prosecution's case and outside the presence of the jury, the trial court asked defense counsel if he planned to call any witnesses. When defense counsel said that he did not plan to do so, the trial court asked him, "Do we need to go into any of that on the record?" Defense counsel said, "I have no intention of calling my client based on the state of the evidence" and that counsel was not going to call any of the others named on the witness list that he had disclosed.
After the prosecution concluded its case, the defense rested without presenting any evidence. In closing argument, defense counsel told the jury "This is an extremely serious case with extremely serious allegations." Counsel asked the jury to consider how an allegation that appellant may have touched S.'s breast could "snowball" into allegations of more serious sexual conduct. Counsel referred to the "hierarchy" of allegations. Defense counsel said, "Now, I may be wrong about this. I could be completely off base, but when the judge – when Judge Allegro said, 'Mr. Jachimowicz, do you have any witnesses to present on behalf of your client,' I said, 'No,' and shortly after that, I said, 'The defense rests,' and I looked at all of your faces because I wanted to see if I could get a read, and you know, we do that the whole trial. As all the evidence comes in, we're trying to get a read, and it occurred to me when I did that that there was some bewilderment on the part of the jury. [¶] Now, if you were one of those people who at the moment said to yourself, thought to yourself, . . . 'Whoa. Wait a minute here. Wait a minute. In opening statement, he said one thing, and now he's saying another. I don't really know what happened here. Hold on." Counsel said, "if you said, 'Hold it. What's up with this? I don't know what happened here,' then you started out [i]n the process of knowing what reasonable doubt really means because it's not defined very well."
Counsel discussed the concept of reasonable doubt and said "if you sat [here] and thought about, 'I don't know what happened here. There's been so many contradictory statements by Tuyet, by [S.], and by Detective Tran . . . and do I really know that Mary Ritter is absolutely right about the fact that a Q-tip can't cause this injury, then I'm confused,' because you have to be sure." He invited the jurors to ask themselves "is this man a predator pedophile who was seeking out an eight-year-old girl through the mother in order to molest her?" and pointed out that the prosecutor had not presented any evidence that appellant's other girlfriend, Thuan, had a young daughter. He reviewed the evidence that Tuyet had approached appellant in the restaurant and that Tuyet had invited appellant to her home and said, "What happened after that, during the course of their relationship is going to be for you to decide." Counsel reviewed Ritter's testimony that a hymeneal tear would be painful and contrasted it with S.'s statement to Tran that there was no pain "associated with whatever Mr. Nguyen did." He invited the jury to watch the DVD of S.'s interview with Tran a hundred times and argued that "not once did [S.] say that there was any penetration whatsoever." He argued that S. originally complained only of appellant touching her chest and that the issue of penetration only arose when the prosecutor at the preliminary examination "started in with the inside business." He said that the DNA evidence showed that appellant "never entered [S.]" and that S.'s description of appellant's penis was not that of an erect one.
Counsel argued that the jury had to decide "what level of crime Mr. Nguyen, if any, should be found culpable of." He told the jury, "It's credible about he touched her chest and he touched her bottom, and that was the snowflake. . . . If he's guilty of anything, it's those things that he's guilty of . . . . So find him not guilty of the things that he's not guilty of, and find him guilty of only the things that you think that you're sure he did."
Appellant contends, "Defense counsel was constitutionally ineffective for making an opening statement promising testimony exonerating appellant of any wrongdoing and then not only failing to deliver it but conceding that he was guilty of molestations." Appellant argues, "The jury would have assumed that appellant had changed his mind about testifying based on the damaging evidence presented, and that the strength of the prosecution's case had forced the defense to shift into damage control mode and concede the truth of the lesser included offenses."
When a defendant challenges his conviction based on a claim of ineffective assistance of counsel, he must prove by a preponderance of the evidence that counsel's performance was deficient and that his defense was prejudiced by those deficiencies. (People v. Ledesma (1987) 43 Cal.3d 171, 218; Strickland v. Washington (1983) 466 U.S. 668, 687 [104 S.Ct. 2052].) "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Strickland v. Washington, supra, 466 U.S. at p. 687.) "The 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." (Id. at p. 694.)
The failure to produce evidence promised in opening statement may constitute ineffective assistance of counsel. (People v. Frye (1998) 18 Cal.4th 894, 983-984. See also Harris v. Reed (7th Cir.1990) 894 F.2d 871, 879 [Sixth Amendment violation where defense counsel failed to call witnesses who he claimed in opening statement would support defense version of shooting]; Anderson v. Butler (1st Cir.1988) 858 F.2d 16, 17-19 [Sixth Amendment violation where counsel failed to present promised expert medical testimony that defendant had acted without cognizance of, or feeling for, actions].) The rationale for holding such a failure to produce promised evidence ineffective is that when counsel primes the jury to hear a different version of the events from what he ultimately presents, one may infer that reasonable jurors would think the witnesses to which counsel referred in his opening statement were unwilling or unable to deliver the testimony he promised. (McAleese v. Mazurkiewicz (3d Cir.1993) 1 F.3d 159, 166-167.)
However, "Making promises about the defense evidence in opening statement and then failing to deliver does not constitute ineffective assistance per se." (People v. Burnett (2003) 110 Cal.App.4th 868, 885.) In Frye, defense counsel told the jury during the opening statement that the defendant would testify and explain what he remembered. Ultimately, the defendant did not take the stand. The reviewing court concluded counsel was not deficient because counsel's decision to advise the defendant not to testify, made after counsel had a chance to observe the defendant during the trial, was a valid tactical decision. (Frye, supra, 18 Cal.4th 894, 983-984 .)
"Whether the failure to produce a promised witness amounts to ineffective assistance of counsel is a fact-based determination that must be assessed on a case-by-case basis. (See United States v. McGill (1st Cir.1993) 11 F.3d 223, 227.) Forgoing the presentation of testimony or evidence promised in an opening statement can be a reasonable tactical decision, depending on the circumstances of the case. (Turner v. Williams (4th Cir.1993) 35 F.3d 872, 904; Johnson v. Johnson (3rd. Cir.1976) 531 F.2d 169, 177.)" (People v. Stanley (2006) 39 Cal.4th 913, 955.)
Here, counsel told the trial court that he no longer planned to call appellant as a witness "based on the state of the evidence." Of course, defense counsel's evaluation of the state of the evidence at the end of the prosecution's case would have included his assessment of the defense evidence that he had decided not to present. Counsel had conducted a thorough cross-examination of Ritter and had established through Tuyet that appellant was dating another woman, Thuan, who had been on the defense witness list. Counsel then had to weigh the benefit of having appellant testify against the risk that having his client take the stand would pose. The record reflects that that risk was considerable. It may very well be that, when this trial began, defense counsel believed that the prosecution had a strong case and made a tactical decision that an opening statement giving some background information about appellant and a denial of his having "perpetrate[d] these horrific acts which caused [S.]'s injuries," and to have appellant testify, would be a good idea. When the prosecution's case came in weaker than defense counsel had thought it would, and he was able to establish through cross-examination of Tuyet the information about Thuan that he wanted to place before the jury, counsel could have determined that a wiser course at that point would be to put the prosecution to its burden rather than have appellant subjected to cross-examination. Counsel did not abandon the argument that appellant had not molested S., but refined it from an affirmative denial to an argument that the prosecution had failed to meet, particularly as to the more serious charges, its burden of proof.
Although there was no Evidence Code section 1108 evidence of prior sexual misconduct evidence introduced at trial, during a pre-trial discussion of whether the prosecution planned to present any, defense counsel alluded to "extremely damaging" statements that appellant made to the police about past allegations from women he had dated concerning his behavior with their daughters "despite the fact there's absolutely no evidence of it whatsoever." At sentencing, defense counsel said, "I did want to, once again, I think I've done this many times, alert the Court . . . that I did file a [Penal Code section ] 1368 very early in these proceedings of Mr. Nguyen's competency. His behavior today, once again, I believe, is consistent with my belief under 1368 he did not have the capacity to stand trial in this case."
Appellant argues, "The jury would have assumed that appellant had changed his mind about testifying based on the damaging evidence presented, and that the strength of the prosecution's case had forced the defense to shift into damage control mode and concede the truth of the lesser included offenses." Counsel's closing argument did not actually concede that appellant committed the lewd acts. Rather, counsel observed that there was evidence which a jury might conclude was sufficient to convict appellant of non-forcible child molest. There is an enormous difference between a concession that appellant had, in fact, committed a molestation and a candid acknowledgment that the state of the evidence was such that a jury could so conclude. This acknowledgment would give counsel more credibility when arguing, by way of contrast, that the remaining evidence failed to show that appellant had committed the more serious acts charged.
Appellant argues that, whether or not this "concession" was reasonable, "What was not reasonable was to make a complete denial in opening statement, and then later make concessions, when no witness gave unexpected testimony that would have warranted a mid-trial change in defense." We disagree. Reasonably competent counsel could have determined after hearing the prosecution's case that the prosecution's witnesses, whether because of the extent of their inconsistent statements or their demeanors on the stand, were less convincing than even well prepared defense counsel would have anticipated at the time of the opening statements. Based on this assessment reasonably competent counsel could have determined that counsel's summation ought to be limited to inviting the jury to consider whether the prosecution actually had met its burden of establishing guilt beyond a reasonable doubt.
Nor is it a foregone conclusion that the "jury would have assumed that appellant had changed his mind about testifying based on the damaging evidence presented." This conclusion could only be reached by ignoring defense counsel's explanation during closing argument of the concept of reasonable doubt. Counsel said "if you sat [here] and thought about, 'I don't know what happened here. There's been so many contradictory statements by Tuyet, by [S.], and by Detective Tran . . . and do I really know that Mary Ritter is absolutely right about the fact that a Q-tip can't cause this injury, then I'm confused,' because you have to be sure." This explanation served to highlight the weaknesses in the prosecution's case, and reinforce the concept that the defense need not present evidence. Defense counsel provided competent assistance.
Sufficiency of the Evidence
Appellant challenges the sufficiency of the evidence to support one of his convictions for aggravated sexual assault on a child by means of rape, his conviction for aggravated sexual assault of a child by means of sodomy, and one of his convictions for forcible lewd act on a child. When determining the sufficiency of the evidence, an appellate 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." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "Under this standard, the court does not ' "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 . . . .)" (People v. Hatch (2000) 22 Cal.4th 260, 272.) " ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" (People v. Bean (1988) 46 Cal.3d 919, 933.)
Assault by Means of Rape
Appellant was convicted of two counts of aggravated sexual assault on a child by means of rape. Appellant argues, "One of the two sexual assault by means of rape convictions must be reversed due to insufficient evidence of penetration." Appellant argues, "In [S.]’s trial testimony, in the portion of the preliminary hearing read into the record, and in her interview with Tran, [S.] stated consistently that appellant placed his private part on but not in her private part." Appellant asserts that "[S.] never testified that appellant penetrated her twice or that he tried to. The only suggestion of two penetrations was contained in the prosecutor's question." He argues, "Nurse Ritter's testimony proved only that penetration had occurred, not that it occurred on more than one occasion, and [S.]'s statement to Tran proved only a single act of penetration."
"Penetration" means "sexual penetration and not vaginal penetration. Penetration of the external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not thereafter succeed in penetrating into the vagina." (People v. Karsai (1982) 131 Cal.App.3d 224, 232, disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.) Sexual penetration refers to contact with any external female genitalia "inside the exterior of the labia majora." (People v. Quintana (2001) 89 Cal.App.4th 1362, 1368, 1371.) " 'The consummation of such an act may be shown by the circumstances and surroundings [citation], and may be proved by circumstantial as well as direct evidence. [Citation.] The right to draw proper inferences from the evidence is a function of the jury; and as long as its conclusions do not do violence to reason, an appellate court is not permitted to substitute its findings of the ultimate fact for that reached by the jury [citation], and inasmuch as we cannot say that the conclusion reached by the jury does violence to reason we likewise cannot say that such conclusion was erroneous.' " (People v. Strickland (1955) 134 Cal.App.2d 815, 818, quoting People v. Vicencio (1945) 71 Cal.App.2d 361, 365.)
At trial, after S. had testified about appellant putting his mouth on her chest, she was asked, "What other parts of your body did Mike touch that you did not like?" S. answered, "I can't tell. I really don't want to tell." She then testified as follows:
"Q. . . . When Mike touched his number one private to your number one private, was it skin-to-skin like this, or skin over clothing?
A. Not sure.
Q. Did you ever see Mike's number one private?
A. I'd really rather not say.
Q. . . . Well, can you just answer that with a yes or no?
A. Yes.
Q. Okay. And when Mike would touch his private, his number one private, to your number one private, was that something he did once or more than one time?
A. More than one time.
Q. Can you – can you give me any idea of what Mike's number one private looks like?
A. No.
Q. Okay. Is it because you don't want to say, or you can't remember?
A. Don't want to say. . . .
Q. . . . would his private touch the outside of yours or go inside your private?
A. Outside. . . .
Q. Did Mike touch your number one private when you were wearing clothing or when you had no clothing on?
A. Clothing."
S. also testified at trial that "When there were those times when [appellant] was touching his private spot to [her] number one private spot," she felt the sensation of something wet inside of her private spot.
The portion of S.'s preliminary examination testimony that was read to the jury was as follows:
"Question: [S.], let me ask you that question again. When Mike tried to put his private part into your front private part, did it ever touch the skin of your private part?
Answer: Two times.
Question: Two times? And when it touched the skin of your private part, was he pressing against you?
Answer: Yes.
Question: And did it hurt?
Answer: I don't know.
Question: Was it on the top of your private part, or the bottom of your private part?
Answer: I don't know, and I don't remember."
S. told Tran in the interview that appellant's penis "kept pushing mine. In the privates." She said that it was "outside." Tran asked, "Can you tell me where his private part was, where it was touching you that you could feel it was wet?" S. answered "In my private part, in my private part." She said that her mother and great grandmother were home that time.
As to the two counts of aggravated sexual assault on a child by means of rape, the jury was instructed on the lesser included offenses of attempted rape, forcible lewd act on a child, and lewd act on a child. In closing argument, the prosecutor said that he "charg[ed] it as two rape counts because [S.] said at the preliminary examination it happened twice." He explained that if the jury concluded that appellant did not penetrate S., "then you come back with the attempted rape." He said that penetration was "not proven by what she said at the prelim, I agree. It's not proven by what she said here in court. Penetration is proven by what she said to Tran and the findings of Mary Ritter." The prosecutor played for the jury part of the DVD of S.'s interview with Tran in which she demonstrated with the diagrams what appellant had done to her.
S. was most forthcoming about appellant's sexual activity with her in her statement to Tran, and demonstrated considerable reluctance to discuss details as the case progressed. For example, when Tran asked during the interview, S. gave him a detailed description of appellant's penis but, at trial, would not answer similar questions. At trial, after S. was asked about appellant touching her chest, she was asked, "What other parts of your body did [appellant] touch that you did not like?' She answered, "I can't tell. I really don't want to tell." Her reluctance may have been for any number of reasons, such as shame or embarrassment, but it seemed to increase with the number of listeners present.
S. had told Tran that when appellant's private part was "in [her] private part" she could feel "something wet." S. testified at trial that appellant touched his private to her number one private "more than one time." S. also testified at trial that "When there were those times when [appellant] was touching his private spot to [her] number one private spot," she felt the sensation of something wet inside of her private spot. S. told Tran that "last Wednesday" appellant had put "not the mouth. His private on my private." She also answered "Yes or maybe" to a later question "But last Wednesday he put his private on your private?" and then said that she did not remember. Dr. Ritter's testimony established that the tear to S.'s hymen from a penetrating event was "well-healed." Dr. Ritter also testified that after a penetrating injury, "it takes at least a couple of weeks for the bruising to all go away and the swelling to go away."
S.'s statement to Tran, when considered with her preliminary examination testimony and Ritter's expert medical testimony, can be reasonably interpreted as supporting the inference that there were multiple incidents of penetration. This support is found in S.'s answer that appellant tried to put his private part into her private part "two times," her statement to Tran that she could feel something wet inside her private and that appellant had put his private in her private last Wednesday, Ritter's testimony that a hymeneal tear takes at least a couple of weeks to heal, and Ritter's testimony that S.'s hymeneal tear was well-healed. From this a jury could conclude that appellant penetrated S. last Wednesday, but that that was not the penetrating event that caused the hymeneal tear. Because the initial tear was well healed, and not enough time had passed since last Wednesday and Ritter's exam for that to have been the penetrating event, more than one act of penetration had occurred. The jury's conclusion that appellant penetrated S. more than one time is reasonably justified and sufficient evidence supports appellant's conviction for two counts of aggravated sexual assault on a child by means of rape.
Assault by Means of Sodomy
Count five charged appellant with a violation of Penal Code section 289, aggravated sexual assault on a child by sodomy. Appellant contends, "Insufficient evidence of sodomy requires reversal of count 5." Appellant argues, "At best, [the evidence] raises the possibility that appellant committed sodomy, but it does not constitute the 'evidentiary certainty' that the United States and California Constitutions require."
"Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy." (Pen. Code, § 286, subd. (a).) "Penal Code section 286 contains no express or implied requirement that there be skin-to-skin contact between the victim and the perpetrator in order to establish the offense of sodomy. . . . [The statute's] applicability is not limited to situations where a perpetrator inserts his penis into a victim's bare anus." (People v. Ribera (2005) 133 Cal.App.4th 81, 85.)
In her interview with Tran, S., demonstrating with diagrams, said that appellant put his private part in the "middle" of her "butt area." At trial, S. testified that appellant touched her "number two private spot" with his "number one" private part. She said that she was wearing her clothing at the time and that the skin of their privates did not touch. She demonstrated with dolls, placing a female doll on the doll's stomach and laying the male doll on his stomach on top of the female doll.
In part of her preliminary examination testimony that was read to the jury, S. said that appellant did to her back private part the "Same thing that he did on the front." She said "It just pushed in." S. answered "Yes" when asked "Was the skin of his private part touching the skin of your back private part when that happened?" She also said that her clothes were on. The testimony read to the jury continued as follows:
"Question: Okay. But the skin of his private part touched the skin of your private part?"
Answer: Yes.
Question: And he pushed it in?
Answer: Wait. It was in my pants. It was in my pants.
Question: Inside your pants?
Answer: No, outside my pants."
Appellant argues that "in the portion of the preliminary hearing from which the prosecutor read at trial, after [S.] testified that appellant 'pushed in,' she clarified that it was 'outside my pants.' With regarding to appellant having done the same thing to her back as to her front, as [S.] testified that he had put his private part on the outside of her pants, her statement that he did the same thing signified only that there was contact, but it does not prove penetration."
In S.'s interview with Tran, S., demonstrating with diagrams, said that appellant put his private part in the "middle" of her "butt area." Although S.'s testimony at trial was at times confusing and equivocal, she did testify that the skin of appellant's private part touched the skin of her back private part. What appellant characterizes as a clarification of her testimony on this point, when she said, "Wait. It was in my pants" could reasonably have been taken by the jury as a retreat, out of embarrassment, in an attempt to understate the extent of her sexual contact with appellant. Her answer, taken with her remark that he did the "same thing" to her back private part as he did to her front private part, when considered with the clear medical evidence of vaginal penetration, could support the deduction by the jury that S. had experienced an act of anal penetration. Certainly the record is such that this court could not say that no rational trier of fact could have found the elements of the crime of sodomy beyond a reasonable doubt.
Lewd Act by Force or Duress
Appellant was convicted in counts 7, 8, 9, and 10 with committing a forcible lewd act in violation of Penal Code section 288, subdivision (b)(1). In closing, the prosecutor stated that counts 7 and 8 were for the "Fondling of [S.]'s chest" and counts 9 and 10 were for "Kissing her chest." He specified that count 7 was for "the first time [appellant] fondled her chest." Appellant contends that, as to the act charged in count 7, there "was insufficient evidence that appellant used either force or duress in committing that act."
Penal Code section 288, subdivision (b)(1) prohibits the commission of a lewd act on a child "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." In order to establish "force" within the meaning of subdivision (b) of section 288, the prosecution must show the defendant "used physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself." (People v. Cicero (1984) 157 Cal.App.3d 465, 474; People v. Cardenas (1994) 21 Cal.App.4th 927, 939; People v. Gilbert (1992) 5 Cal.App.4th 1372, 1381.) Duress is defined as a "direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." (People v. Cochran (2002) 103 Cal.App.4th 8, 13.)
Appellant relies on People v. Espinoza (2002) 95 Cal.App.4th 1287 . In Espinoza, this court found insufficient evidence of duress to prove attempted forcible rape. The defendant's 12-year-old daughter testified that she was frightened of her father, and, when he attempted intercourse, she simply moved to thwart his advances. The defendant did not attempt to overcome her resistance, never threatened her in any way, and discontinued his conduct. The victim's sisters were in the bedroom next door, the defendant behaved as if he were crying, and asked the victim if she still loved him while he was molesting her. The defendant's demeanor itself was evidence that he did not use duress to coerce his victim's acquiescence. "[The] defendant simply lewdly touched and attempted intercourse with a victim who made no oral or physical response to his acts." (Espinoza, supra, 95 Cal.App.4th at p. 1320.) This court struck the attempted rape conviction, stating: "The only way that we could say that defendant's lewd act on [the victim] and attempt at intercourse . . . were accomplished by duress is if the mere fact that he was [the victim's] father and larger than her combined with her fear and limited intellectual level were sufficient to establish that the acts were accomplished by duress. What is missing here is the ' "direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.' " [Citation.] Duress cannot be established unless there is evidence that 'the victim['s] participation was impelled, at least partly, by an implied threat. . . . ' [Citation.] No evidence was adduced that defendant's lewd act and attempt at intercourse were accomplished by any 'direct or implied threat' of any kind. While it was clear that [the victim] was afraid of defendant, no evidence was introduced to show that this fear was based on anything defendant had done other than to continue to molest her. It would be circular reasoning to find that her fear of molestation established that the molestation was accomplished by duress based on an implied threat of molestation." (Id. at p. 1321.)
Appellant argues that "no evidence was presented to show that when appellant touched [S.]'s chest the first time, he applied force that was substantially different from or substantially greater than that necessary to accomplish the lewd act itself." Appellant also argues that there was no evidence of duress in that "there was no evidence that appellant used any direct or implied threat when he fondled [S.]'s chest the first time. He simply reached under her clothes and squeezed her nipples."
Respondent argues that there was substantial evidence of duress. Respondent argues that "the victim was eight years old with no life experiences to ward off a 35-year-old stranger. . . . Appellant began his attack in the confines of a bedroom. The record supports an inference that the attack was sudden and unexpected. . . . The record supports an inference that appellant immobilized the victim by using both hands to wrap around the victim's upper body and reach her chest in order to pinch it. Appellant directed the victim not to tell her mother. The record thus shows appellant inflicted physical and psychological coercion on his victim." Respondent distinguishes Espinoza arguing "appellant was a stranger to his victim and he used physical and psychological coercion to accomplish the attack. Appellant did not behave as if he were crying and then ask the victim if she still loved him while he was molesting her."
S. testified that the first time appellant did something to her that she did not like she was sitting on his lap playing a computer game. Her mother was in the apartment but in another room. Appellant put his hands under her top and was "squishing" and "pressing" her nipples. This made her feel nervous. S. testified that she thought appellant did not say anything to her while he did this the first time and she was "not sure" if she said anything to him. After a minute or two he stopped. This testimony does not support an inference that appellant had S. immobilized or that, on this first occasion, appellant told her not to tell her mother. Appellant was a not complete stranger to S. She had met him at the restaurant and he had had dinner in her home. Although appellant did not cry when he molested S., we do not see that as a pivotal distinction between this case and Espinoza.
Although S.'s testimony established that on that first occasion appellant committed a lewd act, we see no evidence of the use of force substantially different from or substantially greater than that necessary to accomplish the lewd act itself or of a direct or implied threat of force, violence, danger, hardship or retribution. In other words, the record as to count 1 establishes a violation of Penal Code section 288, subdivision (a), but contains insufficient evidence to support a conviction of Penal Code section 288, subdivision (b). We modify the judgment accordingly.
Prior Inconsistent Statements
Appellant contends, "The court erred in admitting an excerpt from the preliminary hearing containing improper questioning by the prosecutor." At the prosecutor's request, and after hearing argument from defense counsel, the court permitted the prosecutor to introduce into evidence three passages from S.'s testimony at the preliminary hearing as prior inconsistent statements.
The challenged portion of the second passage which was read to the jury by the prosecutor is follows:
"Question: [S.], let me ask you that question again. When Mike tried to put his private part into your front private part, did it ever touch the skin of your private part?
Answer: Two times.
Question: Two times? And when it touched the skin of your private part, was he pressing against you?
Answer: Yes.
Question: And did it hurt?
Answer: I don't know.
Question: Was it on the top of your private part, or the bottom of your private part?
Answer: I don't know, and I don't remember."
At trial, defense counsel objected to the reading of this passage on the grounds that the prosecutor at the preliminary examination was leading the witness and that the question lacked a foundation. Defense counsel argued that this was "a bootstrap attempt by the district attorney to prove the [aggravated sexual assault of a child by means of rape counts] that he couldn't prove here in court, and I think it's more prejudicial than probative." Counsel argued that because the jury could not observe S.'s demeanor at the preliminary examination, it could not evaluate whether the prosecutor, "through her well-trained lawyering skills, was able to get the child to say things that the child was reluctant to say." The trial court said, "I don't think that it is leading because it doesn't suggest an answer." The court accepted the suggestion that the part of the transcript just before this section be read to the jury as well, and said, "because the whole area before that admission helps to put it in the proper perspective, I think it's appropriate." The court said, "to the extent that they are prior inconsistent statements, they're relevant and admissible."
During closing argument, the prosecutor told the jury that two counts of aggravated sexual assault on a child by means of rape were charged "because [S.] said at the preliminary examination it happened twice." Twice during deliberations, the jury asked to have these passages from S.'s preliminary examination testimony read back. Ultimately, the jury convicted appellant of both of the counts of aggravated sexual assault on a child by means of rape.
Appellant contends that the trial court erred in admitting the portion of the testimony in which the prosecutor asked, "When Mike tried to put his private part into your front private part, did it ever touch the skin of your private part?" S. answered this question, "Two times." Appellant contends, "That statement may have justified admission of the portion of the prosecutor's question asking whether appellant's private part touched the skin of her private and [S.]'s answer that it did two times, but the portion of the prosecutor's question in which he stated that appellant tried to penetrate [S.] was not admissible on any ground because it did not accurately reflect any testimony by [S.], and it was a leading question by counsel without foundation."
A prior statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement. "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with [Evidence Code] Section 770." (Evid. Code, § 1235.) Evidence Code section 770 provides, "Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action."
Prior inconsistent statements are admissible at trial as substantive evidence as well as to impeach the declarant. (People v. Hawthorne (1992) 4 Cal.4th 43, 55, fn. 4; People v.. Green (1971) 3 Cal.3d 981, 985 .) "Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness' prior statement[.]" (People v. Green, supra, 3 Cal.3d at p. 988; People v. Sapp (2003) 31 Cal.4th 240, 296.)
In reviewing a trial court's ruling on the admissibility of hearsay evidence, we apply generally the deferential abuse of discretion standard of review. (People v. Waidla (2000) 22 Cal.4th 690, 725.) When the admissibility of evidence depends upon determinations of fact, we uphold a trial court's ruling if supported by substantial evidence. (Ibid.)
Appellant argues that the statement was not inconsistent with S.'s trial testimony because at the preliminary hearing, S. "did not say that appellant 'tried' to put his private part in her private part, and the suggestion that she did and with it any inconsistent statement, came from the prosecutor's leading question alone." Appellant argues, "Like the famous 'when did you stop beating your wife question,' the prosecutor's question built in a false premise, and forced [S.] to agree that appellant tried to put his private part into her private part, whether she answered the question with a yes or a no." Appellant argues, "Insofar as the question implied that [S.] had previously testified that appellant had tried to put his private part into [S.]'s private part, its introduction resulted in misconduct."
The trial court considered the argument that the question was leading in determining that the passage was admissible. The trial court said that S. "could have said no, and I think what we've all seen from these questions is that she did, in fact, say no a number of times, but also, she was nine years old at the time of the prelim. [¶] The Court can allow leading questions under that circumstance, and I think that the question would have been allowed, even if it was leading."
In addition to the passage of S.'s preliminary examination testimony that is challenged here, the jury heard the part of her testimony that preceded it. That included these questions and answers:
"Question: Okay. What did Mike touch your front private part with?
Answer: His front private part. . . .
Question: Okay. Now, [S.], when he touched your private part with his private part, did it – did his private part go inside of your private part?
Answer: No.
Question: Tell me about what happened.
Answer: Just – he just did it, but he did it out in the outside of my pants.
Question: On the outside of your pants?
Answer: Yes.
Question: Okay. Do you remember telling the officer that he would pull your shorts to the side?
Answer: He would try, but I pull them back up.
Question: Okay. That's not what you told the officer though, remember?
Answer: I don't remember.
Question: Okay. Do you remember telling the officer that he would pull your shorts to the side and that he would put his private part inside your private part?
Answer: I don't know.
Question: Are you afraid to tell us about that now, [S.]?
Answer: No. I really don't know."
Later in the preliminary examination, the prosecutor called Officer Thompson who testified that when she interviewed S. at the apartment, S. told her that appellant "inserted his penis or his private part into her private part" approximately 10 times. Thus, the prosecutor's use of the prefatory phrase "When Mike tried to put his private part into your front private part" was based on S.'s prior statement to Officer Thompson that appellant had penetrated her 10 times. S. was a reluctant witness, responding to several questions by saying that she was too "shy" or "afraid" to answer the question. Under the circumstances, it was permissible for the prosecutor at the preliminary examination to lead S. The challenged question was founded on S.'s prior inconsistent statement to Officer Thompson and that statement was then offered into evidence at the hearing through Officer Thompson's testimony. The question and answer were proper at the preliminary examination and, thus, the trial court did not abuse its discretion in permitting this part of the preliminary examination transcript to be introduced into evidence at the trial.
Prosecutorial Misconduct
Appellant contends, "The prosecutor committed misconduct in closing argument by relying on facts not in evidence."
In closing, in support of the argument that S.'s complaint about appellant touching her had snowballed into allegations of more serious conduct including vaginal penetration, defense counsel criticized Detective Tran's interview technique. He argued, "[S.] didn't start out saying ever in that [interview] – not once did she say that there was any penetration whatsoever. None. [¶] It was Detective Tran that said it, and then piggy-backed on it, she gave him what he wanted." He argued that S. originally complained only of appellant touching her chest and that the issue of penetration only arose when the prosecutor at the preliminary examination "started in with the inside business." Defense counsel argued that the jury should have doubt about S.'s testimony about the more serious sexual offences because "It's influence. It's contamination. It's when our system runs amuck and asks you to keep it in check."
In rebuttal argument, the prosecutor paraphrased defense counsel's argument as one that "the system has run amuck because somehow she was manipulated by the players in the system to say something that really did not happen" and countered this by saying "in order for you to agree with that assertion, you have to make some factual findings that are simply not supported by the evidence, and the defense is asking you to speculate and to fill in some gaps that are not supported." The prosecutor reminded the jury that during his direct examination of Rene Veitch, "for legal reasons [he] was only permitted to ask her was there a conversation between [S.] and Ms. Baines . . . . Now, if the defense theory is that her allegations were snowballed to the point that she alleged rape for the first time when she was talking with Tran, why did the defense attorney ask Ms. Veitch, 'When Ms. Baines was talking with [S.], isn't it true that she never said she was raped by the defendant,' or 'Isn't it true that she never alleged any sexual intercourse,' because if that's the theory the defense is trying to prove to you, that question would and should have been answered." The prosecutor referred to the interview of S. conducted by Officer Thompson and argued, "if [S.] had never said to Thompson that there had been sexual intercourse, you can bet that question would have been asked of Officer Thompson on cross-examination because that question was asked of the mother by the defense attorney because he wanted it to be established that [S.] never specifically told the mother that there was sexual intercourse." The prosecutor argued that the jury should be "very careful" not to conclude that the first time S. described intercourse was during the interview with Tran "because you don't have the evidence before you of those conversations with Baines and Thompson to make that factual finding, and I would submit to you if [S.] never said anything about intercourse to Baines or Officer Thompson, you would have heard about that."
Defense counsel objected that the prosecutor "was asking the jury to make unreasonable inferences" that were "outside the scope of the evidence." The court said, "All right. The jury will be very aware of their – of their responsibility to only base their decision upon the evidence that you've been presented with and the reasonable inferences that can be drawn therefrom." The prosecutor resumed his argument, saying, "Exactly, and what I'm saying is do not draw the inference the defense attorney has asked you to draw."
Appellant argues that "the prosecutor committed misconduct by asking the jury to infer that [S.] had made statements to Mrs. Baines and Officer Thompson that appellant raped her, but that legal rules of evidence precluded him from introducing them." He argues, the "prosecutor did not just insinuate or imply but essentially informed the jury that [S.] told both Baines and Thompson that she was raped."
Respondent argues that "the prosecutor reminded the jury that defense counsel's inference about the use of the term 'inside' for the first time had to be considered with the fact that the jury was not allowed to hear the substance of [S.]'s reports to Baines and Officer Thompson. The prosecutor reasonably inferred that the defense would have sought admission of any evidence of an innocent report by [S.] to Baines or Officer Thompson. The record reflects that the prosecutor made a logical and reasonable inference from the state of the evidence."
A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Cole (2004) 33 Cal.4th 1158, 1202.) A prosecutor's misconduct that does not render a trial fundamentally unfair under the federal standard nevertheless violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (Ibid.) Where the issue focuses on comments made by the prosecutor before the jury, the question is whether it is reasonably likely the jurors construed or applied the remarks at issue in an objectionable fashion. (Id. at pp. 1202-1203.) When making that determination, we must keep in mind the fact that prosecutors have wide latitude to discuss and draw inferences from the evidence; whether the inferences drawn are reasonable is for the jury to decide. (Id. at p. 1203.)
Appellant agues that defense counsel "argued that the claim of penetration first arose, not in [S.]'s statements, but in Tran's leading questions and the prosecutor's arguments. The prosecutor chose to respond to that claim by insinuating that in statements the jury was not permitted to hear, but to which the prosecutor had access, [S.] had in fact alleged penetration. This was a paradigmatic example of prosecutorial misconduct by referring to facts not in evidence."
The prosecutor's comment was fairly responsive to defense counsel's "snowball" argument that the jury should infer that S. had not complained about intercourse until Tran contaminated and influenced her during their interview. The prosecutor noted that defense counsel had asked Tuyet whether S. had complained about intercourse before the Tran interview, and had received a negative answer, but had not asked other witnesses the same question. This is comparable to a comment on the defense's failure to call logical witnesses or introduce material evidence, which is not misconduct. (People v. Miller (1990) 50 Cal.3d 954, 996.) Taken in context, the prosecutor's reference to the rules of evidence did not inform the jury that S. had told both Baines and Thompson that she was raped. Rather, it served as a reference point for an argument about the strength of the inference that defense counsel was asking the jury to make based on what evidence the defense presented considered in light of the defense's failure to elicit supporting evidence from other witnesses. This was not misconduct.
CALCRIM NO. 220
Appellant contends, "CALCRIM [No.] 220 is a constitutionally defective reasonable doubt instruction requiring reversal of appellant's convictions."
CALCRIM No. 220 provides: "The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. . . . [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."
Appellant argues that "CALCRIM [No.] 220 is constitutionally defective because it required the jury to 'compare' the evidence 'received' at trial. The jury could have only interpreted this as requiring it to compare the evidence presented by the prosecution with the evidence presented by the defense. This language allowed the jury to hold against appellant his failure to present as much evidence on his behalf as the prosecution presented against him, or to present sufficient evidence to prove his innocence. This had the effect of impermissibly shifting the burden of proof." Appellant contends that this was a structural error requiring reversal without consideration of prejudice.
After appellant filed his opening brief, three cases, People v. Rios (2007) 151 Cal.App.4th 1154 (review den. Sept. 12, 2007), People v. Westbrooks (2007) 151 Cal.App.4th 1500, and People v. Flores (2007) 153 Cal.App.4th 1088, were decided rejecting claims that CALCRIM No. 220 is an unconstitutional instruction. In his reply brief, appellant argues, "All three are wrongly decided and poorly reasoned."
Other recent cases that have rejected challenges to CALCRIM No. 220 include People v. Anderson (2007) 152 Cal.App.4th 919, People v. Ibarra (2007) 156 Cal.App.4th 1174, and People v. Campos 156 Cal.App.4th 1228.
In Rios, the court considered essentially the same argument as appellant raises here. The court noted that CALJIC No. 2.90 contained similar language referring to the "comparison and consideration of all the evidence," and had been approved by the United States Supreme Court in Victor v. Nebraska (1994) 511 U.S. 1, 16-17 [114 S.Ct. 1239]. (Rios, supra, 151 Cal.App.4th atp. 1157.) As Rios explained, "CALCRIM [No.] 220 uses verbs requiring the jury [to] 'compare and consider all the evidence that was received throughout the entire trial.' CALJIC No. 2.90 uses nouns requiring 'the entire comparison and consideration of all the evidence' by the jury." (Id. at p. 1157.) The Rios court concluded that, like CALJIC No. 2.90, the challenged language of CALCRIM No. 220 serves to inform the jury that its decision must be based on the evidence, and it rejected defendant's claim that the instruction shifted the burden of proof. (Ibid.)
Appellant distinguishes Rios because the Rios court "was not asked to, and did not, address the propriety of the word 'comparison' in the instruction." CALJIC No. 290 does not require a comparison, while the CALCRIM instruction tells the jury it "must" compare the evidence "that was received throughout the entire trial." Appellant argues "This language not only suggests that the defendant has a duty to produce evidence to be 'received' and compared by the jury, but it also excludes from its consideration the evidence not received at trial, that is, the lack of evidence."
In Westbrooks, the court rejected the contention that CALCRIM No. 220 prohibited the jury from considering the lack of physical evidence implicating the defendant in the crime in determining his guilt. The court held the sentence in question "merely instructs the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. In other words, this instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial." (Westbrooks, supra, 151 Cal.App.4th at p. 1509.) The court determined it would not have been reasonable for the jury to interpret CALCRIM No. 220 as stating the jury was precluded from considering any perceived lack of evidence in determining the accused's guilt. (Id. at p. 1510.) Similarly, in Flores, analyzing the language at issue in CALCRIM No. 220, read together with CALCRIM No. 222, the court said that "[n]othing about the instructions given implies to the jury that the defendant must adduce evidence that promotes reasonable doubt or that the defendant must persuade the jury of his or her innocence by evidence presented at trial." (Flores, supra, 153 Cal.App.4th at p. 1093.)
We agree with the analysis of Westbrooks, Rios, and Flores, and hold that because there is no reasonable likelihood that the jury understood CALCRIM No. 220 in the manner suggested by appellant, the trial court did not err in giving such instruction to the jury.
Disposition
Count 1, a Penal Code section 288, subdivision (b) conviction, shall be modified to reflect a conviction of the lesser included offense of violating Penal Code section 288, subdivision (a) due to the insufficiency of the evidence. The modified judgment is affirmed and the matter is remanded to the trial court for resentencing.
WE CONCUR: RUSHING, P. J. PREMO, J.