Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. INF053403, Harold W. Hopp, Judge.
ORIGINAL PROCEEDING; petition for writ of habeas corpus, Harold W. Hopp, Judge.
Diane Nichols, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Palmela Ratner Sobeck, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster,, Acting P.J.
Defendant Sergio Navarro Rodriguez appeals his conviction on one count of continuous sexual abuse of his 13-year-old daughter and one count of aggravated sexual assault on the same victim. He raises numerous grounds for reversal, including ineffective assistance of trial counsel. He asserts the same claims of ineffective assistance of counsel in a petition for writ of habeas corpus. We will vacate his conviction for continuous sexual abuse, in that conviction on both that count and on the count of aggravated sexual assault violates Penal Code section 288.5, subdivision (c). We find his other contentions lacking in merit, and will otherwise affirm his conviction and deny his habeas corpus petition.
All further statutory citations refer to the Penal Code unless another code is specified.
PROCEDURAL HISTORY
Defendant was charged initially with one count of aggravated sexual assault on a child under the age of 14 (§§ 269, subd. (a)(5), 289, subd. (a) [sexual penetration]; count 1) and with one count of continuous sexual abuse during the same period in which the aggravated sexual assault allegedly occurred, with an allegation of force, violence, duress, menace and threat of great bodily harm (§§ 288.5, 1203.066, subd. (a)(1); count 2). The information also alleged three aggravating factors. At trial, shortly before both sides rested, the court permitted the prosecutor to amend count 1 of the information, over defense objection, to substitute forcible rape, in violation of section 269, subdivision (a)(1) and section 261, subdivision (a)(2) or (a)(6), for the original charge based on the allegation of sexual penetration.
A jury convicted defendant on both counts. In a bifurcated proceeding tried to the court, the court found one aggravating factor not true and found two aggravating factors true. The court sentenced defendant to the middle term of 12 years on count 2 and to a consecutive term of 15 years to life on count 1.
Defendant filed a timely notice of appeal. He also filed a petition for writ of habeas corpus alleging ineffective assistance of counsel. We ordered the habeas corpus petition consolidated with the appeal for the sole purpose of determining whether an order to show cause should issue.
FACTS
Jane Doe was 16 at the time of the trial. Between June or July 2004 and October 2004, when she was 13, her father entered her bedroom at night, approximately once a week, and molested her. Jane Doe shared a bedroom with three of her brothers, all of whom slept in a bed separate from hers. They were apparently unaware of the abuse. Jane Doe’s mother was not at home when most of the incidents occurred. However, her return home interrupted several of them.
At trial, Jane Doe was able to recall five specific incidents. In two of the incidents, the molestation was limited to defendant fondling her genitals, either over or under her clothing. Once he touched the outside of her genitalia with his penis. On one occasion, he inserted his finger into her vagina, and on one occasion, he had sexual intercourse with her.
Jane Doe did not protest or resist because she was afraid of defendant. He frequently hit her, her brothers and her mother, and had on one occasion, during the time the molestation was going on, threatened to kill Jane Doe and her mother if Jane Doe called the police to report an incident of domestic violence against her mother. Because she was afraid of him, she also did not tell anyone about the sexual abuse.
Defendant went to jail on an unrelated matter. When he was released, he moved to Coachella. In July 2006, Jane Doe’s mother threatened to send her to live with her father. At that point, Jane Doe finally told her mother about the molestation. She also told a social worker who visited the house to investigate allegations of general neglect. The social worker called the police, and Jane Doe told the police as well.
A medical examination revealed that Jane Doe’s hymen was narrowed and that it had a cleft. This finding was consistent with “prior penetrating trauma.” In conjunction with the history related by Jane Doe, the finding was “highly suspicious” for sexual abuse. However, the condition of the hymen was also consistent with consensual sex.
LEGAL ANALYSIS
DEFENDANT’S CONVICTION FOR CONTINUOUS SEXUAL ABUSE MUST BE VACATED
Section 288.5, subdivision (c) provides: “No other act of substantial sexual conduct, as defined in subdivision (b) of Section 1203.066, with a child under 14 years of age at the time of the commission of the offenses, or lewd and lascivious acts, as defined in Section 288, involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative.” Accordingly, continuous sexual abuse in violation of section 288.5 and any discrete sexual offense against the same victim which occurred within the period of the continuous sexual abuse must be charged in the alternative, and a defendant may be convicted of either offense but not both. (People v. Johnson (2002) 28 Cal.4th 240, 244-248 (Johnson).)
As in effect at the time of the decision in Johnson, supra, former section 288.5, subdivision (c) provided: “No other felony sex offense involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative.”
Here, the two counts, which were alleged to have occurred within the same time period, were not charged in the alternative. The jury convicted defendant on both counts, and the court imposed sentence on both counts. Defendant contends that as a matter of due process, we must remand the matter to allow the trial court to exercise its discretion to determine which of the counts to dismiss and to resentence him on the remaining count. In the alternative, he contends that we must reverse the aggravated sexual assault conviction. Or, if we choose neither option, we must reverse his conviction on the continuous sexual abuse count. We conclude that the appropriate remedy is to vacate the conviction and sentence for continuous sexual abuse.
Although the California Supreme Court determined in Johnson, supra, 28 Cal.4th 240, that dual convictions for continuous sexual abuse and concurrent discrete sexual offenses cannot stand, it has not explicitly addressed the question of how an appellate court should address an improper dual conviction. In Johnson, the court merely stated that either the continuous abuse conviction or the conviction or convictions for discrete offenses must be vacated, and held, albeit without analysis, that the Court of Appeal in that case “correctly reversed the convictions” on the discrete sexual offenses. (Johnson,at pp. 243, 248.) Because the court did not engage in any analysis as to the remedy, it appears that the parties did not raise any issue as to which of the alternative counts should be vacated. (See People v. Torres (2002) 102 Cal.App.4th 1053, 1057 (Torres); People v. Alvarez (2002) 100 Cal.App.4th 1170, 1176.) Cases are not authority for propositions they do not consider or decide. (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.) Johnson therefore does not provide any authority as to how a reviewing court should determine which conviction or convictions are to be vacated.
In Torres, supra, 102 Cal.App.4th 1053, the Court of Appeal analyzed the legislative intent underlying section 288.5. It noted that section 288.5 allows the prosecutor to limit the time period for continuous abuse to the statutory minimum of three months and to charge other, discrete sexual offenses which occurred outside that period in order to permit increased punishment for an offender whose abuse continues for longer than the minimum period and whose culpability is therefore greater than that of a defendant whose abuse occurred during a more limited period of time. (Torres, at p. 1059.) The court concluded that in keeping with the legislative intent that “‘liability reflect culpability[,]’ [citation],” section 288.5, subdivision (c) reflects an intent “that we leave [the defendant] standing convicted of the alternative offenses that are most commensurate with his culpability.” (Ibid., italics omitted; accord, People v. Bautista (2005)129 Cal.App.4th 1431, 1437-1438; see also People v. Alvarez, supra, 100 Cal.App.4th at pp. 1177-1178.)
Defendant argues that as a matter of due process, we must remand the matter and allow the trial court to exercise its discretion to determine which conviction to vacate and to determine the appropriate sentence. He cites no authority which directly supports his contention, but appears to view the matter as analogous to a situation in which a court has imposed a sentence in ignorance of the scope of its discretion. The analogy is inapt. Here, the court had no authority to allow the conviction on both counts, and, as a result, had no discretion to sentence defendant at all on one of the two counts. People v. Bautista, supra, 129 Cal.App.4th 1431, in which the court did remand for reconsideration of the entire sentencing scheme (id. at p. 1438), is distinguishable. There, the appellate court vacated the convictions on multiple counts of procurement as to one child, C., in favor of the conviction for continuous sexual abuse of that child. However, the trial court had sentenced the defendant on both the continuous sexual abuse count and one of the procurement counts as to C., and had stayed sentences on one count of procurement and one count of lewd and lascivious acts as to another child, A. (Id. at pp. 1433-1434.) The reversal of the convictions for procurement as to C. would have operated to reduce the defendant’s aggregate sentence, and the Court of Appeal recognized that it was within the trial court’s discretion to impose a sentence of up to the length of the original sentence but based on different counts of conviction. (Id. at p. 1438, citing People v. Burbine (2003) 106 Cal.App.4th 1250, 1258.) Consequently, it was necessary to remand to allow the trial court to exercise that discretion. In this case, in contrast, vacating the sentence on the continuous abuse count does not affect the remaining sentence for aggravated sexual assault.
Nor did the trial court have the discretion to vacate the conviction for continuous sexual abuse rather than the conviction for aggravated sexual assault. As stated in Torres, supra, 102 Cal.App.4th 1053, when faced with improper multiple convictions for continuous sexual abuse and for other discrete sexual offenses, a court must uphold the conviction which is commensurate with the defendant’s true culpability, i.e., the offense or offenses which yield the greatest punishment. (Id. at pp. 1058-1060.) In other words, the court must, as a matter of law, uphold the conviction for the most serious offense found by the jury. In this case, apart from the act of rape, the continuous abuse consisted of fondling Jane Doe over and under her clothing, on one occasion rubbing defendant’s penis against her outer genitalia and on one occasion penetrating her vagina with his finger. Serious as those offenses are, forcible rape is unquestionably a more egregious offense. Moreover, continuous sexual abuse carries a penalty of 6, 12, or 16 years. (§ 288.5, subd. (a).) Forcible rape of a child under the age of 14, on the other hand, is punishable by a mandatory sentence of 15 years to life in prison. (§ 269, subd. (b).) The Legislature has clearly determined that it is a far more egregious offense than continuous sexual abuse. Accordingly, the sentence for that offense is commensurate with defendant’s actual culpability, and neither this court nor the trial court has the discretion to vacate the conviction for that offense.
We are, to say the least, baffled by defendant’s contention that the penalties for the two offenses are “substantially similar in length.”
Because we make that determination as a matter of law, there is no need to remand the matter to the trial court; rather, we will vacate defendant’s conviction for continuous sexual abuse of a child.
Because we have determined that defendant’s sentence for continuous sexual abuse must be vacated, we need not address his contention that the sole evidence establishing the time period in which the acts constituting that offense took place was inadmissible hearsay to which trial counsel failed to object.
THE OMISSION OF AN INSTRUCTION ON DELAYED DISCLOSURE WAS HARMLESS
Detective Daniel Marshall testified as an expert on the investigation of cases of sexual abuse of children. He described his training and experience, and was then asked about the phenomenon of delayed disclosure. He explained that delayed disclosure is common among children who have been molested by a family member because the child victims often fear disruption of their family. Children who are familiar with CPS (Child Protective Services) are often afraid they will be removed from the home if they accuse a family member of molestation. Children may be afraid to disclose the abuse for other reasons, including feeling embarrassed about what happened or that the abuse is their fault. He testified that in his experience, approximately 90 percent of children who have been abused by a family member delay in disclosing the abuse. Detective Marshall testified that he had interviewed Jane Doe, but he did not describe the interview or offer any opinion concerning the delay in her disclosure that she had been molested by her father.
The court instructed the jury on the use of expert testimony generally. Defendant did not request a specific instruction on the evidence concerning delayed disclosure. He now contends that the court had a sua sponte duty to instruct on the limited function of expert testimony concerning Child Sexual Abuse Accommodation Syndrome (CSAAS) and that the omission of such an instruction was prejudicial error because without a limiting instruction, there is a reasonable probability that the jury relied on that evidence to conclude that defendant was guilty.
CSAAS is a group of behaviors which commonly occur among children who have been molested by family members or authority figures and which are inconsistent with behavior which people unfamiliar with the effects of molestation might expect. For example, it might be assumed that a child who has been molested will promptly tell his or her parents. However, it is common that the child will not disclose the abuse for a significant period of time. (People v. Bowker (1988) 203 Cal.App.3d 385, 389 (Bowker).) Expert testimony concerning CSAAS may be used only to disabuse the jury of commonly held misconceptions regarding the behavior of abuse victims, and may not be used to corroborate the victim’s claims of abuse. (Id. at p. 394.) In particular, the expert must refrain from testifying that a particular victim’s report of alleged abuse is credible because the victim manifests characteristics which are generally exhibited by abused children. (Id. at p. 391.) The danger in CSAAS evidence is that a jury may not be aware that “although victims of child abuse generally exhibit a particular type of behavior, that behavior is also found in significant numbers of children who have not been molested.” (Id. at p. 393.) It is therefore crucial that the jury be informed that the fact that the alleged victim displays behavior consistent with molestation does not, in itself, support the conclusion that the child has been molested. (Ibid.)
There is a split of authority as to whether an instruction on the use and limitations on the use of such testimony must be given sua sponte. (People v. Bothuel (1988) 205 Cal.App.3d 581, 587-588; People v. Sanchez (1989) 208 Cal.App.3d 721, 735; People v. Stark (1989) 213 Cal.App.3d 107, 116 [on request]; People v. Housley (1992) 6 Cal.App.4th 947, 957-959 [sua sponte].) We will assume, without deciding, that the instruction was required even in the absence of a request, because the omission was harmless in any event.
Instructional error is reviewed under the standard of People v. Watson (1956) 46 Cal.2d 818 (Watson). (See generally People v. Flood (1998) 18 Cal.4th 470, 487.) Under the Watson standard, the error is prejudicial only if there is a reasonable probability that the outcome would have been more favorable to the accused in the absence of the error. (Watson,at pp. 836-837.)
As explained above, expert testimony concerning the effects of child molestation is potentially prejudicial where the expert testifies that a particular victim’s report of abuse is credible because the victim manifests characteristics which are generally exhibited by abused children. (Bowker, supra, 203 Cal.App.3d at p. 391.) If such testimony is given, “then the conclusion that the witness is credible rests upon the premise that the diagnosis is accurate, and that in fact molestation had occurred. The jury in effect is being asked to believe the diagnosis, to agree that the doctor’s analysis is correct and that the defendant is guilty.” (People v. Roscoe (1985) 168 Cal.App.3d 1093, 1099-1100.) Such evidence should not be admitted, but if it is, a limiting instruction is necessary. On the other hand, if the expert’s testimony is properly couched in general terms, describes the behavior of molestation victims as a class and does not include any testimony concerning the behavior of the victim in the charged offense, the omission of a limiting instruction is generally harmless. (People v. Housley, supra, 6 Cal.App.4th at p. 959.)
Here, Detective Marshall’s testimony was limited to a description of studies of child victims of sexual abuse by family members and of his own experience concerning delayed disclosure, without reference to Jane Doe. He did not offer an opinion that Jane Doe’s conduct was typical of abuse victims, and nothing in his testimony could be construed as supporting the conclusion that because she delayed in reporting the molestation, the jury should conclude that she was in fact molested. The fact that Detective Marshall’s testimony about delayed disclosure “tracked” Jane Doe’s testimony has no bearing on whether the absence of a limiting instruction was prejudicial. Testimony concerning CSAAS is generally required to be limited to discussion of an aspect of CSAAS which is present in the particular case (Bowker, supra, 203 Cal.App.3d at pp. 393-394), and Detective Marshall’s testimony was properly directed toward the circumstances which might cause a child who has been molested by her father to delay reporting the abuse. If those circumstances had not been present in Jane Doe’s case, Detective Marshall’s testimony would have been irrelevant.
Indeed, we have difficulty giving credence to the notion that any rational juror would misuse this evidence to conclude that because Jane Doe delayed in disclosing the abuse, the abuse must have occurred. On the contrary, the evidence clearly gives support only to the opposite idea, i.e., that because abuse victims often fail to disclose the abuse for significant periods, the fact that Jane Doe did so should not necessarily cause the jury to conclude that she was lying about having been abused.
Defendant also contends that the omission of a limiting instruction was prejudicial because the prosecutor “highlighted Jane Doe’s testimony [sic] to Marshall and emphasized his expertise, suggesting that he would have known if she was lying about the abuse.” The prosecutor did argue that if Jane Doe was lying, at least one of the trained professionals, including the CPS social worker, the doctor who examined Jane Doe, the officer who first interviewed her and Detective Marshall, would have recognized that fact. The prosecutor’s point of reference concerning Detective Marshall’s testimony was not his expertise in the phenomenon of delayed reporting, however, but rather defense counsel’s reference to Detective Marshall’s testimony that he had investigated a number of accusations of sexual abuse which he determined to be unfounded. The prosecutor responded to that argument by pointing out that Detective Marshall had testified that the cases he determined to be unfounded were never prosecuted. We agree that the implication of this argument is that the mere fact that Detective Marshall allowed the case to be prosecuted serves to vouch for Jane Doe’s credibility, and the argument was arguably improper. Defense counsel did not object to it, however. And, in any event, the prosecutor’s argument in this context made no reference to Detective Marshall’s testimony concerning delayed reporting; the subject was his expertise in weeding out false accusations. It therefore has no bearing on whether the omission of a limiting instruction concerning delayed reporting was prejudicial.
The prosecutor’s sole reference to delayed reporting occurred in her rebuttal argument, where she argued that Jane Doe’s delay in reporting did not show that she was lying, as defense counsel had contended, because, “Most victims of child sexual assault delay in reporting.” She did not rely on that evidence to contend that because Jane Doe delayed reporting the abuse, the jury could conclude that she was not lying. Rather, her argument was that the fact that Jane Doe delayed reporting the abuse did not mean that she was lying. This is entirely proper. (See fn. 5, supra.)
Finally, any possible prejudice from the absence of a limiting instruction was dispelled by the fact that Jane Doe, who was not a young child but an articulate 16 year old at the time of the trial, explained very clearly why she did not report the abuse: She was afraid of her father. Her father hit her and her brothers regularly, he abused her mother to the extent that Jane Doe had called the police several times, and in one incident, he threatened to kill Jane Doe and her mother if Jane Doe called the police to report his abuse of her mother. Jane Doe finally revealed the molestation only after her father had moved out of the house and her mother threatened to send her to live with him. No further explanation of her reasons for refraining from revealing the abuse and of her reasons for finally disclosing it was necessary, and Detective Marshall’s innocuous testimony about delayed reporting added little, if anything, to Jane Doe’s explicit explanation of her conduct.
For all of these reasons, we find that it is not reasonably probable that defendant would have received a more favorable verdict if a limiting instruction had been given. (Watson, supra, 46 Cal.2d at pp. 836-837.)
THE COURT HAD NO SUA SPONTE DUTY TO GIVE A LIMITING INSTRUCTION ON THE USE OF EVIDENCE OF UNCHARGED ACTS OF DOMESTIC VIOLENCE, AND TRIAL COUNSEL’S FAILURE TO OBJECT TO THE EVIDENCE OR TO REQUEST A LIMITING INSTRUCTION WAS NOT PREJUDICIAL
Defendant contends that his attorney provided ineffective assistance by failing to object to evidence of certain incidents of domestic violence offered by the prosecutor to show that defendant raped Jane Doe by means of duress, and when he failed to ask the court for a limiting instruction on the use of that evidence. He also contends that the court had a sua sponte duty to give such a limiting instruction.
On direct examination, the prosecutor elicited from Jane Doe that she did not offer much resistance when her father raped her and did not tell anyone about the abuse because she was afraid of her father’s temper. She testified that he hit her and her brothers frequently. When the prosecutor asked if she had seen her father hit anyone else, defense counsel objected on relevance grounds, and during a subsequent hearing, objected that the evidence of domestic violence against Jane Doe’s mother which the prosecutor sought to offer would be unduly prejudicial under Evidence Code section 352. The prosecutor argued that the evidence was relevant to prove that defendant had sexual intercourse with Jane Doe by means of duress because of the implied threat of violence which resulted from his violence against her mother. The prosecutor told the court that she sought to admit testimony only concerning an incident in which Jane Doe had called 911 to report that her father was hitting and punching her mother. After a foundational hearing out of the presence of the jury, in which Jane Doe described seeing her father hit her mother “a lot” of times, the court ruled that the evidence was admissible.
Direct examination resumed, and Jane Doe testified further about her father hitting her and her brothers. She also described seeing her father hit her mother on four or five occasions, with his fist or with a belt, and testified that he pulled her mother’s hair. On one occasion, defendant had told her mother that if she hit him back, he would hit her twice as hard. Jane Doe testified that she had called the police more than once to report such incidents. The incidents occurred during the time defendant was molesting her. She was afraid of him because of his bad temper.
On redirect, the prosecutor elicited testimony about additional and more egregious acts of domestic violence—an incident in which defendant poured alcohol on Jane Doe’s mother and then threatened her mother with a match, an incident in which defendant had hit her mother on the head with a large metal cup and put a knife to her mother’s neck, and an incident in which defendant threatened to kill Jane Doe and her mother if Jane Doe called the police. Defense counsel objected on grounds of relevance and hearsay, but did not object on grounds of undue prejudice. Nor did he object that the questions sought to elicit evidence beyond the scope of cross-examination.
Defendant now contends that his attorney’s performance was constitutionally deficient, within the meaning of Strickland v. Washington (1984) 466 U.S. 668 (Strickland). He assumes that if counsel had objected on Evidence Code section 352 grounds, the court would have excluded the additional incidents as unduly prejudicial. We are not persuaded that this is true. Under Evidence Code section 352, the trial court has broad discretion to determine whether relevant evidence should be excluded because its probative value is outweighed by its potential for creating undue prejudice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) The domestic violence evidence was relevant to the prosecution’s theory of duress, i.e., that Jane Doe submitted to her father’s molestation and did not tell anyone about it because she was afraid of him. The court might have deemed the evidence of these more severe incidents unnecessary, because the prosecutor had already adduced a substantial amount of evidence to support the duress theory, but it would nevertheless not have been an abuse of discretion to admit the evidence over objection. Consequently, even if an attorney acting as a “diligent conscientious advocate” (United States v. DeCoster (D.C. Cir. 1973) 487 F.2d 1197, 1202) would have objected on Evidence Code section 352 grounds, as defendant asserts, defendant has failed to demonstrate that an objection would have been successful. Nor has he demonstrated a reasonable probability that the outcome of the trial would have been more favorable, even if counsel had successfully objected. (Strickland, at pp. 691-692, 694.) Even without the evidence he now objects to, there was ample evidence that Jane Doe had reason to be afraid of her father’s temper, and there is no reasonable probability that the jury would have disbelieved Jane Doe if it had considered only the lesser acts of domestic violence which defendant does not challenge.
In Strickland, the United States Supreme Court held that a criminal defendant has a constitutional right to the effective assistance of trial counsel. To prevail on a claim of ineffective assistance, the defendant must show that his attorney failed to act in a manner within the range of competence demanded of attorneys in criminal cases and that the defendant was prejudiced by counsel’s act or omission. (Strickland, supra, 466 U.S. at pp. 687-688.) To establish prejudice, the defendant must show a reasonable probability that the outcome of the trial would have been more favorable in absence of the error or omission. (Id. at p. 694.) Because both prongs are necessary to finding that the defendant was deprived of his constitutional right to effective assistance of trial counsel, a claim of ineffective assistance of counsel may be rejected if the defendant fails to establish prejudice, without regard to whether counsel’s performance met objective standards of competence. (Id. at p. 697.) The same standard applies under the California Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)
Counsel was also not deficient for failing to object that the redirect examination exceeded the scope of cross-examination. The trial court has the discretion to allow a party to reexamine a witness on matters as to which the witness has already been examined, even if the reexamination exceeds the scope of cross-examination. (See Evid. Code, § 774.) Courts routinely allow parties to reopen their direct examination upon such an objection, and defendant has failed to show that the court would not have allowed the prosecutor to reopen if counsel had objected.
Defendant also contends that the court was obligated to give an instruction explaining the limitations on the use of the prior bad acts evidence even in the absence of a request, or in the alternative that counsel was deficient for failing to request such an instruction.
A trial court generally has no sua sponte duty to give a limiting instruction on uncharged criminal conduct. (People v. Collie (1981) 30 Cal.3d 43, 63.) Defendant asserts, however, that this case falls within the exception to that rule. As stated in People v. Collie,“[t]here may be an occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose. In such a setting, the evidence might be so obviously important to the case that sua sponte instruction would be needed to protect the defendant from his counsel’s inadvertence.” (Id. at p. 64, italics omitted.) Here, the evidence of defendant’s acts of domestic violence was not offered as evidence that defendant committed the charged offenses. Rather, the prosecutor relied on it solely to support the theory that Jane Doe submitted to the abuse and refrained from telling anyone about it out of fear. The evidence thus did not form a “dominant part of the evidence” (ibid.) against defendant, but rather played a supporting role. And, it was not merely “minimally relevant to any legitimate purpose.” (Ibid.) On the contrary, it had great relevance to the legitimate point for which it was admitted. Accordingly, the court had no sua sponte duty to give a limiting instruction. (Id. at pp. 63-64.)
We also reject defendant’s contention, that defense counsel’s failure to request a limiting instruction informing the jury that it could not conclude from the domestic violence evidence that defendant is a person of bad character or that he has a disposition to commit crimes (CALJIC No. 2.50; Judicial Council of Cal. Crim. Jury Instns., CALCRIM No. 375), rendered his representation ineffective because defendant has not shown a reasonable probability that the outcome of the trial would have been more favorable if the instruction had been given. (Strickland, supra, 466 U.S. at pp. 691-692, 693-694, 697.) Defendant’s argument depends on the assumption that jurors would have relied on the evidence of domestic violence to bolster their belief in Jane Doe’s testimony that defendant molested her, by concluding that defendant was a person of bad character who was therefore likely to have molested his daughter. The fallacy in that argument is that there was no evidence, independent of Jane Doe’s own testimony, that the acts of domestic violence occurred. (Her mother was not asked about defendant’s violence toward her or her children.) Thus, the credence jurors placed in the domestic violence evidence depended entirely on their acceptance of Jane Doe’s testimony. If jurors did not believe her testimony that defendant molested her, it is unlikely that they would have believed her uncorroborated testimony that defendant also abused her mother. Consequently, there is no reasonable probability that jurors improperly relied on the domestic violence evidence to conclude that defendant was a person of bad character and that Jane Doe was therefore telling the truth about the molestation. Defendant has therefore not met his burden of demonstrating that counsel’s failure to request a limiting instruction was prejudicial, and his claim of ineffective assistance of counsel fails on that basis alone. (Ibid.) In addition, because of the relevance of the evidence and the absence of any logical support for defendant’s claim of prejudice, we are not persuaded that counsel’s failure to request the instruction caused his representation to fall below an objective standard of reasonableness. (Id. at pp. 688-689.)
DEFENDANT HAS NOT DEMONSTRATED ANY VIOLATION OF HIS CONSTITUTIONAL RIGHTS IN CONNECTION WITH THE JURY’S REQUEST FOR A READBACK
Defendant contends that his constitutional rights were violated when the court failed to notify his attorney of a jury request for a readback of the victim’s testimony and when the readback was conducted in his absence and that of his attorney.
The parties focus their arguments on whether the record affirmatively shows that defense counsel was not notified of the readback request or that defendant and his attorney were not present during the readback. We need not address those questions or their implications, however, because the record fails to show something even more essential: It does not show that the requested readback ever occurred.
The minutes show that the jury’s note was received on March 7, 2007, at 3:22 p.m. The readback was ordered and the reporter was notified. The jury was released at 4:21 p.m. to return at 9:30 a.m. on March 8. The minutes of March 8 show that the jury resumed deliberations at 9:30 and returned its verdict at 10:27. There is no statement in the minutes of either date that the reporter read the requested testimony. And, in response to our order granting defendant’s second motion to augment the record, the court reporter provided an affidavit stating that he had no notes of any proceedings on March 7 or March 8, 2007, which were not already transcribed and made part of the record on appeal. Taken all together, the reporter’s affidavit and the minutes support only the conclusion that although a readback was requested, it was not performed. Accordingly, there was no violation of defendant’s constitutional rights.
DEFENSE COUNSEL DID NOT PROVIDE DEFICIENT REPRESENTATION BY FAILING TO OBJECT TO THE PROSECUTOR’S OPENING STATEMENT OR CLOSING ARGUMENT
Defendant argues that the prosecutor committed misconduct when she repeatedly called him a “monster” during her opening statement and her closing argument and when she suggested during closing argument that defense counsel had merely chosen a stock defense, i.e., that the victim was lying. Acknowledging that any claim of prosecutorial misconduct is forfeited by defense counsel’s failure to object and seek a curative admonition (People v. Thornton (2007) 41 Cal.4th 391, 454), defendant argues that his trial attorney’s representation was prejudicially deficient because he failed to object.
We reject defendant’s contention that the prosecutor’s repeated use of the word “monster” to describe him constituted misconduct. In People v. Edelbacher (1989) 47 Cal.3d 983 (Edelbacher), the California Supreme Court held that “opprobrious epithets” may be used during argument if they are reasonably warranted by the evidence. (Id. at p. 1030.) In that case, the court found the prosecutor’s description of the defendant as a “snake in the jungle,” a “pathological liar” and “slick” to be permissible in light of the evidence. (Ibid.) In People v. Terry (1962) 57 Cal.2d 538, the court upheld the prosecutor’s description of the defendant as an “animal” and as “vicious.” (Id. at pp. 561-562.) Although defendant contends that “monster” is more vituperative than “animal” or “snake in the jungle,” we fail to see a qualitative difference. In any event, the issue is whether the epithet is reasonably supported by the evidence. (Edelbacher,at p. 1030.) Defendant’s conduct, as described by his daughter, was monstrous.
Defendant contends that because his conduct was less egregious than that of the defendant in People v. Sully (1991) 53 Cal.3d 1195, it was necessarily misconduct for the prosecutor to describe him as a monster. Sully had committed multiple brutal murders, bragged about his conduct and asked others how best to dispose of the bodies. He also tore the heads off his daughter’s ducklings and tore their hearts out, then told his estranged wife that he would kill her in the same manner. (Id. at pp. 1211-1215.) The court held that it was not misconduct to call Sully a monster because the evidence supported the use of that epithet. (Id. at p. 1250.) The court did not hold or imply that only lesser conduct could not warrant the use of that epithet as well. Rather, it held, citing Edelbacher, supra, 47 Cal.3d at page 1030, and People v. Adcox (1988) 47 Cal.3d 207, 237, that the use of such epithets is permissible where it is warranted by the evidence. (Edelbacher, at p. 1236.)
Defendant also contends that it is the prosecutor’s repeated use of the word “monster” which renders the argument misconduct because it could have been intended only to inflame the passions of the jury. However, we think it equally probable that the jury found the prosecutor’s argument absurdly theatrical. (“An innocent girl asleep. A monster creeps in [sic] her room and climbs into bed with her. No good night hugs for the little girl. . . . The monster returns to the little girl’s room. Again, the monster climbs into bed with this innocent little girl. She is not a stranger. She is his daughter. Flesh and blood. No good night kisses for the little girl tonight.”) In any event, the argument does not amount to misconduct. Thus, defense counsel’s failure to object did not cause his representation to fall below an objective standard of reasonableness under prevailing professional norms. (Strickland, supra, 466 U.S. at pp. 688-689.)
In any event, even if we were to conclude that the prosecutor committed misconduct and that defense counsel was therefore derelict in failing to object, defendant has failed to meet his burden of demonstrating that he was prejudiced as a result. (Strickland, supra, 466 U.S. at p. 697.) Defendant contends that it was a close case, as demonstrated by the jury’s request to have the victim’s testimony read back and by the length of deliberations. As we discussed above, however, the jury reached its verdict without waiting for the readback it requested. Thus, the jury found the readback unnecessary. The fact that the jury deliberated for nearly as long as it took for all of the testimony also fails to support defendant’s position. Rather than indicating that this was a close case in which the prosecutor’s argument inflamed the jury’s passions and pushed it into deciding the case on emotion rather than reason, the length of the deliberations tends to show the opposite—that despite the prosecutor’s vivid description of defendant as a monster, the jury took its time to discuss the evidence and reached a reasoned verdict, rather than an impassioned one.
Defendant also contends that it was misconduct for the prosecutor to argue that defense counsel manufactured a defense based not on the facts but merely by selecting one of a list of stock defenses. We agree that the prosecutor’s comment that defense counsel, “a trained defense attorney,” “picked” one of the two defenses available in a child molestation case (that someone else did it or that the victim is lying) was inappropriate, in that it suggests that counsel arbitrarily selected a defense which was unsupported by the facts. Nevertheless, defendant fails to demonstrate a reasonable probability that the outcome would have been more favorable to him in the absence of this comment or if his attorney had objected and had sought a curative admonition. Accordingly, this contention fails as well. (Strickland, supra, 466 U.S. at p. 697.)
DEFENDANT HAS NOT SHOWN CUMULATIVE PREJUDICIAL ERROR
Defendant contends that the numerous errors infecting the trial, even if not individually prejudicial, were cumulatively prejudicial. He argues that the jury heard improper hearsay as to a crucial element of continuous sexual abuse, that it was not instructed not to use the domestic violence evidence as evidence of criminal propensity or character, and that it was not told that it could not employ CSAAS evidence as proof of guilt. He also cites the court’s failure to notify defense counsel of the readback request. He contends that these “interrelated” errors, along with the several instances of ineffective assistance of counsel, mandate reversal.
We have rejected several of defendant’s claims of error outright and have found others to be manifestly nonprejudicial. In addition, our decision to vacate the conviction for continuous sexual abuse has rendered one claim of error moot. (See fn. 4, supra.) Defendant does not adequately explain why, even if we upheld all of his contentions of error, we should conclude that they were cumulatively prejudicial. In light of our rejection of most of his contentions, his cumulative error argument unquestionably fails.
DEFENDANT HAS FAILED TO MAKE A PRIMA FACIE SHOWING OF PREJUDICIAL INEFFECTIVE ASSISTANCE OF COUNSEL IN HIS HABEAS CORPUS PETITION
In his habeas corpus petition, defendant raises the following grounds for his claim of ineffective assistance of counsel:
1. Defense counsel failed to object to and seek to exclude hearsay evidence pertaining to the duration element of continuous sexual abuse;
2. Defense counsel failed to request an instruction explaining the limited use of CSAAS evidence;
3. Defense counsel failed to seek to exclude some of the domestic violence evidence under Evidence Code section 352 and as beyond the scope of cross-examination, and to request a limiting instruction on the use of the domestic violence evidence;
4. Defense counsel failed to object when the prosecutor referred to defendant as a “monster” in her opening statement and closing argument; and
5. Defense counsel’s multiple errors cumulatively operated to deprive him of a fair trial.
We have addressed all but the first two contentions in our opinion in the direct appeal, finding either that defense counsel’s performance did not fall below an objectively reasonable standard or that any error or omission was not prejudicial, or both. We declined to address the first contention as moot, in light of our order vacating the continuous sexual abuse conviction. (See fn. 4, supra.) Defendant did not raise the second contention, that defense counsel failed to request an instruction explaining the limited use of CSAAS evidence, in the direct appeal. However, we rejected a related contention, that the trial court’s failure to provide such an instruction was not prejudicial. Defense counsel’s failure to request the instruction was therefore also not prejudicial. Defendant does not present any additional argument in his habeas corpus petition which would support a different result as to any of these purported errors or omissions. The sole additional information the petition provides is a declaration by defense counsel stating that he did not recall why he acted or failed to act in each of the instances of asserted ineffectiveness. (Petn., Exh. A.) This declaration is intended to meet defendant’s burden of demonstrating that defense counsel had no rational tactical reason for his acts or omissions. (Petn., pp. 3, 4, 5, 6.) (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) However, even if we assume that defense counsel had no rational tactical reason for his acts or omissions, the result remains the same, either because there was no error or no prejudice. (Strickland, supra, 466 U.S. at pp. 691-692.) We are also not persuaded that any errors or omissions on the part of defense counsel which were not individually prejudicial become prejudicial when viewed cumulatively. Accordingly, defendant has failed to make a prima facie showing of prejudicial ineffective assistance of counsel, and no evidentiary hearing is warranted. (People v. Duvall (1995) 9 Cal.4th 464, 474-475.) We therefore deny the petition for writ of habeas corpus.
DISPOSITION
Defendant’s conviction for continuous sexual abuse (§ 288.5; count 2) is reversed. The judgment is otherwise affirmed.
The petition for writ of habeas corpus is denied.
We concur: Richli, J. King, J.