Opinion
A161996
06-29-2023
THE PEOPLE, Plaintiff and Respondent, v. ALVARO NIETO, Defendant and Appellant.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 19-CR-001995)
SWOPE, J. [*]
Defendant Alvaro Nieto appeals from a jury verdict finding him guilty of two counts of forcible rape (Pen. Code, § 261, subd. (a)(2)) and one count of second degree robbery (§ 211). On appeal, Nieto raises claims of error involving: (1) extensive prosecutorial misconduct; (2) unlawful pre-charging delay with respect to the rape of Jane Doe 1; (3) unconstitutional consolidation of the two separate rapes; (4) instructional error with respect to the use of propensity evidence; (5) insufficiency of the evidence supporting the kidnapping special circumstances involving Jane Doe 1; (6) the need to resentence due to several intervening changes in the law; (7) various sentencing and clerical errors; and (8) violation of the California Racial Justice Act of 2020 (Stats. 2020, ch. 317, § 1 (CRJA). We remand for resentencing and to correct clerical errors but otherwise affirm.
All statutory references are to the Penal Code unless otherwise specified.
I. BACKGROUND
On September 29, 2020, the Alameda County District Attorney filed an amended information charging Nieto with two counts of forcible rape (§ 261, subd. (a)(2), counts one and two) and one count of second degree robbery (§ 211, count three). Each of the two rape counts was enhanced by allegations of kidnapping (§ 667.61, subds. (d)(2), (e)(1)) and multiple-victim provisions (§ 667.6, subds. (c), (e)(4)). The following evidence was adduced at trial:
A. Complaining Witnesses
1. Jane Doe 1
Jane Doe 1 was in her early 20's in January of 2013. She was homeless, sometimes staying with her mother in Hayward or with aunts in San Leandro and Oakland. Around 7:00 p.m. on January 25, 2013, Jane Doe 1 was on her way to visit her aunt M.C. in Oakland. She took the bus from Hayward, but after she disembarked at International Boulevard, she became lost, and her phone died. Jane Doe 1 walked down the street trying to find the correct address. She passed various stores, including a chicken fast food restaurant, a liquor store, and a drugstore. She was scared because it was not a safe area, and her phone was not charged. Jane Doe 1 went into a mini mart to see if she could charge her phone, but they were unable to help her. She was not clear regarding all of the details and testified that she had always had a very bad memory. She acknowledged that she had taken four hits off a marijuana blunt sometime in the afternoon that day.
As Jane Doe 1 was walking down the street, she noticed a dark color car like a Buick. It passed her several times, which she felt was odd. When she crossed the street, the car pulled diagonally in front of her, cutting her off. The person inside stated that she looked lost. Jane Doe 1 responded that she was lost and needed a phone to call her aunt. The man stated he had a charger in the car and opened the passenger side door. He was heavyset, balding, and had a tattoo on his arm that said "Oakland" or "510" or something similar.
In a June 2020 interview, Jane Doe 1 stated the tattoo said "Oakland." However, in her mind, "510" and "Oakland" are the same thing. She identified a picture of Nieto's 510 tattoo as the tattoo she had seen. She could not identify Nieto in court and testified she had never seen him before or after that day and never had any kind of relationship with him.
At the time, Jane Doe 1 saw no harm in asking a stranger for help charging her phone. She leaned into the car looking for the charger. The man was holding onto the passenger car door, blocking her with his arm above her. He "nudged" her into the vehicle. She lost her balance and fell into the car. Jane Doe 1 looked at him like," 'What the fuck,'" and the man closed the car door. She did not want to get into the car. She was afraid. Her recollection was that she tried to get out of the car at that point, but she discovered that the passenger side door had no interior handle. The man told her he had a charger at home, and they drove for a few minutes, about 10 to 12 blocks. Although she was afraid, she acted calmly because she did not know what was going to happen.
When they arrived, he took her phone and told her he would charge it inside. She stood outside the car waiting, but the man came back outside and stated he could not get it to charge. Jane Doe 1 told him:" 'Okay. I want my phone back. I want to leave.'" When the man made no move to retrieve it, Jane Doe 1 went through the open side gate which the man had previously exited, intending to go get her phone. She heard him behind her and he was blocking her exit, so she ran through the open side door of the house, through the kitchen where two people were located, and into another open door. That door led into a bedroom, and Jane Doe 1 saw here phone lying on the bed, "not even trying" to be charged.
Jane Doe 1's phone was important to her because it had a lot of memories on it, and she could not afford a new one.
Very quickly, the man came in after her, shut the door, and-as she was reaching down for her phone-pushed her powerfully onto the bed and stated: "You're not going anywhere." He started taking off her pants and underwear, and Jane Doe 1 was hitting him and telling him no, she just wanted to charge her phone. The man put his penis in her vagina while she was face down on the bed. He also groped her all over her body while restraining her with his hands and body. It hurt. She could not remember whether the man wore a condom or how long the assault lasted as she had "kind of blocked it out." She was thinking that she "just wanted to get out of there" and telling him:" 'Please stop. Let me go.'" She never consented to the man having sex with her.
When the assault was over, Jane Doe 1 was able to get up and leave with her phone. She ran until she saw people on the street who could help her. An elderly black woman asked her if she was okay and showed her how to get to her aunt's house. When she arrived at M.C.'s house, she was still scared and shaken up, and she told her aunt what had happened. Although all she wanted to do was take a shower and get clean, her aunt told her not to until after they spoke to the police. Her clothes were put in a bag, and she identified pictures of the clothes and bag for the jury. Jane Doe 1 did not want to report the sexual assault to the police because she was scared and "didn't think anyone would care to help [her]." Where she was from, the police did not do anything to help, and she did not trust them.
Jane Doe 1 had very little memory of the next day. She remembered going to the doctor and having a long, uncomfortable exam. In her statement to the police that day, she reported that she had gotten off the bus at the Coliseum BART station rather than International Boulevard. She also told the police that the man came up from behind her on International Boulevard, grabbed her around the waist, and sexually assaulted her in the back of the car, even though this was not true. She lied because she did not trust the police and she did not think they would believe her because she was stupid and went into someone's house that she did not know. Every day, she feels like it was her fault. She also told Mancuso, the SART examiner, that the rape happened in the back of the car.
Kristin Mancuso, the Sexual Assault Response Team (SART) examiner who conducted the SART exam testified that her findings were consistent with Doe 1's account as she had a bruise on her arm and a hickey on her neck.
After January 26, 2013-the day following the assault-Jane Doe 1 did not hear from the police again and assumed nothing was happening with her case. In the months after the assault, her life changed "dramatically." She started taking drugs to erase the pain and memory, it messed up her life, and she lost custody of her daughter. She had little contact with her family. Although she and M.C. used to be close, she no longer contacted her aunt because she reminded her of "being lost."
It was not until 2020, when the police contacted her, that Jane Doe 1 spoke to law enforcement again about her assault. She wanted to forget the incident; not relive it. Had she not been approached by the police she would have continued to "bury" the attack. The first time she met with the police in June 2020, she was not able to complete a statement about the incident because it was "too hard." She returned in July 2020 and was able to finish her statement with an advocate present. In June 2020, she told the police she did not remember how she got in the car but by July 2020 she reported she had been pushed. The July statement was the truth as she started remembering after giving the June statement. She was having nightmares, and everything was "coming back" to her. By September 2020, she first mentioned the assault had taken place in the house because, by then, she trusted the prosecutor would believe her. She did not know, and had never spoken to, Jane Doe 2.
On cross-examination, Jane Doe 1 denied she called Nieto the week after the assault to tell him she was taking a Greyhound bus from Oakland to Modesto. Nor did she meet him at the bus station with her daughter on February 5, 2013, smoke marijuana with him, or kiss him. She testified that she had never taken a Greyhound bus from Oakland to Modesto. She did not purchase the tickets with her name on them from February 2013 and 2015 that defense counsel presented to her and admitted into evidence.
On re-direct, Jane Doe 1 disclosed that, when defense counsel was going through her 2013 statement line by line and she repeatedly said it would not refresh her recollection to look at the statement, she was confused by the questions and "feeling attacked and not safe." When she feels attacked, she "kind of break[s] down a little and get[s] really emotional and silent." Jane Doe 1 also testified that she had lost her ID and social security card at some point in the past and had just gotten them replaced in 2018. She thought it "[m]ost likely" that someone who stole her ID purchased the tickets. When she went to her father's residence in Patterson, which is near Modesto, she would get a ride from her father.
2. Jane Doe 2
Jane Doe 2 was 24 in September 2018. She was five feet, one inch tall and one hundred pounds. She had braces at the time. On Friday night September 28, 2018, Jane Doe 2 was hoping to make some money to cover expenses until she started a new job. She was going to pick up a friend to go with her to audition at Centerfolds, a gentlemen's club in San Francisco, but after going to Oakland and being unable to contact her friend, she decided against that plan. She was near International Boulevard at the time (around 9:00 p.m.) and decided to engage in prostitution instead. Jane Doe 2 worked the rest of the night as a prostitute. At around 2:15 a.m., a man whom she had never seen before (later identified as Nieto), pulled up beside her and asked for a date. She described him as a young, heavyset Mexican male with darker skin. After agreeing to a price-$100-Jane Doe 2 got into his car. The car was black and had two doors.
Before leaving her home that evening, Jane Doe 2 also had sex with her boyfriend.
Nieto drove away "exceptionally fast" and his demeanor was "like he was trying to get away with something," making Jane Doe 2 scared. He was making "obnoxious turns repeatedly." He barely went straight at all. She asked timidly for him to let her out, but she did not think he heard her. They ended up in an alley behind a house after less than 10 minutes, and she tried to get out of the car. But she was not able to do so: "It was locked[,] or the door handle wasn't attached or something. I couldn't get the click that you would normally get when you open the door." She knew something was wrong and felt like she had made "the biggest mistake of [her] life."
Nieto was showing no emotion. After parking the car, he grabbed her wallet from her lap, threw it on the dashboard, and climbed on top of her.He tried to take off her clothes, and, when she struggled to keep them on, he hit her in the nose causing it to bleed. Jane Doe 2 was crying, and she said: "Please, no." She was terrified. She stopped struggling, reasoning her best bet for staying alive was to not fight back. He took off all of her clothes. Nieto then raped her, sticking his penis in her vagina. When she tried to avoid him kissing her mouth, he hit her again and asked her if she "liked it." She continued to cry and ask him to stop. His pants were around his knees and his shirt was pulled up around his neck. She noticed a scar on his abdomen, and she identified pictures of the scar for the jury. The assault lasted 10 to 15 minutes. She did not consent to the sexual encounter after getting into the car.
Her wallet, which contained between $250 and $350 was never returned to her.
At one point during the assault, Jane Doe 2 stated she had to pee to see if he would let her out of the car, but he told her to pee on him. At another point, she tried to use her toes to get the pepper spray attached to her wallet, but he realized what she was doing, hit her, and told her if she tried it again "it would be the worst mistake of [her] life." When Nieto was finished, he pulled up his pants and got back in the driver's seat. He grabbed both her hands in one of his and with the other hand he retrieved her wallet and phone. After looking in the wallet, he stated:" 'This is what we're going to do. You're going to get dressed. You're not going to do anything stupid and you're going to get out. I'm going to throw you your phone.'" He told her he would pepper spray her if she "tr[ied] anything." At that point, the door was unlocked, and she got out as he instructed. He drove off.
Screaming for help and crying, Jane Doe 2 ran. She knocked on several doors, but no one answered. Finally, an Uber driver pulled over and asked if she needed help, and another person walking in her direction yelled that he had 911 on the phone. The man with the phone stayed with her until the police arrived. The prosecutor played the 911 call for the jury. During the call, Jane Doe 2 made the decision to tell dispatch that she had been dropping off a friend when someone snatched her. She was afraid of getting in trouble for prostituting and was embarrassed and afraid no one would help/believe a prostitute. At the time, neither her boyfriend nor her family knew she was acting as a prostitute.
A police officer took Jane Doe 2 to the hospital, where she gave a statement. She did not tell the officers she was a prostitute because she did not want to go to jail. She described the erroneous details she gave as "word vomit." Jane Doe 2 consented to a SART exam, which took place between 5:00 and 6:00 a.m. and which she described as "humiliating." She told the same story to the SART examiner and at an October 2018 police interview for similar reasons. Jane Doe 2 met the prosecutor for the first time in May 2020. At a second meeting that month, she disclosed for the first time that she had previously worked in the International Boulevard area as a prostitute but did not admit to prostituting herself on the day of the assault. She still did not trust the prosecutor with her "biggest secret" because the prosecutor was part of the law.
At meetings on August 25 and September 18, 2020-as well as while testifying at a court hearing on September 29, 2020-Jane Doe 2 still failed to disclose that she was acting as a prostitute when she was assaulted. She trusted the prosecutor but was still afraid of getting in trouble. She finally told the police and the prosecutor the "actual story" on September 29, 2020, after learning cell phone location data existed undercutting her fabricated story. At that point, Jane Doe 2 asked if she would get in trouble and the prosecutor told her that, while prostituting was against the law, she did not care "what [she] was doing, who [she was] or what [she'd] done in the past."
Jane Doe 2 was aware of Jane Doe 1 but had never met or spoken to her. When asked how the assault impacted her, Jane Doe 2 testified: "I was somebody who was willing to go out and try everything. I wasn't afraid of the world, and today I am. I've been in situations where somebody gets too close to me in the grocery store[,] and I've had to run out. I don't feel safe. I'm not comfortable in my own skin." And she stated: "I look in the mirror and I hate who I am."
B. Investigatory Evidence
Officer Dinesh Jagar testified that he had taken approximately 50 statements from sexual assault victims in his 13 years with the Oakland Police Department (OPD). Victims of violent crimes have a lot of trauma, and the police sometimes have to "ask questions over and over again to figure out what exactly occurred." Officer Jagar responded to the hospital to speak to Jane Doe 1. She was distraught, quiet, and had difficulty providing a clear statement. The officer observed small bruises on Jane Doe 1's left arm consistent with fingernail-type wounds. He identified the bag of clothes that Jane Doe 1 stated she had been wearing during the sexual assault.
After Jane Doe 1 underwent the SART examination, Officer Jager drove Jane Doe 1 and her aunt back to the aunt's apartment, attempting to retrace the path Jane Doe 1 had taken the previous evening. She was able to identify a Popeye's Chicken and a Walgreens along the route she had taken, but she could not pinpoint where the sexual assault occurred. Jane Doe 1 identified her assailant as a Hispanic male in his 20's, five foot six inches tall, clean shaven, wearing blue jeans and white Nikes, with a 510 tattoo on his arm. She explained to Officer Jager that this man had grabbed her around the waist, pulled her backwards towards a turquoise four-door Buick, forced her into the car, and sexually assaulted her in the backseat by putting his penis in her vagina and his finger on her anus. The vehicle was missing the left rear door handle. After the man was finished assaulting her, he offered her a ride home. Jane Doe 1 declined and later found an older black woman who stayed with her at a bus stop until she went back to Hayward. There, she told her daughter's father about the assault. Subsequently, she went back to Oakland and also told her aunt, M.C. According to Officer Jager, Jane Doe 1's account of the previous evening became much less clear when he started asking her questions about the specifics of the assault. After this initial contact with Jane Doe 1, the case was handed off to another investigator.
Officer Rodger Haley was an investigator with OPD's Special Victims Unit in September 2014 when he received Jane Doe 1's case. The case had previously been assigned to another officer (Officer Chan), but Officer Chan had been unable to reach Jane Doe 1 at the telephone number or address listed in the report. Without the cooperation of a sexual assault victim, the police are unable to move forward with a prosecution. In 2014, Officer Haley called the same phone number, but was unable to leave a message. He used a database to try and find additional phone numbers and addresses, but only found the same Hayward address where Officer Chan had previously sent a contact letter. He sent a letter to that address as well as to M.C.'s address. Officer Haley also called M.C. and left a voicemail, but she never returned his call. He could not locate Jane Doe 1 and she had never contacted the OPD again after the assault, so Officer Haley closed the case.
Officer Joseph Rasler testified he had been an investigator with the OPD Special Victims Unit for nine years and a police officer for 18 years. He had interviewed hundreds of victims of sexual assault in the course of his career. He testified regarding techniques for conducting such interviews and different characteristics and responses from his interviewees. For example, he explained that, rather than giving a linear statement, victims "might leave stuff out. They might say inaccuracies just because of the trauma of what they've just gone through." Officer Rasler replaced Officer Haley on Jane Doe 1's case in December 2019. At that time, he learned there was a 2018 case that could be related. He submitted a lab request to have the DNA profile taken in the 2018 case compared with the unknown DNA profile from the 2013 case. In May 2020, he found a phone number for Jane Doe 1 listed in a program called TLO (different from her 2013 phone number) and contacted her.
Officer Rasler interviewed Jane Doe 1 in June 2020. However, she almost immediately started crying, became extremely emotional, and was unable to continue. She then failed to respond to his repeated texts attempting to reschedule. In July 2020, after the prosecutor reached out to her, Jane Doe 1 returned for a second interview and was able to complete her statement with an advocate present. However, she still cried throughout the interview. She was not shown her 2013 statement before making her statements in 2020. During cross-examination, Officer Rasler agreed, based on his training and experience, that witnesses can lie, and false allegations can be made. Moreover, the emotions a witness displays during an interview cannot really reveal whether a person is telling the truth. Finally, Officer Rasler acknowledged that he had never considered whether Jane Doe 1 was making a false accusation or attempted to find additional evidence corroborating her story, stating that he had believed she was telling him the truth.
Inspector Carl Bonnor with the Alameda County District Attorney's Office was assigned to try and find Jane Doe 1 in mid-2020. He contacted M.C. who contacted Jane Doe 1. Jane Doe 1 then called Inspector Bonnor directly. Her phone number and address were different than those listed in the original 2013 report. After an introductory meeting with Inspector Bonnor, the prosecutor, and a victim advocate in May 2020, Jane Doe 1 gave a partial statement to the OPD in June 2020 before becoming nonresponsive. At a second OPD interview in July 2020, Jane Doe 1 was emotional, crying, and responding in incomplete sentences. The investigator had to repeat questions many times because she would go off on tangents. But she was able to complete the interview. At a meeting with Jane Doe 1 and the prosecutor on August 21, 2020, Inspector Bonnor asked her why her 2013 statement differed from her 2020 statement. She responded that "she didn't know, maybe she was overwhelmed."
Inspector Joe McNiff replaced Inspector Bonnor as of August 2020. As part of his duties, he located and interviewed B.A., discussed below. He learned about A.R. (also discussed below) from Jane Doe 1's mother on October 7, 2020, while he was attempting to locate and serve M.C. for trial. A.R. did not want to be a witness. When Inspector McNiff googled Jane Doe 1, he located a MySpace account with pictures of friends and some family members, including a young girl. He also discovered addresses for her father in Union City, Modesto, and Patterson. He testified that the name of Jane Doe 1's daughter was Anabell, and she was born in January 2009. On crossexamination, Inspector McNiff explained that he knew inmates at Santa Rita Jail had access to tablets that could access some things on the internet, but he did not know whether they had access to Google.
Officer Rio Del Moral inspected Nieto's black 2003 Mercedes SL500 in January 2019. He noted that the manual lever on the passenger side door was recessed so that he could not reach it with his fingers. The manual lever became elevated and accessible when the car was unlocked. After unlocking the passenger side door, he was able to open it using the door handle. Although the door handle on the passenger door was functional, Officer Del Moral noted that the cosmetic cover panel on that door had been removed. He had trouble finding the electronic locks, which were located on the dashboard by the hazard button.
Amanita LeMon, an OPD criminalist, qualified as an expert with respect to the DNA analysis of physical evidence using scientific methodology and the interpretation of that data. In April 2014, she conducted an analysis of the sexual assault evidence kit for Jane Doe 1. From a portion of Doe 1's underpants, she obtained a sperm cell fraction with a single DNA profile (Donor No. 1) which would occur in one of 12 quintillion members of the population. The epithelial cell fraction from the underwear sample contained two donors, one consistent with the wearer and the other consistent with Donor No. 1. A vaginal swab contained a sperm cell fraction consistent with Donor No. 1 that would occur in one of 79 quintillion members of the population. A neck swab contained DNA consistent with Donor No. 1 that would occur in one of 494 trillion people. When Lemon compared Nieto's reference sample with the samples from Donor No. 1, Nieto was included as that donor.
Bonnie Cheng, another OPD criminalist, also qualified as an expert with respect to the DNA analysis. In October 2018, she conducted an analysis of the sexual assault evidence kit for Jane Doe 2. When Cheng compared reference samples from Nieto and Doe 2's boyfriend to the sperm cell fraction from Jane Doe 2's underwear, Nieto was included as the major donor, whose profile would occur in one of 76 nonillion individuals. There was not enough DNA from two minor donors to reliably compare them to a reference sample. The sperm cell fraction from a vaginal swab contained at least two donors. Nieto was included as the major donor, whose profile would occur in one of 76 nonillion individuals. Nieto was also included as the donor in a profile developed from a lip swab, which would occur in one in one nonillion individuals.
C. Other Prosecution Evidence
M.C., Jane Doe 1's aunt, testified that, on the night of January 25, 2013, at around 6:30 p.m., Jane Doe 1 called to inform her that she was taking BART to M.C.'s residence on 85th Avenue in Oakland. Late that night, Doe 1 arrived at M.C.'s residence on foot, crying hysterically and with disheveled clothes and hair. According to M.C., she knew that Jane Doe 1 had been raped without her even needing to say anything because M.C. had been raped herself and "had watched plenty of movies." She told Jane Doe 1 to put her clothing in a bag and not shower. To the extent her initial statement to the police was inconsistent, M.C. testified that she was emotionally distraught at the time and might have gotten something "twisted." She did not tell the police that there were any other relatives at the house at the time Jane Doe 1 arrived. Jane Doe 1 did not tell her where the assault happened.
A.R., Jane Doe 1's cousin, testified that she was sitting in her car outside of M.C.'s house on January 25, 2013. She knew Jane Doe 1 was coming over and was waiting for her. Jane Doe 1 arrived on foot around 9:00 p.m., crying and upset, and told A.R. she had been raped in a house where she had been waiting for her phone to charge. Jane Doe 1 described her assailant as a Latin male with 510 on his arm. A.R., M.C., and several other family members then got into A.R.'s car and tried to find the house where the assault occurred, but they were unsuccessful. A.R. had not talked with Jane Doe 1 about the incident since 2013. A.R. was contacted by the prosecution about a week prior to her testimony after Jane Doe 1's mother learned she had been at the house on the day of the assault and gave A.R.'s contact information to the prosecutor. She had been convicted of felonies involving moral turpitude in 1995, 2000, and 2002. Jane Doe 1 told A.R. that she was walking by the house when she met the man that assaulted her.
On September 29, 2018, at approximately 3:00 a.m., B.A. was at home in Oakland, sleeping with his window open. He did not know Nieto or Jane Doe 2. He woke up to loud, distressed screaming that sounded like a woman; so, he grabbed his phone and went outside to see what was happening. He found Jane Doe 2 trying to stop a car or somebody, but no one was out because it was so late. When he went up to her, she was very distraught, crying and screaming and she had blood and tears on her face. She told him later she had been punched in the face. When he asked what had happened, Jane Doe 2 told him she had been grabbed off the street, her phone had been stolen, and she was raped. B.A. had called 911 as he was approaching Jane Doe 2. He told them what happened, and they sat on the curb waiting for the police. B.A. gave Jane Doe 2 his phone so she could message her boyfriend. He left after the police arrived and her boyfriend was on the way. B.A. went back to his house and texted his partner, stating in one text that Jane Doe 2 "had blood on her face because he punched her in the nose."
D. Nieto's Testimony
Nieto took the stand in his own defense. In January 2013, he was 24 years old and renting a room at a house in Oakland on 86th between Holly and International. He had around five roommates, but he only lived at the house for approximately two months and could not remember all of their names. He was working on weekends doing security. In early 2013, Nieto had driven to the store and, on his way back, had encountered Jane Doe 1. At the time, he was driving a Pontiac Bonneville. It was afternoon or, at the latest, early evening. He slowed his car and approached Jane Doe 1 as she was walking, telling her that she was beautiful and that it would "be cool" to get to know her. They both stopped, and Jane Doe 1 responded that she was busy and did not have time to get to know him. Nieto suggested they exchange numbers, and she responded that her phone was dead and that she did not know her number. She also did not know her aunt's number, so could not use his phone. Nieto told her he had previously owned the same type of phone and, if it was okay with her, they could go to his house and charge her phone. She agreed, opened the passenger door, and got in the car. At that time, the doors of his car were working normally, and he had never altered the doors in any way.
During the short drive to his house, Jane Doe 1 never told him she wanted to get out of the car, tried to get out of the car, or indicated in any way that she did not want to go with him. He parked in front of the house, and they exited the car. Jane Doe 1 had no problem getting out of the car on her own. She followed him through the gate, and they entered the house through a back door, going into his bedroom. The man who rented him the room, the mother of that man's child, and the mother-in-law were present, but he could not remember any of their names. Nieto showed Jane Doe 1 the charger plugged into an outlet by the television, she connected her phone to the charger, and they chatted briefly. He asked if he could kiss her, and she said yes. After they made out for a few minutes, Jane Doe 1 told him she was "very wet," and he said, "let's do it." They walked towards the bed, and each began taking off their own clothes. They had intercourse. Jane Doe 1 never asked him to wear a condom, never indicated that she did not want to have sex with him, and never asked him to stop. After he ejaculated, Jane Doe 1 stated she needed to go, rejecting his offer of a ride. When she went to get her phone, it had not charged. She was upset but got dressed and left the house.
At some point during the encounter, Jane Doe 1 had given him her phone number. Nieto called her that night and then saw her at his house within the next couple of days. They talked and had consensual sex at least twice. Another time, Nieto drove to M.C.'s residence to drop off some marijuana, and Jane Doe 1 came out and introduced him to her daughter, who he recalled was named Stephanie. Nieto next recalled Jane Doe 1 returning to his house, where they had sex at least twice, she took a shower, and they spoke about her going to Patterson. Generally, Jane Doe 1 did not share many details about her life with Nieto. However, this time she told him she lived in Patterson, was having trouble with her daughter's father, had come to pick up her daughter, and was going back to Patterson. That time, Nieto got a ride from a friend named Markie, and they dropped Jane Doe 1 off at M.C.'s residence.
As stated above, Jane Doe 1's daughter is Anabell, not Stephanie.
The last time Nieto saw Jane Doe 1 was at the Greyhound station. Jane Doe 1 had called him from the bus station, told him she was leaving, and suggested that he could come to the bus station, say goodbye, and bring some marijuana. He met Jane Doe 1 at the Greyhound station and gave her some marijuana. She may have given him some money. They decided to put her daughter inside his car, and she smoked the marijuana outside for a little while. Afterwards, he walked Jane Doe 1 and her daughter into the station, kissed her goodbye, and told her he would be in touch. Then he left. The next time he saw Jane Doe 1 in person was in court. During the course of the investigation, he encouraged the public defender's office to look for records from Greyhound. Nieto thought the records would be "vital" because they would show their relationship was not just "a one-time thing." Nieto and Jane Doe 1 both had Metro PCS phone service at the time, but he did not currently have access to any of the records.
In September 2018, Nieto was living in Hayward and working as an automobile technician. On the evening he met Jane Doe 2, he had gotten off work, bought some marijuana, and gone out driving. He had no specific destination, as he usually drove "where the night le[d] [him]." Nieto ended up in Oakland near East 15th Street and International Boulevard, areas he was aware were known for prostitution. As Nieto testified: "Once I was in the area and, you know, seeing all the girls it was like a nightclub out there, I had, you know, made it, I guess, a fair understanding to myself that, you know, if the situation arose[,] I would be sleeping with a prostitute." He was driving his black, two-door Mercedes SL 500. As far as he knew, the passenger door was working normally. He had never altered the lock. From inside the car, if the door handle was pulled, the door should have opened automatically if unlocked. The lock/unlock button was located on the center of the dashboard, accessible to the passenger and the driver.
Jane Doe 2 was standing on the right side of the street with two other women. She "trotted" over to his car and asked him through the open passenger-side window if he would like a "date"-"code for do you want to have sex for money." Nieto had previously had sexual contact with prostitutes six times that he could recall, and a greater number that he could not. He accepted Jane Doe 2's offer and unlocked the car. She pulled the lever and got in. Jane Doe 2 asked him if he was a cop, and Nieto said no, asking her the same question. She said no and then asked to touch his penis. After he allowed her to do so, Jane Doe 2 relayed that it would cost $100 for sex. She explained that they could park somewhere private, and they settled on $80 because she did not have a motel room.
They drove for two or three minutes until Nieto found a place to park. During that timeframe, Jane Doe 2 never told him to stop, never asked to get out of the car, and he did not see her try to open the car door. Instead, she was mostly on her phone and seemed interested in the seat heater. After parking, Jane Doe 2 asked for the money up front, and he gave her $80. She pulled her leggings and underwear off her left leg and handed him a condom, which he put on. After having sex, they discussed that they were both clean (referring to the possibility of sexually transmitted diseases), and he offered her $100 to have sex without the condom. She again asked for the money up front, and he gave it to her.
They then had "normal missionary sex" and Nieto's stomach, which is scarred, was visible to Jane Doe 2. She never screamed or cried or stated she did not want to have sex with him. Instead, she encouraged him in a sexual way, and he eventually ejaculated. He never punched or threatened her. However, when he had nothing for her to clean herself, she became frustrated and told him that it would cost him an extra $100. When he did not comply, she threatened him, stating: "Well, let's see what my pimp thinks about that." He told her to get out, but she "bunkered down and said no, crossed her arms and laid back on the chair." He then yelled "extremely loudly" in her ear that she should get out now, and Jane Doe 2 pulled the handle and got out of the car. She asked Nieto if he was going to drive her back, and he left, driving back to Hayward. Twenty or thirty seconds after he left, he saw her phone on the passenger's seat, opened the driver-side door, and threw it into the street. He never found a wallet.
Nieto was arrested in December 2018, and, during his initial interview with police, he was unable to identify Jane Doe 2. He stated, in fact, that he was" 'more than 200 percent I've never seen her.'" He also repeatedly stressed he would have remembered her if he previously had sex with her. Indeed, he claimed he would remember all of the women he had sex with. On cross-examination, Nieto acknowledged that, before he denied recognizing Jane Doe 2, his first response was, "to be honest, she looks like this girl I know, um, 2013, but it's definitely not her."
When Nieto was told he was being accused of rape, he did not deny it, replying simply "okay." When asked if he was capable of committing the crime of rape, he responded:" 'I think every human being is capable of doing that, and nowadays it's a very touchy subject.'" He later explained:" 'Well, I'm not willing to commit rape, which I guess is different. I think every person is capable of, I'm not willing, which is, you know, a matter of a person's perspective, or values, or beliefs, so, yeah, I'm not willing.'" Nieto also acknowledged being with over 150 women in his life-he lost count at either 153 or 157 sometime in his late 20's. Between 50 and 100 were one-night stands and approximately six were prostitutes.
Since that initial interview, Nieto believed he had reviewed all of the police reports in both cases. He also became aware that DNA evidence linked him to Jane Doe 2. However, Nieto denied he had reviewed Jane Doe 1's statements from June, July, and August 2020 in which she referenced her daughter and the father of her child. He admitted he was convicted in May 2014 of a felony crime of moral turpitude.
During his December 2018 interview with police, Nieto mentioned he had picked up a girl at a 7-Eleven a few days earlier, but at trial he was unable to testify about any specifics regarding that incident. However, he did recall that he first noticed Jane Doe 1 in 2013 because they were both wearing blue jeans, a white tee shirt, and white sneakers. Although he was familiar with that area of Oakland, he did not direct Jane Doe 1 to her aunt's house because she did not tell him where her aunt lived. From what he could recall, Nieto never left the car when he first talked to Jane Doe 1 and invited her to his home to charge her phone. But when asked what happened next, he testified: "So then we got in the car and we went to my place." In response to questions from the prosecutor, Nieto reiterated that it was at their second meeting that Jane Doe 1 told him she lived in Patterson and had come to her aunt's house to retrieve her daughter. The prosecutor then asked Nieto if he had access to Google, and Nieto responded: "I think everyone has access to Google." Nieto described his relationship with Jane Doe 1 as a "short affair." He was dating several other women at the time and, when asked who they were, Nieto replied: "Random floozies, to be honest." He could not remember the number or many specifics. "They were all just randoms." After Jane Doe 1 left for Patterson, they called or texted later that day. He believed he spoke to her after that day, but testified at some point he became homeless, lost his phone, and lost all connections.
When Nieto has sex with Jane Doe 2 in 2018, he was seeing two other girls-Cecilia and Ellie. He was familiar with cars, knew how to fix them, and would watch YouTube videos and read to gain knowledge about them. He had access to tools and special equipment at the auto mechanic shop where he was working. He liked to go out and drive at night when it was not as hot and there was not much traffic. After engaging the services of Jane Doe 2, Nieto looked for somewhere to park, eventually stopping under a streetlight next to a house.
E. Verdict and Sentencing
The case went to the jury with final instructions on October 28, 2020. On October 29, 2020, the jury found Nieto guilty of both rape counts and the second degree robbery count. It also found the multiple victim enhancement true with respect to counts one and two, and the kidnapping enhancements true with respect to Jane Doe 1 (count one). It found the kidnapping enhancements not true with respect to Jane Doe 2 (count two).
On February 5, 2021, the trial court sentenced Nieto to an aggregate term of 45 years to life in prison-including indeterminate terms of 25 years to life (count one) and 15 years to life (count two) on the two rape convictions, along with an upper-term determinate sentence of five years for second degree robbery, all to be served consecutively. After finding he had the ability to pay them through prison wages, the court also imposed a number of fines and fees. This timely appeal followed.
II. DISCUSSION
A. Prosecutorial Misconduct Claims
We first address Nieto's myriad claims that prosecutorial error violated his state and federal constitutional rights. "Such error occurs, as a matter of state law, when a prosecutor 'engage[s] in deceptive or reprehensible tactics in order to persuade the trier of fact to convict.' [Citation.] Federal constitutional error occurs only when the prosecutor's actions 'comprise a pattern of conduct that is serious and egregious, such that the trial is rendered so unfair that the resulting conviction violates the defendant's right to due process of law.'" (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 854.)
A prosecutor, however, "enjoys wide latitude in commenting on the evidence, including urging the jury to make reasonable inferences and deductions therefrom." (People v. Ellison (2011) 196 Cal.App.4th 1342, 1353; accord, People v. Dykes (2009) 46 Cal.4th 731, 768 (Dykes) [" '[a] prosecutor is given wide latitude to vigorously argue his or her case' "].)" 'To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (People v. Brown (2003) 31 Cal.4th 518, 553-554 (Brown); People v. Clair (1992) 2 Cal.4th 629, 663-664.) In addition, we examine the prosecutor's challenged statements in the context of the whole argument. (People v. Morales (2001) 25 Cal.4th 34, 46-48.) We note, however, that "[t]he defendant generally need not show that the prosecutor acted in bad faith or with appreciation of the wrongfulness of his or her conduct, because the prosecutor's conduct is evaluated in accordance with an objective standard." (People v. Bradford (1997) 15 Cal.4th 1229, 1333; accord, People v. Hill (1998) 17 Cal.4th 800, 822-823 (Hill).)
"To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury." (Brown, supra, 31 Cal.4th at p. 553; see also Hill, supra, 17 Cal.4th at p. 820 [defendant may not complain on appeal of prosecutorial misconduct unless he objected "on the same ground" at trial].) A failure to object or request an admonition can be "excused if an objection would have been futile or a request for admonition ineffectual." (People v. Potts (2019) 6 Cal.5th 1012, 1035.) Thus, forfeiture is appropriate when it appears the trial court would have sustained a meritorious objection and "that any prejudice could have been cured by an admonition emphasizing that the jury should follow the court's instructions and disregard the statements at issue." (Ibid.)
As a general matter, we review a trial court's rulings on prosecutorial misconduct for abuse of discretion. (People v. Ramirez (2022) 13 Cal.5th 997, 1122-1123; accord People v. Alvarez (1996) 14 Cal.4th 155, 213.) However, when a claim of prosecutorial misconduct presents a question of law on undisputed facts, the appellate court reviews the issue de novo. (People v. Uribe (2011) 199 Cal.App.4th 836, 860.) Here, Nieto asserts multiple instances of prosecutorial error within six broader categories. Specifically, he argues that the prosecutor improperly: (1) urged the jury to convict based upon extraneous societal problems; (2) cast aspersions on defense counsel; (3) vouched for prosecution witnesses; (4) implied that there were additional, unnamed victims; (5) misused limited-purpose evidence; and (6) misstated the law. We address each category in turn, finding no meaningful error.
1. Urging Jury to Solve Societal Problems
" 'It is, of course, improper to make arguments to the jury that give it the impression that "emotion may reign over reason," and to present "irrelevant information or inflammatory rhetoric that diverts the jury's attention from its proper role, or invites an irrational, purely subjective response." '" (People v. Redd (2010) 48 Cal.4th 691, 742 (Redd).) Nor should a prosecutor "suggest that jurors disregard instructions and consider public opinion in determining the guilt phase of a criminal trial." (People v. Morales (1992) 5 Cal.App.4th 917, 928; see also People v. Shazier (2014) 60 Cal.4th 109, 144-145 (Shazier) [prosecutorial error to suggest family, friends, and community would condemn not true verdict in Sexually Violent Predator case; "[b]ecause the specter of outside social pressure and community obloquy as improper influences on the jurors' fairness and objectivity is so significant, we cannot countenance argumentative insinuations that jurors may confront such difficulties if they make the wrong decision"].)
On the other hand, our Supreme Court has routinely upheld as proper prosecutorial comments comparing the jury to the"' "conscience of the community." '" (People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 789 (Holmes, McClain) [not error to urge jury to solve social problems of gangs and violence by returning convictions]; accord, People v. Gamache (2010) 48 Cal.4th 347, 389 ["We have on numerous occasions considered this turn of phrase and rejected the contention that it invites jurors to abrogate their personal responsibility to render an appropriate verdict in light of the facts and the law. Jurors are the conscience of the community."]; People v. Lucero (2000) 23 Cal.4th 692, 734.) In addition, our high court recently concluded it was "fair comment on the crimes committed and the jury's role in dispensing justice"-and not inflammatory rhetoric-to request convictions so that the victims "could rest in peace." (Holmes, McClain, at p. 789.)
Nieto faults the prosecutor for urging jurors to convict him, not because he was guilty, but to help solve societal problems. We consider first his challenges to a series of related remarks, starting with the following argument made by the prosecutor at the beginning of her closing: "For weeks you have heard the victims being asked countless times, 'Is this the truth or is this a lie?' without any real attention or inquiry as to why they weren't originally forthcoming. And that's because we can't question the truth we all know to exist. That despite how much we want to think that we are there, that we are on the other side, that we believe women, that we believe prostitutes can be raped, that we believe women don't just deserve it because they put themselves at risk, this trial was a perfect demonstration that we still have a lot of work to do. [¶] But what you also saw in this trial is the impact of someone saying, 'I believe you. I don't care where you came from or what you did, you did not deserve to be raped. [¶] Now it is your turn to tell Jane Doe 1 and Jane Doe 2 that despite whatever they told themselves, that you too don't care what they did or where they came from, that they did not deserve to be raped by the defendant Alvaro Nieto." Defense counsel objected on "[i]mproper argument" grounds and stated he had a motion. After an unrecorded sidebar, the trial court sustained the objection and admonished the jury "to disregard the argument about sending a message." Defense counsel did not request a different admonition or state that the court's admonition was insufficient. (See People v. Fuiava (2012) 53 Cal.4th 622, 728 (Fuiava) [failure to request a different admonition forfeits claim related to the sufficiency of the admonition given].)
Later in her closing the prosecutor returned to these themes, arguing without objection that "we still have a long way to go before we believe women" and that "[a]s much as we want to think we are there, that we truly believe women, that we truly believe prostitutes can be raped, you see the narrative is well and live amongst us." Similarly, the prosecutor argued in rebuttal: "[J]ust because someone is different or has made different choices, doesn't mean they can't be a victim of crime. Arguably, it's those people that need it the most, need help the most. It's the ones that are a fringe of our society, living day-to-day just trying to get by.... If we don't care about them, who will?" Defense counsel's improper argument objection was overruled. Finally, the prosecutor remarked: "How as a society did we get here? At what point do you diminish someone's worth by a job or how much money they have in their pocket. It has to stop. Because who wins? That man. That man who preyed on the weak, knowing at the end of the week no one will care[,] and no one will believe them." Defense counsel objected as improper argument and appealing to passions, prejudice, and sympathy, and the trial court overruled the objection.
As we have recounted, the defense did not object to some of these remarks. In addition, it is unclear whether defense counsel's "improper argument" objection to the beginning of the prosecutor's closing was properly preserved and/or covered the whole paragraph he now challenges. However, because defense counsel did clearly object to similar remarks during the prosecutor's rebuttal, we will reach the merits of all of these related claims, making a finding of forfeiture only where we expressly note that no objection was made. With respect to the prosecutor's "sending a message" comment, even if we were to assume this was misconduct (which we do not), we conclude that the court's admonishment was sufficient to dispel any possibility of juror confusion.
Nieto contends that this line of argument improperly inflamed the passions of the jurors and urged them to protect community values through their verdict. He objects to what he characterizes as the prosecutor's central theme-"that 'society' did not believe or care about women who 'put themselves at risk' and that it was the jury's obligation to remedy this problem by holding [Nieto] 'responsible.'" We are not convinced.
As Nieto, himself, has repeatedly stressed, the central issue in this case, given the consent defense, was credibility. The prosecutor was representing two complaining witnesses, one a prostitute, who had repeatedly lied and changed their stories. One way the prosecutor addressed this credibility issue was by providing evidence that Jane Doe 1 and Jane Doe 2 initially told different stories because they did not feel they would be believed due to the poor choices they had made-i.e., getting into the car, trusting a stranger, working as a prostitute. These challenged prosecutorial arguments never urged the jury to ignore its responsibility to render an appropriate verdict in light of the facts and the law. Rather, they asked the jury not to make its decision based on any preconceived notions regarding the credibility of women who are marginalized or have somehow put themselves at risk.
The two federal cases cited by Nieto are distinguishable on this basis. In U.S. v. Koon (9th Cir. 1994) 34 F.3d. 1416, 1443 (Koon), reversed on other grounds sub nom. Koon v. United States (1996) 518 U.S. 81, the Ninth District opined: "A prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking. The evil lurking in such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to [his or her] own guilt or innocence. Jurors may be persuaded by such appeals to believe that, by convicting a defendant, they will assist in the solution of some pressing social problem." (Id. at p. 1443; accord, People v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1149; but see Holmes, McClain, supra, 12 Cal.5th at p. 789 [not error to urge jury to solve social problems of gangs and violence by returning convictions].) The federal court, however, went on to make clear that "[a]n appeal to the jury to be the conscience of the community is not impermissible unless it is 'specifically designed to inflame the jury.' '' (Koon, supra, 34 F.3d at p. 1444.) As stated, above, the prosecutor here was not suggesting that the jurors act on their passions and prejudices. To the contrary, she was simply asking jurors to judge the credibility of the two women based on the evidence presented rather than any extraneous notions about who these women were.
In his related petition for habeas corpus (A165691), Nieto argues that defense counsel was ineffective for failing to object to many of these comments because they constituted misconduct for the reasons proffered above. Since we have found no misconduct, his related habeas assertions necessarily fail.
Nieto additionally assigns misconduct to the prosecutor's statement, made without objection: "[The police] devoted three minutes to a rape victim. In what world is that okay? . . . . [¶] Do you think that would have happened if Jane Doe was the police chief's niece or came from a family with money and connections? Absolutely not. . . . [¶] What impact does that have on her to never hear from the police again?"
Nieto argues that the prosecutor's comments regarding the "three minutes" the police spent on Jane Doe 1's rape allegations were not based on the evidence, were irrelevant, and were designed to appeal to the social and economic prejudices of the jury and elicit an emotional response. He has forfeited this claim. However, the remarks were fair, albeit exaggerated, comment on the evidence regarding the sparseness of the police's initial response. (See People v. Lee (2011) 51 Cal.4th 620, 648 (Lee) ["At worst, the prosecutor's characterization . . . was 'hyperbole' that fell 'within the scope of permissible argument' "].) More importantly, the comments were focused on how the lack of attention from the police made Jane Doe 1 feel. Her marginalized status as a young, poor, homeless woman of color was relevant to her credibility, as it helped explain why she would not initially trust that the police would believe her. Nor do we see the statements as designed to inflame the jury into failing to follow the law. We thus find no misconduct on this basis and, consequently, no ineffective assistance in failing to object as alleged in Nieto's related habeas petition (A165691).
The prosecutor later elaborated without objection: "You don't convict in this case, no article will be written, no news will be made, no money will be shifted to another candidate in the next election, and no one at the Oakland Police Department will have to answer as to why one call and one letter to a rape victim was not due diligence, or how if they only had done more, Jane Doe 2 would have never been a victim." Citing Shazier, supra, 60 Cal.4th at p. 145, Nieto argues it is misconduct for a prosecutor to refer to "the potential community reaction to [the jury's] verdict." Although forfeited, this claim also fails on the merits. Shazier held it was misconduct to suggest to jurors that they might suffer negative social consequences if they found the defendant not guilty: "Because the specter of outside social pressure and community obloquy as improper influences on the jurors' fairness and objectivity is so significant, we cannot countenance argumentative insinuations that jurors may confront such difficulties if they make the wrong decision." (Ibid.) Here, in obvious contrast, the prosecutor argued the exact opposite-that a not guilty verdict would have no societal consequences on the jurors of any kind. Shazier is thus inapposite. To the extent the prosecutor's comments implied that, since no one would care about an acquittal, only the jurors had the power to enforce the law, this was not misconduct. (Holmes, McClain, supra, 12 Cal.5th at p. 789 [no misconduct to urge jury to solve societal problems as the conscience of the community or as part of their role in dispensing justice].)
Finally, Nieto discusses the propriety of the prosecutor's comment that "[w]e heard in jury selection how prostitutes deserve it. How they put themselves at risk." Defense counsel's facts-not-in-evidence objection was overruled. Although this comment was included within a long quotation from the record in Nieto's opening brief, he made no reasoned argument as to why this particular statement was misconduct. We therefore conclude he has forfeited the claim on appeal. (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 799.) Regardless, the contention is without merit. Assuming without deciding that referring back to voir dire in this context was improper, a prosecutor "may argue facts not in evidence that are common knowledge or drawn from common experiences." (People v. Young (2005) 34 Cal.4th 1149, 1197.) It is common knowledge that prostitutes, given the job they perform, put themselves at risk and that some people, therefore, think they "deserve" any abuse they receive.
2. Disparaging Defense Counsel
" 'It is, of course, improper for the prosecutor "to imply that defense counsel has fabricated evidence or otherwise to portray defense counsel as the villain in the case." '" (Redd, supra, 48 Cal.4th at p. 749; accord, People v. Turner (1983) 145 Cal.App.3d 658, 674 (Turner) ["A criminal defense lawyer may properly attack a witness' credibility even though that witness is also the victim of the crime. The prosecutor, however, commits misconduct when, through careful use of words, he labels defense counsel as an additional attacker in a prosecution of a violent offense."], disapproved on other grounds in People v. Newman (1999) 21 Cal.4th 413, 422, fn. 6 and People v. Majors (1998) 18 Cal.4th 385, 411.)" 'When a prosecutor denigrates defense counsel, it directs the jury's attention away from the evidence and is therefore improper. [Citation.] In addressing a claim of prosecutorial misconduct that is based on the denigration of opposing counsel, we view the prosecutor's comments in relation to the remarks of defense counsel[] and inquire whether the former constitutes a fair response to the latter.'" (People v. Pearson (2013) 56 Cal.4th 393, 431-432.) Here, Nieto cites three instances where he alleges the prosecutor denigrated the defense function, negatively impacting his constitutional rights to counsel and confrontation. We conclude none of these related remarks rise to the level of prejudicial misconduct.
The prosecutor first argued in closing: "You heard from both Jane Doe 1 and Jane Doe 2 that at the time of their SART exam they wanted nothing to do with their bodies. If possible, they would have done anything to trade the shell that now contained them for the person that they were before. Yet the defense relentlessly asked them if they documented their injuries." Defense counsel interposed an improper-argument objection and asked for a sidebar. After argument in chambers, the trial court overruled the objection. The prosecutor then continued, arguing that the Jane Does were not focused on their physical injuries at the time of the rapes, which bolstered their credibility: "There are things like survival that are bigger than preparing for a trial . . . . But if they were lying, if they were in fact not violently raped . . . why not document every little thing?"
After breaking for lunch, the court allowed the parties to put the objection discussed in chambers on the record. Defense counsel noted his objection to the prosecutor implying there was "something improper" about defense counsel "relentlessly questioning the complaining witnesses" as denigrating the defense function and asked for an admonition. He also objected to statements that the witnesses wanted "nothing to do with their bodies" as improperly appealing to the passions and sympathies of the jury and asked for an admonition. The prosecutor responded that all such statements were reasonable argument based on the facts of the case. The trial court then summarized: "And I overruled the objection, although I noted that comment or argument about cross-examination by defense counsel is potentially denigrating the defense function and I requested that counsel for the People not make any such arguments again" and "kind of flag[ged] it as a potential issue going forward."
Shortly after resuming her closing argument, the prosecutor made the second series of comments to which Nieto objects on appeal, explaining: "Now I want to make it clear. I find no fault in the defense attorney asking questions of the victims and having them explain their experience. That's his job. But it is those types of questions, the ones that say, Did you knock on someone's door? Did you run? Did you kick? Did you scream? And those expected responses that cause[] victims of sexual assault to not want to report because of their experience . . . ." Defense counsel interjected with an objection and asked to approach. After a sidebar in chambers, the trial court instructed the prosecutor to continue without making any ruling on the objection. The prosecutor went on to argue that Jane Doe 1 did not initially tell the police she was raped in a house because she did not think they would believe her and feared they would ask her these same types of doubting questions.
Third, the trial court overruled defense's counsel's denigrating-defense-counsel objection to subsequent remarks made by the prosecutor in closing argument as follows: "Now on cross-examination, there were moments when [Jane Doe 1] shut down. She refused to have her recollection refreshed and she wasn't answering questions. I can only assume that the argument is going to be that she answered the questions on direct, but didn't answer them on cross; therefore, she's not believable. But remember what caused that reaction. She said . . . she felt attacked. [Objection made and denied.] And what does she do when she feels attacked? She told you she shuts down."
In an overnight pleading, the prosecutor maintained that her argument with respect to the types of questions asked by defense counsel was not misconduct because it was meant, not to denigrate counsel, but to bolster Jane Doe 1's credibility by explaining why she lied-because she felt she would not be believed. The prosecutor highlighted Jane Doe 1's testimony that she was naive to trust a stranger and to go into his home; that the police would blame her; and that she blamed herself for her stupid decisions. The prosecutor also stressed her statement to the jury that she did not fault defense counsel for doing his job in questioning the Does. In a related vein, the prosecutor argued that Jane Doe 1's breakdown during cross-examination occurred when she was being asked about things she did or failed to do during the assault. Thus, Jane Doe 1 broke down for reasons similar to those that led her to lie in her initial statement to the police.
At the hearing on these issues, the trial court acknowledged that, during the initial sidebar, it felt that the prosecutor's comments regarding the defense's questioning on cross-examination denigrated the defense function or came "too close to it for the Court's comfort." It had been inclined to find misconduct and admonish the jury but agreed to give the prosecutor time to brief the issue. Thereafter, however, the court was persuaded by the prosecutor's written arguments that no misconduct occurred. Specifically, it concluded that the statement before the second sidebar-even if it went beyond the evidence by commenting on the behavior of sexual assault victims generally-was not misconduct and did not warrant an admonition.
Our review of these three sets of remarks, both in the context in which they were made and within the framework of the argument as a whole, also leads us to the conclusion that no prejudicial error occurred here. The prosecutor's comments referencing defense counsel's repeated cross- examination of the Jane Does regarding physical injuries came in direct response to that questioning and explained why such documentation might be lacking-the women were focused on the emotional trauma of the rapes rather than any physical injuries. The statements were not faulting defense counsel for asking the questions. They were attempting to rehabilitate the victims and bolster their credibility, an issue which, as we have discussed, was central to the prosecution's case.
Similarly, the prosecutor's two references to the type of doubting questions asked by defense counsel and the police were made to explain why the Jane Does might initially lie to make their accounts more acceptable and why Jane Doe 1 might shut down when being asked such questions on cross-examination. (Compare Turner, supra, 145 Cal.App.3d at p. 673 ["We have no quarrel with the prosecutor's theory that it was necessary for him to buttress Ms. B.'s credibility by explaining the rigors through which she had to proceed, starting with the indignity of the offenses and continuing through the numerous judicial proceedings."]; see also Redd, supra, 48 Cal.4th at p. 738 ["A prosecutor is not prohibited from challenging an inference raised by a question merely because defense counsel thereby made be cast in a poor light for having posed the question."].) Finally, these proceedings are clearly distinguishable from Turner, the case on which Nieto relies, because the prosecutor here dispelled any possible prejudice by acknowledging that defense counsel was just doing his job in asking the hard questions. Thus, it is not reasonably likely the jury understood or applied any of the complained-of comments in an improper manner, as a disparagement of defense counsel. (Brown, supra, 31 Cal.4th at pp. 553-554.)
To the extent the prosecutor's remarks may have gone beyond the evidence in commenting on the behaviors of sexual assault victims generally, this isolated comment does not rise to the level of prosecutorial misconduct.
3. Vouching for Witnesses
As our Supreme Court has repeatedly held:" '[A] prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of [his or] her office behind a witness by offering the impression that [he or] she has taken steps to assure a witness's truthfulness at trial. [Citation.] However, so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the 'facets of [ the ] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,' [the prosecutor's] comments cannot be characterized as improper vouching. (People v. Stewart (2004) 33 Cal.4th 425, 499, quoting People v. Frye (1998) 18 Cal.4th 894, 971 (Frye), italics in Stewart; accord, People v. Seumanu (2015) 61 Cal.4th 1293, 1330; People v. Boyette (2002) 29 Cal.4th 381, 433 (Boyette).) Nieto cites eight instances of allegedly impermissible vouching. We follow the convention adopted by both parties and consider them in two groups: those for which an objection was lodged and those where no objection was made. None of the identified remarks rise to the level of prejudicial misconduct.
i. Preserved Vouching Claims
During trial, Mancuso, a physician's assistant, testified about how she typically conducts a SART exam. She described such exams as intrusive, requiring the victim to be vulnerable and exposed after disclosing that they were sexually assaulted. Jane Doe 1 testified that she did not remember much about the day after the assault, but she recalled the SART exam took "forever" and was uncomfortable. Nieto first asserts improper vouching based on the prosecutor's comments that Mancuso asked survivors to recount their stories, "forcing them to relive the worst moment of their life for a third time that night. She then moves into the physical exam where the survivor must get naked and expose the portions of their body that were just violated by yet another total stranger .... [¶] . . . For two hours, their body is poked and spotted [sic].... All the while the patient is stuck on a gurney, looking up at the ceiling, contemplating how they got there as flashes of their assault come[] back to them." The trial court overruled defense counsel's facts-not-in-evidence objection. On appeal Nieto argues these comments constituted misconduct because there was no evidence in the record that either Jane Doe had ever "personally experienced flashbacks while being stuck to a gurney." We are not persuaded.
To begin with, Mancuso was talking about standard procedure, not the specific experience of either Jane Doe. Moreover, the prosecutor was referencing Mancuso's testimony in an attempt to bolster the credibility of the Jane Does, as another way "to show that this is nonconsensual." Indeed, she finished the challenged remarks by exclaiming: "Why on earth would anyone submit to that level of intrusion if it wasn't for something bigger? Why on earth would someone put themselves through that unless they were in fact assaulted." The vast majority of the prosecutor's remarks were fair comment on the evidence. (See Boyette, supra, 29 Cal.4th at p. 433 ["Although a prosecutor may not personally vouch for the credibility of a witness, a prosecutor may properly argue a witness is telling the truth based on the circumstances of the case."].) To the extent the prosecutor may have gone beyond the evidence by suggesting a typical sexual assault victim undergoing such an exam would be reliving the assault, the comment was a reasonable inference from the evidence. And to the extent the prosecutor may have exaggerated throughout this passage in her choice of language, it did not amount to misconduct. (See Lee, supra, 51 Cal.4th at p. 648 ["At worst, the prosecutor's characterization . . . was 'hyperbole' that fell 'within the scope of permissible argument' "]; People v. Ford (1964) 60 Cal.2d 772, 800-801 (Ford) [some "misstatements may be excused as . . . exaggerations spoken in the heat of trial"], overruled on another ground in People v. Satchell (1971) 6 Cal.3d 28, 38.)
Next, Nieto challenges the following argument from the prosecutor as improper vouching: "[Jane Doe 2] told you time and time and time again that she did not disclose because, who would believe a prostitute? And you heard from law enforcement that that's a legitimate claim. Yes, we deem them not credible." Defense counsel objected that the prosecutor misstated testimony and argued facts not in evidence, but the trial court overruled the objection. Jane Doe 2 did state several times that her reason for not reporting she was a prostitute was because she feared she would not be believed. She reported she personally knew prostitutes who were sexually assaulted and not believed by the police. And Officer DelMoral testified that "not many" prostitutes disclose sexual assault because "they don't believe that we're going to see them as credible." While we have not found officer testimony in the record saying that this fear is well founded, the officer did testify that the fear was "legitimate" in that it was one shared by other prostitutes. The point of the prosecutor's argument was to explain why Jane Doe 2 would initially lie about being a prostitute and the testimony in evidence supports that this fear was not irrational. The prosecutor's misstatement added little to this calculus. We thus see nothing rising to the level of misconduct.
Third, the prosecutor argued: "I have been very up front about this. The victims in this case cannot remember certain details. There have been inconsistencies and, yes, they initially did not tell the truth. But the law and common sense tells us inconsistencies sometimes are okay. And this comes directly from the jury instructions. Because honestly sometimes people forget things or in a case of a rape victim, trauma-this is not the jury instruction- but in the case of rape victims, trauma impacts your recollection." Defense counsel's fact-not-in-evidence objection was overruled. Nieto argues on appeal that the portion of these remarks arguing that "trauma impacts your recollection" was not supported by evidence and improperly referenced testimony about "victimology" that had been excluded by the court. Nieto misreads the record. The trial court did sustain a number of objections to questions seeking testimony about the general victimology of rape victims. However, the court expressly distinguished impermissible victimology testimony from proper testimony by police officers based on their experience. There is significant testimony in the record supporting the prosecutor's argument that trauma impacts recollection. Indeed, Nieto concedes this argument in reply.
Finally, the prosecutor argued: "There's been this speculation as to why [the Does] would lie because they create a false report in 2013, create a false report in 2018 and it was needed to continue with the snowball....It's unreasonable. Women do not . . . go through this. They do not stand multiple days of cross-examination. They do not get to have their entire sexual history purviewed [sic] for a group of people they've never met." Defense's counsel's improper-argument, misstates-testimony, and misstates-the-law objections were overruled. Nieto claims on appeal that the prosecutor misrepresented the evidence because Jane Doe 1 was not examined regarding any of her sexual history other than with respect to the rape allegations and examination of Jane Doe 2 regarding her sexual history was very limited. However, as mentioned above, it was not misconduct for the prosecutor to attempt to buttress the credibility of the Does "by explaining the rigors through which [they] had to proceed, starting with the indignity of the offenses and continuing through the numerous judicial proceedings." (Turner, supra, 145 Cal.App.3d at p. 673.) It is a reasonable inference from the record (and also a matter of common knowledge) that even the limited sexual history presented at trial likely felt extremely intrusive to the Does. To the extent the prosecutor exaggerated the scope of the intrusion into their sexual lives at trial, she engaged in obvious hyperbole that had no reasonable likelihood of being understood by the jury in an improper manner. (See Lee, supra, 51 Cal.4th at p. 648 ["At worst, the prosecutor's characterization . . . was 'hyperbole' that fell 'within the scope of permissible argument' "].)
ii. Vouching Claims without Proper Objection
Although Nieto failed to object to the four sets of prosecutorial comments next discussed and has therefore forfeited any challenges to those remarks on appeal, his claims also fail on their merits.
Nieto first objects to the prosecutor's characterization of M.C. as Jane Doe 1's "favorite aunt" and Jane Doe 1 as M.C.'s "favorite niece" as not supported by the evidence. The prosecutor stated: "[M.C.] told you that Jane Doe 1 is her favorite niece. And before this incident, they were together often....And Jane Doe 1 told you that she hasn't seen her favorite aunt anymore because her aunt is a constant reminder of the worst day of her life. So if she was lying, why would she not see her favorite aunt? Jane Doe 1 testified that, prior to the rape, she was "close" to M.C. but that she no longer saw her because M.C. reminded her of the day of the incident. For her part, M.C. repeatedly described Jane Doe 1 as like a daughter to her, testified that they used to see each other "[a] lot," and offered that she knew her niece "very well." Nieto argues that this testimony is insufficient to support the prosecutor's use of "favorite" because parent-child relationships are often strained, but we agree with the Attorney General that Nieto is splitting hairs. On one of the occasions when M.C. described Jane Doe 1 as like a daughter to her, she also offered that, on the day after the incident, she was even more emotional and upset than Jane Doe 1 was. It is a reasonable inference from the evidence that, before the rape, the two had a close, positive relationship. We see no material misstatement. (Ford, supra, 60 Cal.2d at p. 800 [some "misstatements may be excused as trivial inaccuracies"].)
Next, the prosecutor argued that the Jane Does were not initially focused on their physical injuries because, at that point in time, "they were a stranger in their own skin. They only allowed their eyes to look forward because to look down would be acknowledgement of the reality that just happened to them." Nieto concedes that this was fair comment on Jane Doe 1's testimony but asserts that it misstated the evidence involving Jane Doe 2 because she testified that she did look at herself in the mirror at the hospital and noted her injuries. Again, we find no misconduct. The prosecutor prefaced these comments by maintaining that "at the time of their SART exam, [the Does] wanted nothing to do with their bodies." (Italics added.) Jane Doe 2 testified that, at the point she underwent the SART exam, she had not looked at herself and did not know what her face looked like. She just knew how it felt. For instance, she had cuts on the inside of her upper lip from her braces that she showed the SART examiner. She did not look at her face until after the exam. She did not notice her chipped tooth or the blood on her jean jacket until the next morning. And it was two days later before she realized she had a cut inside her nose from a piercing. Moreover, Jane Doe 2 also disclosed that, since the incident, she did not feel comfortable in her own skin and hated who she was when she looked in the mirror. The prosecutor's comments thus fairly encompassed the experiences of both Jane Does.
Nieto's third claim is that the prosecutor erred by arguing: "[W]hat you also saw [i]n this trial is the impact of someone saying, 'I believe you. I don't care where you came from or what you did, you did not deserve to be raped.'" He argues that the "someone" was clearly the prosecutor and that by arguing that she believed the victims she "place[d] the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness's truthfulness at trial." (Frye, supra, 18 Cal.4th at p. 971.) Nieto, however, fails to identify anywhere in the record where the prosecutor told the Does before trial that she believed they were raped. Rather, Jane Doe 2 testified that the prosecutor told her she would not get in trouble for prostituting, and she did not care who Jane Doe 2 was or what she had done in the past. Jane Doe 2 also testified that she finally told the truth about being a prostitute because she thought the prosecutor would believe her. Similarly, Jane Doe 1 testified that she finally told the prosecutor about being raped in the house because she trusted that the prosecutor would believe her.
Moreover, the challenged remarks came immediately after the prosecutor's statement that there is still "a lot of work to do" before "we believe prostitutes can be raped [or] we believe women don't just deserve it because they put themselves at risk." In other words, the point the prosecutor was making was that the Does were told they would not be deemed to be lying simply because of their actions and life circumstances and this was powerful for them. Taken in context, we see no reasonable likelihood the jury would have understood these remarks as impermissible vouching.
To the extent the prosecutor indicated she believed the Does at trial, this was not improper vouching as there was no indication her beliefs were based on information other than that presented to the jury. (Frye, supra, 18 Cal.4th at p. 971.)
As a final argument, Nieto asserts misconduct based on the following remarks made by the prosecutor to counter the defense argument that Jane Doe 2 should not be believed because she received no consequences for her perjury: "If a victim of sexual assault was prosecuted for perjury every time we [sic] made a false report or said something that wasn't the truth, there wouldn't be sexual assaults. The fear of being prosecuted for perjury is exactly why [Jane Doe 2] didn't want to tell the truth. That fear that she was going to get in trouble, the very fear that the defense is saying supports her lack of credibility." According to Nieto, these comments constituted misconduct because they implied the prosecutor had extrajudicial evidence that all sexual assault victims made false reports or perjured themselves.We disagree. Although, again, obviously exaggerated, the prosecutor's statements were rooted in police testimony regarding their experiences with victims of trauma. Officer Rasler testified that it was "not uncommon" for a sexual assault victim's statement to change because of trauma or typical forgetfulness. And Officer Chung testified that "it requires really building a good rapport with the victim to try to get them to trust you, for them to really be able to calm down and try to recall all the details of that traumatic experience. So it requires a lot of patience and a lot of time to really get the facts accurately from these very traumatized victims." The prosecutor was simply pointing out that getting to the truth with sexual assault victims is generally not quick or linear and that prosecuting them for misstatements or even perjury during this process would be counterproductive. We find no prejudicial misconduct.
Nieto also claims that by saying "every time we made a false report," the prosecutor was placing the prestige of her office behind the victims by implying that she, too, had made false statements regarding sexual assaults. This is absurd. When read in context, the prosecutor obviously meant either "she" or "the victim," and the jury would not have believed otherwise.
In his related petition for habeas corpus (A165691), Nieto argues that defense counsel was ineffective for failing to object to three of these four instances of claimed impermissible vouching. However, since we have found no material misconduct, his related ineffective-assistance assertions also fail.
4. Suggestion of Additional Victims
Our high court has opined that it is error for a prosecutor to insinuate without evidence that there were additional victims or crimes that the defendant had committed. (Fuiava, supra, 53 Cal.4th at pp. 728-729, citing People v. Bolton (1979) 23 Cal.3d 208, 212 [prosecutor engaged in misconduct by" 'invit[ing] the jury to speculate about-and possibly base a verdict upon-'evidence' never presented at trial' "].) Nieto next highlights three ways in which he claims the prosecutor erred by implying, without any supporting evidence, that he had sexually assaulted other women in addition to Jane Does 1 and 2. He also complains in this context that the prosecutor improperly analogized him to a "predatory animal" out searching for these multiple "other" victims. (Compare Fuiava, at pp. 728-729 [prosecutor "improperly suggested to the jury that it speculate regarding aspects of defendant's violent criminal history that were not presented at the trial-by describing defendant as a 'killing machine' (although there was no evidence that defendant had killed [more than once]), and then, with regard to defendant's victims, asking that the jury speculate 'How many others are there?' "]; People v. Talle (1952) 111 Cal.App.2d 650, 673, 676 [repeated references to defendant as a" 'despicable beast,'" along with numerous other instances of prosecutorial misconduct, prejudicial].) However, in denying Nieto's new trial motion, the trial court found no misconduct on this basis, and we concur.
First, during her closing argument, the prosecutor explained: "I spent a long time questioning the defendant, but it takes time to show you what a serial rapist thinks like." After an unreported sidebar, the trial court overruled defense counsel's improper-argument objection. Noting that federal law defines "serial killing" as "three or more killings" (28 U.S.C. § 540B(b)(2)), Nieto argues on appeal that it was "therefore reasonably probable that the jury understood the prosecutor's argument to insinuate that there were additional, undisclosed victims."
We disagree. While "serial" can mean more than two in certain technical contexts, its generally understood meaning-"of, relating to, consisting of, forming part of, or arranged in a series, rank, or row" or "performing a series of similar acts over a period of time" (Merriam-Webster's 11th Collegiate Dict. (2017) p. 1136)-does not necessarily require more than two incidents. Here, as she asserted in her new trial opposition, the prosecutor was arguing that Nieto had committed two similar rapes, one following the other in a series. Moreover, if there was any ambiguity at all in the prosecutor's comments, it was dispelled when, immediately after the objection was overruled, she clarified: "So I spent a lot of time questioning the defendant because it takes time to show what someone who committed these two offenses thinks like, acts like, talks like." (Italics added.) We see no possibility of juror confusion with respect to the existence of additional, unnamed victims based on this fleeting comment.
Nor do we find Nieto's second misconduct claim persuasive. When describing Jane Doe 1's assault during closing argument, the prosecutor elaborated: "So it goes like this: [Nieto] drives by Jane Doe 1 on International. He sees her. Acknowledges that she's a female and therefore she's free game. He loops back around to make sure she's alone. He loops back around and sees that she's distressed, that she keeps looking down at her phone. Great. She can't call for help. Then he loops around again. He goes in for the kill. He cuts her off establishing his dominance, his superior position. He approaches her and offers her a phone charger, a phone charger that he knew all along was not in his car. [¶] Once she is close to his car, he realizes that she's not going to be as easy as the others. So he gives her a nudge." (Italics added.) Nieto contends that these comments analogized him to a predatory animal that had raped "others" before.
Although defense counsel did not object to this argument or seek an admonition and has therefore forfeited this claim, we reach the merits as it is easily dismissed. We note further that the trial court rejected the argument that the prosecutor committed misconduct by insinuating there were other victims in denying Nieto's new trial motion.
However, Nieto testified that he participated in consensual sex with over 150 women in his life, between 50 and 100 of whom were one-night stands. It therefore seems much more likely the jurors would have understood "others" to refer to his many consensual partners. Indeed, the prosecutor continued her argument, expressly making that point: "He tries to charm her in the car, make her fall for him, but she doesn't talk much. Turns out this may not be as easy as he wanted. She isn't falling for him like all the other women." (Italics added.) We see no error.
In addition, Nieto testified that he often drove all over the Bay Area at night-" 'wherever the road takes me' "-and, in addition to his multiple one-night stands, he had at least six encounters with prostitutes. Indeed, when he was arrested in December 2018, he told police he had picked up a prostitute at a 7-Eleven two days before. And he expressed his contempt for many of the women as "floozies" or "randoms." Given this evidence, along with the testimony of Jane Doe 1 and Jane Doe 2 regarding their encounters, we view the prosecutor's characterization of Nieto as a predator to be fair comment on the evidence. (See Dykes, supra, 46 Cal.4th at p. 768, quoting People v. Ledesma (2006) 39 Cal.4th 641, 726 ["A prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence" during closing argument.].)
Nieto's final complaint in this context challenges the following interpretation of the evidence offered by the prosecutor: "He makes these understandings with himself. These deals. Tonight will be a night that I'm going to pick up a floozie or a random or quite frankly anyone who is a female. Sadly these understandings, these deals are only made with himself. He doesn't consider the woman or whether or not she wants to participate. He makes this understanding with himself and he does so regardless of what she wants. And before he takes these drives, which he knows will end up with picking up a woman, he makes sure his car is ready to go. That the woman cannot escape." Nieto contends these remarks also paint him a sexual predator with multiple other victims. Although he forfeited this argument for failing to object, we reject his claim on the merits.
The bulk of these remarks are fair comment on the evidence we have just detailed above. Indeed, immediately after the prosecutor set forth this scenario, she tied it back to the case, concluding: "And that is what I submit to you the defendant did on January 25" with Jane Doe 1. Given that the Jane Does reported being unable to exit two different cars many years apart, it is perhaps a reasonable inference that Nieto may have altered his passenger door lock on more than two occasions. However, to the extent that the prosecutor's comments may have gone beyond permissible inference, we do not find the misstatement material. The prosecutor was arguing that Nieto had a specific modus operandi revealed in the two charged rapes. Although he might have had the door disabled on more than these two occasions, the prosecutor's remarks did not suggest that he had actually raped more than two women. Indeed, the evidence was to the contrary, as Nieto testified to numerous consensual one-night stands. We do not find it reasonably likely the jury would have improperly understood these comments to insinuate the existence of additional, undisclosed victims.
In his related petition for habeas corpus, Nieto argues his trial counsel was ineffective for failing to object to these last comments regarding his alleged modus operandi. However, as we have found no prejudicial misconduct, defense counsel was not ineffective for failing to object on this basis. (See People v. Jones (1979) 96 Cal.App.3d 820, 827.)
5. Misuse of Evidence Admitted for a Limited Purpose
"It is misconduct for a prosecutor to violate a court ruling by eliciting or attempting to elicit inadmissible evidence in violation of a court order. [Citation.] It is also misconduct for a prosecutor to make remarks in opening statements or closing arguments that refer to evidence determined to be inadmissible in a previous ruling of the trial court." (People v. Crew (2003) 31 Cal.4th 822, 839.) In addition, "urging use of evidence for a purpose other than the limited purpose for which it was admitted is improper argument." (People v. Lang (1989) 49 Cal.3d 991, 1022, abrogated on other grounds in People v. Diaz (2015) 60 Cal.4th 1176, 1190.) On appeal, Nieto cites three instances of misconduct in violation of these rules. We address each contention in turn.
Nieto first re-asserts his complaint (made previously under the guise of impermissible vouching) that the prosecutor committed misconduct by remarking in closing that trauma can impact a rape victim's memory, even though the trial court had ruled that testimony about "victimology" was inadmissible. However, as we have previously explained, the court expressly distinguished impermissible victimology testimony from proper testimony from police officers based on their experience. And there was significant police officer testimony in the record supporting the prosecutor's argument that trauma impacts recollection. Nieto concedes as much.
Similarly, Nieto repeats here his claim that the prosecutor impermissibly disparaged defense counsel by labeling him an additional attacker of Jane Doe 1, despite the fact that the trial court had expressed concern regarding this line of inquiry during both testimony and argument. Although he acknowledges that the trial court-after allowing the prosecutor to brief the issue-became convinced that no misconduct occurred, Nieto asserts that the prosecutor nevertheless erred by continuing with similar arguments after being admonished not to. This is just incorrect.
During her redirect examination of Jane Doe 1, the prosecutor asked questions about how it felt to be cross-examined regarding her written statement to the police. After the court sustained several objections, it allowed Jane Doe 1 to testify that she was "visibly upset" on the stand during cross-examination and repeatedly said that she did not remember and that her written statement would not refresh her recollection because she "was feeling attacked and not safe." Jane Doe 1 further testified that when she feels attacked, she "kind of break[s] down a little and get[s] really emotional and silent." This testimony was on October 13 and the reported sidebar in this timeframe had to do with admission of a prior consistent statement, not disparagement of defense counsel as Nieto suggests.
Instead, the sidebar identified by Nieto in this context occurred on October 15 during the testimony of Jane Doe 2. The prosecutor asked during redirect how it felt being cross-examined. The court sustained objections and then in a sidebar noted that it "[s]eems this approaches denigrating the defense function and may be improper." Jane Doe 2 never answered the questions and the prosecutor moved on. Importantly, the trial court did not admonish the prosecutor in any way.
Thereafter, during argument, the prosecutor made the statement discussed above about defense counsel questioning the Does regarding whether they had documented their injuries. At the following sidebar, the trial court asked the prosecutor not to make arguments disparaging cross-examination by defense counsel again. Thereafter, the prosecutor argued that fear of the types of questions asked by defense counsel (which she stated were perfectly appropriate for defense counsel to ask) make sexual assault victims reticent to report to the police and explained why Jane Doe 1 initially lied to the police about where her assault occurred. Indeed, at the final resolution of this issue by the trial court, defense counsel, himself, acknowledged that, at the second sidebar "there was a conversation about, [w]ell, if you specifically talk about the police function questioning the witness, that's sort of a separate thing." And the court remarked: "I was more comfortable with the arguments in this area about police questioning . . . sexual assault victims causing them to react a certain way rather than defense attorneys doing it . . . on lawful cross-examination. And I think that's why understandably [the prosecutor] then resumed her argument and it went the way it went, which is in my view fine." In sum, the prosecutor did not argue in violation of a prior court order.
Finally, Nieto asserts that the prosecutor misused evidence admitted for a limited purpose by arguing her cross-examination of him regarding his sexual encounters and relationships with other women proved his character or propensity for rape. In support of this contention, Nieto points to a comment made by the trial court out of the presence of the jury that some of the prosecutor's questions on cross-examination regarding Nieto's interactions with women were "starting to feel like [Evidence Code] section 1101 material." However, the court made no order at that time. The next day, the court did sustain one specific objection-based on relevance and Evidence Code sections 352 and 1101-to the prosecutor's questioning of Nieto about a woman he picked up at a 7-Eleven shortly before he was arrested. The prosecutor argued that since Nieto stated he would remember every women he ever had sex with and testified with "an extreme degree of specificity" regarding his encounters with the Does, she was questioning him about the more recent 7-Eleven woman to test his recollection. In sustaining the objection, the court agreed that "[q]uestions going to memory specifically are permissible." The prosecutor then questioned Nieto about his recall of the woman, and he was unable to remember any specifics. All of this, however, is largely irrelevant to Nieto's claim the prosecutor misused limited purpose evidence.
As we discuss further below, the testimony on which the prosecutor based the comments Nieto now challenges-regarding his consensual relationships with 150 women and his solicitation of prostitutes-did not relate to this single incident. Nor, as Nieto suggests in reply, did it come in under Evidence Code section 1108. Rather, it was general testimony elicited during cross-examination regarding statements Nieto made during his initial police interrogation, was admitted without objection, was relevant to his credibility, and did not come in for a limited purpose. (See People v. Chism (2014) 58 Cal.4th 1266, 1305 (Chism) [" 'Unless evidence is admitted for a limited purpose . . . evidence admitted at trial may generally be considered for any purpose.' "].) And it was fair comment on that evidence for the prosecutor to argue that his callous treatment of women undercut Nieto's credibility regarding his consent defense as well as his prior assertions that he, unlike "every person in this world," was incapable of rape.
6. Misstatement of the Law
Nieto finally cites four ways in which he claims the prosecutor committed misconduct by misstating the law, impermissibly lowering her burden of proof in "several critical respects." It is undoubtedly true that" 'it is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its . . . obligation to overcome reasonable doubt on all elements.'" (People v. Centeno (2014) 60 Cal.4th 659, 666.) However, we find no misconduct on these facts.
i. "Propensity" Arguments
Nieto first identifies multiple comments made by the prosecutor during her closing argument which he asserts misstate the law of propensity. In a criminal trial in which the defendant is accused of a sexual offense, evidence of other sexual offenses may be admitted in order to prove propensity pursuant to Evidence Code section 1108, subject only to screening pursuant to Evidence Code section 352. (Evid. Code, § 1108; People v. Villatoro (2012) 54 Cal.4th 1152, 1159-1160 (Villatoro).) However, the propensity statute "does not limit the admission or consideration of evidence under any other section of [the Evidence] [C]ode." (Evid. Code, § 1108, subd. (c).) We conclude that, either the prosecutor properly stated the law in this context or properly used admitted evidence for purposes other than propensity. In short, no prejudicial misconduct occurred.
For instance, Nieto claims the prosecutor misstated the law of propensity and lowered her burden of proof by arguing: "[H]ow do you explain two strangers who have never met, never spoke, whose stories are remarkably similar? The only explanation is that the defendant is capable and did rape both Jane Doe 1 and Jane Doe 2." The trial court overruled defense counsel's multiple objections, including improper argument, motions in limine, and Cruz. (See People v Cruz (2016) 2 Cal.App.5th 1178 (Cruz).) Nieto argues these remarks misstate the law of propensity as set forth in CALCRIM No. 1191B because the instruction requires one sexual assault to be proved beyond a reasonable doubt before it can be used to prove a propensity to commit the other sexual assault, and both sexual assaults must be proved beyond a reasonable doubt. According to Nieto, the remarks improperly suggested that "the mere accusation by two strangers with similar stories established Mr. Nieto's propensity and guilt as to both counts." We disagree.
The prosecutor here was not making a propensity argument but was instead discussing the improbability of Nieto's consent defense based on the "doctrine of chances." (See People v. Spector (2011) 194 Cal.App.4th 1335, 1378.) As our colleagues in Division Two of this District recently summarized: "The rule that evidence of prior acts negatives the claim of accident or innocent motive is sometimes described as 'the doctrine of chances.' [Citation.] The idea is that' "[i]nnocent persons sometimes accidentally become enmeshed in suspicious circumstances, but it is objectively unlikely that will happen over and over again by random chance." [Citation.] "The doctrine does not ask the jurors to utilize the defendant's propensity as the basis for a prediction of conduct on the alleged occasion. Instead, the doctrine asks the jurors to consider the objective improbability of a coincidence in assessing the plausibility of a defendant's claim that a loss was the product of an accident or that he or she was accidentally enmeshed in suspicious circumstances." [Citation.]'" (People v. Phillips (2022) 75 Cal.App.5th 643, 672; compare People v. Kelly (2007) 42 Cal.4th 763, 786 [finding prior acts evidence logically relevant where "[i]t would have been a remarkable coincidence if, shortly after defendant violently assaulted two women he befriended at the fitness center, some different person happened to use that same apartment to assault another woman [the] defendant had befriended at the fitness center"].) Here, where the testimony of Jane Does 1 and 2 was generally admissible and logically relevant to both sexual assaults, it was not misconduct for the prosecutor to argue that the similarity of the two incidents both supported the credibility of the complaining witnesses and made Nieto's consent defenses improbable.
The authorities cited by Nieto in reply are either clearly distinguishable or outdated given the subsequent passage of the propensity statutes.
Nieto's next claim-that the prosecutor's description of the propensity instruction misstated the law-is easily dismissed when the challenged remarks are read in context. The prosecutor explained: "[CALCRIM 1191B] states that if I have proven beyond a reasonable doubt that the defendant committed one or more of these crimes, you may but you are not required to conclude [from] that [] evidence that the defendant is disposed or inclined to commit sexual offenses, and based upon that decision, also conclude that the defendant likely did commit this other sex offense[] charged in this case. [¶] So what does that mean? If you find beyond a reasonable doubt that Jane Doe 1 was raped, was forcibly raped by the defendant, . . . you can use that to prove that the defendant was disposed or inclined to commit sex offenses." The court overruled defense counsel's misstates-the-law objection and clarified: "If either attorney misstates the law or the facts, just determine the facts as found by you and remembered by you and the law as I give you at the close of argument." The prosecutor then continued: "So you can use that to support a finding of guilty for the other rape. . . [¶] So say you find the defendant guilty of forcibly raping Jane Doe 2, you can then use that verdict . . . to then find that he is disposed or inclined to commit sex offenses. And based upon that decision, also conclude that the defendant likely did commit the other sex offense. That being Count [One]."
Nieto asserts that, by arguing that the jury only had to find one of the rapes "true" and it could then "use that verdict" to conclude the "defendant likely did commit the other sex offense," the prosecutor absolved herself of the burden of proving the other count true beyond a reasonable doubt. Nieto did not object to this portion of the argument and thus has forfeited the claim. Regardless, we see no misconduct. The prosecutor's comments largely tracked the language of CALCRIM 1191B. She never stated that finding one sexual assault true beyond a reasonable doubt was sufficient to prove the other sexual assault. She simply argued that the jury could use the defendant's disposition to commit sex offenses "to support a finding of guilty for the other rape" or to conclude the "defendant likely did commit the other sex offense." Although the prosecutor did not mention the remainder of the instruction-which provides that propensity evidence is not sufficient in itself to prove the other charge and that the second charge must still be proved beyond a reasonable doubt-the trial court admonished the jury during this portion of the argument to follow the law only as provided by the court. Moreover, in addition to CALCRIM 1191B, the jury was instructed with CALCRIM 220 which defines the reasonable doubt standard and reiterates that the defendant is presumed innocent; it also explains that only proof beyond a reasonable doubt will overcome that presumption. We see no likelihood the jury applied the complained-of comments in an improper manner. (See Villatoro, supra, 54 Cal.4th at p. 1168 ["[T]he [propensity] instruction clearly told the jury that all offenses must be proven beyond a reasonable doubt, even those used to draw an inference of propensity. Thus, there was no risk the jury would apply an impermissibly low standard of proof."]; accord, People v. Jones (2018) 28 Cal.App.5th 316, 326.)
Nieto additionally challenges the following portion of the prosecutor's rebuttal: "[T]here's so much more that happened on September 29th[, 2018] that supports [Jane Doe 2's] story. There's so much more that happened [on] January [] 25th[, 2013] that supports [Jane Doe 1's] story. To use that as evidence collectively that they're telling the truth. The trial court sustained the defense's improper-argument objection after a sidebar and stated it would read the related instruction if it happened again. It denied defense counsel's request for an admonition. Nieto now argues that the court should have admonished the jury because the prosecutor misstated propensity law by "exhorting the jury to use the evidence of both offenses 'collectively.'" Again, however, this argument had nothing to do with propensity and thus does not support a misconduct claim or require an admonishment.
Prior to the challenged remarks, the prosecutor was discussing credibility, not propensity. She argued that, even though both Jane Doe 1 and Jane Doe 2 had been inconsistent in their statements, there were many reasons why they should still individually be believed. She then went on to suggest there were facts from one case that helped support the credibility of the other victim. This was not error. "In a prosecution for forcible rape, evidence is relevant if it establishes any circumstance making the victim's consent to sexual intercourse less plausible." (People v. Kipp (2001) 26 Cal.4th 1100, 1123-1124.) Moreover," 'evidence admitted at trial may generally be admitted for any purpose. A corollary of this rule is that the jury is free to apply its factual findings on one count in deciding any other count to which those facts are relevant.'" (Chism, supra, 58 Cal.4th at p. 1305; see also People v. Jones, supra, 28 Cal.App.5th at p. 330 [" '[E]vidence pertaining to the charged crimes is not admitted for a limited purpose, and no instruction is needed to tell the jury of its possible relevance. Evidence that the defendant committed the charged crimes is, by definition, relevant and admissible,'" quoting Villatoro, supra, 54 Cal.4th at p. 1180 (conc. &dis. opn. of Corrigan, J.)].)
As we discussed above with respect to probability, many of the similarities in the two rape allegations (such as, for instance, the inability to open the passenger door from the inside), were logically relevant to both rapes. Thus, it was not misconduct for the prosecutor to suggest that facts from one rape bolstered the credibility of the other victim. The trial court recognized as much when it commented, outside of the presence of the jury, that when a "fact is relevant to [one charge] and that fact is relevant to the [other charge,] [y]ou can use that fact for both charges. I think that's a fair argument."
Finally, Nieto asserts that the prosecutor misstated the law of propensity by arguing that his responses to her questions regarding his relationships with other women demonstrated that he did not respect or value women. She remarked: "I'm not asking you to cast judgment on the defendant for his choices of sleeping with women. That's not it. I didn't ask those questions to disparage him or make it seem like because you've slept with so many women you commit rape. No. I asked him those questions because you got to see how he views women. I don't care if he had slept with 10 people. If he would[n't] have called those women floozies or randos or talked about them in such a demeaning way, I don't care about the number, it's how you treat one woman. It's how you treat two. It's his words that describe that he has no respect for women. He doesn't value them. And it's someone who doesn't respect or value women that can get on top of them and force his body into theirs as they are screaming, Stop, please, no. All I wanted was a charger."
However, as stated above, the testimony that Nieto is referencing- regarding his many consensual sexual encounters and his history of picking up prostitutes-was not admitted pursuant to Evidence Code section 1108 which, as Nieto recognizes, applies only to uncharged sexual offenses. Nor does the record support Nieto's assertion in reply that the trial court admitted the evidence under Evidence Code section 1102, subdivision (b), which permits the admission of evidence of a defendant's character only in the form of opinion or reputation evidence and not evidence of specific acts. Rather, the evidence that formed the basis for the remarks challenged by Nieto came in as impeachment evidence during the prosecution's cross-examination of Nieto.
"The prosecutor is entitled to attempt to impeach the credibility of a defendant's testimony [citation] and point out inconsistencies between his or her testimony and prior inconsistent statements. When a defendant chooses to testify concerning the charged crimes, the prosecutor can probe the testimony in detail and the scope of cross-examination is very broad." (Dykes, supra, 46 Cal.4th at p. 764; see also People v. Doolin (2009) 45 Cal.4th 390, 438 [" '[b]y taking the stand, defendant put his own credibility in issue and was subject to impeachment in the same manner as any other witness' "].) Moreover, the limitations on the use of character evidence set forth in Evidence Code section 1101 do not "affect[] the admissibility of evidence offered to support or attack the credibility of a witness." (Evid. Code, § 1101, subd. (c); see People v. Abel (2012) 53 Cal.4th 891, 928 (Abel) [Evid. Code § 1101, subd. (a)'s "restriction on the use of character evidence has no application when the evidence is offered on the issue of a witness's credibility"]; People v. Ramos (1997) 15 Cal.4th 1133, 1179 [the only limitation on the use of character evidence to support or attack credibility is Evidence Code section 352].)
Here, then, Nieto knew before he testified that if he described his sexual encounters with the Jane Does as consensual, evidence from his prior interview with the police would be admissible to impeach him. He nevertheless opted to testify. Thus, evidence regarding his other sexual encounters was admissible to attack his credibility and the plausibility that his testimony at trial regarding consent was true. And the prosecutor's remarks were fair comment on that evidence. No witness-not even a criminal defendant testifying on his or her own behalf-is entitled to a false aura of veracity. (People v. Chavez (2000) 84 Cal.App.4th 25, 28.) We see no misconduct.
The trial court did not abuse its discretion in allowing the evidence regarding Nieto's treatment of women, his habits around them, and his beliefs regarding rape under Evidence Code section 352 because it was relevant to his consent defense and not unduly prejudicial under the circumstances of the case. Consensual sexual relations, and even the solicitation of prostitutes, is much less inflammatory than alleged rape. Indeed, the fact that he had so many consensual relationships, if believed, might have actually bolstered his testimony that his contact with the Does was consensual. To the extent it was excessive, the trial court sustained relevance objections. Since the challenged evidence was admissible as impeachment evidence, Nieto's argument in his related habeas petition (A165691) that defense counsel was ineffective for failing to seek its exclusion is without merit.
ii. The Law of Kidnapping
Next, Nieto contends the prosecutor misstated the law of kidnapping in two different ways. First, he faults the prosecutor for referencing statements from People v. Sattiewhite (2014) 59 Cal.4th 446 (Sattiewhite) for the propositions that "[k]idnapping does not require that the victim express some form of protest or resistance" and that "a person who consents must exhibit some 'positive cooperation in act or attitude.'" (Id. at pp. 476-477.) Nieto has forfeited this argument by failing to object in the trial court. Nevertheless, the claim also fails on the merits.
The prosecutor referenced the Sattiewhite language that "[k]idnapping does not require that the victim express some form of protest or resistance" (Sattiewhite, supra, 59 Cal.4th at p. 477) after discussing the force/fear requirement to argue that the "law recognizes that there is no right way to be a victim, to respond to any given situation, and we cannot devalue their experience because they do not respond the way that we would have responded with 20/20 hindsight and with space, distance and clarity." Thus, the fact that Jane Doe 1 did not scream, knock on the window, or flag down an outsider when she found herself trapped in the car did not negate a finding that she was being detained by force or fear. Similarly, Jane Doe 2's failure to scream, kick, or attempt to roll down the window did not mean that her will was not being overborne by force or fear. We see no misstatement of the law here. Indeed, no one would argue that an individual ordered to drive a car at gunpoint was not moved by force or fear, even if that individual remained calm and silent. The prosecutor's related comments hammering this point home did not constitute misconduct.
The prosecutor made the other reference to Sattiewhite when arguing that she had met her burden for proving lack of consent. Specifically, she paraphrased the following statement from the Supreme Court opinion: "[C]onsent must be an exercise of 'a free will.' Thus, one who is unable to form any preference at all (perhaps due to unconsciousness or intoxication) is not consenting by way of passivity. Rather, a person who consents must exhibit some 'positive cooperation in act or attitude.'" (Sattiewhite, supra, 59 Cal.4th at p. 476.) The prosecutor then argued: "Not one time did you hear Jane Doe 1 say that she told the defendant she wanted to be there. Not one time did you hear Jane Doe 1 say she was happy to be there, or that she was enjoying his company, that she was happy he offered the charger, that she was happy to be in his car, that she was happy to be at his house. Not once did you hear Jane Doe 1 display any form of positive cooperation in act or in attitude. At most, she was subdued, silent, contemplative, terrified, and ultimately told him, Give me back my phone. I want to leave.... There's no way she consented and there's no way he thought she did."
Noting that there is no kidnapping without the use of force or threat of force, Nieto asserts that the prosecutor argued he "was guilty of kidnaping because Doe [1] had not expressly stated she was 'happy' with the asportation." He argues the prosecutor thereby misstated the law and improperly shifted the burden of proof on consent and reasonable belief in consent to the defense. Nieto mixes apples and oranges.
As Nieto implicitly acknowledges, the prosecutor was not discussing the force or fear requirement in these remarks. She was addressing her burden on consent by emphasizing that (assuming Nieto's testimony was disbelieved) there was no evidence from which consent could be extrapolated. Moreover, we disagree that the prosecutor cited Sattiewhite out of context. Rather, she explained that consent cannot be inferred from pure passiveness (such as might occur with an unconscious or intoxicated victim) and then argued that there was no evidence beyond passivity in this record. The prosecutor began her discussion regarding the kidnapping enhancement by laying out all of the elements she was required to prove, and the jury instructions reinforced the law. We conclude that there was no reasonable likelihood the jury understood or applied the complained-of comments in an erroneous manner.
Consequently, we also reject Nieto's argument in his related petition for habeas corpus (A165691) that defense counsel was ineffective for failing to object to the prosecutor's argument on these grounds.
Nieto additionally claims misconduct in this context by arguing the prosecutor improperly suggested to the jury that it could find the kidnapping allegations true based upon asportation by fraud or trick alone. (See People v. Lewis (June 22, 2023, S272627) __ Cal.5th __ [2023 Cal. LEXIS 3530 at * 19] ["This general offense of kidnapping includes an element of force or fear. We have held it cannot be accomplished by fraud or deception alone."].) Nieto points first to the prosecutor's comments, made without objection, that he offered Jane Doe 1 a phone charger that "he knew all along was not in his car" and that he later grabbed the phone and took it into his house because he knew the phone was important to her, and she would not "leave without that phone. So he uses the phone as bait to lure her into that home." Defense counsel forfeited this claim by failing to object to these remarks.
Nevertheless, as the Attorney General highlights, the prosecutor never argued that Nieto used deception or fraud alone to accomplish the kidnapping. Rather, while the prosecutor argued that Nieto used the promise of a phone charger to lure Jane Doe 1 closer to the car, she stressed that he then pushed her into the car and trapped her inside. The jury reasonably could have found that the kidnapping was complete once they arrived at Nieto's house. The prosecutor, however, continued, arguing that Nieto grabbed Jane Doe 1's phone and left it in the house to lure her inside. But she also argued that, after Jane Doe 1 stated she wanted to leave, Nieto "block[ed] her from leaving, force[d] her into the house, follow[ed] closely behind her, and realize[d] if he [was] going to get sex from this girl, [he was] going to have to take it and so he [did]." We see no misstatement of the law.
In a related vein, Nieto argues that it was misconduct for the prosecutor in rebuttal to analogize Jane Doe 1 to a hitchhiker that entered a rapist's car without any force or fear and yet was kidnapped, because it indicated that asportation by fraud or trick alone was sufficient. Defense counsel's misstates-the-law objection to these comments was overruled. When the challenged remarks are considered in the context in which they were argued, we see no error.
The prosecutor stated, in response to a defense argument, the following: "You can't be a victim of kidnapping, but also be naive and trusting. It was argued that she can't have it both ways, Jane Doe 1. That she couldn't have been forced into a car[] but would have been naive and trusting of a stranger. Why are those things not compatible? What about a hitchhiker? A hitchhiker gets into a car. They agree to get into the car thinking that they are going to get a ride to the next destination. That driver has something else in mind. That driver is going to rape that hitchhiker. Does that mean that a kidnapping did not happen? No. And its unfair to put the blame on the trusting person." (Italics added.)
The prosecutor was thus not attempting to describe all of the elements needed to support a kidnapping charge. She was simply stating that making an initial trusting choice (such as, for Jane Doe 1, approaching the open car door to look for the promised charger) does not negate a subsequent kidnapping charge. (See People v. Morgan (2007) 42 Cal.4th 593, 615 (Morgan) [" 'Even if the victim's initial cooperation is obtained without force or the threat of force, kidnaping occurs if the accused" 'subsequently restrains his victim's liberty by force and compels the victim to accompany him further.'"' "].) Similarly, a trusting hitchhiker could make an initial naive choice and still be kidnapped, assuming force or fear was eventually used to move the victim a substantial distance. (Compare People v. Stanworth (1974) 11 Cal.3d 588, 602-603 [kidnapping convictions involving two hitchhikers proper where, though [the defendant's] initial movement of the victims was accomplished, not by force or fear, but because of the victims' belief that he would drive them to their stated destination, he thereafter stopped the car and forced them at gun point to walk for a distance of one-quarter of a mile to the point at which the other crimes were committed], disapproved on another ground in People v. Martinez (1999) 20 Cal.4th 225, 237 (Martinez).) Here, as discussed above, the prosecutor argued that, after her trusting approach, Nieto pushed Jane Doe 1 into the car and trapped her inside. We do not find it reasonably likely the jury would have concluded from her hitchhiker comments that force or fear was not required to support the kidnapping allegations.
iii. Bus Ticket Authentication
Next, in her rebuttal argument, the prosecutor attempted to undercut the probative value of the Greyhound bus ticket introduced by the defense, contending that it improperly invited the jury "to speculate because we know nothing about this ticket. We don't know when it was purchased. We don't know who purchased it. And we don't know if it was actually used. We don't even know if it's authentic because we never heard from anyone from Greyhound." Defense counsel objected, claiming misstatement of the law given the authenticating affidavit attached to the ticket. After confirming the affidavit was in evidence, the court overruled the objection. The prosecutor then wondered aloud why the defense didn't bring anyone in to explain the ticket documents if they were so important to the case, eliciting an objection for burden shifting. The court overruled the objection, again noting that the ticket had been authenticated by the affidavit. The prosecutor returned to this point a third time, claiming that the "only evidence we have authenticating the Greyhound [ticket] is the defendant." The trial court overruled the defense's objection that the prosecutor had misstated the law, this time explaining "[i]t's a different meaning of the word authenticating."
The defense actually admitted two Greyhound tickets in the name of Jane Doe 1, but only the one dated February 5, 2013 was relevant to the timeframe at issue in these proceedings. The other ticket was dated January 21, 2015.
On appeal, Nieto argues the prosecutor misstated the law of authentication, making it reasonably likely the jury concluded that the affidavit which was admitted into evidence with the ticket was insufficient to prove its genuineness. (See Evid. Code, §§ 1400, 1271, 1561.) We disagree. When the prosecutor's remarks are read as a whole, it is clear she was not claiming the bus ticket was fake, she was arguing its mere existence was insufficient to prove that Jane Doe 1 bought it, used it on that date, and/or met Nieto at the bus station. Moreover, no one familiar with the Greyhound ticket process was brought in to explain exactly what the ticket could establish. Thus, the only evidence that Jane Doe 1 met Nieto at the bus station on that date and took the bus to Modesto with her daughter came from Nieto. And, importantly, the trial court clarified for the jury both that the ticket had been properly authenticated by the affidavit and that the prosecutor was using the term in a different way during her argument. Nieto has not established any likelihood of juror confusion.
iv. The Law Regarding Spousal Rape
Nieto's final claim that the prosecutor misstated the law is easily dismissed. When explaining the elements of rape to the jury, the prosecutor noted she had to prove that Nieto and Jane Doe 1 were not married and suggested this was established by Jane Doe 1's testimony. She then made the following comment: "But I do want you to look at this element. The legislature in 2020, when cars are driving themselves and we are in a world of artificial intelligence, still requires me in a rape case to establish [] that a man and a woman were not married, implying that if they were married, is it not rape?" Defense counsel lodged objections for improper argument and misstating the law, which were overruled.
Nieto argues on appeal that the prosecutor misstated the law because rape (former § 261) and spousal rape (former § 262) were punished identically in 2020. That, however, is hardly the point. Nieto and Jane Doe 1 were not married, so the prosecutor had to prove her case under former section 261, which provided: "(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: [¶] . . . [¶] (2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." (Former § 261, subd. (a)(2), italics added.) The requirement in the statute that the perpetrator and victim be unmarried was anachronistic and might have been confusing to the jury. We thus do not fault the prosecutor for explaining that, even though silly, it was still an element of the crime she was required to establish. Nieto also claims the comment improperly appealed to extraneous political issues, but this was not a situation where, as Nieto previously argued, the jury was being asked to send a political message through its verdict. (Compare Koon, supra, 34 F.3d at p. 1443 [prosecutor should not attempt to persuade the jury "that, by convicting a defendant, they will assist in the solution of some pressing social problem"].) Finally, Nieto's argument that the comment was cumulatively prejudicial fails because there was no prejudice here to cumulate.
It was not until January 2022 that the spousal rape statute was repealed, and this requirement was removed from section 261. (See Stats. 2021, ch. 626, §§ 17, 20; § 261, subd. (a)(2).)
B. Pre-accusation Delay with Respect to the Rape of Jane Doe 1
1. Additional Background
In September 2020-shortly before trial commenced-Nieto filed a motion to dismiss the rape charge involving Jane Doe 1, asserting that the 89-month pre-accusation delay with respect to that charge violated his due process rights. The parties largely agree on the timing of events. Jane Doe 1 was raped on January 25, 2013. She underwent a SART examination, made an initial statement to the police, and provided her clothing from the incident to the authorities on January 26, 2013. The police also took a statement from M.C. at that time. The case was closed on March 20, 2013, after the police were unable to reconnect with Jane Doe 1. It was not until August 2014 that the OPD crime lab learned from the California Department of Justice that DNA taken from Jane Doe 1's clothing matched Nieto's DNA. The case was reopened in September 2014 as a DNA cold hit case but was again closed after renewed attempts to locate Jane Doe 1 were unsuccessful.
"[W]hen a defendant brings a motion to dismiss based on preaccusation delay, it is within the discretion of the trial court to rule on the motion before, during or after trial." (People v. Mirenda (2009) 174 Cal.App.4th 1313, 1330 (Mirenda).) Since this was a pre-trial motion and we review a trial court's conclusions based on the facts before it when it ruled, we take this summary solely from the information provided in the parties' pleadings and subsequent hearing on the motion to dismiss. (See People v. Cowan (2010) 50 Cal.4th 401, 431 (Cowan).)
Nieto was arrested and interviewed on December 28, 2018 with respect to the rape of Jane Doe 2. In February 2019, Nieto was charged with the rape of Jane Doe 2 and the discovery packet with respect to that offense provided in May 2019 informed Nieto about the Jane Doe 1 rape allegation for the first time. In December 2019, the police submitted a lab request to compare the buccal sample from Nieto obtained in Jane Doe 2's case to the DNA profile obtained in Jane Doe 1's case. In January 2020, OPD was advised that Nieto was included as the sperm donor from Jane Doe 1's underpants. Officer Rasler called Jane Doe 1 on May 27, 2020 regarding her 2013 case and set up an interview for June 11, 2020. The initial complaint charging Nieto with the rape of Jane Doe 1 was filed on June 11. Jane Doe 1 gave an updated statement to the police in June and July 2020.
Nieto asserted he was prejudiced by the pre-accusation delay because it prevented him from obtaining exculpatory evidence, including video surveillance, cell phone location and call history, and investigation into witnesses such as the other residents in the house and the individuals Jane Doe 1 contacted after the alleged rape. In addition, he claimed that the delay had an adverse impact on the memories of all parties and witnesses. And the defense had been unable to locate two OPD officers-Castillo and Chan-that had been involved in the investigation of the 2013 case. Nieto provided letters from Bay Area Rapid Transit (BART), the Walgreens on International Boulevard, and the Popeyes Louisiana Kitchen on International Boulevard stating that their video surveillance from 2013 no longer existed. Nieto also provided a declaration from an expert in cellular forensics stating that Jane Doe 1's phone records from MetroPCS would have been retained for either two years or five years, based on whether the account was pre-paid or postpaid; text message content is not retained; and cell tower information is only retained for 6 months.
The prosecutor opposed the motion, providing additional information regarding the trajectory of the investigation. The case was given to OPD Officer Ryan Chan on January 30, 2013. On March 6, 2013, he could not reach Jane Doe 1 at the telephone number listed in the report because it had been discontinued. The next day, he sent the SART exam to be tested and mailed contact letters both to M.C. and to an address in Hayward he had located through a database. Various other database searches provided no additional information. Officer Chan closed the case on March 20, 2013, after" 'unsuccessful attempts to contact'" Jane Doe 1. In April 2014, an OPD criminalist examined the SART kit. She sent the DNA profile obtained from the SART kit to the Combined DNA Index System (CODIS) in July 2014. On August 18, 2014, the Department of Justice notified the OPD Crime Lab that there was a CODIS hit to Nieto. Two days later, the OPD criminalist notified all involved parties that a confirmation sample needed to be obtained from Nieto.
The case was reopened as a DNA cold case hit on September 2, 2014. On September 8, 2014, OPD Officer Haley read the crime report and searched Oakland databases for Jane Doe 1, discovering her only encounter with the OPD was the January 2013 contact. An expanded database search uncovered that Jane Doe 1 had been arrested for narcotics, burglary, and theft in another county in 2009 and 2013. Also on September 8, Officer Haley attempted to contact Jane Doe 1 at the phone number listed in the report and was advised by an automated message that the call could not be completed as dialed. He could not leave a voicemail. Officer Haley then called M.C. at the phone number listed in the report and left her a voicemail asking for her to return his call. After a search for Jane Doe 1's current address, he found only the same address that had been discovered by Officer Chan. He mailed another contact letter to that address as well as to other addresses with which she might have been associated. After receiving no response to his efforts, Officer Haley closed the case once again on September 22, 2014, due to the unavailability of the complaining witness.
Four years later, in November 2018, the OPD criminalist who handled Jane Doe 1's case was notified that there was a case-to-case hit between Jane Doe 1's case and a case involving the September 2018 rape of Jane Doe 2. A buccal swab sample was still needed for confirmation and was obtained from Nieto when he was arrested in December 2018 with respect to the rape of Jane Doe 2. In February 2019, a complaint was filed in Jane Doe 2's case. Nieto waived time at his arraignment that month. In May 2019, Nieto received discovery which included a summary of the allegations involving Jane Doe 1. After a June 2019 preliminary hearing, Nieto was arraigned on the information in July 2019 and continued his time waiver.
OPD Officer Rasler reopened Jane Doe 1's case in December 2019 and requested a comparison between Nieto's sample and the DNA profile in Jane Doe 1's case. On January 24, 2020, it was determined that Nieto was included as the DNA donor. In May 2020, Jane Doe 1 met with the prosecutor and stated she was willing to participate in the prosecution. She gave follow-up statements in June and July 2020. An initial complaint was filed with respect to Jane Doe 1's rape charge in June 2020. In July 2020, Nieto entered a plea of not guilty and refused to waive time. At an August 2020 preliminary hearing, Nieto was held to answer on the 2013 rape charge.
The August 2020 preliminary hearing was heard before a different judge, and it does not appear that the transcript was provided to the trial court in connection with the motion to dismiss. We therefore do not discuss it in our review of the trial court's ruling. We have, however, reviewed the preliminary hearing transcript ourselves and conclude it adds no meaningful information with respect to the motion to dismiss.
After hearing argument on the previous day, the trial court denied the motion to dismiss on September 29, 2020. The court initially determined that there had been prejudice "just based on the amount of time and the showing of lack of memory alone." It then turned to the justification for the delay, finding it "satisfactory and understandable under the circumstances." Specifically, the trial court noted that there was "an obviously reluctant complaining witness in the 2013-2014 time frame" and "[t]here is only so much [the police] can do to get a complaining witness interested in going forward." It was a "different situation" when Jane Doe 1 was contacted in 2020, as other evidence had been developed. The trial court additionally noted that the pre-accusation timeframe "even on just a rape charge without kidnapping" was "well within the statute of limitations if the complaining witness decides she changes her mind and she wants to prosecute."
As our high court has explained in a related context," '[t]he statute of limitations is usually considered the primary guarantee against bringing overly stale criminal charges.'" (People v. Nelson (2008) 43 Cal.4th 1242, 1250 (Nelson).) However, we do not presume prejudice when an extended limitations period is applicable because that would be inconsistent with the Legislature's intent to set longer statutes of limitations for the most serious of crimes. (Ibid.) Thus, to avoid charges due to delay falling within the applicable limitations period, a defendant must still "affirmatively show prejudice." (Ibid.) Here, the statute of limitations for the rape was 10 years (§ 801.1, subd. (b)), and there was no statute of limitations for the kidnap and multiple victim special circumstances (§§ 667.61, subds. (d)(2) & (e)(1), 799.)
In balancing the justification for the delay against any articulated prejudice, the trial court stated that it "really pressed the defense . . . in oral argument yesterday, looking for something that was nonspeculative by way of what is being offered as to prejudice, and [it] didn't get much." The court expressly found that there was "no showing" of unavailability either with respect to the police officers who were no longer with the OPD or regarding the people who were in the house in 2013. Additionally, apropos of video surveillance, Jane Doe 1 was unable to pinpoint the location where she was approached on the street, even back in 2013. The court concluded: "I am finding prejudice to be actual, but frankly in the full context, in the full and final analysis to be relatively minimal." The justification for the delay therefore outweighed the prejudice to Nieto.
On appeal, Nieto claims that the trial court abused its discretion and deprived him of his due process rights when it denied his motion to dismiss count one for pre-accusation delay. We disagree as set forth below.
2. Legal Framework
"The due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution protect a defendant from the prejudicial effects of lengthy, unjustified delay between the commission of a crime and the defendant's arrest and charging." (Cowan, supra, 50 Cal.4th at p. 430; see People v. Jones (2013) 57 Cal.4th 899, 921 (Jones) [while "[t]he statute of limitations is usually considered the primary guarantee against overly stale criminal charges . . . [,] due process provides additional protection, safeguarding a criminal defendant's interest in fair adjudication"].)"' "[T]he right of due process protects a criminal defendant's interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence." '" (Cowan, at p. 430.) The federal constitutional standard in this context is unsettled. However, since state law regarding pre-accusation delay is at least as favorable to the defendant as federal law, we apply California law to Nieto's due process challenge. (Id. at pp. 430-431.)
Thus, although the Attorney General correctly points out that Nieto forfeited any federal claim by proceeding below under only the state standard, this is, for our purposes, a distinction without a difference.
Prejudice to a defendant from pre-accusation delay is not presumed. (Jones, supra, 57 Cal.4th at p. 921.) Rather, "[a] defendant seeking dismissal of a charge on the ground of unjustifiable delay' "must demonstrate prejudice arising from the delay."' [Citation.]' "[P]rejudice may be shown by loss of material witnesses due to lapse of time [citation] or loss of evidence because of fading memory attributable to the delay."' [Citation.] The prosecution must then' "offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay."' [Citations.] In determining whether the delay resulted in a violation of due process, the trial court engages in' "a delicate judgment" [citation], by balancing the public interest in favor of the prosecution against the rights of the defendant.' [Citation.] '[T]he particular circumstances surrounding the decision not to prosecute, the length of the delay, and the reasons for the subsequent re-evaluation and prosecution must all be considered.'" (People v. Lazarus (2015) 238 Cal.App.4th 734, 757.) However, "In so balancing the interests, 'it is important to remember that prosecutors are under no obligation to file charges as soon as probable cause exists but before they are satisfied that guilt can be proved beyond a reasonable doubt or before the resources are reasonably available to mount an effective prosecution. Any other rule "would subordinate the goal of orderly expedition to that of mere speed." [Citation.]'" (Mirenda, supra, 174 Cal.App.4th at p. 1329.)
Pursuant to California law," 'negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process. This does not mean, however, that whether the delay was purposeful or negligent is irrelevant.' [Citation.] Rather, 'whether the delay was negligent or purposeful is relevant to the balancing process. Purposeful delay to gain an advantage is totally unjustified, and a relatively weak showing of prejudice would suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation.' [Citation.] The justification for the delay is strong when there is 'investigative delay, nothing else.'" (Cowan, supra, 50 Cal.4th at p. 431.) "We review for abuse of discretion a trial court's ruling on a motion to dismiss for prejudicial prearrest delay [citation] and defer to any underlying factual findings if substantial evidence supports them." (Ibid.)
3. No Error in Refusal to Dismiss for Pre-accusation Delay i. Prejudice from the Delay
On appeal, Nieto argues that the pre-accusation delay with respect to the rape of Jane Doe 1 was prejudicial in "critical" respects because it caused witness memories to fade-particularly his memory and that of Jane Doe 1- and it also resulted in the loss of material exculpatory evidence, including telephone records and surveillance footage. However, while the trial court found some prejudice based on faded memories, it ultimately concluded that any showing of actual prejudice was relatively minimal. In addition, the court found any possible exculpatory value of the phone records or surveillance tapes to be speculative. Substantial evidence supports both of these conclusions.
In considering prejudice in this context, we do not rely at this point on any evidence that was developed during trial-such as Jane Doe 1's testimony, Nieto's testimony, A.R.'s testimony, or the existence of the bus tickets-because that evidence was not before the trial court when it made its decision with respect to the impact of the pre-accusation delay in this case.
With respect to fading memory, Nieto claims that he was prejudiced because Jane Doe 1 had a poor memory of the incident. He points to Officer Rasler's June 2020 interview of Jane Doe 1 in which she could not remember how she got into the car, what her assailant looked like, how she got away, how she got to her aunt's house, and whether she had gone to the hospital the next day. However, Jane Doe 1 did describe her assailant as a chubby, nonbald Latino man with an Oakland tattoo on his arm in June 2020. Moreover, Nieto ignores the July 2020 interview in which she gave a more complete version of events, including, for example, her disclosure that she felt forced into the car and was pushed. In addition, both Jane Doe 1 and M.C. gave statements to the police at the time of the incident, and Jane Doe 1 underwent a contemporaneous SART examination, all of which could be used at trial. (See Cowan, supra, 50 Cal.4th at p. 433 [prejudice from fading witness memories due to delay is diminished where contemporaneous police reports exist that may be introduced into evidence or used to refresh the witnesses' recollection].)
Moreover, as Jane Doe 1 explained in the June 2020 interview, there was a "lot of stuff" she did not remember because she had a "rough life" and learned to cope by burying things. She also indicated that, in general, her memory was bad. Thus, it is not at all clear that her recollection of events would have been any better had she been re-interviewed earlier. (Compare Abel, supra, 53 Cal.4th at pp. 902-904, 909 [finding the defendant's claim that a potential alibi witness would have provided exculpatory evidence had the police arrested him earlier "mere speculation" where the defendant "made no showing that [the witness's] recall would have been more specific had she been contacted earlier"].)
As for Nieto's own memory, he made only the conclusory allegation before the trial court that the passage of time made it "incredibly difficult" for him to find the people who were in the house during the alleged assault. He provided no information regarding any steps he had taken to locate the house, its owners and/or these individuals. (See Serna v. Superior Court (1985) 40 Cal.3d 239, 250 ["Lack of recall may establish prejudice, but only on a showing that the memory loss persists after reasonable attempts to refresh recollection."].) We thus agree with the trial court that Nieto had made an insufficient showing that his own former housemates were actually unavailable for trial. We additionally note that while these individuals might have been able to confirm they had seen Doe 1 at the house on more than one occasion, it is unlikely they could have given exonerating testimony as to consent, since the alleged assault occurred behind a closed bedroom door. Given all of these circumstances, substantial evidence supports the trial court's conclusion that, while some prejudice did occur due to fading memories, the showing of actual prejudice was relatively minimal.
With respect to prejudice from the lost phone records, Nieto argued before the trial court and maintains on appeal that Jane Doe 1's phone records would have supported his defense that his relationship with her was consensual and lasted for more than one day. However, as Nieto concedes, the prosecution was justified in failing to charge him with Jane Doe 1's rape prior to September 2014, when the CODIS hit came back linking him to the alleged assault. There was simply no way that the police could have identified and charged Nieto before that time, as Nieto and Jane Doe 1 had never met, and she could not otherwise identify him. (See Nelson, supra, 43 Cal.4th at p. 1256 [prosecution did not have sufficient evidence to charge the case until a cold hit matched the defendant's DNA]; accord, People v. Cordova (2015) 62 Cal.4th 104, 120 (Cordova).) And Nieto's own expert declaration indicated that the content of text messages is not retained, and cell tower information is only kept for six months. At most, then, any delay after September 2014 may have led to destruction of call records from whenever Jane Doe 1 actually charged her phone again after the day of the rape until early March 2013, when Officer Chan called her number and found it to be discontinued. And even if such call records existed, their import would have been ambiguous and unlikely to exculpate with respect to the issue of consent.
Nieto also cites prejudice due to lost surveillance video from the area where Nieto met Jane Doe 1. He asserted before the trial court that the surveillance video would negate Jane Doe 1's statement that she was pushed into the car. However, at the time of the incident, the police drove through the International Boulevard area with Jane Doe 1, and she was unable to pinpoint where she and Nieto interacted. Thus, any argument that the appropriate business could have been located at a later time; that the camera would have covered the interaction between Jane Doe 1 and Nieto by the car in a manner meaningful to the issues here presented; and that the video would still have existed in September 2014, when Nieto was first identified as a suspect, was highly speculative. (Compare Cowan, supra, 50 Cal.4th at p. 432 [if the defendant had already lost his memory of relevant events six months later-when he first became a suspect-"any claim that he would have been able to construct an alibi defense had the prosecution commenced sooner [would have been] speculative"].)
Perhaps recognizing this, Nieto argues on appeal that it would have provided strong impeachment evidence to obtain the video from the BART station, the Walgreens on International Boulevard, and the Popeyes Louisiana Kitchen on International Boulevard and discover that Jane Doe 1 was not where she said she was on the date of the alleged rape. He claims this is true even if, being earlier on in her journey to her aunt's house, it would not have shown the interaction by the car. However, defense counsel conceded at the hearing on the motion that Jane Doe 1 got into Nieto's car that day. Thus, she was clearly in the area. That the video surveillance at the three sites she remembered may have failed to capture her image would likely not have undercut her credibility in any significant way. And, again, it is speculative that such video would still have been available some 19 months later in September 2014.
ii. Justification for the Delay Outweighs Prejudice
In denying Nieto's motion for dismissal based on pre-accusation delay, the trial court concluded that the justification for the delay was "satisfactory and understandable under the circumstances." As stated above, Nieto concedes that there was strong justification for the delay in charging Nieto until September 2014 when the CODIS hit identified him as the sperm donor. However, he argues that law enforcement made minimal efforts to charge the case after the September 2014 CODIS hit. We conclude that substantial evidence supports the trial court's conclusion that there was a convincing justification for the pre-accusation delay in this case.
For instance, we disagree with Nieto that Officer Haley's attempts to find Jane Doe 1 in September 2014 were cursory. As detailed above, Jane Doe 1 never contacted the police about her case after the initial report, and Officer Haley had no current phone number or address for her, was unable to discover current information despite searching multiple databases, and the one message he was able to leave-for M.C.-went unanswered. It is true, as Nieto highlights, that there was no express evidence that Jane Doe 1 did not want to participate in a prosecution during the 2013-2014 timeframe. As the prosecutor noted: "Who knows what was happening in her world at that time." While further evidence on this point was developed at trial as discussed below, it was a reasonable inference from the record before the trial court when it decided the motion to dismiss that the police were unable to reach Jane Doe 1 during that period because she did not want to be reached. And, as the court concluded, "[t]here is only so much [the police] can do to get a complaining witness interested in going forward."
Nieto also contends that, after the case was closed again in 2014, the police improperly did nothing until Officer Rasler was able to "contact her without significant difficulty in May 2020" at a new telephone number. Nieto suggests, for instance, that the police should have attempted to interview him once the CODIS hit tied him to the case. But from an investigative standpoint, it would have made no sense to tip Nieto off regarding the rape allegations before the police were ready to charge him. And they had no basis to file charges until they confirmed Jane Doe 1's allegations and her willingness to proceed to a trial. (Cowan, 50 Cal.4th at p. 435 [" '[A] court should not second-guess the prosecution's decision regarding whether sufficient evidence exists to warrant bringing charges. "The due process clause does not permit courts to abort criminal prosecutions simply because they disagree with the prosecutor's decision as to when to seek an indictment.... Prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt."' "].) Nor does it follow that, just because the police were able to contact Jane Doe 1 in May 2020, they would have been able to find her earlier with similar effort. As the trial court appropriately noted: It was a "different situation" when Jane Doe 1 was contacted in 2020, as other evidence had been developed. (Compare People v. Catlin (2001) 26 Cal.4th 81, 109 [" By the time [the] defendant was charged . . . additional evidence of his guilt had emerged-particularly his involvement in [additional similar crimes]."].)
Having concluded that substantial evidence supports the trial court's findings of minimal demonstrated prejudice and a convincing justification for the delay, we see no abuse of discretion in the court's pretrial denial of Nieto's motion to dismiss count one due to pre-accusation delay. (See Cowan, supra, 50 Cal.4th at p. 431.)
4. Ineffective Assistance Claim
i. Legal Framework
A criminal defendant has the right to effective assistance of counsel under both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215, citing Strickland v. Washington (1984) 466 U.S. 668, 684685 (Strickland).) To establish ineffective assistance of counsel under either federal or state law, a defendant must show that counsel's representation fell below an objective standard of reasonableness and that counsel's deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel's failings, the result would have been more favorable to the defendant. (People v. Waidla (2000) 22 Cal.4th 690, 718 (Waidla).) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694.)
With respect to deficient performance," '[a] reviewing court will not second-guess trial counsel's reasonable tactical decisions.'" (People v. Riel (2000) 22 Cal.4th 1153, 1185 (Riel).) Moreover, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland, supra, 466 U.S. at p. 697; accord, In re Cox (2003) 30 Cal.4th 974, 1019-1020.) Under a prejudice analysis, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Strickland, at p. 686.) Moreover, "[t]he assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision." (Id. at p. 695.) "The likelihood of a different result must be substantial, not just conceivable." (Harrington v. Richter (2011) 562 U.S. 86, 112 (Richter).) Thus, "[s]urmounting Strickland's high bar is never an easy task." (Richter, at p. 105.)
ii. No Ineffective Assistance on this Record
As stated above, a trial court has the discretion to dismiss based on preaccusation delay either before, during, or after trial (Mirenda, supra, 174 Cal.App.4th at p. 1330), and we review the trial court's decision based on the facts before it when it ruled (Cowan, supra, 50 Cal.4th at p. 431). Nieto contends that his trial counsel was ineffective for failing to renew the preaccusation delay claim with respect to Jane Doe 1 in his new trial motion because evidence presented at trial established the prejudice resulting from the delay and refuted the prosecutor's pretrial claim of adequate justification. Trial counsel has stated via declaration that he believed his in limine motion was sufficient-both to preserve the pre-accusation delay issue for appeal and to include the trial evidence in any appellate review of the matter. However, even if deficient performance is established on this basis (which we do not decide), Nieto cannot show that he was prejudiced by the failure to renew the claim after trial. In short, none of the five categories of trial evidence Nieto identifies as relevant would likely have changed the trial court's pretrial conclusion with respect to pre-accusation delay. (See Strickland, supra, 466 U.S. at p. 693 ["Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial."].)
First, Nieto argues that trial evidence confirmed Jane Doe 1's dimming memory substantially prejudiced his defense. He points to her testimony that she had a poor recollection of the incident and that she was unable to explain exactly how she got into the car. However, as Nieto concedes, this was already established at the time of the original motion to dismiss from her pre-trial statements to the police. If anything, she testified with more clarity at trial, as she was able to explain that "[a]s she was leaning into the car looking for the charger," Nieto gave her a "nudge type push . . . . [w]ith force," which caused her to fall into the car; that he "nudged [her] hard enough that [her] body dropped . . . on the seat"; and that she did not think her legs were still outside of the car at that point because she is short and had been reaching far for the charger. "So [her] whole body was in[,] and the door shut." That this testimony did not assist Nieto does not establish prejudice from memory loss.
Nieto also complains that Doe 1 testified repeatedly on cross-examination that she could not remember and that reviewing her pretrial statements would not refresh her recollection. However, Doe 1 also testified that she was "feeling attacked" during this questioning and that when she feels attacked, she "get[s] really emotional and silent." Thus, Nieto has made no showing that this was a type of "memory loss" that would not have been present had the trial occurred earlier. (See Abel, supra, 53 Cal.4th at pp. 902-904, 909 [finding the defendant's claim that a potential alibi witness would have provided exculpatory evidence had the police arrested him earlier "mere speculation" where the defendant "made no showing that [the witness's] recall would have been more specific had she been contacted earlier"].)
Second, with respect to his own dimming memory, Nieto complains that the prosecutor "exploited" his lack of recall at trial, arguing: "Where is everyone? Where is Markie, the man who took Jane Doe 1 and the defendant to Jane Doe 1's house? Where is his landlord in 2013? Where is the motherin-law and the mother of his child? If all of these people had observed their relationship and if they had a relationship that lasted that span of at least five days, which he couldn't tell me what that span was, but if it was that span, where is everyone?" But this was fair comment on the evidence (or lack thereof). Nieto does not explain how his trial testimony, or this resulting argument, would have changed the pre-accusation delay calculus.
As stated above, defense counsel argued pretrial that the passage of time made it "incredibly difficult" for him to find the people who were in the house during the alleged assault, and the trial court concluded that he had made an insufficient showing that these former housemates were actually unavailable for trial. During the trial, Nieto testified that in January 2013 he had been renting a room at a home in Oakland on 86th between Holly and International, but he did not remember the names of any of the approximately six people he was living with during that time. He did not recall when he moved in or out. In contrast, Nieto remembered numerous specifics regarding his "short affair" with Jane Doe 1 and about Markie, the individual who drove Jane Doe 1 home on one occasion. As with his pretrial motion, however, Nieto provided no testimony regarding any steps he had taken to locate the house, its owners and/or any of these individuals. Moreover, when considering Nieto's new trial motion, the trial court specifically found Nieto's testimony not credible in "many, many respects." It therefore seems exceedingly unlikely that the trial court would have been persuaded by Nieto's trial testimony that he had been prejudiced by his supposed inability to remember or find any of these "key" witnesses. (See Cordova, supra, 62 Cal.4th at p. 120 [claim of prejudice from 20-year preaccusation delay speculative where, although it was "inevitable that over the years potential witnesses will die or otherwise become unavailable," there was no reason "to believe any of these witnesses would have supplied exonerating, rather than incriminating, evidence, or any evidence at all"].)
Nieto testified Markie was a "guy in a wheelchair" who drove a black Suburban. Markie's family helped him get in and out of the car, and Markie drove it with a cane. He knew Markie from a popular liquor store on Bancroft where a lot of people went to hang out and, at one point, Nieto had his telephone number.
Third, Nieto argues that the admission of the Greyhound bus tickets at trial and Jane Doe 1's denial that she ever took the bus from Oakland to Modesto underscored the prejudice resulting from the loss of the allegedly exculpatory phone records which he claims would have established consensual contact between himself and Doe 1. However, as discussed above, the prosecutor had a credible argument at trial that the existence of the bus tickets did not establish that Jane Doe 1 purchased or used them, undercutting their probative value. More importantly, the admission of the bus tickets at trial does nothing to alter the speculative nature of Nieto's pretrial claim that the limited call records that might have been available after September 2014-when he was first identified as a suspect-could have established that he had a consensual relationship with Jane Doe 1 and/or that she consented to sexual intercourse on the date of the alleged rape. In other words, the trial evidence regarding the bus tickets would not have improved Nieto's post-trial chances of having count one dismissed due to preaccusation delay.
Fourth, Nieto argues that pre-accusation delay and A.R.'s late discovery prevented defense counsel from adequately investigating or crossexamining her fresh complaint testimony at trial. According to Nieto, A.R.'s testimony was critical because she was the only person who corroborated Doe 1's testimony that the assault actually occurred in a house. Preliminarily, we dispute Nieto's characterization of A.R.'s testimony as "critical." As Nieto points out, her testimony was "totally inconsistent" with Jane Doe 1's account and M.C.'s testimony regarding the night of the rape. Moreover, A.R.'s credibility was impeached with three felony convictions involving moral turpitude, and Jane Doe 1 gave a credible explanation at trial as to why she initially lied about the location of the assault. More importantly, however, Inspector McNiff testified, and A.R. confirmed, that the prosecution only learned about A.R. from Jane Doe 1's mother on October 7, 2020, while he was attempting to locate and serve M.C. for trial. Nieto offers no argument that the pre-accusation delay had anything to do with her late discovery or that she would have been found in a timelier fashion had the trial taken place earlier. Thus, the fact that she was discovered late and testified at trial would be unlikely to alter the trial court's analysis of the pre-accusation delay claim.
Finally, Nieto highlights the following argument made by the prosecutor at trial: "To be generous, I will round up and say that these officers gave Jane Doe [1] a total of three minutes of their time. They devoted three minutes to a rape victim. In what world is that okay? [¶]. . . [¶] . . . What do you think that message conveyed to Jane Doe 1? No wonder she doesn't trust the police." Nieto contends that, having made this argument, the prosecutor would have been estopped from claiming post-trial that the pre-accusation delay was justified because the police had done everything they could to investigate Jane Doe 1's case. We are not persuaded.
Preliminarily, as mentioned above, the prosecutor made these obviously exaggerated remarks in the context of arguing that "everything that happened in Jane Doe 1's case after the assault further supports her belief that the police don't help you where [she came] from." (Italics added.) Thus, she was discussing Jane Doe 1's perception of the police investigation, not its intrinsic adequacy. More importantly, however, and regardless of what the prosecutor might argue at any particular time, the trial court had the evidence before it regarding what had been done by the police after the September 2014 CODIS hit linking Nieto to Jane Doe 1's assault and made its determination regarding the justification for the delay based on that evidence. Pretrial, the court found the justification for the delay "satisfactory and understandable under the circumstances." This was, in part, based on the evidence of all of the efforts made by Officer Haley to locate Jane Doe 1 when the case was reopened as a DNA cold case hit in September 2014. Officer Haley's trial testimony essentially mirrored this pre-trial account.
If anything, other testimony adduced at trial further strengthened the justification for the delay. Jane Doe 1 reported that she was homeless around the time of the rape and was moving from place to place. She additionally testified that, in the months after the assault, her life changed significantly: She started taking drugs, lost her daughter, messed up her life, and had little contact with her family, including M.C. Between 2013 and 2020 she had as many as five different phone numbers. Thus, it makes sense that, despite their best efforts, the police could not initially find Doe 1 or reach her through M.C. In addition, Inspector Bonnor testified that, when he was assigned to try and find Jane Doe 1 in mid-2020, he contacted M.C. who contacted Jane Doe 1. Jane Doe 1 then called Inspector Bonnor directly. Her phone number and address were different than those listed in the original 2013 report. Based on this trial evidence, it is not likely the trial court's opinion regarding the justification for the delay would have changed in Nieto's favor post-trial. In sum, since none of the trial proceedings identified by Nieto materially altered the nature of the prejudice he suffered due to the pre-accusation delay in this case, and the justification for that delay remained strong, Nieto cannot establish a reasonable probability that, had defense counsel included the pre-accusation delay claim in his new trial motion, the trial court would have reversed its pretrial decision and dismissed count one.
C. Remaining Ineffective Assistance of Counsel Claims
1. Testimony Regarding Truthfulness
As mentioned above, during his cross-examination of Officer Rasler, defense counsel elicited testimony which touched on Jane Doe 1's credibility. Specifically, after establishing that the location of Jane Doe 1's assault had changed from the car in 2013 to the house in 2020 and that Doe 1 was never able to give a clear explanation as to how her whole body ended up in the car, defense counsel asked Officer Rasler: "Now, after noting those important discrepancies between her statements, did it ever cross your mind that maybe she was not telling you the truth?" The prosecutor's objections based on improper opinion and relevance were sustained, and defense counsel tried again, querying: "Did you ever, throughout your investigation, consider the possibility that [Jane Doe 1] was making a false accusation?" The trial court then overruled similar objections, and Officer Rasler responded: "No. I thought she was telling me the truth." Defense counsel pressed: "So you never even considered the possibility?" And Officer Rasler reiterated: "I felt that she was telling me the truth at this time." Defense counsel then asked a number of questions about what Officer Rasler had done to see if he could corroborate any of Jane Doe 1's statements, which turned out to be nothing.
On redirect, the prosecutor asked Officer Rasler why he believed Jane Doe 1 was telling the truth despite her inconsistencies and he explained that he found her truthful based on his past interviewing experience. And, during closing argument, she reminded the jury of that testimony. Defense counsel's vouching objection was overruled by the trial court.
The court later ruled this argument was not prosecutorial misconduct because, while Officer Rasler's testimony "may have [been] objectionable," no objection was lodged. Rather, the testimony came up in defense counsel's "cross-examination of Officer Rasler and why he didn't pursue other leads."
Generally, "[i]t is error for one witness to offer an opinion on the truthfulness of another witness." (People v. Palacios (2021) 67 Cal.App.5th 184, 196, citing People v. Smith (1989) 214 Cal.App.3d 904, 915 [" 'Lay opinion about the veracity of particular statements by another is inadmissible on that issue.' "]; see also People v. Sergill (1982) 138 Cal.App.3d 34, 39 ["We find no authority to support the proposition that the veracity of those who report crimes to the police is a matter sufficiently beyond common experience to require the testimony of an expert."].) In this case, defense counsel elicited the testimony involving Jane Doe 1's truthfulness even though he had moved during motions in limine to exclude opinion testimony from police officers as to Jane Doe 1's credibility, including "impermissible opinion testimony" based on their training in the field of victimology, and both the prosecutor and the trial court had agreed that opinion testimony regarding credibility would be improper.
In his related petition for habeas corpus (A165691), Nieto argues that defense counsel was ineffective for soliciting this inadmissible opinion evidence and, at the least, should have immediately objected to it and moved to strike. But defense counsel was not asking Officer Rasler to vouch for Jane Doe 1's credibility through this line of questioning. Instead, he was attempting to undercut the officer's investigation of the alleged rape as a rush to judgment, conducted without any reasoned analysis as to Doe 1's credibility having been made. Given the many inconsistencies in her story over the course of years, the argument goes, it would have been a reasonable response to at least consider she was making a false accusation and attempt to corroborate her version of events to the extent possible.
Ultimately, however, we need not determine whether counsel's performance was deficient in this instance, as we cannot find prejudice on this record. The question is whether there is a reasonable probability that, absent the challenged testimony, the jury would have found Jane Doe 1 not credible. (See Strickland, supra, 466 U.S. at p. 695.) Given the many ways Jane Doe 1's credibility was corroborated in this case, we simply cannot conclude that the officer's brief testimony during this lengthy trial would have appreciably changed the jury's credibility calculus. Moreover, having reviewed the record of these proceedings at some length, we find defense counsel's overall performance to have been engaged and competent. "[W]hile in some instances 'even an isolated error' can support an ineffective assistance claim if it is 'sufficiently egregious and prejudicial,' [citation], it is difficult to establish ineffective assistance when counsel's overall performance indicates active and capable advocacy." (See Richter, supra, 562 U.S. at p. 111.)
People v. Julian (2019) 34 Cal.App.5th 878, 889, relied on by Nieto, is distinguishable because it involved both an affirmative response from a police detective when asked if a victim of child sexual abuse had been "honest" with him and a host of improperly admitted and highly prejudicial statistical evidence supporting the conclusion that false allegations by child victims are exceedingly rare. (Id. at pp. 883, 888-891.)
2. Lack of Access to Google While Incarcerated
We similarly reject Nieto's claim of ineffective assistance based on his defense counsel's failure to clarify that he did not have access to a Google search function while incarcerated at Santa Rita Jail. As mentioned above, during her cross-examination of Nieto, the prosecutor asked if he had access to Google. Nieto replied: "I think everyone has access to Google." Inspector McNiff later testified that he was able to locate images of Jane Doe 1's friends and family, including a young girl, when he Googled her. He also discovered addresses for her father in and near Modesto. On cross-examination, Inspector McNiff explained that he knew inmates at Santa Rita Jail had access to tablets that could access some things on the internet, but he did not know whether they had access to Google. He did not discover the Greyhound bus tickets when he Googled Jane Doe 1. In closing argument, the prosecutor highlighted Inspector McNiff's testimony about "Googling and seeing everything that's on there," and Nieto's statement that he had access to Google. She argued that this "provides an explanation for how he knows what he knows."
In his related petition for habeas corpus (A165691), Nieto states via declaration that he understood the Google question posed by the prosecutor to be a general one and that, in fact, he did not have access to Google or any web browser while incarcerated pending trial. Nieto argues defense counsel should have recalled him to the stand to clarify this point and was ineffective for failing to do so. According to Nieto, since Jane Doe 1 denied ever taking a Greyhound bus to Modesto, "there would have been no explanation other than that she was lying . . . had it been established that the tablet could not access any web-browser." This, in turn, would have supported Nieto's testimony that he met Doe 1 and her daughter at the Oakland bus station in February 2013. Nieto asserts that defense counsel's failure to recall him left the jury "with the false impression that [he] could have Googled Doe [1] from his jail-issued tablet and discovered enough information to request that defense counsel subpoena Greyhound for tickets from Oakland to Modesto" in her name. We are not persuaded.
First, in his declaration attached to Nieto's habeas corpus petition, defense counsel opined that he "believed that [he] had clarified through Inspector McNiff that Mr. Nieto did not have access to Google on his jail-issued tablet. And Nieto's recollection, as set forth in his declaration, was when he raised the issue, defense counsel stated that "he did not think recalling me would be very helpful." Thus, defense counsel may have made a tactical decision not to recall Nieto and this decision appears to have been a reasonable one, given that this would have opened Nieto up to further cross-examination by the prosecutor regarding exactly when he did have access to Google and if he Googled Jane Doe 1 during those timeframes. (See Riel, supra, 22 Cal.4th at p. 1185 [" '[a] reviewing court will not second-guess trial counsel's reasonable tactical decisions' "].)
Again, however, we need not finally determine whether counsel's performance was deficient, because we cannot find prejudice-i.e., a reasonable probability that, but for defense counsel's alleged failings, the result would have been more favorable to Nieto. (Waidla, supra, 22 Cal.4th at p. 718.) Indeed, as the Attorney General recognizes, there is a glaring flaw in Nieto's argument: It was essentially irrelevant whether Nieto could access a web browser while incarcerated, because he could have obtained the same information by Googling Jane Doe 1 at some point in the six years before he was arrested and jailed. In fact, assuming Jane Doe 1 was telling the truth about the rape, it seems eminently reasonable to conclude that Nieto might have quickly decided to monitor her online and obtain any information he could, preparing for possible fallout from the assault. Moreover, the prosecutor's argument that Google provided "an explanation for how he knows what he knows" was not limited to the time period during which Nieto was incarcerated, and Inspector McNiff merely testified that he did not know whether Google was available in the jail. Under the circumstances, we discern no meaningful prejudice, much less the substantial likelihood of a different result. (See Richter, supra, 562 U.S. at p. 112.)
We note in this regard that Jane Doe 1 testified with respect to the bus tickets that someone else might have used her ID because she had lost it, although she did not know exactly when.
D. Consolidation of the Charges Did Not Violate Due Process
In August 2020, the prosecutor moved to consolidate the charges involving Jane Doe 1 and Jane Doe 2 into a single accusatory pleading. In arguing that consolidation was appropriate, the prosecutor noted the many similarities between the two cases, including that the two Does were similar in description (as both were "Latin[a] women in their early 20's, similar hair, and similar body type") and that they were both on International Boulevard when Nieto, a stranger, picked them up with his car. She additionally asserted that the offenses were cross-admissible under Evidence Code sections 1108 and 352 and therefore "they [were] coming in anyway." Further, neither charge was more inflammatory than the other. And she opined that both charges were strong, as each woman reported within hours of the rape, DNA was obtained from each, and there were fresh complaint witnesses in both cases.
After opposition from the defense, the superior court (J. Jacobson) granted the motion on September 14, 2020, shortly before trial. The court reasoned as follows: "[T]his case presents [a] very strong case for consolidation. So you have similar MO, similar DNA, you have similar identifying markers, alterations to the passenger side car door. If you look at this in terms of [Evidence Code section] 1101(b) . . . there is a very strong case for admissibility. Once we introduce [Evidence Code section] 1108, the cross-admissibility becomes very close to being a forgone conclusion .... And so it is not just a matter of judicial economy, but also whether or not the trier of fact, the jury is entitled to look at all of the probative evidence that's available." The court also concluded neither charge was more inflammatory than the other, neither was significantly weaker or stronger, and Nieto would not be prejudiced by facing all of the charges in one proceeding.
After guilty verdicts were rendered with respect to both rapes, Nieto moved for a new trial on a number of grounds, including the court's improper consolidation of the two cases. He argued that the evidence actually presented at trial with respect to both rapes was not as similar as initially believed, given that both Does changed their stories, and that the evidence of guilt was "thin" as to each separate case, rendering consolidation a violation of his rights to due process and a fair trial. The trial court (J. Steckler) disagreed, finding no error in the consolidation of the two matters.
On appeal, Nieto concedes that joinder of the charges was statutorily authorized. He reasserts, however, that joinder ultimately resulted in a grossly unfair trial in violation of his due process rights. We see no constitutional violation.
1. Legal Framework
"Our Legislature has expressed a strong preference for joint trials." (People v. Souza (2012) 54 Cal.4th 90, 109.) "Joinder is ordinarily favored because it avoids the increased expenditures of funds and judicial resources that may result from separate trials" and, therefore," 'is the course of action preferred by the law.'" (People v. Simon (2016) 1 Cal.5th 98, 122 (Simon).) Indeed, the California Constitution expressly provides that it "shall not be construed by the courts to prohibit the joining of criminal cases as prescribed by the Legislature or by the people through the initiative process." (Cal. Const., art. I, § 30, subd (a).)
"Section 954 provides a broad basis for discretionary joinder of criminal charges." (People v. Leney (1989) 213 Cal.App.3d 265, 269.) The statute states in relevant part: "An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated . . .; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately." (§ 954.) Where, as here, both offenses involved rape and thus belonged to the same class of crimes, the statutory requirements for joinder were satisfied. (See People v. Carter (2005) 36 Cal.4th 1114, 1154 (Carter).) Therefore, Nieto could predicate error in allowing consolidation of the charges "only upon a clear showing of potential prejudice." (Ibid.; accord, People v. Johnson (2015) 61 Cal.4th 734, 750 (Johnson).)
A trial court's decisions with respect to severance are reviewed for abuse of discretion. (People v. Soper (2009) 45 Cal.4th 759, 774 (Soper).) In determining whether a trial court abused its discretion under section 954 in declining to sever properly joined charges, "we consider the record before the trial court when it made its ruling." (Soper, at p. 774.) "The burden of demonstrating that consolidation or denial of severance was a prejudicial abuse of discretion is upon [the party] who asserts it." (People v. Ruiz (1988) 44 Cal.3d 589, 605 (Ruiz).) Moreover, given "the benefits to the state, in the form of conservation of judicial resources and public funds" when trials are consolidated, our high court has observed that" 'in the context of properly joined offenses, "a party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial."' '' (Soper, at p. 774.)
Consolidation can be an abuse of discretion where" '" '(1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a "weak" case has been joined with a "strong" case, or with another "weak" case, so that the "spillover" effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.'" '" (Johnson, supra, 61 Cal.4th at pp. 750-751.) "[W]e first consider 'the cross-admissibility of the evidence in hypothetical separate trials.' [Citation.] If the evidence is cross-admissible, then this 'is normally sufficient to dispel any suggestion of prejudice and to justify a trial court's refusal to sever properly joined charges.'" (People v. Gomez (2018) 6 Cal.5th 243, 275-276 (Gomez).) If the evidence is not cross-admissible, we consider the balance of the remaining factors. (Id. at p. 276.)
Finally, even if we determine that the trial court did not abuse its discretion in joining multiple charges, we must still consider "whether events after the court's ruling demonstrate that joinder actually resulted in 'gross unfairness' amounting to a denial of defendant's constitutional right to fair trial or due process of law." (People v. Merriman (2014) 60 Cal.4th 1, 46; accord, Simon, 1 Cal.5th at p. 123.) A defendant "has the burden to establish gross unfairness, a burden our Supreme Court has characterized as a 'high burden.'" [Citation.] To establish gross unfairness amounting to a due process violation, a defendant must demonstrate a 'reasonable probability' that the joinder affected the jury's verdicts." (People v. Ybarra (2016) 245 Cal.App.4th 1420, 1438 (Ybarra), quoting Merriman, at p. 49.) The question whether joinder resulted in actual gross unfairness at trial is a mixed question of law and fact implicating constitutional considerations which we review de novo. (See In re D.S. (2014) 230 Cal.App.4th 1238, 1245 (D.S.), citing People v. Cromer (2001) 24 Cal.4th 889, 901 [noting high court's "usual practice" to review mixed question determinations affecting constitutional rights de novo] and Adoption of Myah M. (2011) 201 Cal.App.4th 1518, 1539 [exercising "independent judgment in measuring the facts against the applicable legal standard" in determining status as a constitutional Kelsey S. father].)
2. No Due Process Violation
As stated above, Nieto does not claim that the two rape offenses were improperly joined under section 954 as crimes of the same class. Nor does he make any argument that the trial court abused its discretion in initially consolidating the two matters. Rather, he contends that joinder actually resulted in gross unfairness amounting to a denial of due process at trial. Specifically, he asserts that, after the initial decision to join the two cases, Jane Doe 2 changed her story and perjured herself before the trial court, "radically" changing the strength of her case and making it likely that the jury convicted based on mere propensity. Under such circumstances, he argues, it is very likely he would have been acquitted of both charges had they been separately tried.
Nieto argues that numerous instances of misconduct involving the prosecutor's "spurious and highly prejudicial propensity arguments" exacerbated the risk of an unfair trial in this context. However, we have already rejected those misconduct claims.
In analyzing whether a constitutional violation has occurred here, we first determine the appropriateness of the court's initial consolidation decision. Considering the factors relevant to discretionary joinder set forth above, we agree with the judge who ordered consolidation that this matter presented a "very strong case for consolidation" at that time. The two rapes were similar in execution, and neither was more inflammatory than the other. Moreover, neither was appreciably weaker or stronger, as both relied on similar types of evidence.
Most importantly, the evidence of each sexual offense almost certainly would have been admitted in a separate trial on the other sexual offense to prove propensity. (Evid. Code, § 1108, subd. (a) [in a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense is admissible to prove propensity where it is "not inadmissible pursuant to [Evidence Code] [s]ection 352"]; see People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta) ["Available legislative history indicates [Evidence Code] section 1108 was intended in sex offense cases to relax the evidentiary restraints [Evidence Code] section 1101, subdivision (a)[] imposed, to assure that the trier of fact would be made aware of the defendant's other sex offenses in evaluating the victim's and the defendant's credibility."].) And, as stated above, the fact that evidence is cross-admissible" 'is normally sufficient to dispel any suggestion of prejudice and to justify a trial court's refusal to se ver properly joined charges '" (Gomez, supra, 6 Cal.5th at pp. 275-276.)
The question thus becomes whether evidence of one of the rape charges would have been admissible under Evidence Code sections 352 and 1108 in the trial on the other rape charge. Our Supreme Court has identified a list of factors relevant to this inquiry, including "[the incident's] nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other . . . offenses, or excluding irrelevant though inflammatory details surrounding the offense." (Falsetta, supra, 21 Cal.4th at p. 917.) In this context, prejudice" 'is not synonymous with "damaging," but refers instead to evidence that" 'uniquely tends to evoke an emotional bias against [a] defendant'" without regard to its relevance on material issues. [Citations.]'" (People v. Zepeda (2008) 167 Cal.App.4th 25, 35.)
Nieto argues that admission of one sexual offense in a trial for the other would have required a time-consuming" 'mini-trial,'" given the uncertainty regarding the commission of both charged crimes. On this basis, he concludes that "the probative value of the uncharged offense undoubtedly would have been substantially outweighed by the likelihood of undue consumption of time, confusion of the issues, and prejudice to the defense." We disagree. Our Legislature has stressed the critical nature and probative value of propensity evidence in this context. (Falsetta, supra, 21 Cal.4th at pp. 911-912.) Here, although separated by five years, the two alleged rapes were very similar, and both were supported by strong evidence. They were therefore highly relevant to each other. Moreover, despite their similarities, the two incidents were also distinct in significant ways, making juror confusion unlikely. And neither one was more inflammatory than the other. In fact, the consolidating judge expressly found that Nieto would not be prejudiced by facing all of the charges in one proceeding. While the trial court would likely have worked with the parties to limit the presentation of evidence on the uncharged crime to that which was strictly necessary, we have no doubt that the alleged offenses would have been deemed cross-admissible under Evidence Code section 1108.
Indeed, when looked at another way, Nieto's argument is essentially an acknowledgement that joinder in this context was the best available option before the court. The judge considering consolidation effectively did an Evidence Code section 352 analysis in determining that joinder was appropriate. In addition to all the factors mentioned above which would have supported admission of the evidence of "another sexual offense" under Evidence Code sections 352 and 1108, joinder allowed for certainty regarding the commission of the crime (as it had to be proved beyond a reasonable doubt to be used for propensity purposes) and created no additional burden on Nieto in defending against an uncharged offense. Moreover, as the court concluded, this was "not just a matter of judicial economy, but also whether or not the trier of fact, the jury is entitled to look at all of the probative evidence that's available." In sum, the initial decision to consolidate was well supported and certainly not an abuse of discretion.
Nor do we see a due process violation on these facts. As stated above, "[t]o establish gross unfairness amounting to a due process violation, a defendant must demonstrate a 'reasonable probability' that the joinder affected the jury's verdicts." (Ybarra, supra, 245 Cal.App.4th at p. 1438.) Nieto argues, in essence, that when Jane Doe 2 disclosed-shortly before trial and after having testified to the contrary under oath-that she had been working as a prostitute on the night of the alleged rape, she dramatically weakened her case thereby changing the joinder calculus. However, our high court has noted that gross unfairness normally cannot be established from joinder where the evidence was cross-admissible. (People v. Marshall (1997) 15 Cal.4th 1, 28; see also Gomez, supra, 6 Cal.5th at pp. 275-276 [crossadmissibility is normally enough to dispel any suggestion of prejudice].) And this late disclosure does not change our conclusion that the two offenses would have been cross-admissible under Evidence Code section 1108.
Moreover, even if we consider the other joinder factors, the two rapes remained similar in execution, and neither was more inflammatory than the other. In addition, we disagree that Jane Doe 2's revelation made her case significantly less strong or gutted her credibility. The superior court was aware at the time of the consolidation motion that Jane Doe 2 had admitted to previously acting as a prostitute on a number of occasions. That she was acting as a prostitute on the evening of the alleged assault does not materially change the remaining facts, unless one ignorantly assumes that prostitutes cannot be raped. Further, although Jane Doe 2 did initially lie and perjure herself with respect to how she got into the car, Nieto ignores that Jane Doe 1 also initially lied, and that the prosecutor elicited testimony from both women that they had plausible reasons for doing so-their fear they would not otherwise be believed by the police. We thus conclude that both cases remained strong. (See People v. Thomas (2012) 53 Cal.4th 771, 800 [finding "no significant risk of an unjustified conviction on any of the murder charges because . . . evidence in both cases was strong"]; Compare Soper, supra, 45 Cal.4th at pp. 783-784 [even where the evidence of the two murders was not fully cross-admissible, no limiting instruction was given, and" 'the leitmotiv of the People's theory at trial'-and especially in closing argument-'was that whoever committed one of the murders must have committed the other as well,'" trial was not grossly unfair].)
Given these conclusions, People v. Earle (2009) 172 Cal.App.4th 372 (Earle), the case on which Nieto heavily relies, is easily distinguishable. In Earle, the trial court consolidated two "entirely distinct and dissimilar incidents." (Id. at p. 378.) While strong evidence supported the misdemeanor indecent exposure charge, the felony sexual assault was based on "considerably weaker" evidence. (Ibid.) No defense as to the indecent exposure charge was offered to the jury, but the sexual assault was "vigorously contested" on grounds of identity. (Id. at p. 384.) The appellate court concluded that the indecent exposure charge was not admissible under Evidence Code section 1101, subdivision (b) to prove intent, motive or identity. (Earle, at pp. 389-396.) Moreover, while the "only colorable basis" for the cross-admissibility of the indecent exposure charge was Evidence Code section 1108, the court concluded that "evidence of defendant's indecent exposure had no tendency in reason, on the evidence before the jury, to establish such a predisposition" and was therefore irrelevant. (Id. at pp. 396398.) Under such circumstances, the trial court abused its discretion by failing to sever the two charges and the resulting trial was grossly unfair in violation of the defendant's due process rights. (Id. at p. 409.)
Finally, the record in this case strongly suggests that the jury was capable of weighing the evidence and differentiating among the various charges. (See Jones, supra, 57 Cal.4th at p. 927 ["Where the jury returns a guilty verdict of a lesser crime, or, as here, fails to convict at all on some charges, we are confident the jury was capable of, and did, differentiate among defendant's crimes"]; Ruiz, supra, 44 Cal.3d at p. 607 ["the fact that the jury found defendant guilty of only second degree murder [of one victim] strongly suggests that the jury was capable of differentiating between defendant's various murders"].) Here, the jury declined to convict Nieto of the two kidnapping allegations with respect to Jane Doe 2, strongly suggesting it was able to consider each charge on its own merits.
In sum, we conclude that Nieto has not shown joinder to have resulted in gross unfairness such that he was deprived of a fair trial.
E. No Error in Propensity Instructions
With respect to evidence of propensity in this case, the trial court instructed the jury using CALCRIM 1191B, an instruction that has been upheld in at least one factual context by the Supreme Court. (See Villatoro, supra, 54 Cal.4th at pp. 1166-1167, 1169 [finding the instruction correctly stated the propensity law and upholding its use in that case, but declining to opine as to whether the instruction should be used in the future].) Specifically, the trial court explained to the jury: "The People presented evidence that the defendant committed the crimes of rape charged in Counts 1 and 2. [¶] If the People have proved beyond a reasonable doubt that the defendant committed one of these crimes, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude the defendant was likely to commit the other sex offense charged in this case. [¶] If the People have proved beyond a reasonable doubt that the defendant committed one of these crimes, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of another charged offense. The People must still prove each charge and allegation beyond a reasonable doubt." During deliberations, the trial court responded in the affirmative when the jury queried with respect to CALCRIM 1191B: "Does this apply either way? If for example we find the defendant guilty of count 2, may this be taken as inclination for commission of an alleged crime which happened several years earlier?"
While he acknowledges that we are bound by Villatoro, Nieto nevertheless contends the court's propensity instructions violated his constitutional rights to due process and a fair trial under the facts of this case, where the trial court did not weigh the propriety of using the evidence of one rape as propensity for the other pursuant to Evidence Code section 352, and both Jane Does "admittedly and repeatedly lied" about the alleged sexual assaults. Nieto again fails to establish constitutional error.
Nieto also reasserts his allegation that the prosecutor misstated the propensity law set forth in CALCRIM 1191B by arguing that the jury need only find one sexual assault true beyond a reasonable doubt to find him guilty of both. However, we have already considered and rejected this claim, concluding that there was no reasonable likelihood the jury applied the complained-of comments in an improper manner.
1. Legal Framework
Pursuant to Evidence Code section 1108, subdivision (a), "in a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] [s]ection 1101, if the evidence is not inadmissible pursuant to [Evidence Code] [s]ection 352." Evidence Code section 1108 thus provides an exception to the general rule that "[c]haracter evidence, sometimes described as evidence of a propensity or disposition to engage in a type of conduct, is generally inadmissible to prove a person's conduct on a specified occasion." (Villatoro, supra, 54 Cal.4th at p. 1159.) Legislative findings with respect to Evidence Code section 1108 note the critical need for propensity evidence in sex offense cases given the" 'serious and secretive nature of sex crimes'" that often results in a" 'credibility contest at trial'" as well as the" 'particularly probative'" nature of such evidence because" 'the willingness to commit a sexual offense is not common to most individuals.'" (Falsetta, supra, 21 Cal.4th at pp. 911-912.)
As discussed above, in conducting an analysis under Evidence Code section 352 to determine whether otherwise inadmissible evidence may be admitted pursuant to Evidence Code section 1108, "trial judges must consider such factors as [the incident's] nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other . . . offenses, or excluding irrelevant though inflammatory details surrounding the offense." (Falsetta, supra, 21 Cal.4th at p. 917.)
In Villatoro, supra, 54 Cal.4th 1152, the defendant was charged with multiple sex offenses. (Id. at pp. 1156-1159.) The trial court instructed the jury pursuant to Evidence Code section 1108 and a modified version of the related pattern jury instruction, CALCRIM No. 1191, that it could "use evidence of the defendant's guilt of one of the charged sexual offenses as evidence of his propensity to commit the other charged sexual offenses." (Id. at pp. 1156, 1158.) On appeal, the defendant argued it was improper to instruct the jury that it could use charged, rather than uncharged, offenses to prove his disposition to commit the other charged offenses. (Id. at p. 1159.)
Our high court disagreed. It first noted that, "[w]ith regard to the admission of uncharged sexual offenses, we have held that [Evidence Code] section 1108 satisfies the requirements of due process [citation], and that CALJIC No. 2.50.01, the predecessor to CALCRIM No. 1191, is a correct statement of the law." (Villatoro, supra, 54 Cal.4th at p. 1160, citing Falsetta, supra, 21 Cal.4th at p. 917.) The Supreme Court then reasoned that, "[b]y its terms, the statute does not distinguish between charged or uncharged sexual offenses, and refers instead to "another sexual offense or offenses." (Villatoro, at p. 1160.) "This definition of 'another' contains no limitation, temporal or otherwise, to suggest that [Evidence Code] section 1108 covers only offenses other than those for which the defendant is currently on trial." (Villatoro, at p. 1161.)
With respect to the import of the specific reference to Evidence Code section 352 in Evidence Code section 1108, the Supreme Court reasoned as follows: "Rather than imposing an additional hurdle to the admissibility of character evidence, as defendant suggests, the inclusion of [Evidence Code] section 352 merely makes 'explicit' the point that [Evidence Code] section 1108 does not supersede [Evidence Code] section 352 or other provisions of the Evidence Code. In other words, even if [Evidence Code] section 1108 did not refer to [Evidence Code] section 352, the latter still serves as a limitation on the admission of all evidence." (Villatoro, supra, 54 Cal.4th at p. 1163.) Thus," '[e]ven where a defendant is charged with multiple sex offenses, they may be dissimilar enough, or so remote or unconnected to each other, that the trial court could apply the criteria of [Evidence Code] section 352 and determine that it is not proper for the jury to consider one or more of the charged offenses as evidence that the defendant likely committed any of the other charged offenses.'" (Villatoro, at p. 1163; see, e.g., Earle, supra, 172 Cal.App.4th 372.) In the end, as our high court stressed:" '[I]t is not the express inclusion of the reference to [Evidence Code] section 352 [in Evidence Code section 1108] that matters; rather, it is the availability of the weighing process.'" (Villatoro, at pp. 1162-1163.)
We consider the validity of a jury instruction de novo. (Waidla, supra, 22 Cal.4th at p. 733.) Nieto's claim that the delivery of the challenged instruction violated his constitutional rights to due process and a fair trial under the specific facts of this case is also reviewed de novo. (D.S., supra, 230 Cal.App.4th at p. 1245.)" 'In reviewing the purportedly erroneous instruction[], "we inquire 'whether there is a reasonable likelihood that the jury applied the challenged instruction in a way' that violates the Constitution." '" (People v. Lucas (2014) 60 Cal.4th 153, 287, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.) Moreover, the trial court "must attempt 'to clear up any instructional confusion expressed by the jury.'" (People v. Giardino (2000) 82 Cal.App.4th 454, 465; see also § 1138.)
2. No Error in Propensity Instructions
Defense counsel failed to object to the use of CALCRIM No. 1191B at trial and has therefore forfeited his challenge to it. Nieto's arguments, however, also easily fail on their merits. Nieto contends that the Villatoro Court emphasized the need to conduct a weighing process under Evidence Code section 352 when allowing evidence of one sexual offense to be used as propensity evidence with respect to another sexual offense under Evidence Code section 1108. He asserts that no such weighing was done in this case. And he claims this error was exacerbated in this instance because the two victims "admittedly and repeatedly lied about what had occurred." We disagree.
Indeed, defense counsel expressly asked that the instruction be given if his motion to dismiss the rape charge with respect to Jane Doe 1 was denied, because it "explains that evidence of charged sexual conduct can only be used as propensity evidence in support of another currently charged offense if the conduct is first proved beyond a reasonable doubt." Thus, he clearly thought the instruction benefitted the defense by emphasizing the heightened standard of review.
Preliminarily, we dismiss again Nieto's argument that this case was somehow fatally weakened because both Jane Does were liars. As previously discussed, while Jane Doe 1 and Jane Doe 2 initially lied about certain aspects of the charged rapes, they explained why they did so, and the core of their stories remained consistent. In addition, the jury heard evidence regarding how trauma can impact the ability of a sexual assault victim to recount the specifics of an assault in a linear fashion. The trial court expressly found both Jane Does credible with respect to the rape allegations when it denied the defense's section 1118.1 motion. And the jury obviously found them credible in returning convictions with respect to both rapes, a determination we see no need to revisit. There is, in short, no correlation between the testimony of the Does and Nieto's constitutional claims with respect to the propensity instruction.
As for the significance of Evidence Code section 352 in this context, it is true that the Supreme Court has stressed the importance of that statute's weighing process when permitting the admission of propensity evidence. (See Falsetta, supra, 21 Cal.4th at pp. 916-917 ["[W]e believe [Evidence Code] section 352 provides a safeguard that strongly supports the constitutionality of [Evidence Code] section 1108. By reason of [Evidence Code] section 1108, trial courts may no longer deem 'propensity' evidence unduly prejudicial per se, but must engage in a careful weighing process under [Evidence Code] section 352."]; see also People v. Reliford (2003) 29 Cal.4th 1007, 1013 [concluding that, since a trial court must "engage in a careful weighing process under Evidence Code section 352" when determining whether propensity evidence is admissible, if such "evidence is admissible, it may support an inference-as the instruction provides-that the defendant is predisposed to commit sex offenses"].) When a prosecutor seeks to introduce evidence of uncharged offenses, the Evidence Code section 352 analysis generally happens organically. However, as the Villatoro Court confirmed," '[W]e are willing to infer an implicit weighing by the trial court on the basis of record indications well short of an express statement.'" (Villatoro, supra, 54 Cal.4th at p. 1168.)
Where sexual offenses are consolidated over objection, the trial court likely undertakes an implicit Evidence Code section 352 analysis. (See Earle, supra, 172 Cal.App.4th at p. 387 ["the key inquiry before the trial court on a motion to sever is whether joint trials pose an unacceptable risk of prejudice, i.e., of unfairly affecting the adjudication of one or more of the charges"].) Such was the case here. As discussed above, when arguing for consolidation the prosecutor asserted that the offenses were cross-admissible under Evidence Code sections 1108 and 352. The court, in granting the consolidation, subsequently concluded that the case presented a "very strong case" for admissibility under Evidence Code section 1101, subdivision (b), given the "similar MO, you have similar DNA, you have similar identifying markers, alterations to the passenger side car door." It then opined that cross-admissibility became "very close to being a forgone conclusion" under Evidence Code section 1108. The court also concluded neither charge was more inflammatory than the other, neither was significantly weaker or stronger, and Nieto would not be prejudiced by facing all of the charges in one proceeding. In other words, having been made aware of the requirements of Evidence Code sections 1108 and 352 by the prosecutor, the court implicitly conducted the weighing required by Evidence Code section 352 in finding cross-admissibility extremely likely and concluding that Nieto would not be prejudiced by consolidation of the charges.
Given the question of fundamental fairness that Nieto raises, we are not disturbed that this original consolidation decision was made by a different judge. The issue is whether the Evidence Code section 352 analysis was undertaken with respect to two charged offenses and was sufficiently supported by the evidence. Nevertheless, the trial court, during motions in limine with respect to the propensity instruction here at issue, indicated that it had read Cruz, supra, 2 Cal.App.5th 1178, which-in rejecting a trial court's attempt to adapt the basic propensity instruction for multiple charged offenses-discusses Evidence Code section 1108 and cites to the need for an Evidence Code section 352 analysis. (Cruz, at pp. 1184-1185.) Thereafter, in rejecting Nieto's new trial argument that consolidation of the two charges constituted prejudicial error, the trial court acknowledged its ability to grant a new trial on that basis, but declined to do so, finding no error in the consolidation of the two charges. Under all of these circumstances, it is clear that the necessary weighing under Evidence Code section 352 was done here, thereby negating Nieto's claim that use of the propensity instruction violated his constitutional rights.
The jury's question with respect to CALCRIM 1191B does not change our analysis. The trial court's response was a correct statement of the law. Further, in asking if it found Nieto guilty with respect to the rape of Jane Doe 2 (presumably based on evidence beyond a reasonable doubt as repeatedly instructed) that could "be taken as inclination for commission of an alleged crime which happened several years earlier," the jury showed it both understood how the propensity instruction worked and was considering the two charges separately as required. Finally, because we find no error in the use of CALCRIM 1191B in this case, we also reject Nieto's claim that defense counsel was ineffective for failing to object to it.
F. Kidnapping Allegations
Nieto next argues that the trial court erred in failing to grant the defense's section 1118.1 motion with respect to the kidnapping enhancements involving Jane Doe 1. Specifically, he asserts that there was insufficient evidence: (1) supporting the forcible asportation of Jane Doe 1; (2) to prove he did not reasonably believe that Jane Doe 1 had consented to the movement in the car; and (3) to establish that the movement of Jane Doe 1 substantially increased her risk of harm. We are not persuaded.
1. Additional Background
After the prosecution rested, the trial court held a hearing on defense counsel's motion to dismiss all charges for insufficient evidence pursuant to section 1118.1. During argument, the court indicated it was focused on the elements of kidnapping with respect to both Jane Does, but-finding each to be a credible witness-was inclined to make the necessary findings denying the defense motion. By the end of the hearing, the court was focused solely on the kidnapping allegations for Jane Doe 2. It denied the section 1118.1 motion in its entirety, but stated its denial was without prejudice with respect to the Jane Doe 2 kidnapping allegations, which the defense was free to reargue at the close of the defense case. The defense did so, but the court denied with prejudice the renewed section 1118.1 motion. Ultimately, as stated above, the jury found the kidnapping allegations true with respect to Jane Doe 1 and not true with respect to Jane Doe 2.
2. Legal Framework
Section 667.61 provides an alternate sentencing scheme for specified sexual offenses, including, as relevant here, rape. (§§ 261, subd. (a)(2), 667.61, subd. (c)(1).) The jury was instructed in this case pursuant to CALCRIM Nos. 1215, 3175, and 3179 on the kidnapping special circumstances set forth in section 667.61, subdivisions (d)(2) and (e)(1). Section 667.61, subdivision (d)(2) permits imposition of a sentence of 25 years to life on a defendant convicted of rape when: (1) the victim is kidnapped; and (2) and the victim's movement "substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense." (§ 667.61, subd. (d)(2); People v. Adams (2018) 28 Cal.App.5th 170, 189.) To establish a kidnapping, the prosecution must prove: "(1) the victim was moved a substantial distance, (2) the movement was accomplished by use of physical force or fear, and (3) the movement was nonconsensual." (People v. Kelly (2016) 245 Cal.App.4th 1119, 1129-1130.) Thus, to support the subdivision (d)(2) enhancement in this case the prosecution was required to establish beyond a reasonable doubt that: (1) Nieto took, held, or detained Jane Doe 1 by the use of force or by instilling reasonable fear; (2) using that force or fear, he moved her a substantial distance; (3) the movement substantially increased the risk of harm to Jane Doe 1 beyond that necessarily present in the rape; (4) Jane Doe 1 did not consent to the movement; and (5) Nieto did not actually and reasonably believe that Jane Doe 1 consented to the movement. (CALCRIM Nos. 1215, 3175 &3179.)
The special allegation under subdivision (e)(1) of section 667.61 requires proof of all of the same elements-except the element that the movement substantially increased the risk of harm to the victim-and authorizes imposition of a sentence of 15 years to life. (§ 667.61, subds. (b) & (e)(1).)
For purposes of a kidnapping finding, a substantial distance means "more than a slight or trivial distance." (CALCRIM No. 1215; accord, Gomez, supra, 6 Cal.5th at p. 304.) However, the measured distance of the movement, while relevant, is not dispositive. Rather, the jury should consider all of the circumstances related to the movement, including such things as whether the movement increased the risk of harm or, when an associated crime is involved, whether the movement was merely incidental to the commission of that crime. (Martinez, supra, 20 Cal.4th at p. 237, overruled on another ground in People v. Fontenot (2019) 8 Cal.5th 57, 70; see also People v. Nieto (2021) 62 Cal.App.5th 188, 200 [" 'Where movement changes the victim's environment, it does not have to be great in distance to be substantial.' "].) With respect to the element of force or fear, "[e]ven if the victim's initial cooperation is obtained without force or the threat of force, kidnapping occurs if the accused' "subsequently restrains his victim's liberty by force and compels the victim to accompany him further." '" (People v. Acala (1984) 36 Cal.3d 604, 622 (Acala), superseded by statute on another ground as stated in Falsetta, supra, 21 Cal.4th at p. 911.) Finally, "in 'order to consent, a person must act freely and voluntarily and know the nature of the act,' and . . . a person may withdraw consent." (People v. Eid (2010) 187 Cal.App.4th 859, 869-870.)
"In ruling on a motion for judgment of acquittal pursuant to section 1118.1, a trial court applies the same standard an appellate court applies in reviewing the sufficiency of the evidence to support a conviction, that is,' "whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. [Citations.]"' [Citation.] 'Where the section 1118.1 motion is made at the close of the prosecution's case-in-chief, the sufficiency of the evidence is tested as it stood at that point.'" (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213.) On appeal, "[w]e review independently a trial court's ruling under section 1118.1 that the evidence is sufficient to support a conviction." (Id. at p. 1213.)
The framework undergirding our substantial evidence analysis is well settled." 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' (People v. Linberg (2008) 45 Cal.4th 1, 27.)" (People v. Covarrubias (2016) 1 Cal.5th 838, 890; accord, People v. Odom (2016) 244 Cal.App.4th 237, 246.)
3. Substantial Evidence Supported the Kidnapping Allegations With Respect To Jane Doe 1
In arguing a lack of substantial evidence in this context, Nieto impermissibly cherry picks the facts, ignoring those which do not support his claims. For instance, Nieto asserts that there was insufficient proof that he forced Jane Doe 1 into the car against her will because she testified that he only "nudged" her in the back "a little," and she could not explain how her legs got into the vehicle. Moreover, when he told her he had a charger at his house she responded, "Okay" and did not act like she was scared during the drive. After he let her out of the vehicle at his house, he told her he was going to go charge the phone and she responded: "Okay. Thank you." She then remained outside of the vehicle waiting for him. Nieto argues that these facts only support asportation by deceit or fraud.
We agree with Nieto that" '[i]f a person's free will was not overborne by the use of force or the threat of force, there was no kidnapping.'" (People v. Hill (2000) 23 Cal.4th 853, 856.) However, when viewed in the light most favorable to the verdict, Jane Doe 1's testimony provides substantial evidence that Nieto, through force and fear, moved her a substantial distance against her will. According to Jane Doe 1, after cutting her off on International Boulevard with his car, Nieto lured her toward the vehicle with promises that he had a charger inside. He opened the passenger door and, when she approached, he stood behind her and put his hand on the top of the door, blocking her in with his arm and body. As she was leaning into the car looking for the charger, Nieto gave her a "nudge type push . . . . [w]ith force," which caused her to fall into the car. He "nudged [her] hard enough that [her] body dropped . . . on the seat." She did not think her legs were still outside of the car at that point because she is short and had been reaching far for the charger: "So my whole body was in[,] and the door shut."
After Nieto shut the door, Jane Doe 1 turned around and looked at him "like, 'What the fuck.'" She tried to get out of the car but discovered she was trapped because there was no passenger-side door handle. Nieto then got into the car, telling her he had a charger at his house. She did not say okay but "was like okay. And [she] just tried to stay calm," and to not "freak out." During the several minute drive, she was quiet because she did not know what was going to happen. When they got to the house, Nieto took her phone and stated he would go put it on the charger. Jane Doe 1 responded," 'Okay. Thank you.'" The jury could have reasonably inferred, as Jane Doe 1 testified, that she was polite because she was trapped in a scary situation that she was afraid to escalate. Thus, while Nieto also used fraud and deceit with Jane Doe 1, this testimony was sufficient to establish the force/fear element of the kidnapping.
This case stands in stark contrast to People v. Lewis (2021) 72 Cal.App.5th 1, revd. (2023) ___ Cal.5th ___ , cited by Nieto, in which the appellate court indicated it could not "speculate Lewis forced [the Doe] into his car or once in the car restrained her liberty" where no evidence was presented on that point (Id. at p. 18.) Here we have direct testimony from Jane Doe 1 that she was both forced into the vehicle and restrained inside against her will.
Under similar reasoning, we also disagree with Nieto's claim there was insufficient evidence that he did not reasonably believe Jane Doe 1 had consented to the movement. Simply put, Nieto could not possibly have thought-after lying to her about having a charger, pushing her into the car against her will, closing the door, and locking her in-that Jane Doe 1 consented to the drive. (See Acala, supra, 36 Cal.3d at p. 622 ["Imprisonment for any substantial distance in a moving vehicle is forcible asportation."].) Rather, she responded with a what-the-fuck look and then remained quiet throughout the trip. We disagree with Nieto that, on these facts, it is a reasonable inference that he believed Jane Doe 1 acquiesced to the movement. Indeed, the jury could reasonably infer that Nieto immediately grabbed her phone and carried it into the house because he knew Jane Doe 1 had not consented to the movement and would not otherwise follow him further.
Moreover, as discussed above, Jane Doe 2's testimony that her door also appeared disabled is relevant in this context under the doctrine of chances and supports the inference Nieto had purposely disabled the handle and knew he had trapped Jane Doe 1. (Compare Acala, supra, 36 Cal.3d at p. 622 [where the defendant had lured the victim into his automobile with a ruse and then locked the passenger side door, "the jury could conclude that the door was locked to prevent [the victim's] escape"].)
Finally, Nieto contends that there was insufficient evidence to establish that the movement of Jane Doe 1 substantially increased her risk of harm over and above the risk of harm necessarily inherent in the rape. Thus, he argues, even if there was sufficient evidence to support the section 667.61, subdivision (e)(1) enhancement, the subdivision (d)(2) enhancement must be reversed. The prosecutor argued to the jury that this element was proved because Nieto moved Jane Doe 1 from a busy throughfare (with open establishments and cars driving by) to a residential area and that her risk of harm increased because she was ultimately "contained within four walls out of the view of people." According to Nieto, the evidence of increased harm was insufficient because the danger to Jane Doe 1 actually decreased when she arrived at the house and was let out of the car. At that point, he asserts, she was free to leave. Nieto further claims that she then went into the house voluntarily to obtain her phone. These arguments, however, again ignore our substantial evidence standard of review.
"The essence of aggravated kidnapping is the increase in the risk of harm to the victim caused by the forced movement. [Citation.] [Our high court has] articulated various circumstances the jury should consider, such as whether the movement decreases the likelihood of detection, increases the danger inherent in a victim's foreseeable attempts to escape, or enhances the attacker's opportunity to commit additional crimes." (People v. Dominguez (2006) 39 Cal.4th 1141, 1152 (Dominguez).) We have already concluded that substantial evidence supports the kidnaping charge up to the point Nieto and Jane Doe 1 arrived outside of his house. And Nieto concedes, as he must, that Jane Doe 1's movement into his house substantially increased her risk of harm. (See People v. Williams (2017) 7 Cal.App.5th 644, 669 [" 'a rape victim is certainly more at risk when concealed from public view and therefore more vulnerable to attack' "].) But he argues that Jane Doe 1 could have escaped while alone on the street and that she entered his house voluntarily to retrieve her phone, thereby negating any aggravated kidnapping claim. We address and reject both of these contentions.
First, Jane Doe 1 testified that, after Nieto took the phone into his house, she stood outside by herself for a short period, somewhere between one minute and five. She did not try to run away because he had her phone. Jane Doe 1's phone was important to her, both because it contained many memories and because she could not afford a new one. Crucially, she also needed the phone at that moment because she was lost, and it was vital that she retrieve her aunt's phone number so that she could call her. Jane Doe 1 had already been scared when she was lost on International Boulevard.
Nieto then moved her from that busy thoroughfare with open stores to an unknown residential neighborhood. Night was falling, there were no other people on the street, and she did not remember seeing any cars. In other words, Nieto left her totally vulnerable in a completely unknown area after removing her one lifeline, essentially paralyzing her with fear. From this evidence, the jury could have reasonably inferred that Jane Doe 1 did not flee during this short period due to a mixture of fraud and force/fear. (Compare Acala, supra, 36 Cal.3d at p. 622 [" 'The force used against the victim "need not be physical. The movement is forcible where it is accomplished through the giving of orders which the victim feels compelled to obey because he or she fears harm or injury from the accused and such apprehension is not unreasonable under the circumstances."' "]; see also Dominguez, supra, 39 Cal.4th at p. 1152 [increase in risk of harm where movement increases the danger inherent in a victim's foreseeable attempts to escape].)
Next, we disagree that Jane Doe 1 went into the house voluntarily. After Nieto came back outside without her phone and told her it would not charge, Jane Doe 1 responded that she wanted her phone and wanted to leave. Jane Doe 1 had walked towards where Nieto was standing while having the discussion. When he made no move to retrieve the phone despite her indicating she wanted to leave, Jan Doe 1 walked through the side gate where he had come from, intending to get it herself. She then heard him behind her in this small side area, and he was blocking her from leaving, so she ran through the open door of the house, through the kitchen where two people were located, and saw a wide open door. That door led into a bedroom, and Jane Doe 1 saw her phone lying on the bed, "not even trying" to be charged. Very quickly, the man came in after her, shut the door, and-as she was reaching down for her phone-pushed her powerfully onto the bed and stated: "You're not going anywhere."
Specifically, Jane Doe 1 testified that Nieto blocked her from leaving as follows: "[He] [g]ot behind me. And so when I approached to get my phone, he was there in front. So I went past. And he was behind me. And I turned around, but there was no room for me to even turn around and get out. I wanted to, but I was going for my phone, so I went. (Italics added.)
Under these circumstances, we conclude that a reasonable jury could infer that Nieto used a combination of force, fear, and deceit to move Jane Doe 1 from International Boulevard into the bedroom where the rape occurred behind closed doors. In sum, substantial evidence supports the jury's determination that Nieto's movement of Jane Doe 1 from International Boulevard to the outside of his house and then into his closed bedroom substantially increased her risk of harm over and above the risk of harm necessarily inherent in the rape. And, having found sufficient evidence supports the one-strike kidnapping special allegations, we also reject Nieto's conclusory statements that his federal due process rights require reversal.
G. Fines and Fees
At the sentencing hearing in this matter-after finding that Nieto had the ability to pay-the trial court imposed a restitution fine of $10,000 (§ 1202.4, subd. (b)(1)), a sex offender fine of $500 (§ 290.3, subd. (a)), a theft fine of $10 (§ 1202.5), a criminal convictions assessment of $90 (Gov. Code, § 70373), and a court operations assessment of $120 (§ 1465.8). It also imposed but stayed a parole revocation fine of $10,000. (§ 1202.45.) Defense counsel objected that the fines and fees should not be imposed without a formal ability-to-pay hearing, as Nieto was indigent and had no form of income. The trial court overruled the objection. Noting that it made the finding of ability to pay based on information it learned about Nieto at trial and in the probation report, the court concluded Nieto would have the ability to pay once he went to prison.
Nieto does not contest the theft fine or the parole revocation fine on appeal.
Citing People v. Duenas (2019) 30 Cal.App.5th 1157 (Duenas) and its progeny, Nieto asserts that the trial court's failure to hold an actual hearing on his ability to pay violated his constitutional rights to due process and to be free from excessive fines. In reply, he champions Justice Streeter's concurrence in People v. Cowan (2020) 47 Cal.App.5th 32 (conc. opn. of Streeter, J.), review granted June 17, 2020, S261952, arguing that ability-to-pay challenges should be analyzed under the equal protection clause of the California Constitution. And factually he contends that the trial court erred because the probation report indicated he had $20,000 in student loans; his only asset was a 2003 Mercedes; and, even if he obtained a prison job, he would only earn $.08 to $.37 per hour-evidence he could have fleshed out at a hearing.
The ability-to-pay issue is currently before our high court for resolution of some of the many issues raised in the wake of Duenas. (People v. Kopp (2022) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.) We need not address the merits of those issues here, however, because the trial court's failure to hold a formal ability-to-pay hearing is harmless under any standard. The fines and fees Nieto challenges amount to a total of $10,710. As Nieto, himself, acknowledges, a prison job pays between $.08 to $.37 per hour. (See People v. Jones (2019) 36 Cal.App.5th 1028, 1035 ["Wages in California prisons currently range from $12 to $56 a month."]). Nieto was sentenced to 45 years to life and was 32 years old at sentencing. Assuming 40 years of incarceration and a $.25 per hour wage (a reasonable assumption given his training and job experience), Nieto would make $480 a year or a total of $19,200, almost twice what he owes. Thus, Nieto does have the ability to pay the challenged fines and fees and therefore any failure to hold a formal ability-to-pay hearing in the instant case was harmless. (See People v. Lowery (2020) 43 Cal.App.5th 1046, 1060 ["Nothing in this record suggests [defendants] might be unable to work, or that they might be ineligible for prison work assignments. As such, we can infer that they will have the opportunity to earn prison wages and they can start paying these financial obligations."]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1076 ["We can infer defendant in this case has the ability to pay the fines and fees imposed upon him from probable future wages, including prison wages."]; People v. Jones, supra, 36 Cal.App.5th at p. 1035 [finding any Duenas error harmless where the defendant had sufficient time to earn the necessary amount during his sentence].)
H. Other Sentencing Issues
As stated above, Nieto was sentenced to the five-year upper term on his conviction for second degree robbery (count three), to be served consecutively to the two rape charges (counts one and two). Nieto asserts that two recent amendments to section 1170 are ameliorative and therefore require reversal for resentencing. The Attorney General concedes that these changes apply retroactively to Nieto's case and that a remand for resentencing of the robbery count is appropriate. Since we agree remand is required with respect to at least one such amendment, we conclude that the best alternative is a remand for resentencing during which the trial court can consider in the first instance all relevant retroactive changes to the sentencing laws. We also agree with the parties that the abstract of judgment and the sentencing minute order should be amended to correct technical errors.
1. Experience of Trauma
Effective January 1, 2022, our determinate sentencing law was amended in several fundamental ways. (See Sen. Bill No. 567 (2020-2021 Reg. Sess.); Stats. 2021, ch. 731, §§ 1.3, 3(c) [chapter 731 prevails]; Assem. Bill No. 124 (2020-2021 Reg. Sess.); Stats. 2021, ch. 695, § 4.) For example, the amendments created a presumption in favor of a low prison term under certain circumstances. (Stats. 2021, ch. 731, § 1.3, 3(c).) As is relevant here, the amended statute provides: "[U]nless the court finds that the aggravating circumstances outweigh the mitigating circumstances [such] that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶] (A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence." (Id., subd. (b)(6)(A).)
In a previous probation report Nieto stated he had a normal childhood. However, in the current report he described his upbringing as a "difficult" period, during which he experienced physical abuse, neglect, and other trauma. According to his sentencing memorandum, childhood trauma led Nieto to self-medicate with substances. He began experimenting with heavy drugs and developed an addiction by the age of 13. Nieto recounted being diagnosed with schizophrenia and anxiety in 2013. He described the schizophrenia as drug-induced and" 'not something that goes away.'" And he additionally spoke about having a psychotic episode after being" 'drugged with PCP,'" leading to several psychiatric hospitalizations.
When imposing the upper term for the robbery conviction, the trial court found no factors in mitigation and multiple aggravating factors. It justified its imposition of the upper term for the robbery conviction because the aggravated factors "so far outweigh[ed] the mitigating factors." Nevertheless, as the Attorney General acknowledges, Nieto has raised a factual question regarding the applicability of section 1170, subdivision (b)(6)(A) to his sentencing determination, and he may be able to present additional evidence at a new sentencing hearing. Thus, remand for resentencing is appropriate.
2. Presumptive Middle Term
"While this appeal was pending, Senate Bill No. 567 (2021-2022 Reg. Sess.) amended section 1170, subdivision (b), making the middle term of imprisonment the presumptive sentence. (§ 1170, subd. (b); Stats. 2021, ch. 731, § 1, effective Jan. 1, 2022.) A trial court may now impose an upper term sentence only where there are aggravating circumstances in the crime and the defendant has either stipulated to the facts underlying those circumstances or they have been found true beyond a reasonable doubt. (§ 1170, subd. (b)(1)-(2).)" (People v. Flores (2022) 75 Cal.App.5th 495, 500 (Flores), fn. omitted.)
As stated above, the trial court here explained it intended to impose the maximum term possible given that the aggravated factors "so far outweigh[ed] the mitigating factors." The court found that there were no mitigating factors, while the following factors existed in aggravation: (1) the crimes involved great violence and a high degree of callousness; (2) the victims were particularly vulnerable; (3) the manner defendant carried out the offenses indicated planning, sophistication, or professionalism; (4) the crime involved an actual taking of great monetary value (Jane Doe 2's cellphone); (5) Nieto had engaged in violent conduct which indicated a serious danger to society (convictions for misdemeanor criminal threats and felony domestic violence); (6) Nieto's convictions as an adult were numerous and of increasing seriousness; and (7) Nieto had served one prior prison term. (See Cal. Rules of Court, rule 4.421 subds. (a)(1), (a)(3), (a)(8), (a)(9), (b)(1)-(b)(3).)
Per the probation report, between 2008 and 2014 Nieto was convicted of four misdemeanors, including criminal threats and burglary, as well as felony domestic violence and felony marijuana possession. In addition, in November 2013 he was arrested for exposing himself in public.
A number of appellate courts have concluded that the failure to comply with newly enacted subdivision (b)(2) of section 1170 can be harmless, but there is disagreement regarding the correct test for harmlessness in this context. (See, e.g., People v. Lewis (2023) 88 Cal.App.5th 1125, 1137 [appellate court should first determine whether the jury would have found at least one aggravating circumstance true beyond a reasonable doubt, and, if so, further determine whether the record clearly indicates that the trial court would have imposed the same sentence under the new law]; People v. Lopez (2022) 78 Cal.App.5th 459, 467, fn. 11 [harmless if the jury would have found all of the aggravating circumstances that the trial court relied on true beyond a reasonable doubt]; Flores, supra, 75 Cal.App.5th at p. 500 [harmless if the jury would have found at least one aggravating circumstances that the trial court relied on true beyond a reasonable doubt].) However, since we have already determined that Nieto's sentence must be reversed and remanded for resentencing on other grounds, we need not wade into this controversy. Rather, we conclude under these circumstances that the trial court should consider any retroactive and relevant statutory changes when resentencing Nieto, including the possible applicability of section 1170, subdivision (b)(2). (See People v. Buycks (2018) 5 Cal.5th 857, 893 ["when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances' "].) We express no opinion as to the outcome of this resentencing.
3. Corrections to Record and Abstract of Judgment
"[I]n a criminal case, it is the oral pronouncement of sentence that constitutes the judgment. [Citation.] To the extent a minute order diverges from the sentencing proceedings it purports to memorialize, it is presumed to be the product of clerical error." (People v. Scott (2012) 203 Cal.App.4th 1303, 1324.) Likewise, the abstract of judgment"' "cannot add to or modify the judgment which it purports to digest or summarize." '" (Ibid.)" 'Court's may correct clerical errors at any time, and appellate courts . . . that have properly assumed jurisdiction [can] order[] correction of abstracts of judgment that [do] not accurately reflect the oral judgments of sentencing courts.'" (People v. Clark (2021) 67 Cal.App.5th 248, 260, quoting People v. Mitchell (2001) 26 Cal.4th 181, 185.)
Here, both parties agree, and we concur, that the sentencing minute order in this matter should be amended to reflect that the jury found both kidnapping enhancements not true with respect to count two involving Jane Doe 2. It follows, as the parties additionally note, that the abstract of judgment should also be corrected to reflect that count two was enhanced pursuant to section 667.61, subdivision (e)(4) based on the presence of multiple victims rather that section 667.61, subdivision (e)(1) which requires a kidnapping. After resentencing, any subsequent sentencing minute order and/or abstract of judgment should also reflect these two changes.
I. The California Racial Justice Act
While this matter was pending, Nieto submitted supplemental briefing arguing that his conviction should be reversed due to violations of the CRJA. Effective January 1, 2021, the CRJA codified the fundamental principle that "[t]he state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin." (§ 745, subd. (a).) According to Nieto, the prosecutor in this case violated the CRJA by analogizing him to a predatory animal. The Attorney General concedes that the CRJA applies retroactively to Nieto's case because it is not yet final but asserts that Nieto's challenge cannot be raised on direct appeal and is otherwise without merit. We reach and reject Nieto's claims.
1. Legal Framework
As stated above, the CRJA provides that "[t]he state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin." (§ 745, subd. (a).) As is relevant here, a violation of the CRJA is established if the defendant proves, by a preponderance of the evidence that "[d]uring the defendant's trial, in court and during the proceedings, the judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror, used racially discriminatory language about the defendant's race, ethnicity, or national origin, or otherwise exhibited bias or animus towards the defendant because of the defendant's race, ethnicity, or national origin, whether or not purposeful." (Id., subd. (a)(2), italics added.) For purposes of the CRJA, "racially discriminatory language" is defined to mean "language that, to an objective observer, explicitly or implicitly appeals to racial bias, including, but not limited to, racially charged or racially coded language, language that compares the defendant to an animal, or language that references the defendant's physical appearance, culture, ethnicity, or national origin. Evidence that particular words or images are used exclusively or disproportionately in cases where the defendant is of a specific race, ethnicity, or national origin is relevant to determining whether language is discriminatory." (Id., subd. (h)(4), italics added.) The burden is on the defendant to prove a CRJA violation. As stated above, however, the defendant need not establish intentional discrimination. (§ 745, subd. (c)(2).) After a judgment has been entered, if the court finds that a conviction was sought or obtained in violation of the CRJA, the court "shall vacate the conviction and sentence, find that it is legally invalid, and order new proceedings consistent with" the CRJA. (§ 745, subd. (e)(2)(A).)
2. Consideration on Direct Appeal
The CRJA provides that "[a] defendant may file a motion in the trial court or, if judgment has been imposed, may file a petition for writ of habeas corpus or a motion under section 1473.7 [if out of custody] in a court of competent jurisdiction, alleging a violation of subdivision (a)." (§ 745, subd. (b).) As originally enacted, the CRJA stated that it applied "only prospectively in cases in which judgment has not been entered prior to January 1, 2021." (Former § 745, subd. (j).) Here, although Nieto's trial took place in October 2020, he was not sentenced until February 5, 2021. Thus, Nieto could have filed a CRJA motion with the sentencing court or included a CRJA claim in the petition for habeas corpus he filed in connection with this direct appeal. The Attorney General argues that these two options-trial court motion or petition for habeas corpus-are the exclusive means for raising a CRJA claim, and thus we should not consider the issue for the first time on direct appeal. Noting that "appellate courts are not equipped to accept new evidence and make factual findings" (quoting People v. Cervantes (2020) 46 Cal.App.5th 213, 224), the Attorney General suggests that Nieto raise his claim via a petition for habeas corpus, preferably in the trial court. Under the circumstances of this case, however, we will reach Nieto's CRJA claim on the merits. Preliminarily, we recognize the gravity of CRJA claims and the importance of their timely resolution. We also note the timing of the sentencing in this case, which occurred only a month after the CRJA initially became effective. Moreover, among the many issues raised in this appeal and related habeas petition, we have already considered-under the rubric of prosecutorial misconduct-Nieto's challenge to the very same language he now contends constitutes a violation of the CRJA. Specifically, we have rejected Nieto's claim that the prosecutor committed misconduct by improperly analogizing him to a predatory animal. Finally, unlike certain other CJRA challenges, our review of the issue raised is based on undisputed facts, and no further factfinding is necessary. We will therefore proceed on the assumption that, under the circumstances of this case, we can consider Nieto's CRJA claim in this appeal.
Although obviously not controlling at this juncture, we additionally note that legislation is currently pending that would "clarify" section 745 by adding express language providing for consideration of certain CRJA claims on direct appeal. (See Assem. Com. on Pub. Safety, Rep. on Assem. Bill No. 1118 (2023-2024 Reg. Sess.), as amended Mar. 15, 2023, p. 5 ["This bill would make additional clarifying changes to the CRJA. It would specify that a CRJA claim based on the trial record may be raised on direct appeal from the conviction or sentence, not just in a habeas petition."]; see also Assem. Bill No. 1118 (2023-2024 Reg. Sess.), as amended May 18, 2023, § 1.) On our own motion, we take judicial notice of this pending legislation. (Evid. Code, §§ 452, subds. (c) & (h), 459, subd. (a); Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 31.) Our situation falls squarely within the proposed language.
3. No CRJA Violation on These Facts
Nieto claims the following language used by the prosecutor in her closing argument is impermissible under the CRJA: "[Nieto] loops back around to make sure [Jane Doe 1's] alone. He loops back around and sees that she's distressed, that she keeps looking down at her phone. Great. She can't call for help. Then he loops around again. He goes in for the kill. He cuts her off establishing his dominance, his superior position." (Italics added.) Later in her argument, the prosecutor remarked that Nieto "preyed on the weak." According to Nieto, who is Latino, these comments analogized him to a predatory animal thus constituting racially discriminatory language in violation of the CRJA. The Attorney General disagrees, arguing that "[t]o the extent the prosecutor's comments implied that [Nieto] was a human predator, that was a fair description of a defendant who found two strangers on the street, took them to an isolated location, and raped them." We agree with the Attorney General, seeing no CRJA violation on these facts. As stated above, it is improper under the CRJA for various trial participants, including the prosecutor, to use "racially discriminatory language about the defendant's race, ethnicity, or national origin." (§ 745, subd. (a)(2).) Such language includes "language that, to an objective observer, explicitly or implicitly appeals to racial bias, including, but not limited to, . . . language that compares the defendant to an animal." (Id., subd. (h)(4).) Moreover, "[e]vidence that particular words or images are used exclusively or disproportionately in cases where the defendant is of a specific race, ethnicity, or national origin is relevant to determining whether language is discriminatory." (Ibid.) Undoubtedly, although she never called him an animal, the prosecutor's challenged comments in this case do describe Nieto as a predator. But we do not perceive her remarks to be racially laden. Far from being used disproportionately in cases where the defendant is of a specific race, ethnicity, or national origin, "predator" is a commonly used descriptor of specific types of human behaviors which are engaged in irrespective of race. While animal conduct can certainly be predatory, predators are also defined as exhibiting quintessentially human behaviors. (See American Heritage Dict. (4th ed. 2020) p. 1382.) [defining predator as both "[a]n organism that lives by preying on other organisms" and as "[o]ne that victimizes, plunders, or destroys, especially for one's own gain"].) Thus, a company that tries to take over another company is referred to as "predatory." And our laws define individuals who exhibit certain extreme sexual misconduct as "Sexually Violent Predators." (See Welf. & Inst. Code, § 6600 et seq. (Sexually Violent Predator Act); see also Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 198 [describing a procedural maneuver in court as "[m]oving in for the kill"]; United States v. Bonilla-Comacho (7th Cir. 1997) 121 F.3d 287, 289 [describing how officers "closed in for the kill" to arrest a target in a sting operation].) In sum, we conclude that referencing predatory behaviors, without more, does not indicate racial animus sufficient to support a violation of the CRJA. Of course, we recognize that while referring to predatory behavior is generally race-neutral, under certain circumstances such language could be used to invoke racist tropes. (See People v. Thompson (2022) 83 Cal.App.5th 69, 129 [conc. opn. of Lie, J.].) This, however, is not such a case. Nothing in the prosecutor's closing argument suggests she referred to Nieto's predatory conduct as a means of implicitly appealing to racial bias. Indeed, while Nieto is Latino, both Jane Does are Latinas, and the prosecutor repeatedly urged the jury to put any prejudices aside when considering the truth of their testimony. Thus, while we join the call for courts and counsel to "be aware of explicit and implicit racial biases" and "to be vigilant in their efforts to ensure compliance with the Racial Justice Act and the provision of fair trials" (id. at p. 96 [maj. opn.]), after thoroughly reviewing Nieto's trial we reject his CRJA claim.
III. DISPOSITION
Nieto's convictions are affirmed. The sentence is vacated, and the matter is remanded for resentencing consistent with the views expressed in this opinion and current applicable sentencing laws, including for the trial court to exercise its discretion under section 1170, subdivision (b)(6)(A). The trial court is directed to prepare an amended minute order and abstract of judgment correcting the errors discussed in this opinion. Any resentencing minute order and related abstract of judgment shall also reflect these corrections.
WE CONCUR: MARGULIES, ACTING P.J., BANKE, J.
[*] Judge of the San Mateo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.