P. v. Joseph

P. v. Joseph



















Filed 3/30/10 P. v. Joseph CA2/7











>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

>



California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115 >.









IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
SEVEN




>

THE PEOPLE, Plaintiff and Respondent, v. JOHN BERNARD JOSEPH, Defendant and Appellant.

B210365 (Los Angeles County Super. Ct. No. NA072278)

APPEAL from
a judgment of the Superior Court
of Los Angeles
County, John David Lord, Judge. Affirmed.

Richard D.
Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G.
Brown, Jr., Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr. and David A. Voet, Deputy
Attorneys General, for Plaintiff and Respondent.







John Bernard Joseph was convicted by a jury of four
counts of lewd conduct with a minor
and sentenced to an aggregate state prison term of three years. Joseph contends the trial court made multiple
evidentiary errors, including admitting hearsay and evidence of his prior uncharged sexual offenses. He also asserts the prosecutor committed
prejudicial misconduct. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The
Information

An
information charged Joseph with committing four separate acts of lewd conduct
upon his granddaughter, D. Each of the
unlawful acts was alleged to have been committed on or between June 1, 2006 and December 21, 2006, when D. was 15 years old
and Joseph was 69 years old. (See Pen.
Code, § 288, subd. (c)(1).)^[1]

2. The
Trial

a >.
D.’s testimony at trial

D., along
with her twin brother, came to the United
States in 2001 from the Commonwealth
of Dominica^[2] to live with Joseph, her paternal grandfather,
and Joseph’s wife. At that time, D. was
10 years old. For several years, Joseph
showed D. little physical affection or attention. In 2006, however, when D. was 15 years old, Joseph
began to pay more attention to her.
Joseph repeatedly asked D. if she loved him and insisted she kiss
him. D. responded by telling him she
loved him and complied with his requests by kissing him on the cheek.

Soon,
Joseph’s advances became more overt and sexual.
On one occasion he came into D.’s room while she and her brother were
talking, demanded her brother go downstairs to do chores, reclined on her bed
with her and insisted she kiss him. When
she leaned over and attempted to kiss him on the cheek, he maneuvered his body
to kiss her on the lips and then thrust his tongue into her mouth.

On another
occasion Joseph called D. into his room, pulled her down on his bed, told her
he loved her, put his hand under her pajama shirt to rub her bare breast, then
raised her shirt up to her neck and put his mouth on her bare breast. When she began to cry, he told her to
leave. A few minutes later he asked her
if he could “touch her other breast.”
She said no, and he left her alone.

On a third
occasion, while she helped him bag peanuts, Joseph grabbed her wrist, forced
her to sit on his lap, put his hand down her pants on top of her underwear and
rubbed her pubic area, telling her she was growing into a “young woman.”

At some
point after Joseph’s first act of sexual misconduct toward D., he slapped her
on her buttocks over her clothes while the two were in the kitchen together and
gave her a “creepy” smile.

b. Evidence
of prior sexual misconduct

Pursuant to Evidence Code
section 1108,^[3] the court allowed Joseph’s daughter, A.A., to
testify that Joseph had molested her repeatedly, beginning in 1979 or 1980,
when she was 14 or 15 years old and had come to live with him from
Dominica. According to A.A., on several
occasions Joseph told her she was “special” and he loved her, then fondled her
breasts and put his hand down her pants.
He repeatedly kissed her in a sexual way, telling her he loved her. After a while, he demanded she have sexual
intercourse with him and threatened to send her back to Dominica
unless she complied. At first she
refused; but, afraid and under duress, she ultimately acquiesced. A.A. testified she was forced to have sexual
intercourse with her father between 50 and 100 times during the time she lived
with him.

A.A. admitted
she had threatened Joseph with a knife in 1989.
According to A.A., her younger sister, C.W., had revealed to her that
Joseph had begun touching her breasts in a sexual way. When C.W. reported Joseph’s actions to A.A.,
A.A. became incensed, grabbed a kitchen knife and threatened Joseph, telling
him he would not “do to C.W. what he had done” to her.

Jane M.
testified she had lived with Joseph and his wife for six months in 1984 when
she was 18 or 19 years old. Jane, who is
not related to Joseph, had no place to live at that time; and Joseph and his
wife both agreed she could stay with them.
While she stayed at Joseph’s home, Joseph would come into her bedroom
and put his hands under her clothes or pajamas and touch her breasts and her
vagina. He told her he wanted to make
her “feel good.” This happened several
times over two or three months until Jane moved out.

c. Defense
evidence

Joseph testified in his own
defense. He denied ever touching D.
apart from an occasional peck on the cheek. He never put his tongue in her mouth or put
his hands under her clothing or on or near her breasts or genitals. He may have brushed by her in the kitchen on
his way to the bathroom, but never touched her buttocks. According to Joseph, D. fabricated each of
the incidents because he was a strict disciplinarian and D. and her brother did
not like it.

Joseph also
denied having touched A.A. or Jane in a sexual way. Joseph believed A.A. had made up her
accusations because she had long resented him for not having married her mother
and was intent on ruining his life. Jane
was a good friend of A.A.’s and would do anything for her.

Joseph’s
son, Matthew Joseph, testified his father was a good man and not the type of
person to molest anyone, much less his own daughter or granddaughter. Matthew Joseph explained A.A. was not a
truthful person and had long resented Joseph for his strict discipline. He opined this plot to ruin his father was
hatched by A.A., and D. had assisted her in fabricating these accusations
because she is a “follower.”

Verna
Jacobs, Joseph’s niece, now 42 years old, testified she had lived with Joseph
in the Virgin Islands when she was between the ages of 8
and 14 years old, and again in 1991 through 1998, while her husband was in the
army. Jacobs claimed Joseph never
touched her inappropriately and believes the accusations of sexual misconduct
are entirely inconsistent with the man she knows.

3. The
Verdict and Sentence

The jury convicted Joseph on all
four counts of lewd conduct. The trial
court sentenced Joseph to the upper term of three years on the first count,
with concurrent three-year terms for the remaining counts.

DISCUSSION

1. The
Trial Court Did Not Commit Prejudicial Error in Admitting A.A.’s Testimony
Regarding Statements Made by Her Sister and Cousin

In addition to testifying Joseph
had repeatedly molested and raped her during the time she lived with him, A.A.
also testified to a number of other matters she had learned from her sister and
her cousin Muna, each of which Joseph asserts is inadmissible hearsay.

a. Testimony
concerning Joseph’s fondling of C.W.

In 1989
C.W. reported to A.A. Joseph had touched and squeezed her breasts as she was
coming out of the bathroom. According to
A.A., after C.W. told her about the incident, A.A. became angry, grabbed a
kitchen knife and threatened Joseph with it.


Initially,
defense counsel objected to the prosecutor’s offer of proof on hearsay grounds
and pursuant to Evidence Code section 352.
In response, the prosecutor asserted the testimony was not offered for
the truth of the matter asserted (that Joseph had groped C.W.), but to explain
A.A.’s aggressive conduct. The
prosecutor said the testimony would not be presented if defense counsel did not
introduce evidence A.A. had threatened Joseph with a knife. After consulting with Joseph, defense counsel
withdrew his objection.^[4]

Joseph now
argues A.A.’s testimony concerning C.W.’s statements constituted inadmissible
hearsay^[5] and his counsel provided ineffective assistance
in withdrawing his objection to it. The
evidence was properly admitted for a nonhearsay purpose—to explain A.A.’s state
of mind and motivation for threatening Joseph with a knife. (See People
v. Thornton (2007) 41 Cal.4th 391, 447 [Whenever an utterance is offered to
evidence “‘“‘state of mind [that] ensued in another person in consequence of
the utterance, it is obvious that no assertive or testimonial use is sought to
be made of it, and the utterance is therefore admissible. . . .’”’ [Citation.]
Such evidence is not hearsay.”].)
Accordingly, defense counsel’s withdrawal of his hearsay objection did
not constitute ineffective assistance. ( >See People v. Thomas (1992) 2 Cal.4th
489, 531 [failure to make meritless objection does not constitute ineffective
assistance of counsel]; see also People
v. Cudjo (1993) 6 Cal.4th 585, 616 [“[b]ecause there was no sound legal
basis for objection, counsel’s failure to object to the admission of the
evidence cannot establish ineffective assistance”].)

b. Testimony
concerning Alice P.’s parentage

At a
pretrial hearing the prosecutor informed the trial court he intended to present
evidence, through the testimony of Alice P., that Joseph had fathered Alice
with Irma C., another of Joseph’s daughters. The court indicated the testimony would be
allowed under the hearsay exception for family history, but, in light of some
uncertainty as to whether Alice
would testify, ordered that no reference be made to the anticipated testimony
in opening statement.

Alice
did not testify at trial. Instead, A.A.
testified Joseph had fathered a child with her sister, Irma. According to A.A., that daughter, Alice, was
born in 1967 or 1968, making Irma 15 years old at the time she gave birth. Defense counsel objected to this testimony at
trial. The court appears to have allowed
the testimony under a family history exception to the hearsay rule although
nothing in the record indicates which exception to the hearsay rule the court
applied.

Joseph
contends A.A.’s testimony concerning Alice’s
parentage was necessarily based on information acquired from someone else and
constitutes hearsay that is not subject to any recognized exception. He also asserts the evidence, whether or not
subject to a recognized hearsay exception, violated his Sixth Amendment right
to confrontation. (See >Crawford v. Washington (2004) 541 U.S.
36, 68 [124 S.Ct. 1354, 158 L.Ed.2d 177) (Crawford)
[out-of-court statements offered for the truth of the matter asserted that are
testimonial in nature are barred by the Sixth Amendment’s confrontation clause
unless declarant is unavailable and the defendant had a prior opportunity to
cross-examine declarant]; Davis v.
Washington (2006) 547 U.S. 813, 823, 825 [126 S.Ct. 2266, 165 L.Ed.2d 224];
People v. Cage (2007) 40 Cal.4th 965,
981.)

The People
concede the evidence is hearsay because A.A. could only have acquired
information about Alice’s parentage
from someone else, but contend the fact of Alice’s
parentage is subject to one of the family history exceptions for hearsay. The People also assert any family
conversations about Alice’s
parentage were nontestimonial and therefore not precluded by the confrontation
clause.

The
Evidence Code contains several exceptions to the hearsay rule in connection
with the reporting of family history.
Evidence Code section 1311, subdivision (a)(1), provides in part,
“Evidence of a statement concerning the birth, marriage, divorce, death, parent
and child relationship, race, ancestry, relationship by blood or marriage, or
other similar fact of family history of a person other than the declarant is
not made inadmissible by the hearsay rule if the declarant is unavailable as a
witness” and the declarant “was related to the other by blood or marriage.” Similarly, Evidence Code section 1313
provides, “Evidence of reputation among members of a family is not made
inadmissible by the hearsay rule if the reputation concerns the birth,
marriage, divorce, death, parent and child relationship, race, ancestry,
relationship by blood or marriage, or other similar fact of the family history
of a member of the family by blood or marriage.”

Joseph
argues Evidence Code section 1311 is inapplicable because the prosecutor never
adequately established Irma’s unavailability.
At the threshold, because defense counsel did not raise this point in
the trial court, the actual declarant—the person who told A.A. that Joseph had
fathered Alice—was never
specifically identified.^[6] Perhaps for that reason, even assuming Irma
was the person who provided this information to A.A., no record of Irma’s
unavailability was adequately developed.
The People, seeking to rely on the family history exception to the
hearsay rule, had the burden of proving its applicability. (See People
v. Livaditis (1992) 2 Cal.4th 759, 778-780 [“[t]he proponent of hearsay has
to alert the court to the exception relied upon and has the burden of laying
the proper foundation”].)

Apparently
recognizing this bar to admissibility, the People insist A.A.’s testimony
concerning the parentage of her half-sister/niece, Alice,
was nonetheless admissible under Evidence Code section 1313. However, this too, is questionable because
A.A. did not testify her knowledge was based on Alice’s or Joseph’s reputation
within the family, a prerequisite to the applicability of this hearsay
exception.

Nonetheless,
even if this testimony were erroneously admitted into evidence and assuming any
error must be analyzed under the strict standard for federal constitutional
error (see People v. Cage, >supra, 40 Cal.4th at pp. 991-992
[harmless-beyond-reasonable-doubt standard for federal constitutional error
applies to Crawford error]),^[7] its admission does not compel reversal. A.A. testified Joseph, her father, had forced
her to have sex with him between 50 and 100 times while she lived with
him. In light of that testimony,
evidence that Joseph had impregnated another of his underage daughters (Irma)
while she lived with him was cumulative and harmless beyond a reasonable doubt.

c. Testimony
repeating Muna’s statements about D.

At trial A.A. testified her
28-year-old niece Muna had told her that something appeared amiss with D. According to A.A., Muna said D. had begun to
act strangely; and Muna had seen Joseph kiss D. inappropriately on the
mouth. Muna communicated to A.A. her
fear that Joseph had begun molesting D.


This
portion of A.A.’s testimony was inadmissible
hearsay, and Joseph is correct the trial court erred in overruling his
objection to it. As the People
acknowledge, the evidence was not offered for a nonhearsay purpose and was not
subject to any recognized hearsay exception.
Moreover, Muna’s statements might qualify as testimonial so that their
admission into evidence implicates Joseph’s Sixth Amendment confrontation right
under Crawford, supra, 541 U.S.
36. (See People v. Cage, supra, 40 Cal.4th at p. 984.) Nonetheless, in light of D.’s testimony as to
the identical facts, and the other overwhelming testimony against Joseph, the
admission of this limited portion of A.A.’s testimony is harmless beyond a
reasonable doubt. (People v. Cage, supra, 40
Cal.4th at pp. 991-992.)

2. >The Court Did Not Err in Admitting Evidence
of Joseph’s Prior Uncharged Sex Offenses

Evidence of a prior sex offense
is relevant to show the defendant’s propensity to engage in the charged sex
crimes and, on that basis, is admissible subject to an evaluation under
Evidence Code section 352 whether its probative value is substantially
outweighed by the probability that its admission would unduly prejudice the
defendant or mislead the jury. (Evid.
Code, § 1108; People v. Falsetta
(1999) 21 Cal.4th 903, 907, 916-917; People
v. Reliford (2003) 29 Cal.4th 1007, 1012-1013.)

The trial
court enjoys broad discretion under Evidence Code section 352 in determining
whether the probative value of evidence of prior uncharged offenses is unduly
prejudicial. (See generally >People v. Kelly (2007) 42 Cal.4th 763,
783.) In weighing whether the Evidence
Code section 1108 propensity evidence is unduly prejudicial, the court should
consider “such factors as its nature, relevance, and possible remoteness, the
degree of certainty of its commission and the likelihood of confusing,
misleading, or distracting the jurors from their main inquiry, its similarity
to the charged offense, its likely prejudicial impact on the jurors, the burden
on the defendant in defending against the uncharged offense, and the
availability of less prejudicial alternatives to its outright admission, such
as admitting some but not all of the defendant’s other sex offenses, or
excluding irrelevant though inflammatory details surrounding the offense.” (People
v. Falsetta, supra, 21 Cal.4th at pp. 916, 917.)

We review
for an abuse of discretion a trial court’s determination pursuant to Evidence
Code section 352 that the probative value of evidence outweighed its potential
for confusion or undue prejudice. ( >People v. Barnett (1998) 17 Cal.4th
1044, 1118.) Even if the court abused its discretion, reversal is not warranted
unless “‘it is reasonably probable that a result more favorable to [defendant]
would have been reached in the absence of the error.’” (People
v. Page (2008) 44 Cal.4th 1, 42.)

Joseph
contends the court abused its discretion in admitting evidence of Joseph’s
prior uncharged sex offenses against A.A. and Jane. He contends the evidence was too remote
(Joseph committed the acts against both Jane and A.A. more than 20 years prior
to trial), too dissimilar to the charged crimes, too inflammatory, too uncertain
(because Joseph had not been charged or convicted of any offense) and created a
probability of confusion.

Similar
arguments were made in People v. Branch (2001)
91 Cal.App.4th 274, 285 (Branch), a
case that bears some strong similarities to the instant one. In Branch
the defendant was charged with committing a lewd act on his 12-year-old
step-great-granddaughter. The trial
court admitted evidence under Evidence Code section 1108 (over the defendant’s
Evidence Code section 352 objection) that the defendant had committed a series
of prior uncharged sexual offenses against his step-daughter 30 years earlier
when she, too, was 12-years old. In
concluding the trial court did not abuse its discretion in admitting the
evidence despite a 30-year gap between the charged and uncharged offenses, the
court emphasized the similarities between both the charged and uncharged
offenses. In each case the victim was
the same age—12 years old—and living in the defendant’s home. Under the circumstances, the court concluded,
the similarities in both offenses “‘balance[d] out the remoteness of the prior
offenses.’” (Branch, at p. 285;
cf. People v. Waples (2000) 79
Cal.App.4th 1389, 1393-1395 [uncharged sexual offenses involving same victim
occurring between 15 and 22 years before trial were not too remote so as to
require exclusion under Evid. Code, § 352].)

Here, as in
People v. Branch, supra, 91
Cal.App.4th 274, there are substantial similarities between the charged and
uncharged offenses. Joseph preyed on
girls (teenagers) living in his home.
A.A., like D., was 15 years old at the time the molestation first
began. Both had come from outside the United
States to live with Joseph, and both were
dependent on Joseph to provide them with the necessaries of life. Furthermore, as in Branch, there was no evidence of any jury confusion. To the contrary, the jury was repeatedly
instructed Joseph was not on trial for the alleged prior uncharged offenses and
could only consider that evidence for the limited purpose of determining
whether Joseph was predisposed to commit the sexual offenses. (See id.
at p. 284 [record provides no indication jury was confused by introduction
of challenged evidence or that jurors wished to convict appellant for uncharged
offenses]; see also People v. Boyette (2002)
29 Cal.4th 381, 436 [jury presumed to have followed instructions].)

Joseph’s
assertion the prior offenses were too inflammatory—a contention directed to
A.A.’s testimony that she was forced by Joseph to have sexual intercourse with
him 50 to 100 times during the time she lived with him—fares no better. To be sure, Joseph’s uncharged sexual crimes
against A.A., although similar in many respects to the current offenses, were
more serious than the pending charges.
But the potentially inflammatory nature of those allegations was
acknowledged by the trial court and considered by it as one factor in its
Evidence Code section 352 analysis. On
balance, the court concluded, the probative value of evidence of Joseph’s prior
sexual conduct with his daughter while she was living with him under
circumstances similar to those confronting D. was not substantially outweighed
by the potential for prejudice. That
conclusion was well within the trial court’s broad discretion. (See People
v. Branch, supra, 91 Cal.App.4th at pp. 285-286.)

3. Other
Evidentiary Issues

a. Jane’s
testimony

Joseph
contends the court erred in overruling his Evidence Code section 352 objection
to a portion of Jane’s testimony during redirect examination. In particular, after defense counsel had
concluded a vigorous cross-examination of Jane, questioning her credibility and
positing motives for her to lie, the prosecutor indicated he had no further
questions. At that point, Jane asked the
court if she could say something. The
court told her she could not say anything unless it was in response to a
question. In response, the prosecutor
requested—and the court permitted him—to reopen his redirect examination.

The
prosecutor then asked Jane whether there was something else she had wanted to
say in response to defense counsel’s questions.
Jane responded, “It makes me sick to my stomach today . . . to
have to come here and talk about this.
There is no reason for me to lie. . . .”
After defense counsel’s Evidence Code section 352 objection was
overruled, Jane was permitted to continue:
“I hope after today that this is the last time that I ever have to be in
a courtroom. I have three kids of my own
now, your Honor and I will not come to Los Angeles
if my kids wasn’t with me. I don’t leave
my kids with anyone, and I try everything in my power to protect them and keep
them safe, which is something I didn’t have back then.”

The trial
court has broad discretion to control the admission of evidence in the
interests of orderly procedure and the avoidance of prejudice. (People
v. Lawley (2002) 27 Cal.4th 102, 155.)
Here, defense counsel’s entire cross-examination was designed to portray
Jane as a liar. In allowing Jane’s
testimony, the trial court apparently concluded it was in the interest of
justice to permit her in redirect testimony to respond to that
insinuation. The trial court allowed
similar leeway for defense witnesses.^[8] On this record, we simply cannot say the
court’s ruling was an abuse of its broad discretion in such matters (see >People v. Williams (1997) 16 Cal.4th
153, 214; People v. Lucas (1995) 12
Cal.4th 415, 449) or that the admission of this very limited portion of Jane’s
testimony, even if error, was prejudicial (see Evid. Code, § 353 [“[a]
verdict or finding shall not be set aside, nor shall the judgment or decision
based thereon be reversed, by reason of the erroneous admission of evidence
unless . . . the error or errors complained of resulted in a
miscarriage of justice”]).

> b. Questions
directed to D.’s demeanor

During
trial D. described in graphic detail the incidents of molestation. Noting her demeanor when testifying, the
prosecutor asked her, without objection, “You say you have a nervous smile when
you talk sometimes. Is that why you are
smiling when you say this‌” D. answered
yes. The prosecutor also asked, “I know
it is difficult. You cried in my office
about this same testimony a little while ago, correct‌” D. again answered yes. Defense counsel’s objection to the latter
question was overruled.^[9] Joseph
contends evidence D. had cried in the prosecutor’s office is irrelevant and
inflammatory and claims the court erred in overruling his objection. Apart from the improper form of the
question—as phrased, the question certainly appears to be leading, a form
generally not appropriate for direct examination (see Evid. Code, §§ 764
& 767, subd. (a)(1))—the inquiry was directed to explaining D.’s unusual
demeanor while testifying. Contrary to
Joseph’s contention, evidence explaining D.’s demeanor is indeed relevant. (See Evid. Code, §§ 210 [relevant evidence
includes “evidence relevant to the credibility of a witness”]; 780 [“[e]xcept
as otherwise provided by statute, the court or jury may consider in determining
the credibility of a witness any matter that has any tendency in reason to
disprove the truthfulness of his testimony at the hearing”].) In any event, the admission of that limited
portion of D.’s testimony was plainly harmless.
(See People v. Rowland (1992)
4 Cal.4th 238, 264 [prejudicial effect of erroneous admission of evidence that
is not federal constitutional error is evaluated under People v. Watson (1956) 46 Cal.2d 818, 836 standard of whether it
is reasonably probable defendant would have received a more favorable result if
evidence had been excluded].)

4. The
Prosecutor Did Not Commit Prejudicial Misconduct

“‘The
applicable federal and state standards regarding prosecutorial misconduct are
well established. “‘A prosecutor’s . . .
intemperate behavior violates the federal Constitution only when it comprises a
pattern of conduct so “egregious that it infects the trial with such unfairness
as to make the conviction a denial of due process.”’” [Citations.]
Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it
involves “‘“the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.”’”’”
(People v. Navarette (2003) 30
Cal.4th 458, 506; accord, People v.
Morales (2001) 25 Cal.4th 34, 44.)

Joseph
contends the prosecutor committed prejudicial misconduct by repeatedly asking
improper questions and impugning the integrity of defense counsel. We review a trial court’s ruling regarding
prosecutorial misconduct for abuse of discretion. (People
v. Alvarez (1996) 14 Cal.4th 155, 213.)

a. The
prosecutor’s comments on punishment

Joseph testified on direct
examination that A.A., Jane and D. had conspired together to fabricate stories
of molestation in order to “take him down.”
Seizing on Joseph’s conspiracy theory during cross-examination, the
prosecutor inquired whether Joseph was aware that the maximum sentence he could
receive if he was convicted of the charged offenses was five years in prison,
suggesting the allegations, if fabricated, would certainly have been more
elaborate in order to guarantee greater punishment. The trial court sustained the defense’s
objection, denied the defense motion for a mistrial and admonished the jury,
“Ladies and gentlemen, the whole issue[] of penalty or punishment is the
court’s decision. That is solely up to
the court to determine if there was a conviction what the proper penalty or
punishment is. That is solely the
court’s decision. So the purpose of this
inquir[y] is not to put that issue before you because that is not an issue for
the jury to decide.”

The
prosecutor’s comment on punishment during cross-examination of Joseph was
improper. (See People v. Ruiloba (2005) 131 Cal.App.4th 674, 692 [“[i]t is improper
to tell a noncapital jury about possible punishment because that subject is not
only irrelevant to the jury’s factfinding function, it has the potential to
deflect the jury by inviting discussion and speculation about the results of
whatever findings it makes”]; People v.
Allen (1973) 29 Cal.App.3d 932, 936
[“[i]t is settled that in the trial of a criminal case the trier of fact is not
to be concerned with the question of penalty, punishment or disposition in
arriving at a verdict as to guilt or innocence”].) Nonetheless, the court cured any potential
prejudice by sustaining the objection to the question, striking the response
and admonishing the jury specifically to disregard any reference to punishment,
advising them that punishment was solely an issue for the court to decide. The court also instructed the jury with
CALCRIM No. 200, providing, in part, “You must reach your verdict without any
consideration of punishment.” The
court’s actions amply cured any possible prejudice that may have otherwise resulted
from the prosecutor’s remark concerning punishment.

b. The
prosecutor’s questions concerning C.W.

The prosecutor asked Joseph
during cross-examination whether he had ever told C.W. “I dreamt I had sex with
you.”^[10] Joseph responded no. The trial court sustained a defense objection
to the question on hearsay grounds and struck the response.

The
prosecutor referred to the alleged incident again in his cross-examination of
Jacobs. Jacobs had testified to Joseph’s
good character in his direct examination.
On cross-examination, the prosecutor asked her whether she knew Joseph
had told an 18‑year-old C.W. he had dreamt he had sex with her. Jacobs said she had not heard that
information. The court sustained the
defendant’s objection to the question and was about to grant a defense motion
to strike the answer when defense counsel withdrew his motion to strike. The prosecutor moved on to another topic.

Joseph now
contends the prosecutor’s question to Jacobs was an improper effort to put
inflammatory, inadmissible evidence before the jury and argues the prejudicial
impact was not cured by the court’s action sustaining the objection. Without question, the prosecutor’s attempt to
elicit what the People now acknowledge is hearsay not subject to any exception,
especially after the court had sustained the prior objection in connection with
Joseph’s testimony, was inappropriate.
(See, e.g., People v. Smithey
(1999) 20 Cal.4th 936, 960 [improper for prosecutor to intentionally attempt to
introduce inadmissible evidence]; accord, People
v. Chatman (2006) 38 Cal.4th 344, 379-380 [prosecutor commits misconduct
when he or she intentionally elicits inadmissible evidence or testimony].) >

Nonetheless, even though the
prosecutor’s reference to C.W.’s statement was misconduct, the court acted
promptly to prevent any potential prejudicial effect. In addition to sustaining the objection to
the prosecutor’s questions, the court instructed the jury in accordance with
CALCRIM No. 222 that statements made by attorneys are not evidence and the jury
must “ignore questions” to which an objection had been sustained and answers
that had been stricken. (See CALCRIM No.
222 [“Nothing that the attorneys say is evidence. . . . [¶]
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 the law. If I sustained an objection, you must ignore
the question. If the witness was not
permitted to answer, do not guess what the answer might have been or why I
ruled as I did. If I ordered testimony
stricken from the record you must disregard it and must not consider that
testimony for any purpose.”].) We presume
the jury followed these cautionary instructions. (People
v. Smithey, supra, 20 Cal.4th at p. 961.) Defense counsel did not request an additional
admonition, and, indeed, nothing further needed to have been done to cure any
prejudice. (See ibid.)

c. The
prosecutor’s reference to defense counsel

Alluding to the defense theory
that the People’s witnesses had fabricated their accounts of molestation, the
prosecutor said in closing argument, “You got to make the call. If there is anyone that starts to get into
this scenario, the defense scenario what he has suggested to you, and I
suggested coached the witnesses along this theme, you are basically, one of
them is lying to . . . .” The defense
immediately interjected with an objection on the ground the comment essentially
accused defense counsel of suborning perjury.
The court sustained the objection and struck the prosecutor’s
comment. Then, denying defense counsel’s
request for a sidebar conference, the trial court stated in front of the jury,
“I think it was an unintentional use of that term. I don’t think [the prosecutor] meant to
suggest that [defense counsel] has done anything inappropriate. Am I correct‌” The prosecutor replied, “That is exactly
correct,” and explained he meant to suggest the defense witnesses had conspired
among themselves to suggest D., A.A. and Jane were lying. He said he did not mean to suggest the
defense counsel had done anything improper.


It is “improper for the
prosecutor to imply that defense counsel has fabricated evidence or otherwise
to portray defense counsel as the villain in the case.” (People
v. Thompson (1988) 45 Cal.3d 86, 112.)
Here, to the extent the prosecutor’s remarks could have been interpreted
to suggest that defense counsel had “coached” his witnesses to lie, the court
promptly sustained a proper objection and allowed the prosecutor to clarify his
statement. As discussed, the court also
instructed the jury that statements by counsel were not evidence. (CALCRIM No. 222.) The prosecutor’s errant remark, properly
addressed by the trial court, provides no basis for reversal.

In sum, any improper remarks
were promptly and properly addressed by the trial court. The alleged instances of misconduct, whether
considered separately or cumulatively, do not compel reversal.

5. Ineffective
Assistance of Counsel Claims

Joseph contends his counsel
provided ineffective assistance by failing to object to evidence intended to
impeach Matthew Joseph and by consenting to a procedure allowing a readback of
testimony for a single juror.

a. Impeachment
evidence

During his cross-examination of
Joseph’s son, Matthew Joseph, the prosecutor asked, over defense counsel’s
Evidence Code section 352 objection, whether he had ever been criminally
accused in Texas of using his
vehicle to evade law enforcement. He
admitted he had been charged with that conduct, a misdemeanor in Texas,
but explained he had made a wrong turn and was unaware that police were
following him until he arrived at his home.
No other evidence as to this conduct was admitted.

Joseph
contends Matthew Joseph’s conduct—using his vehicle to evade police—did not
involve moral turpitude and was therefore irrelevant and inadmissible. (See People
v. Castro (1985) 38 Cal.3d 301, 314 [conduct involving moral turpitude may
suggest a “readiness to lie” and is therefore admissible, subject to Evid.
Code, § 352]; People v. Wheeler (1992)
4 Cal.4th 284, 295 [Cal. Const.,
art. I, § 28, subd. (d), “makes immoral conduct admissible for impeachment
whether or not it produced any conviction, felony or misdemeanor”].) Although he acknowledges his counsel failed
to object to the evidence on the ground the conduct did not involve moral
turpitude (see People v. Ward (2005)
36 Cal.4th 186, 211 [failure to object on ground in trial court results in
forfeiture of ground on appeal]), he insists the omission amounts to
ineffective assistance.^[11]

Whether or
not evasion of police detention is conduct involving moral turpitude, the very
limited evidence, as explained by Matthew Joseph, hardly impeached his
veracity. Joseph described his conduct as
an innocent mistake, and no evidence was admitted to contradict that
explanation. Thus, even if the failure
to object to this line of questioning was not based on a legitimate tactical
decision and was professionally deficient, it is not reasonably probable the
exclusion of the evidence would have resulted in a more favorable verdict. (See In
re Fields (1990) 51 Cal.3d 1063, 1079 [In considering a claim of
ineffective assistance of counsel, it is not necessary to determine “‘whether
counsel’s performance was deficient before examining the prejudice suffered by
the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.’”].)

b. Read-back
of Jane’s testimony

After Jane had completed her
testimony, the bailiff advised the court one of the jurors (juror number 7) had
told him he had had difficulty understanding Jane’s testimony because she
“spoke fast and had an accent.” The
trial court informed the jury, “If a witness is testifying and you didn’t
understand what [he or she] said, you can raise your hand. We will have that part either restated by the
witness or read by the reporter.” Juror
number 7 was told, “If you didn’t understand any portion [of Jane’s] testimony,
we will have the reporter read that back” before jury deliberations begin.

Prior to
closing argument, the trial court told the jury, “Ladies and gentlemen, before
we go to argument, earlier in the trial the juror in seat 7 indicated that he
had trouble understanding the first witness because of her accent. So, because it is important that you all are
evaluating the same evidence, I am going to have a readback of that first
witness for juror number 7. If there is
any other juror who couldn’t understand that witness because of her accent or
whatever, you are welcome to stay in the courtroom and listen to the readback
also.” Defense counsel consented to this
procedure.

Joseph
contends the readback of the testimony without the full jury present violated
his due process right to a fair trial because not all 12 jurors had the
opportunity to evaluate the testimony in the same manner: Some jurors had the opportunity for a
simultaneous evaluation of Jane’s testimony and demeanor, while, according to
Joseph, juror number 7 did not.^[12] Although Joseph acknowledges his counsel
consented to the readback procedure, he contends his counsel’s agreement
constituted ineffective assistance.

Joseph has
cited no authority for the proposition that his counsel’s agreement to the
readback of testimony for the juror who had requested it prior to the
commencement of deliberations was professionally deficient, nor has he
demonstrated a reasonable probability he would have been acquitted had the
court insisted that all jurors remain in the courtroom to hear the readback of
testimony (testimony, we note, that was not at all favorable to Joseph). In fact, in this appeal Joseph has provided
no specific argument directed to his ineffective assistance claim on this
point. On this record, that claim
necessarily fails.

6. Cumulative
Error

In his 90-page appellate brief
Joseph has identified a number of purported errors by the trial court and the
prosecutor. As discussed most of the
arguments lack merit; none of the claimed errors resulted in prejudice. The evidence against Joseph—in particular,
the testimony of D., A.A., and Jane—was overwhelming and entirely unaffected by
the errors alleged. Thus, even when the
alleged errors are considered together for their cumulative effect, there is no
basis for concluding Joseph was deprived of a fair trial. (See People
v. Cunningham (2001) 25 Cal.4th 926, 1009 [a defendant “is entitled to a
fair trial but not a perfect one”]; People
v. Seaton (2001) 26 Cal.4th 598, 675, 691-692 [“the few minor errors,
considered singly or cumulatively, were harmless”].)

DISPOSITION

The judgment is
affirmed.



PERLUSS,
P. J.





We
concur:







ZELON,
J.







JACKSON,
J.



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