Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C146926
Kline, P.J.
A first amended information charged Mitchell Tatmon with carjacking (count 1; Pen. Code, § 215, subd. (a)), second degree commercial burglary (count 2; § 459), false imprisonment by violence (count 3; § 236), and second degree robbery (count 4; § 211), with special allegations of personal use of a knife on the first three counts (§ 12022, subd. (b)(1)), and a jury sustained each charge and special allegation. Tatmon then waived his rights and admitted numerous alleged prior convictions, including several strikes on each count (§§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(A)). He appeals following sentencing to an aggregate unstayed term of 93 years to life, the main component being consecutive three-strike terms that yielded 75 years to life.
All undesignated further section references are to the Penal Code.
Tatmon raises no sentencing issues but claims prejudicial trial error in the admission of prior crimes evidence, prosecutorial misconduct, and misinstruction. We reject his challenges and affirm the judgment.
Background
Current Offenses
The victim of all the offenses, aged 62 and identified at trial as Jane Doe, testified that in August 2003 she was a member of the Potter’s Studio, located at 637 Cedar Street, between 2nd and 3rd Streets, in Berkeley. The area is not commercial, has no residences, and has many warehouses. As a member, Doe had a key to the premises, made and fired her pottery there, and sold it at public sales events. The studio was open to the public on some special days during the year, but mostly only for a gallery held each Saturday and Sunday from 10:00 a.m. to 6:00 p.m.
Doe arrived alone at the studio between 8:00 and 8:15 a.m. on Saturday, August 30, about two hours before it would open to the public, to check the kiln for some work she had fired the day before. She parked her dark blue-green Toyota Camry in front, 10 feet from the front door, where a tree blocked her view of a man she identified later, and in court, as Tatmon. He was seated on a bench near the door. The area was otherwise deserted, and no one else was yet at the unlit studio.
Doe saw Tatmon rise as she rounded the front of her car. He asked if they had a Jamaican artist there (not naming the artist), and Doe said yes. Tatmon said, “The artist told me to stop by and see his work,” and Doe replied that they opened at 10 o’clock and that he could come back then. When Tatmon added, “I have to go to Sacramento,” Doe thought about it briefly, said, “Well, come on in,” unlocked the front door, and entered, Tatmon following. In front was the gallery, and in the back, past a restroom, was the studio itself, a big warehouse-like area that had four kilns behind it, out two swinging doors. Doe led Tatmon into the studio to some shelves that held the Jamaican artist’s work and pointed to them, and Doe said, “Now, Gene . . . does really nice work.” Doe then said, “Why don’t you take a look,” and “I have to go in back for . . . a couple minutes.” She left, through the swinging doors, and checked her work in one of the kilns. Now uncomfortable about being alone in the studio with Tatmon, whom she had never seen before, Doe thought about how she might get out. On another day, she could have left through a fenced enclosure in back, but the gate was locked on Saturday mornings.
After three or four minutes, Doe reentered the studio and found Tatmon standing in a corner, no longer looking at the Jamaican work. She walked past him at two to three feet distance and, said without stopping, “I have to go now.” She saw in his eyes a cold, hard look, not that of the man she thought she had let in, and kept walking toward the front door, thinking she had better get out of there. Passing him, Doe saw out the corner of her eye a quick gesture and felt him grab her from behind with his left arm around her neck and, with his right, pressing a knife blade to her right side. It was a hard choke hold, leveraged with his hand grabbing her right shoulder, and caused her to black out for a few seconds, and she saw at some point that the knife was a folding type with a blade two and a half to three inches long. Tatmon said, “Do what I say, and you won’t get hurt,” and pushed her from behind into the restroom. Doe stood there, facing the wall, fearing for her life. Tatmon demanded, “I want your purse,” but she said she had not brought it. Asked if it was in her car, she said: “It isn’t in my car. I didn’t bring a purse. And I have my keys. You can go look.” She pulled out and held up keys from her right pants pocket, and he grabbed them. Worried that she had no purse to give him and remembering that she had some money in her left pocket, she told him that she had some. “About $40,” she said when he asked, “How much?” She reached into her left pocket and pulled out the cash together with a combined ATM/credit Versatel card. He grabbed those and then ordered her to take off all her clothes.
“Are you going to rape me?” she asked, and he said, “No, I’m not going to rape you.” Then after a pause of a few seconds, he said: “You don’t have to take off your clothes. [¶] . . . [¶] I’m going to tie you up.” Doe next heard behind her what sounded like duct tape being ripped. Tatmon gripped her shoulder or upper left arm with his left hand as he did this. She could not see what he was doing, but he tied each of her hands separately, and then together, crossed at the wrists behind her back. He ordered her to lie down, and she knelt instead, still facing the wall. He tied her feet in the same manner, each separately and then together, crossed at the ankles. He told her not to look at him, but she did, three or four times, “trying to make eye contact with him to try to change the situation” and make him less hostile. He was breathing heavily but seemed to have no difficulty and to know what he was doing.
Tatmon said “I’m going to be watching you from across the street” and, Doe saw with a backward glance, was using cloth to wipe off the door handle. He also said, “I’m going to get you some help,” before leaving, turning off the light and shutting the door, leaving her in the dark. Doe heard the front door open and shut and waited about five minutes before freeing herself of the gag and restraints. She realized then that the restraints were towel strips. She heard the front door open and feared at first that it was Tatmon, but it was a coworker. The coworker called out “Hello” and, when Doe emerged from the rest room, called “911” and helped untie some remaining towel strips. Doe’s car was gone.
Doe told police her assailant was African-American, relatively dark-complected, middle-aged, five foot six to eight inches tall, heavyset, and wearing metal framed glasses with clear lenses, a dark colored baseball cap, dark pants, and a white sweatshirt. (Department of Motor Vehicles (DMV) records showed Tatmon as born in 1955, five foot nine inches tall, and 240 pounds.) Doe’s car was found two weeks later, dirty but unharmed, about a mile south of the studio, with no latent prints found. Likewise, no usable prints had been found on the studio’s front door or the bathroom sink, rack, door or knob.
Police recovered 11 pinkish and reddish towel strips from the bathroom floor before 10:00 a.m. that morning, and they were taken to a forensic laboratory for DNA testing. Five were tested, the certified analyst focusing on the knotted ones, and human DNA was extracted from three. The resulting profiles then produced a “cold hit” match of Tatmon’s DNA profile in the database of the California Department of Justice DNA Laboratory.
Based on that information, police assembled a six-photo lineup that included a photo of Tatmon and, on November 21st, nearly three months after the assault, presented it to Doe in her home. Doe eliminated five of the photos but focused on the sixth, Tatmon’s. It looked like the “same guy” to her except that the photo image had facial hair and lacked a cap or glasses. She asked the officers if she could draw in a cap and glasses. They consented, and she did so with a pen, announcing afterward that she thought it was the same man. She remarked about “the same menacing eyes.”
Tatmon was arrested on a warrant five days later, on November 26, when he showed up at the Vallejo Police Department for an unrelated matter. Police seized, among other things, a dark baseball cap he was wearing and, in a consent search of his Chevy Lumina, a pair of clear-lense, wire-framed glasses in the glove box. Police took a saliva (buccal) swab from him, and it was sent the next week for a DNA comparison with the towel strip DNA. A search warrant was obtained for his known residence in Vallejo (also shown in DMV records), but the apartment was empty. He and his mother had moved to an El Cerrito apartment.
Meanwhile, on December 1, police showed Doe the baseball cap and glasses. She could not say the cap was the same but positively identified the glasses as those worn by her assailant. She elaborated at trial, where she again identified the glasses, that she found them distinctive in shape and a silvery-gold color of the frame, as well as unusual glasses for a man to wear.
The DNA samples matched in 10 areas, with the probability of a random match being one in 2.6 trillion among African-Americans, Tatmon’s ethnic group. Expert testimony was that loosely adhering cells, like skin cells, might possibly remain on fabric after laundering, but only semen cells had been shown in the literature to be profilable after laundering.
Itsuko Zenitani, called by the defense to bolster a defense claim that Tatmon had left his DNA on the bathroom towel while using it mid-afternoon that Friday, before the attack, bolstered the prosecution’s case by testifying, as she had told police, that she habitually changed the towel in that bathroom every Friday evening at 7:00 or 8:00 p.m., in preparation for the studio being open to the public on Saturday and Sunday. She had been a studio member since 1982 and helped manage the weekend gallery. As a member, she had the responsibility for cleaning the bathroom and changing the single towel that hung there on a ring or rack by the sink. She also did this at those hours to coincide with floor cleaning done on Friday evenings by another studio member. Zenitani always put out a clean towel, from a closed container kept under a kitchen table, and removed the old one, and she did this on the Friday night before the assault. She “[n]ever” changed a towel earlier on Fridays, in the afternoon.
Doe positively identified Tatmon at the preliminary hearing and again at trial, describing herself as “absolutely certain.”
Prior Offenses
Over defense objection, the court allowed evidence of similar offenses Tatmon had committed in 1991 against D.M., instructing jurors that they could use the evidence, not to show propensity to commit the offenses against Doe, but only as it might show common scheme or plan, intent or motive in the new offenses.
Near the start of D.M.’s testimony, the court advised. “I just wanted to instruct you at this time that I’m allowing this evidence to come in for you to consider it for a very limited purpose, only as far as the criminal allegations that you have to decide in this case. This is to come in as it may go to the Defendant’s motive, common design or plan, or intent in the allegations that he’s now facing today.”
D.M. testified. Now age 56 (then probably 42), she was working on April 16, 1991, as executive director for the Contra Costa County Community Safety Project, in a district office in the Ambrose Recreation Center, a building at a park in West Pittsburg, when Tatmon came in around 3:30 p.m. He had come in twice before, each time when D.M. and a female administrative assistance were the only ones there, but together in an outer office. The first time, in February 1991, Tatmon brought a four-year-old boy he said was his and asked D.M. about her program and doing volunteer work for it. They conversed for five minutes, seated on a sofa at a conference table. The assistant got Tatmon some materials, and he left. The second time was a couple of weeks later. He was without the boy and now asked about renting a large hall there for a surprise party for an elderly mother or grandmother. D.M. explained that she did not rent the hall but that he could do that at headquarters, in a district office about five minutes away. She had her assistant direct him to the other office, and he left.
April 16 was a Wednesday, when D.M. worked without her assistant, but she was meeting with a woman director for the YWCA, and that woman’s male assistant, about funding for an Autistic Latchkey Program in East County. Tatmon announced to D.M. that he had the money together and was now ready to rent the hall. D.M. explained that she was in a meeting and, once more, that he would have to do that at the district office. The YWCA director said, within earshot of Tatmon, that she could wrap up their meeting in five or 10 minutes if needed, and Tatmon left. The meeting ended at 3:45 p.m., and D.M. walked her guests out to a deck, bid them goodbye and saw them drive off. The parking lot was now empty, and D.M. was alone. She went back inside, planning to clean up and leave.
About five minutes later, Tatmon entered again and said: “Hi, I’m back. I’d like to see the room.” This did not strike D.M. as unusual. She assumed he had been to the district office to make payment on the rental, and then they had sent him back for her to show the hall. She said all right, and to come with her. She took him down a hallway to the hall, to a storage room where chairs and tables were kept, and then to the kitchen, turning on the lights and saying that only the pantry would be off limits. Just then her phone rang, in both her front and inner offices, and she went to answer in the front, leaving Tatmon in the kitchen. It was her 11-year-old son, a kidney patient, who had some problem at his school and needed to be picked up. D.M. said she would be leaving right away, hung up and went back to the kitchen, but found the light off and no sign of Tatmon. She turned the light back on and then, as she passed by a door to the ladies room, was grabbed from behind by him. He put his left forearm around her neck in a crushing choke hold and, with his right hand, held an opened folding knife to her neck. He told her this was a burglary. It was hard for her to speak, but she told him that she was getting ready to close and that one or more guys from maintenance would be coming down to close up. He said: “Well, you better hope I’m finished before [that]. I don’t have anything to lose. You’ll be the first one to die.”
Pushing her ahead of him in the choke hold, Tatmon had her open a door and go to a windowed wall by the outer office and close the drapes. Then, still holding her with his left arm, he cut down a pull cord with his knife and forced her into her inner office, where he ordered her to lie down on the floor. She sat down instead, staring at him, and he told her to lie on her stomach. She complied this time and then crossed her legs at the ankles when told to do so. He swiftly tied her ankles and then tied her hands behind her back. He demanded her “pocketbook,” meaning purse, and she told him it was at the front desk (where she sat on days when she had no assistant). Tatmon untied her, grabbed her long hair “in a ponytail,” straddled her and, twisting her hair for control, yanked her head back and forced her to crawl on all fours back to the front desk. There he had her get her purse, crawl to the front door and lock it, give him the purse, and then crawl back to her inner office, keeping the knife to the right side of her throat except when taking the purse.
In the inner office, he had her lie face down on the floor again, retied her ankles, and had her empty her purse, give him credit cards and money, and hand over jewelry she wore. He cut her phone lines in both offices, left her tied in the inner office and gathered a fax machine, laptop computer and other office equipment, piling it on a table by the outer office. D.M. kept watch and managed, unseen, to hide under her body a penknife from her purse. Tatmon demanded her car keys, tied her hands behind her back, loaded the office equipment into her car and exited the rear door, saying “You won’t be here long.” D.M. freed one hand, cut her restraints with the penknife, and called “911” from a phone in another building. Her car was gone, and she next saw it a week or two later, after police officers recovered it. She declined to take back the car, and her possessions had been taken from it.
In an ensuing preliminary hearing and jury trial, D.M. positively identified Tatmon as her assailant, having no problem remembering what he looked like. Tatmon had not worn glasses then.
The Defense
Tatmon testified. He admitted jury trial convictions in 1992 for felonies of moral turpitude (“[d]ishonesty,” jurors were told) against D.M. and having moral-turpitude felonies from 1990 and 1986. However, while conceding that D.M. identified him in a lineup and that a jury found him guilty for those offenses, he denied going into the recreation center and robbing and tying up D.M.
Much of Tatmon’s testimony, at least as elicited by his own counsel, related past trouble with convictions and parole, relationships with family, ex-wife Karen Blanchard (in Ventura), a construction-work-related knee injury, and his eventual move north to Vallejo, to live with his mother and, by the time of the charged offenses, to stay sometimes with friend Renee Woods in her Oakland apartment. In the end, he simply denied attacking or robbing Doe on August 30, 2003, and gave an alibi account of various things he had done that and the previous day with numerous people.
To account for his DNA being on the Potter’s Studio towel, he claimed that he used one there to dry his hands in the restroom the day before, Friday, August 29. He was in Berkeley that day and thought about getting a koala bear lamp for his estranged wife. She was “crazy about” koalas, and he felt they might get back together. Finding none on Telegraph Avenue, he was referred by “an elderly gentleman” to a place on 8th or 9th and Dwight Way. He drove there and went in, but found none there, either. A woman said they had none but gave him a pamphlet of other shops, and he tried two of those, including the Potter’s Studio, arriving about 3:30 p.m. A “little Asian lady” (Itsuko Zenitani), one of four people there, escorted him through the studio, eyeing him as someone to become “a worker there,” but he was not interested. She left him after five minutes. He looked around, found nothing he wanted to buy and, on leaving, asked her if they had a rest room. She pointed him to one, and he used it, washed his hands, splashed water on his face, and used a cloth towel to dry off.
Tatmon said he had been planning to drive back to Vallejo for the night but got a cell phone call from a friend named Shampoo. He picked up Shampoo plus a woman friend of Shampoo’s, plus her baby, picked up another male friend, drove them all to a Muslim bakery, dropped the baby off at a babysitter in Emeryville, dropped the woman off at her work, then drove home to pick up some money, and later ended up at Renee’s in Oakland, where he spent that night. He arose the next morning at 8:30 a.m., walked with a friend named Dreadlocks to a liquor store to have a beer, walked back to Dreadlocks’s apartment, drove again to his mother’s house in Vallejo (for cash, a shower and a change of clothes), drove back to Oakland (by 1:00 or 2:00 p.m.), went with a good friend Bobo (Kenneth Dart) to a club called “Apartment C,” hung out there with Bobo, and drove to the home of his (Tatmon’s) brother in Oakland, who said he had tickets to an A’s game. Tatmon conceded in testimony that he had identified “a lot” of people who could account for his whereabouts, and the prosecutor later stressed to the jury that none of them were called to corroborate Tatmon’s testimony.
The defense tried unsuccessfully through Itsuko Zenitani to corroborate Tatmon’s claim of leaving DNA on a visit to the Potter’s Studio on August 29. As already noted, Zenitani insisted that she never changed the towel until Friday evening. She confirmed for the record that she was of Asian descent (Japanese, we infer, from a reference to once going “back to Japan”) but said she had never seen Tatmon before and saw no African-American men at the studio that Friday. She also recalled no one asking about a koala bear lamp and said that the studio did not have nonmembers drop in during the week, only when open to the public on Saturdays and Sundays.
Some corroboration did come for the claimed referral from Earthworks to the Potter’s Studio, but without a useful date. Witnesses Glenda Jordan and Diane Winters had each worked at Earthworks and been asked by a defense investigator about an African-American man asking about a koala bear lamp. Jordan was not sure but thought she had seen Tatmon in the studio one afternoon, probably on a week day, and that he had asked about a bear lamp, although she did not recall him mentioning koala. Being asked about the event “rang a bell,” and she thought she had “made a joke about it” to coworker Winters. Jordan recalled giving the man a brochure of West Berkeley potters and potteries and pointing out the Potter’s Studio. She could not give a date but felt it could have been as late as August or perhaps October of 2003. Winters testified that the investigator’s inquiry “seemed to ring a faint bell,” to the extent that an African American man came in asking for something unusual. She did not recall it being a koala or lamp, or whether she handled the inquiry herself or just overheard it, and she “did not have a specific memory” of referring Tatmon anywhere. She got “a lot of people” coming in asking for things and felt that this would have been sometime since 2002.
Tatmon testified about his November 26, 2003, arrest, saying it was after his mother had moved to El Cerrito. The blue hat he wore then was his, but the glasses in the glove box of his Chevy Lumina were not. He sometimes wore reading glasses, but this pair had been left in his car by someone—he did not know whom. As for inconsistencies in postarrest Mirandized interview statements, he said he had wanted to help at first but, upon feeling himself a suspect, gave sarcastic answers and denied “[i]ncriminating” questions. He conceded that he never mentioned a koala bear lamp, said of his wife Blanchard that he “got tired of her” (showing no lingering affection), denied that he knew his way around Berkeley, denied being in the Potter’s Studio, and said as to any interest in pottery, “ “Fuck no. That’s—that shit, I ain’t a big fag.’ ”
Discussion
I. Uncharged Crimes
Tatmon claims abuse of discretion under Evidence Code sections 352 and 1101, and due process error, in the admission of the 1991 assault on D.M. We find no error.
“Evidence of other crimes is admissible only if relevant to prove a material fact at issue, separate from criminal propensity.” (People v. Demetrulias (2006) 39 Cal.4th 1, 14.) “[Such evidence] is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent. [Citation.] On appeal, the trial court’s determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion. [Citations.]” (People v. Kipp (1998) 18 Cal.4th 349, 369; Evid. Code, § 1101, subds. (a) and (b).) Motive is another permitted nonpropensity use. (Evid. Code, § 1101, subd. (b).)
“To be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses. [Citation.] Evidence of an uncharged crime is relevant to prove identity only if the charged and uncharged offenses display a ‘ “pattern and characteristics . . . so unusual and distinctive as to be like a signature.” ’ [Citations.] ‘The strength of the inference in any case depends upon two factors: (1) the degree of distinctiveness of individual shared marks, and (2) the number of minimally distinctive shared marks.’ [Citations.]” (People v. Kipp, supra, 18 Cal.4th at pp. 369-370.)
“A lesser degree of similarity is required to establish relevance on the issue of common design or plan. [Citation.] For this purpose, ‘the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.’ [Citation.]” (People v. Kipp, supra, 18 Cal.4th at p. 371.)
“The least degree of similarity is required to establish relevance on the issue of intent. [Citation.] For this purpose, the uncharged crimes need only be ‘sufficiently similar [to the charged offenses] to support the inference that the defendant “ ‘probably harbor[ed] the same intent in each instance.’ [Citations.]” ’ [Citation.]” (People v. Kipp, supra, 18 Cal.4th at p. 371.)
“[T]he probativeness of other-crimes evidence on the issue of motive does not necessarily depend on similarities between the charged and uncharged crimes, so long as the offenses have a direct logical nexus. [Citations.]” (People v. Demetrulias, supra, 39 Cal.4th at p. 15.)
“There is an additional requirement for the admissibility of evidence of uncharged crimes: The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.] On appeal, a trial court’s resolution of these issues is reviewed for abuse of discretion. [Citation.] A court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ [Citation.]” (People v. Kipp, supra, 18 Cal.4th at p. 371; Evid. Code, § 352.)
The prosecution sought pretrial to admit evidence of the D.M. assault to show common scheme or plan, motive, and intent, attaching papers that included police reports and a preliminary hearing transcript from Tatmon’s prosecution in that case. Similarities appeared then much as they would unfold in trial testimony: Both victims were older women (aged 42 and 61); the premises were commercial; the assailant cased the premises beforehand; he used a business-related pretense to gain access and put the women at ease, ostensibly going to look at something he was interested in; he struck when the women were alone and had returned from another room; he grabbed each from behind, put them in a choke hold with his left arm while brandishing a knife in his right hand; he pushed them in that position to a more secluded room; he tied them up, hands and ankles, with whatever material was on hand, using the knife to cut down or fashion his restraints; he took their credit cards, cash and/or other valuables; and he took their keys and fled in their cars. There were also sexual components to each assault. After riding D.M., Tatmon pulled up her skirt and slip, pulled down her panties and hose, and tried to penetrate her from behind as she lay tied and prone on the floor; the assailant here had ordered Doe to strip but then relented when she resisted.
In opposition, the defense argued that the only issue in the case was identity—intent and motive being self-evident—and that the two incidents were not similar enough for admission to prove identity, or common scheme or plan. The defense stressed the lack of any sex crime charge here, noting that Tatmon was convicted in the prior case of burglary, false imprisonment and assault with intent to commit rape, and argued that the evidence’s probative value was outweighed by the risk of prejudice.
These arguments were elaborated at a hearing on the matter, defense counsel reiterating that he objected also based on state and federal due process. Defense counsel stressed that he would present a case of mistaken identity and not argue the alternative—that if Tatmon was the perpetrator, he lacked intent for burglary or any charge. This, he urged, rendered intent “not reasonably subject to dispute.” The prosecutor countered that, regardless whether the defense chose to argue intent, it was an issue the People had to prove beyond a reasonable doubt, that there could especially be doubt on the burglary charge, whether Tatmon harbored a felonious intent when admitted to the studio, or only developed it later, and that the prior incident was highly probative on that score, showing a common scheme or plan as well. The evidence would not be sought to prove identity because, the prosecutor felt, identity would be overwhelmingly established by the DNA evidence, glasses, and strong witness identification.
Defense counsel offered to remove the burglary intent issue through a “conditional plea” by which Tatmon would plead guilty to that charge, conditioned on him later being found guilty of the other offenses. The “conditional” aspect was to avoid exposure to a third-strike life sentence, but when asked for authority for such a plea, defense counsel said he had none. The court said that if only the other charges were at issue, it “clearly could potentially affect” its ruling. Defense counsel had no authority, however, and the prosecutor added he would never agree to one. The court invited an unconditional burglary plea, but the defense declined.
The court gave an elaborate oral ruling, finding “many similarities throughout these two cases that clearly go to the issues of intent in the charged offenses, in particular, the burglary, the issues of common design or plan, and substantial similarities . . . that go to motive.” Turning to the issue of prejudice, the court found “very great probative value” on the issues but stressed that it would not allow testimony on “the facts that may go to establish any sexual offense or have any sexual overtones,” although it had “considered the fact that there are some dissimilarities” in ruling on admissibility. In like fashion, on a pending matter of impeaching Tatmon with prior felonies should he testify, the court allowed impeachment with several priors but left to the defense the strategic choice whether to “sanitize” them.
The court also inquired of defense counsel how, if at all, admission of the D.M. evidence might be effectively limited to the burglary count. Counsel said: “I don’t think you can. You can craft an instruction, but at that point I don’t think it matters much. If this jury is going to hear from [D.M.], the game is lost. I don’t really care at that point.” Counsel also felt that while he would “like to separate out common design or plan,” this also would be ineffective. The ultimate instructions were not so tailored (fn. 2, ante), and Tatmon does not cite any request for tailoring or claim error in that regard.
Tatmon’s appeal arguments essentially track those made below, but we are not persuaded that there was abuse of discretion or due process error. First, while he argues that each of the several purposes for which the evidence was admitted was erroneous, we find it sufficient to explore and uphold the ruling based solely on the intent for burglary. This was the principal reason cited by the court, and as we have observed in a footnote, the ideas explored below about possibly limiting the admission to burglary or purposes other than intent were evidently not pursued, apparently for tactical reasons. Tatmon raises no issues in that regard (see fn. 3, ante).
The burglary required that Tatmon have the requisite felonious intent at the time he entered the building (People v. Hughes (2002) 27 Cal.4th 287, 353), which in this case was a commercial establishment generally open to the public and into which Tatmon was permitted entrance for the asserted reason that he was looking for something to buy there. Given the lack of forced entry and a facially valid reason for entering the studio, a clear question for the jury was whether he formed felonious intent before or after entering, and this would have to be proved beyond a reasonable doubt. Tatmon offers no authority here, and offered none below, for trial counsel’s proposition that he could remove the burglary intent-timing issue by entering a “conditional plea” of guilty that depended on conviction of other offenses. Likewise, trial counsel’s announced intention not to dispute the intent element before the jury was inadequate. “Jurors are our peers; if we tell them—as we do—that the prosecution has to prove four things, and the prosecution subsequently proves only three, they will notice. They will notice whether the point is argued or not. A suggestion that something will not be argued is therefore at best inadequate and at worst disingenuous. It is certainly of less weight than an offer to stipulate.” (People v. Thornton (2000) 85 Cal.App.4th 44, 49.) The defense did not offer to stipulate the element and, it appears, chose strategically not to weaken its “mistaken identity” defense with such an argument. (See also People v. Sakarias (2000) 22 Cal.4th 596, 629 [generally, the prosecution cannot be compelled to accept a stipulation if the effect would be to deprive the state’s case of its persuasiveness and forcefulness].)
Were the similarities enough to uphold the ruling? Yes. Tatmon argues that each similarity—notably using a ruse, using a knife, approaching from behind, choking the victim—is not uncommon or distinctive. There were many more details and similarities, however, and the court properly assessed their cumulative effect in its ruling. Tatmon’s arguments would have greater force had the evidence been admitted under the distinctive “ ‘signature’ ” standard for identity (People v. Ewoldt (1994) 7 Cal.4th 380, 403), but that was not a basis for admission. Admission for intent requires the least amount of similarity (id. at p. 402), and the abundant similarities here met the standard that they show a probable same intent (ibid.).
The ruling on probative value versus prejudice is also sound, first because of the high probative value flowing from the similarities. Tatmon cites a child-sexual-molest case where our high court wrote: “Evidence of intent is relevant to establish that, assuming the defendant committed the alleged conduct, he or she harbored the requisite intent. In testifying regarding the charges of lewd conduct, Jennifer stated that defendant repeatedly molested her, fondling her breasts and genitals and forcing her to touch his penis. If defendant engaged in this conduct, his intent in doing so could not reasonably be disputed. [Citations.] As to these charges, the prejudicial effect of admitting evidence of similar uncharged acts, therefore, would outweigh the probative value of such evidence to prove intent.” (People v. Ewoldt, supra, 7 Cal.4th at p. 406, fn. omitted.) He also cites the companion case, a forced-sex-act prosecution where the court wrote: “[B]ecause the victim’s testimony that defendant placed a gun to her head, if believed, constitutes compelling evidence of defendant’s intent, evidence of defendant’s uncharged similar offenses would be merely cumulative on this issue.” (People v. Balcom (1994) 7 Cal.4th 414, 423.) The case here is far different, for there was nothing so obvious going on at the determinative moment when Tatmon entered the pottery studio. He was being let into the studio willingly and for an ostensibly innocent business purpose, and he did not begin his assaultive behavior until some time later.
Tatmon stresses the dissimilarity that D.M. was sexually assaulted whereas Doe was not, but the trial court expressly considered that difference. Given the many similarities in the false imprisonment and robbery that preceded the sexual assault of D.M., this was not crucial, especially since the assailant here did order Doe to undress before apparently changing his mind and just tying her up, strongly suggesting a planned sexual assault. The trial court was then careful to avoid prejudice to Tatmon by forbidding reference to the sexual assault on D.M. There is no merit, and much gall, to Tatmon’s complaint now that the court, by excluding the sexual evidence, “ma[de] it seem more similar” than it was. Also, jurors did not consider this evidence for purposes of identity, where signature similarity would have been important.
Error is not shown in the admission of the evidence.
II. Prosecutor Misconduct
Tatmon claims three varieties of prosecutor misconduct—(a) insinuating other crimes in opening statement, (b) eliciting irrelevant and inflammatory testimony from D.M., and (c) using that testimony and making propensity insinuations in closing argument. We find no prejudicial error.
A. Insinuating other crimes.
The prosecutor’s opening statement prompted a defense objection and, afterward, an assertion of misconduct, and a motion for mistrial or curative admonition that was heard and denied outside the jury’s presence. The issue was prosecutor Brian Owens telling jurors that, to help prove burglary intent, he would be putting on evidence of “one,” “[o]nly one,” or “just this one” prior similar incident.
Owens began his opening statement by stating the four counts and reciting at length the expected evidence and witnesses for them, including the DNA evidence and experts, the glasses, and Doe’s identifications then and again at the preliminary hearing. Lastly, he introduced the prior incident this way (parts later objected to italicized): “The one sort of thing that remains in terms of me having to prove this case is why did he go in the building? Because for burglary, you have to show that somebody went into a building in part to commit a felony or commit theft. What the evidence shows is he goes in the building to look at Jamaican pottery. That’s what he tells the victim, right? On that evidence, I might have a difficult time proving to you he, actually, went into the building to tie the victim up to commit a robbery. And to help prove that to you, the Court, in its discretion, has allowed me to introduce one prior incident by this Defendant. Only one. And I can only talk about it in a very limited way. And the reason why this particular prior incident that the Defendant has committed is being introduced is it’s so similar to our case.”
Owens then outlined that incident in some detail, using diagrams and stressing at various points how similar its various features were to the current incident. Owens also stressed, at the onset and close of that description, that Tatmon had been charged, tried by a jury, and found guilty, so that “justice” had been served in that case; this was evidently to minimize prejudice from risk that jurors unaware of a defendant’s prior conviction for an offense might be “inclined to punish” him for it now (People v. Ewoldt, supra, 7 Cal.4th at p. 405; Evid. Code, § 352).
Owens then closed his statements this way (objected-to parts again italicized): “Now, as I mentioned to you, I’m only able to talk about just this one incident and only in a very limited way in terms of, uh, being able to hear the victim, and that is to show that in this case that you’re sitting on right here, he didn’t go in to look at Jamaican pottery. He went in to rob and terrorize a woman just as he had done before. [¶] And this Defendant does not discriminate against his victims. The victim our case is a 62-year-old white woman. The victim in the case in Contra Costa County is a 54-year-old African-American. This Defendant terrorizes women and doesn’t discriminate based on race. And I hope that just with this current incident you’re going to hear about, and this one incident from the past you’re going to hear about, that you will see that this is a very violent, dangerous man. [¶] And it is important, once you hear all this evidence and you’re instructed on the law, that you will see that the law, when applied to the facts, will prove his guilt beyond a reasonable doubt. . . .”
Defense counsel Drew Steckler asked to approach the bench and objected, as memorialized after his own opening statement. Steckler complained that Owens had said “twice[,] and forcefully the second time, I’m only able to talk about just this one incident, he says, in referring to the [D.M. Evidence Code section] 1101 case, and then he goes on to say and only in a very limited way. Those are two separate violations . . . . [¶] . . . [T]he import of what he’s saying to the jury is, there’s this wealth of other incidents out there that he can’t cite to. Why else say that? If I’m a juror listening to that, in my mind, well, he’s only citing one because the Judge has kept [out] four others or two others or seven others. Why else would he be saying that? [¶] So based on that, I’m moving for a mistrial [or curative admonition].” Steckler clarified later that he did not “attribute any sinister motives” to Owens but worried about the jury’s perception of the remarks.
Owens denied meaning to imply other crimes. Rather: “What I was trying to say to the jury, you’re only going to hear about one other incident. I wanted in my opening to tell them what they’re going to hear about. In addition to this case, they’re going to hear about one other incident in a limited way, which is the victim testifying. That’s what I meant by ‘limited way.’ I didn’t mean I’m somehow being restricted. [¶] I mean, I’m proving that up with the victim’s testimony. I’m not bringing in the officers; I’m not bringing in lineups; I’m not bringing in videotapes. That’s what I mean about ‘limited.’ I was simply saying they are going to hear about one other incident, and that’s all. By ‘that’s all,’ I meant to focus them in on what they’re going to hear about, not say, oh, there’s more out there. That wasn’t my intent at all. I hope that’s not how it came across.”
The court examined the transcript, noting the accuracy of Steckler’s summary and agreeing with the defense that there was no sinister motive. Then, clarifying that it was “not ruling on motivation,” the court denied both mistrial and admonition, saying it found “no reference in the language to indicate that there are other incidents other than what I’ve allowed in . . . .”
Tatmon’s appellate complaints mirror those he made below and seem to add a complaint of improper propensity argument where Owens invited jurors to “see,” from both events, that Tatmon was “a very violent, dangerous man.” The latter objection, however, was never voiced at that point below and is thus forfeited. (People v. Jablonski (2006) 37 Cal.4th 774, 835.) Any ambiguity in the remark was also clarified multiple times thereafter by the court’s use instructions (fn. 2, ante).
As for insinuating further offenses, it is difficult, without the benefit of being present and hearing the prosecutor’s vocal inflections, to take Tatmon’s view of the remarks. We could agree, based on the cold transcript, that the reference, most notably, to “[o]nly one” prior incident could insinuate the existence of more than one. On the other hand, the trial court, which heard and witnessed the statements, reviewed the transcript, and heard the prosecutor’s explanation of what he intended, was satisfied that no such insinuation was made. “Only one” is the most difficult remark to justify on a cold record, yet in the context of having just gone in detail into many witnesses and other sources of evidence for the current charges, the prosecutor could have been reacting to a sense, or even a look from a juror, that the prospect of hearing about a prior incident as well would be unwelcome. “Only one,” in other words, would have been an assurance of brevity, and this comports with the prosecutor’s explanation that he was just trying to outline the evidence and tell jurors they were “going to hear about one incident, and that’s all,” to assist in proving burglary intent. Tatmon has an appellate burden to show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner (People v. Jablonski, supra, 37 Cal.4th at p. 835), and “ ‘[i]n conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements’ ” (People v. Brown (2003) 31 Cal.4th 518, 553-554, quoting People v. Frye (1998) 18 Cal.4th 894, 970). We cannot say, on this record, that he has met that burden.
We are also unpersuaded that prosecutor Owens’s comments about the “limited” use of that evidence likely connoted that he was being restrained by the court from revealing other such incidents. Owens explained to jurors, plainly and properly, that the prior event was being presented to show, from similarities, a similar intent in the charged offenses. Jurors undoubtedly construed the “limited” language in that sense, a sense that would be driven home repeatedly in instructions from the court that used the very term “limited purpose” (see fn. 2, ante).
Misconduct in opening statement is not shown.
B. Eliciting irrelevant and inflammatory testimony.
Owens began his direct examination of D.M. by establishing where, in what capacity, and with what duties she was employed at the time of the 1991 assault. D.M. answered, among other things, that she was Executive Director for Community Safety Project for East Contra Costa County, that she “wore a second hat as Director for the CAP, Child Assault Prevention,” also for East Contra Costa County, and that she had responsibility for implementing six programs for the Community Safety Project. Asked what those programs were, D.M. named some, including the CAP program, which had 17 facilitators in the schools “to teach kids how to be safe and how to respond if anything negative happened to them.” When Owens next asked, “What other programs were you responsible for in that capacity?” Steckler objected, “Relevance, Your Honor,” and the court overruled the objection. D.M. continued for one page of the transcript, describing having written a police training manual for a program called My Safe Haven, for children who were abused, molested, abandoned, or “in any dire distress” situation. There was no further objection at that point, but the court said, “I think we can move on,” whereupon Owens asked D.M. about the buildings where she worked.
Tatmon claims Owens elicited D.M.’s work for children in order to create favor for the witness and inflame the jury against himself. The problem at the outset, however, is that the defense only objected to the questioning as “irrelevant,” not as misconduct, and thus deprived the trial court of the chance to assess the matter in that light and, if need be, give a curative instruction. The court treated the matter purely as a relevance problem. “ ‘[A] defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion’—and on the same ground—‘he made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’ [Citation.]” (People v. Ashmus (1991) 54 Cal.3d 932, 976.) The claim of misconduct is forfeited (People v. Visciotti (1992) 2 Cal.4th 1, 51-52 [relevance objection insufficient to preserve claim of misconduct]), and no abuse of discretion appears in the court’s handling of the relevance objection. The prosecutor had to introduce his witness and describe how and why she came to be where she was when assaulted by Tatmon. The relevance objection came after Owens asked D.M., “What other programs were you responsible for in that capacity?” It was hardly clear that the answer would be irrelevant to setting the scene for the assault, and the court knew from in limine motions that the assault had occurred when Tatmon came to D.M. asking about renting the facilities. Upon hearing an answer that focused on having written a training manual, the court did ask Owens to move on. Thus, no error in the admission of the evidence against a relevance objection appears.
The same procedural defect bars Tatmon’s appeal claim that Owens committed misconduct later by eliciting from D.M. inflammatory information that she had spoken with a psychiatrist after the 1991 assault, in connection with a worker’s compensation matter. Again, the only bases of objection were relevance and undue prejudice, and we cannot say that the court abused its discretion in overruling those objections. D.M. was testifying about being assaulted in one place and then straddled and made to crawl to the desk where her purse was. Owens asked, “What were you thinking as he was making you crawl from your inner office to that outer desk grabbing your hair and having a knife on the right side of your throat?” Steckler objected, “Relevance, Your Honor; 352,” but the court overruled the objection. There was no objection based on misconduct (People v. Visciotti, supra, 2 Cal.4th at pp. 51-52 [relevance objection not sufficient]), much less appealing to jurors’ passions or prejudices (cf. People v. Brown, supra, 31 Cal.4th at p. 554).
Nor was the question irrelevant—i.e., having no “tendency in reason to prove or disprove any disputed fact” of consequence to the action, including the “credibility of a witness” (Evid. Code, § 210). D.M.’s ability to accurately and credibly relate the events was of consequence, and it was not “irrelevant” to ask her state of mind during a peak moment of torment that might have clouded a person’s perceptions.
As for a risk that prejudice would substantially outweigh probative value (Evid. Code, § 352), defense counsel never elaborated on the point, but we cannot see that the court had reason to anticipate undue prejudice. D.M. was hardly a shrinking violet likely to break into hysterical sobs, for example. She had testified that she was a “martial artist” with “a black belt” in tae kwon do who, upon first being ordered by Tatmon to lie on the floor, had sat down instead and looked at him, “lining up a shot to kick him between his legs.” Nor does it seem evident that she would respond by mentioning a psychiatrist or having sought worker’s compensation. She answered first: “What was I thinking? I was trying to figure a way to kill him.” Only then, when asked (without any objection) whether she was “angry at that point,” she said, “The psychiatrist said I had rage, and I was trying to figure a way to kill him.” No further objection came then or when she went on to explain: “After this incident, actually, workers’ comp decided what had happened to me wasn’t enough to disable me, so they, actually, had me go to one, two—two psychiatrists and then to a group, and they all said the same thing.” It is upon those later answers that Tatmon rests his appellate claim of misconduct, but he never objected at all to those matters below. Moreover, her answer itself revealed that multiple evaluations were that she was not disabled by the experience.
Thus no cognizable misconduct or other error is shown in the examination of D.M.
C. Improper jury argument.
Tatmon lastly claims misconduct in the final part of Owens’s rebuttal argument. We recite it in context, italicizing the parts Tatmon stresses.
“[Mr. Owens:] The final point that I want to leave you with is the problems for me, as a DA of a serious case like this, and that is, you see the Defendant here dressed up. There’s a Bailiff behind him. He’s no threat to you. You see him every day. You come into a courthouse where there are metal detectors. You don’t see the person these victims saw. And it’s very difficult for me to try to communicate to you, when all I get to do is put on the victim for as long as her testimony lasts, and then she has to leave, to communicate to you how dangerous a person is and how different he is when he’s outside this building where there isn’t a Bailiff. And he’s a much greater threat to women, because he commits crimes against women.
“And now he takes the stand, you hear about family illnesses, medical problems he may have. That’s done to get you to be sympathetic. When you see somebody every day and you look over there every day, it’s kind of natural to feel that way. But it’s important to remember he is here today because of what he did. If there’s any sympathy in this case, it’s what he did to these victims. [D.M.] was doing great things for her community when he robbed her and tied her up.
“Mr. Steckler: I’m going to object to that as improper argument.
“The Court: Keep in mind arguments are discussion of what the facts appear to show and the law. It’s your decision as to what the final verdicts will be.
“Mr. Owens: You heard her testify. She was Executive Director of
“Mr. Steckler: I’m objecting on relevance. This is improper argument.
“The Court: Overruled.
“Mr. Owens:—the Community Safety Project, the six programs she was running for kids, abused kids, victims of sexual molestation, latchkey program, bread basket, all those great things she was doing for her community. He took that from her. She could never go back to work. She had to see a psychiatrist, and 13 years later, she still got choked up on the stand because of the way he terrorized her.
“When you heard from Jane Doe, talking about wondering if he was going to kill her that day on August 30th, wondering if she was going to die, it’s difficult for me to try to communicate to you what that means for that victim and what she had to go through. When she’s thinking is this the day she’s going to die? Do I never, ever get to say good-bye to my husband and kids? This is what he put the victims through. It’s not about the money. It’s not about the car. It’s about him being able to terrorize a woman like that. That’s what makes this man a predator, and that’s what makes this case so important.”
Claimed misconduct preceding the objection was arguably preserved by Steckler’s objections to “improper argument.” (Cf. People v. Brown, supra, 31 Cal.4th at pp. 552-553; People v. Montiel (1993) 5 Cal.4th 877, 931.) In fairness to the prosecutor and court, however, the objections to “improper argument” and lack of “relevance,” given that each came with no elaboration and right after mention of what community work D.M. was doing at the time of her assault, reasonably connoted only objections to that part of the argument. Tatmon’s added claim now, of improper propensity argument earlier in the argument, would not have been evident from the timing or content of his objections. Nor was there any objection at all later, when Owens returned to the subject of Tatmon’s dangerousness and called him a predator. The claim of improper propensity argument is therefore forfeited. (People v. Jablonski, supra, 37 Cal.4th 774, 835 [propensity argument claim waived by failure to object].)
Even if not forfeited, however, the references were brief and mixed with proper argument, as fair comment on the evidence, that the charged offense against Doe showed him to be dangerous and apt to reoffend. (People v. Brown, supra, 31 Cal.4th at pp. 553-554; People v. Escarcega (1969) 273 Cal.App.2d 853, 862-863.) Owens’s transgression, if any, was in aggregating the assaults against both women, when the 1991 assault could be used, not to show propensity, but only to show intent in the charged offenses. That transgression was very brief, however, and was followed by instructions that clearly drew that distinction (fn. 2, ante), as had the prosecutor’s own earlier arguments. Finally, the court later admonished (from CALJIC No. 1.00), “[i]f anything concerning the law said by the attorneys in their arguments or at any time during the trial conflicts with my instruction on the law, you must follow my instructions,” and that instruction was presumably followed by the jury (People v. Gray (2005) 37 Cal.4th 168, 217).
Returning to the objection to the prosecutor’s mention of D.M.’s community service work and traumatization, the argument was proper to the extent that it stressed a standard instruction that jurors should not be influenced by sympathy for the defendant (CALJIC No. 1.00). To the extent that the remarks may have been calculated to inflame jurors’ passions, they were a very brief part of a long argument, and “it cannot be said that it is reasonably probable that a different result would have been reached” absent them (People v. Simington (1993) 19 Cal.App.4th 1374, 1379) or that the remarks were “systematic and pervasive” so as to render the trial fundamentally unfair and violate due process (People v. Espinoza (1992) 3 Cal.4th 806, 820; see also Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643). Any misconduct was harmless.
III. Guilt-Inference Instruction
The court instructed jurors, in the language of CALJIC No. 2.03: “If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crimes for which he is now being tried, you my consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.” Tatmon does not dispute the evidentiary support for this instruction but contends that it violated his due process rights as an improper “pinpoint” instruction that highlighted particular evidence, rather than a legal theory, in violation of People v. Wright (1988) 45 Cal.3d 1126 (Wright). His failure to object to the instruction below does not bar a claim now that it affected his substantial rights (§ 1259; People v. Dunkle (2005) 36 Cal.4th 861, 929; People v. Prieto (2003) 30 Cal.4th 226, 247), but we find ourselves bound by stare decisis to reject it, and disinclined to accept Tatmon’s invitation to publish a dissertation criticizing binding authority.
This instruction has been repeatedly upheld by our high court against due process challenges that it invites juries to draw unreasonable or impermissible inferences (People v. Jurado (2006) 38 Cal.4th 72, 125-126; People v. Schmeck (2005) 37 Cal.4th 240, 291; People v. Ray (1996) 13 Cal.4th 313, 345-346; People v. Breaux (1991) 1 Cal.4th 281, 304; People v. Ashmus (1991) 54 Cal.3d 932, 977; People v. Crandell (1988) 46 Cal.3d 833, 871), dilutes the prosecution’s burden of proof (People v. Jurado, at pp. 126-127; People v. Jackson (1996) 13 Cal.4th 1164, 1223-1224), or is argumentative or biased in the prosecution’s favor (People v. Stitely (2005) 35 Cal.4th 514, 555; People v. Kelly (1991) 1 Cal.4th 495, 531-532).
Nor, the court has often held, does the instruction contravene Wright’s teaching on pinpoint instructions. “[W]e disapproved as ‘argumentative’ the instruction requested by the defendant in Wright, which would have instructed the jury to ‘consider’ various pieces of evidence, such as the fact that all the robbers wore ski masks, in assessing the defendant’s guilt. [Citation.] [¶] In the present case, each of the four [challenged] instructions made clear to the jury that certain types of deceptive or evasive behavior on a defendant’s part could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendant’s guilt, and allowing the jury to determine the weight and significance assigned to such behavior. The cautionary nature of the instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. [Citations.] We therefore conclude that these consciousness-of-guilt instructions did not improperly endorse the prosecution’s theory or lessen its burden of proof.” (People v. Jackson, supra, 13 Cal.4th at pp. 1223-1224.) “CALJIC No. 2.03 . . . does not merely pinpoint evidence the jury may consider. . . . If the court tells the jury that certain evidence is not alone sufficient to convict, it must necessarily inform the jury, either expressly or impliedly, that it may at least consider the evidence. Nothing in Wright affects such an instruction.” (People v. Kelly, supra, 1 Cal.4th at pp. 531-532.) It is not an improper pinpoint instruction (People v. Boyette (2002) 29 Cal.4th 381, 438-439; People v. Arias (1996) 13 Cal.4th 92, 142), and we are bound by that authority (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455).
In an effort to pump new life into his argument, Tatmon stresses language from an old self-defense instruction case, that “[t]here should be absolute impartiality as between the People and the defendant in the matter of instructions, including the phraseology employed in the statement of familiar principles.” (People v. Moore (1954) 43 Cal.2d 517, 526-527.) Tatmon deems it “anomalous and unfair” that our high court finds the assertedly prosecution-slanted CALJIC No. 2.03 to be proper while denying defendants pinpoint instruction highlighting facts favorable to their defenses. He complains that the standard instruction “told the jury what to do if it found appellant had lied to police” but “did not tell the jury what to do if it found that the police had lied to appellant.”
We are not swayed by that argument. CALJIC No. 2.03 deals with the effect of a defendant’s lies on the People’s burden of proof, “highlighting” such evidence in a sense, but only to caution that such lies (if any) may tend to support a consciousness of guilt and cannot alone satisfy the People’s burden. A corollary “defense-slanted” charge might stress police lies but could not address burden of proof. No officer was charged here, and Tatmon does not explain how any police lies to him would tend to prove or disprove any element of a charge against himself. Instructions that Tatmon ignores dealt with witness credibility generally and were presumably applied by jurors to any lies that they thought a police officer had told. (CALJIC Nos. 2.20 [witness credibility], 2.21.1 [discrepancies in testimony] and 2.21.2 [witness willfully false].) Also, we are left with our high court’s sweepingly inclusive statement, as to CALJIC No. 2.03 and its kin, that “[n]othing in Wright affects such an instruction.” (People v. Kelly, supra, 1 Cal.4th at pp. 531-532; People v. Boyette, supra, 29 Cal.4th at pp. 438-439.) Tatmon must address his claim to that court. Error is not shown.
IV. Reasonable-Doubt Instruction
The burden of proof instructions included this definition of “reasonable doubt,” from CALJIC No. 2.90: “It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.” This is a version modified precisely as directed by our state high court in People v. Freeman (1994) 8 Cal.4th 450, 504 and footnote 9 (Freeman), after federal high court criticism in Victor v. Nebraska (1994) 511 U.S. 1, of former language that had utilized the arcane terms moral evidence and moral certainty.
A. Due process
Tatmon claims the instruction denied him federal due process because use of the term abiding conviction “without the qualifying phrase, ‘to a moral certainty,’ incorrectly state[d] the reasonable doubt standard,” connoting only an unchanging strong belief, a standard more akin to clear and convincing proof. We disagree and have said why in an opinion ignored by Tatmon. Following unbroken authority from our own court and deeming our Supreme Court’s pronouncements to be highly persuasive dictum, we held: “As for ‘abiding conviction’ connoting duration but not the degree of conviction, defendant unduly isolates ‘abiding.’ ‘Abiding’ may commonly mean lasting or enduring, without specifying degree, but here it modified the word ‘conviction,’ and jurors were told this meant being convinced beyond a reasonable doubt—meaning something more than a ‘possible or imaginary’ doubt. Freeman implicitly holds this is sufficient.” (People v. Haynes (1998) 61 Cal.App.4th 1282, 1299-1300.) Here, as in Haynes, cases cited to us that have “treat[ed] the term ‘abiding conviction’ as a clear-and-convincing standard” were never conveyed to jurors, who presumably followed only the instructions given them. (Id. at pp. 1299-1300.) No due process error appears.
B. Equal Protection
Tatmon also claims that the instruction denied him equal protection because “it provided no adequate and uniform standard for determining the level of certainty to which the jury must be persuaded . . . , and individual jurors were free to apply different standards.” We again disagree.
This is not the usual equal protection claim that a law treats similarly situated persons in an unequal manner without a compelling or rational basis to justify it. (Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 913.) Indeed, that argument would fail at the outset because, first, a CALJIC instruction does not have force of law (People v. Brown (2004) 33 Cal.4th 382, 392), and second, all criminal defendants in California receive this or a nearly identical standard instruction (CALCRIM No. 220), thus barring Tatmon from showing that similarly situated groups are treated differently (cf. People v. Andrews (1989) 49 Cal.3d 200, 223). Tatmon does not even present us with an instruction of his own making that would satisfy him.
Rather, Tatmon relies on Bush v. Gore (2000) 531 U.S. 98, in which a majority found that a court-ordered manual recount of punch card ballots in search of the “ ‘intent of the voter’ ” (id. at pp. 105-106) was, absent specific standards to implement the task, a violation of federal equal protection (id. at pp. 106-110). The case did not involve jury instructions, and Tatmon’s attempt to apply the holding to “standardless” instructions on “beyond a reasonable doubt” fails for several reasons. First, the high court has held that a constitutionally adequate charge on the reasonable doubt standard does not require any particular form of words at all and, indeed, that no elaboration at all is constitutionally compelled (Victor v. Nebraska (1994) 511 U.S. 1, 5). Second, that same court held that archaic moral-certainty and moral-evidence language of former CALJIC No. 2.90 did not render the instruction unconstitutional in light of the entire charge (id. at pp. 10-17), and all the revised instruction has done is to eliminate the archaic language. Third, cases from our own court, including our division, have long held that the revised instruction conveys an adequate standard (People v. Light (1996) 44 Cal.App.4th 879, 884; People v. Hurtado (1996) 47 Cal.App.4th 805, 815-816; People v. Haynes, supra, 61 Cal.App.4th 1282, 1298-1299; see also Lisenbee v. Henry (9th Cir. 1999) 166 F.3d 997, 999-1000). Thus, and since Tatmon points to nothing different in this case as to any related instructions on probable cause, his effort to redress his claim in equal protection garb has no substance. Error is not shown.
Tatmon asserts, quoting from Bush v. Gore, supra, 531 U.S. at page 125 (dis. opn. of Stevens, J.): “In dissent, Justice Stevens argued that the majority’s decision raises significant equal protection issues in other areas, specifically including the reasonable doubt standard in criminal cases, because ‘there is no reason to think that the guidance provided to the factfinders, specifically the various canvassing boards, by the “intent of the voter” standard is any less sufficient—or will lead to results any less uniform—than, for example, the “beyond a reasonable doubt” standard employed every day by ordinary citizens in courtrooms across this country.’ ” The quote is accurate, as far as it goes, but Tatmon’s claim of “significant equal protection issues,” in areas like the reasonable-doubt case law, is not. Justice Stevens’s point was that the majority was finding an equal protection problem where none existed, and his reference to reasonable doubt was to make that very point. In a footnote ignored by Tatmon (id. at p. 125, fn. 3), Justice Stevens added: “Cf. Victor v. Nebraska, [supra,] 511 U.S. 1, 5 . . . (‘The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so’).” Thus, the minority opinion endorsed, rather than cast doubt on, the instruction precedent.
Disposition
The judgment is affirmed.
We concur: Haerle, J. Richman, J.
The court instructed more fully, in the pertinent language of CALJIC No. 2.50, at the end of D.M.’s testimony: “Evidence has been introduced for the purpose of showing the Defendant committed crimes other than that for which he is on trial. Except as you will otherwise be instructed, this evidence, if believed, may not be considered by you to prove that Defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show a characteristic method, plan, or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offenses in this case, which would further tend to show the existence of the intent, which is a necessary element of the crime charged, or a motive for the commission of the crime charged. [¶] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in this case. You are not permitted to consider such evidence for any other purpose.”
The court’s final oral and written instructions repeated CALJIC No. 2.50, adding that other crimes had to be proved by a preponderance of the evidence before being considered but that this did not alter the ultimate duty to find defendant guilty beyond a reasonable doubt (CALJIC No. 2.50.1). As to motive, the court clarified (CALJIC No. 2.51): “Motive is not an element of the . . . crimes charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the Defendant is guilty. Absence of motive may tend to show the Defendant is not guilty.”