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People v. Smith

California Court of Appeals, First District, Fourth Division
Jan 27, 2011
No. A125632 (Cal. Ct. App. Jan. 27, 2011)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. NOAH ALEXANDER SMITH, Defendant and Appellant. A125632 California Court of Appeal, First District, Fourth Division January 27, 2011

NOT TO BE PUBLISHED

Alameda County Super. Ct. No. C158782

RUVOLO, P. J.

Following a jury trial, Noah Alexander Smith was found guilty of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2) [count 1]), rape (§ 261, subd. (c)(2) [count 2]), and attempted rape (§§ 261, 664 [count 3]). The trial court sentenced defendant to four years in state prison. On appeal, defendant claims that pretrial discovery issues, prosecutorial misconduct, evidentiary error, and judicial bias require reversal. Finding no reversible error, we affirm the judgment.

All further undesignated statutory references are to the Penal Code.

I. EVIDENCE AT TRIAL

As an undergraduate and varsity football player at the University of California at Berkeley (UC Berkeley), defendant raped one undergraduate woman, Brandi Doe, and attempted to rape another, L. Doe. Several other undergraduate women testified that defendant had committed or had attempted to commit similar forcible sexual acts on them.

A. Prosecution Case

1. Sexual Offenses Against L. Doe (Attempted Rape)

a. Events Before the Sexual Assault

L. Doe met defendant in late February 2005 at a party on the UC Berkeley campus. At the party, a mutual friend, Sean Young, asked if she would dance with defendant; Young told L. that defendant was shy. L. danced with defendant for part of one song, and then returned to her friends.

A few weeks later, L. saw defendant at Young’s dorm room. At some point, defendant and another football player decided to race each other at the track. After watching the race, L. took a bus home to her parents’ house in Berkeley. While on the bus, she received a phone call from defendant in which he asked her to “hang out” later. L. agreed because she was a freshman and wanted to make new friends. L. explained she was not attracted to defendant, and for that reason she did not wear nice clothes, makeup, or jewelry to her meeting with defendant. Rather, she wore Adidas sweatpants and a tank top covered by a sweatshirt; underneath she wore a bra and boxer style underpants.

Upon arriving at defendant’s residence, L. did not see any of defendant’s roommates. Defendant walked L. into his bedroom. Defendant sat at a desk, and L. sat on the floor, where she began to study. Defendant and L. talked about their families and school; she felt comfortable with defendant. Both defendant and L. expressed their disinterest in romantic relationships.

Defendant then surprised L. by asking what she would say if he asked her right then to be his girlfriend. Although she thought the question was “weird, ” and told defendant she was not interested, L. still did not feel uncomfortable about being alone with defendant. It crossed her mind that it might be a good idea to go home, but she stayed because she thought it was just an awkward question and nothing to worry about. They continued talking and studying. At some point, defendant showed L. his athletic “accolades” displayed around his apartment, including his picture on the cover of a magazine. When they returned to his room, defendant closed the door and began playing some songs on his computer; there was no talk of sex.

b. The Sexual Assault

About two hours into the visit, defendant turned on the television, and L. moved from the floor onto defendant’s bed so that she could see it. At this point, L. removed her sweatshirt and shoes, but she still was wearing her sweatpants and tank top. L. testified that she was five feet nine inches tall, and weighed about 150 pounds; she believed defendant to be over six feet tall and around 200 pounds.

After L. had been on the bed for about one minute, defendant approached her and pushed her down by her shoulder, forcing her onto her back. Defendant then got on top of L., with his legs straddling her upper body and waist; he held her hands at her shoulders. Next, defendant pulled L.’s hands over her head and started to kiss her while holding her wrists with his hands. L. felt trapped. Defendant took both of L.’s wrists in one hand and pulled off her underwear and sweatpants with the other hand. Defendant’s clothes were off and he started rubbing his penis on her thighs and outside her vagina.

L. asked defendant “ ‘what the fuck are you doing?’ ” She repeatedly asked him what he was doing. Defendant kept “shushing” her and saying that he just wanted to see how it felt. At first, L. was not yelling, but was in shock and then she started to panic. She testified that she was a virgin and was not planning on her first experience being with defendant, or being that sort of encounter. She was determined to “get[] out of there.”

After being unable to wriggle free, L. bit defendant on the shoulder, whereupon he stopped and got off of her. L. believed that defendant would have put his penis in her vagina if she had not bitten him.

Once defendant got up, L. grabbed her clothes and managed to put them on, even though her underwear were ripped. Defendant also got dressed. As she left defendant’s apartment, she saw a man watching television in the main common area of the apartment. Defendant followed L. out to her car. As she was getting in the car, defendant grabbed L.’s face and kissed her, telling her to text him when she got home so that he would know she was safe. This “boggled” L.’s mind.

c. Events After the Sexual Assault

L. did not tell her family about the incident. She explained that her mother was in remission from breast cancer and “didn’t need to deal with it.” She also had several brothers who were very protective of her, and she did not want them to know about it, in order to prevent them from seeking to avenge her. L.’s plan was to never talk about the incident.

Approximately one week after the assault, defendant called L. and asked why she had not called him. L. told him that what had happened was “absolutely not okay, ” and told him to never contact her again.

About two years later, defendant walked up to a group in which L. was standing, and introduced himself to her as if they had never met. A friend told L. that defendant had been saying unflattering things about her, including that she was a “tease.” The next time L. saw defendant, she told him to keep her name out of his mouth.

L. knew Crystal Doe from class. Crystal once saw L. being rude to defendant. Upon observing this exchange, Crystal asked L. about the reason for her rudeness, as it was not in L.’s nature to be rude. At some later date, Crystal called L. and told her about an incident in which she (Crystal) had sex with defendant but did not want to do so. Crystal then asked L. if the reason for her rudeness was because L. had had a similar experience with defendant. L. confirmed that she had had a similar encounter with defendant.

In the summer of 2006, another acquaintance, A. Doe, asked L. about defendant. L. told A. not to date defendant because she did not think he was safe. When A. asked for the basis of this opinion, L. said that she could not tell her; L. did not tell A. what had happened to her.

In the spring of 2007, the police contacted L. about defendant. She testified that this angered and upset her, as she did not want the police to get involved in her life. L. explained that she preferred to deal with things on her own and that she did not want to testify. Indeed, she hung up on the district attorney’s office several times.

2. Sexual Offenses Against Brandi Doe (Forcible Oral Copulation and Rape)

a. Events Before the Sexual Assault

Brandi Doe met defendant in January 2007, when he was enrolled in an education course at UC Berkeley that required students to provide tutoring at a local high school. Brandi, also a UC Berkeley student, was working as a site coordinator at the high school and was defendant’s supervisor. As part of this position, she was in charge of keeping track of defendant’s tutoring hours. As she was with the other tutors she supervised, Brandi was friendly with defendant.

In early March 2007, Brandi and defendant had a telephone conversation regarding defendant’s request that Brandi help him get to know another woman in the tutoring program. On March 27, 2007, while on spring break at her family’s home in Madera, Brandi sent defendant an email advising him that the woman he had been interested in did not know who he was. Defendant sent Brandi a text message, asking when she last had sex and whether she shaved her pubic hair. Brandi thought it was harmless fun, and she responded to the texts. In one of the messages, defendant asked Brandi if she would have sex with him, to which she replied that if it was “in the heat of the moment” she “wouldn’t say no....” Brandi testified that she had not given an explicit yes, explaining that “if it were to happen, then maybe, maybe not.” Defendant asked Brandi to send him a picture; she assumed he meant a nude one. He sent another message asking Brandi if she wanted to see him “down there”; she assumed he was referring to his penis.

Brandi replied by sending a picture of herself dressed in a “crazy” outfit. At one point, Brandi said she would send defendant a “titty shot, ” but she never sent him one. Brandi testified that she did not think she had an agreement to have sex with defendant when they returned from spring break.

On April 2, 2007, Brandi and defendant emailed each other about getting together later that evening. Brandi then called it off, texting defendant she was on her period. At trial, she explained that she really did not have her period, but that she was testing defendant to see if he would come over even if having sex was not an option. When defendant declined to come over, Brandi sent him a message, telling him that he had failed the test because he only wanted to come over for sex. Defendant replied that he was not interested in having sex, and that he had given her the wrong impression.

b. The Sexual Assault

On May 7, 2007, Brandi had a chance meeting with defendant on campus. They had a conversation about defendant needing more tutoring hours for his education class. In that conversation, defendant “pretty much” asked Brandi to “make up hours for him....” Around 12:46 p.m., Brandi texted defendant and asked how many hours he needed. After texting back and forth, they reached an understanding that defendant would come by her place that day and she would review his hours. Prior to defendant’s arrival, he sent Brandi an odd text, stating that he was coming over “ ‘to give you something.’ ”

Sometime after 1:00 p.m., defendant arrived at Brandi’s apartment. Once inside the apartment, defendant headed for Brandi’s bedroom; the bedroom door had a sign with Brandi’s name on it. Brandi walked in behind defendant; defendant then closed and locked the door. She opened the door and defendant closed it again. Defendant then grabbed Brandi by her biceps and moved her onto the bed. When Brandi asked defendant what he was doing, he “shushed” her. Brandi testified that she was five feet six inches tall and weighed about 105 pounds.

While on the bed, defendant pulled off Brandi’s sweat pants and underwear. Brandi grabbed at her pants, trying to pull them back up, but she was unsuccessful. At the same time, Brandi repeatedly said, “ ‘No. I don’t want to do this.’ ” Defendant just kept “shushing” her, telling her “it’ll be okay.” Defendant climbed on the bed, and sat on her chest with his knees straddling her shoulders. He then pulled out his penis and tried to force it into her mouth; she repeatedly said no and turned her head from side to side. Defendant kept saying he needed to put his penis in her mouth to get it a little harder; he put his penis in Brandi’s mouth “at least five times.” Brandi was afraid that defendant was going to rape her.

At some point, defendant stood up and put on a condom. Brandi saw that defendant had some lubricant in his hand. She noticed that the blinds were open, and she asked defendant if he was going to really do this with the blinds open so that people could see; defendant got up and closed the blinds.

Initially, defendant was unable to penetrate Brandi’s vagina; she complained that it hurt. During this time, Brandi made it clear that she did not want to have sex with defendant. Once defendant put lubricant on Brandi’s vagina, he was able to penetrate her. As defendant had his penis in her vagina, Brandi had her eyes closed. When defendant asked Brandi to rub her vagina, she complied so that he would hurry up and be done. After defendant climbed off of her, Brandi ran to the bathroom to clean herself because she felt dirty. Defendant said he had to go meet his football coach, and he left. Defendant left without ever discussing his tutoring hours. Defendant left the lubricant in Brandi’s room, and he threw the used condom away in her trash can.

c. After the Sexual Assault

Brandi managed to go about her day after the sexual assault. While working at the high school, she received a text message, with a winking smile symbol, from defendant saying that that the sex was payment for the hours. Brandi testified that this text made her feel “trashy, ” explaining that she and defendant had no such agreement. On her way home from work, Brandi stopped and tried on clothes at two stores, and went to the supermarket.

Back at her apartment, Brandi thought about what to do, and considered calling her parents or the police. She texted a close friend, Tamai, who had been through something similar with a football player. In those text messages, Brandi made several references to prostitution, telling Tamai that she felt like she had prostituted herself “in exchange for the hours.” When Tamai asked, “[s]o he raped you, ” Brandi replied that it was “forced intercourse, ” and ultimately admitted that it was “rape.” Brandi also texted Tamai such statements as “like I wanted his ass, ” and “he was a bad fuck anyway.” Brandi testified that she made those statements because she was frustrated and upset about the whole painful experience. Brandi admitted that she deleted some of the text messages, including those referring to prostitution because Tamai advised her that it would look bad if the police saw such messages. She gave Tamai the media card from her telephone to hide the text messages from the police; Brandi could not recall whether the media card contained naked pictures of herself.

3. Uncharged Offenses

a. A. Doe

A. Doe graduated from UC Berkeley in 2007. She met defendant in the summer of 2006, when she received an instant, online message from him. She explained that, although she did not know defendant, she did not think it was unusual to receive this message. Defendant and A. sent each other numerous instant messages for several weeks. She enjoyed the exchanges and agreed to meet defendant. They decided to go to a local restaurant.

On their first date, A. told defendant that they could be friends, but she was not interested in dating anyone. After dinner, they went back to defendant’s apartment, which he shared with Crystal Doe. Later in the evening, they went for a walk in the Berkeley Hills and decided to sit down. While they were sitting next to each other, defendant sent A. a text message saying that he wanted to perform oral sex on her. A. declined the offer; there was no followup discussion about having sex of any kind.

Although they had agreed that defendant would bring A. home after the date, he instead took her back to his apartment because he said he needed to take some medication. A. agreed to come in and wait while he took the medication. As A. was sitting in defendant’s room, defendant told her that he felt comfortable with her and wanted to tell her something. Defendant told her that he had a disorder that would eventually cause him to be infertile, and that he had to obtain a sperm sample to send home each month. He showed A. a plastic cup that was similar to the type used for urine tests at a doctor’s office. At this point, A. said that she was confused. Defendant asked her to just sit there, which she did because she felt she had no choice. It was after midnight, she was not near her house, and she had no one to call to pick her up. She told defendant that she would stay, but the rules were that he could not touch her or involve her in procuring the sample. At defendant’s request, A. sat on the bed. Defendant sat about two feet away from her and started to masturbate. Defendant then put his hand on A.’s thigh; she felt uncomfortable and asked defendant to remove his hand. She tried to push his hand off her thigh, but defendant would not move it. Instead, he said in a calming voice that it was “okay.”

Defendant then pulled down A.’s pants and underwear; she froze and felt paralyzed. Defendant got on top of A. and she fell backwards onto the bed. Defendant next put his penis into her vagina and kept it there for 10 to 15 minutes. Defendant ejaculated on a “towel or something”; he did not attempt to retrieve or retain any of his sperm for the so-called sample. Although she was scared and upset, A. never believed that she would get hurt physically. A. thought that defendant had lied to her about the sperm story and that he “ran a game” on her.

After defendant ejaculated, A. got dressed. As she dressed, defendant told her to hurry because he needed to take her home before his “medication” made him too drowsy to drive. A. finished getting dressed and accepted the ride home.

A. did not tell anyone about the rape because she wanted to make herself believe that it had not happened. She also did not tell her male relatives because they might have “gone after” defendant and gotten themselves into trouble.

After the rape, A. dated defendant for about a month, and had consensual intercourse with him five or six times. She and defendant acted as if the first night had never happened; A. blocked it out of her mind.

In August 2006, about a month after the rape, defendant came over to A.’s house under the guise of working on a paper. Before defendant came over, they discussed the fact that A. had a bacterial infection and that she did not want to have sex. Nevertheless, while they were working on the paper, defendant brought up sex again. A. reminded him of her infection, and defendant said that he did not mind. A. stated that she would be uncomfortable because the infection burned and smelled. Despite her concerns, defendant took A.’s clothes off and started having sex with her. After ejaculating on her stomach, defendant stated he needed to get back to football camp to make curfew. They never dated again.

In or about the winter of 2007, A. received a telephone call from Crystal, who sounded upset. Crystal said she needed to talk to someone about her being taken advantage of by someone who told a story about needing to masturbate. Crystal told A. that before she knew it, she was having sex against her will. A. and Crystal compared their experiences and discovered that defendant had refined his sperm story, and that the story he had told Crystal was more specific in that it mentioned a prostate issue. A. also had talked to L. about defendant. L. told A. that she had had a bad experience with defendant, but that if he was treating A. nicely she should continue to talk to him.

A. testified that she helped teach a class in female sexuality at the university, and the topics included sexual assault. Through the class, she learned that women often freeze when assaulted and do not resist, and that they later may cope by acting as if the rape had not happened. A. believed that she fit this profile.

b. Crystal Doe

Crystal Doe met defendant in 2005 at UC Berkeley; she was a track athlete and socialized in the same athletic circles as defendant. She and defendant became friends because they both were “obsess[ed]” with sneakers. They had a platonic friendship, in which neither was attracted to the other. In fact, they shared a two-bedroom apartment in the summer of 2006; they never had sex during this time and were just roommates.

Then, in January or February of 2007, Crystal ran into defendant on campus. Defendant told Crystal that he wanted to talk in private, and when they were alone he asked her to register a gun for him in her name. She replied, “there’s no way in hell I would do that.”

As they were then living near each other, defendant offered Crystal a ride home and she accepted. During the drive to Crystal’s house, defendant said that he had not been serious about the gun. He also told Crystal that a doctor had informed him that he might have prostate cancer. Defendant said that he needed to produce a sperm sample, and that he felt comfortable with her.

Defendant rejected Crystal’s suggestion he produce the sample in a doctor’s office. She then suggested that he borrow something from her “collection of DVDs.” When defendant said that a movie would not help, Crystal said that she did not know what to tell him. At this point, she was not yet uncomfortable with defendant because she “was used to him being kind of weird.”

Upon arriving at Crystal’s residence, defendant asked if could go inside to use the bathroom. While defendant was in the bathroom, Crystal tidied up her place because she had not been expecting guests. Defendant came out of the bathroom and advised Crystal that he needed to do “this” within five minutes of urinating, which prompted Crystal to ask “[d]o what?” Defendant said that he needed to produce a sample, and he just needed Crystal to sit and watch him. Defendant followed Crystal into her bedroom, where she sat on the bed folding clothes; defendant sat at a nearby desk.

While Crystal was folding the clothes on her bed, defendant pushed her down onto her back. She was wearing jeans without a belt or underwear, and a bra and t-shirt. Defendant lifted up Crystal’s shirt. As Crystal protested, defendant told her it was “okay” and told that she should not worry. Crystal tried to push defendant off of her, but she was unable to do so. Defendant was straddling her. After physically struggling with defendant for about 15 or 20 seconds, Crystal stopped trying to fight him. Defendant pulled down her jeans and stuck his penis in her vagina. As he raped Crystal, defendant repeatedly told her it was “okay” and told her not to worry.

After defendant had had his penis inside of Crystal’s vagina for about two minutes, he asked her if she wanted to “ ‘suck [him] off’ ” until he was finished. Crystal replied, “ ‘hell no, ’ ” and asked defendant if he was out of his mind to ask such a question. Defendant shrugged off the remark, and then ejaculated on her stomach. Defendant took a plastic cup out of a small Ziploc bag, and used it to scrape the semen off of Crystal’s stomach. When defendant went into the bathroom, Crystal covered herself with a towel. Defendant returned from the bathroom and rhetorically asked who else he could have done that with and been completely comfortable. He also asked Crystal if she had AIDS, declaring “I know you be fucking with them hood Niggas.” Crystal replied that it was the wrong time to be asking that question.

As defendant left Crystal’s house, he told her that any time she wanted a ride to campus she should just call him. At that moment, Crystal felt like laughing because she knew what had happened was not right, but defendant thought it was a normal thing between friends. Crystal then went to the bathroom and threw up.

Crystal tried to make herself believe that the assault had not happened; she did not call the police because she believed somehow that it was her fault. She also did not think the police would believe her because, given her size and stature, they would think she would have been big enough to knock defendant off of her. Initially, she did not want to help the prosecution because she wanted to put it behind her and because she still blamed herself not being able to stop the incident. However, by the time of trial, she had changed her attitude and “was happy now.”

Crystal explained that she knew L., Brandi, and A. from school. Crystal never talked to Brandi about defendant. Although Crystal talked to L. about defendant, she did not think she told L. about what defendant had done to her. Crystal remembered calling A. about an hour after the rape, and told her about the semen sample story. A. described a similar incident that had had happened to her; the women then realized that they were talking about defendant. Neither woman wanted to talk further about the incidents.

Later, Crystal learned that “something bad” had happened between defendant and L. When Crystal called L. about the incident, L. did not want to talk about it. Eventually, L. did tell Crystal about what had happened with defendant. At the time of trial, Crystal had not spoken with L. for about 18 months.

4. Physical Evidence

Kristi Lanzisera, Alameda County Sheriff’s Office DNA analyst, analyzed the biological material found on the condom recovered from Brandi’s apartment. The sperm on the condom was consistent with defendant’s DNA profile. Other matter on the condom was also consistent with Brandi’s DNA profile.

Jason Collom, a former UC Berkeley police officer, searched defendant’s car pursuant to a search warrant. He found a backpack containing a condom and a small tube of lubricant. A subsequent search of the backpack revealed three plastic containers located in a pocket.

5. Expert Testimony

Hillary Larkin, a physician’s assistant and director of the Sexual Assault Response Team at the Alameda County Medical Center testified as an expert. She reviewed the sexual assault examination performed on Brandi. Brandi had three one-centimeter linear abrasions to her posterior fourchette. The area was tender to the touch. The three tears were easy to spot in the photographs taken of the area. Larkin testified that such tears were consistent with a sexual assault. She further explained that she had never seen findings like those represented in Brandi’s examination that did not involve a sexual assault. Larkin had reviewed thousands of sexual assault examinations.

Marcia Blackstock, the executive director of Bay Area Women Against Rape for the past 27 years, testified as an expert. She described how rape trauma syndrome affects a survivor. She explained that it is not unusual for victims to freeze from fear, and that victims often comply with the rapist’s orders to get through the rape with the least amount of harm possible. It is also common for the victim to blame herself and not report the rape because of fears that she will not be believed. Victims often find it too uncomfortable to admit that they have been raped, and they try to mentally normalize the behavior as a bad date.

B. Defense Case

Defendant testified on his own behalf. He graduated from UC Berkeley in December of 2007, after attending on a football scholarship. He received a bachelor of arts degree in interdisciplinary studies with an emphasis on legal studies and societal education.

He met L. in the spring of 2005 at a friend’s apartment; he never danced with her. After meeting her, defendant got L.’s contact information and they had a study date at his apartment. L. sat on the floor and looked at books and watched television while they talked. Nothing L. said about the sexual encounter was true.

Defendant met Crystal in 2004. They both liked shoes, and they eventually became roommates. Defendant found out that he could sell his sperm if his SAT score was high enough; he and Crystal laughed about going into a room to masturbate.

One day, when defendant gave Crystal a ride home, defendant asked her if she would help him in a sexual manner. He explained that he mentioned the subject of sperm donation to break the ice, and Crystal laughed and thought it was funny. They had consensual sex that day after Crystal invited him inside; defendant denied that he asked to go inside to use the bathroom. Defendant ejaculated on Crystal’s stomach and put the sperm in a cup. As he knew the sperm bank did not accept offsite donations, defendant later threw out the cup.

He denied telling Crystal that he had prostate cancer. He also denied that he asked Crystal to register a gun for him.

Defendant met A. in 2003 or 2004. They began dating in the spring of 2006. On their first date, defendant asked to kiss A. She said yes, and he kissed her. Later that night, they had consensual sex. A. never said no, and in fact, was aggressive in progressing the sex acts from kissing to grabbing his penis. Defendant said he would never do anything nonconsensual.

On his last date with A., defendant sent her a text message to see if he could use her computer. While at A.’s house, they started to have sex. A. said that she had a problem and that she smelled bad, but she would not say what the problem was. Defendant said that he did not mind the smell. According to defendant, A. offered to perform oral sex, but he was unable to climax.

Defendant testified that he never talked about the sperm bank with A. He also denied telling her that he had a disorder that required semen samples.

Defendant met Brandi in the spring of 2007, when they were part of a tutoring program at a local high school; Brandi was his site coordinator During spring break of that year, defendant and Brandi emailed each other sexual messages. When defendant asked if she would have sex with him, she said that she would not say no. Brandi also asked defendant about the size of his penis.

Defendant later ran into Brandi on campus, and asked if she could give him some tutoring hours. He also asked her if the offer to have sex still was an option. She said yes jokingly, and that they could meet at her apartment later that day.

Defendant met Brandi at her apartment later that afternoon; they hugged and defendant followed Brandi into her room. Brandi agreed to perform oral sex on defendant to get his penis wet. Defendant then got up and lubricated the inside and outside of a condom and put it on. They had consensual intercourse; Brandi never said no. While they were having sex, Brandi asked defendant to close the blinds, which he did. After he ejaculated, defendant got up and threw the condom in a trash can.

Later that day, defendant sent Brandi a text message, saying that the sex had been payment for his tutoring hours. When speaking to the police about his encounter with Brandi, defendant said that he “let” Brandi perform oral sex on him in exchange for the hours. According to defendant, Brandi was not of the same “caliber” as the women he usually “hook[ed] up with, ” and he did not want anyone to know about it.

Defendant told the police that he thought Brandi was falsely accusing him of raping her because she was mad at him for only having sex with her for the hours. He also claimed that Brandi was falsely accusing him because she was an African-American woman, and he had a reputation for not dating African-American women. Defendant told police that he was turned off by the messy condition of Brandi’s room, but he continued to have sex with her because he needed the hours.

Defendant testified that the plastic cups found in his backpack were in connection with the required urine drug testing of the football team. He further explained that he was one of the only players on the team who had clean urine, so the other players used his urine. Defendant saw this as doing his “duty for the team.”

During his direct examination, defendant admitted to talking with Andrea Doe about needing to collect sperm because he had fertility problems. He admitted that he lied to Andrea about not getting pregnant due to his fertility problems. Defendant testified that Andrea and Brandi were the only women he had ever asked to help him with his sperm issue. Defendant denied knowing a Rhonda Doe or ever having any conversations with her about sperm or anything else.

As we note, post, Andrea Doe did not testify at trial.

C. Rebuttal

Rhonda Doe, age 21, testified that she met defendant while she walking down a street in Berkeley in 2006. Defendant asked if he could walk with her, and she said yes. At defendant’s request, they exchanged phone numbers. Over the course of the next week, they exchanged text messages; the messages were not romantic in nature.

One day, Rhonda let defendant drive her home after class. Around 9:00 p.m. that evening, defendant picked up Rhonda and drove her to the parking lot of Memorial Stadium. Rhonda was mildly nervous about this detour, but defendant did not seem threatening. Defendant typed a text message on his phone and handed it to her. The message said that defendant was very shy around women and he wanted to ask her for a favor. Rhonda testified that she thought it was “a little” odd for defendant to hand her his phone with a message to her, as she was sitting right next to him in the car. When Rhonda asked what the favor was, defendant said that he had been born with a heart defect, the treatment for which had left him with a low sperm count. Defendant said that his mother paid $70 or $75 a week to have his sperm frozen so that he could have a family some day. When Rhonda said she was confused about what any of this had to do with her, defendant told her that he wanted her to accompany him to the sperm bank. Rhonda told defendant that the favor was “weird” and he was “weird.” Nevertheless, Rhonda did not feel threatened, and they talked about other subjects. Defendant then moved toward Rhonda, as if to kiss her. She turned away from him, and he tried to kiss her again. Rhonda told defendant, “ ‘Whoa. I don’t want to make out with you. I think you’re weird. You really creeped me out.’ ”

Undeterred by Rhonda’s rebuffs, defendant moved toward her a third time, this time touching her chin with his finger and trying to lead her into a kiss. When Rhonda forcefully said no, defendant replied that he did not know that what was what she meant.

Defendant drove Rhonda home, and as she was getting out of the car he told her not to forget about what she had waiting for her. Rhonda later saw defendant parked near her house five or six times. Rhonda had never heard of any of the other victims in this case.

II. DISCUSSION

A. Discovery Issues

Defendant contends that the prosecution engaged in prejudicial misconduct by failing to disclose material it was required to provide to the defense under Brady v. Maryland (1963) 373 U.S. 83 (Brady) and section 1054.1. Defendant argues that this asserted misconduct entitles him to a new trial.

Section 1054.1 (the reciprocal-discovery statute) ‘independently requires the prosecution to disclose to the defense... certain categories of evidence “in the possession of the prosecuting attorney or [known by] the prosecuting attorney... to be in the possession of the investigating agencies[, ]” ’... [including] any ‘[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts’ ([§ 1054.1], subd. (f)), and ‘[a]ny exculpatory evidence’ (id., subd. (e)). ‘Absent good cause, such evidence must be disclosed at least 30 days before trial, or immediately if discovered or obtained within 30 days of trial. (§ 1054.7.)’ [Citation.]” (People v. Verdugo (2010) 50 Cal.4th 263, 279-280.)

1. Background

Several days into the trial, the prosecutor handed defense counsel a marked exhibit, consisting of a portion of police report that included documentation of the sexually flirtatious text messages between Brandi and defendant that had transpired about a month before the rape. The prosecutor believed this material had been previously disclosed, as defense counsel had specifically questioned Brandi at the preliminary hearing about her sending defendant a sexually explicit photograph of herself. In any event, the failure to disclose this information “came as a surprise” to the prosecutor.

Defense counsel asserted that while he may have been aware of the text messaging between defendant and Brandi, the actual documentation of the text messages would have aided in the cross-examination of Brandi, as she denied engaging in sexually flirtatious banter with defendant and denied sending him a nude photograph of herself. Defense counsel argued that this information would have made a significant difference at the preliminary hearing because it would have affected Brandi’s credibility in the eyes of the magistrate. Defense counsel requested a mistrial based on a Brady violation, which he opined was of the “utmost seriousness.”

The trial court understood the defense’s position, but stated, “I’m trying to figure out what the prejudice is at the moment. Quite frankly, I share your concern about not having gotten the report, but I’m not at this stage going to get involved in what happened at the preliminary hearing.” The trial court asked defense counsel “what is the prejudice is at this moment, if any...”, whereupon defense counsel replied, “In this moment, I cannot say there is any prejudice.”

After further colloquy, the trial court denied the defense request for a mistrial. In seeking to clarify the trial court’s ruling, defense counsel stated: “Is your ruling-there’s been no prejudice since I have the report now and she hasn’t testified yet, and you’re not going to address anything relating to the preliminary hearing? If that is what it is, that’s fine.” In response, the trial court replied: “I’m presiding over the trial is my position, not the preliminary hearing. So if there was some sort of situation that happened in the preliminary hearing, I’m not going to get into that now.”

2. Analysis

“ ‘Pursuant to Brady, supra, 373 U.S. 83, the prosecution must disclose material exculpatory evidence whether the defendant makes a specific request (id. at p. 87...), a general request, or none at all....’ [Citation.] ‘For Brady purposes, evidence is favorable if it helps the defense or hurts the prosecution, as by impeaching a prosecution witness. [Citations.] Evidence is material if there is a reasonable probability its disclosure would have altered the trial result. [Citation.] Materiality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies. [Citations.] Because a constitutional violation occurs only if the suppressed evidence was material by these standards, a finding that Brady was not satisfied is reversible without need for further harmless-error review. [Citation.]’ [Citations.]” (People v. Verdugo, supra, 50 Cal.4th at p. 279.

“There are three components of a true Brady [v. Maryland (1963) 373 U.S. 63 (Brady)] violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” (Strickler v. Greene (1999) 527 U.S. 263, 281-282.) Prejudice, in this context, focuses on “the materiality of the evidence to the issue of guilt or innocence.” (United States v. Agurs (1976) 427 U.S. 97, 112, fn. 20, overruled on other grounds in United States v. Bagley (1985) 473 U.S. 667, 681-682.) Materiality requires more than a showing that the absence of the suppressed evidence made conviction “more likely” (Strickler v. Greene, supra, at p. 289), or that using the suppressed evidence to discredit a witness’s testimony “might have changed the outcome of the trial” (ibid.). The question is whether the defendant “received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” (Kyles v. Whitley (1995) 514 U.S. 419, 434; People v. Salazar (2005) 35 Cal.4th 1031, 1042-1043.)

In the instant case, although the trial court did not expressly find that a Brady violation had occurred, it is reasonably inferable from the record that the trial court had found such a violation, but concluded that it was not prejudicial. Accordingly, the only issue before us is whether the late disclosure was prejudicial under Brady. We conclude it was not.

In asserting prejudice, defendant argues that the delay in disclosure deprived the defense of the opportunity to impeach Brandi’s credibility at the preliminary hearing. According to defendant, if defense counsel had been given the entire report prior to the preliminary examination, he would have been able to impeach Brandi with “very damaging and contradictory statements, ” which might have resulted in him not being held to answer and “very well could’ve had an effect on... the jurors convicting [defendant] at trial since this information directly [went] to the heart of his defense of consent.”

Defendant’s speculative argument is insufficient to sustain his burden of showing prejudice. (Strickler v. Greene, supra, 527 U.S. at p. 289.) Moreover, despite the racy banter and/or photograph, Brandi unequivocally testified at trial that she never had an explicit agreement to have sex with defendant, and she most definitely did not consent to the subsequent forced intercourse. The most reasonable inference from the facts presented is that, had Brandi been confronted with the police report at the preliminary hearing, her testimony would not have varied from the testimony she gave at trial. Finally, notwithstanding the delay in disclosure, the defendant confronted and cross-examined Brandi at trial regarding her text messages with defendant. “ ‘[E]vidence that is presented at trial is not considered suppressed, regardless of whether or not it had previously been disclosed during discovery.’ [Citation.]” (People v. Verdugo, supra, 50 Cal.4th at p. 281.) Because the defense cannot show any lost evidence, and because the content of the police report was disclosed fully at trial, defendant is unable to demonstrate prejudice attributable to the late disclosure.

B. Evidentiary Issues

Defendant contends the trial court improperly admitted evidence regarding prior uncharged sexual offenses. According to defendant, this evidence violated his due process rights. He also claims this evidence should have been excluded because of the dissimilarities between the charged and uncharged offenses. Finally, defendant claims this evidence should have been excluded under Evidence Code section 352. As we shall discuss, none of these claims have any merit.

1. Background

During in limine motions, the prosecutor proffered evidence of six uncharged offenses. Specifically, the prosecutor sought to introduce the testimony of Cassandra Doe, Allison Doe, and Andrea, as well as the testimony of Crystal, A., and Rhonda, to establish defendant’s sexually assaultive behavior. The prosecutor argued that this evidence was admissible under Evidence Code sections 1108 and 352, as other acts of sexual aggression, as well as under Evidence Code section 1101. The trial court granted the motion as to Allison, Crystal, and A., ruling that any testimony from these witnesses would be admissible under both Evidence Code section 1101 and section 1108. It also found the evidence was not unduly prejudicial under Evidence Code section 352. As to Cassandra, Andrea, and Rhonda, the trial court ruled that the prosecutor could not introduce any testimony except for impeachment purposes if the defendant should “open[ the] door[]” at some point as to any issues relating to their proffered testimony.

Although allowed to do so, the prosecutor did not call Allison as a witness at trial.

In light of this ruling, the prosecution did not call either Cassandra or Andrea as witnesses. Rhonda was called and allowed to testify only as a rebuttal witness.

2. Analysis

As a general rule, evidence of uncharged crimes is inadmissible to prove a defendant’s conduct on a particular occasion. (Evid. Code, § 1101.) The Legislature has created an exception to this rule, however, in Evidence Code section 1108, which provides in pertinent part, “(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”

On appeal, defendant contends that because “the evidence supporting the verdict was not extremely strong, ” when the testimony of the uncharged offenses was considered, the prosecutor improperly was able to bolster the state’s case.

According to defendant, the admission of the Evidence Code section 1108 testimony “lowered the prosecutor’s burden by allowing him to piggyback sexual acts that he did not feel were even worth filing with his case in chief, ” thereby violating his due process rights under the state and federal constitutions.

In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the California Supreme Court rejected a similar constitutional challenge to Evidence Code section 1108. (Id. at p. 920.) There, as here, the defendant argued section 1108 violated his constitutional right to due process by lowering the state’s burden of proof. (Ibid.) The court disagreed, stating, “ ‘[s]ection 1108 has a safeguard against the use of uncharged sex offenses in cases where the admission of such evidence could result in a fundamentally unfair trial. Such evidence is still subject to exclusion under... section 352. [Citation.]... This determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.] With this check upon the admission of evidence of uncharged sex offenses in prosecutions for sex crimes, we find that... section 1108 does not violate the due process clause.’ [Citation.]” (Falsetta, supra, at pp. 917-918, italics omitted.) The court further concluded, “[n]or does section 1108 improperly alter or reduce the prosecutor’s proof burden.... ‘While the admission of evidence of the uncharged sex offense may have added to the evidence the jury could consider as to defendant’s guilt, it did not lessen the prosecution’s burden to prove his guilt beyond a reasonable doubt.’ [Citations.]” (Falsetta, supra, at p. 920; see People v. Reliford (2003) 29 Cal.4th 1007, 1009 (Reliford).)

In sum, the testimony admitted under Evidence Code section 1108 did not lighten the prosecution’s burden of proof, change the elements of the offenses, or reduce the sufficiency of the evidence necessary to convict the defendant of the charged offenses. (Falsetta, supra, 21 Cal.4th at p. 920.)

Equally without merit is defendant’s assertion that the prior uncharged sexual offenses should not have been admitted under Evidence Code section 1108 because they “were not similar” to the charged offenses. Contrary to defendant’s implied assertion, Evidence Code section 1108 contains no predicate requirement that there be an unusually high degree of similarity. (See People v. Soto (1998) 64 Cal.App.4th 966, 984.) Clearly, “[t]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose.” (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41; see also People v. Mullens (2004) 119 Cal.App.4th 648, 659.) Indeed, Frazier concludes that “[i]t is enough the charged and uncharged offenses are sex offenses as defined in [Evidence Code] section 1108.” (People v. Frazier, supra, at pp. 40-41, fn. omitted; accord, People v. Mullens, supra, at p. 659; see also Evid. Code § 1108, subd. (d)(1)(A); §§ 314, 647.6.) Thus, evidence can be presented to permit a reasonable inference that “the defendant has a disposition to commit sex crimes from evidence the defendant has committed other sex offenses.” (Reliford, supra, 29 Cal.4th at p. 1012.)

Finally, under the facts of this case, we are hard-pressed to find any support for defendant’s assertion that the trial court abused its discretion under Evidence Code section 352, which provides that a court “in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

For purposes of Evidence Code section 352, the term prejudice “ ‘applies to evidence which uniquely tends to evoke an emotional bias against a defendant as an individual and which has very little effect on the issues.” (People v. Callahan (1999) 74 Cal.App.4th 356, 371.) We pause to emphasize that “ ‘[p]rejudice’ as contemplated by section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent’s position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption ‘ “substantially outweigh” ’ the probative value of relevant evidence, a section 352 objection should fail. (People v. Cudjo (1993) 6 Cal.4th 585, 609....) ‘ “The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’ ” [Citation.]’ (People v. Karis (1988) 46 Cal.3d 612, 638....)” (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008, italics omitted.)

“The prejudice that section 352 ‘ “is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” [Citations.] “Rather, the statute uses the word in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors. [Citation.]” [Citation.]’ (People v. Zapien (1993) 4 Cal.4th 929, 958....) In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.” (Vorse v. Sarasy, supra, 53 Cal.App.4th at p. 1009.)

Here, the testimony of Crystal and A. was highly probative in disproving defendant’s consent defense. Additionally, Rhonda’s testimony was properly admitted for impeachment purposes. The testimony of Crystal, A., and Rhonda did not relate to collateral issues meant to inflame the emotions of the jury. Rather, this evidence logically related to defendant’s credibility, which was a crucial issue at trial. Moreover, the evidence regarding defendant’s prior uncharged acts was no more inflammatory than that regarding the charged offenses. In other words, there was no danger that the jury utilized this evidence for an illegitimate purpose.

In sum, the trial court did not abuse its discretion in this case. “It carefully considered the evidence, found it had significant probative value-as it did-and took steps to minimize any undue prejudice. It limited the evidence to what was relevant.” (People v. Story (2009) 45 Cal.4th 1282, 1295.)

Because the trial court properly admitted the evidence under Evidence Code section 1108, we do not consider whether the trial court abused its discretion in further finding that the evidence was admissible under Evidence Code section 1101. (People v. Story, supra, 45 Cal.4th at p. 1295.)

C. Asserted Judicial Misconduct

1. Background

During the prosecutor’s cross-examination of defendant, the trial court interrupted to ask numerous questions regarding the specifics of defendant’s purported sperm donations, with particular emphasis on what defendant was going to be paid for his donations. According to defendant, the trial court’s questions undermined his credibility, making the trial court the People’s advocate and depriving him of the right to a fair trial. Defendant points to the following passage:

“[Prosecutor]:... You were going to take Crystal to the California Sperm Bank in one of these private rooms, and she’s gonna perform oral sex on you, and then you’re going to put your bodily fluid in the cup for your sample?

“[Defendant]: No, sir.

“[Prosecutor]: What did you mean when you said ‘oral sex’?

“[Defendant]: I was giving you an example as to what could have possibly been done.

“[Prosecutor]: At the California Sperm Bank?

“[Defendant]: Yes. Or wherever I decided to.

“[Prosecutor]: You got to do it there.

“[Defendant]: No. That’s what you said. That’s what you told me.

“[Court]: Well, you told us that on direct examination that you knew you had to do it there, right?

“[Defendant]: Or in another medical facility.

“[Court]: Or in a hospital?

“[Defendant]: Yeah, so

“[Court]: It was either at the sperm bank or at a hospital. So his questions was, this possible-I understand you don’t know exactly how it might unfold, but the possibility was Crystal would perform oral sex on you to facilitate you providing the sample, correct?

“[Defendant]: Yes. But, he

“[Court]: As a possibility. And if that occurred, it would either happen at the sperm bank or at a medical facility?

“[Defendant]: Yes. Exactly. Yes.

..

“[Prosecutor]: How much were you going to get paid for your sample?

“[Defendant]: I don’t know the specific amount.

“[Prosecutor]: Can you give us an idea, a ballpark figure?

“[Defendant]: No, sir.

“[Prosecutor]: Was it a million dollars?

“[Defense Counsel]: Objection. Asked and answered.

“[Court]: Overruled.

“[Defendant]: I can’t be specific.

“[Prosecution]: Was it a million dollars?

“[Court]: Was it? I hope not. Was it?

“[Defendant]: I don’t-I don’t-obviously, it couldn’t be a million dollars, but

“[Court]: All right. What he’s getting at is this: You don’t remember exactly how much it is. Two years ago, that’s all you can remember?

“[Defendant]: Yeah. I’m just trying

“[Court]: All right. But can you give us more of an idea how much it was? In other words, I presume it was enough to make it worth your while. That is, it wasn’t two bucks?

“[Defendant]: But I’m sworn under oath to tell the truth, so I can’t make a statement that is not true.

“[Court]: I’m not asking you to make a statement that’s not true. I’m asking you to estimate for us, if you can. Was it more than $2? Or would you have been willing to have given a sample for two bucks or less?

“[Defendant]: It was within the realm of reason.

“[Prosecutor]: What is that?

“[Defendant]: The realm of reason, meaning it was worth my while, as the judge related to.

“[Prosecutor]: Was it between $1,000 and $10,000?

“[Defendant]: Yes.

“[Prosecutor]: Was it between a dollar and $1,000?

“[Defendant]: It was with-that falls... between a dollar and 10, 000. So yes.

“[Court]: Well

“[Defendant]: If it falls between 1 and 1, 000, that falls between 1 to 10, 000, right?

“[Court]: Right. But being between 1 and 10, 000 is not necessarily the same as being between 1 and 1, 000.

“[Defendant]:... I’m thinking of it as if it’s 2. 2 is in between 1, 000 and 2 is between a

“[Court]: But 1500 isn’t, is it? 1500 isn’t between both of them is it?

“[Defendant]: No. That’s why I answered the first question ‘yes.’

“[Court]: On other words, it’s somewhere between 1 and 10, 000?

“[Defendant]: Yes.

“[Court]: Is it between 1 and 1, 000, or is it a possibility it’s more than 1, 000?

“[Defendant]: It was between a dollar and 10, 000. I’m not sure if it was between a dollar and 1, 000.

“[Prosecutor]: You never read while you were perusing the website that you’re paid a hundred dollars for ‘every ejaculate that meets our minimum sperm count’?

“[Defendant]: Can you repeat the question?

“[Prosecutor]: You went on the website and looked at the information on the sperm bank website, correct?

“[Defendant]: Yes.

“[Prosecutor]: Did you ever read on the website that you would be paid a hundred dollars for ‘every ejaculate that meets our minimum sperm count’?

“[Defendant]: I can’t be for sure.”

2. Analysis

Although defense counsel raised an objection to one of the questions posed by the prosecutor, defense counsel never objected to any of the trial court’s questions. The California Supreme Court has held that the lack of objection forfeits claims of judicial misconduct: “It is settled that a judge’s examination of a witness may not be assigned as error on appeal where no objection was made when the questioning occurred. [Citations.]” (People v. Corrigan (1957) 48 Cal.2d 551, 556.) This rule has been repeatedly applied to claims of improper questioning by judges. (See People v. Harris (2005) 37 Cal.4th 310, 350; People v. Hines (1997) 15 Cal.4th 997, 1040-1041; see also Peoplev. Raviart (2001) 93 Cal.App.4th 258, 269; People v. Pierce (1970) 11 Cal.App.3d 313, 321-322; People v. Flores (1952) 113 Cal.App.2d 813, 817.) “Nonetheless, a defendant’s failure to object does not preclude review ‘when an objection and an admonition could not cure the prejudice caused by’ such misconduct. [Citations.]” (People v. Perkins (2003) 109 Cal.App.4th 1562, 1567.) This was not such a case.

The trial court asked clarifying, albeit numerous, questions during the cross-examination of defendant. It is not error for a trial judge to question witnesses to clarify the evidence or cover omissions. (People v. Hawkins (1995) 10 Cal.4th 920, 947-948 overruled on another point in People v. Lasko (2000) 23 Cal.4th 101, 109-110.) Here, the trial court’s questions were for the purpose of clarifying defendant’s evasive testimony, and did not necessarily favor either side. This distinguishes the present case from one cited by defendant, People v. Perkins, supra, 109 Cal.App.4th 1562, in which the court cross-examined the testifying defendant to attack the defendant’s credibility and integrity, to elicit an admission of the defendant’s willful and knowing violation of a restraining order, and to enable the jury to draw adverse inferences against the defendant. (Id. at pp. 1570-1573.)

Contrary to defendant’s assertion, nothing in the record suggests that the trial court’s questions were so prejudicial that an objection would have been futile. Accordingly, the claim of judicial misconduct has been forfeited for lack of an objection at trial.

Moreover, even if we excused the lack of objection, we would reject the contention of error. “The trial judge has the duty to control all proceedings during the trial with a view to the expeditious and effective ascertainment of the truth regarding the matters involved. (Pen. Code, § 1044.) To this end he may examine witnesses to elicit or clarify testimony. [Citations.] The mere fact that a judge examines a witness at some length does not establish misconduct, nor does the fact that the testimony elicited by the judge’s questions would probably have been elicited by counsel. [Citation.]” (People v. Pierce, supra, 11 Cal.App.3d at p. 321; see People v. Raviart, supra, 93 Cal.App.4th at p. 270; see also People v. Fudge (1994) 7 Cal.4th 1075, 1108.)

On the other hand, “[u]nwarranted interruptions of counsel that interfere with a properly conducted examination, excessive questioning that virtually takes the witness out of counsel’s hands, or a display of partisanship are improper. [Citations.]” (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 544, p. 781.) “The question for us to decide is whether the judge ‘officiously and unnecessarily usurp[ed] the duties of the prosecutor... and in so doing create[d] the impression that he [was] allying himself with the prosecution[.]’ [Citations.]” (People v. Clark (1992) 3 Cal.4th 41, 143; see People v.Cummings (1993) 4 Cal.4th 1233, 1305.)

Whether a particular question or series of questions by a judge goes too far is difficult to assess on a cold record because we cannot determine if the tone of any particular question was other than neutral, and because the transcript does not indicate the length of pauses by the attorneys in between the answer to one question and the asking of another. (People v. Raviart, supra, 93 Cal.App.4th at p. 272 [trial court is “ ‘in a better position than the reviewing court to know when the circumstances warrant or require the interrogation of witnesses from the bench’ ”].) It is defendant’s burden, as the appellant, to show error, and we cannot assume the trial court intervened too quickly or inappropriately.

Even if the trial court asked too many questions, that does not mean it lost its neutrality. Nothing about the content of the questions shows a lack of neutrality. And, finally, we observe that the trial court instructed the jury with CALCRIM No. 3550, which in part provides: “Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be.” We presume the jury followed this instruction and would consider the content of the answers to the trial court’s questions and not the fact that the questions were asked by the trial court in assessing the evidence. (See People v. Sanchez (2001) 26 Cal.4th 834, 852.)

Accordingly, we reject the claim of judicial misconduct.

Although we have rejected the claim of error, both procedurally and on the merits, we observe that some of the judicial interruptions, although not harmful, were not necessary. It is best to allow each counsel to develop her or his case, except when intervention is necessary, and then to intervene at the least intrusive time: “Ordinarily the proper course, and the one generally pursued, is to allow the examination by counsel-direct, cross, redirect and recross-to conclude, and then if anything in the judgment of the trial court remains obscure, which may be material for the jury to know, and it seems desirable that an examination of the witness should be further pressed, then, with perfect propriety, the trial court may, and, indeed, should, intervene so that the ends of justice may be subserved. This, however, should be done with care[.]” (People v. Robinson (1960) 179 Cal.App.2d 624, 639.)

D. Asserted Prosecutorial Misconduct

Defendant claims that his due process rights under the state and federal constitutions were violated by improper remarks the prosecutor made during closing argument.

1. Background

Defendant finds objectionable the following remarks, or categories of remarks, by the prosecutor: (1) comments describing defendant as a sexual predator; and (2) statements to the effect that a colleague of the prosecutor thought defendant was a sociopath. Defendant relies on the following passages as being demonstrative of his claim of prejudicial error: “... [Y]ou recall when I gave the opening statements, ladies and gentlemen, said ‘good afternoon’ that day, walked over to [defendant], and I said ‘You know what a sexual predator looks like?’ I said, ‘It’s this guy right there.’ The reason why I said that is because what I knew at the time was, based on the witnesses, he acts like a predator. He preys on women like someone hunting for food, like an animal. That’s why I described him as a sexual predator at that time, and I still believe that. [¶] Then he testified for two days, and some of that was my fault. But he testified, and it was interesting. During his testimony, a colleague of mine watched him on the stand-and a colleague of mine with more experience than I. And you know what he said to me?”

At this point, defendant raised an objection that these statements constituted “vouching, ” which the trial court overruled. The prosecutor then continued to argue as follows: “He said, ‘Noah Smith’s not only a sexual predator, he’s a sociopath.’ And I, ladies and gentlemen, was taken back. That was a big word. I actually didn’t know what it meant. I knew it was bad. And I went to where you go-and that’s Google-to try to figure out what a sociopath is. And then I opened my mouth when I found out what a sociopath is because that’s what the defendant is. [¶] He thinks everyone loves him. He’s got superficial charm. Without question, he’s manipulative. [¶] We learned over those two days, he is an absolute liar. He doesn’t care about what he did to these women and because of his sexual promiscuity, there’s no doubt that he’s a criminal. I was shocked when I went to those descriptions of what a sociopath is to confirm what my colleague said.”

2. Analysis

“ ‘ “A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’ ” ’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘ “ ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841; see also People v. Ochoa (1998) 19 Cal.4th 353, 427.) To support a claim of prosecutorial misconduct, a defendant must show either a pattern of egregious conduct or employment of persuasion methods so deceptive as to create a reasonable likelihood that such behavior prejudicially affected the jury. (People v. Ochoa, supra, at p. 427.)

However, “ ‘ “[a] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.” [Citation.] “A prosecutor may ‘vigorously argue his case and is not limited to “Chesterfieldian politeness” ’ [citation]....” ’ [Citation.] Nevertheless, ‘[a] prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of [his] office behind a witness by offering the impression that [he] has taken steps to assure a witness’s truthfulness at trial. [Citation.] However, so long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the “facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief, ” [his] comments cannot be characterized as improper vouching. [Citations.]’ [Citation.]” (People v. Ward (2005) 36 Cal.4th 186, 215.)

“When a claim of misconduct is based on the prosecutor’s comments 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.” ’ [Citation.]” (People v. Friend (2009) 47 Cal.4th 1, 29.)

Applying these principles to the prosecutor’s challenged statements here reveals no prosecutorial misconduct because (1) there was no improper vouching, (2) even if there was improper vouching, it did not “ ‘ “ ‘infect[] the trial with such unfairness as to make the conviction a denial of due process’ ” ’ [Citations.]” (People v. Ochoa, supra, 19 Cal.4th at p. 427), and (3) it did not reflect a pattern of egregious conduct (ibid.) or persuasion methods so deceptive as to create a reasonable likelihood that the jury was prejudicially affected.

Defendant’s principal argument is that the prosecutor improperly offered his own opinion, as well as that of a colleague, when he stated that defendant was a “sexual predator, ” and a “sociopath.” Defendant claims these statements had the effect of “vouching” for the veracity of the witnesses and arousing the passion and prejudice of the jury. He is wrong.

The fact that the prosecutor said that he “believe[d]” defendant was a “sexual predator” did not constitute vouching for the witnesses’ credibility. For example, in People v. Huggins (2006)38 Cal.4th 175, the California Supreme Court found a prosecutor’s statement, “ ‘None of this can be true. Please believe me. He has lied through his teeth in trying to sell this story to you” did not constitute vouching. (Id. at pp. 206-207.)

The prosecutor founded his belief that defendant was a sexual predator based on the witnesses’ testimony. The prosecutor did not refer to facts outside of the record in an attempt to bolster the state’s case. “It is not... misconduct to ask the jury to believe the prosecution’s version of events as drawn from the evidence.” (People v. Huggins, supra, 38 Cal.4th at p. 207.)

The prosecutor also did not engage in any improper bolstering of the state’s case by referring to defendant as a “sociopath” based on the opinion of his more experienced colleague, nor did the prosecutor’s comments constitute improper vouching for the witnesses’ credibility. “[T]he prosecutor was using language in common currency to describe his interpretation of the evidence, not improperly stating an expert opinion. [Citation.]” (People v. Friend, supra, 47 Cal.4th at p. 84 [nothing improper in referring to defendant as a “sociopath, ” “without feeling”]; People v. Zambrano (2007) 41 Cal.4th 1082, 1173, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22 [“label of sociopath, ” meaning “someone who acts without conscience or remorse, ” appropriate when based on the facts of the crime].) Rather, he used the term to remind the jury of defendant’s demeanor when he was on the stand testifying.

Moreover, defendant’s sexual behavior towards young women was amply reflected in the evidence presented at trial. The prosecutor was allowed to refer to, and to make all reasonable inferences deductible from, it. (See People v. Willard (1907) 150 Cal. 543, 552 [“Counsel have a right to present to the jury their views of the proper deductions or inferences which the facts warrant. Their reasoning may be faulty, their deductions from the premises illogical, but this is a matter for the jury ultimately to determine, and not a subject for exception on the part of opposing counsel”]; People v. Younger (2000) 84 Cal.App.4th 1360, 1384.)

Further, these unremarkable, isolated and noninflammatory comments by the prosecutor do not reflect a pattern of misconduct so egregious as to infect the trial with unfairness nor can they be characterized as “deceptive or reprehensible.” (People v. Samayoa, supra, 15 Cal.4th at p. 841.)

Even if the prosecutor’s challenged statements constituted misconduct, they were harmless in that it is not “reasonably probable that a result more favorable to the appealing party would have been reached” had the prosecutor not made them. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Garcia (1984) 160 Cal.App.3d 82, 93-94, fn. 12 [prosecutorial misconduct in exposing a jury to improper factual matters usually tested under the Watson standard]; see also People v. Medina (1990) 51 Cal.3d 870, 896.) The evidence against defendant was strong. Five young women testified about remarkably similar instances involving defendant’s sexual behavior towards women. Furthermore, defendant’s own testimony cast doubt on his credibility. He was evasive when questioned about his alleged desire to be a sperm donor and the specifics about the donation procedures, including the amount he was to be paid. (See ante, §II.C.2.) Defendant admitted to aiding in the falsification of UC Berkeley drug tests by providing his urine to his football teammates; he viewed such dishonesty as his “duty.” He engaged in further dishonesty when he attempted to get credit for tutoring hours in exchange for having sex with Brandi. Also, he denied knowing Rhonda, who came in and told a detailed and believable story that had many of the same hallmarks of defendant’s bizarre behavior with the other women.

Finally, the jury was instructed not to be influenced by “bias, sympathy, prejudice or public opinion” (CALCRIM No. 200), that “[n]othing... the attorneys say is evidence” (CALCRIM No. 222) and that it “must decide what the facts are... us[ing] only the evidence presented in this courtroom” (CALCRIM No. 222). These instructions focused the jury on the evidence and its role in evaluating it. We assume the jurors followed these instructions. (People v. Talhelm (2000) 85 Cal.App.4th 400, 409.)

III. DISPOSITION

The judgment is affirmed.

We concur: REARDON, J., RIVERA, J.


Summaries of

People v. Smith

California Court of Appeals, First District, Fourth Division
Jan 27, 2011
No. A125632 (Cal. Ct. App. Jan. 27, 2011)
Case details for

People v. Smith

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. NOAH ALEXANDER SMITH, Defendant…

Court:California Court of Appeals, First District, Fourth Division

Date published: Jan 27, 2011

Citations

No. A125632 (Cal. Ct. App. Jan. 27, 2011)