Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC769759
McAdams, J.
Defendant Damien Glenn Pitts was charged with the rape of an unconscious woman. (Pen. Code § 261, subd. (a)(4).) A jury acquitted him of that charge but convicted him of the attempted rape of an unconscious person, a lesser included offense. (§§ 664/ 261, subd. (a)(4).) The court suspended imposition of sentence and placed defendant on formal probation for five years on the condition, among others, that he serve one year in the county jail.
Unless otherwise indicated, all subsequent statutory references are to the Penal Code.
On appeal defendant contends that the trial court abused its discretion and violated his constitutional rights by: (1) excluding evidence that the victim assaulted her mother and brother and then lied to the police about it; (2) excluding evidence that the victim had the capacity to communicate while asleep and then not remember that she had done so; and (3) curtailing impeachment of the victim during cross-examination. He also asserts that the prosecutor committed prejudicial misconduct by misstating the law during closing argument, and he charges his attorney with incompetence for failing to (1) lay the proper foundation for the admission of the excluded evidence about the victim’s capacity to talk in her sleep, and (2) object to the prosecutor’s argument. Defendant contends the errors were cumulatively prejudicial. Finally, defendant argues that his conviction must be reversed because the deeming of the complaint to be the information deprived the trial court of jurisdiction to try defendant. We affirm.
In a separate order, we deny defendant’s petition for habeas corpus in In re Pitts, H033704.
STATEMENT OF THE FACTS
O. testified that she was 21 years old and lived at home with her parents and three siblings in San Jose. Defendant is her cousin and is three years younger than she is. On June 18, 2007, at 1:30 a.m. the doorbell rang. It was defendant and another cousin, Robert. O. answered the door and then went back to her room. Robert stayed downstairs, but defendant came into her room after her. She and defendant watched a movie and smoked cigarettes. At 2:00 a.m., O. turned off the television and told defendant she was going to sleep. Defendant asked her if he could sleep in her room, on the floor. She said he could. The defendant asked if he could have a pillow. She told him “yeah, but I didn’t like my pillows laying on the floor. So he had to lay at the end of my bed.” O. threw the pillow at the bottom of the bed and instructed defendant to put his head at that end. O. did not worry about sharing a bed with defendant because she thought he was gay. For that reason, she didn’t think he would try anything.
Within a minute or two, O. fell asleep. She is a heavy sleeper. When she woke up, “Damien was behind me humping me.” There was no doubt in her mind that his penis was in her vagina. What woke her up was the feeling of pressure inside her; she thought at first it was a menstrual cramp. She said, twice: “Damien, get... off of me.” Defendant responded by grabbing her shoulder and humping her faster. Then O. jumped out of bed, pulled up her pants, and went into her sister’s room. She did not think it was later than 2:30 a.m. O. thought that from the time she woke up, to the time she jumped off the bed, probably a minute or two elapsed, but when she timed it in court, it was probably more like 10 seconds. From the time she woke up until she got off the bed, defendant said nothing.
O. sat on the bed in her sister’s room. When O. went to her sister’s room, she saw defendant go into the bathroom between the two girls’ rooms. Although her sister was awake, O. did not tell her anything, because her sister is developmentally disabled. At 3:30 a.m., O.’s sister turned off her television and O. went back to her own room. Defendant was no longer in her room. She saw defendant downstairs at 8:00 or 9:00 a.m.
Around 10:00 p.m. on June 18, O.’s cousin L. came over. They are close and tell each other everything. O. told L. what had happened with defendant. At L.’s prompting, O. called her mother at work the next day and told her that defendant had raped her. She didn’t tell her mother sooner because she was embarrassed.
O. and her mother went to an aunt’s house. The police came and talked to her about what happened. After she talked to the police, O. was taken to Valley Medical Center for an examination.
When she went to sleep, she was wearing black drawstring shorts, a black shirt and underwear. When she woke up, she believed her shorts were below her “butt”; however, she was not sure. They were pulled down, and not by her. She was sure she was wearing underwear because she was on her period. She thought she gave the officer her underwear, wrapped in her clothes; she may not have, but she could have sworn that she did. When she is on her period she uses tampons. When she went to sleep, she had a tampon in, but when she woke up, it was gone. She did not remove it. She looked for it but never found it.
L., who was 18 years old, is cousin to both O. and defendant. Robert is her brother. O. told L. in confidence that “she woke up and he [defendant] was humping in her.” O. also used the word “rape.” L. then told O. “that he tried to do the same thing to me.”
L. related that one or two weeks before this conversation, she came home very late, about 3:00 a.m., after drinking a fifth of Hennessy and smoking marijuana. She went into her mother’s room and lay down on the California king bed between her mother and her 300-pound developmentally disabled brother, both of whom were asleep. She described herself as drunk. Her head was spinning, and she felt legs, hands, and something “inserted in my vagina.” She did not open her eyes, but she knew or assumed it was defendant because he was there at the house that night and it could not have been one of her brothers. Later, after L.’s mother found out what he had done, defendant “called trying to ask me what am I trying – talking about and all these other things and whatever.” He also said he was sorry.
Sonya is O.’s mother. She gave Robert and defendant permission to spend the night at her house when Robert called her at 1:00 or 2:00 a.m. on June 18. The next day, June 19, O. called her on the phone and told her that defendant had raped her. The next day, Sonya confronted defendant and told him she wished he was dead. Defendant did not respond. Sonya corroborated that O. was a “heavy sleeper.” She was impeached with two convictions for misdemeanor petty theft and one for forgery dating from 1989, 1990 and 1991.
Robert testified that after he and defendant arrived at Sonya’s house on June 18, defendant went upstairs “[a]lmost immediately.” He saw defendant again 40 minutes later and they played video games. Robert heard about O.’s accusation about one week later. He asked defendant six or seven times if he had touched O., but defendant failed to respond.
Henry is O.’s brother. O. phoned him to tell him about the incident. He was with Robert when Robert confronted defendant, and he also asked defendant about the accusations. Defendant said nothing; he just looked from Robert to Henry.
Robert’s brother Calvin was also there, and confronted defendant. According to Robert, defendant responded to Calvin by saying “like I’ve got girls in my phone. I got girls all over the place, whoo. I don’t have to do that – my cousins my cousin. My cousin, why I don’t have to do that to my cousin.”
Carolyn is Robert and L.’s mother. L. called her on the phone and told her that defendant “woke her up. He had penetrated her, and he was trying to have sex with her. He woke her up. She kicked him off her, and, you know, was trying to keep it down because she was afraid I might hear or her brothers because it would be something very severe taking place.” L. said she was in her mother’s bed between her mother and her brother, who cannot walk or talk, when this occurred. Carolyn “snapped mentally” at the thought that someone would touch her child while she was laying in her mother’s bed. She went looking for defendant and found him on Robert’s floor, asleep. She “beat the hell out of him” with her cane. While she was hitting him, she was saying: “Why did you stick your dick in my daughter?” He never denied it. At some point, defendant looked at his leg and to see if he was bruised and said, “What are you talking about?” or “something to the effect of... what did I do? What did I do? Why are you doing this to me?” Eventually, defendant got up and went into the bathroom. She heard defendant say into the phone: “L[.], I’m sorry. Don’t say nothing.”
On June 19, 2007, defendant was arrested as he was crouching down among some dumpsters at a car dealership on Tully and Capitol Expressway.
In June 2007, Officer Matty Hrncir interviewed O. by phone. O. told her that on June 18 about 1:30 a.m. she woke up feeling pressure from behind. She told defendant to stop. Defendant grabbed her shoulder and continued to “hump” her faster. O. pushed herself out of bed and went into her sister’s room.
Defense Case
Officer Manuel Sarmento collected two bed sheets, a T-shirt and a pair of shorts from O. She did not give him any underwear, and reported that she did not wear any that night.
Officer Hrncirinterviewed Robert in November 2007. Robert said he repeatedly asked defendant, “Did you do it?”
Portions of O.’s preliminary hearing testimony were read into the record for impeachment purposes.
A defense investigator testified that when she spoke to Sonya on the phone, Sonya said she did not notice anything odd about defendant’s behavior on the day after the reported assault on O.
DISCUSSION
I. Prosecutorial Misconduct
According to defendant, in closing argument the prosecutor “argued that the jury should find Damien guilty of attempted rape of a person unconscious of the nature of the act if it determined that he engaged in actual penetration but [O.] was in fact awake.” Defendant asserts that “[t]his erroneous legal theory is altogether insufficient to support a conviction for attempted rape” because “[i]f O. was in fact conscious and penetration occurred, then there was either forcible rape or else no crime at all.” He argues that the prosecutor’s misstatement of the law was prejudicial misconduct, and that trial counsel’s failure to object to the prosecutor’s argument on this point constituted ineffective assistance of counsel. We disagree.
a. Factual Background
Prior to argument, the court instructed the jury on the charged offense of rape of an unconscious woman, and the lesser included offense of attempted rape of an unconscious woman. The prosecutor argued at length about the reasons why the jury should convict defendant of the charged offense, but near the conclusion of his opening summation, the prosecutor made the following remarks. “The lesser included offense. The D.A.’s Office charged one count of Penal Code section 261. The law requires that you’re also instructed about the attempt. [¶] So there’s two scenarios. If you don’t find him guilty of this offense – if you don’t think each of these elements has been proven, then you look at the attempt. I guess it’s, well, she actually was not asleep. So element three is missing, but he thought she was. Then he put his penis in her. He can’t – he can’t accomplish the crime because he thought he was – he attempted to commit this crime. I guess that’s one scenario you would find him guilty. [¶] The second one is his penis didn’t penetrate her vagina. So I’m not going to spend time on attempt. [¶] Because the People have the burden, I’m going to stand up again when counsel argues and address anything I think needs addressing from the defense’s argument. [¶] The last thing I’m going to say, please do the right thing. Find the defendant guilty of the charged offense. In terms of the right thing, [O.] didn’t ask for this. She didn’t deserve this. This happened to her, unfortunately, at the hands of somebody she knew, and you’ll have the ability to say what he did was wrong and to help [O.] get past the things that she’s going to have to get past. [¶] Thank you for your attention at this time. I’m going to talk again in a little while.”
The court gave CALCRIM No.1003, as follows: “The defendant is charged with raping a woman who was unconscious of the nature of the act. [¶] To prove that the defendant is guilty of this crime, the defendant [sic] must prove that: [¶] One, the defendant had sexual intercourse with a woman; [¶] Two, he and the woman were not married to each other at the time of the sexual intercourse; [¶] Three, the woman was unable to resist because she was unconscious of the nature of the act; [¶] And, four, the defendant knew the woman was unable to resist because she was unconscious of the nature of the act. [¶] Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required. [¶] A woman is unconscious of the nature of the act if she is unconscious or sleeping or not aware that the act is occurring.” Although the court misspoke, the printed instructions given to the jury correctly stated “the People.”
The court gave CALCRIM Nos. 3518, 460, and 251, in relevant parts, as follows: “If all of you find the defendant is not guilty of a charged offense, you may convict him of a lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime. A defendant may not be convicted of both a greater and lesser crime for the same conduct. [¶] Attempted rape of an unconscious woman is a lesser crime of rape of an unconscious woman. It is up to you to decide... the order in which you consider each crime and the relevant evidence. Follow these directions before you give me any signed, final verdict form. [¶]... [¶] Three, I can only accept a verdict of guilty on a lesser crime if all of you have agreed and given me a signed verdict of not guilty for the charged crime; [¶] Four, apply these directions when you decide whether a defendant is guilty or not guilty of attempted rape of an unconscious woman, which is a lesser crime than rape of an unconscious woman. [¶] If all of you agree the People have not proved the defendant committed the greater or lesser crime, then complete the verdict forms stating he’s not guilty of these crimes. [¶] Now, to prove that a defendant is guilty of the crime of attempted rape of an unconscious woman, the People must prove that: [¶] One, the defendant took a direct but ineffective step towards committing rape of an unconscious woman; [¶] And, two, the defendant intended to commit rape of an unconscious woman. [¶] A direct step requires more than merely planning or preparing to commit rape of an unconscious woman or obtaining or arranging for something needed to commit rape of an unconscious woman. A direct step is one that goes beyond preparation and shows that a person is putting his plan into action. A direct step indicates a definite and unambiguous attempt to commit rape of an unconscious woman. It is the direct movement towards the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt. [¶] A person who attempts to commit rape of an unconscious woman is guilty of attempted rape of an unconscious woman even if, after taking a direct step towards committing the crime, he abandoned further efforts to complete the crime or if his attempt failed or was interrupted by someone or something beyond his control. [¶] On the other hand, if a person freely and voluntarily abandons his or her plans before taking a direct step towards committing rape of an unconscious woman, then that person is not guilty of attempted rape of an unconscious woman. [¶] To decide whether the defendant intended to commit rape of an unconscious woman, please refer to the separate instructions I’ve given you on that crime. [¶] Every crime charged in this case as well as the lesser included crime requires proof of the union or joint operation of act and wrongful intent. [¶] In order to be guilty of the crime of rape of an unconscious woman or lesser included or attempted rape of an unconscious woman, a person must not only intentionally commit the prohibited act, but must do so with the specific intent and /or mental state. The act and intent and/or mental state required are explained in the instructions for every crime.”
Defense counsel responded to the prosecutor’s remarks on the lesser included offense as follows. “[T]here is this issue of the lesser included offense of attempt—attempted rape of an unconscious person, and the district attorney kind of went over the scenarios where that would play out. And I don’t really think any of that applies in this case. Either you believe she’s penetrated or you don’t. So to the extent you didn’t find there was an actual penetration, then this would be an acquittal. If you find that she was awake, then you are finding it because of the circumstantial evidence that she was awake and all of these things are known to Mr. Pitts, to Damien. That the shorts are pulled down, that the tampon was out, that she wasn’t wearing underwear. All these things are known to him.”
The prosecutor did not mention attempt to rape in his closing remarks.
b. Applicable Legal Principles
The applicable federal and state standards regarding prosecutorial misconduct are well established. “ ‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such “ ‘unfairness as to make the resulting conviction a denial of due process.’ ” [Citations.] Under state law, a prosecutor who uses deceptive or reprehensible methods commits misconduct even when those actions do not result in a fundamentally unfair trial.’ ” (People v. Lopez (2008) 42 Cal.4th 960, 965.)
“ ‘[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ ” (People v. Smithey (1999) 20 Cal.4th 936, 960.) “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. Frye (1998) 18 Cal.4th 894, 970, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
“ ‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’ ” (People v. Valencia (2008) 43 Cal.4th 268, 281.) A defendant will be excused from the necessity of objection and/or request for admonition if either would be futile or would not have cured the harm caused by the misconduct. (People v. Hill (1998) 17 Cal.4th 800, 820-821; People v. Boyette (2002) 29 Cal.4th 381, 432.)
a. Analysis
At the outset, we observe that defendant has forfeited his claim of prosecutorial misconduct by failing to object below. Even a simple admonition reminding the jury to follow the court’s instructions on attempt would have cured any possible harm from the prosecutor’s comments. However, in light of defendant’s claim of ineffective assistance of counsel, we will address the merits.
Defendant’s claim that the prosecutor misstated the law rests entirely on the faulty premise that “[i]f [O.] was in fact conscious and penetration occurred, then there was either a forcible rape or else no crime at all.” We disagree. Here, the jury acquitted defendant of the charged offense, rape, for reasons which are not revealed by the general verdict. However, under the instructions the jury received, acquittal of the charged offense did not end the jury’s inquiry: its job was not complete – and the question of defendant’s criminal liability was not resolved – until the jury considered whether defendant had intended to rape a woman who “was unable to resist because she was unconscious of the nature of the act,” took a direct step to realize that intent, but was foiled in the attempt “by some circumstance outside the plan.” (CALCRIM Nos. 1003, 460.) Defendant does not claim that it was error on the court’s part to instruct on attempted rape.
The “circumstance outside the plan” contemplated by the attempted rape instruction may be, but does not have to be, failure to achieve penetration. It could also be, as the prosecutor posited here, that the would-be rapist of an unconscious woman believed the victim to be asleep, but the victim was, in fact, awakened by the defendant’s act, conscious of the nature of the act and nonconsenting. In such a case, the defendant would not be guilty of rape of an unconscious woman (since she was not unconscious); he would not be guilty of rape by force, fear or threats (because he was not charged with that offense, and it is not a lesser included offense of rape of an unconscious woman); but he could be guilty of attempting to rape an unconscious woman, a lesser offense of rape of an unconscious woman. The three cases cited by defendant, People v. DePriest (2007) 42 Cal.4th 1, People v. Ray (1960) 187 Cal.App.2d 182, and People v. Welch (1972) 8 Cal.3d 106, do not hold otherwise, as none of them involved the charge of rape of an unconscious woman.
“[I]mpossibility is not a defense to the attempted rape. ‘The courts of this state have not concerned themselves with the niceties of distinction between physical and legal impossibility, but have focused their attention on the question of the specific intent to commit the substantive offense. The hypothesis of the rule established in this state is that the defendant must have the specific intent to commit the substantive offense, and that under the circumstances, as he reasonably sees them, he does the acts necessary to consummate the substantive offense; but because of circumstances unknown to him, essential elements of the substantive crime are lacking. [Citations.] It is only when the results intended by the actor, if they happened as envisaged by him, would still not be a crime, then and only then, can he not be guilty of an attempt.’ [Citations.] [¶] Thus, an individual may be guilty of attempting to receive stolen property when the property is in fact not stolen.... An individual may be convicted of attempted possession of a controlled substance where the substance is in fact talcum powder. [Citation.] An individual may be convicted of attempted burglary where the owner cooperates with the police and consents to the entry. [Citation.] [¶] The discussion of impossibility in the context of attempted rape can be seen in the following examples. If an individual attempts to rape a victim, reasonably believing the victim is alive, the act as intended and envisaged by the actor constitutes the substantive crime of rape. Accordingly, if unbeknownst to the individual the victim in fact is not alive, the individual is nevertheless guilty of attempted rape. On the other hand, if an individual intends to have sexual intercourse with a dead body, the acts as envisaged do not constitute the substantive crime of rape and the individual cannot be guilty of attempted rape.” (People v. Thompson (1993) 12 Cal.App.4th 195, 202-203, fn. omitted; see also People v. Kelly (1992) 1 Cal.4th 495, 526-528 [reversing rape conviction, but affirming attempted rape conviction, where victim was dead]; United States v. Thomas (1962) 13 C.M.A. 278 [affirming attempted rape convictions where defendants believed victim to be unconscious when she was actually dead]; People v. Reed (1996) 53 Cal.App.4th 389 [defendant is guilty of attempted lewd act on a 13-year-old child even if “child” is an undercover police officer]; cf. People v. Stuedemann (2007) 156 Cal.App.4th 1, 8-9, & fn. 6.) Under these authorities, the prosecutor did not posit an erroneous theory of liability for attempted rape of a woman unconscious of the nature or the act.
Inasmuch as we find no misstatement of the law, we reject defendant’s claims of prosecutorial misconduct, and ineffective assistance of counsel for failing to object to the prosecutor’s argument.
II. Exclusion of Defense Evidence
Defendant challenges three of the trial court’s evidentiary rulings on state law and federal constitutional grounds. We review all of the trial court’s challenged evidentiary rulings for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 724.) “This standard is particularly appropriate when... the trial court’s determination of admissibility involved questions of relevance..., and undue prejudice. [Citation.] Under this standard, a trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Guerra (2006) 37 Cal.4th 1067, 1113, disapproved on another point in People v. Rundle (2008) 43 Cal.4th 76, 151.) “Application of the ordinary rules of evidence … generally does not deprive the defendant of the opportunity to present a defense [citation].” (People v. Snow (2003) 30 Cal.4th 43, 90.) “Although completely excluding evidence of an accused’s defense theoretically could rise to [the level of an unconstitutional deprivation of the right to present a defense], excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense.” (People v. Fudge (1994) 7 Cal.4th 1075, 1103.)
a. Misdemeanor Misconduct and Lying to Police
First, defendant contends the trial court abused its discretion under Evidence Code section 352, and deprived him of his due process right to “a meaningful opportunity to present a complete defense (Crane v. Kentucky (1986) 476 U.S. 683...),” as well his rights under the confrontation clause of the Sixth Amendment, by refusing to permit defendant to present the following evidence. On August 6, 2007, O. punched her mother and her 13-year-old brother in the head during an argument. She was arrested and waived her Miranda rights. According to defense counsel, “She said she remembered getting very angry with her mother and forgot what happened after that, is the gist of her statement to the police officer.” O. was subsequently charged with two counts of misdemeanor battery. That case was pending at the time of defendant’s trial.
Miranda v. Arizona (1966) 384 U.S. 486.
In the trial court, defense counsel argued that O.’s statement to the police officer was relevant “to her ability to recall and perceive events immediately after they happened or... to her credibility and her willingness to lie to law enforcement.” He also argued that the misdemeanor batteries demonstrated “moral turpitude” and could have been charged as felonies. Much argument was devoted to whether O. would invoke her Fifth Amendment privilege against self incrimination. After listening to the parties’ arguments and reading the parties’ written motions, the court decided not to allow testimony about the misdemeanor batteries. The court reasoned that O. did have Fifth Amendment rights and it would be time consuming to bring in an attorney. Further, O.’s reasons for saying she did not remember were unknown. The court feared a “whole mini trial of mom and brother testifying to what happened; officer coming in and saying he gave Miranda, what she said or didn’t say.” The court agreed with the defense that O.’s credibility was in issue, but found that her equivocal statement to the police about the batteries was peripheral to her credibility. The court concluded: “I find that it’s time consuming and that time consumption would outweigh any probative value, especially when the argument is well either she’s lying or she has a bad memory or there are all these other reasons why she might have said it at the time. [¶] I also find it would be confusing to the jury and ultimately if she went in and pled guilty to these charges, that’s not admissible. They’re two simple battery misdemeanors. So, they wouldn’t ultimately be even with a conviction, admitted into evidence. [¶]... [¶] [T]o have to litigate whether or not she lied or whether she had a memory lapse on that date and time when she talked to the police officer, I think under [Evidence Code section] 352 it’s much more time consuming than its probative value.” The court did “allow the defense to ask her if she is pending a misdemeanor and what her belief is regarding the effect of her testifying favorably for the prosecution, what her belief is as to whether or not this will affect the outcome in a misdemeanor. Will it help her, has she been promised anything in return regarding the misdemeanor case for her testimony in this case. [¶] So that issue of bias I think is totally relevant.”
On appeal, defendant re-asserts the arguments he made in the trial court, stressing that “[e]vidence of lying bears heavily upon a witness’s credibility” and evidence of lying to a police officer “is even more damaging to the credibility of a witness.” However, defendant overlooks that even his attorney was not sure whether O.’s statement showed that she lied or suffered a memory loss. Defendant also stresses that misdemeanor misconduct involving the “[b]eating [of] family members” and the harming of children is widely condemned, demonstrative of moral turpitude, and admissible. (People v. Wheeler (1992) 4 Cal.4th 284 (Wheeler).)
Even so, in recognizing the admissibility of such evidence, our Supreme Court cautioned in Wheeler that “the admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude. Beyond this, the latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues. By expressly preserving this authority, [California Constitution, article 1] section 28(d) makes clear the voters’ determination to prevent such consequences. [¶] When exercising its discretion under Evidence Code section 352, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area. [Citations.] But additional considerations may apply when evidence other than felony convictions is offered for impeachment. In general, a misdemeanor – or any other conduct not amounting to a felony – is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (Wheeler, supra, 4 Cal.4th at pp. 296-297, fn. omitted.)
In this case, the trial court weighed the minimal probative value of the proffered evidence against the substantial risk that its presentation would involve a “whole mini trial” – the very kind of nitpicking war of attrition over a collateral credibility issue that the Wheeler Court warned against. The court’s concern was not irrational, arbitrary or capricious. We discern no abuse of discretion.
b. Exclusion of Questioning about a Photograph
Next, defendant contends that the trial court abused its discretion under Evidence Code section 352 and violated his federal constitutional rights under the Fifth, Sixth and Fourteenth Amendments, by sustaining an objection to defense counsel’s question about a photograph taken of O. when she was 19, in order to impeach her earlier testimony that she quit drinking when she was 17. At trial, on direct examination by the prosecutor, O. testified that in her life, she had used illegal drugs but she did not do so anymore. She also testified that she does not drink, and that she did not drink any alcohol or use any illegal drug on June 18. On cross-examination, O. reiterated that she does not drink, but added that when she was in high school she used to smoke marijuana and drink alcohol. However, she had not done so “for like four years.” She agreed with defense counsel that she was about 17 years old when she quit drinking and about 18 years old when she quit using marijuana. Later, defense counsel asked O. to look at People’s Exhibit number 5, a photograph of O.’s bedroom wall, with “a bunch of pictures” of her family and friends on it. Pointing to one of the pictures, defense counsel asked how old it was. O. said, “About – it was like two years.” Then defense counsel asked, “You were intoxicated in that picture?” The prosecutor said, “Objection,” and O. said “No.” The court sustained the objection and called a bench conference, but defense counsel did not ask that O.’s answer be stricken, and it was not stricken.
The Attorney General asserts forfeiture as a bar to our review of defendant’s constitutional claim. We find no forfeiture. Our Supreme Court has held that a defendant may argue on appeal “that the asserted error in admitting evidence over his Evidence Code section 352 objection has the additional legal consequence of violating due process,” even if due process was not specifically cited at trial. (People v. Partida (2005) 37 Cal.4th 428, 435.)
Later, the court allowed the parties to memorialize their discussion during the bench conference for the record. Defense counsel summarized O.’s testimony and stated: “It is my belief that if questioned that she would state that she has previously characterized that picture as being one where she was intoxicated. So it would be to impeach her credibility.” The prosecutor pointed out that during the bench conference, defense counsel said O. had characterized herself in that picture “as, I quote now, ‘fucked up.’ And that’s vague. We don’t know what that means. That could mean a range of things.” The prosecutor also indicated that the comment about the picture to which defense counsel referred in her offer of proof had occurred six months earlier.
The court ruled: “I did sustain the objection. I find it of little relevancy because the offer of proof was that it was just to show she lied about when she actually stopped drinking. Whether she lied, she misstated the number of years, whether in fact her description of being ‘fucked up’ means that she was drinking alcohol, I think it is an undue consumption of time and would be somewhat confusing. And the relevancy and probativeness is very small, especially when there’s been a great deal of cross-examination as to what the witness’s testimony was at [the] preliminary hearing versus what she’s testified to at this trial. So I’ll sustain the objection.”
We see no abuse of discretion. O.’s unstricken denial that she was intoxicated in the picture suggests, at a minimum, that defense counsel would have had to pursue an extended line of questioning in a possibly futile attempt to secure an admission from O. that she lied about whether she quit drinking two years earlier or four years earlier. Given her denial, such questioning would have appeared to be just as likely to yield the answer that the picture was actually more than two years old, or that O. was mistaken about the last time she drank, or never said she was “fucked up” in that picture, or did not mean she was intoxicated when she did say she was “fucked up.” In the unlikely event that this line of inquiry might have produced the sought-for admission, at the very best, it would have been an admission about a side issue. As the court noted, defense counsel had already established that O. had given very different testimony at the preliminary hearing on factual issues that were central to the rape charge, such as: whether or not O. was wearing underpants under her shorts, whether her shorts were pulled below her “butt” or around her ankle when she woke up, whether she went downstairs at 9:00 a.m. or noon and, most critically, whether defendant stopped and got up when O. told him the second time to get off of her, or whether she stopped the act by getting out of bed first. Under these circumstances, we cannot say the court acted irrationally, arbitrarily or capriciously by sustaining the prosecutor’s objection.
Assuming for the sake of argument that the court’s exercise of discretion in this regard violated the Sixth Amendment by prohibiting cross-examination that “would have produced ‘a significantly different impression of [the witnesses’] credibility’ ” (People v. Frye, supra, 18 Cal.4th at p. 946), we nevertheless are convinced beyond any reasonable doubt that the assumed error was harmless. (Chapman v. California (1967) 386 U.S. 18, 24; Delaware v. Van Arsdell (1986) 475 U.S. 673, 684 [Chapman standard applies to restriction of cross-examination].) As noted above, on cross-examination, defense counsel was able to expose significant discrepancies between O.’s preliminary hearing testimony and her trial testimony. Defense counsel was able to exploit these discrepancies effectively in closing argument. Defendant won acquittal on the rape charge. However, the evidence that defendant at least attempted to rape O. while she was asleep was very strong. It included L.’s testimony that he had done the same thing to her, and defendant’s own adoptive admissions. This evidence did not depend on O.’s credibility for its persuasive force. Thus, considering “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case,” we conclude that if there was error, it was harmless beyond any reasonable doubt. (Delaware v. Van Arsdall,at p. 684.)
c. Sleep-Talking Evidence
Finally, defendant contends the trial court erroneously ruled that he lacked the foundation to introduce evidence through either O. or her friend Brittany to show that O. talked in her sleep and later did not remember she had done so. He asserts that these rulings violated his federal rights to due process and to confront adverse witnesses, and that “[d]efense counsel’s failure to ensure that a foundation for this key testimony was solidly laid” constitutes ineffective assistance of counsel.
Prior to trial, the prosecution moved to prevent defense counsel from questioning O. about her preliminary hearing testimony that she talked in her sleep without knowing she did so. Defense counsel argued that the evidence was admissible under Evidence Code section 1103, as character evidence, because “[O.] should be aware of her general reputation as a sleep talker.” Defense counsel also argued that O.’s testimony was admissible under Evidence Code section 780 and was not hearsay because it would not be used “for the truth of the matter asserted but rather to impeach her credibility as to her ability to recall, perceive and recollect instances of... prior activity on her own behalf.” Finally, defense counsel argued that exclusion of O.’s testimony would deny defendant federal due process and confrontation.
At the preliminary hearing, the prosecutor asked O.: “Are you aware of any time in your room when you’ve done things in your sleep that later you weren’t aware of?” O. responded: “Probably, talking on the phone. [¶] Like somebody handed me the phone and they said, somebody called, and I’m like, I didn’t talk to you, but they were like, yeah, you did.” On cross-examination, O. testified that she talked while she was asleep “probably twice,” once with her friend Crystal, and once with her friend Brittany. She had no recollection of these conversations, and when she found out about them later, she was surprised and started laughing. Defense counsel then asked O. if she remembered “articulating any form of consent” with defendant. She said no. Asked if she knew whether she “had said no prior to waking up,” O. testified that she knew she didn’t, because she wasn’t talking; she was asleep. Defense counsel then asked: “But you talked in the past in your sleep?” O. responded: “But no, I didn’t. I didn’t understand. I wouldn’t do that. I wouldn’t have sex with my family.”
The court ruled that there was no foundation for O. to testify that “in the past she has forgotten conversations that she had while she was asleep.” The court suggested that someone who had a conversation with O. when she was sleepy could testify. The court also did not rule out that someone who knew that O. had a penchant for talking in her sleep, such as her mother or brother, could testify about O.’s habit, custom or reputation, with the proviso that “we have to have a[n] Evidence Code section] 402 hearing if it’s going to be based just on one incident. [¶]... [¶] So whether or not she does that on a regular basis, so it would come in under custom and habit.” The court excluded “the particular incident that was mentioned in the preliminary examination, because it lacks foundation for her to make a statement that I had a conversation while I was asleep. [¶]... [¶] So I’m not limiting your ability to get into that area, just the lack of foundation at that point.”
Thereafter, O. did testify on cross-examination that she recalled testifying at the preliminary hearing about a conversation she had with her friend Brittany. It was accurate to say that she had at least one conversation over the phone with Brittany that she did not recall later. That conversation occurred about three years earlier, and her failure of recollection was not the result of drinking alcohol. When Brittany related to her the contents of the conversation she thought she had with O., O. was surprised and thought it was funny. Brittany told her that she (O.) was supposed to see Brittany’s child and take Brittany to the store, but O. never showed up.
Outside the presence of the jury, the court heard defense counsel’s offer of proof regarding Brittany’s proposed testimony. According to defense counsel, “Brittany... would testify that... on one occasion she telephoned [O.] as Brittany was supposed to be taking her son over to visit [O.]. [O.] was asleep, and Brittany asked [O.]’s brother to wake up [O.] and give her the phone. Brittany spoke with [O.] and told her that she was not bringing the son over to visit, as Brittany was going to work. She later spoke with [O.] [O.] asked Brittany why she did not visit. [O.] had not recalled the conversation. She’d stated she’d spoken with [O.] before when she is asleep. [O.] sounds groggy and sometimes says things that do not make sense, and further into the conversation Brittany would realize that [O.] was asleep. That would be the gist of her testimony.”
Defense counsel’s offer of proof was based on a report from her investigator. Defense counsel argued that the proffered testimony was relevant “to rebut element four of the rape charge, which is the defendant knew that the woman was unable to respond. He knew she was unconscious.” Defense counsel added that “evidence that [O.] is a heavy sleeper that... has engaged in conduct which would lead other people to believe that she was not asleep... is relevant.”
The court excluded the evidence because (1) it was “inconclusive of anything that one time three years ago Brittany said this happened and [O.] said I don’t remember that”; (2) “the other information that it was [O.]’s brother that said she was asleep, that lacks foundation”; (3) one incident did not show that O. habitually talked in her sleep; and (4) the evidence was not relevant at this point because there was no evidence that O. actually consented to the act of intercourse or gave defendant some basis for thinking she was awake.
The admissibility of evidence is determined by the court. (Evid. Code § 310.) It is for the proponent of evidence to establish the foundational facts for its admission, including its relevance to a material issue. (See Evid. Code, § 403, subd. (a).) “Whether foundational evidence is of such substantiality as will support a finding of a foundational fact is a matter which lies within the legal discretion of the trial judge and his decision will not be overruled on appeal unless it constitutes an abuse of that discretion.” (Alvarado v. Anderson (1959) 175 Cal.App.2d 166, 179.)
In our view, the court’s rulings were correct. O. had no personal knowledge that she talked in her sleep because she could not remember talking in her sleep. The court did not err in concluding that she could not lay the foundation for her testimony that she did, in fact, talk in her sleep. That there was no objection to her testimony to that effect at the preliminary hearing did not make her testimony admissible over an objection at trial.
The court also correctly ruled that Brittany’s testimony similarly lacked a foundation. She could not say, from personal knowledge, that O. was asleep, because she relied on information to that effect from O.’s brother.
Finally, the court did not err in finding the evidence not relevant to any of the issues raised up to that point at the trial. Defendant argues on appeal that it was “virtually inconceivable that Damien would have thought that [O.] would sleep through sexual intercourse or that he could get away with raping his strong-willed, older, and larger cousin while she was surrounded by nearby family members,” and that possibly “[O.] appeared to Damien to be responding consensually to his overtures.” The chief problem with this argument is that there was no evidence adduced at trial to support it. There was no evidence that defendant said anything to O., or O. said anything to defendant, after she threw him the pillow. Evidence that on one occasion, three years earlier, O. was awakened by her brother and had a telephone conversation with a girlfriend which she did not later recall, did not have any tendency in reason to prove (Evid. Code § 210) that O. would have appeared to be responding consensually to defendant’s sexual overtures, when the only evidence was that O. was awakened by defendant sexually assaulting her from behind and she told him twice to “get... off of me.” No abuse of discretion has been shown.
Nor has defendant shown ineffective assistance of counsel. The gist of defendant’s argument on appeal is that with a few more questions, and a better developed argument about the inferences to be drawn, the trial court might have ruled differently. We are not persuaded. We agree with the Attorney General that defendant has not shown that defense counsel “had stronger evidence and negligently failed to present it.” On the contrary, O. testified that a defense investigator contacted her, but she refused to talk to the investigator. She also testified that Brittany called her when she (Brittany) was contacted by the defense investigator. On this record, there is no basis for concluding that defense counsel could have developed more favorable evidence about O.’s sleep-talking through O.’s friends and relatives. Counsel did not render ineffective assistance of counsel for failing to lay a better foundation.
III. Cumulative Prejudice
Inasmuch as we have not found any trial errors, we reject defendant’s claim of cumulative error.
IV. Lack of Jurisdiction
In this case, the record shows that on October 4, 2007, following a preliminary hearing, the superior court judge, sitting as magistrate, found there was sufficient cause to believe that defendant had committed the offense charged in the complaint and held him to answer to that charge. The court then asked if “this is going to be an early arraignment or standard?” When defense counsel assented to the former, the court asked defendant to stand and affirm his true name and date of birth and then asked: “Counsel, do you stipulate the complaint be deemed the information?” Defense counsel said “yes.” The district attorney did not respond out loud, but after defendant was arraigned on the newly-deemed information, he said “thank you.” The felony complaint, apparently signed by a police officer, was file-stamped “complaint to be deemed information” and dated October 4, 2007. Defendant now contends that this expedited procedure divested the superior court of the jurisdiction to try him because the district attorney did not file an information. This court has recently rejected two iterations of this argument in published opinions, People v. Dominguez (2008) 166 Cal.App.4th 858, 864-865, and People v. Maldonado (2009) 172 Cal.App.4th 89, 93-94. Defendant’s new wrinkle is that the deemed information was not “subscribed” by the district attorney, as required by section 739. According to Merriam-Webster’s Collegiate Dictionary, to “subscribe” means, among other things: (1) “ to write (one’s name) underneath: sign”; (2) “to sign (as a document) with one’s own hand in token of consent or obligation”; or (3) “to assent to: support.” (Merriam-Webster’s Collegiate Dictionary (10th ed. 1999) p. 1173.) In our view, when the district attorney assents to the use of the complaint as the information upon which the defendant is arraigned, he or she has sufficiently subscribed to the information in order to satisfy the statutory duty imposed by section 739. For the reasons discussed at length in Dominguez and Maldonado, we reject defendant’s contention.
Penal Code section 739 provides: “When a defendant has been examined and committed, as provided in Section 872, it shall be the duty of the district attorney of the county in which the offense is triable to file in the superior court of that county within 15 days after the commitment, an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed. The information shall be in the name of the people of the State of California and subscribed by the district attorney.” (Italics added.)
CONCLUSION
The prosecutor did not misstate the law of attempted rape during closing argument, and trial counsel was not ineffective for failing to object to his remarks. The trial court did not erroneously exclude defense evidence. No cumulative prejudice appears. The superior court had jurisdiction to try defendant on a complaint charging rape of an unconscious woman that was deemed to be the information by stipulation.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.