Opinion
A130609
01-20-2012
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL TORRES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. Nos. VCR204963, VCR196764)
A jury convicted defendant of sexual penetration by a foreign object of an unconscious victim, and sexual penetration by a foreign object of a drugged victim in connection with an assault on his friend's girlfriend while she slept after she received pain medication at a hospital. We reject defendant's arguments that (1) the trial court erred by barring the admission of certain impeachment evidence regarding the victim, (2) the prosecutor committed misconduct during argument to the jury, and (3) the jury should have been instructed on the elements of sexual battery and/or battery as lesser included offenses. We agree, however, that only one of defendant's sexual penetration convictions can stand, because both counts against him were different statements of the same offense. We will modify the judgment to strike the second sexual penetration conviction, but otherwise affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
On September 25, 2009, the victim went to the emergency room of a hospital in Vallejo because of a flare-up of an incurable, chronic condition from which she suffers. She was given a medication intravenously for pain control that makes her "very drowsy" and "very sleepy." Defendant, a family friend of the victim's boyfriend who had known the victim for a few months, showed up at the hospital to provide support while the victim waited to be admitted to the hospital, even though the victim had told him that it was unnecessary for him to be there. The victim's boyfriend left around midnight to be with his and the victim's children, and defendant stayed with the victim.
The victim was admitted to the hospital, and defendant was with her when she was transferred, on a hospital bed, from the emergency room to her own private room. A nurse administered another intravenous dose of the medication that made the victim drowsy. The nurse left the room, the victim started to feel "really sleepy," and she fell asleep. She woke up when she felt defendant's finger in her vagina. Her gown was open, her bra was unhooked, and her underwear and pants had been pulled down.
Defendant was charged by amended information with sexual penetration by a foreign object of an unconscious victim (Pen. Code, § 289, subd. (d) —count 1) and sexual penetration by a foreign object of a drugged victim (§ 289, subd. (e)—count 2). The information further alleged that defendant had suffered two prior strikes. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
All statutory references are to the Penal Code unless otherwise indicated.
A jury convicted defendant as charged, and found the prior conviction allegations true following a bifurcated trial. As discussed in greater detail below, defendant filed a motion for a new trial, which the trial court denied after a hearing. The court sentenced defendant to 25 years to life on count 1, and stayed a 25-years-to-life sentence on count 2, pursuant to section 654. This timely appeal followed.
Defendant focuses almost exclusively in this appeal on his sexual penetration convictions that were the subject of case No. VCR204963. Defendant also appealed in case No. VCR196764, where he pleaded no contest to committing a lewd act upon a child (§ 288, subd. (a)) and was placed on probation, then was later accused of violating the terms of his probation by committing sexual penetration. The trial court revoked defendant's probation, and imposed a consecutive two-year term for the lewd act count when it sentenced defendant on the sexual penetration convictions. Defendant does not raise any specific claim of error in case No. VCR196764.
II.
DISCUSSION
A. Two Sexual Penetration Convictions Based on Single Act.
In a supplemental opening brief, defendant argues that he was improperly convicted of both sexual penetration of an unconscious person (§ 289, subd. (d)) and sexual penetration of an intoxicated person (§ 289, subd. (e)), because both convictions were based on a single act of digital penetration. Because the two counts against defendant described two different ways of committing the same offense of sexual penetration, we agree, and reverse defendant's conviction for sexual penetration of an intoxicated person (count 2).
Section 954 provides, in relevant part: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense . . . under separate counts . . . . The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged . . . ." (Italics added.) The statute "permits the charging of the same offense on alternative legal theories, so that a prosecutor in doubt need not decide at the outset what particular crime can be proved by evidence not yet presented. [Citation.]" (People v. Ryan (2006) 138 Cal.App.4th 360, 368 (Ryan).)There is no dispute here that defendant was properly charged with both sexual penetration of an unconscious person and sexual penetration of an intoxicated person. The question presented is whether the two counts against him were simply different statements of the same offense (§ 954), thereby precluding multiple convictions.
The California Supreme Court addressed this issue more than 70 years ago in People v. Craig (1941) 17 Cal.2d 453, where defendant was convicted of both forcible rape and statutory rape, based on a single act of sexual intercourse with a female under the age of 18. (Id. at pp. 454-455.) The court acknowledged that section 954 permits a statement of the " 'same offense' " in separate counts, such that a defendant could be accused of (as opposed to convicted of) committing the same offense in two different ways. (Craig at p. 456.) However, the court held that "only one punishable offense of rape results from a single act of intercourse, though it may be chargeable in separate counts when accomplished under the varying circumstances specified in the subdivisions of section 261 of the Penal Code." (Id. at p. 458.) The Craig court consolidated the judgments against defendant, stating that the counts against him as charged in the information were "separate statements of the same offense." (Id. at p. 459.)
Relying on Craig, the Third District struck a conviction for rape of an unconscious woman (§ 261, subd. (a)(4)), where defendant also had been convicted of rape of an intoxicated woman (§ 261, subd. (a)(3)) based on the same act of sexual intercourse, concluding that " 'only one punishable offense of rape results from a single act of intercourse . . . .' " (People v. Smith (2010) 191 Cal.App.4th 199, 200, 205 (Smith), quoting People v. Craig, supra, 17 Cal.2d at p. 458.) We agree with defendant that there is no meaningful distinction between his two convictions of sexual penetration and defendant's two convictions of rape in Smith. In both cases, the defendant suffered two convictions based on the same act against the same victim, and the charges were simply different statements of the same offense accomplished in multiple circumstances specified in the applicable statutes. (Smith, supra, 191 Cal.App.4th at p. 205; see also 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 28, p. 234 ["Where the single act affects only one victim, and violates only one statute creating a certain type of offense, it cannot be transformed into a number of crimes by separately charging violations of different parts of the statute defining the circumstances under which the offense might be committed"].)
Although the Attorney General has conceded error under similar circumstances in at least two other cases, respondent does not do so here. Respondent relies on the well-settled rule that a defendant may be convicted of (although not punished for (§ 654)), any number of "offenses" or "crimes" arising out of a single act or course of conduct, so long as none of the convictions are based on necessarily included offenses. While that is of course the rule in California, cases upon which respondent relies did not address the issue presented here—whether defendant was indeed charged with separate "offenses" or "crimes," or was instead (as defendant claims) charged with committing the same offense in two different ways. For example, in People v. Reed (2006) 38 Cal.4th 1224, defendant was charged with, and convicted of, (1) being a felon in possession of a firearm, (2) carrying a concealed firearm, and (3) carrying a loaded firearm while in a public place, based on defendant's possession of a single automatic pistol on a single occasion. (Id. at p. 1226.) In upholding defendant's convictions, the court stated that "[t]he Legislature has made clear that a defendant may be convicted of more than one offense even if they arise out of the same act or course of conduct. (§ 954.) We see no reason to prohibit multiple convictions that section 954 permits simply because of the way the offenses are charged." (Id. at p. 1230, italics added.)
In People v. Coyle (2009) 178 Cal.App.4th 209, defendant killed a single victim and was convicted of (1) murder with a true finding of the special circumstance that the murder was committed during the commission or attempted commission of a burglary, (2) murder with a true finding of the special circumstance that the murder was committed during the commission or attempted commission of a robbery, and (2) second degree murder. (Id. at p. 211.) The court accepted respondent's concession that defendant was improperly convicted of three separate counts of murder, because the three counts "simply alleged alternative theories of the offense." (Id. at p. 217.) The only dispute was over whether the appropriate remedy for the error was to consolidate the judgment to reflect one count of murder with two special circumstances. (Id. at p. 217.) Similarly, the Attorney General conceded error where defendant was convicted of rape of an unconscious woman and rape of an intoxicated woman based on a single act of sexual intercourse in People v. Martinez (July 20, 2011, C064802 [nonpub. opn.]), of which we take judicial notice. (In re Luke L. (1996) 44 Cal.App.4th 670, 674, fn. 3 [judicial notice of nonpublished opinion pursuant to Evid. Code, § 451, subd. (a)].)
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).)
Respondent argues that defendant's convictions here do "not run afoul" of Reed. However, Reed did not analyze whether the defendant had been convicted of committing the same offense in multiple ways. Indeed, defendant in Reed was charged with violating three separate statutes, described by the court as "three separate weapons offenses." (People v. Reed, supra, 38 Cal.4th at p. 1230.) The specific question to be decided in Reed was whether defendant's multiple convictions were improper because they were necessarily included offenses under the so-called " 'accusatory pleading' test." (Id. at pp. 1227-1230 [accusatory pleading test does not apply in deciding whether multiple convictions of charged, as opposed to uncharged, crimes are permissible].) That is not an issue in this case, as defendant does not claim that either charged offense here was a lesser included offense of the other under either the accusatory pleading test or the so-called "elements" test.
Respondent also relies on People v. Pearson (1986) 42 Cal.3d 351, which likewise is distinguishable. In Pearson, defendant was convicted of sodomy with a child under 14 and lewd conduct (in violation of two separate statutes) for committing a single act of sodomy. (Id. at pp. 353-354.) The court rejected the concept of barring multiple punishments based on whether one was a " 'specifically included offense' " within the other. (Id. at pp. 357-358.)
Respondent further argues that Smith's reliance on Craig was misplaced, because Craig was "predominantly focused" on prohibiting double punishments under section 654, as opposed to multiple convictions. We acknowledge that some courts have relied on Craig as authority for the rule, summarized above, that a defendant may be convicted of, although not punished for, separate crimes arising out of the same act. (E.g., People v. Tideman (1962) 57 Cal.2d 574, 586, fn. 11 [Craig protects defendants from multiple punishments, and not convictions, for different offenses arising out of a single act]; People v. Smith (1950) 36 Cal.2d 444, 448 [citing Craig for proposition that § 654 prohibits double punishment, but not multiple convictions, for the commission of a single act]; People v. Lofink (1988) 206 Cal.App.3d 161, 167, fn. 6 [Craig focused on whether defendant had suffered multiple punishments for rape and not multiple convictions]; cf. People v. Scott (1966) 247 Cal.App.2d 371, 377-378 [interpreting Craig as having reversed conviction, as opposed to staying separate punishment under § 654].)
Again, however, in the foregoing cases the courts were not confronted with a situation where, as here, a defendant was convicted of committing the same crime in different ways. As the court observed in Ryan, supra, 138 Cal.App.4th at pages 368-369: "In the foregoing cases (and other similar authorities), while the defendant may have committed a single act or course of conduct, he or she was charged with, and convicted of, violations of separate statutes." (Original italics; e.g., People v. Tideman, supra, 57 Cal.2d at pp. 576-577 [defendant accused of both murder and illegal abortion against same victim]; People v. Smith, supra, 36 Cal.2d at p. 445 [prison inmates guilty of both murder and assault on another prisoner]; People v. Lofink, supra, 206 Cal.App.3d at pp. 163-164, 166 [although court described charges as " 'different statements of the same offense' " (§ 954), defendant guilty under separate statutes of both inflicting corporal punishment on a child resulting in traumatic conditions (§ 273d) and willful cruelty toward a child under circumstances likely to cause great bodily harm and death (§ 273a, former subd. (1))].) In other words, these cases arose in situations where defendants had committed separate offenses under different statutes, so their holdings were not inconsistent with Craig.
In connection with a single automobile crash that killed a single victim, defendant in In re Pope (2010) 50 Cal.4th 777 pleaded guilty to one count of driving under the influence of alcohol or drugs, causing injury (Veh. Code, § 23153, subd. (a)), and one count of driving with an unlawful blood-alcohol level, causing injury (Veh. Code, § 23153, subd. (b))—violations of different subdivisions of the same statute prohibiting driving under the influence. (Pope at p. 780.) He thus arguably was convicted of committing the same offense in multiple ways in connection with the same course of conduct, in violation of Craig. However, defendant did not make such an argument in Pope. Instead, he claimed that he was not subject to the limitations on the credit he could earn against his term pursuant to section 2933.1, subdivision (a). (Pope at pp. 779-780; American Federation of Labor v. Unemployment Ins. Appeals Bd. (1996) 13 Cal.4th 1017, 1039 [" 'cases are not authority for propositions not considered' "].) Our Supreme Court apparently has not cited Craig in more than 40 years. (In re Hayes (1969) 70 Cal.2d 604, 606.)
By contrast, Ryan, supra, 138 Cal.App.4th 360 considered a situation where defendant was convicted of committing the same offense in two different ways. The court held that defendant could not be convicted of two counts of forgery based on signing her name to, and attempting to use, the same check, where both counts were based on different subdivisions of the same statute prohibiting forgery (forgery by signing another's name, § 470, subd. (a), and forgery by making or passing a forged check, § 470, subd. (d)). (Ryan, supra, 138 Cal.App.4th at pp. 363-364, 368-369.) Whereas section 954 permits multiple convictions where a defendant violates separate statutes based on a single criminal act, a defendant may not suffer multiple convictions by "simply commit[ing] acts contained in separate subdivisions of a single statute, all of which [a]re simply different ways of violating that statute." (Ryan at pp. 368-369.) Such is the case here. Defendant committed acts contained in separate subdivisions of section 289, both of which were simply different ways of committing the single crime of sexual penetration. We therefore modify the judgment to strike the second sexual penetration conviction.
B. No Error to Exclude Impeachment Evidence.
1. Background
Before trial, defendant submitted a proposed witness list naming one Fairfield police officer and two Vacaville police officers, who were to testify for impeachment purposes about two separate incidents of prior bad acts involving the victim. One incident involved a report of domestic violence (hitting her husband several times in 2003), for which the victim was not prosecuted. The other incident involved a report in 2005 of child endangerment, in connection with the victim exposing her child to squalid conditions inside her apartment. The victim was charged with a violation of section 273a, subdivision (a) (child endangerment); however, the case was dismissed. The People filed a motion in limine to preclude defendant's counsel from asking the victim any questions regarding alleged prior bad acts.
As for the report of domestic violence by the victim, the prosecutor acknowledged that a felony violation of section 273.5, subdivision (a) (corporal injury to spouse) was a crime of moral turpitude, but argued that it was unclear whether the victim actually committed that crime because charges were never filed and that the incident should be excluded pursuant to Evidence Code section 352 in any event. The trial court ruled that the evidence was not admissible, because the incident was "not probative on the issue of credibility and, under [Evidence Code section] 352, it's certainly more prejudicial than it would be probative. It would also be an undue consumption of time."
Evidence Code section 352 provides that the trial court may, in its discretion, exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
As for the charge that the victim exposed her child to squalid conditions in 2005, the prosecutor argued that the victim's conduct amounted to passive conduct that was not a crime of moral turpitude. Relying on People v. Sanders (1992) 10 Cal.App.4th 1268, the trial court agreed and excluded evidence regarding the child endangerment allegations.
After he was convicted, defendant, proceeding with a new attorney, filed a motion for a new trial. Defendant argued, among other things, that the improper exclusion of the impeachment evidence justified granting a new trial. Attached to the motion were police reports regarding the incidents, documents that apparently were provided during pretrial discovery. The People opposed the motion, arguing that the trial court's ruling on the proposed impeachment evidence was correct. The trial court denied the motion, stating that "given what I know about the entire trial, having observed it, and given what I know about all the information that [defendant's counsel] has provided, I still think, under [Evidence Code section] 352, it was the proper analysis."
Defendant did not argue that the attorney who represented him during trial offered ineffective assistance of counsel, instead arguing that counsel's attempt to introduce the testimony of three police officers regarding the victim's past conduct preserved the issue for review. We agree that, by identifying the officers on defendant's witness list and opposing the People's motion in limine to preclude the proposed impeachment evidence, defendant's trial counsel preserved the issue for appellate review. Counsel's performance therefore was not deficient.
2. Analysis
Defendant argues that the trial court committed reversible error by excluding the proffered impeachment evidence. Prior felony convictions that necessarily involve moral turpitude may be used to impeach a witness in a criminal proceeding, subject to the trial court's discretion under Evidence Code section 352. (People v. Castro (1985) 38 Cal.3d 301, 314-315.) Misconduct involving moral turpitude may suggest a willingness to lie and may be admissible even if the conduct did not result in a felony conviction. (People v. Wheeler (1992) 4 Cal.4th 284, 295-296; People v. Martinez (2002) 103 Cal.App.4th 1071, 1080-1081; People v. Lepolo (1997) 55 Cal.App.4th 85, 89-90.) However, "impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value." (Wheeler at pp. 296-297.) "[T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." (Id. at p. 296.) We review the trial court's ruling on the admission of past misconduct involving moral turpitude to impeach a witness for abuse of discretion. (People v. Ardoin (2011) 196 Cal.App.4th 102, 121.)
As for the incident involving domestic violence in 2003, we find no abuse of discretion in the trial court's decision to exclude the evidence under Evidence Code section 352. There is no dispute that, had the victim suffered a felony conviction for violating section 273.5, subdivision (a) for hitting her husband, this would have qualified as a crime of moral turpitude for purposes of impeaching the victim's testimony. (E.g., People v. Rodriguez (1992) 5 Cal.App.4th 1398, 1402.) Because the victim was never charged with any crime, however, proof of the incident very well could have led the trial to "degenerat[e] into [a] nitpicking war[] of attrition over collateral credibility issues." (People v. Wheeler, supra, 4 Cal.4th at p. 296.) We also agree with the trial court that such testimony would have necessitated an undue consumption of time. (Evid. Code, § 352.)
The trial court likewise did not err when it excluded evidence that the victim in 2005 faced a child endangerment charge (§ 273 a, subd. (a)) that was later dropped. Even if the victim had suffered a conviction in connection with the incident, child endangerment is not a crime of moral turpitude, and impeachment by use of such a conviction therefore would have been improper. (People v. Sanders, supra, 10 Cal.App.4th at p. 1270.) Defendant acknowledges Sanders, but argues that the police reports underlying the incident showed the victim's willingness to lie to law enforcement officers and that her conduct therefore was admissible as involving moral turpitude. (People v. Lepolo, supra, 55 Cal.App.4th at pp. 89-90 [admission of evidence of past misconduct should be determined solely on basis that conduct evinces moral turpitude]; cf. People v. Lopez (2005) 129 Cal.App.4th 1508, 1523 ["evidence of mere arrests is inadmissible because it is more prejudicial than probative"].) As with the evidence of domestic violence allegations, such evidence had the strong potential to necessitate an undue consumption of time regarding collateral credibility issues and was therefore properly excluded.
Finally, we reject defendant's argument that limiting his ability to impeach the victim denied him of his rights to confront and cross-examine witnesses under the Sixth Amendment. "[N]ot every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citation.] California law is in accord. [Citation.]" (People v. Hamilton (2009) 45 Cal.4th 863, 943.) "Ordinarily, proper application of the statutory rules of evidence does not impermissibly infringe upon a defendant's due process rights. [Citations.]" (People v. Ardoin, supra, 196 Cal.App.4th at p. 119.) " 'In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352.' [Citation.] ' "[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. [Citation.]" [Citations.]' " (Ibid., original italics.) "[R]eliance on Evidence Code section 352 to exclude evidence of marginal impeachment value that would entail the undue consumption of time generally does not contravene a defendant's constitutional rights to confrontation and cross-examination. [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 545.) Unless the defendant can show that the prohibited cross-examination would have produced a significantly different impression of the witness's credibility, the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment. (People v. Hamilton at p. 943.)
Here, the trial court relied on Evidence Code section 352 to exclude evidence of alleged domestic violence, an incident with marginal impeachment value that would have entailed an undue consumption of time. Defendant cannot show that admission of that incident or the incident involving child endangerment would have produced a significantly different impression of the victim's credibility, and we therefore reject his Sixth Amendment argument.
Citing People v. Albarran (2007) 149 Cal.App.4th 214, 224, defendant argues that this court should review de novo the trial court's ruling on his motion for a new trial. Albarran noted that the decision of whether gang evidence was admissible at trial rested within the discretion of the trial court, but applied the de novo standard of review to the court's denial of defendant's motion for a new trial, because the admission of the evidence implicated defendant's federal constitutional rights to due process and concerned the fundamental fairness of his trial. (Id. at pp. 224-225, fn. 7.) Because the proper application of the statutory rules of evidence did not impermissibly infringe defendant's constitutional rights in this case (People v. Ardoin, supra, 196 Cal.App.4th at p. 119), we review the trial court's evidentiary ruling for abuse of discretion. Even if we applied a less deferential standard of review, however, we would conclude that the trial court did not err in denying defendant's motion for a new trial. Viewing the record as a whole, we agree with the trial court that there was no error in barring the proposed impeachment evidence.
C. Prosecutor Did Not Commit Misconduct.
1. Background
After the victim woke up in the early morning hours with defendant's finger in her vagina, she "just started panicking," pulled out the tubes that were attached to her, and left the hospital building even after nurses tried to stop her from doing so. The nurse in charge of the victim's care asked the victim what happened, and the victim stated that "something bad really [sic]happened inside" her room and that she had told defendant to leave her hospital room. The victim immediately called her boyfriend after leaving the building and told him what happened. She testified she was not sure whether to contact police, because it was a "complicated" situation involving a family friend of her boyfriend. The victim eventually returned to her hospital room. Later that same day, after receiving a report of a possible sexual assault, a police officer was dispatched to the hospital where the victim was staying, and the officer spoke with the victim. The victim testified that she spoke truthfully to police.
The victim's statement to the nurse was admitted over defendant's hearsay objection as a spontaneous declaration. (Evid. Code, § 1240.)
During closing argument, defendant's attorney emphasized the victim's delay in reporting the incident, stating: "She's not sure she wants to go to the cops. Why? If you had the same amount of fear—and remember what [the prosecutor]—there has been no testimony how sexual people [sic] react. You have all lived a life. If she's that scared, what was the debate? What was the debate that you run out in fear of the hospital and call 9-1-1, call the nursing staff and immediately tell them what happened. [¶] She never described what happened. She never told the nurse this happened."
In his rebuttal argument, the prosecutor emphasized that the victim was not confused about what happened, stating that the victim "never wavered" from her version of the incident, and that "[s]he never wavered from that when she spoke to the police or you would have heard that. If she said something different at the preliminary hearing, you would have heard that. And she didn't waver when she was here and testified at trial." The prosecutor also addressed the victim's interaction with the nurse when she left her hospital room, arguing without objection that the defense attorney "makes a big deal about the fact that when [the victim] comes out and speaks with the nurse, that she doesn't tell her specifically what happened. I mean, is that so outrageous to you, that after a sexual assault has happened, that she says something to the effect that something just terrible happened to me in the room? [Defendant's attorney] is getting on her, saying, I guess it must not be real because she didn't look at the nurse and say, What happened in the room at that very moment was he stick [sic] his fingers inside her vagina while she was right out there in the hallway. Because she didn't say that specifically, then I guess that must not have happened. That's what she's trying to argue to you. [¶] Is it totally imaginable and believable to believe that a person who has just been sexually assaulted say something just as [the victim] did? Yeah. And then, of course, she later told everyone, including hospital staff and the police what happened to her specifically." (Italics added.)
Defendant argues that the italicized portion of the prosecutor's rebuttal argument amounted to prosecutorial misconduct, because it falsely suggested that the victim had revealed specifics about the sexual assault to hospital staff and to police. He claims that neither the nurse nor the police officer testified that the victim "revealed any specifics of the alleged sexual assault," whereas the prosecutor's argument "strongly suggested" that the victim "told those people specific facts that conformed to her trial testimony, but that, for whatever reason, this testimony was not presented at trial."
2. Analysis
" 'The applicable federal and state standards regarding prosecutorial misconduct are well established. " '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.]' [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 819.) "The prosecution may argue all reasonable inferences from the record, and has a broad range within which to argue the facts and the law." (People v. Daggett (1990) 225 Cal.App.3d 751, 757.)
Here, the prosecutor argued reasonable inferences to be drawn from the record. After explaining why she was at first confused about whether she should contact authorities about defendant's actions, the victim testified on direct examination that police were called to the hospital and that she told police the truth. A police officer who went to the hospital testified that he was responding to a report of a possible sexual assault. A reasonable inference to be drawn from this evidence is that the victim told hospital personnel information that led them to contact police about a sexual assault and that the victim told police what she testified to at trial. It was not necessary for the prosecutor to question the victim as to what, exactly, she told authorities, because she explained that she told police what she told the jury. Any questioning of the nurse or the police officer about what the victim told them (with the exception of the victim's spontaneous declaration) likely would have drawn a hearsay objection, which would explain why those witnesses were not asked on direct what the victim told them. Had the victim told hospital staff or police a story that conflicted with the account she provided at trial, defense counsel could have questioned witnesses about the inconsistent statements during cross-examination. That counsel did not do so suggested that the victim told consistent stories, as the prosecutor properly argued to the jury. The prosecutor's argument to the jury did not infect the trial with unfairness, and his tactics were not deceptive or reprehensible methods to attempt to persuade the jury. (People v. Hill, supra, 17 Cal.4th at p. 819.)
Defendant also claims that his trial counsel's failure to object to the prosecutor's argument amounted to ineffective assistance of counsel. (People v. Hill, supra, 17 Cal.4th at p. 820 [claim of prosecutorial misconduct may be forfeited by failure to object below].) Because the prosecutor's argument did not rise to the level of misconduct, defendant cannot demonstrate the requisite prejudice from counsel's failure to object to the argument. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; People v. Stanley (2006) 39 Cal.4th 913, 954.)
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D. No Duty to Instruct on Sexual Battery or Battery.
1. Background
Defendant testified on his own behalf at trial and acknowledged massaging the victim's shoulders, but denied digitally penetrating the victim. He requested that the jury be instructed on the elements of the lesser offense of misdemeanor sexual battery. The prosecutor argued that "I think the lesser, if there were to be a lesser, would be a simple battery, but there's no substantial evidence of that here. There is evidence that—that was elicited that it's either one or the other, frankly, and I don't think lessers are appropriate." The trial court refused defendant's request, stating, "I don't think there's sufficient evidence, given the different elements involved and the testimony that I've heard, so the Court will not be giving lessers."
2. Analysis
Defendant argues that the trial court committed reversible error by refusing to instruct the jury on the elements of both misdemeanor sexual battery (§ 243.4, subd. (e)(1); CALCRIM No. 938) and misdemeanor battery (§ 242; CALCRIM No. 960). A trial court has an obligation, even absent a request, "to instruct the jury on any uncharged offense that is lesser than, and included in, a greater charged offense, but only if there is substantial evidence supporting a jury determination that the defendant was in fact guilty only of the lesser offense. [Citations.] An uncharged offense is included in a greater charged offense if either (1) the greater offense, as defined by statute, cannot be committed without also committing the lesser (the elements test), or (2) the language of the accusatory pleading encompasses all the elements of the lesser offense (the accusatory pleading test). [Citations.]" (People v. Parson (2008) 44 Cal.4th 332, 348-349, original italics.) The trial court need not instruct the jury on lesser included offenses "when the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime." (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5.)
Defendant argues, and respondent disputes, that misdemeanor sexual battery and misdemeanor battery are both necessarily included offenses of sexual penetration of an unconscious person (§ 289, subd. (d)) and sexual penetration of an intoxicated person (§ 289, subd. (e)). Even assuming that both uncharged crimes are lesser included offenses of the charged crimes, the trial court was under no obligation to instruct on the uncharged crimes, because there was no substantial evidence supporting a jury determination that defendant was in fact guilty only of the uncharged crimes. (People v. Parson, supra, 44 Cal.4th at p. 350.)
The victim testified that when she woke up in her hospital bed, she felt defendant touching her, and that "[h]is hands were in my vaginal area, touching me, and his fingers were—were in there," meaning inside her vagina. Defendant, by contrast, testified that he massaged the victim's shoulders at her request for a few minutes, then scratched the middle of her back, thinking she had an itch there because the victim reached her hand toward her back. The victim then grabbed defendant's hand, pushed it toward her "mid-back," where he continued to massage her for a few additional minutes. According to defendant, the victim suddenly "arched her butt," grabbed his hand, and started pushing it toward her buttocks. Defendant testified that he did not actually touch the victim's buttocks, "because as soon as she started pushing my hand towards her butt, I pulled back." He also specifically denied placing his fingers in the victim's vagina or touching her buttocks inappropriately. Defendant acknowledged touching the victim "inappropriately" insofar as he touched her back, because "[t]hat's my friend's baby's mama. I should never—you know what I mean?" He testified that he crossed a line and that "I just—you know, I thought I was—you know what I mean? Like I was being cool, you know."
If the jury believed the victim, then defendant was guilty as charged, and the jury properly convicted him. If the jury had believed defendant's testimony, he was not guilty of any crime. His testimony thus did not amount to substantial evidence supporting a jury determination that he was in fact guilty of the uncharged crimes, thereby obligating the trial court to instruct on the elements of those offenses. (People v. Parson, supra, 44 Cal.4th at pp. 348-349.) As for sexual battery, a defendant commits this crime when he (1) touches an intimate part of another, (2) against the person's will, and (3) the touching was done for the specific purpose of sexual arousal, sexual gratification, or sexual abuse. (§ 243.4, subd. (e)(1).) CALCRIM No. 938 defines an "intimate part of [another]" as a female's breast, or the anus, groin, sexual organ, or buttocks of anyone. According to defendant, he did not touch the victim against her will, he did not touch any intimate part of her, and he did not touch her for sexual gratification, but instead was trying to make her more comfortable and was "being cool."
As for simple battery, a defendant commits this crime when he willfully and unlawfully touches another in a harmful or offensive manner. (§ 242; CALCRIM No. 960.) Because defendant testified that he massaged the victim at her request, and the victim herself testified that defendant rubbed her neck and shoulders before she fell asleep after previously having expressed an interest in massage therapy (and with no apparent verbal objection), no reasonable jury could have found that the touching was harmful or offensive.
Defendant has identified no error undermining his conviction of sexual penetration of an unconscious person. We therefore reject his argument that the cumulative effect of the alleged errors deprived him of a fair trial. (People v. Kipp (1998) 18 Cal.4th 349, 383 [issues raised on appeal did not singly or cumulatively establish prejudice requiring reversal of convictions].) Defendant's probation was revoked in case No. VCR196764 based on defendant's convictions of sexual penetration. Accordingly, there is no reason to vacate the judgment in that case, as defendant urges.
III.
DISPOSITION
The judgment in case No. VCR196764 is affirmed. In case No. VCR204963, the judgment is modified to strike the conviction for sexual penetration of a drugged person as charged in count 2. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
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Sepulveda, J.
We concur:
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Reardon, Acting P.J.
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Rivera, J.