Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F10123
HULL, J.A jury convicted defendant Christopher James Ximenez of four offenses: kidnapping (Pen. Code, § 207, subd. (a); unspecified section references that follow are to the Penal Code), assault with a deadly weapon (§ 245, subd. (a)(1)), child endangerment (§ 273a, subd. (a)), and making criminal threats (§ 422). The trial court found charged prior convictions to be true, and sentenced defendant to an aggregate prison term of 28 years.
On appeal, defendant contends that (1) the court denied his constitutional right to retain counsel of choice, (2) the court violated his constitutional right to a public trial, (3) insufficient evidence supports his convictions for child endangerment and kidnapping, (4) the court erred in admitting prior consistent statements, (5) the trial court had a sua sponte obligation to instruct on the need for corroboration of accomplice testimony, (6) the prosecutor engaged in misconduct, and (7) the trial court violated section 654 by imposing sentence on count 4, making criminal threats. None of these claims has merit, and we therefore affirm the judgment.
Facts and Proceedings
The incidents giving rise to defendant’s convictions occurred over the course of one night in November 2003, one month after defendant and his wife, G.F., had a baby. Defendant had previously threatened and abused G.F., and on this occasion, he began to physically push her. When she went to the telephone to call her mother, defendant told her she could not use the phone because he thought she was going to call the police. G.F. took the phone into the bathroom and closed the door, but defendant yanked the phone cord and broke it.
G.F. left the apartment by herself and drove around to “cool down.” On her way home, she saw defendant walking outside in the freezing weather with their baby. She stopped, took the baby from defendant, and then drove back to the apartment quickly, hoping to be able to lock defendant out. Defendant arrived at the same time as G.F.
Defendant and G.F. went into the bedroom, leaving the baby on the couch in the living room. An argument ensued. Defendant picked up a pair of scissors and pushed G.F. on to the bed. He put a pillow over G.F.’s face and tried to smother her. At the same time, he stabbed the scissors into the pillow and the bedding, telling G.F. that he was going to “cut her face out,” “cut her guts out,” and “hand [G.F.] her intestines.” Defendant also threatened to kill G.F. and their infant son.
At some point, as defendant sat on top of G.F., G.F. asked if she could check on the baby, who was in the living room. Defendant replied that the baby was already dead. Defendant later allowed G.F. to go into the living room, but he forced her to crawl there.
While G.F. was holding the baby, defendant began to pack the baby’s diaper bag. He then took the baby from G.F. and ordered G.F. to the car, threatening to kill the baby if she ran away. G.F. complied because of defendant’s threats.
Defendant “peeled out” of the parking lot and sped through streets, running several red lights. Defendant got onto the freeway and drove at speeds of 90 to 100 miles per hour. G.F. described defendant’s driving as “crazy” and “reckless.” During the drive, defendant told G.F. that he was going to take her and the baby to the home of G.F.’s mother.
G.F., who was sitting in the back seat with the baby, pulled out one of the baby’s extra diapers and wrote a message to her mother that said: “[Defendant] is trying to kill us.” She signed her name and wrote the time, 4:21 a.m., and added, “I love you.”
They arrived at the home of G.F.’s mother at approximately 4:30 a.m. G.F. handed the baby to her mother and went into the kitchen with defendant. G.F.’s mother came into the kitchen, got the diaper bag and went into her bedroom. When she changed the baby, she saw the note that G.F. had written on the diaper. She went back to the kitchen, but defendant and G.F. were not there.
At some point during the half hour that defendant and G.F. were at the apartment, defendant told G.F. to get gas money from her brother. Her brother was asleep, but she woke him to ask for money and said something about being hurt or killed. G.F. got the money and defendant then pushed G.F. out of the apartment and ordered her back into the car. He still had the scissors with him, and G.F. complied because she was afraid that she or the baby would be hurt. She hoped that her mother would see the note she had written. Defendant held on to G.F. as they walked to the car.
After driving for some time, defendant ordered G.F. to drive the car because he was tired. As G.F. drove onto the freeway on-ramp, defendant threw the scissors from the car window.
At about 9:00 a.m., defendant dropped G.F. back at her mother’s apartment. He returned there around noon.
G.F.’s mother had called the police after finding G.F.’s note, and officers subsequently arrested defendant.
G.F. told Officer Lindner what had happened, and took him to her apartment. The pillow and bedding had holes in them, and the phone cord had been forcibly pulled apart.
Officers found a pair of scissors in the embankment near the highway on-ramp.
On November 25 and December 3, 2003, G.F. confirmed her account with victim advocates, making few revisions to Officer Lindner’s report. However, by the time of trial one year later, G.F. had recanted. She testified that the statement she had given the police was not true, that the case had been blown out of proportion, that she did not want to testify against defendant and that she loved him.
The jury convicted defendant of assault with a deadly weapon, kidnapping, making criminal threats, and child endangerment. Sentenced to an aggregate prison sentence of 28 years, defendant appeals.
Discussion
I
Right to Retain Counsel
Defendant contends that the trial court violated his constitutional right to retain counsel of his choice. We disagree.
The day trial began, defendant sought leave from the court to obtain a private attorney. Defendant said that his family had finally been able to raise the needed funds, and that he believed that a private attorney would be “a little more aggressive” than the public defender. According to defense counsel, defendant’s mother indicated that the family had met the previous day with Attorney Dan Brace, and Brace had agreed to represent defendant. The retainer was being wired to Brace that morning. Attorney Brace did not appear in court and did not seek to make a special appearance to request a continuance, nor did he submit any documentation verifying his willingness to represent defendant.
The prosecutor responded that defendant’s request was untimely. She observed that the first trial setting was held nine months earlier, and no request to retain outside counsel had been made at any time during the ensuing months. Witnesses had been subpoenaed and ordered back each time the case had been continued.
The court noted that defendant’s request was essentially coming on the third day of trial, with the first two days having been spent on preliminary motions and in limine matters. The case had been sent out for trial 11 times before, but defendant had never alerted the court that his family was trying to hire a private attorney.
The court found that defendant’s request was untimely. The court commented that without any information from Attorney Brace, it was unable to assess the effect of any further delay in trial. It was unable to “reset the matter for trial or have any idea of how much a continuance we would be talking about. Because part of the issue of timeliness and prejudice is the issue of whether or not there would be an undue delay of this trial in order to allow private counsel.” The court thought that new counsel would require at least four weeks to prepare, which would result in an undue delay of the trial.
The court concluded, “[I]n light of the fact that this matter has already proceeded partially to trial, at least in terms of undue consumption of court time, and simply the failure to bring it in a more timely fashion this Court is going to deny that request due to your request for private counsel at this--beyond the 11th hour of your case.”
Defendant asserts that the trial court’s ruling violated his right to retain counsel. We do not agree.
The right to effective assistance of counsel includes the right to retain counsel of choice (People v. Courts (1985) 37 Cal.3d 784, 789), and “trial courts have the responsibility to protect a financially able individual’s right to appear and defend with counsel of his own choosing.” (Id. at p. 790.) Limitations on this right are “carefully circumscribed. Thus, the right ‘can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.’ [Citations.]” (Ibid.) “‘Due process is not denied every defendant who is refused the right to defend himself by means of his chosen retained counsel; other factors, including the speedy disposition of criminal charges, demand recognition, particularly where defendant is inexcusably dilatory in securing legal representation. [Citation.]’” (People v. Murphy (1973) 35 Cal.App.3d 905, 915.)
The burden is on a defendant to establish an abuse of discretion in denying a request for a change of counsel; absent such a showing, a reviewing court will not disturb the trial court’s determination. (People v. Murphy, supra, 35 Cal.App.3d at p. 915.)
Similar principles apply in the context of continuances. A trial court’s decision to deny a request for a continuance to seek private counsel is reviewed under an abuse of discretion standard. (People v. Pigage (2003) 112 Cal.App.4th 1359, 1367.) “Generally, the granting of a continuance is within the discretion of the trial court. [Citations.] A continuance may be denied if the accused is ‘unjustifiably dilatory’ in obtaining counsel, or ‘if he arbitrarily chooses to substitute counsel at the time of trial.’ [Citation.] [¶] However, ‘a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.’ [Citation.] For this reason, trial courts should accommodate such requests--when they are linked to an assertion of the right to retained counsel--‘to the fullest extent consistent with effective judicial administration.’ [Citation.]
“In deciding whether the denial of a continuance was so arbitrary as to violate due process, the reviewing court looks to the circumstances of each case, ‘“particularly in the reasons presented to the trial judge at the time the request [was] denied.”’ [Citation.]” (People v. Courts, supra, 37 Cal.3d at pp. 790-791.)
The trial court did not abuse its discretion in denying defendant’s motion. Defendant had known for months that his case was ready to go to trial, but did not indicate any desire to retain an attorney before this motion was made. Preliminary matters and in limine motions had already been addressed and voir dire was about to start. Defendant’s only explanation for the delay was that financial and family problems presented difficulties in raising the needed funds. But these problems would not have precluded defendant from giving some indication that his family wanted to try to hire an attorney.
Defendant asserts that his motion was timely because the information had been amended the day before to add a second prior conviction, and that a new attorney was necessary to handle the now more complex case. But defendant offered no such rationale to the trial court. Defendant said only that he and his mother thought that a private attorney would be more aggressive in handling his case, and that they had wanted to use a private attorney all along but could not, until the previous day, afford one. There was no suggestion that the addition of another prior offense meant that his case had suddenly become too complicated for his appointed counsel to handle, nor can we imagine that to have been the case.
More importantly, the court was given no information to enable it to determine how much additional time Attorney Brace would have required before proceeding to trial. Defendant contends that his motion did not involve a request for continuance, a claim that ignores reality. The need for a continuance was implicit in defendant’s motion: trial was scheduled to start and the attorney defendant wanted to represent him was not there. The court appropriately estimated that any competent attorney would require at least a month of preparation before trial could begin.
Given the number of delays that had already occurred, the timing of defendant’s request, the lack of any definitive evidence that Attorney Brace was in fact willing to represent defendant, and the complete absence of any information regarding the effect a substitution might have on scheduling, the trial court acted well within its discretion in denying defendant’s motion. (See People v. Pigage, supra, 112 Cal.App.4th at p. 1367.) Defendant’s claim to the contrary is meritless.
II
Right to Public Trial
Defendant contends that the trial court violated his right to public trial by excluding his mother from the courtroom for one day. We disagree.
Trial testimony began on December 22, 2004, with G.F. as the first witness. The following morning, December 23, defendant’s mother reported to the court that she had overheard jurors talking about the case in the restroom at the end of the preceding day. She said that as she and G.F. were about to enter the restroom, she heard one juror criticizing G.F. for taking the baby outside. The jurors laughed and joked, and one said, “Guilty, guilty, guilty, guilty. He is guilty.” Defendant’s mother said G.F. heard the jurors say the same thing. She thought the two women in question were Jurors Nos. 4 and 6.
The court called G.F. into the courtroom to question her about what she overheard. G.F. said that she was about to enter the restroom with defendant’s mother when she heard someone calling G.F. a liar, and making comments about wanting to be able to go to a Christmas party. She heard someone say defendant was guilty. G.F. said the women were talking “very, very loud.”
The court questioned all of the female jurors individually. Juror No. 4 said that she had stopped in the restroom before leaving the courtroom and Juror No. 6 had done the same. Juror No. 4 had made some comments about the inconvenience of jury service at Christmas time. She denied saying anything about defendant or G.F., or declaring, “guilty, guilty, guilty.” She did not see the woman who sat in the back of the courtroom (i.e., defendant’s mother) in the restroom.
Juror No. 6 said she may have stopped in the restroom at the end of the previous day, but could not remember the topic of conversation with Juror No. 4. In response to questioning, she thought it was possible that Juror No. 4 had discussed some Christmas plans, but she said no one talked about the case or made any comments about defendant or G.F. She did not remember having seen defendant’s mother near the restroom.
Defense counsel moved to remove Jurors Nos. 4 and 6 from the jury, arguing that defendant’s mother had presented credible evidence of misconduct. The prosecutor countered that defendant’s mother and G.F. did not even report the same conversations, and suggested that defendant’s mother had a motive for keeping the trial from going forward.
The trial court described Juror No. 4 as relaxed in answering the court’s initial question and “incredulous” when asked about the statements purportedly made. The court noted that the stories of the two jurors were consistent, while those of defendant’s mother and G.F. were not. The court found it unlikely that any juror would have made improper comment in a voice loud enough to be heard outside the restroom, and it concluded that defendant’s mother and G.F.’s reports of misconduct were not credible. The court therefore declined to remove either juror from the case.
The court expressed concern, however, that the attention of these two jurors had been drawn to defendant’s mother. Each had been asked if they had seen the “lady who has been sitting in the back of this courtroom” in or near the restroom, and the court was worried that the jurors might conclude that she or G.F. was the person who had accused them of misconduct. With the encouragement of defense counsel, the court called Jurors Nos. 4 and 6 back into the courtroom to determine whether they could put this incident out of their minds and follow the court’s instructions. Both responded that they could. Neither had any negative feelings toward G.F. or defendant’s mother.
Trial continued, and G.F. resumed her testimony. At the end of the day (December 23), the court spoke to the parties and expressed concerns about defendant’s mother continuing to attend the trial. The court found that she had perjured herself and made a deliberate attempt to try to have jurors removed from the case. The court was also concerned that Jurors Nos. 4 and 6 might be distracted by the presence of defendant’s mother, who they might suspect as the source for the complaints. The court recognized the importance of having a public trial, but said it was inclined to exclude defendant’s mother from the courtroom, at least for some period of time, to avoid any problems with the two challenged jurors.
The court in fact excluded defendant’s mother from the courtroom for the next trial date, December 27. On that day, G.F. continued her testimony and was cross-examined. Other witnesses included G.F.’s mother and brother, as well as several police officers.
The following morning, December 28, the court relented and permitted defendant’s mother back into the courtroom for the remainder of the trial, warning her to stay away from the jurors. Testimony continued that day and included Officer Lindner’s description of G.F.’s initial statement about the incident. On December 29, the court instructed the jury and attorneys presented their closing arguments. The jury began its deliberations and returned its verdicts the next afternoon.
Defendant contends that the trial court violated his constitutional right to a public trial by excluding his mother from the courtroom for one day. We do not agree.
“Every person charged with a criminal offense has a constitutional right to a public trial, that is, a trial which is open to the general public at all times. (See U.S. Const., amends. VI, XIV; Cal. Const., art. I, § 15; see also Pen. Code, § 686, subd. 1.)” (People v. Woodward (1992) 4 Cal.4th 376, 382.) “The Sixth Amendment public trial guarantee creates a ‘presumption of openness’ that can be rebutted only by a showing that exclusion of the public was necessary to protect some ‘higher value,’ such as the defendant’s right to a fair trial, or the government’s interest in preserving the confidentiality of the proceedings. [Citation.] When such a ‘higher value’ is advanced, the trial court must balance the competing interests and allow a form of exclusion no broader than needed to protect those interests.” (People v. Woodward, supra, 4 Cal.4th at p. 383; see Waller v. Georgia (1984) 467 U.S. 39, 45 [81 L.Ed.2d 31, 38].)
That is precisely what the court did here. The court found that defendant’s mother had concocted a story of jury misconduct in order to have jurors removed. The court was concerned that defendant’s mother might again try to interfere with the trial, and was also concerned that the challenged jurors might be distracted by having their accuser sitting in the courtroom. The court recognized defendant’s right to an open courtroom and public trial, and defendant’s right to have family members present. It also recognized the need to prevent an individual from interfering with the right to a fair trial and an orderly trial process. The court therefore crafted a limited remedy by excluding defendant’s mother from the proceedings for one day. The court’s order did not affect any other spectators or close the courtroom to the general public, and its order was of brief duration.
The exclusion of defendant’s mother from the courtroom for one day did not implicate any of the rationales underlying the right to public trial. “‘“‘The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions. . . .’”’ [Citations.] [¶] In addition to ensuring that judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury.” (Waller v. Georgia, supra, 467 U.S. at p. 46, [81 L.Ed.2d at p. 38], fn. omitted.) The exclusion of defendant’s mother did not affect any of these goals.
The trial court properly weighed the need for a public trial against the need for a fair and orderly trial, imposed a narrow and carefully tailored remedy, and explained the reasons for its order. (See Waller v. Georgia, supra, 467 U.S. at p. 48 [81 L.Ed.2d at p. 39].) Under these circumstances, the temporary exclusion from the courtroom of defendant’s mother did not violate defendant’s right to a public trial. (See People v. Holloway (2004) 33 Cal.4th 96, 148 [temporary exclusion of single spectator to prevent disruptive displays did not infringe on public trial right]; People v. Woodward, supra, 4 Cal.4th at pp. 385-386 [temporary closure of courtroom to new spectators to avoid interruptions during closing arguments did not violate public trial guarantee].)
III
Sufficiency of the Evidence
Defendant contends there was insufficient evidence to support his convictions for child endangerment and kidnapping. To the contrary: there was abundant evidence that defendant committed both offenses.
“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]
“Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.].” (People v. Jones (1990) 51 Cal.3d 294, 314.)
We examine the evidence supporting each of the challenged convictions.
A. Child Endangerment
The child endangerment statute is violated when a person “who, under circumstances or conditions likely to produce great bodily harm or death, . . . willfully causes or permits [a] child to be placed in a situation where his or her person or health is endangered[.]” (§ 273a, subd. (a).)
According to G.F.’s statement to police officers, defendant forced G.F. and the baby from their apartment into their car. Defendant peeled out the parking lot, ran through red lights on surface streets, and then drove 90-100 miles per hour on the freeway. G.F. described defendant’s driving as “reckless” and “crazy.”
Defendant contends that his driving did not endanger the life of his son because the trip from the apartment to the home of G.F.’s mother occurred at 4:00 a.m. when the streets were deserted and there was no danger of a collision.
No evidence was presented regarding traffic conditions, but it is unlikely that defendant’s car was the only vehicle on a major freeway, regardless of the hour. More importantly, the risk of great bodily harm or death came not only from a multi-car collision, but from the possibility that a driver might lose control of a car while driving at a high speed.
The fact that no injury actually occurred was indeed fortunate; it does not, however, absolve defendant of liability for child endangerment. (See People v. Valdez (2002) 27 Cal.4th 778, 784.) Defendant’s driving, as described by G.F., posed a serious and well-founded risk of great bodily harm or death (see People v. Wilson (2006) 138 Cal.App.4th 1197, 1204), and substantial evidence supports his conviction for child endangerment.
B. Kidnapping
Defendant contends that his conviction for kidnapping must be reversed because there was insufficient evidence of force or fear. We disagree.
Section 207, subdivision (a) provides in relevant part: “Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person . . . into another part of the same county, is guilty of kidnapping.”
“As can be seen by this language, in order to constitute . . . kidnapping, the victim’s movement must be accomplished by force or any other means instilling fear. . . . As [prior California Supreme Court] cases explain, the force used against the victim ‘need not be physical. The movement is forcible where it is accomplished through the giving of orders which the victim feels compelled to obey because he or she fears harm or injury from the accused and such apprehension is not unreasonable under the circumstances.’ [Citations.]” (People v. Majors (2004) 33 Cal.4th 321, 326-327.)
In the present case, the prosecutor argued that the kidnapping charge could be predicated on either of two events, namely (1) when defendant took G.F. from their apartment to the home of G.F.’s mother, or (2) when defendant later took G.F. from her mother’s home. Contrary to defendant’s claim, there was abundant evidence of force or fear under either theory. We briefly recap that evidence.
Defendant attacked G.F. in their bedroom, smothering her with a pillow and then stabbing the pillow and bed. During this assault, he threatened to hurt or kill both G.F. and their baby. In describing this attack, G.F. told officers that she thought defendant’s threats at this point were credible. She added that “although she really didn’t think he would hurt their child, she did believe he was going to kill her.”
Defendant then packed up items for the baby, took the baby from G.F. and told G.F. to go out to the car. He told her not to run away because he would hurt the baby if she did. G.F. told the officer that defendant took her and the baby against her will by threatening to kill the baby. It was during the ride to her mother’s house that G.F. wrote a message on one of the baby’s diapers that “[defendant] is trying to kill us.”
Defendant argues that these events did not constitute a kidnapping because G.F. was not in actual fear of defendant, as demonstrated by G.F.’s statement that she did not really think defendant would hurt the baby. Defendant ignores the context in which that statement was made. G.F. made this comment when describing the assault in the bedroom. By the time defendant ordered her to the car, G.F. had apparently reassessed the situation. She told the officer that she went into the car because defendant was again threatening to hurt the baby, and she wrote on the diaper that defendant was trying to kill “us.”
This first movement, from the apartment to the home of G.F.’s mother, was accomplished by means of fear and constituted a kidnapping.
Contrary to defendant’s claims, the same is also true of the second act of kidnapping. G.F. told officers that defendant pushed her out of her mother’s apartment and told her to get into the car. He held onto her as they walked to the car. She said that “she wanted to stay, but was afraid to do anything out of fear of getting hurt or of having him hurt their baby.” Defendant still had the pair of scissors with him, and G.F. did not think it was wise to resist. She did not tell her mother or brother what was happening because she was afraid that defendant would hurt her or the baby. She hoped that her mother would read the note she had left on the diaper.
At trial, G.F. recanted her statement and denied that defendant physically pushed her out of the apartment or ordered her to the car. Defendant focuses on this version of events and argues that there was insufficient evidence to establish a kidnapping occurred. The jury was entitled to make a different credibility determination and find G.F.’s first statements to police officers more believable than her trial testimony. That description of events established that defendant forcibly took G.F. from her mother’s house and provides ample evidence that a kidnapping occurred.
IV
Admission of Prior Consistent Statements
Defendant contends that the trial court erred in allowing the prosecutor to introduce statements made by G.F. to police that were consistent with her trial testimony. The error, if any, was harmless.
At trial, defense counsel noted that it had reached agreement with the prosecutor to exclude certain parts of G.F.’s statement, but she asserted that other statements should also be excluded because they were consistent with G.F.’s trial testimony. When asked what specific statements she wanted to exclude, counsel gave the following limited reply:
“I believe certain statements should not be reiterated, and first of all, it would be . . . [G.F.] already admitted that . . . ‘She went into the bedroom with her husband to talk. She left the baby sleeping on the couch in the living room. He--suspect--began touching me.’ [¶] I believe all of that has already been admitted consistent with [G.F.’s] testimony. The thing that would be inconsistent is, ‘I told him, Don’t touch me.’ She admitted that [defendant] was getting angry and getting upset. I believe that the statement that he started getting mad is not inconsistent. Her next statement is, “It’s very clear that he was high on drugs. I think he used methamphetamine.’ [¶] She did discuss that she thought he was high, intoxicated, and was directly asked was it methamphetamine, so I believe that statement was not inconsistent because I don’t believe she was asked about that.”
The prosecutor countered that while some statements were technically consistent, G.F.’s trial testimony and statement to police presented a very different “context of what is happening while they’re in the bedroom.” G.F.’s trial testimony described a discussion between the two of them, while her statement to the officer described a much more confrontational situation.
The trial court and prosecutor then engaged in a convoluted discussion about the admissibility of consistent statements under the Evidence Code, and the court ultimately concluded that the consistent statements were admissible.
On appeal, the parties again focus their attention on Evidence Code section 791, which provides: “Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [¶] (a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or [¶] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.”
Defendant argues that the prior consistent statements were not admissible under either prong of this statute and the erroneous admission of this hearsay evidence necessitates reversal of his conviction. The People counter that Evidence Code section 791, subsection (b) permitted the introduction of these statements. We do not agree with either party.
At first glance, it would appear that Evidence Code section 791, subdivision (b) applies. The prosecutor argued that G.F.’s trial testimony was recently fabricated and stemmed from the fact that G.F. still loved defendant. Her consistent statements were made earlier, before the motive for fabrication arose, thereby apparently falling with the scope of Evidence Code section 791, subdivision (b). However, the prosecution was not seeking to introduce these consistent statements for the purpose outlined in Evidence Code section 791, namely, to support the credibility of G.F.’s trial testimony. To the contrary. The prosecution sought to discount G.F.’s trial testimony and instead urged that it was her earlier statement to police officers that should be credited.
Essentially, and as the prosecutor first explained to the court, the consistent statements were necessary in order to give G.F.’s statements some context. G.F.’s trial testimony about the events that occurred in the bedroom was completely different from the description of events she gave to police officers. The fact that in both cases she said events occurred in the bedroom did not implicate G.F.’s credibility one way or the other. The consistent statements were passing comments that were necessary only for the nonhearsay purpose of giving context to the more elaborate description. Under these circumstances, the hearsay rule and the exceptions noted under Evidence Code section 791 simply were not applicable.
V
Failure to Instruct on Corroboration of Accomplice Testimony
According to defendant, G.F. faced potential prosecution for child endangerment through her own acts, and therefore could have been viewed as an accomplice to the child endangerment charge against defendant. Under these circumstances, defendant argues, the trial court had a sua sponte obligation to instruct the jury on the need for corroboration of accomplice testimony. Defendant’s claim founders on a faulty predicate: G.F. was not an accomplice, and there was therefore no reason to instruct on corroboration.
Section 1111 provides: “A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (Italics added.)
Defendant suggests that G.F. is liable to prosecution for child endangerment and therefore an accomplice because she (1) drove away from the apartment at one point during the parties’ argument, leaving her child in defendant’s care, and (2) then took her child and tried to outrace defendant back to the apartment rather than leave for a place of safety. Defendant apparently believes that if G.F. could be charged with violating the same code section as defendant, she can be considered an accomplice, even if the underlying acts constituting the offenses have nothing to do with each other. He is wrong.
To be chargeable with an identical offense, a witness must be a principal in the crime. (People v. Hinton (2006) 37 Cal.4th 839, 879; People v. Lewis (2001) 26 Cal.4th 334, 368-369.) Section 31 defines “principals” as “[a]ll persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . .”
Defendant was prosecuted for child endangerment because he drove at 90 to 100 miles per hour and ran stop lights while the baby was in the car. Any theoretical exposure to a charge of child endangerment for G.F. is predicated on entirely different incidents, unrelated to defendant’s dangerous driving. G.F. was not liable to prosecution “for the identical offense” and therefore could not be considered an accomplice.
Because there could be no accomplice liability, the court had no obligation to instruct the jury on the need for corroboration of accomplice testimony. Defendant’s claim to the contrary is meritless.
VI
Prosecutorial Misconduct
Defendant contends that the prosecutor engaged in misconduct in her closing argument. Specifically, he contends that the prosecutor made improper gender-biased comments, appealed to passion and prejudice, and impermissibly vouched for a police officer’s credibility. We address each claimed instance of misconduct.
A. Gender-biased arguments
In her arguments to the jury, the prosecutor discussed G.F.’s efforts to distance herself from the statement she initially gave to the police, noting that G.F. later claimed that defendant threatened only her, not the baby. The prosecutor said that G.F. “was still acknowledging that there were threats made and threats, these threats were vi[le], absolutely vi[le], cold, and callous. To cut someone’s face, especially to say that to a woman. So much we think about in our growing up as little girls and to blossom into being women has to do with our face and that is probably why we paint it and we put mascara on it and cream at night to keep it moisturized and do these things because right or wrong as a society we value our face. It’s something about our beauty or our perception of our beauty. And for him, a husband, under those circumstances to threaten to cut up her face is vi[le].”
Later, in summarizing the events that occurred in the apartment, the prosecutor said, “You know, when we use the phrase about our homes being [our] castles, you know, maybe a man’s home is a castle but a woman’s home it’s your sanctuary. You know for the guys it’s a castle and for us it’s a nest. At the end of the day you can kick [off] your things and take off the nylons and let your hair down and be yourself and relax. That is home. That was not what was happening at this home.”
Defendant characterizes these remarks as an appeal to gender bias and therefore prosecutorial misconduct.
Defendant did not object to any of these statements or seek a curative admonition, omissions that generally forfeit any claim of error. (People v. Crew (2003) 31 Cal.4th 822, 839.) Defendant counters that any objection would have been futile. He also asserts that no objection was necessary because the Standards of Judicial Administration imposed an affirmative duty on the trial court to prevent the prosecutor from engaging in conduct that exhibited bias. Alternatively, he contends that counsel was ineffective in failing to object to these remarks.
Defendant’s arguments suffer from one glaring failing: he cannot demonstrate prejudice, a necessary component to a claim of prosecutorial misconduct or ineffective assistance of counsel. (See People v. Gionis (1995) 9 Cal.4th 1196, 1220; People v. Jennings (1991) 53 Cal.3d 334, 357.) Regardless of whether the prosecutor engaged in inappropriate stereotyping or whether counsel or the court could have raised some objection to these comments, the prosecutor’s remarks were irrelevant to the jury’s ultimate determination on the issue of whether defendant made criminal threats to G.F. Whether remarks threatening to cut G.F.’s face were particularly “vile” because they were made to a woman is immaterial. Defendant’s threat to disfigure was a criminal threat, regardless of the gender of the victim. Similarly, the prosecutor’s castle versus nest comments had nothing to do with the substantive issues in the case.
Because it is not reasonably likely that the jury would have returned a different verdict had these comments not been made, defendant cannot prevail on a claim of prosecutorial misconduct or ineffective assistance of counsel. (People v. Gionis, supra, 9 Cal.4th at p. 1220; People v. Jennings, supra, 53 Cal.3d at p. 357.)
B. Appeal to passion and prejudice
In her argument to the jury, the prosecutor noted that the physical evidence corroborated G.F.’s statement to the police, and she drew the jury’s attention to the condition of the pillow and bedding found in the bedroom. The prosecutor stated, “That pillow is damaged in a fashion consistent with the way that she describes to you it happened. That was the pillow that her husband used to hold over her face and to press down as he attempted to smother her. That was the pillow that while she couldn’t breathe her husband was taking the scissors and stabbing that pillow so close to her face that she thought he would hit--hit her. That is the pillow.
“I can’t even imagine. What if you stepped in for a moment to what that must have felt like on that bed. Not only was her pillow damaged, but the bedding around it was damaged as well. It’s hard to imagine being put in that position in that level of terror that was inflicted upon her in her own bed in her own home.”
Defendant contends that this comment was an improper appeal to passion and prejudice. (See People v. Pensinger (1991) 52 Cal.3d 1210, 1250.) Defendant’s failure to raise an objection and seek a curative admission forfeits any claim of error. (People v. Crew, supra, 31 Cal.4th at p. 839.)
Defendant’s claim is no more successful when framed as a claim of ineffective assistance of counsel. First, because the prosecutor’s argument was a fair comment on the evidence, there was nothing for defendant’s attorney to object to with any success. But even if we assume the prosecutor’s remarks were objectionable, defendant cannot show prejudice. The prosecutor’s comment was an isolated remark in the midst of a lengthy argument. G.F. had described how defendant assaulted her by holding a pillow over her face and stabbing the pillow and bedding with a pair of scissors. The physical condition of the pillow and bedding corroborated this testimony. Given the strength of the evidence, there is no reasonable probability that a result more favorable to defendant would have been reached had counsel objected to the prosecutor’s comment and the trial court admonished the jury. Absent prejudice, defendant’s claim of ineffective assistance of counsel fails. (People v. Jennings, supra, 53 Cal.3d at p. 357.)
C. Vouching for an officer’s credibility
At trial, Officer Lindner testified at length about G.F.’s statement describing the events that had occurred. When G.F. testified, she recanted and attempted to downplay the severity of defendant’s acts. The prosecutor argued that G.F.’s trial testimony was not credible and that the jury should instead rely on the description of events that G.F. first gave to Officer Lindner. The prosecutor explained why G.F. might have recanted and also emphasized that Officer Lindner had no motivation to fabricate G.F.’s statement. As part of this argument, the prosecutor said, “[T]he problem is that if [G.F.] didn’t tell Officer Lindner all these things in the report, what does that mean? If you believe her, it means Office Lindner is a liar who should be fired from the Sacramento Police Department. He has perjured himself in court. He has put his living and family’s well-being on the line. For what? That’s the problem. Because if she did not tell Officer Lindner those things, he sure had a lot of time fabricating, making it all up and write a heck of a report writing it, didn’t he? So that’s not a very good response.”
Citing these remarks, defendant asserts that the prosecutor engaged in misconduct by improperly vouching for her witness’s credibility. Again, however, defendant’s failure to raise an objection in the trial court forfeits any claim of error. (People v. Crew, supra, 31 Cal.4th at p. 839.)
Defendant’s claim that his attorney was ineffective in failing to make such an objection is unpersuasive. A prosecutor is given wide latitude in arguing to the jury, and is entitled to comment on the evidence, including the reasonable inferences or deductions that can be drawn. (People v. Hill (1998) 17 Cal.4th 800, 819.) Misconduct occurs only when the prosecutor’s behavior is so egregious that it violates due process by infecting the trial with unfairness. (Ibid.)
That is not the case here. The prosecutor was well within the bounds of appropriate argument when she asserted that Officer Lindner had no motivation for fabricating G.F.’s statements and in fact would have risked his career had he done so. The prosecutor highlighted appropriate inferences and deductions to be drawn from the evidence. Defense counsel cannot be faulted for failing to object to nonobjectionable remarks. There was no ineffective assistance of counsel.
VII
Section 654
In sentencing defendant, the trial court imposed consecutive sentences for all three offenses committed against G.F.: assault with a deadly weapon, kidnapping, and making a criminal threat. Defendant asserts that the sentence for criminal threats should have been stayed pursuant to section 654. We disagree.
Section 654 prohibits punishment for two crimes arising from a single indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Subdivision (a) of the statute provides in relevant part that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).)
“‘The proscription against double punishment in section 654 is applicable when there is a course of conduct which . . . comprises an indivisible transaction punishable under more than one statute . . . . The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any of them but not for more than one.’ [Citation.]” (People v. Coleman (1989) 48 Cal.3d 112, 162.) If, however, a defendant acts with multiple criminal objectives that are independent of each other, the defendant may be punished for each offense, even though the violations are parts of an otherwise indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.)
As the California Supreme Court has noted, courts have limited the application of section 654 in various ways. (People v. Latimer, supra, 5 Cal.4th at p. 1211.) “Some have narrowly interpreted the length of time the defendant had a specific objective, and thereby found similar but consecutive objectives permitting multiple punishment[s]. [Citations.] [¶] Other cases have found separate, although sometimes simultaneous, objectives under the facts. [Citations.]” (Id. at pp. 1211-1212.)
The defendant’s intent and objective present factual questions for the trial court, and its findings will be upheld if supported by substantial evidence. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.) “We review the court’s determination of [a defendant’s] ‘separate intents’ for sufficient evidence in a light most favorable to the judgment, and presume in support of the court’s conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence. [Citation.]” (People v. Cleveland (2001) 87 Cal.App.4th 263, 271.)
At trial, the prosecutor emphasized that two kidnappings had occurred, and she argued that the threats to harm the baby were unrelated to the second kidnapping from the home of G.F.’s mother. Consequently, she argued, the court could properly impose sentence for both kidnapping and making criminal threats without violating section 654. The trial court apparently agreed, finding the threats “sufficiently separate” from the kidnapping.
In arguing otherwise, defendant contends that only one continuous kidnapping occurred because G.F. never reached a place of temporary safety after being taken from her apartment. (See People v. Barnett (1998) 17 Cal.4th 1044, 1159.) The evidence demonstrates otherwise. When G.F. got to her mother’s house, other people were present. G.F. and defendant stayed in the apartment for approximately half an hour. There was no evidence of a continued forcible detention at that point. In fact, G.F. told Officer Lindner that she had wanted to stay at the apartment. Defendant engaged in a second act of kidnapping when he forcibly pushed G.F. from her mother’s house and into his car.
Because the second kidnapping was a different act from the initial kidnapping involving the criminal threats, the imposition of separate sentences did not violate section 654. There was no error.
Disposition
The judgment is affirmed.
We concur: SIMS, Acting P.J., ROBIE, J.