P. v. Garcia





















Filed 1/16/13 P. v. Garcia CA4/3













NOT TO BE PUBLISHED IN OFFICIAL REPORTS







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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FOURTH
APPELLATE DISTRICT



DIVISION
THREE




>

THE PEOPLE, Plaintiff and Respondent, v. JOSEPH RAYMOND GARCIA, Defendant and Appellant.

G045300 (Super. Ct. No. 06HF2071) O P I N I O N

Appeal
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Richard F. Toohey, Judge.
Affirmed.

Randi
Covin, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and
Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.

>



A jury
found Joseph Raymond Garcia guilty of six counts of href="http://www.fearnotlaw.com/">forcible sodomy (Pen. Code, § 286, subd.
(c)(2); counts 1, 2, 3, 4, 6 and 7)href="#_ftn1" name="_ftnref1" title="">[1]
and two counts of forcible rape (§ 261, subd. (a)(2); counts 5 and 8), and
found true an allegation Garcia committed these offenses against more than one
victim (§ 667.61 subds. (b) & (e)(4)).
The trial court sentenced Garcia to a prison term of 45 years to
life. Garcia asserts the judgment must
be reversed for instructional errors and prosecutorial
misconduct. We find no prejudicial
errors or misconduct and affirm the judgment.

FACTS

>A. N.D. (counts 7 and 8)

N.D.
met Garcia in March 2004 at the Newport Beach Post Office where she worked as a
clerk. Throughout 2004, they saw each
other from time to time in or around the post office, exchanged telephone
numbers and talked on the phone. At one
point Garcia asked N.D. if she was interested in a “purely physical
relationship” with him and she said, “no.”
He told her that was all he had available because he was involved with
someone else, and they agreed to just be friends.

In late
January 2005, Garcia went into the post office and asked N.D. if she was doing
anything that night. She said “no” and
gave him her telephone number again. She
was attracted to Garcia, and she hoped he would one day be available for a
romantic relationship. She thought there
was a “strong chemistry” between them, but she did not want a purely physical
relationship.

Garcia
called her that same evening and wanted to come to her house. N.D. suggested they meet at a coffee shop
instead. They met at a coffee shop, but
only stayed 5 or 10 minutes. Then they
sat in Garcia’s car, talked and kissed, for about a half an hour to an
hour. Garcia tried to touch N.D.’s
breasts but she stopped him. He wanted
to go back to his apartment, or to N.D.’s apartment, but she declined. Garcia said he wanted to open a bottle of
wine and get to know her better, but N.D. did not drink and did not want to get
physical with Garcia until she got to know him better. Garcia asked, “Why don’t you want to make
love to me? Every time I see you, I want
to make love to you.” N.D. responded,
“sex is very special to me and it’s not something that I give to every guy that
I go out with.”

On
March 3, 2005, N.D. called Garcia and they made plans to go to a movie together
on Saturday, March 5. Garcia wanted to
go to N.D.’s house but she said no. On
March 5, Garcia called N.D. and asked if she was going to be “a nun
again.” She asked, “do I have to make
that decision right now?” He said “if
there was no chance of having sex with [her] that night, he would rather go out
dancing by himself.” N.D. said there was
a chance and Garcia was satisfied. Later
than night, they met at a coffee shop near the movie theater. There was no movie they wanted to see so they
went out for dinner instead. After
dinner they walked outside and kissed and N.D. agreed to go to Garcia’s place
and followed him to an apartment complex in her own car.

Once
inside Garcia’s apartment, they disrobed in the living room and had consensual
vaginal intercourse on the couch. Garcia
stood up and told N.D. to stand up. She
complied and faced him, but Garcia quickly spun her around and inserted his
penis in her anus. N.D. testified it was
“extremely painful.” She screamed “no”
at least 50 times and begged him to “please let me go,” but Garcia continued to
sodomize her. He had her in a
“chokehold.” N. D. stopped struggling
because she was “completely overpowered” and scared.

After
Garcia reached orgasm, he allowed N.D. to go to the bathroom. She said her legs were “buckling” under her
and she was bleeding from her anus, a condition that continued for four days
afterward. When she started getting
dressed and was ready to leave, Garcia asked, “only one time?” He told her he was “done with the anal thing”
and would not “do that anymore.”

N.D.
sat down on the couch and talked to Garcia for about 20 minutes. During that time, he tried to push her head
into his lap several times, but he stopped when she said she did not want to do
that. He asked, “well, how are you going
to get me excited again?” N.D. touched
his penis with her hand and sat on his lap.
He turned her to face away from him and penetrated her vagina with his
penis. After a minute or so, he stood up
and had her stand up. N.D. thought
Garcia was going to sodomize her again so she directed his penis into her
vagina. It hurt “really bad” when he
bent her over so N.D. stopped struggling and objecting. She was afraid for her life, did not feel she
could leave, and did not think it would make any difference whether she said
“no” or not. When Garcia reached orgasm
again, N.D. got dressed but then sat on the couch and talked to him some more. Finally, Garcia said it was getting late and
N.D. should leave. He gave her “a little
peck on the lips” and directions to the freeway.

Garcia
asked, “am I too wild for you sexually?”
N.D. “joked” and said, a “little bit.”
She did not say more because she was afraid. Garcia was six foot two and weighed 250
pounds while N.D. was five foot three and weighed 115 pounds. N.D. got home around 10:00 p.m. She did not call the police. She just wanted to forget about it. She did not want to go through the
humiliation and pain of being examined and questioned.

A few
days later, Garcia went into the post office and asked N.D. to go out with him
again. She did not confront him about
what had happened because she was scared.
Instead she said she had other plans.
Garcia told her to cancel them and got a little angry when she
refused. N.D. left work early because
she felt “shaken up.” She called Garcia
and left a message saying she did not want to see him anymore. She never spoke to Garcia again, but she saw
him at the post office every week when he came to get his mail. A month or so later, in April 2005, N.D.
reported the incident to law enforcement on the advice of her therapist.



>B. C.G. (count 6)

C.G.
lived in New Mexico and met Garcia through Millionairematch.com, which is an
online dating service for “wealthy and beautiful” people.href="#_ftn2" name="_ftnref2" title="">[2] C.G. denied choosing Millionarematch.com
because she was looking for a rich man.
She claimed this Web site was for her because she expected to be wealthy
herself in the future from an invention she was then trying to market and
because she was a model. In reality,
C.G. did not have much money at that time, and she was living from paycheck to
paycheck.

C.G.
first contacted Garcia in August 2005.
He responded, and they exchanged a few emails. C.G. saw photos of Garcia in places like Rome
and Pisa, suggesting that he had the money to travel. About a year later, C.G. sent him a
photograph and they communicated by email and telephone. Garcia offered to buy C.G. a plane ticket and
pay her lost wages, which were about $500, to come to California for a
visit. She agreed, told her employer she
needed time off for a family emergency, and flew to Orange County on August 22,
2006. She claimed she would not have
made the trip if Garcia had not agreed to pay her, and conceded sex was a
possibility.

Garcia
met C.G. at the airport. He brought her
roses, bought her lunch at a Mexican restaurant, and showed her around the
area. He seemed very nice. Later that day, he took her to his
condominium. She told him she was trained in martial
arts and was capable of killing because she wanted him to know she could fight
back if necessary. They went into Garcia’s bedroom and had
consensual, vaginal intercourse. C.G.
protested when Garcia attempted to insert his penis in her anus and he
stopped. They had consensual, vaginal
intercourse the following morning. When
Garcia again tried to sodomize her, C.G. said “no” and he stopped.>

Garcia
and C.G. spent most of her second day in Orange County doing errands, which
upset C.G. because she expected Garcia to take her to Disneyland and the
beach. He seemed “distant and cold,” and
they argued a couple of times. She
expressed displeasure at things he did and then they tried to work it out
together. Eventually they went back to
Garcia’s condominium, opened a bottle of wine, and cooked dinner. C.G. felt guilty about arguing with Garcia so
she put on some lingerie to try to make it up to him. Garcia seemed surprised and happy. C.G. intended to have sex with Garcia that
night as they had already had consensual sex seven or eight times since she
arrived.

After
dinner, C.G. went into the bedroom and lay on her stomach on the bed. Garcia came in and started kissing her back
and neck. He took off his clothes, came
up behind her, ripped her panties, and started to “slide his penis into [her]
anus.” C.G. told Garcia to stop and
tried to pull away, but he said, “shush, shush, it’s okay.” C.G. started “freaking out” when Garcia’s
penis penetrated her anus. She
struggled, but at a weight of 135 or 140 the much larger Garcia had her
“pinned.” She was “screaming at the top
of [her] lungs for [Garcia] to stop.” His legs were “locked” on hers and his arms
were wrapped around her neck and right arm so she could not move. He paused for a moment, asked why she was
screaming, and told her to be quiet before penetrating her anus over 40
times. He ejaculated and then released
her.

C.G.
ran to the bathroom. She sat on the
toilet and cried for 15 or 20 minutes then went out to the living room and sat
on the couch. She apologized to Garcia
and tried to “make it right” because she was afraid. Garcia showed her something that looked like
a handgun but turned out to be a taser gun.
Garcia said he was “protecting himself” because “he was afraid [she was]
gonna possibly kill him.” C.G. “tried to
play it off as if it wasn’t a big deal” because she was afraid, and her flight
home was the next afternoon. They
watched a movie and she helped him clean the condominium. At bedtime, she put pillows on the bed, as a
divider. When Garcia saw the pillows, he
asked, “so, you’re not going to have sex with me, huh?” He said something like “if you don’t want to
have sex just tell me,” and C.G. said she did not want to have sex because she
was tired.

C.G.
stayed with Garcia all night, but she could not sleep because she was “afraid
for [her] life.” In the morning they got up and went to a
restaurant. C.G. argued with Garcia in the parking lot
about where they should park and ultimately refused to go inside the restaurant. After about an hour, C.G. walked next door to
a gas station to buy cigarettes. She had
a cell phone but did not call the police because her belongings were still at
Garcia’s condominium and she just “didn’t think to call.” When she returned from the gas station she
realized that Garcia’s car was gone. She
“freaked out.” She was crying and told
some “concerned citizens” that Garcia had left her there. She did not mention that Garcia had sexually
assaulted her.

C.G.
tried calling Garcia several times but he did not answer. When a taxicab pulled up,
C.G. finally reached Garcia on the phone.
He had sent the taxi, but said he would not pay for the fare. > C.G.
did not have any money so she begged Garcia to come pick her up. He agreed after she assured him she would not
“do anything to [him].”

An hour
and a half later, Garcia retrieved C.G. and took her to the airport. > He
threw her bags to the sidewalk and refused to give her the $500 as
promised. Instead, he gave C.G. $40 and
said, “this is what you’re worth.” C.G.
took the money. When Garcia drove off,
she started crying. Someone asked if she
needed help and called airport security when she said “yes.” Newport Beach Police Officer Joseph Jun
interviewed C.G. at John Wayne Airport.
C.G. identified a photograph of Garcia as “the person who raped
[her].” She was taken to a hospital for
a sexual assault examination.

Jan
Hare, a certified forensic nurse and sexual assault examiner, testified she
examined C.G. on August 24, 2006. Hare could
neither confirm nor negate C.G.’s reports because there were no visible anal
tears, bruising, or redness. However,
Hare also testified there is a 50-50 chance of seeing anal injuries after anal
intercourse, whether or not it was consensual. Forensic scientist, Danielle
Weiland, tested C.G.’s anal swab and clothing for DNA, but his findings were
negative for semen or foreign DNA.

After
the medical examination, the police officers had C.G. make a recorded phone
call to Garcia to try “to get him to admit that he raped [her].” The recording was played during the trial and
a transcript was provided to the jury.

>C. M.J. (counts 1- 5)

In
October 2006, M.J. met Garcia through Millionairematch.com. She liked Garcia’s apparent adventurousness
and the fact that he was African-American.
They had a pleasant telephone conversation and agreed to meet for dinner
and drinks. M.J. met Garcia at a jazz
club. He seemed charming and personable
and M.J. found him attractive. However,
they did not seem to have much to say to each other. Garcia slipped the waitress his telephone
number and also talked to the female lead singer in the band. M.J. thought it was rude of Garcia to behave
that way but she was not jealous or mad, and she did not take it
personally. She just figured he was not
attracted to her. M.J. commented about
it to Garcia as they were leaving the club.
She told him, “obviously there’s nothing – there’s no chemistry between
us and I understand I’m probably not your cup of tea. You’re obviously attracted to the waitress,
who looked to be in her early 20s.” By
contrast, M.J. was an overweight, 39-year-old mother of two.

Garcia
apologized and asked if he could walk M.J. to her car. Then he asked her to go back
to his place and talk. He said he did
not want to leave her with a bad impression of him. Once they “cleared the air,”
M.J. felt more comfortable with him, and she followed him home with the
intention of talking, but not having sex.
As soon as they entered Garcia’s condominium, he wrapped his arm around
her chest from behind, “grabbed [her] butt and started pushing [her] towards
the bedroom.” He tried to kiss her. She told Garcia to stop but
he continued to push her into the bedroom.
He pushed her onto the bed, hiked up her skirt, and grabbed her
underwear. He had his knee in her
back. She tried to get out from under
him but could not. M.J. struggled and
tried to scream, but Garcia told her to “shut the fuck up.” > Garcia
retrieved a condom while he held M.J. down.
When he started to insert his penis in her anus, M.J. cried and said,
“No. Stop. It hurts.”
Garcia inserted his penis in her rectum, and M.J. started screaming. Garcia again told her to “shut the fuck up”
and threatened to “tase” her if she did not calm down.

M.J. pleaded
for her release and said she needed to get home, but Garcia accused her of
lying. When he finally withdrew his
penis, M.J. tried to get up but Garcia held her down. She started to cry and again asked to be
released. Garcia continued to push her down
and resumed penetrating her anus. M.J. cried and told Garcia to “stop,” but
Garcia increased the speed of his thrusts until M.J. stopped screaming. M.J. said that she needed to go to the
bathroom to urinate and because she was bleeding. Garcia then pulled her legs apart, penetrated
her vaginally and climaxed. Then, he
penetrated her anus for a fourth time.

When
Garcia finally released her, M.J. went to the bathroom. Garcia followed her, removed the condom, and
placed it on top of the sink in the bathroom.
The condom had blood and semen on it.
After M.J. used the toilet, Garcia asked why there was so much blood on
her anus and on the toilet seat. M.J.
told him she had she never had anal sex before.


Garcia
sprayed and cleaned the toilet while M.J. got dressed. She thought Garcia was not going to let her
leave because he asked her to “come, sit down in the living room.” > On
the way into the living room, M.J. picked up her cell phone and tried to call
friends, although she told Garcia she was checking with her babysitter. He asked her to “sit down and []talk,” and he
told her, “I know you didn’t get what you wanted, but maybe you got what you
needed.” M.J. “thought it was weird”
because Garcia went from being mean to being charming again, “like a switch
went on . . . .” She asked him what he
meant. He said, “you know, you do
porn.” M.J. had never done “porn,” but
10 years earlier she had posted nude photographs of herself on a website called
“Southern Charms.” M.J. said she had
never discussed the nude photographs with Garcia and had not mentioned them in
her Millionairematch.com listing.

Garcia
said he was getting tired and walked M.J. to the door. She ran downstairs, got in her car, and
locked the car doors because she feared Garcia would prevent her from
leaving. When she did decide to leave,
she realized she did not know where she was so she called her best friend,
Teresa O’Keefe, for help. According to

M.J., O’Keefe said she should not report the incident because
“they’re going to bring up your past.”
According to O’Keefe, she told M.J. to call the police, but M.J.
hesitated because of the nude photographs.
She was afraid the police would think she had “invited something.”

When
she got home, M.J. called a few other friends to talk about what had happened
and figure out what to do. After a
couple of hours, she took a shower. Then
she called the rape crisis center. On
their instructions, she put her clothes in a paper bag. She did not call the police until the next
day because she had to do her daughter’s makeup for a show.

The
next day, Police Officer Derek Hawkins interviewed a tearful M.J. and had her
identify a photograph of Garcia and where he lived. Hawkins also took M.J. to the hospital for a
sexual assault examination. Hare
testified M. J. cried throughout the exam and complained of pain in her anus,
neck, back, and thighs. Hare observed a
small bruise on M.J.’s arm and some swelling on the back of her neck. She noted multiple small lacerations and
bruises inside M.J.’s anus that were visible in photographs taken during the
exam. Hare testified the physical
findings were consistent with M.J.’s report, but also consistent with
consensual anal intercourse. Garcia’s
DNA was not found on M.J.’s samples or clothing, nor was M.J.’s DNA found on
Garcia’s penile swab or in his bathroom.

DISCUSSION

>A. Instructional Issues

Garcia
contends the trial court erred by refusing to instruct the jury with one of the
optional clauses of CALCRIM No. 226 (No. 226-O), and with Alternative B of
CALCRIM No. 316 (No. 316-B), both of which concern witness conduct or
misconduct as it relates to credibility.
We agree the court erred.
However, these errors do not warrant reversal of the judgment. Garcia also contends the trial court erred by
failing to give CALCRIM No. 357 (No. 357) concerning adoptive admissions, but
we find this contention meritless.

> 1.
Standard of Review and Applicable Principles

The
trial court must instruct “sua sponte on general principles of law that are
closely and openly connected with the facts presented at trial. [Citations.]”
(People v. Ervin (2000) 22
Cal.4th 48, 90.) “In other words, ‘[t]he
court should instruct the jury on every theory of the case, but only to the
extent each is supported by substantial evidence.’ [Citation.]”
(People v. Flannel (1979) 25
Cal.3d 668, 684-685, superseded by statute on another ground as noted in >In re Christian S. (1994) 7 Cal.4th 768,
777; see also People v. Prince (2007)
40 Cal.4th 1179, 1265.) “There is no
error in a trial court’s failing or refusing to instruct on one matter, unless
the remaining instructions, considered as a whole, fail to cover the material
issues raised at trial. As long as the
trial court has correctly instructed the jury on all matters pertinent to the
case, there is no error. The failure to
give an instruction on an essential issue, or the giving of erroneous
instructions, may be cured if the essential material is covered by other
correct instructions properly given.
[Citations.]” (>People v. Dieguez (2001) 89 Cal.App.4th
266, 277.)

An
appellate court reviews a defendant’s claims of instructional error de
novo. (People v. Johnson (2009) 180 Cal.App.4th 702, 707.) “‘In conducting this review, we first
ascertain the relevant law and then “determine the meaning of the instructions
in this regard.” [Citation.] [¶] . . . [¶] ‘“In
determining whether error has been committed in giving or not giving jury
instructions, we must consider the instructions as a
whole . . . .
[Citation.]’” [Citation.] “Instructions should be interpreted, if
possible, so as to support the judgment rather than defeat it if they are
reasonably susceptible to such interpretation.’” (People
v. Johnson, supra, 180 Cal.App.4th at p. 707; see also People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) Furthermore, we “must consider the arguments
of counsel in assessing the probable impact of the instruction on the
jury.” (People v. Young (2005) 34 Cal.4th 1149, 1202.)

> 2.
Jury Instruction Conference

Referring
to C. G.’s agreement to visit Garcia as long as he paid her $500, defense
counsel requested No. 226-O, which states the jury may consider whether “the
witness engaged in [other] conduct that reflects on his or her
believability[.]” The prosecutor argued
No. 226-O was not applicable because “we haven’t talked about any misdemeanor
conduct that usually [sic] what that
applies to.” The trial court said,
“That’s the only thing I can think of that would go specific to this
instruction.” Defense counsel stated he
wanted to use No. 226-O to argue “not for any other criminal conduct but any
conduct that would tend to negate the credibility with regard to [not]
reporting the crime right away.” The
prosecutor replied the instruction “only refers to misdemeanor conduct for credibility.” The trial court said, “That’s what I’m
talking about. Engaging in prostitution
is exactly what I said it’s arguably appropriate. I’ll leave it in.”

> Later,> defense counsel also> requested No. 316-B, which states, “If
you find that the witness has committed a crime or other misconduct, you may
consider that fact [only] in evaluating the credibility of the witness’s
testimony. The fact that the witness may
have committed a crime or other misconduct does not necessarily destroy or
impair a witness’s credibility. It is up
to you to decide the weight of that fact and whether that fact makes the
witness less believable.” Defense
counsel asked for No. 316-B specifically with regard to C. G. The prosecutor again objected and argued that
both instructions, Nos. 226-O and 316-B, applied only to prior conduct, not
conduct that occurred at the same time or subsequent to the charged
offenses.

The
trial court eventually agreed with the prosecutor, stating, “I think you either
strike [the optional clause] out of 226 and don’t give [Alternative B of] 316
or you give them both, but I don’t think you give one and not the other. Ultimately the trial court refused both
Nos.226-O and 316-B. href="#_ftn3"
name="_ftnref3" title="">[3] We disagree with the trial court’s
conclusion.

>3.
Analysis

Conduct
involving moral turpitude is
generally admissible for impeachment purposes, even if it did not result in a
felony or misdemeanor conviction. (>People v. Wheeler (1992) 4 Cal.4th 284,
295-297 (Wheeler).) And, conduct involving moral turpitude is equally
relevant and therefore equally admissible for impeachment purposes, regardless
of whether it occurred before, on or even after the offense date. (People
v. Halsey (1993) 21 Cal.App.4th 325, 328.)
Insofar as these governing principles concern evidence of misdemeanor
conduct admitted for impeachment purposes, with or without a conviction, they
are embodied in Nos. 226-O and 316-B.
Ordinarily, if No. 226-O is given, the court should also consider giving
No. 316-B. (See Judicial Council of Cal.
Crim. Jury Instns. (2012) CALCRIM No. 226, Bench Notes, at p. 64.)

Garcia
argues Nos. 226-O and 316-B should have been given based upon evidence that all
three victims delayed reporting the incidents to the police. However, delayed reporting of a crime is not conduct
involving moral turpitude. It follows
delayed reporting is simply not “other conduct” within the meaning of No. 226-O
or “a crime or other misconduct” within the meaning of No. 316-B. Thus, we find no error in refusing to give
Nos. 226-O and 316-B vis-a-vis the evidence of delayed reporting.

On the
other hand, Nos. 226-O and 316-B would be relevant to evidence of prostitution
because prostitution is conduct involving moral turpitude admissible for
impeachment purposes under Wheeler. (People
v. Alvarez (1996) 14 Cal.4th 155, 201, fn. 11.) Prostitution is defined as sexual intercourse
and certain other lewd acts between persons for money or other
consideration. (§ 647, subd. (b); >People v. Hill (1980) 103 Cal.App.3d.
525, 534-535.) According to C.G.’s
testimony, Garcia offered to buy a plane ticket and pay her about $500 to come
to California. She characterized the
payment as reimbursement for lost wages, but a reasonable juror could have
disagreed and accepted the defense theory she knowingly engaged in
prostitution. She acknowledged the trip
could possibly include sexual relations with Garcia, and she stated she would
not have come if he had not agreed to pay her.
Finally, while she denied that sex was part of her agreement with
Garcia, she expected him to request sex.


Here,
the instructions given only partially informed the jury how to evaluate the
credibility of C. G. in light of this evidence.
The court did give CALCRIM No. 226, which states, “In evaluating a
witness’s testimony, you may consider anything that reasonably tends to prove
or disprove the truth or accuracy of that testimony.” But this instruction was not sufficiently
specific, and none of the other instructions addressed the issue.

The
problem was exacerbated by the closing
arguments of counsel on this point.
The prosecutor argued C. G. was not a prostitute because she was only
promised $500, which is about $12 an hour considering the length of her stay,
and no one brings flowers for prostitutes.
She also asserted “prostitutes don’t go to police when they get ripped
off, they chalk it up to a business expense.”
When defense counsel asserted C. G.’s failure to report a sexual assault
at the earliest opportunity and before Garcia handed her $40 instead of the
$500 constituted evidence of prosecution, the prosecutor retorted, there was
“just nothing here on prostitution. >No instruction on prostitution. No feeling by any officer involved in this
case that C.G. was involved in prostitution.
Nothing whatsoever.” (Italics
added.) Under these circumstances it was
error to refuse the defense pinpoint instruction on the issue.

The
court’s refusal to give Nos. 226-O and 316-B does not automatically warrant
reversal of the judgment. We must also
assess prejudice. In so doing, this
court “‘focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under
consideration.’ [Citation.]” (People
v. Lee (1999) 20 Cal.4th 47, 62.)

Garcia
contends the instructional errors violate the href="http://www.mcmillanlaw.com/">federal Constitution and reversal is
required, unless the prosecution can show beyond a reasonable doubt that the
errors did not contribute to the jury’s verdict. (Chapman
v. California (1967) 386 U.S. 18, 22-24; see also People v. Sengpadychith (2001) 26 Cal.4th 316, 324-325.) The Attorney General asserts no federal
Constitution violation occurred; therefore, reversal is not required, unless
there is a “reasonable probability” Garcia would have obtained a more favorable
outcome had the error not occurred. (>People v. Watson (1956) 46 Cal.2d 818,
836; see also People v. Breverman (1998)> 19 Cal.4th 142, 165, 171.) We conclude the court’s instructional errors
do not warrant reversal under either standard.


Examining
the record as a whole, it is highly likely Garcia would have been convicted
even if the refused instructions had been given. The evidence of Garcia’s guilt is simply
overwhelming. It is true, as Garcia
contends, the prosecution depended almost entirely on the complaining
witnesses’ testimony, and only the testimony of M.J. was corroborated by
physical evidence. However, it is also
true that “conviction of a sex crime may be sustained upon the uncorroborated
testimony of the prosecutrix.” (>People v. Poggi (1988) 45 Cal.3d 306,
326.)

Furthermore,
the testimony of each complaining witness here is more than sufficient to
sustain the individual convictions, and considered together the testimony of
all three complaining witnesses gives rise to an inference of propensity, which
is cross-admissible to sustain the convictions collectively. (See Evid. Code, § 1108; >People v. Medina (2003) 114 Cal.App.4th
897, 903.) The remarkable similarity of
the complaining witness’s testimony regarding Garcia’s conduct at the point
where each admittedly consensual encounter became nonconsensual by use of
force, duress and menace, substantiates the testimony of the other complaining
witnesses.

Specifically
with respect to the credibility of C.G., the jury was instructed to consider
anything that reasonably tends to prove or disprove the truth or accuracy of
her testimony. We presume the jury
understood and followed that instruction when evaluating her credibility even
considering the evidence of prostitution.
(People v.
Hovarter (2008) 44 Cal.4th 983, 1005.)
Both parties extensively argued the credibility
of the witnesses without objection. As a
result, it does not appear the jury failed to consider any constitutionally
relevant evidence.

Therefore,
after an examination of the entire cause, we are persuaded the errors
complained of are harmless under any standard.

Garcia
next contends the trial court had a sua sponte obligation to instruct the jury
on the foundational requirements for adoptive admissions when such evidence is
admitted. In support of this proposition
he cites People v. Humphries (1986)
185 Cal.App.3d 1315, 1335-1336, and People
v. Vindiola (1979) 96 Cal.App.3d 370, 381.
However, those cases have been overruled on this point, and there is no
longer any sua sponte duty to instruct on the foundational requirements for
adoptive admissions. (>People v Carter (2003) 30 C4th 1166,
1197-1198.) Consequently, the trial
court did not err in this regard.

Furthermore,
while Garcia’s trial counsel could have requested the court to give No. 357,
his failure to do so does not appear to be unreasonable. No. 357 relates to adoptive admissions under
Evidence Code section 1221, which states, “Evidence of a statement offered
against a party is not made inadmissible by the hearsay rule if the statement
is one of which the party, with knowledge of the content thereof, has by words
or other conduct manifested his adoption or his belief in its truth.” No. 357 describes the foundational
requirements for adoptive admissions.

Garcia
contends No. 357 should have been given based upon the following exchange
between C.G. and Garcia during the recorded telephone: “[C.G.]:
I just need to know exactly why last night, you did not respect me? And you continued to proceed on having sex
with me. When I told you not to, when I
begged you to stop. [¶][GARCIA]: Sweetheart why did you come when you knew
that would be a precondition? [¶]
[C.G.]: I knew that was a precondition,
but you know, you going in the backdoor and me asking you to stop. Why did you keep going last night? [¶] [GARCIA]:
Sweetheart, it’s been nice. It
was nice knowing you. It was nice
meeting you. I enjoyed ah you while you
were here. Now it has come to an
end. And I wish you the best of luck in
life.”

In
contrast to what the prosecutor argued to the jury, the Attorney General
contends the foregoing exchange does not constitute an adoptive admission
because Garcia “was not silent, equivocal or evasive when [C. G.] discussed
appellant proceeding to have anal sex with her when she told him to stop.”href="#_ftn4" name="_ftnref4" title="">[4] We are not persuaded.

“A party’s words that
manifest his or her belief in the truth of another’s hearsay statement
frequently consist of equivocal or evasive replies to another’s accusatory
statement directed to the party.” (1
Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 4th ed. 2012) >Admissions and Confessions, § 3.27,
p. 107.) This is what we have here. C.G. asked Garcia why he kept “going in the
backdoor” after she asked him to stop.
His reply was evasive. There is
simply no other way to characterize it.

Moreover, the parties’
closing arguments emphasized the issue.
Garcia’s counsel argued there was no adoptive admission, stating, “But what
is also clear when she starts talking about, you know, going in the back door
against my wishes, Mr. Garcia says, you know what, sweetheart, it’s been fun,
it’s been nice, now our time has come to an end. I must fair thee well a bid [sic] ado. I don’t remember the exact words, but that’s
how he responded. He doesn’t dignify it,
right.”

The prosecutor argued
there was an adoptive admission, stating, “An innocent person when confronted
with that type of conduct denies it. To
say to someone, you forced me to have anal sex and I begged you to stop, I
begged you, I kept telling you no. I
don’t care if you’re never going to see the person
again . . . you’re going to say, listen, I know things didn’t
work out with us, I know we didn’t get along but don’t you ever say that to me
because I would never do that, because I would never force you. You know that all the contact we had together
was consensual. You would deny it. That’s what an innocent person
does . . . [t]his is an accusation of rape, and he doesn’t
deny it twice.”

However,
under the circumstances of this case, trial counsel’s failure to request No.
357 could have been based on tactical considerations. “The instruction is largely a matter of
common sense – silence in the face of an accusation is meaningful, and hence
may be considered, only when the defendant has heard and understood the
accusation and had an opportunity to reply.
Giving the instruction might cause the jury to place undue significance
on bits of testimony that the defendant would prefer it not examine so
closely.” (People v Carter, supra, 30 C4th at 1198.) Thus trial counsel’s failure to request No.
357 “might be
considered sound trial strategy.”
[Citations.]’ [Citation.]” (People
v. Mendoza (2000) 24 Cal.4th 130, 158.).>

>B. Prosecutorial Misconduct

During
closing argument, defense counsel
asserted the complaining witnesses were lying about Garcia having
non-consensual anal intercourse with them.
The prosecutor countered, “What other defense is there besides the
victims are lying and the evidence just doesn’t work? I want to you believe [sic] that the evidence is good when it’s good for me, and I want to
believe it’s bad when it’s bad for me.
Those are just the arguments you have to make in a defense.” The prosecutor also argued, “Yeah, not a good
decision, but did you see [C.G.’s] eyes light up on that tape when he talked
about coming to Orange County when she was four and she went to the
Disneyland? She was like a little
kid. She still was, 24 when she
testified, 22 when this happened. She’s
a kid. He worked her over and he’s doing it again. That’s what this is.” (Italics added.) She also stated, “When police officers and
professionals do an investigation, just like anytime in life, they are looking
for things to corroborate. But you
didn’t just receive evidence that corroborates, you received everything. So yeah, they’re not going to disregard
something and say, oh, I’m not going to look for DNA evidence because I don’t
want to find anything that corroborates the victim. Of course they’re going to look for things to
corroborate. It would be asinine to do
otherwise. So to criticize police officers or professionals for doing their job,
if they didn’t do that, the opposite criticisms would be the defense.” (Italics added.)

> Garcia contends
the prosecutor committed misconduct by attacking the integrity of defense
counsel in closing argument. “‘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. [Citation.]’ [Citation.]”
(People v. Hill (1998) 17 Cal.4th 800, 820, overruled on
other grounds in Price v. Superior Court (2001)
25 Cal.4th 1046, 1069, fn. 13.) A
defendant may be excused from a failure to object and request for a curative
admonition if (1) such an objection and request would have been futile, (2) an
objection was made without opportunity to request a curative admonition, or (3)
a timely admonition would not have cured the harm. (Ibid.)

Garcia
admits trial counsel failed to timely object to the prosecutor’s statements,
but he argues the issue was not forfeited because an objection and request for
admonition would not have cured the harm.
Although we find Garcia’s trial counsel failed to preserve the issue for
appeal, he did not suffer any prejudice as a result of counsel’s decision to
remain silent.

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

The
prosecutor’s statements were not egregious, deceptive, or reprehensible. In each instance, the prosecutor merely
rebutted defense counsel’s challenges to the evidence and the credibility of
prosecution witnesses, topics properly discussed during closing argument. Furthermore, we disagree with Garcia’s
assertion the prosecutor’s statements amount to an improper suggestion the
defense fabricated evidence. To the
contrary, the prosecutor emphasized the proper role of the jury, which is to
determine the evidence and fairly apply the law.

DISPOSITION

The
judgment is affirmed.









THOMPSON,
J.



WE CONCUR:







O’LEARY, P. J.







MOORE, J.