Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County Nos. AF46191, MF46761. Carol K. Ash, Judge.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Poochigian, J.
STATEMENT OF THE CASE
On February 6, 2008, the Merced County Superior Court consolidated case Nos. AF46191 and MF46761 pending against appellant Matthew Alan Grose, and the district attorney filed a first amended information charging appellant as follows: counts 1and 2 --lewd or lascivious act upon J.B., a child under age 14 (Pen. Code, § 288, subd. (a)); count 3 -- false imprisonment of J.B. (§ 236); counts 4, 5, and 6 -- aggravated sexual assault upon J.B. (§ 269, subd. (a)(1)); count 7 -- lewd and lascivious act upon J.B. (§ 288, subd. (c)(1)); count 8 -- solicitation of the murder of J.B. (§ 653f, subd. (b)); count 9 -- attempted murder of J.B. (§§ 187, 664); count 10 -- solicitation of the murder of one C.J. (§ 653f, subd. (b)); and count 11 -- attempted murder of C.J. (§§ 187, 664).
The superior court directed that AF46191 be the lead case.
All further statutory citations are to the Penal Code unless otherwise indicated.
On March 27, 2009, after numerous continuances, the court denied appellant’s motion to set aside counts 9 and 11 of the first amended information on the ground the prosecution presented insufficient evidence at the preliminary hearing to hold him to answer (§ 995).
On June 23, 2009, jury trial commenced.
On July 2, 2009, the eighth day of trial, the jury returned verdicts finding appellant guilty as charged of all counts.
On August 14, 2009, the court denied appellant probation and sentenced him to an indeterminate term of 45 years to life and a total determinate term of 17 years 10 months. Specifically, the court imposed indeterminate terms of 15 years to life in state prison on counts 4, 5, and 6. The court imposed the upper term of nine years on count 9 and a consecutive term of three years six months on count 11, consecutive terms of two years each on counts 1 and 2, consecutive terms of eight months each on counts 3 and 7, and stayed sentence on counts 8 and 10 (§ 654). The court awarded 944 days of custody credits, imposed a $10,000 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and ordered victim restitution in an amount to be determined (§ 1202.4, subd. (f)).
On August 24, 2009, appellant filed a timely notice of appeal.
We affirm the judgment of conviction, note several instances of conceded sentencing error, and remand to the superior court for resentencing.
FACTS
J.B. was born in 1993. Her mother was married to appellant from 2006 to 2007. During that period, J.B. became friends with appellant’s daughter. Appellant beat J.B.’s mother and J.B. was afraid of him. Appellant and J.B.’s mother separated in 2007, but J.B. would visit his home to spend time with appellant’s daughter.
In early 2007, J.B. was 13 years old and appellant was in his 40’s. On one occasion in February, J.B. was watching television at appellant’s home when he asked her to come into his bedroom. Appellant asked her to lie down on the floor and then he touched her breast under her clothing. J.B. became scared and did not tell any adults about the touching. However, she told appellant’s daughter what happened and appellant’s daughter urged her to tell an adult. J.B. could not bring herself to do so.
In March 2007, J.B. went to appellant’s home, and he asked her to come into the bedroom to listen to some CDs on his computer. She entered the room, he closed the door, and he touched her breast and vagina. He also penetrated her. J.B. told him to stop but, appellant engaged in sexual conduct for 15-20 minutes. During the assault, appellant had a pair of pliers affixed to one of the doors to the bedroom and she said she could not leave.
J.B. said she engaged in sexual intercourse with appellant “many times” and she lost count after 15 incidents. She said she was afraid of appellant and could not stop him from having sex with her. J.B. said on most of the occasions, he invited her into his room. She was afraid to decline because he could “yell really loud” when he was mad. J.B. said one or more of her sisters were present in appellant’s home when he assaulted her, with the exception of the first assault.
J.B. testified she did not tell any adults about the assaults because she did not think they would believe her. In May 2007, she and her grandmother went to a movie about a girl who was molested by her stepfather. J.B. said she started crying and her grandmother asked what was wrong. J.B. told her about the molestations. J.B. said she had seen her grandmother every other weekend while the assaults were occurring, but did not disclose them until May 2007.
C.J., born in 1992, was a good friend of appellant’s daughter. C.J. said her father had shot himself and she saw appellant as a father figure. She said appellant talked through her problems with her and helped her. C.J. said she looked up to appellant and “adored him.” She also said she trusted appellant with her life. In March 2007, C.J. spent the night at appellant’s home even though his daughter was not present. C.J. explained that appellant had watched her before, when her mother and sister went on the trip to Disneyland. On an evening in March 2007, C.J. and appellant dressed in their pajamas. Appellant’s bedroom did not have a mattress so they reclined on the floor.
At some point, appellant said something like, “Oh, baby, I know that you want this, ” and tried to touch her breasts. C.J. crossed her arms over her chest in response. Appellant then tried to pull down her boxer shorts, which she used as pajama bottoms. C.J. pulled them back up and appellant tried to pull them down again. C.J., then age 14, said she was scared and thought to herself, “Oh, my gosh, what’s going on? What is he doing? What am I doing? What should I do?” C.J. said she felt appellant’s erect penis against her body. She jumped up and demanded to be taken home. Appellant complied and acted as if nothing had happened. When C.J. arrived at home, she did not tell her mother what had happened.
D.F., appellant’s sister-in-law, was born in 1982. She was a frequent visitor to the home of her sister and appellant in 1994 and 1995. D.F. testified that appellant twice touched her inappropriately during that period of time. On the first occasion, she and appellant were on a fishing trip and appellant placed his hand on her thigh. On the second occasion, appellant put on a pornographic movie, sat on the couch where she was seated, and placed her head on his lap. Appellant penetrated D.F.’s vagina with his fingers while he watched television. She jumped up and ran screaming to her sister’s room. She left their house and started walking to her own home. D.F. testified that appellant followed her in his car and kept telling her she must have had a bad dream. D.F. reported the incident to police and they asked her to make a pretext call, but she declined to do so. The police did not pursue charges against appellant.
Richard Vaughn testified he and appellant were fellow inmates at Merced County Jail in 2007. According to Vaughn, appellant said he wanted to hire a hit man to have J.B. and C.J. killed so they would not be able to testify against him. Vaughn claimed appellant admitted to having intercourse with C.J. and molesting J.B., but “not completely.”
Vaughn had previously been convicted of sexual battery, first and second-degree burglary, escape, possession of a controlled substance, and indecent exposure. At the time he became acquainted with appellant, Vaughn was incarcerated for failing to register as a sex offender. Vaughn wrote to the Merced County District Attorney about appellant’s proposed plan and asked for release from custody in exchange for information. Vaughn said appellant wanted to hire a hit man, and appellant gave Vaughn a map that showed where the victims lived. The map depicted a McDonald’s Playland on Olive Avenue. Vaughn said he and appellant exchanged several notes about the proposed elimination of the two girls. Vaughn said his role was that of a middleman, a person who was supposed to set up appellant with a hit man. The district attorney entered into a plea agreement with Vaughn in exchange for the latter’s information against appellant. Vaughn told appellant he could arrange for a hit man to carry out the killings. Vaughn and appellant communicated with each other via a series of notes passed inside the jail. Vaughn and appellant used code words in their communications. The word “cars” referred to the victims and the word “garage” referred to appellant’s mother-in-law. In one note, appellant wrote: “I’m going to let your bro know that those cars going to the wrecking yard is business, not personal.” In another note, appellant wrote: “So he [the hit man] would be able to get them to a car junkyard, so I could pull the lever on the smasher.” Vaughn said appellant meant that he wanted the two victims killed. Vaughn wrote appellant a note stating that he talked to his “brother” and that the latter wanted to show appellant some photos of the victims. Vaughn said he met with several detectives before one of them posed as a hit man and met with appellant.
After Vaughn contacted the district attorney, he began telling other inmates that appellant was a child molester. Vaughn encouraged another inmate to flood appellant’s cell. Vaughn made obscene gestures at appellant and sent him a little girl’s T-shirt and cut-off shorts to harass appellant. Vaughn said he believed appellant was a “piece of trash.” Vaughn testified, “I don’t like him and the motherf***er deserved it.”
After Vaughn contacted the district attorney’s office, Joseph Essig, an investigator with that office, visited appellant at the jail. The visit occurred August 23, 2007. Essig said he posed as a hit man, but never identified himself as such during his meeting with appellant. Essig used code words throughout his meeting with appellant. He referred to the prospective victims as “cars” and to their mothers as “garages.” Although he employed code language, Essig said appellant “knew exactly what we were talking about.” Essig said he learned the girls’ names from investigator, Albert Flores. Essig carried photographs of the two girls to the meeting and showed them to appellant. According to Essig, the original price for killing the girls was $20,000 but appellant tried to reduce it to $3,000 during their meeting. Essig said he pretended to be upset with appellant’s lack of funds and he and appellant then “haggled a little bit.” Appellant offered $3,000 as good faith money and identified J.B. as the person he wanted murdered first. Essig said he departed the jail and “the theory was that he [appellant] … would be contacted over the course [of time] to make payment on the murders that had been committed.” Essig said he had no doubt that appellant wanted the two girls murdered because Essig asked appellant twice. Essig said he wore a hidden video camera device, and the meeting with appellant was recorded.
The jury viewed the video recording of Essig’s meeting with appellant. At one point in their meeting, Essig asked appellant, “So you, you want me to make, you want me to make sure that [I] take care of your vehicles and for the, the twenty and a good faith effort for three.” Appellant responded, “Yeah.”
Defense Evidence
Phillip Hamm, Ph.D., a licensed California psychologist, testified he was retained to review the solicitation portion of appellant’s case. Dr. Hamm said appellant suffered from bipolar affective illness, a disorder of mood that causes the subject to lose contact with reality. Dr. Hamm said people with the disorder usually have hallucinations or delusions or both. Dr. Hamm said appellant suffered auditory hallucinations, or heard voices, at the time of the alleged solicitations of murder. According to Dr. Hamm, appellant was anxious, depressed, having panic attacks, suffered from dysphoria, and was taking medications for his disorder at the time of the alleged solicitations. In response to a hypothetical question, Dr. Hamm agreed that someone in appellant’s position was susceptible to being fooled into a solicitation plot. Hamm explained: “[N]ormally there is an impairment [in] intellectual functioning which then impairs decision-making and judgment. And, secondly, the individual can be highly susceptible to being influenced or controlled by someone else, suggestible.”
Appellant testified on his own behalf. He said he was age 42 at the time of trial. He denied locking J.B. in the bedroom and denied touching C.J. or D.F. in an inappropriate manner. Appellant denied trying to hire anyone to kill the girls. Appellant said his fellow inmate, Richard Vaughn, told him, “I know how to get you out of this.” According to appellant, Vaughn said he had a brother who was an attorney with the firm of Vaughn and Falasco. When appellant conferred with Investigator Essig, he thought he was meeting to hire him as a lawyer. Appellant said he gave Essig information about the mothers of J.B. and C.J. so Essig could have an investigator locate them and interview them as witnesses. Appellant said he referred to the girls as “cars” on the advice of Vaughn.
On cross-examination appellant denied the inappropriate touching of the girls. He admitted that J.B. would go into the bedroom for periods of time, but she did so for the purpose of “[m]aking music and putting music on her iPod.” Appellant said he thought Essig was a lawyer because he talked like a lawyer. Appellant also said he did not know how lawyers behaved during jail visits “seeing as how I didn’t see my attorney in jail.”
When asked about reasons for the allegations of the girls, appellant said: “I believe that my daughter and – [C.J.] and [J.B.] got together because my two daughters wanted to go live with their mom. They were reaching teen years, and they wanted to spend those with their mother. And I think my ex-wife was partially involved by telling [my daughter] to … think of something to get her out of the house.”
Although appellant did not identify the “two daughters, ” he may have been referring to J.B.’s 12-year-old stepsister and nine-year-old half sister.
DISCUSSION
I. THERE WAS SUFFICIENT EVIDENCE TO PROVE TWO COUNTS OF ATTEMPTED MURDER
Appellant contends there was insufficient evidence to prove that he committed attempted murder, as charged in counts 9 and 11.
1. Specific Contention
Appellant argues:
“Here, Mr. Grose had not even reached an agreement on the payment plan, much less paid the alleged assassin for his efforts. Unlike [the situation in People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7, (Decker)], there had only been one meeting between Mr. Grose and the alleged assassin, and their conversations hardly involved the repeated, unequivocal assertions that [defendant] Decker made about both his clear intent to consummate the crime and his suggestions of how it [should] be done. Indeed, when Essig left Mr. Grose, Mr. Grose had no idea what means Essig planned to use to commit the crime or when he planned to do it. Essig told Mr. Grose, ‘So you, you want me to make, you want me to make sure that [I] take care of your vehicles and for the, the twenty and a good faith effort for three, ’ which sounds like Essig wasn’t even sure himself what he was agreeing to do.
“To the extent that Mr. Grose and Essig reached any agreement -- a point that Mr. Grose does not concede -- at most that agreement was that Mr. Grose would pay $3,000 up front and the remainder of the $20,000 later. But no $3,000 payment was made, nor did the parties make any arrangements to pay Essig $3,000. The transcript does not show anything beyond the solicitation of Essig’s participation sufficient to prove the crime ripened into an attempt. [¶] … [¶]
“ … Decker, which dealt with negotiations that were far more detailed, direct and involved than those shown in Mr. Grose’s case, did not say that identifying the proposed victims and where they spent time would necessarily prove attempt. When an essential part of the plan -- the good faith payment -- was never consummated or agreed upon, nor were there plans on how to consummate that part of the plan, the other evidence of planning was insufficient to move the solicitation close enough to attempt to prove the greater offense.”
B. Standard of Review
In reviewing a criminal conviction for the alleged lack of evidentiary support, we must review the whole record in the light most favorable to the judgment. We must determine whether the record discloses substantial evidence, i.e., evidence that is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) We must view the evidence in a light most favorable to the People and presume in support of the judgment the existence of every fact the trier reasonably could deduce from the evidence. If the circumstances reasonably justify the findings of the trial court, reversal is not warranted simply because the circumstances also might be reconciled with a contrary finding. The test on appeal is whether there was substantial evidence to support the conclusion of the trier of fact and not whether guilt was established beyond a reasonable doubt. (People v. Williams (1971) 5 Cal.3d 211, 214.)
C. Law Governing Attempted Murder
Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. A defendant’s intent is rarely susceptible of direct proof, and may be inferred from the facts and circumstances surrounding the offense. A direct threat to kill, followed by unequivocal actions, provides a particularly strong set of circumstances. (People v. Felix (2009) 172 Cal.App.4th 1618, 1624-1625.) A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action and indicates a definite and unambiguous intent to kill. A direct step is a direct movement toward the commission of the crime after preparations are made and is an immediate step that puts the plan into motion so that the plan would have been completed if circumstances outside the plan had not interrupted the attempt. (People v. Lawrence (2009) 177 Cal.App.4th 547, 556.)
In Decker, the defendant was charged with the attempted murder of his sister and his friend. According to evidence introduced at the preliminary hearing, Decker did not want to kill the two women himself so he sought the services of a hired assassin. Decker located a person he thought was an assassin. He furnished the assassin with a description of his sister, her home, vehicle, and workplace, and also furnished specific information about her daily habits. He advised the assassin to kill his sister’s girlfriend, if necessary, to avoid leaving a witness behind. Decker and the assassin, agreed on the means to commit the murder, the method of payment, and the price. They agreed that Decker would pay a $5,000 cash down payment. Before Decker handed over the down payment, the assassin asked whether Decker was certain he wanted to go through with the murders. Decker said, “ ‘I am absolutely, positively, 100 percent sure, that I want to go through with it. I’ve never been so sure of anything in my entire life.’ ” Decker’s words were recorded because he was talking with an undercover police detective posing as a hired assassin. Decker conceded this evidence was sufficient to hold him to answer to the charge of solicitation for murder. However, he argued the evidence was insufficient to support a charge of attempted murder. The superior court dismissed the attempted murder charges, the First District Court of Appeal disagreed and ordered reinstatement of those charges, and the Supreme Court upheld the ruling of the appellate court. (Id. at pp. 4-5.)
The uncontradicted evidence showed that Decker had the specific intent to kill his sister. He expressed to a gunsmith acquaintance and the undercover detective his desire to have her killed. He researched how to find a hired assassin. He spent months accumulating cash in small denominations to provide a down payment to a hired assassin. He worked out a method for paying the balance to the assassin. Decker knew the layout of his sister’s condominium and knew how one might enter it surreptitiously. He tested the level of surveillance in the vicinity of his sister’s home. He chronicled his sister’s daily routine at home and work. He offered the undercover detective recommendations on how his sister should be killed and the necessary materials for inflicting death. (Decker, supra, 41 Cal.4that pp. 7-8.)
The Supreme Court observed:
“The controversy in this case … is whether there was also a direct but ineffectual act toward accomplishing the intended killings. For an attempt, the overt act must go beyond mere preparation and show that the killer is putting his or her plan into action; it need not be the last proximate or ultimate step toward commission of the crime or crimes (People v. Kipp (1998) 18 Cal.4th 349, 376), nor need it satisfy any element of the crime (People v. Dillon (1983) 34 Cal.3d 441, 454). However, as we have explained, ‘[b]etween preparation for the attempt and the attempt itself, there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after the preparations are made.’ (People v. Murray (1859) 14 Cal. 159; see also People v. Anderson (1934) 1 Cal.2d 687, 689-690.) ‘ “[I]t is sufficient if it is the first or some subsequent act directed towards that end after the preparations are made.” ’ (People v. Memro (1985) 38 Cal.3d 658, 698.)
“As simple as it is to state the terminology for the law of attempt, it is not always clear in practice how to apply it.… Indeed, we have ourselves observed that ‘none of the various “tests” used by the courts can possibly distinguish all preparations from all attempts.’ (People v. Memro, supra, 38 Cal.3d at p. 699.)
“Although a definitive test has proved elusive, we have long recognized that ‘[w]henever the design of a person to commit crime is clearly shown, slight acts in furtherance of the design will constitute an attempt.’ [Citations.]” (Decker, supra, 41 Cal.4th at p. 8.)
Viewing the entirety of Decker’s conduct in light of his clearly expressed intent, the Supreme Court found sufficient evidence under the “slight-acts rule” (Decker, supra, 41 Cal.4th at p. 9) to hold him to answer to the charges of attempted murder of his sister and her girlfriend. At the time Decker handed the detective the down payment on the murder, Decker’s intention was clear, and it was equally clear that he was actually putting his plan into action. Decker had secured an agreement with the undercover detective to murder the sister and, if necessary, her friend. He provided the detective with all the information necessary to commit the crime and had given the detective the $5,000 down payment. Decker understood that “ ‘it’s done’ ” (ibid.) once the detective left with the money. These facts would lead a reasonable person to believe a crime is about to be consummated absent an intervening force. Although Decker did not personally point a gun at his sister, he did aim at her an armed professional who had agreed to commit the murder. Decker effectively did all that he needed to do to ensure that his sister and her friend would be executed. (Id. at pp. 8-9, 14.)
D. Analysis
Appellant contends the instant case is factually distinguishable from Decker. He notes the Decker case dealt with negotiations that were far more detailed, direct, and involved than those in the instant case. Moreover, an essential part of the plan -- the good faith payment -- was never consummated or agreed upon in this case. In appellant’s view, “the other evidence of planning was insufficient to move the solicitation close enough to attempt to prove the greater offense.” Respondent maintains appellant “committed further acts toward the completion of the killings” by drawing a map of the locations at which the victims might be found, by agreeing to the monetary payment for the murders, and by confirming the identity of the proposed murder victims based on the photographs that Essig brought to the jail.
“ ‘Solicitation is defined as an offer or invitation to another to commit a crime, with the intent that the crime be committed. The crime of solicitation … is complete once the verbal request is made with the requisite criminal intent; the harm is in asking, and it is punishable irrespective of the reaction of the person solicited. Thus, solicitation does not require the defendant to undertake any direct, unequivocal act towards committing the target crime; it is completed by the solicitation itself, whether or not the object of the solicitation is ever achieved, any steps are even taken towards accomplishing it, or the person solicited immediately rejects it.’ ” (People v. Wilson (2005) 36 Cal.4th 309, 328, quoting In re Ryan N. (2001) 92 Cal.App.4th 1359, 1377-1378.) Solicitation may develop into an attempt and then into murder itself. The differences in these crimes relate to the people involved and the progression of the activity toward the criminal objective. (People v. Bottger (1983) 142 Cal.App.3d 974, 981.) When the design of a person to commit a crime is clearly shown, slight acts in furtherance of that design will constitute an attempt. (Decker, supra, 41 Cal.4th at p. 8.)
Section 653f, the law governing solicitation, has the twofold purpose of protecting the inhabitants of California from being exposed to inducement to commit or join in the commission of crimes and preventing solicitations from resulting in the commission of the crimes solicited. (People v. Saephanh (2000) 80 Cal.App.4th 451, 459.)
In the instant case, appellant, through fellow inmate Richard Vaughn, solicited a purported hit man to kill J.B. and C.J. Appellant and Vaughn exchanged a series of notes regarding the hiring of a hit man. One of appellant’s notes listed C.J.’s name, her recent address, the fact she was in foster care, and the name of her high school. According to Vaughn, appellant “wanted two little girls eliminated -- killed, and he wanted the mother-in-law killed.” Appellant went on to draw a map of the locations at which the prospective victims might be located, and he gave that map to Vaughn. Vaughn said his involvement was as a “middleman” and his responsibility was to set appellant up with a hit man.
The reference to the mother-in-law was apparently to the grandmother of J.B.
Appellant eventually spoke with the purported hit man, undercover investigator Joseph Essig of the Merced County District Attorney’s Office. The pair discussed monetary payment for the prospective murders, agreeing to a $3,000 good faith down payment and a total price of $20,000. Essig brought pictures of the prospective victims to a meeting with appellant. That meeting took place in the Latorraca Facility of the Merced County Jail on Sandy Mush Road. Appellant confirmed the identity of the people he wanted murdered. Appellant indicated to Essig that he wanted J.B. murdered first.
The following exchange occurred during the recorded conversation between appellant and Essig:
“JE [Investigator Essig]: … Now here’s, here’s where we’re coming down to here. Now I understand … we’re set on … me taking care of both of these, both these cars. Right?
“MG [Appellant]: Yeah.
“JE: [A]nd they’re at the, the garages I, I talked to you about?
“MG: Yeah. [¶] … [¶]
“JE: Alright. Next time you hear from Bro [Vaughn] … when you hear him use the, the phrase, uh, ‘The eagle shits.’ Ok? He’s gonna have some bank account numbers … for you to deposit money. And speaking of money, what are we talking about here?
“MG: Um, I’m gonna have to get out to take care of that.
“JE: Uh, chwwww.
“MG: That, I, I, thought he had told you about that. [¶] … [¶]
“JE: Well, how about good faith? What can you do for good faith?
“MG: Uh.
“JE: While I wait?
“MG: I got three.
“JE: Ok. Cause base … Alright. … Cause I already have about a grand into this, uh, operation here. Alright? And, and that’s is what I need to do here. Tryin to piece meal this out. We’re in the lion[']s den and I don’t like being here.
“MG: I know. [¶] … [¶]
“JE: Alright? Especially the second one [victim]. Ok. That one, you really, cause the first one’s gonna alert the second one. Ok? You see what I’m sayin? Alright, alright. So, alright. You’re, you’re sure you’re still.… Cause when I got, when I walk outta here, the wheels are gonna start rollin. Alright? So you, you want me to make, you want me to make sure that [I] take care of your vehicles and for the, the twenty and a good faith effort for three.
“MG: Yeah.”
Essig testified at trial that when he left the meeting with appellant, Essig understood appellant “would be contacted over the course [of time] to make payment on the murders that had been committed.” According to Essig, the only thing left to do was to commit the murders and collect the money. Essig said there was “[n]o doubt in my mind” that appellant wanted the witnesses murdered.
The California Supreme Court has held: “ ‘[T]here is a material difference between the preparation antecedent to an offense and the actual attempt to commit it. The preparation consists of devising or arranging the means or measures necessary for the commission of the offense, while the attempt is the direct movement toward its commission after the preparations are made. In other words, to constitute an attempt the acts of the defendant must go so far that they would result in the accomplishment of the crime unless frustrated by extraneous circumstances.’ ” (People v. Memro, supra, 38 Cal.3d at p. 698.)
In our view, the appellant’s contacts with fellow inmate Richard Vaughn constituted preparation, i.e., the devising or arranging of the means or measures necessary for the commission of the proposed homicides. Appellant’s jailhouse conference with Essig went beyond the purview of “preparation” into “the direct movement” toward the commission of multiple homicides. Appellant confirmed the identity of the people he wanted murdered. Appellant indicated to Essig that he wanted J.B. murdered first. Essig said when he left the meeting with appellant, Essig understood appellant “would be contacted over the course [of time] to make payment on the murders that had been committed.” According to Essig, the only thing left do was to commit the murders and collect the money. At the conclusion of his recorded conversation with appellant, Essig said, “[W]hen I walk outta here, the wheels are gonna start rollin.” Appellant replied, “Yeah.” Essig testified at trial that there was “[n]o doubt in my mind” that appellant wanted the witnesses murdered because “I asked him twice.”
From the entirety of the evidence, the jury could conclude beyond a reasonable doubt that appellant had the specific intent to commit the crime of murder as to multiple victims. As to the existence of a direct but ineffectual act, a defendant’s conduct satisfies the test for an overt act when, by reason of his or her conduct, the situation is without any equivocality and it appears the design will be carried out if not interrupted. (Decker, supra, 41 Cal.4th at p. 13.) Near the conclusion of their meeting, Essig told appellant, “[W]hen I walk outta here, the wheels are gonna start rollin. Alright? So you, you want me to make, you want me to make sure that [I] take care of your vehicles … for the … twenty and a good faith effort for three.” Appellant answered in the affirmative, “Yeah.” From that jailhouse conversation between appellant and Essig, the jury could also infer beyond a reasonable doubt that appellant performed direct but ineffectual acts toward the commission of two murders, i.e., that appellant was putting his plan into action. (Id. at p. 8.)
Viewing the whole record in the light most favorable to the judgment, we find the verdicts on counts 9 and 11 were supported by substantial evidence and the judgment of conviction as to those counts must be affirmed.
II. THERE WAS SUFFICIENT EVIDENCE TO PROVE A FELONY CHARGE OF FALSE IMPRISONMENT
Appellant contends there was insufficient evidence to prove felony false imprisonment of J.B. as alleged in count 3.
1. Specific Contention
Appellant specifically argues:
“Mr. Grose was convicted of one felony count of false imprisonment, count three, based on the allegation that during one of his sexual assaults on [J.B.], he prevented her from leaving the room by placing pliers on one of the doors to his room. [Citations.] More specifically, [J.B.] testified that one day she was at Mr. Grose’s house to visit his daughter … when he asked her to go into his room to listen to music on his computer. When she went in, he closed the doors. There were either two or three doors into the room. After she sat down next to the wall to listen to music, she testified, Mr. Grose began touching her breast and vagina. Then he took out his penis and had intercourse with her. [J.B.] wanted to leave but saw there were pliers on one of the doors, keeping it shut. [Citations.]
“She told Mr. Grose she wanted to leave to play with [appellant’s daughter], but he replied that [appellant’s daughter] could wait. After he ejaculated, Mr. Grose removed the pliers from the door and she got up and left. [Citations.]
“[J.B.] never explained how the other doors to Mr. Grose’s room were closed or secured, and neither lawyer asked her. Even when she claimed during the taped interview that Mr. Grose locked all three doors to the room, she never explained how he did so.
“This evidence fails to demonstrate Mr. Grose prevented [J.B.] from leaving his bedroom or that he did so with violence, menace, fraud, or deceit necessary to prove a felony violation of false imprisonment. This Court should therefore reverse the judgment on count three.” (Fn. omitted.)
B. Standard of Review
In reviewing a criminal conviction for the alleged lack of evidentiary support, we must review the whole record in the light most favorable to the judgment. We must determine whether the record discloses substantial evidence, i.e., evidence that is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hillhouse, supra, 27 Cal.4th at p. 496.) We must view the evidence in a light most favorable to the People and presume in support of the judgment the existence of every fact the trier reasonably could deduce from the evidence. If the circumstances reasonably justify the findings of the trial court, reversal is not warranted simply because the circumstances also might be reconciled with a contrary finding. The test on appeal is whether there was substantial evidence to support the conclusion of the trier of fact and not whether guilt was established beyond a reasonable doubt. (People v. Williams, supra, 5 Cal.3d at p. 214.)
C. Law of False Imprisonment
Section 236 states:
“False imprisonment defined. [¶] False imprisonment is the unlawful violation of the personal liberty of another.”
Under section 236, false imprisonment is the unlawful violation of the personal liberty of another. Section 237 makes false imprisonment a felony if it is effected by “violence, menace, fraud, or deceit.” The misdemeanor offense requires no force beyond that necessary to restrain the victim. Any exercise of force, or express or implied threat of force, by which the other person is deprived of his liberty or is compelled to remain where he or she does not wish to remain or to go where he or she does not wish to go, is false imprisonment. The elements of misdemeanor false imprisonment are also the elements of the felony. The felony offense requires physical force used for restraint over and above the force reasonably necessary to effect the restraint. Menace means express or implied threat of harm by word or by act. (People v. Babich (1993) 14 Cal.App.4th 801, 806-807; see also People v. Reed (2000) 78 Cal.App.4th 274, 280.)
D. Analysis
Appellant acknowledges that J.B. testified “Mr. Grose kept her in the bedroom against her will by placing a pliers [sic] on one of the doors.” He goes on to argue: “But she never said anything about the other door in the room, other than testifying it was closed, and never explained why she could not have left through that door. She also never testified that Mr. Grose used words, threats, physical intimidation, or a weapon to keep her from leaving the room.”
J.B. testified appellant assaulted her on a second occasion. During that assault, he placed a pair of pliers on one of two main doors to the bedroom and then forced her to engage in intercourse. When counsel asked whether she tried to escape during the assault, J.B. testified, “I looked -- I went to get up and I saw the door that he had -- the pliers on there that I’ve -- I don’t know how to describe ‘em, they’re pliers that I can’t get off the door.” J.B. said she told appellant she wanted to play with his daughter but appellant said, “She can wait.” J.B. said appellant penetrated her for 15 to 20 minutes. She testified: “I told him for the last time that I wanted to leave, and he said -- he finally gave in and said ‘all right, ’ so I put my pants back on and I just left him. I asked him to take the pliers off the door and he did.” J.B. said appellant stayed in the room for about an hour after she left.
This court has held that “menace” is a verbal or physical threat of harm and the threat of harm may be express or implied. An express or implied threat of harm does not require the use of a deadly weapon or an express verbal threat to do additional harm. Threats can be exhibited in a number of ways, verbally and by conduct. (People v. Aispuro (2007) 157 Cal.App.4th 1509, 1512-1513, opn. of Kane, J.) In this case, J.B. testified she was 13 years old when the sexual assaults occurred in 2007. She also testified she was scared of appellant “[b]ecause he was huge, he was bigger than me.” On the occasion of the second incident, appellant shut all the doors to the bedroom and placed a pair of pliers on one of the doors. J.B. said she wanted to “get out of there really fast.” J.B. told appellant she wanted to play with appellant’s daughter, but appellant told her “she can wait.” J.B. said she did not feel that she, by herself, could stop appellant from having sex with her. J.B. said she did not want to have sex with appellant and that she was scared of him. J.B. also testified she felt “[t]errified” when appellant had sex with her.
In our view, the jury could reasonably construe the foregoing facts to establish an express or implied threat of harm by appellant against J.B.
I. THE PROSECUTOR’S CONDUCT DURING CROSS-EXAMINATION AND CLOSING ARGUMENT DOES NOT REQUIRE REVERSAL
Appellant contends the prosecutor engaged in prejudicial misconduct while cross-examining appellant and making his closing argument.
A. Law of Prosecutorial Misconduct
The Supreme Court recently observed:
“We review claims of prosecutorial misconduct pursuant to a settled standard. ‘Under California law, a prosecutor commits reversible misconduct if he or she makes use of “deceptive or reprehensible methods” when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant’s specific constitutional rights--such as a comment upon the defendant’s invocation of the right to remain silent--but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action “ ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” ’ [Citations.] In addition, ‘ “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 [Citation.].” ’ [Citation.] Objection may be excused if it would have been futile or an admonition would not have cured the harm.” (People v. Dykes (2009) 46 Cal.4th 731, 760.)
“A defendant claiming that one of these exceptions applies must find support for his or her claim in the record. [Citation.] The ritual incantation that an exception applies is not enough.” (People v. Panah (2005) 35 Cal.4th 395, 462.) The futility exception will only be found to apply in extreme cases. (See People v. Boyette (2002) 29 Cal.4th 381, 432.)
Where a defendant has preserved a claim of prosecutorial misconduct for review, we must first determine whether misconduct occurred. (People v. Welch (1999) 20 Cal.4th 701, 752.) “When a prosecutor’s intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated. Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury. [Citation.]” (People v. Panah, supra, 35 Cal.4th at p. 462; accord, e.g., People v. Samayoa (1997) 15 Cal.4th 795, 841.) “When the issue ‘focuses on 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.’ [Citations.] Moreover, prosecutors ‘have wide latitude to discuss and draw inferences from the evidence at trial, ’ and whether ‘the inferences the prosecutor draws are reasonable is for the jury to decide.’ [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.) In making the pertinent inquiry, “we do not lightly infer that the prosecutor intended his remarks to have their most damaging meaning or that the jury drew that meaning rather than the less damaging one.” (People v. Howard (1992) 1 Cal.4th 1132, 1192.) If we find misconduct occurred, we then determine “whether it is ‘reasonably probable that a result more favorable to the defendant would have occurred’ absent the misconduct. [Citation.]” (People v. Welch, supra, 20 Cal.4th at p. 753.) Where the trial court has made a ruling on a claim of prosecutorial misconduct, we review that ruling for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 213.)
2. The Prosecutor’s Challenged Statements and the Parties’ Arguments on Appeal
Appellant cites 13 instances of alleged prosecutorial misconduct during the presentation of evidence and 13 instances of alleged prosecutorial misconduct during argument.
As to the prosecutor’s conduct during cross-examination, appellant argues:
“Virtually all of the prosecutor’s cross-examination of Mr. Grose involved sarcastic, abusive questioning designed to berate Mr. Grose and diminish his credibility in front of the jury. A few of the questions suggested facts not in evidence. When the questioning would become excessively argumentative and sarcastic, defense counsel would object, with most of the objections being sustained. But even when some were sustained, the prosecutor tried to reask a few questions without substantively changing the topic. And other times, the court improperly overruled the objections.”
As to the closing argument, the prosecutor referred to the victims as “heroes, ” referred to appellant as a “pervert, ” described appellant as an authority figure who took advantage of the victims’ trust, said the victims’ had their innocence stolen, characterized appellant as a “monster” who molested little girls and tried to have them killed, said child molesters were at the bottom of the hierarchy of crime, and said appellant had no remorse.
As to cross-examination, the People concede many of the prosecutor’s questions were “somewhat snide and pointed.” The People nevertheless maintain the permissible scope of cross-examination is very wide when a criminal defendant takes the stand and that vigorous cross-examination is designed to test the defendant’s credibility. (People v. Cooper (1991) 53 Cal.3d 771, 822-823.) With respect to the argument, the People acknowledge the prosecutor’s comments were again “personal and somewhat pointed.” Nevertheless, they submit a prosecutor is given wide latitude during argument, and vigorous argument is permissible provided it amounts to fair comment on the evidence, including reasonable inferences or deductions to be drawn from such evidence. (People v. Ward (2005) 36 Cal.4th 186, 215.)
3. Preservation of Claim of Misconduct
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. Sapp (2003) 31 Cal.4th 240, 279; People v. Montiel (1993) 5 Cal.4th 877, 914 [although trial counsel objected to prosecutor’s remarks at trial, the failure to request admonition constituted a forfeiture of claim of prosecutorial misconduct on appeal].)
We have examined appellant’s 26 claims in the context of the record on appeal and do not find a single formal assignment of prosecutorial misconduct in the trial court. The defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. (People v. Price (1991) 1 Cal.4th 324, 447.) Trial counsel’s failure to object in a timely manner to asserted prosecutorial misconduct results in the forfeiture of the claim on appeal. (People v. Dykes, supra, 46 Cal.4th at p. 757.)
Appellant has forfeited the issue of prosecutorial misconduct on appeal by failing to interpose timely and specific objections in the trial court. In an effort to preserve the alleged error, appellant nevertheless contends his trial counsel was ineffective by failing to object to “improper prosecutorial comments.”
D. Alleged Ineffective Assistance of Counsel
The right to counsel protects the due process right to a fair trial not only by guaranteeing “access to counsel’s skill and knowledge” but also by implementing the constitutional entitlement to an “ ‘ample opportunity to meet the case of the prosecution.’ ” (Strickland v. Washington (1984) 466 U.S. 668, 685 (Strickland).) To establish ineffective assistance, the defendant must show that counsel’s performance “fell below an objective standard of reasonableness” and prejudiced the defense. (Id. at pp. 687-688; People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) To establish prejudice, the defendant must make a showing “sufficient to undermine confidence in the outcome” of a “reasonable probability” that but for counsel’s performance “the result of the proceeding would have been different.” (Strickland, supra, at p. 694; Ledesma, supra, at pp. 217-218.) A reviewing court can adjudicate an ineffective assistance claim solely on the issue of prejudice without evaluating counsel’s performance. (Strickland, supra, at p. 697.)
“In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Second, he [or she] must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is 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. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 214-215.) Generally, the failure to object is considered a matter of trial tactics “as to which we will not exercise judicial hindsight. [Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 520.) In California, there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation].” (Strickland, supra, 466 U.S. at p. 689; People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
E. Analysis
We initially note that neither side has offered a point-by-point analysis of the 26 claims of prosecutorial misconduct. Appellant has lumped similar claims into several categories and concluded that the categorized conduct is prejudicial. In contrast, respondent deals with the claims as a whole, virtually acknowledging the claims involve misconduct, yet describing the totality of the conduct as “relatively benign in terms of its likely impact on the jury’s verdict.” In California, it is the duty of the defendants to show error and that means defendants are under an affirmative duty in that respect; it is not proper to attempt to shift that burden upon the court or respondent. (People v. Goodall (1951) 104 Cal.App.2d 242, 249.) Neither side in the instant case has made an effort to parse the individual claims of misconduct.
Alleged Misconduct During Cross-Examination
1. Allegations Relating to C.J.
On direct examination during the defense case, appellant explained the circumstances leading to C.J.’s visit to his home in March 2007. Appellant said C.J. visited pursuant to his invitation, that he fell asleep in his bedroom, and that he did not know where she slept in his home. The following exchange occurred during direct examination of appellant during the defense case:
“Q. [By defense counsel Pfeiff]: Now, on that evening, did you ever touch [C.J.] inappropriately?
“A. [By appellant]: No.
“Q. Did you ever try to touch her breast?
“A. No.
“Q. Ever try to pull down her boxers?
“A. No.
“Q. Was she ever in your room laying down with you?
“A. Not that I’m aware of.”
The following exchange occurred on cross-examination:
“Q. [by Deputy District Attorney Carroll] You heard [C.J.] testify?
“A. [by appellant]: Yes, I did.
“Q. Did [C.J] ever come on to you?
“A. Did she what?
“Q. Did she ever come on to you?
“A. No.
“Q. Did [C.J.] ever try to get you to have sex with her?
“A. No.
“Q. Why did you try to touch [C.J.]’s breasts?
“A. I didn’t.
“Q. Why did you try to pull down her shorts?
“A. I didn’t.
“Q. You think, uh, you heard her testify; right?
“A. Yes.
“Q. Did you ask her to cuddle with you?
“A. No.
“Q. So that never happened either?
“A. No.
“Q. You’re saying that she never came into the room at all with you when you were getting ready for bed?
“A. Not that I’m aware of, no.
“Q. So the things that you heard her say, based on what you know, those were lies?
“A. Yeah.”
The cross-examination largely mirrored the questions asked on direct examination. The question about C.J. engaging in a “come on” was apparently an indirect allusion to a statement made by her on direct examination. C.J. testified, “He [appellant] had told me that she [appellant’s ex-wife] … thought that I wanted to have sex with him and steal him from her or something like that, something along those lines.” In light of this context, no misconduct occurred.
2. Allegations Relating to D.F.
On direct examination, D.F. said her sister was married to appellant in 1994. D.F. remembered being in the seventh grade at that time. D.F. said appellant was nice sometimes, but also had a bad temper and would yell and throw things across the room. D.F. said she was scared of appellant at times. D.F. said on at least five occasions appellant inappropriately touched “any part of my body that’s -- could be covered by underwear.” The first occasion was on an out-of-town fishing trip and appellant “just started to put his hand like on my thigh, and that was it.” The second occasion took place when D.F. spent the night at the home of appellant and her sister. D.F. said she typically slept on their couch. On this occasion, appellant played a pornographic movie, went to the couch, and placed D.F.’s head on his lap. She said his hand slowly moved down to her pants and his fingers penetrated her.
The following exchange occurred on direct examination of appellant during the defense case:
“Q. [By defense counsel Pfeiff]: Now, you heard [D.F.] testify
“A. Yes, I did.
“Q. -- here in court. Okay. Do you recall ever going on a fishing trip with [D.F.]?
“A. You know, I want to say I do, but it’s been so long ago, it’s hard to remember.
“Q. Okay. Did you occasionally go fishing back then?
“A. Yes.
“Q. It’s possible you took [D.F.] with you?
“A. It’s possible.
“Q. Did you ever do anything inappropriate with [D.F.] on a fishing trip?
“A. No.
“Q. Ever try to touch her sexually on a fishing trip?
“A. No.
“Q. You heard her testify that -- well, did you ever try to touch her inappropriately on the couch in your house?
“A. No.
“Q. Did you ever try to touch her inappropriately anywhere?
“A. No.”
On cross-examination, the prosecutor asked appellant whether he had heard the testimony of D.F. and why he tried to touch her breasts and vagina. Appellant said he did hear her testimony, but denied any improper touching. The following exchange then occurred:
“Q. Did you ever form a plan to have a hitman kill [D.F.] also?
“A. Do I have to answer that question?
“THE COURT: Is there a -- if you can.
“THE WITNESS: No.
“BY MR. CARROLL:
“Q. You think this is funny, don’t you?
“A. No, I don’t. I think your way of questioning is pretty much you’re telling me that I did this.
“Q. Well, you did, didn’t you?
“A. No, I didn’t.
“Q. Is this a joke somehow to you?
“MR. PFEIFF: Objection. Argumentative.
“THE COURT: Sustained.”
The prosecutor’s questions on cross-examination regarding alleged sexual abuse of D.F. were essentially duplicative of questions asked by defense counsel on direct examination and did not amount to misconduct. The question about having a hit man kill D.F. was pertinent given Richard Vaughn’s testimony that appellant wanted J.B. and C.J. killed so they would not testify against him. According to Vaughn, appellant said he wanted them killed “[b]ecause they’d given the detectives information that he sexually assaulted them, and he didn’t want to have to go to court for.” Since D.F. was similarly situated to J.B. and C.J., the question about a hit man was permissible. The prosecutor’s questions about appellant thinking of the inquiry as “funny” or a “joke” did not reflect proper prosecutorial demeanor and the trial court properly sustained a defense objection. When a trial court sustains objections to the argumentative element of a prosecutor’s questioning, we assume any prejudice was abated. (People v. Dykes, supra, 46 Cal.4th at p. 764.) Moreover, the court ultimately instructed the jurors:
“Nothing that the attorneys say is evidence.… [¶] Their questions are not evidence. Only the witnesses’ answers are evidence. The attorneys’ questions are significant only if they helped you to understand the witnesses’ answers. Do not assume that something is true just because one of the attorneys asked a question that suggested it was true.
“During the trial, the attorneys may have objected to questions or moved to strike answers given by the witnesses. I ruled on the objections according to law. If I sustained an objection, you must ignore the question.”
Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions. (People v. Scott (1988) 200 Cal.App.3d 1090, 1095, and cases cited.) Counsel’s aforesaid argumentative statements did not amount to prejudicial misconduct.
3. Allegations Relating to All Victims
The following exchange occurred on cross-examination:
“BY MR. CARROLL:
“Q. Do you think it’s unusual that three girls would come in here and lie about you molesting them?
“MR. PFEIFF: Objection. Speculation.
“THE COURT: Sustained.
“MR. PFEIFF: Argumentative.
“BY MR. CARROLL:
“Q. Are you saying all three of these girls are lying?
“A. I’m saying they conspired to, uh, get my daughter to move in with [sic] their home, yes.
“Q. So all three of ‘em are lying.
“A. Yeah, if that’s the way you want to put it.”
The California Supreme Court has held:
“A defendant who is a percipient witness to the events at issue has personal knowledge whether other witnesses who describe those events are testifying truthfully and accurately. As a result, he might also be able to provide insight on whether witnesses whose testimony differs from his own are intentionally lying or are merely mistaken. When, as here, the defendant knows the other witnesses well, he might know of reasons those witnesses might lie. Any of the testimony could be relevant to the credibility of both the defendant and the other witnesses. There is no reason to categorically exclude all such questions. Were a defendant to testify on direct examination that a witness against him lied, and go on to give reasons for this deception, surely that testimony would not be excluded merely because credibility determinations fall squarely within the jury’s province. Similarly, cross-examination along this line should not be categorically prohibited. [¶]... [¶]
“[C]ourts should carefully scrutinize ‘were they lying’ questions in context. They should not be permitted when argumentative, or when designed to elicit testimony that is irrelevant or speculative. However, in its discretion, a court may permit such questions if the witness to whom they are addressed has personal knowledge that allows him to provide competent testimony that may legitimately assist the trier of fact in resolving credibility questions.” (People v. Chatman (2006) 38 Cal.4th 344, 382-384.)
Given the context of the inquiry and the Supreme Court’s recognition of discretion on the part of the trial court in these situations, the prosecutor did not engage in prejudicial misconduct by simply asking a “were they lying” question.
4. Allegations Relating to the Victims and Investigator Essig
The following exchange occurred between appellant and Investigator Essig during their jailhouse conference:
“JE: Cause the first off, number one, I need to know -- do you want this done?
“MG: Yeah.
“JE: You do?
“MG: Yeah.
“JE: Alright. Now, second thing I need you to do is to confirm here that one of the cars are at this garage.
“MG: Oh, yeah.
“JE: Ok. [T]hat would be, uh, one of ‘em. Now the other car’s at, uh, this garage.
“MG: Yeah.”
During their conference, appellant indicated he wanted Essig to take care of “both these cars” and identified which “car” he wanted taken care of first.
On direct examination at trial, Investigator Essig said he showed appellant two photographs, marked People’s Exhibit Nos. 103 and 104. He testified the photographs depicted the mothers of the two intended victims and that the mothers were referred to by the code name “garages.” Essig said appellant identified People’s Exhibit No. 103 as the picture of the witness he wanted murdered first. The back of that picture bore the name “J.B.”
The following exchange occurred on cross-examination:
“Q. Okay. I’m going to show you something that’s been marked as People’s 103 and 104. Do you recognize the two people in that picture?
“A. Jeanette [J.] and my third ex-wife, Heather [D.].
“Q. And those are the mothers of the two witnesses you wanted murdered; correct?
“A. I never said that.
“MR. PFEIFF: Objection. This is argumentative, your Honor.
“THE COURT: Overruled.
“BY MR. CARROLL:
“Q. Thank you.
“A. I never said that.
“Q. No. Answer the question, please. Are those the mothers of the two witnesses you wanted murdered?
“A. I never said I wanted anybody murdered.
“Q. And what are the names written on the back?
“A. [J.B.] and [C.J.].
“THE COURT: If you could refer to the exhibit numbers.
“MR. CARROLL: Yes. People’s 103, [J.B.]. People’s 104, [C.J.].”
Taken in isolation, the phrase “the two witnesses you wanted murdered” appears harsh, argumentative, and inflammatory. However, in the context of the entirety of the evidence of the instant case -- particularly Investigator Essig’s videotaped interview with appellant and Essig’s explanatory testimony at trial -- the phrase is a somewhat sharp, yet accurate, exposition of the appellant’s identification of the intended victims and their mothers and did not constitute prejudicial misconduct.
5. Allegations Relating to the Interview of Witnesses
The following exchange occurred on cross-examination:
“BY MR. CARROLL:
“Q. Now, Investigator Essig says to you, ‘Now, the second thing I had need to you do is one of the cars here was at the garage.’ You remember that questioning?
“A. Why.
“Q. Then you said, ‘Oh, yeah.’ What -- so what did that mean to you?
“A. That’s where the investigator would go to talk to him.
“Q. And where in the interview did it say ‘That’s where the investigator would go to interview these people?’
“A. I told that to Rick [Vaughn].
“Q. Where in the interview … with Investigator Essig did it say that?
“A. He didn’t.
“Q. And you didn’t either, did you?
“A. No.
“Q. Because that’s completely ridiculous; isn’t that the truth?
“MR. PFEIFF: Objection. Argumentative.
“THE COURT: Sustained.”
Once again, the court instructed the jury prior to the closing arguments of counsel:
“During the trial, the attorneys may have objected to questions or moved to strike answers given by the witnesses. I ruled on the objections according to law. If I sustained an objection, you must ignore the question.”
Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions. (People v. Scott, supra, 200 Cal.App.3d at p. 1095, and cases cited therein.) Counsel’s argumentative statement, to which defense counsel interposed a successful evidentiary objection, did not amount to prejudicial misconduct.
6. Allegations Relating to Essig’s Role as Appellant’s Prospective Trial Counsel
The following exchange occurred on cross-examination:
“Q. Well, let’s go a little bit further on in [the transcript of appellant’s jailhouse conference with Essig] and he says, do you remember this -- ‘okay, well, at -- unless absolutely something goes ugly somewhere along the lines I won’t be touching you, I won’t be contacting you.’ [¶] Do you remember that?
“A. Yeah.
“Q. He was going to be your lawyer and he wasn’t going to contact you.
“A. My attorney wasn’t contacting me, uh, that I had.
“Q. This sounds like lawyer talk right here. You remember this? ‘All right, next time you hear from bro is, uh -- when you hear the -- when you hear the -- when you use the phrase, Eagle shits, okay, he’s going to have some bank account numbers for you for you to deposit money.’ [¶] Do you remember that?
“A. That was a little confusing.
“Q. Oh, okay. All right. [¶] So this was all a big misunderstanding.
“THE COURT: It’s time to take our lunch recess, Mr. Carroll.
“MR. CARROLL: All right. Thank you.”
Appellant did not respond to the prosecutor’s gratuitous comment that “this was all a big misunderstanding” and defense counsel did not interpose an objection to the question. As noted above, the court instructed the jury that “[n]othing that the attorneys say is evidence.” Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions. (People v. Scott, supra, 200 Cal.App.3d at p. 1095, and cases cited therein.) Counsel’s argumentative statement about a misunderstanding, to which appellant offered no response, did not amount to prejudicial misconduct.
7. Allegation Regarding the Truth
The following exchange occurred on cross-examination:
“Q. You knew [i]f [J.B.] and [C.J.] were killed it would make -- help you win your case, didn’t you?
“A. No, I didn’t.
“Q. You didn’t know that?
“A. No.
“Q. You knew they were going to testify against you?
“A. Yes.
“Q. And you knew they told the police that you had molested them; correct?
“A. Yes.
“Q. So if they were dead, that would help you win your case, wouldn’t it?
“A. I suppose.
“Q. Now, if they were dead, how would that help Richard Vaughn?
“MR. PFEIFF: Objection calls for speculation.
“THE COURT: Overruled.
“THE WITNESS: I have no idea.
“BY MR. CARROLL:
“Q. You know you couldn’t rely on the truth in court because you molested [J.B.] and [C.J.]; isn’t that true?
“A. No.”
The prosecutor’s question about reliance on the truth was argumentative and subject to exclusion by the court. (People v. Chatman, supra, 38 Cal.4th at pp. 382-384.) Nevertheless, the question was relatively isolated in the context of the entirety of the cross-examination and did not amount to prejudicial misconduct.
8. Allegation About Preparations for the Meeting with Investigator Essig
The following exchange occurred on cross-examination:
“Q.... [¶] So there was a lot of planning going on, right, between you and Richard Vaughn?
“A. Uh, preparation for his brother to talk to me, yes.
“Q.... So that was in preparation to talk to Investigator Essig?
“A. At the time I didn’t know he was an investigator.
“Q. Did you -- so you never figured out this was a plan to murder witnesses?
“A. No.
“Q. You never figured that out?
“A. No?
“Q. Talking about crushing cars, talking about getting, uh -- finding out where their mothers lived. You never figured it out that this was about killing witnesses?
“A. I never attempted to do anything like that.
“Q. And there was $20,000 agreed to be paid for killing these witnesses; isn’t that true?
“A. I thought that was lawyer fees.
“Q. Did you ever try to call off this planning of killing these witnesses?
“A. I spent two months away from Rick Vaughn and never spoke to anyone else about anything such.
“Q. Let me repeat the question. Did you ever try to call off the planning of killing these witnesses? Yes or no?
“MR. PFEIFF: Objection. That assumes facts that this witness claims aren’t true.
“THE COURT: Yes sustained.”
Although appellant characterizes the “call off the planning” question as misconduct, the query was factually related to the overt act element of the attempted murder counts and the planning and preparation element of the solicitation counts. In any event, the court sustained appellant’s evidentiary objection on the ground the question assumed facts the appellant claimed were untrue.
9. Allegation Relating to the Alleged Lying of the Witnesses and Misunderstanding as to the Meeting with Essig
The following exchange occurred near the conclusion of the cross-examination of appellant during the defense case:
“Q.... [¶] Did you hear that testimony of the officer that he contacted [D.F.]? [¶] Yes or no?
“A. Detective Echevarria?
“Q. Yes. Did you hear
“A. Yes.
“Q. -- that? [¶] Okay. Did you hear [J.B.] say that she and [C.J.] barely saw each other? [¶] Did you hear that testimony?
“A. Yes. But that’s not true.
“Q. And did you hear [appellant’s daughter] agree with that, too?
“A. They’ve been there at my house at the same time.
“Q. So everybody -- all these people are lying on you.
“MR. PFEIFF: Objection. Argumentative.
“THE COURT: Overruled.
“THE WITNESS: Yeah.
“BY MR. CARROLL:
“Q. And this whole thing in the jail with Investigator Essig, a big misunderstanding.
“A. Yeah.
“Q. You were just trying to get a lawyer and … that’s all you were trying to do?
“A. Yeah.
“Q. This whole thing about crushing cars, it’s just -- hey, legal talk that you didn’t even know what it was about.
“A. That was, uh, Rick Vaughn and, apparently, his brother’s way of talking. I don’t know.”
As noted above, a court may permit questions about lying “if the witness to whom they are addressed has personal knowledge that allows him to provide competent testimony that may legitimately assist the trier of fact in resolving credibility questions.” (People v. Chatman, supra, 38 Cal.4th p. 384.) The prosecutor’s question went to the credibility of the alleged victims, and appellant maintained they were telling untruths. As to the “big misunderstanding, ” the prosecutor’s question was fairly posed to differentiate Vaughn and Essig’s version of events (i.e., that appellant was seeking a hit man through fellow inmate Vaughn) from appellant’s version of events (i.e., that appellant was seeking new trial counsel through fellow inmate Vaughn). The question did not constitute prejudicial misconduct.
Alleged Misconduct During Closing Argument
We note that several of the instances of alleged prosecutorial misconduct during argument are essentially statements of fact drawn from the evidence at trial. These permissible statements include references to appellant’s role as an authority figure in the lives of the alleged victims; a quotation from a note that appellant exchanged with Richard Vaughn; a description of the testimony of C.J. and J.B. about their relationship; and appellant’s testimony that he did not notice the difficulty with which J.B. testified at trial.
Appellant contends the prosecutor engaged in prejudicial misconduct during argument by referring to the alleged victims as “heroes”; by referring to appellant as a “pervert” or an individual who engaged in “perverted acts” or pursued “perverted ways” or possessed “sick and perverted desires”; by referring to appellant as an individual who took advantage of the young victims and stole their innocence; and by suggesting that “[t]here is a hierarchy even amongst criminals. And child molesters are at the bottom.”
“A criminal prosecutor’s function ‘is not merely to prosecute crimes, but also to make certain that the truth is honored to the fullest extent possible during the course of a criminal prosecution and trial.’ [Citation.] His or her goal must be ‘not simply to obtain a conviction, but to obtain a fair conviction.’ [Citation.]” (In re Sakarias (2005) 35 Cal.4th 140, 159.) Due process requires that the government prosecute fairly in a search for truth. (Id. at p. 160.) “ ‘Prosecutors play a dual role in the criminal justice system; they are advocates, but they are also administrators of justice. [Citation.] “ ‘[I]t is their sworn duty to see that the defendant has a fair and impartial trial, and that he be not convicted except by competent and legitimate evidence.…’ ” [Citation.]’ [Citation.] A prosecutor’s intemperate behavior violates the federal Constitution when that behavior comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to deny the defendant due process. [Citation.] Under the state standard, conduct that does not render a trial fundamentally unfair is misconduct if it involves the use of deceptive or reprehensible methods to attempt to persuade the trier of fact. [Citation.] ‘A defendant’s conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.]’ [Citation.]” (People v. Williams (2009) 170 Cal.App.4th 587, 628-629.)
Zealous advocacy in pursuit of convictions forms an essential part of the prosecutor’s proper duties and does not show the prosecutor’s participation was improper. (Hambarian v. Superior Court (2002) 27 Cal.4th 826, 843.) While the district attorney may engage in zealous advocacy, “both the accused and the public have a legitimate expectation that his zeal … will be born of objective and impartial consideration of each individual case.” (People v. Superior Court (Greer) (1977)19 Cal.3d 255, 267.) “Of course, a prosecutor need not be disinterested on the issue whether a prospective defendant has committed the crime with which he is charged. If honestly convinced of the defendant’s guilt, the prosecutor is free, indeed obliged, to be deeply interested in urging that view by any fair means. [Citation.] True disinterest on the issue of such a defendant’s guilt is the domain of the judge and the jury -- not the prosecutor. It is a bit easier to say what a disinterested prosecutor is not than what he is. He is not disinterested if he has, or is under the influence of others who have, an axe to grind against the defendant, as distinguished from the appropriate interest that members of society have in bringing a defendant to justice with respect to the crime with which he is charged.” (Wright v. United States (2d Cir. 1984) 732 F.2d 1048, 1056, quoted in People v. Eubanks (1996) 14 Cal.4th 580, 590.)
“Whatever methods a trial or appellate court might otherwise use to bring to heel a recalcitrant or incorrigible prosecutor, the federal Constitution does not require (and the state Constitution does not permit) the reversal of a criminal conviction unless the misconduct deprived defendant of a fair trial or resulted in a miscarriage of justice.” (People v. Hinton (2006) 37 Cal.4th 839, 865.) When a claim of misconduct is based on the prosecutor’s comments before the jury, the question is whether there is a reasonable likelihood the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Friend (2009) 47 Cal.4th 1, 29.) A reasonable likelihood or reasonable probability means “ ‘merely a reasonable chance, more than an abstract possibility.’ ” (People v. Blakeley (2000) 23 Cal.4th 82, 99, italics omitted.)
Clearly, the prosecutor was aggressive during closing argument and at times approached the border of permissible advocacy. (See People v. Gray (2005) 37 Cal.4th 168, 218.) The Supreme Court has long held that “prosecuting attorneys are allowed a wide range of descriptive comment and the use of epithets which are reasonably warranted by the evidence.” (People v. Terry (1962) 57 Cal.2d 538, 561 [The Supreme Court approved prosecutor’s characterization of defendant “as an ‘animal’; as one of the most ‘vicious gunmen and killers, ’ and as one whose attack is ‘on you and your families and all other persons in the community.’ ”]; People v. Rodriguez (1970) 10 Cal.App.3d 18, 36 [Prosecutor’s reference to defendant in a petty theft with prior case as “ ‘a smart thief and a parasite on the community’ ” constituted permissible comment].)
In any event, here the court instructed the jury in CALCRIM No. 222 [evidence] as follows:
“Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence. [¶] Their questions are not evidence. Only the witnesses’ answers are evidence. The attorneys’ questions are significant only if they helped you to understand the witnesses’ answers. Do not assume that something is true just because one of the attorneys asked a question that suggested it was true.”
Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions. (People v. Scott, supra, 200 Cal.App.3d at p. 1095, and cases cited therein.) In view of the court’s instruction, we cannot say there was a reasonable chance that the jury construed or applied any of the impertinent remarks in an objectionable fashion.
F. Analysis
A careful evaluation of the prosecutor’s questions and conduct in the context of the entirety of the trial reveals that he did not commit misconduct that amounted to prejudice during cross-examination. In our view, some of the prosecutor’s challenged remarks during oral argument were intemperate, to say the least, and cannot be condoned as acceptable advocacy. Nevertheless, even if the prosecutor’s comments exceeded the permissible scope of cross-examination and argument, a criminal defendant’s conviction will not be reversed for prosecutorial misconduct unless it is reasonably probable that the jury would have reached a different result absent the misconduct. (People v. Crew (2003) 31 Cal.4th 822, 839.) Or, to use the common phraseology of the law of prosecutorial misconduct and ineffective assistance of counsel, we cannot say there is a reasonable probability that the result of the proceeding would have been different had defense counsel interposed specific and timely objections and assignments of misconduct to each of the statements challenged on appeal.
The record on appeal contains clearly sufficient evidence to support the verdicts of the jury as to the substantive counts and special allegations of the first amended information. The testimony of the minor victims, the notes appellant exchanged with fellow inmate Richard Vaughn, the recorded meeting between appellant and undercover investigator Joseph Essig, as well as other documentary and testimonial evidence, combined to establish appellant’s guilt beyond a reasonable doubt. It is not reasonably probable that the result of the proceeding would have been different had counsel refrained from engaging in offensive conduct.
More specifically, C.J., J.B., and D.F. testified in graphic detail about appellant’s sexual abuse. Appellant’s 16-year-old daughter confirmed J.B.’s account of appellant’s sexual misconduct. Investigator Essig testified at length about appellant’s express intent to have his victims killed. Appellant maintained his meeting with Essig was nothing more than an effort to retain him -- the purported attorney brother of fellow inmate Richard Vaughn -- as legal counsel. The jury saw a video recording of that meeting, reviewed transcripts of the conversation at that meeting, and rejected appellant’s version of the events. Finally, the court expressly instructed the jury that nothing the attorneys said is evidence, their remarks during opening statements and closing arguments do not constitute evidence, and their questions are not evidence (CALCRIM NO. 222).
G. Conclusion
Despite the quantity and clarity of the evidence at trial, we have lingering misgivings that the proceedings were blemished by the conduct in question. The prosecutor went to the legal edge by the use of scornful epithets in closing argument, repeatedly referring to appellant as a “monster” and “pervert, ” among other things.
While the tone and style of the prosecutor’s advocacy cannot be condoned, because of the strong, virtually irrefutable, evidence of abhorrent criminal conduct presented in the superior court, longstanding precedent commands affirmance of the judgment of conviction. Under well-established authority, prosecutorial misconduct is not prejudicial where “it is [not] ‘reasonably probable that a result more favorable to the defendant would have occurred’ absent the misconduct. [Citation.]” (People v. Welch, supra, 20 Cal.4th at p. 753.) In light of the strong prosecution evidence and the court’s instruction on the treatment of evidence, it is not reasonably probable the result would have been different absent the pointed questioning and commentary by the prosecutor.
II. THE TRIAL COURT DID NOT ERRONEOUSLY ADMIT THE EVIDENCE OF ALLEGED MOLESTATION OF APPELLANT’S SISTER-IN-LAW UNDER EVIDENCE CODE SECTION 1108
Appellant contends the trial court committed reversible error by admitting evidence that appellant allegedly molested his sister-in-law, D.F., 15 years earlier. (Evid. Code, § 1108).
1. Ruling of the Trial Court
On May 13, 2008, the district attorney filed a notice of intention to offer evidence pursuant to Evidence Code sections 1101 and 1108. The prosecutor sought to “offer the defendant’s other acts of inappropriate sexual acts as evidence against the defendant in the jury trial of the above-captioned action. [D.F.], previously reported to the Merced Police Department (MPD No. 95-18674) that the defendant molested her when she was 11-12 years old.” On June 23, 2009, the trial court heard motions in limine and ruled the Evidence Code section 1108 evidence admissible, stating in relevant part:
“[W]ell, in determining whether evidence is admissible under 1108, the Court is to exercise its discretion under … [Evidence Code section] 352, and so that would involve a matter of raising the probative value of the evidence against its prejudicial effect. And I guess that what Mr. Pfeiff [defense counsel] is arguing is because this was basically 14 years ago and did not result in a conviction, that that prejudicial effect would outweigh any probative value, but I would disagree. I think -- reading [Evidence Code] Section 1108, I think it’s clear that prior acts can come in if they are probative even if no conviction [has] resulted. [¶] All the factors you raise, Mr. Pfeiff, you can certainly cross-examine the witness about the fact that no charges were ever filed. She didn’t proceed with prosecution. And I think the fact that it’s 14 years old is not so remote in time.”
B. Specific Contention
Appellant argues:
“Over defense objection [citations], the prosecution presented the testimony of [D.F.] that Mr. Grose molested her 15 years ago, when she was a young teen. Mr. Grose was never prosecuted for that alleged conduct. When police asked [D.F.] to participate in a pretext call, she refused and the matter was dropped. Mr. Grose therefore had no prior opportunity, or need, to contest the validity of [D.F.’s] accusation, nor to collect evidence to show she was untruthful. [¶] The trial court did not instruct jurors to limit their consideration of this evidence in any way. [¶] The admission of [D.F.’s] testimony was more prejudicial than probative, and its use violated Mr. Grose’s federal constitutional right to due process and a fair trial. This Court should reverse the judgment in its entirety.”
The Bench Note to CALCRIM No. 1191 [evidence of uncharged sex offense] states: “The court must give this instruction on request when evidence of other sexual offenses has been introduced.” (Emphasis added.) (Bench Note to CALCRIM No. 1191 (2011) p. 1035.) Appellant does not cite to a request for this instruction in the instant case.
C. Evidence Code Section 1108
Evidence that a person has a propensity or disposition to commit criminal acts is generally inadmissible, and is excluded because of its highly prejudicial nature. (Evid. Code, § 1101; People v. Karis (1988) 46 Cal.3d 612, 636.) The admissibility of character evidence was previously limited to establish some fact other than a person’s character or disposition, such as motive, intent, identity, or common scheme and plan. (Evid. Code, § 1101, subd. (b); People v. Karis, supra, at p. 636; People v. Soto (1998) 64 Cal.App.4th 966, 983.)
Evidence Code section 1108 provides an exception to Evidence Code section 1101 and permits the jury in sex offense cases to consider evidence of prior charged or uncharged sex offenses for any relevant purpose. (People v. Falsetta (1999) 21 Cal.4th 903, 911-912; People v. James (2000) 81 Cal.App.4th 1343, 1353, fn. 7.) Evidence Code section 1108, subdivision (a) states: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense … is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”
Evidence Code section 1108 therefore permits the trier of fact to consider a defendant’s prior uncharged sex offenses as propensity evidence. (People v. Falsetta, supra, 21 Cal.4th at p. 911; People v. Pierce (2002) 104 Cal.App.4th 893, 897.) That is because our Legislature has determined that in sexual offense cases, the policy considerations favoring the exclusion of evidence of other sexual offenses are outweighed by the policy considerations favoring its admission, and that “the need for this evidence is ‘critical’ given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial.” (People v. Fitch (1997) 55 Cal.App.4th 172, 181-182.)
Admission of evidence under Evidence Code section 1108 remains subject to a section 352 analysis, which permits the trial court, in its discretion, to 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. (Evid. Code, § 352.) “The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” (People v. Karis, supra, 46 Cal.3d at p. 638; People v. Yu (1983) 143 Cal.App.3d 358, 377.) “Rather, the statute uses the word in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors. [Citation.]” (People v. Farmer (1989) 47 Cal.3d 888, 912, overruled on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) An exercise of trial court discretion is reviewable only for abuse and “will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Wesson (2006) 138 Cal.App.4th 959, 969.)
D. Analysis
Appellant contends:
“Federal law is clear that the use of propensity evidence as substantive evidence of guilt[] can violate a criminal defendant’s constitutional right to due process under the Fourteenth Amendment.… This Court should find that the use of [Evidence Code] section 1108 to justify the introduction of irrelevant and prejudicial other crimes evidence in Mr. Grose’s case, without any judicial limitation on how the evidence was considered or used, violated his due process rights and requires reversal.”
In People v. Falsetta, supra, 21 Cal.4th at p. 911, the California Supreme Court held section 1108 is constitutional on its face. This court is bound by that ruling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The California Supreme Court recently declined a defendant’s invitation to (a) reconsider its decision in Falsetta and (b) hold that admission of evidence under Evidence Code section 1108 to establish a defendant’s propensity to commit a sexual offense violates his or her due process rights. The Supreme Court noted that Evidence Code section 352 is an adequate safeguard against the admission of unduly prejudicial evidence. The Supreme Court further affirmed that the routine application of state evidentiary law does not implicate a criminal defendant’s constitutional rights. (People v. Lewis (2009) 46 Cal.4th 1255, 1285-1299.)
While acknowledging the foregoing authorities, appellant submits the admission of the prior allegation involving D.F. was improper under Evidence Code section 352 for three reasons: (1) the alleged offense happening almost 15 years before the time of the instant trial; (2) there was no evidence to show appellant engaged in any sexual misconduct between the time of the alleged D.F. offense and the charged offenses of the instant case; and (3) the burden on appellant of defending against the uncharged offense “was huge” because the earlier accusation had not been prosecuted and he had no forum in which to contest the truthfulness of D.F.
As noted above, an exercise of trial court discretion is reviewable only for abuse and “will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez, supra, 20 Cal.4th at pp. 9-10.) A “miscarriage of justice” has a settled meaning in our law. The California Supreme Court explained in the case of People v. Watson (1956) 46 Cal.2d 818, 836: “[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence, ’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” The Supreme Court has further explained: “[A] ‘probability’ in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715, italics omitted.)
The charges of sexual offenses in the instant case involved two girls under the age of 15. One victim was appellant’s ex-stepdaughter and the other was a friend of his daughter. Both girls had a familial or similar relationship with appellant. Appellant was many years older than both girls. The alleged assault of D.F. involved a teenage girl who was also a member of appellant’s family. The prior act evidence was similar to the conduct alleged by J.B. and C.J., as alleged in the instant case. D.F.’s distinct testimony did not consume an undue amount of time and did not create confusion with issues arising from the testimony of J.B. and C.J. Respondent acknowledges that the testimony of D.F. “was certainly highly damaging to appellant.” However, “damaging” is not synonymous with “prejudicial, ” which refers to evidence that uniquely tends to evoke an emotional bias against a criminal defendant as an individual. (People v. Gionis (1995) 9 Cal.4th 1196, 1214.)
The trial court did not abuse its discretion in admitting the testimony of D.F. pursuant to section 352 and reversal is not required.
III. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR BY FAILING TO INSTRUCT ON THE LESSER OFFENSE OF ATTEMPTED LEWD ACTS ON A CHILD AGE 14 OR 15
Appellant contends the trial court erroneously failed to instruct the jury on the lesser offense of attempted lewd acts on a child aged 14 or 15.
A. Appellant’s Specific Contention
Appellant argues there was limited evidence from which jurors could have concluded that appellant intentionally committed lewd acts on C.J. However, there was evidence from which they could have concluded he attempted to commit a lewd act. According to appellant, C.J. said at one point she felt appellant’s erect sexual organ and fluid emanating from it. However, she never specified whether the touching was intentional or inadvertent, thus supporting an instruction of the lesser offense of attempted lewd acts on a child aged 14 or 15.
B. Instructional Conference
The following exchange occurred during the June 30, 2009, reported conference on jury instructions:
“THE COURT: Let me just go on the record, then, regarding the attempts, so I’ll go on the record. [B]oth Mr. Pfeiff [defense counsel] and Mr. Carroll [deputy district attorney] agreed that they did not think there was evidence of an attempted lewd or lascivious act with a child under 14 or an attempted lewd or lascivious act with the child aged 14 and 15, or an attempted solicitation of murder, because the evidence would show either the defendant committed those acts or he didn’t. And you agree with that, Mr. Pfeiff?
“MR. PFEIFF: Yes.
“THE COURT: And, Mr. Carroll?
“MR. CARROLL: Yes.
“THE COURT: Okay.…”
C. The Charged Count
Count 7 of the first amended information charged a violation of section 288, subdivision (c)(1) and alleged appellant “did willfully, unlawfully, and lewdly commit a lewd and lascivious act upon and with the body and certain parts and members thereof of confidential victim ‘CJ’, a child aged 14 or 15 years, and more than ten years younger than the [appellant] … with the intent of arousing, appealing to, or gratifying the lust, passions, and sexual desires of the said [appellant] and/or said child.”
D. Governing Law
Section 288 states in pertinent part:
“(a) [A]ny person who willfully and lewdly commits any lewd or lascivious act … upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. [¶] … [¶]
“(c)(1) Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child.”
Section 288 is violated by any touching of an underage child accomplished with the applicable intent. (People v. Martinez (1995) 11 Cal.4th 434, 452.) The intent to commit a violation of section 288 is the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of the perpetrator or of the victim. (People v. Imler (1992) 9 Cal.App.4th 1178, 1181.) California courts have found “touching” to be lewd where an accused placed his hand inside a minor’s pants and rubbed her stomach; where an accused hugged a minor with his hands on the inside of her thighs; and where an accused had a minor touch the fully clothed accused between his legs. (See People v. Diaz (1996) 41 Cal.App.4th 1424, 1427-1428, and cases cited therein.)
The crime of attempt requires two elements: (1) a specific intent to commit the crime and (2) a direct but ineffectual act done toward its commission. (§ 21a.) Mere acts in preparation for a crime do not constitute an attempt. (People v. Reed (1996) 53 Cal.App.4th 389, 398.) Acts that indicate a certain, unambiguous intent to commit that specific crime and are an immediate step in the present execution of the criminal design are sufficient. No clear marker divides acts that are preparatory from those initiating the criminal act. The more clearly the intent to commit the offense is shown, the more likely that steps in the early stages of the crime will satisfy the overt act requirement of an attempt. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1322.)
C.J. testified appellant touched her inappropriately in 2007, when she was age 14. On the evening in question, appellant’s ex-wife came over to his house. He asked C.J. to hide in his daughter’s room, and C.J. did so for about 30 minutes. After C.J. came out of hiding, she saw that appellant was dressed in his pajamas. C.J. then changed into her pajamas and went to his bedroom. Appellant asked C.J. to lay next to him on the floor because he did not have a mattress. C.J. said appellant “took a hit off of marijuana, off of his pipe.” C.J. pretended to fall asleep and then she heard appellant say something like, “Oh, baby, I know you want that.…” Appellant reached over C.J.’s shirt and tried to touch her breast, but she had her arms crossed. After a time, appellant tried to pull down C.J.’s boxer shorts. She pulled up the shorts and appellant “tried to somewhat touch my breasts.” After doing that, appellant tried to pull her boxer shorts down again. C.J. testified, “I pulled ‘em back up and grabbed my things.” C.J. said she felt appellant’s penis against her body and “felt fluid coming out of his penis.”
In view of C.J.’s graphic testimony, we simply cannot conceive how a jury could deem the described acts to be consistent with innocent behavior, let alone a direct but ineffectual step toward lewd conduct. (People v. Reed, supra, 53 Cal.App.4th at p. 398; Decker, supra, 41 Cal.4th at p. 8.) The act of pulling down C.J.’s boxer shorts far exceeded the acts of ordering a child to pull down her pants (People v. Austin (1980) 111 Cal.App.3d 110, 112-116) and compelling a child to disrobe (People v. Mickle (1991) 54 Cal.3d 140, 175-176), both of which have been deemed by California courts to be lewd acts. (People v. Diaz, supra, 41 Cal.App.4th at pp. 1427-1428.)
The trial court properly declined to instruct the jury in attempted lewd and lascivious conduct pursuant to sections 21a and 288, subdivision (c)(1).
III. CUMULATIVE ERROR WAS NOT ESTABLISHED
Appellant contends his trial was rendered fundamentally unfair by cumulative error.
In his opening brief, appellant specifically argues:
“Here, the prosecutorial misconduct combined with the improperly admitted other acts evidence to deprive Mr. Grose of his only defense -- his credibility when he testified and denied committing all of the charged offenses. All of the charged offenses were the sort that happen in secret, with little or no corroborative evidence. The two main witnesses were inconsistent, the key witness on the solicitation charge had a huge motive to set up the crime to get himself out of prison (particularly since he previously had resorted to escaping to get himself out of jail), and the investigator who testified against Mr. Grose conveniently spoke in code the entire time, to make sure there were no explicit discussions of murder for hire that Mr. Grose could deny or withdraw from. [¶] The evidence in this case was not overwhelming, and the errors in the trial ensured Mr. Grose would be convicted of offenses he did not commit.”
In a close case, the cumulative effect of multiple errors may constitute a miscarriage of justice. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236; People v. Holt (1984) 37 Cal.3d 436, 458-459.) Theoretically, the “cumulative errors doctrine” is always applicable in criminal cases. The litmus test is whether defendant received due process and a fair trial. Generally speaking, an appellate court (1) reviews each allegation; (2) assesses the cumulative effect of any error; and (3) determines whether it is reasonably probable the jury would have reached a result more favorable to the defendant in their absence. (See People v. Holt, supra, 37 Cal.3d at p. 458; People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.)
We have devoted a substantial amount of text to the instant appeal and another detailed review of defendant’s contentions is unnecessary here. Although appellant has made numerous allegations of error, we have not found any errors, separately or in combination, affecting the verdict. (People v. Bloom (1989) 48 Cal.3d 1194, 1232, cert. den. 494 U.S. 1039.) In our view, there was no cumulation of errors constituting a miscarriage of justice (Cal. Const., art. I, § 13) in the instant case and reversal is not required. (People v. Stitely (2005) 35 Cal.4th 514, 560; People v. Heard (2003) 31 Cal.4th 946, 982.)
V. THE TRIAL COURT ERRONEOUSLY IMPOSED A TERM OF 42 MONTHS ON ONE OF THE ATTEMPTED MURDER COUNTS
Appellant contends and respondent concedes the court erroneously imposed the term of 42 months on count 11.
Respondent explains:
“Appellant asserts that the trial court erred when it imposed a term of 42 months on count 11, the second attempted murder count. According to appellant, the court purported to impose a term of one-third the middle term for this count and simply erred in its calculation. [Citation.] Respondent agrees that the court erred in its calculation. As appellant correctly points out the middle term for attempted murder is seven years.… Thus, one-third of that term is 28, not 42, months.”
The superior court should be directed to impose a term of 28 months on count 11, amend the abstract of judgment accordingly, and transmit certified copies of the amended abstract to all appropriate parties and entities.
VI. THE SENTENCE ON THE FALSE IMPRISONMENT COUNT SHOULD HAVE BEEN STAYED UNDER SECTION 654
Appellant contends and respondent concedes the sentence on count 3 should have been stayed under section 654.
Respondent explains:
“Appellant contends that the evidence indisputably shows that his sole objective in falsely imprisoning [J.B.] was to facilitate the charged sexual assault. He also notes that the trial court erred when it concluded that section 654 was not applicable due to testimony from [J.B.] that appellant had falsely imprisoned her on other occasions. [Citations.]
“Respondent agrees with appellant that there is no basis in the record for the conclusion of the trial court that the false imprisonment occurred independently from the charged sexual assault. The only evidence on this point was [J.B.’s] testimony that when appellant first forced her to engage in intercourse she was prevented from leaving the room during the assault by appellant’s act of placing pliers on the door. Thus, according to the evidence the false imprisonment was undertaken in order to facilitate the sexual assault. There was no evidence of an independent purpose for the false imprisonment such as to terrorize the victim or to prevent her from leaving after the assault.”
The superior court should be directed to stay the sentence on count 3 pursuant to section 654, to amend the abstract accordingly, and to transmit certified copies of the amended abstract to all appropriate parties and entities.
VII. APPELLANT IS ENTITLED TO AN ADDITIONAL DAY OF CUSTODY CREDIT
Appellant contends and respondent concedes that appellant is due another day of custody credit.
Appellant explains:
“According to the record, Mr. Grose was arrested on May 16, 2007, and sentenced on August 14, 2009. [Citations.] The trial court correctly calculated the actual days of custody as 822, but it incorrectly awarded conduct credits under Penal Code section 2933.1. Under that section, Mr. Grose should have gotten 15% conduct credits. Fifteen percent of 822 is 123.3, or 123 days. The court awarded Mr. Grose 122 days of local conduct credits.”
The superior court should be directed to award an additional day of custody credit, amend the abstract of judgment accordingly, and direct the certified copies of the amended abstract be transmitted to all appropriate parties and entities.
DISPOSITION
The judgment of conviction is affirmed. The matter is remanded to the superior court with instructions to (a) impose a term of 28 months on count 11; (b) stay the sentence imposed on count 3 pursuant to section 654; (c) award one additional day of custody credit; and (d) amend the abstract of judgment accordingly and transmit certified copies of the amended abstract to all appropriate parties and entities.
WE CONCUR: Gomes, Acting P.J., Detjen, J.