Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. FF614624.
McAdams, J.
Defendant Joel Jesse Vasquez was convicted by jury of two counts of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2), counts 1 and 3; unless otherwise stated, all further statutory references are to the Penal Code). With regard to the forcible oral copulation in count 1, the jury found true enhancement allegations that defendant personally inflicted great bodily injury and personally used a firearm in the commission of the offense (§§ 12022, 12022.3, 12022.5, 12022.53, 12022.7, 12022.8) within the meaning of the One-Strike statute (§ 667.61). The jury also convicted defendant of one count of threatening to commit a crime resulting in great bodily injury (§ 422, count 2), one count of assault with a firearm (§ 245, subd. (a)(2), count 4), one count of domestic violence with a prior (§ 273.5, subd. (e)(2), count 5) and one count of assault with a deadly weapon (§ 245, subd. (a)(1), count 6). The jury found true enhancement allegations that defendant personally used a shotgun when making the criminal threats in count 2 (§ 12022, subd. (b)(1)) and that defendant personally inflicted great bodily injury (§ 12022.7, subd. (e), 1203, subd. (e)(3)) when committing the domestic violence in count 5. The court sentenced defendant to 25 years to life in prison on count 1 (the forcible oral copulation with enhancements), consecutive to 14 years imposed on the other counts. All of the counts involved the same victim, defendant’s girlfriend.
The court imposed the following sentences on the remaining counts, which result in 14 years: (1) the upper term of three years, plus one year consecutive for the weapons enhancement, on count 2 (criminal threats); (2) one year (one-third the middle term) consecutive each on counts 4 and 6 (assault with a firearm and assault with a deadly weapon); (3) the middle term of three years, plus four years for the enhancement for inflicting great bodily injury, on count 5 (domestic violence), stayed pursuant to section 654; and (4) the upper term of eight years consecutive (§ 667.6, subd. (d)) on count 3 (forcible oral copulation).
On appeal, defendant contends that there was insufficient evidence that he either personally inflicted great bodily injury or personally used a dangerous or deadly weapon when committing the forcible oral copulation in count 1 to support the imposition of a life sentence under the One-Strike law. He argues that his trial counsel provided ineffective assistance by failing to object to the admission of evidence regarding his gang affiliation on Evidence Code section 352 grounds and by failing to move to strike the gang evidence on the grounds that it lacked relevance and foundation. He asserts that the prosecutor committed misconduct by vouching for the victim’s credibility, which resulted in a denial of due process. Defendant contends that the trial court erred when it instructed the jury that evidence of his gang affiliation could be considered for a purpose other than the limited purpose for which it was admitted, resulting in a denial of due process. Finally, he asserts cumulative error. We find no error and affirm the judgment.
Facts
Prosecution Case
Tanya M. met defendant on August 26, 2005. They started living together shortly thereafter and were in a relationship until October 30, 2005. They stayed in defendant’s room at his parents’ home in San Jose or in a room in a converted garage at defendant’s friend’s (Friend) house in San Jose. They moved back and forth between the two residences because defendant argued with his family.
In September, defendant started carrying a sawed-off shotgun. He kept the shotgun in a duffle bag and carried it with him everywhere.
The probation report indicates that defendant was on probation for prior offenses and subject to a no-weapons condition at that time. That information was not presented to the jury.
The physical violence started a week after Tanya started dating defendant. The first time, defendant punched Tanya on the right side of her head, between her eye and her ear, because he was upset that she had had a conversation with a former classmate. A week later, defendant got upset after he talked to Tanya’s ex-boyfriend and punched her in the head again. She did not sustain any bruises, swelling, or other injuries in the first two incidents.
After the second incident, the beatings “started coming daily.” Tanya testified that defendant punched her, kicked her, hit her with bricks wrapped in a towel, threw a chair at her, stabbed her, and broke wooden boards over her arms and legs. She was afraid of defendant because he was hurting her “very badly” and was out of control. Defendant often pulled her hair, which caused a throbbing pain; he pulled her hair out and sometimes, she felt “something watery” running down her scalp. She did not know if it was blood; her head was too swollen for her to touch. She did not tell defendant it hurt, because if she showed pain, he hurt her more. While she was with defendant, she had so many black eyes, she could not recall being without one. Three other witnesses recalled seeing Tanya with a black eye.
Defendant was under the influence of alcohol or methamphetamine every day that they were together. Tanya used drugs with defendant. At first, she used methamphetamine occasionally. But as time went on, she used the drug almost every day because “it numbed the pain” of being beaten. She got the methamphetamine from defendant.
Tanya has a daughter (Daughter) who was 13 or 14 years old when Tanya lived with defendant. Daughter’s father (P.A.) is mixed-race (Black and White). Tanya’s last boyfriend was Black. This upset defendant and he addressed her using racial epithets every day.
Assault With a Deadly Weapon, a Screwdriver (Count 6)
At the end of September or early October, defendant stabbed Tanya in the left knee with a screwdriver while she was sitting on a couch in his parents’ garage. He stabbed her because he had asked her to take one of his friends somewhere in her car and she took too long. In response, she just sat there because defendant would get mad at her if she “showed pain” and she did not want to get hurt anymore. She did not go to the hospital because the staff would have asked her how she got injured, which would have gotten defendant in trouble and caused Tanya further problems. Tanya has a scar on her knee.
Defendant Threatens Tanya, Her Family, and Others
Starting at the end of September, defendant repeatedly threatened to kill Tanya, her daughter, and her (Tanya’s) family. He made threats when he was mad and it did not take much to “set him off.” He said it more than once and Tanya believed he could do it. Defendant also threatened P.A. over the phone. Tanya was scared for her family and angry at herself for putting them in harm’s way.
When Tanya started dating defendant, Tanya had custody of Daughter 66 percent of the time. Daughter lived with Tanya’s mother and father. Tanya had been involved in a custody battle with P.A. and his wife (V.A.) for a number of years. While Tanya was with defendant, P.A. filed for full custody, alleging that Tanya was involved with a gang member who had threatened P.A. Tanya did not defend the allegation and lost custody of Daughter to P.A. on October 7, 2005. Tanya did not fight for custody of Daughter at that time because she was concerned for Daughter’s safety and knew that she (Tanya) “wasn’t in a good place” for Daughter.
To protect their identities, we refer to Tanya’s daughter as “Daughter” and to Daughter’s father and step-mother by their initials.
Beating in Early to Mid-October – Assault With a Deadly Weapon (Count 4)
In early to mid-October 2005, defendant inflicted “the worst beating [Tanya] ever had from him.” Tanya does not recall what made him mad that day. Defendant struck Tanya in the left forehead with the shotgun. At trial in 2008, she still had an indentation and a bump on her forehead from that blow. Defendant hit her with the shotgun and his fists; he kicked her, stomped on her head with his feet, and slammed her head into the floor of their room at Friend’s house. He stopped when Friend came in.
When asked why she did not leave defendant, Tanya said, “Leaving isn’t always as easy as just getting up and going.” She was afraid defendant would hurt her more and hurt her family. He had met her mother and knew where her parents lived.
Threats to Commit a Crime (Count 2)
In mid-October, in their room at Friend’s house, defendant put his shotgun by Tanya’s mouth, on her mouth, and in her mouth and said he should kill her because she is probably one of the demons that talk to him in his sleep. He removed the gun and started rambling about something else. Tanya was afraid and thought he would shoot her.
Defendant Threatens His Father With the Shotgun
On October 12, 2005, defendant got into a fist fight with his father, Joe Vasquez, at his parents’ home. Later that day, defendant and Tanya went to defendant’s aunt’s house. Defendant’s father and sister were there. When defendant’s father and sister left, defendant told Tanya they should also leave. On the way home, defendant instructed Tanya to pull her car up alongside his father’s car, which Tanya did. She looked over and saw defendant pointing the shotgun at his father. Joe Vasquez put his car in reverse. As he drove away, defendant shot the shotgun into the air.
San Jose Police Officer Todd Trayer testified that Joe Vasquez called the police, reported that defendant had brandished a sawed-off shotgun at him, and said he wanted to press charges. Officer Trayer interviewed Joe Vasquez and defendant’s sister, both of whom said defendant brandished a shotgun at them.
At trial, Joe Vasquez denied telling the police officer that defendant pointed a shotgun at him. He testified that he did not know what defendant pointed at him, but was scared by “whatever” defendant pointed at him because defendant had been drinking. Defendant’s sister did not recall this incident and denied telling the police that defendant pointed a shotgun at her.
Forcible Oral Copulation (Count 3)
When they first started dating, Tanya had sexual intercourse with defendant voluntarily almost every day. After he started beating her, they argued almost every day about Tanya’s lack of interest in performing oral sex. If she refused, defendant called her “worthless, ” “useless, ” “dumb, ” and “fat bitch.” She did not want to say “no” to him because he would get mad at her and hurt her, so she tried to avoid performing oral sex.
On one occasion in mid-October, Tanya’s jaw was painful from being punched by defendant. Her jaw was swollen and it hurt to open her mouth, to yawn, and to eat. At that time, “there wasn’t a part of [her] head that wasn’t swollen.” When defendant asked her to orally copulate his penis that day, she told defendant she did not want to do it because her jaw was sore and it hurt to perform oral sex. Defendant had punched her in the face an hour earlier. He said she was exaggerating, insulted her, and told her she was worthless. She made it clear to him that she did not want to do it, but gave in because he would not leave her alone. She was afraid that he would hurt her again if she did not comply.
Evidence Relating to Defendant’s Tattoos
Tanya testified that she was afraid of defendant, in part, because of his tattoos and the gang affiliation suggested by the tattoos. She stated that there were aspects of defendant’s life that she was afraid to talk about. When asked whether they involved gangs, she said that she did not want to answer; that she was afraid of being hurt by defendant’s family and friends and by defendant if he is released. She believed talking about gangs could lead her or her family members to be hurt and she was nervous about answering gang-related questions.
Nonetheless, Tanya testified about defendant’s tattoos. Photographs of his tattoos were also in evidence. Defendant’ upper chest and arms are tattooed with the images of 10 women. Some of the images are just faces; others depict females from the waist up with bare breasts; one depicts a completely nude female. One of the females is wearing a sombrero with the word “Norte” on it. Defendant also has the word “Norte” tattooed on his upper right hand and in large letters across his back. The Roman numeral “XIV” (14) is tattooed in large letters on his back, on three fingers of his left hand, and on the entire space on the front of his neck. Defendant has the Roman numeral “X” tattooed on his right hand and four dots on his left hand, also signifying the number 14. He has four dots tattooed under his left eye. Tanya testified that she was concerned about the “affiliation” signified by these tattoos and defendant’s ability to find her and hurt her if she ever left him.
Events of October 30, 2005 (Domestic Violence (Count 5) and Forcible Oral Copulation with Enhancements (Count 1))
On October 30, 2005, defendant and Tanya were staying at his parents’ house. Between midnight and 1:00 a.m., defendant called Tanya and asked her to pick him up at a friend’s house. When she arrived, defendant was with a man she had never seen before. Defendant told Tanya to drive them to Hollister. Defendant was angry during the drive to Hollister. He hit her once because he did not like the route she took. Defendant had been drinking and drank a beer in the car.
After they dropped defendant’s friend off, defendant hit Tanya and said, “[Y]ou thought I forgot about earlier?” Tanya believed he was angry because she talked to his friend when they stopped to buy gas. Defendant hit her two more times. As she was getting onto the freeway, he hit her again. He hit her so hard in the right eye, that all she could see was “white.” She said, “[P]lease let me just get home safe. Let me just get home safe.” Defendant calmed down, then hit her again. He said he could not be with her because her daughter was Black. Defendant hit Tanya in the stomach, right breast, and back of the head with the barrel of his shotgun. She said, “Let me just get us home safe.” On the way home, he hit her more than 20 times with his fists and the gun. He punched her in the lip and blood was “gushing” out of her nose.
When they got home, she hid so his family would not see her. When everyone was back in bed, she went inside and washed the blood off her face. There was blood on her shirt, her bra, and her pants. Dried blood was smeared all over her face. Her lip was swollen and she had cuts on her lip. She went into the kitchen. Defendant said his family was angry with him for hurting her. He pushed her up against the refrigerator, choked her with one hand, covered her mouth with his other hand, and said, “I’m looking at life and you ain’t shit, bitch.” He released her and they went upstairs to his room. On the stairs, he hit her in the back of her head with the butt of the shotgun.
In the bedroom, Tanya sat on the bed and took off her shirt and pants. Defendant said, “[Y]ou want to see a savage? You’re going to see a savage now.” Defendant put the shotgun under the mattress, where he usually kept it. Defendant put his hand over her mouth, squeezed hard, and “smother[ed] her mouth.” She said, “I can’t take any more. You are killing my soul.” Defendant grabbed her by the hair and pulled her head down to his penis. She knew what he wanted. She did not want to orally copulate him; she did not want him touching her at all. She was afraid and crying and said, “[P]lease, I can’t take no more, please.” She started to orally copulate him. He punched the right side of her head while she had his penis in her mouth. When she pulled away, he said, “do it” and punched her again. He punched her twice each time; this sequence happened four times. Finally, he stopped punching her so she could complete the sex act.
Defendant passed out on the bed. Tanya waited 10 minutes and fled.
Medical Care, Police Investigation, and Injuries
Tanya drove to her parents’ house and asked her mother (Mother) to take her to the hospital. Mother wanted to take her to the police, but Tanya begged Mother to take her to the hospital. Mother wanted to take her to Valley Medical Center, but Tanya told her to go to a hospital outside of San Jose because she was afraid defendant would find her and hurt her again.
Mother took Tanya to Saint Louise Hospital in Gilroy. On the way to the hospital, Tanya told Mother that she had been beaten, but did not mention any sex offenses because she was embarrassed and thought it was “disrespectful” to talk to her mother about her sex life.
The emergency room physician and the nurse who treated Tanya testified at trial. Tanya gave a history of being assaulted, of being hit with fists and metal objects while driving. She did not report a sexual assault. Tanya’s injuries included multiple contusions to her scalp and face, extensive bruising around her eyes, older bruising on her left eyelid, and bruises to her right side and right breast. Both of her eyelids were swollen shut and she was diffusely tender to touch on her neck and scalp. Tanya’s vision was blurred and she complained of ear pain and headaches. Tanya had severe soft tissue swelling but no intracranial injury or fractures.
The hospital is a mandated reporter and the nurse called the police. Two Gilroy Police officers responded and spoke with Tanya and Mother. Tanya told Mother not to give the police defendant’s name because “snitches get killed.” Tanya did not want to talk to the police and refused to disclose defendant’s name at the hospital because she did not want to “face the repercussions” of reporting him. Mother told the police that the perpetrator was a Norteño, that he had threatened to kill Daughter, and that Tanya would not disclose his name because she was protecting her parents and Daughter. Tanya reported being beaten while driving, but did not report a sex crime. The officers photographed Tanya’s injuries. A domestic violence crisis worker came to the hospital and took Tanya to a shelter.
Detective Rosa Quinones of the Gilroy Police did the follow-up investigation. Detective Quinones took a recorded statement from Tanya on November 2, 2005. At that time, the police suspected that defendant was her abuser, but Tanya refused to disclose his identity, saying that she was “too scared” and that “she wasn’t ready” to disclose.
Detective Quinines spoke with Tanya by phone on November 10, 2005. At that time, Tanya still refused to disclose her abuser’s identity. Tanya complained that she was having bad headaches and that her eyesight was “messed up.”
Tanya met with Detective Quinones on November 11, 2005, and disclosed that defendant was her abuser. She knew defendant had been taken into custody on another matter on November 7, 2005, which made it easier for her to talk to the police. The detective took another statement, which was not recorded, and additional photos of Tanya’s injuries. On November 11, 2005, Tanya reported both incidents of sexual abuse. Detective Quinones took another recorded statement from Tanya on January 12, 2006. At that time, Tanya described both incidents of forcible oral copulation.
Tanya’s bruises lasted a week and a half. She had migraine headaches, head pain, and blurred vision that lasted six months to a year. She had memory problems for six months. She has a scar on her lip, a scar over her right eyebrow, and a lump and an indentation on her left forehead.
Evidence of Prior Domestic Violence (Count 5)
Veronica L. dated defendant for six months in 2002. She was inside his parent’s house on September 16, 2002. Defendant was drinking and arguing with his father outside. Defendant yelled for Veronica to come outside, but she did not comply. Defendant kicked down the front door, grabbed Veronica by the hair, and punched her in the face two or three times. Defendant’s father and brother pulled defendant off of her; defendant’s mother took her to the hospital. Her injuries included swelling and bruising to her face and nose. As a result of this incident, defendant was convicted of misdemeanor battery. According to the probation report, which was not before the jury, defendant was placed on probation and ordered to complete a domestic violence program.
Defense Case
Defendant did not testify. Defendant did not dispute the domestic violence, assault and criminal threats charges, but argued that the forcible sex offenses did not happen. He relied on Tanya’s delayed reporting of the alleged forcible oral copulation, disputed her descriptions of those incidents, and attacked her credibility.
P.A. and V.A. testified that more than eight years before trial, during their custody dispute, Tanya falsely accused V.A. of abusing Daughter by spanking her and hitting her. V.A. testified that the allegations were not true; that she had to hire an attorney to defend herself, and that the allegations were dismissed by the family court. P.A. and V.A. both testified that Tanya was dishonest and would make things up to suit her purposes. Tanya testified that she accused V.A. of child abuse based on a sworn statement from a counselor and a psychiatric report.
Rochelle V. is defendant’s friend and his child’s cousin. She observed defendant and Tanya together when they were dating. She saw them hugging and kissing, laughing and joking around. They argued “like any normal couple, ” but seemed happy. But, Rochelle recalled seeing Tanya with a black eye once.
Discussion
Sufficiency of Evidence That Defendant Personally Inflicted Great Bodily Injury or Personally Used a Dangerous or Deadly Weapon to Support Imposition of One-Strike Life Sentence for Forcible Oral Copulation
Defendant challenges the sufficiency of the evidence to support the jury’s findings that he personally inflicted great bodily injury (§§ 667.61, former subd. (e)(3), now subd. (d)(6); 12022.53, 12022.7, 12022.8) and personally used a dangerous or deadly weapon or firearm (§§ 667.61, former subd. (e)(4), now subd. (e)(3); 12022, 12022.2, 12022.5, 12022.53) during the commission of the oral copulation on October 30, 2005, which was the basis for the court’s imposition of 25-years-to-life sentence under the One Strike law (§ 667.61, subds. (a), former (e)(3), former (e)(4)) on count 1.
Section 667.61 was amended in 2010 and the triggering circumstance in former subdivision (e)(3) involving the personal infliction of great bodily injury was moved to subdivision (d)(6) and the triggering circumstance in former subdivision (e)(4) involving the personal use of a dangerous or deadly weapon or firearm was redesignated as subdivision (e)(3). (Stats.2010, c. 219, § 16, eff. Sept. 9, 2010.) For ease of reference, we shall hereafter refer to the triggering circumstance involving the personal infliction of great bodily injury as “former subdivision (e)(3)” and the triggering circumstance involving the personal use of a dangerous or deadly weapon or firearm as “former subdivision (e)(4).”
“ ‘To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Tafoya (2007) 42 Cal.4th 147, 170, quoting People v. Kipp (2001) 26 Cal.4th 1100, 1128.) The same standard of review applies when the appellant challenges the sufficiency of the evidence to support a sentence enhancement. (People v. Delgado (2008) 43 Cal.4th 1059, 1067.) In making this determination, we view the evidence in a light most favorable to the respondent and presume, in support of the judgment, the existence of every fact that the trier of fact could have reasonably deduced from the evidence. (People v. Rayford (1994) 9 Cal.4th 1, 23.)
Sentencing Under the One Strike Law
Section 667.61, the One Strike law, mandates an indeterminate sentence of either 25 years to life (id., subd. (a)) or 15 years to life (id., subd. (b)) when a defendant is convicted of certain forcible sex offenses committed under specific aggravating circumstances set forth in the statute. (People v. Jones (2001) 25 Cal.4th 98, 103 (Jones).) The forcible sex offenses subject to punishment under section 667.61 include “[o]ral copulation, in violation of paragraph (2)... of subdivision (c), ... of Section 288a, ” the offense defendant was convicted of in count 1. (§ 667.61, subds. (c)(7).) To impose a sentence of 25 years to life, as was done in this case, the prosecution must prove one or more of the circumstances set forth in subdivision (d) of the statute or two or more of the circumstances set forth in subdivision (e) of the statute. (§ 667.61, subd. (a).) Proof of only one of the circumstances in subdivision (e) of section 667.61 supports imposition of a sentence of 15 years to life. (§ 667.61, subd. (b).) The circumstances in subdivisions (d) and (e) have been referred to as “triggering circumstances” by our Supreme Court. (People v. Acosta (2002) 29 Cal.4th 105, 109.)
At the time of the offenses in this case, the triggering circumstances in subdivision (e) of the statue included: “[t]he defendant personally inflicted great bodily injury on the victim or another person in the commission of the present offense in violation of Section 12022.53, 12022.7, or 12022.8” (§ 667.61, former subd. (e)(3)) and “[t]he defendant personally used a dangerous or deadly weapon or firearm in the commission of the present offense in violation of Section 12022, 12022.3, 12022.5, or 12022.53” (§ 667.61, former subd. (e)(4)). The jury found true enhance allegations that defendant had committed the forcible oral copulation in count 1 under the triggering circumstances in both former subdivision (e)(3) and former subdivision (e)(4).
Personal Infliction of Great Bodily Injury (§ 667.61, former subd. (e)(3))
Defendant argues that there was no evidence that he inflicted great bodily injury on Tanya during the forcible oral copulation on October 30, 2005, to support sentencing under the One Strike law. He asserts that although Tanya testified that he injured her during the car ride home from Hollister, she did not testify that he injured her during the oral copulation, which occurred in his parents’ home. He argues that although she testified that he hit her four times while performing oral copulation, she did not say that those blows caused any injuries.
Section 667.61, former subdivision (e)(3) provides for a sentence enhancement when “[t]he defendant personally inflicted great bodily injury on the victim or another person in the commission of the present offense in violation of Section 12022.53, 12022.7, or 12022.8.” “Great bodily injury” as used in each of those code sections “means a significant or substantial physical injury.” (§ 12022.7, subd. (f); 12022.53, subd. (d); 12022.8; People v. Escobar (1992) 3 Cal.4th 740, 749-750 (Escobar); see also People v. Miller (1977) 18 Cal.3d 873, 883 [construing great bodily injury in former §§ 213 and 461 to mean “significant or substantial bodily injury or damage as distinguished from trivial or insignificant injury or moderate harm”].) It means “a substantial injury beyond that inherent in the offense itself.” (Escobar, at pp. 746-747.)
Our state Supreme Court “has long held that determining whether a victim has suffered physical harm amounting to great bodily injury is not a question of law for the court but a factual inquiry to be resolved by the jury. [Citations.] ‘ “A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description.” ’ [Citations.] Where to draw that line is for the jury to decide.” (People v. Cross (2008) 45 Cal.4th 58, 64.)
On the way home from Hollister on October 30, 2005, defendant struck Tanya more than 20 times in the head, face, lip, nose, right breast, and stomach with his fists and with the shotgun. After defendant and Tanya returned to his parents’ home and she had washed the blood off her face, defendant pushed her up against the refrigerator, choked her with one hand, and covered her injured mouth with his other hand. As they went up the stairs, he hit her in the back of the head with the butt of the shotgun. In the bedroom, he put his hand over her already cut and battered mouth, squeezed hard, and “smothered” her mouth. He grabbed her by the hair and pulled her head down toward his penis. As she was orally copulating him, he punched the right side of her bruised and battered head eight more times (he punched her four separate times, inflicting two blows each time). Such a battering is not inherent in the crime of oral copulation.
The majority of Tanya’s injuries were to her head and face. The emergency room physician and the nurse testified that Tanya’s injuries included multiple contusions to her scalp and face, extensive bruising around her eyes, severe soft tissue swelling, and bruises to her right side and right breast. Both of her eyelids were swollen shut and she was diffusely tender to touch on her neck and scalp. Tanya’s vision was blurred and she complained of ear pain and headaches.
It was for the jury to determine which injuries were due to the beating in the car and which were due to the beatings inflicted as part of the oral copulation. In our view, based on these facts, there was substantial evidence that supported the jury’s finding that defendant personally inflicted great bodily injury on Tanya while committing forcible oral copulation.
Personal Use of a Dangerous or Deadly Weapon or Firearm (§ 667.61, former subd. (e)(4)).
The California Supreme Court has held that “[p]roof of firearm use during a felony does not require a showing [that] the defendant ever fired a weapon. ‘Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies. “Use” means, among other things, “to carry out a purpose or action by means of, ” to “make instrumental to an end or process, ” and to “apply to advantage.” (Webster’s New Internat. Dict. (3d ed.1961).) The obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that “uses” be broadly construed.’ [Citation.] ‘Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure. The defense may freely urge the jury not to draw such an inference, but a failure to actually point the gun, or to issue explicit threats of harm, does not entitle the defendant to a judicial exemption from section 12022.5[, subdivision] (a).’ [Citations.] [¶] Nor must the firearm ‘use’ be strictly contemporaneous with the base felony. ‘In considering whether a gun use occurred, the jury may consider a “video” of the entire encounter; it is not limited to a “snapshot” of the moments immediately preceding a sex offense. Thus, a jury could reasonably conclude that although [the] defendant’s presence with the victims was sporadic, the control and fear created by his initial firearm display continued throughout the encounter.’ ” (People v. Wilson (2008) 44 Cal.4th 758, 806 (Wilson).)
In Jones, supra, 25 Cal.4th 98, the Supreme Court interpreted the phrase “in the commission of” as used in sections 12022.3, subdivision (a), and 667.61, former subdivision (e)(4) and concluded that the phrase “in the commission of” has the same meaning for the purposes of sections 12022.3, subdivision (a), and 667.61, former subdivision (e)(4), as it does under the felony-murder provisions. (Jones, at p. 109.) The court explained that “the ‘commission’ of a sexual offense specified in... section 12022.3, subdivision (a), does not end with the completion of the sex act, but continues as long as the assailant maintains control over the victim. [¶] Moreover, as [the court] explained in People v. Masbruch [(1996)] 13 Cal.4th 1001 at page 1006, the legislative intent to deter the use of firearms in the commission of specified felonies requires that ‘use’ be broadly construed. In the case of a weapons-use enhancement, such use may be deemed to occur ‘in the commission of’ the offense if it occurred before, during, or after the technical completion of the felonious sex act. The operative question is whether the sex offense posed a greater threat of harm – i.e., was more culpable – because the defendant used a deadly weapon to threaten or maintain control over his victim.” (Jones, at pp. 109-110.)
Defendant concedes that he used the gun to batter Tanya in the car between Hollister and San Jose. But, he contends that once he was at his parents’ house and put the gun under the mattress, where he customarily kept it, he was no longer using the gun within the meaning of section 667.61, former subdivision (e)(4). He relies, in particular, on the following testimony by Tanya:
“Q. [by the prosecutor]: The fact the he had the shotgun there in the room, was that one of the reasons that you agreed to perform oral sex on him that night?
“A.: I was so beaten. I just didn’t want to get beat anymore.
“Q.: Did it make you afraid to know that he had that shotgun in the room with him?
“A.: Just his hands was enough for me to be afraid. It didn’t matter about the gun anymore. I was so beaten.”
Defendant argues that this testimony “made it clear that the presence of the gun played no part in [Tanya’s] compliance with [his] demand for oral sex.” He asserts that she feared being beaten by defendant, not that he would use the gun; that once he put the gun away, there was no threat to use it; that Tanya did not succumb to his demands for oral sex because of the gun; and that consequently the evidence was insufficient to support the gun enhancement. We are not persuaded.
Tanya testified that once defendant acquired the shotgun, he kept it with him at all times and took it everywhere. She had seen him brandish it at his father and shoot it into the air. Thus, she knew defendant knew how to use the gun.
In light of the requirement that gun use be interpreted broadly and of the “video” of the encounter between defendant and Tanya on October 30, 2005, we conclude that there was sufficient evidence to support the jury’s true finding on the gun use enhancement. Here there was more than a “bare potential” that the shotgun would be used. (Wilson, supra, 44 Cal.4th at p. 806.) Defendant made the gun’s presence known and used the gun to beat Tanya on October 30, 2005. In the car ride from Hollister to San Jose, he struck her on the side, on her breast, and elsewhere with the barrel of the gun. As they went up the stairs in his parents’ house, he struck her on the back of the head with the butt of the gun, shortly before demanding oral sex from her. He then stashed the gun under the mattress of the bed where the sex offense occurred. Tanya testified that while she orally copulated defendant, she knew that the gun was within his reach, if he wanted to reach for it. This evidence supports a finding of a facilitative use of the shotgun, i.e., that defendant deliberately used the shotgun and made its presence known to maintain control over Tanya. (Jones, supra, 25 Cal.4th at pp. 109-110.) With regard to Tanya’s testimony that “[i]t didn’t matter about the gun anymore, ” the jury was free to disregard that testimony or give it whatever weight it decided it deserved in light of the totality of the evidence and the “video” of the entire encounter between defendant and Tanya.
Defendant attempts to distinguish this case from four cases in which appellate courts have found sufficient evidence to support imposition of gun use enhancements by discussing the facts in People v. Granado (1996) 49 Cal.App.4th 317, 325; People v. Masbruch (1996) 13 Cal.4th 1001, 1004-1005; People v. Carrasco (2006) 137 Cal.App.4th 1050, 1054-1055; and Wilson, supra, 44 Cal.4th at page 807. We have reviewed defendant’s argument and are not persuaded that defendant’s use of the shotgun here is distinguishable from the gun use in any of those cases.
For all these reasons, we conclude there was substantial evidence to support the jury’s finding that defendant used a firearm to commit forcible oral copulation within the meaning of section 667.61, former subdivision (e)(4).
Ineffective Assistance of Counsel
Defendant contends that his trial counsel provided ineffective assistance (1) by failing to object to the admission of evidence regarding his gang affiliation and his gang tattoos on Evidence Code section 352 grounds and (2) by failing to move to strike the evidence of his gang affiliation on the grounds that it was irrelevant and lacked foundation after Tanya testified. He argues that Tanya’s belief that he was in a gang had no probative value regarding the forcible oral copulation counts. He asserts that although his gang affiliation may have made Tanya afraid to testify, it had nothing to do with the oral copulation offenses.
Factual and Procedural Background
In limine, the parties discussed the admissibility of evidence of defendant’s gang affiliation. The prosecution told that court that defendant was a “validated” Norteño gang member with lots of gang tattoos and that Tanya had testified at the preliminary hearing that defendant’s gang affiliation was one of the reasons she was afraid of him. The court held that whether defendant belonged to a gang was irrelevant to the charges and for the purpose of impeaching defendant, but that the victim’s belief that he was in a gang was relevant to the victim’s state of mind and would come in with a limiting instruction. The court stated that it would not allow a gang expert to testify that defendant was a “gangster” or tell the jury how gangs act.
During trial, outside the presence of the jury, the court and counsel discussed this issue further. The prosecution asked that defendant be directed to remove his shirt and show his tattoos to the jury, arguing that it was “relevant as to the 422 charge [(criminal threats)] and Tanya’s reasonable fear or her belief that... defendant could cause her harm or carry out his threats.” Defense counsel objected and argued that Tanya’s subjective belief that defendant is a gang member may have some relevance, but whether he is actually in a gang or covered with gang tattoos is irrelevant. He also asserted that Tanya was not a gang expert and could not interpret the tattoos. The court ruled that Tanya could not express an opinion regarding whether defendant is in a gang but could testify regarding her state of mind. Defense counsel suggested that there was a less prejudicial way of presenting evidence of defendant’s tattoos than “putting [defendant] on display” and the court and the parties agreed to use photographs of defendant’s tattoos.
As stated previously, Tanya testified about defendant’s tattoos and the evidence included photographs of the tattoos. She testified that there were aspects of defendant’s life that she was afraid to talk about, that she did not want to answer questions about defendant’s gang involvement, and that she could not answer such questions and “feel safe.” Tanya testified that defendant’s tattoos caused her to be afraid of being hurt by defendant’s “friends and family” and by defendant. When asked whether she believed defendant’s associates were involved in gangs, she said she did not want to answer because she did not want to get hurt anymore. She feared that testifying about gangs could lead her or her family members to be hurt. She had seen defendant’s tattoos and they contributed to her fear of defendant. She was concerned about the “affiliation” represented by the tattoos. Tanya testified that once, while in a car, defendant stopped to talk to someone and yelled “norte” as they drove away. The prosecutor then asked, “Based on his tattoos and yelling Norte and some people you felt he might be affiliated with, did that make you feel more afraid of the defendant?” Tanya responded, “It had me concerned for his ability to find me and hurt me if I ever left. His affiliation didn’t hurt me, he did.”
Principles Governing Ineffective Assistance of Counsel Claims
“To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsel’s performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” (People v. Benavides (2005) 35 Cal.4th 69, 92-93, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 (Strickland).) “Judicial scrutiny of counsel’s performance must be highly deferential.... Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Strickland, at p. 689.)
“ ‘Tactical errors are generally not deemed reversible; and counsel’s decision-making must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” ’ ” (People v. Hart (1999) 20 Cal.4th 546, 623-624 (Hart).) “ ‘Finally, prejudice must be affirmatively proved; the record must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” ’ ” (Hart, at p. 624.)
Standard of Review
A claim of ineffective assistance of counsel presents a mixed question of law and fact, which we review de novo. (In re Alcox (2006) 137 Cal.App.4th 657, 664.)
Analysis: Deficient Performance
“When offered by the prosecution, [the California Supreme Court has] condemned the introduction of evidence of gang membership if only tangentially relevant, given its highly inflammatory impact.” (People v. Cox (1991) 53 Cal.3d 618, 660, disapproved of on another ground as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; Cox cited People v. Cardenas (1982) 31 Cal.3d 897, 904-905 [error to admit evidence that the defendant and the defense witnesses were members of the same gang where prosecutor had already established that the defendant and the defense witnesses lived in the same neighborhood, had the same friends, and went to the same Boys Club; given weaknesses in eyewitness identification, gang evidence was prejudicial].)
“In cases not involving the gang enhancement, [the Supreme Court has] held that evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. (E.g., People v. Cardenas, [supra, ] 31 Cal.3d [at pp.] 904-905....) But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation – including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like – can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. (See, e.g., People v. Mendoza (2000) 24 Cal.4th 130, 178, ... [(Mendoza)] [element of fear]; People v. Williams (1997) 16 Cal.4th 153, 193, ... [motive and identity]; People v. Champion (1995) 9 Cal.4th 879, 922-923, ... [identity].)” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049, 1051 [the defendant identified himself as a gang member and used his gang membership to accomplish the robbery; gang evidence was relevant to motive, intent, and the use of fear].)
Mendoza is instructive. The defendant in Mendoza was charged with kidnapping and robbery. The victims testified that during the robbery, the defendant stated that he was a “ ‘homeboy’ ” and that he had his friends around him; one of the victims testified that she understood the word “ ‘homeboy’ ” to refer to a gang. (Mendoza, supra, 24 Cal.4th at p. 163.) Defense counsel objected that her testimony was immaterial. The trial court overruled the objection, reasoning that the evidence was relevant to show the victim’s state of mind, namely that she was fearful at the time of the offense. (Ibid.) The Supreme Court found no error. The court observed that the elements of robbery included a taking by force or fear and concluded that the questions were directly relevant to establishing the element of fear. The court stated that the victim had testified simply to her understanding of the term and that the probative value of the evidence was high since it was relevant to an element of a charged offense. (Id. at pp. 178-179.)
The gang evidence in this case was more than tangentially relevant and its probative value was more than minimal. To prove defendant guilty of criminal threats, the prosecution was required to prove, among other elements, that the threat actually caused Tanya to be in sustained fear for her own safety or for her immediate family’s safety. (§ 422; In re George T. (2004) 33 Cal.4th 620, 630.) To prove defendant guilty of forcible oral copulation, the prosecution was required to prove that defendant accomplished the act by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone. (§ 288a, subd. (c)(2); People v. Reyes (1984) 153 Cal.App.3d 803, 810 [fear defined].) Tanya testified that one of the reasons she feared defendant was that she believed he was involved in a gang, based on his gang tattoos. As in Mendoza, the probative value of this evidence was high, since it was relevant to the element of fear, which was an element in three of the charged offenses. It was also relevant to the issues of Tanya’s credibility and bias.
In addition, defense counsel was successful in limiting the gang evidence. No gang expert testified. There was no evidence regarding the gang’s territory, membership, beliefs and practices, criminal enterprises, or rivalries. When the prosecutor asked the court to order defendant to take his shirt off and display his tattoos to the jury, defense counsel suggested that there was a less prejudicial way to get this evidence before the jury and the parties agreed to use photographs. The court also instructed the jury (1) that it could consider the evidence of gang activity only for the limited purpose of deciding whether defendant accomplished one or more acts of oral copulation by force, violence, duress, menace or fear; (2) that it could not consider this evidence for any other purpose; and (3) that the jury could not conclude from this evidence that defendant was a person of bad character or that he had a disposition to commit crime. For these reasons, we conclude that counsel’s performance was not deficient when he failed to object to the gang evidence on Evidence Code section 352 grounds.
We also reject defendant’s assertion that defense counsel’s performance was deficient because he failed to move to strike the evidence of defendant’s gang affiliation on the grounds that it was irrelevant and lacked foundation after Tanya testified that “[h]is affiliation didn’t hurt me, he did.” This testimony was but one piece of evidence relating to Tanya’s state of mind. Before stating that defendant’s affiliation did not hurt her, Tanya testified that she had seen defendant’s tattoos and the tattoos were one of the reasons she was afraid of him, that she was concerned about the “affiliation” represented by the tattoos, that there were aspects of defendant’s life that she was afraid to talk about, that she did not want to answer questions about his gang involvement, that defendant’s tattoos caused her to fear that she or her family members could be hurt by defendant, his friends, or his family. The prosecutor also made a record that Tanya was “bouncing up and down in [her] seat” when responding to questions about defendant’s gang affiliation. Given the totality of the gang evidence, we cannot say that defense counsel was ineffective for failing to move to strike the evidence regarding defendant’s gang affiliation after Tanya stated that defendant’s affiliation did not hurt her, defendant did.
Analysis: Prejudice
Finally, even if we were to conclude that defense counsel’s performance was deficient for failing to object on the grounds asserted, we would conclude that the alleged deficiencies were not prejudicial. Unlike Cardenas, this was not a close case in which erroneously admitted gang evidence prejudiced the defense. Tanya testified that defendant beat her daily, punched her, assaulted her with a screwdriver and a shotgun, demeaned her, threatened her, and forced her to orally copulate him against her will when it was painful for her to do so. The photographs of her injuries and the medical testimony showed the severity of the beatings that Tanya suffered at defendant’s hands. Given the strength of this evidence, we are persuaded that the jury would have convicted defendant on all counts, even without the gang evidence.
Defendant argues that there is a reasonable probability that he would have been acquitted of some of the counts if the jury had not heard the gang evidence. He relies on the fact that the jury “deliberated over the course of two days... and asked numerous questions.” The jury began its deliberations late in the afternoon of the eighth day of trial and, although the deliberations spanned a period of two days, the jury only deliberated for four hours and 56 minutes. And although the jury asked six questions, five of them sought to clarify the evidence (read back testimony, replay tape of police interview, and restate the parties’ stipulations). These facts do not support defendant’s assertions on the prejudice prong.
For these reasons, we conclude that defendant has not met his burden of demonstrating that there is a reasonable probability that, but for counsel’s alleged errors, the results of the proceeding would have been different. Since defendant has not demonstrated either deficient performance or prejudice, we reject his ineffective assistance of counsel claim.
Prosecutorial Misconduct
Defendant contends that the prosecutor committed misconduct by vouching for the Tanya’s credibility in argument, which resulted in a denial of due process. He argues that the issue has not been forfeited, but asserts that if this court finds forfeiture, then his trial counsel was ineffective for failing to object on the grounds of prosecutorial misconduct. The Attorney General argues that defendant has forfeited this claim by failing to object on the grounds of prosecutorial misconduct and failing to request an admonition in the trial court. He also argues that there was no prosecutorial misconduct.
Background
During his opening argument, the prosecutor addressed the issue of delayed reporting of the sex offenses, stating: “There’s a late disclosure and we have a bit of a delay in this case but not much. It’s very common in sexual assault cases.” Defense counsel objected on the ground that the prosecutor had stated facts not in evidence and made a motion to strike. The trial court impliedly sustained the objection and told the jury, “Ladies and gentlemen, I remind you it is your memory of the evidence that controls here and the actual evidence. The attorneys’ arguments, again, are not evidence.” Defendant contends that the prosecutor’s remark constitutes misconduct that warrants reversal under both the federal and state standards.
Forfeiture of Prosecutorial Misconduct Claim
“ ‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’ ” (People v. Hill (1998)17 Cal.4th 800, 820 (Hill) citing People v. Samayoa (1997) 15 Cal.4th 795, 841.) “ ‘Because we do not expect the trial court to recognize and correct all possible or arguable misconduct on its own motion [citations], [the] defendant bears the responsibility to seek an admonition if he [or she] believes the prosecutor has overstepped the bounds of proper comment, argument, or inquiry.’ ” (Wilson, supra, 44 Cal.4th at p. 800.)
“The foregoing, however, is only the general rule. A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal ‘ “if an admonition would not have cured the harm caused by the misconduct.” ’ [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if ‘the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.’ ” (Hill, supra, 17 Cal.4th at pp. 820-821.)
Defendant argues that he has not forfeited his prosecutorial misconduct claim, reasoning that although his trial counsel neglected to object on the grounds of prosecutorial misconduct, he did correctly object that the prosecutor’s argument was based on facts that were not in evidence. He reasons further that the trial court did not rule on his objection, but simply admonished the jury that the prosecutor’s argument was not evidence, and that any further objection and request for an admonition was therefore futile.
We agree that there has been no forfeiture, but arrive at that conclusion by way of a different analysis. Error through prosecutorial misconduct may take a number of forms, including referring to facts not in evidence. (See, e.g., Hill, supra, 17 Cal.4th at pp. 823-837 [prosecutor committed misconduct by misstating the evidence, referring to facts not in evidence, misstating the law, making derisive comments about defense counsel, engaging in rude or demeaning behavior toward defense counsel, relying on Biblical doctrine, and intimidating witnesses].) In this case, defense counsel objected that the prosecutor had referred to facts not in evidence when the prosecutor told the jury that delayed reporting was very common in sexual assault cases. The court had already instructed the jurors that what the attorneys say is not evidence. The court impliedly sustained defendant’s objection when it admonished the jury to base its decision on the evidence and reminded the jury that the attorneys’ arguments are not evidence. We hold that defendant’s objection that the prosecutor’s argument was based on facts not in evidence, coupled with the motion to strike the offending argument, was sufficient to preserve the issue of prosecutorial misconduct based on stating facts not in evidence for appeal.
General Principles Regarding Prosecutorial Misconduct
“Prosecutorial misconduct implies a deceptive or reprehensible method of persuading the court or jury.” (People v. Price (1991) 1 Cal.4th 324, 448, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165.) Although prosecutors are given “wide latitude” in arguing their cases, they nevertheless “are held to an elevated standard of conduct.” (Hill, supra, 17 Cal.4th at p. 819.) The imposition of this higher standard is justified by their “unique function... in representing the interests, and in exercising the sovereign power, of the state.” (Id. at p. 820.)
As a matter of federal constitutional law, a prosecutor’s behavior constitutes prejudicial misconduct when it is “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.” (Hill, supra, 17 Cal.4th at p. 819, internal quotation marks omitted.) Thus, for example, federal constitutional error may be found where a pervasive pattern of misconduct “threatened defendant’s right to a fair trial.” (Id. at p. 838.)
To warrant reversal, the challenged conduct must be prejudicial. “What is crucial to a claim of prosecutorial misconduct is... the potential injury to the defendant.” (People v. Benson (1990) 52 Cal.3d 754, 793.) When the claim “focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Samayoa, supra, 15 Cal.4th at p. 841; see also, e.g., People v. Smithey (1999) 20 Cal.4th 936, 960.) To answer that question, we examine the prosecutor’s statement in the context of the whole record, including arguments and instructions. (Hill, supra, 17 Cal.4th at p. 832; People v. Morales (2001) 25 Cal.4th 34, 44.) “In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved of on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 420; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 647.)
The applicable standard of appellate review for assessing prejudice depends on whether the misconduct amounts to federal constitutional error. If it does, we apply the Chapman standard and decide whether the error is harmless beyond a reasonable doubt. (See People v. Estrada (1998) 63 Cal.App.4th 1090, 1106-1107, citing Chapman v. California (1967) 386 U.S. 18, 24.) If the error does not rise to that level, we apply our state constitution’s Watson standard to determine if there is a reasonable probability of a different result. (People v. Espinoza (1992) 3 Cal.4th 806, 820-821, citing People v. Watson (1956) 46 Cal.2d 818, 835.) Under that standard, “a miscarriage of justice has occurred when the case is closely balanced and the acts of misconduct are such as to have contributed materially to the verdict.” (People v. Wagner (1975) 13 Cal.3d 612, 621.)
As the Supreme Court explained in Hill, referring to facts not in evidence “is ‘clearly... misconduct’ [citation], because such statements ‘tend[] to make the prosecutor his own witness-offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, ‘although worthless as a matter of law, can be ‘dynamite’ to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.” [Citations.]’ [Citations.] ‘Statements of supposed facts not in evidence... are a highly prejudicial form of misconduct, and a frequent basis for reversal.’ ” (Hill, supra, 17 Cal.4th at pp. 827-828.)
In our view, the challenged comment, even if misconduct, was entirely harmless. First, defendant complains of a single comment by the prosecutor. Second, defense counsel promptly objected and the trial court immediately sustained the objection and admonished the jury, thereby diminishing any prejudice flowing from the prosecutor’s reference to facts not in evidence. (Hill, supra, 17 Cal.4th at p. 845.) On this record, we cannot say that the prosecutor’s behavior was so egregious that it infected the trial with such unfairness as to make the conviction a denial of due process under the federal standard for prejudicial misconduct or that it involved the use of deceptive or reprehensible methods to attempt to persuade the jury under state law. (Hill, supra, 17 Cal.4th at p. 819.) We therefore reject defendant’s claim of prosecutorial misconduct.
Alleged Instructional Error
Defendant contends that the trial court erred when it instructed the jury that evidence of his gang affiliation could be considered for a purpose other than the limited purpose for which it was admitted, resulting in a denial of due process. Specifically, defendant asserts that the gang evidence was admitted “only for the purpose of proving that Tanya reasonably feared [defendant] could or would carry out [the criminal] threats” alleged in count 2 and that the court erred when it instructed the jury that it could consider the gang evidence for the limited purpose of deciding whether defendant accomplished the acts of oral copulation charged in counts 1 and 3 “by force, violence, duress, menace or fear.”
The Attorney General argues that defendant has forfeited this issue by failing to object on this basis in the trial court and that there has been no denial of due process.
Background and Instruction at Issue
As noted before, the prosecutor raised the issue of the admission of evidence of defendant’s gang affiliation in limine and argued that the gang evidence was relevant to the victim’s state of mind with regard to the criminal threats (§ 422) charged in count 2. The court responded that the gang evidence was relevant to the victim’s state of mind and would be admissible with a limiting instruction. The court stated that the gang evidence was relevant only to the extent that Tanya believed defendant was in a gang and whether that affected her level of fear. The court stated that it would not permit a gang expert to tell the jury that defendant was a “gangster” or how gangs act. The trial court ruled that the gang evidence would come in to prove that the victim’s state of mind was one of fear, but did not limit the admission of the evidence to a particular count. The court told the parties that if the circumstances changed, then its in limine ruling could change.
As we noted previously, whether defendant accomplished the offense by fear was an element of both the criminal threats charged in count 2 and the forcible oral copulations charged in counts 1 and 3. When the prosecutor asked the court to direct defendant to remove his shirt and show the jury his tattoos, the prosecutor argued that the tattoos were “relevant to the 422 charge and Tanya’s reasonable fear or her belief that the defendant could cause her harm or carry out his threats.” Arguably, this language encompassed both the criminal threats and the forcible oral copulation charges.
On the morning of the eighth day of trial, the court met with counsel in an unreported conference and discussed the jury instructions. Later, on the record, both counsel stated that they had no objections to the instructions and that there were no other instructions that they wanted the court to give.
The court instructed the jury with the following version of CALCRIM No. 1403: “You may consider evidence of gang activity only for the limited purpose of deciding whether: [¶] The defendant accomplished an act or acts of oral copulation by force, violence, duress, menace or fear. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.” Thus, the instruction limited the jury’s consideration of the gang evidence to the forcible oral copulation counts and did not mention the criminal threats.
Forfeiture
“ ‘Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’ [Citation.] But that rule does not apply when... the trial court gives an instruction that is an incorrect statement of the law.” (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012, citing People v. Smithey, supra, 20 Cal.4th at p. 976, fn. 7.) However, we may review a claim of instructional error that affects the defendant’s “substantial rights, ” with or without a trial objection. (§ 1259.) Although defendant did not object to CALCRIM No. 1403 at trial, he argues on appeal that the allegedly erroneous instruction violated his state and federal constitutional rights to due process and a fair trial because it compelled the jury to consider inadmissible, irrelevant character evidence. “[T]here is no forfeiture of an instructional issue on appeal where, as here, the issue asserts a violation of substantial constitutional rights.” (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574; People v. Barker (2001) 91 Cal.App.4th 1166, 1173, both citing People v. Smithey, at p. 976, fn. 7.) We shall therefore address the merits of the appeal.
Analysis of the Merits
Defendant asserts that the trial court erred in instructing the jury that it could consider the evidence of his gang affiliation for “the limited purpose of deciding whether [he] accomplished an act or acts of oral copulation by force, violence, duress, menace or fear.” He argues (1) that the trial court admitted the gang evidence on the criminal threats count only; (2) that the prosecutor relied on the gang evidence in his argument regarding the criminal threats count; (3) that the gang evidence was irrelevant to the oral copulation counts because Tanya testified that defendant’s gang “affiliation didn’t hurt [her], he did”; and (4) that the limiting language in the jury instruction prohibited the jury from using the gang evidence on the criminal threats count. From these facts, defendant reasons that the jury had only one option, which was to use the gang evidence to prove that defendant was a bad person with a propensity to commit crimes. Defendant contends that the instruction deprived him of his federal and state due process right to a fair trial because it compelled the jury to use inadmissible, irrelevant character evidence to show propensity.
Although the prosecution initially argued that the gang evidence was relevant to the criminal threats count, the court stated that it was relevant to Tanya’s state of mind and the element of fear in general terms and did not limit its admission to any particular count. The trial court also stated that its in limine ruling on the admissibility of the gang evidence could change if circumstances changed. As we observed before, Tanya’s state of mind was relevant to the element of fear in both the criminal threats and the oral copulation counts and this likely became clearer to the court as the trial unfolded. Tanya testified that the criminal threats and the first incident of forcible oral copulation occurred on separate occasions in mid-October 2005. The second incident of forced oral copulation occurred approximately two weeks later, on October 30, 2005. It would be reasonable to infer from the sequence of events that if Tanya feared defendant in mid-October, due in part to her belief that he was a gang member, that she harbored that same fear at the end of October.
The parties and the court had an unreported jury instructions conference. Later, both sides stated that they were satisfied with the jury instructions. It is reasonable to infer that the parties agreed to include the oral copulation counts in the CALCRIM No. 1403 instruction at the jury instruction conference, since the law and the evidence indicated that Tanya’s fearfulness was relevant to those counts. The record does not disclose why the parties did not include the criminal threats charge in the CALCRIM No. 1403 instruction, but that omission cannot be said to have prejudiced defendant.
Defendant attaches too much importance to Tanya’s testimony that defendant’s “affiliation didn’t hurt [her], he did.” As noted before, even though she made that statement, she also testified that she feared defendant in part because she thought he was in a gang. In addition, the prosecutor did not limit his argument that Tanya feared defendant because of his gang affiliation to the criminal threats count. He also related her fear based on defendant’s gang affiliation to the oral copulation charged in count 3 and (as defendant asserts in another part of his brief) arguably all of the counts.
The court also expressly instructed the jury that it was not to consider the gang evidence for any purpose other than determining whether defendant accomplished the oral copulations by force, violence, duress, menace or fear and that it was not to “conclude from this evidence that... defendant is a person of bad character or that he has a disposition to commit crime.” Thus, the wording of the instruction belies defendant’s assertion that the instruction compelled the jury to find that he was a bad person with a propensity to commit crimes. The court also instructed the jury that some of the “instructions may not apply, depending on [its] findings about the facts of the case.” Thus, if the jury had found that the CALCRIM No. 1403 instruction did not apply to the facts, it was not compelled to conclude that defendant was a person of bad character with a disposition to commit crime as defendant now asserts.
For all these reasons, we reject defendant’s assertion that the court erred when it instructed the jury with the version of CALCRIM No. 1403 used in this case.
Cumulative Error
Since we find no error, we also reject defendant’s claim of cumulative error.
Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.