P. v. Graham







Filed 9/8/11 P. v. Graham CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY RAY GRAHAM, JR., Defendant and Appellant.

F059936 (Super. Ct. No. BF126944A) OPINION

APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.
A.M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
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After kidnapping a young mother and her infant child from the parking lot of a Bakersfield shopping center, Anthony Ray Graham, Jr., forced the mother to drive him to an ATM, where she withdrew money for him, and to a junior high school parking lot, where he sexually assaulted her.^[1] A jury found him guilty, inter alia, of four felonies against the mother and one against the child. The court sentenced him to an aggregate indeterminate term of 50 years to life plus a five-year enhancement consecutive to a determinate term of 21 years. On appeal, he raises multiple challenges to the judgment of conviction. We affirm.

BACKGROUND

On March 24, 2009, the district attorney filed an information charging Graham with four crimes against the mother – forcible oral copulation (count 1; Pen. Code,
§ 288a, subd. (c)(2)),^[2] forcible sexual penetration (count 2; § 289, subd. (a)(1)), forcible rape (count 3; § 261, subd. (a)(2)), and kidnapping with intent to commit robbery (count 4; § 209, subd. (b)(1)) – and with one crime against the child – kidnapping (count 5;
§ 207, subd. (a)) – and charged him with felon in possession of a firearm (count 6;
§ 12021, subd. (a)). In counts 1 through 3, the information alleged a kidnapping that substantially increased the risk of harm (§ 667.61, subd. (d)(2)), a kidnapping (§ 667.61, subd. (e)(1)), and a personal use of a dangerous or deadly weapon or firearm (former
§ 667.61, subd. (e)(4)). In counts 1 through 5, the information alleged a personal use of a firearm (§ 12022.53, subd. (b)). In all counts, the information alleged a battery-with-infliction-of-serious-bodily-injury prior (§ 243, subd. (d)) as a serious felony prior (§ 667, subd. (a)(1)) and as a strike prior (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). On January 19, 2010, the court granted his motion to bifurcate the trial of the prior.
On February 22, 2010, a jury found Graham guilty in counts 1, 3, 4, and 5, found both kidnapping allegations in counts 1 and 3 true, and deadlocked on counts 2 and 6 and all the other allegations. The court declared a mistrial on all the counts and allegations on which the jury deadlocked. After Graham waived a jury on the trial of the prior, the court found the prior true.
On March 24, 2010, the court sentenced Graham to an aggregate indeterminate term of 50 years to life plus a five-year enhancement consecutive to a determinate term of 21 years. The components of the aggregate sentence were the imposition of a term of 50 years to life plus a five-year serious-felony-prior enhancement on count 1, the imposition of a consecutive term of 16 years plus a five-year serious-felony-prior enhancement on count 5, the imposition of a concurrent term of 50 years to life plus a five-year serious-felony-prior enhancement on count 3, and the imposition and stay of a term of life with the possibility of parole plus a five-year serious-felony-prior enhancement on count 4. (§§ 207, subd. (a), 209, subd. (b)(1), 261, subd. (a)(2), 288a, subd. (c)(2), 654, 667, subds. (a), (e)(1), 667.61, subds. (c)(1), (c)(7), (d)(2), 1170.12, subd. (c)(1).)

DISCUSSION

1. Change of Venue

Graham argues that the court improperly denied his motion for a change of venue. The Attorney General argues the contrary.
On April 3, 2009, Graham filed a motion for a change of venue arguing a “reasonable likelihood that a fair and impartial trial cannot be held in Kern County.” He attached copies of local media coverage and of U.S. Census Bureau statistics on Kern County and Los Angeles County, compared media coverage of the crimes in those two areas, and noted his absence of any “objection to a venue in Los Angeles County due,” inter alia, “to the virtual absence of pre-trial publicity.”
On April 24, 2009, the prosecutor filed an opposition arguing that Graham “failed to meet his burden of showing he could not receive a fair trial in Kern County.” Noting the five relevant factors in the case law – the nature and gravity of the offense, the size of the community, the status of the defendant in the community, the victim’s popularity and prominence, and the nature and extent of news coverage – she argued that none militated in favor of a change of venue.
On May 13, 2009, the court held a hearing on the motion. Graham noted the prosecutor’s characterization of the victim as “extremely credible” in the local media “borders on vouching” and “impropriety” and characterized the local media coverage of the police chief’s statement, “The case has been solved,” as “insidious.” Adding that the prosecutor was a candidate for election as district attorney, he requested the venue be “any other county in California.” The prosecutor argued that Bakersfield is not small, Kern County is relatively large, neither the defendant nor the victim was well known in the community, and the largely factual local media coverage was not extensive. The court denied the motion without prejudice, noting that Graham could renew the motion after “extensive voir dire.”
On January 26, 2010, Graham filed a motion for a change of venue arguing a “reasonable likelihood that a fair and impartial trial cannot be held in Kern County, as demonstrated from the jury voir dire completed to date.” His motion incorporated some prospective juror comments on voir dire. On January 28, 2010, the prosecutor filed an opposition emphasizing that no prospective juror as to whom the court denied a defense challenge for cause was sworn to try the case. Her motion argued that the use of only eight of the 20 available defense peremptory challenges “strongly suggests” prospective jurors were “fair and not influenced by pretrial publicity.” After a brief recess, the court held a hearing on the motion and, finding “there has not been a showing of reasonable likelihood that in the absence of granting a change of venue that a fair trial cannot be had,” denied the motion.
“A change of venue must be granted when the defendant shows a reasonable likelihood that a fair trial cannot otherwise be had. The trial court typically considers the nature and gravity of the offense, the size of the community, the status of the defendant and the victim, and the nature and extent of the publicity. On appeal, the defendant must show that denial of the venue motion was error (i.e., that it was reasonably likely a fair trial could not be had at the time the motion was made) and that the error was prejudicial (i.e., that it was reasonably likely a fair trial was not in fact had). We will sustain the court’s determination of the relevant facts where supported by substantial evidence. We independently review the court’s ultimate determination of the reasonable likelihood of an unfair trial.” (People v. Pride (1992) 3 Cal.4th 195, 224; § 1033, subd. (a).)
As a threshold matter, Graham’s decision to exercise only eight of his 20 available peremptory challenges undermines his claim, since we infer from both the absence of any explanation for his failure to utilize the rest of his peremptory challenges and the absence of any objection to the jury as finally composed his recognition that the jury as selected was fair and impartial. (People v. Alfaro (2007) 41 Cal.4th 1277, 1322, citing People v. Daniels (1991) 52 Cal.3d 815, 854.) His claim also fails on the merits.
At the outset, we turn to the five-factor test, which is the basis of the initial venue determination at trial and our independent evaluation on appeal, to analyze (1) the nature and gravity of the offense, (2) the nature and extent of the media coverage, (3) the size of the community, (4) the community status of the defendant, and (5) the prominence of the victim. (People v. Leonard (2007) 40 Cal.4th 1370, 1394.) As to the nature and gravity of the offense, Graham argues that the charges arose “from a shocking broad-daylight robbery at gunpoint, abduction, and rape by a young African-American man from Los Angeles of a white suburban Bakersfield mother and her 11-month-old infant daughter” in the parking lots of both a big box retailer and a junior high school. “However,” as the Attorney General notes, “the timing, location, the random choice of the victim, and even the exploitation of a mother’s instinct to protect her infant, did not increase the prescribed penalty or change the nature and gravity of the charged offenses.” Our Supreme Court has rejected challenges to denials of change-of-venue motions in far graver capital cases from Kern County. (See, e.g., People v. Weaver (2001) 26 Cal.4th 876, 908; People v. Balderas (1985) 41 Cal.3d 144, 177 (Balderas).)
As to the nature and extent of the media coverage, Graham argues that “pretrial publicity produced prejudgment in the pool of prospective jurors.” On the basis of his review of the reporter’s transcript of voir dire, he estimates that “approximately 30 prospective jurors” admitted prejudgment against him. As a colloquy among the court and counsel shows, however, only five of the empanelled jurors had any knowledge of pretrial publicity.
As to the size of the community, Graham argues, “Local publicity restricted to the Kern County populate poisoned the pool of potential jurors.” The U.S. Census Bureau statistics on which the court and counsel relied show that Kern County ranks 14th among California’s 58 counties in population. Writing about Kern County, our Supreme Court noted, “Cases in which venue changes were granted or ordered on review have usually involved counties with much smaller populations.” (Balderas, supra, 41 Cal.3d at pp. 178-179.) Here, as the court noted at the hearing on the motion, “extensive publicity at the time of the crime, even in a small county, does not compel a change of venue if the publicity has subsided by the time of trial.”
As to the community status of the defendant and the prominence of the victim, we observed in another change-of-venue case that “although defendant was a stranger to the area, the record is devoid of any evidence of public hostility.” (People v. Whalen (1973) 33 Cal.App.3d 710, 716.) That is the state of the record here, too. The media coverage notes Graham’s arrest in Los Angeles, from which one might infer he was a Los Angeles resident, but, as in Whalen, nothing in the record even intimates any hostility toward him for that reason. The victim, whom the media identified not by name but with generic terms like “31-year-old Bakersfield woman,” was not a prominent person in the community.
On that record, we apply the error-and-prejudice test. “On appeal, a defendant challenging a trial court’s denial of a motion for change of venue must show both error and prejudice: that is, that at the time of the motion it was reasonably likely that a fair trial could not be had in the county, and that it was reasonably likely that a fair trial was not had.” (People v. Davis (2009) 46 Cal.4th 539, 578.) Our analysis of the record in light of the five-factor test persuades us Graham fails to show error or prejudice. He argues, too, that the denial of his motion constituted federal constitutional error, but the premise of his claim is that the denial of his motion was prejudicial error, so his constitutional argument likewise fails. (People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3 (Sanders).)

2. Search of Jail Cell

Graham argues that the seizure from his cell of confidential legal mail including strategy notes from attorney-client meetings requires reversal for “inexcusable invasion into privileged attorney-client communications.” The Attorney General argues the contrary.
On December 3, 2009, Graham filed a non-statutory motion to dismiss on the ground of “prosecutorial misconduct in concert with police malfeasance.” He claimed an “intentional seizure of attorney client privileged documents from [his] cell” consisting of “‘legal mail’ (clearly marked) and notes and impressions of defense counsel documented during jail meetings between [him] and his counsel in preparation for trial.”
On December 23, 2009, the prosecutor filed an opposition arguing “there was no misconduct on the part of the prosecution.” She stated that, in Graham’s presence, six pages of documents were seized from and returned to an envelope in his cell to compare handwriting for an investigation into a reported attempt by him to solicit the victim’s murder. In a declaration, she stated that she never saw or read the documents and, on information and belief, that law enforcement never read the documents.
Later that day, Graham filed a reply attaching a sheriff’s department incident report which noted that anything labeled “legal mail” was searched in his presence and that “various letters, phone numbers, and addresses” were photocopied and returned to him. The report fails to identify those letters in any way.
On December 29, 2009, the court held a hearing on the motion. Graham argued the “dangerous” circumstances of “a member of the prosecution team” examining “legal mail” of “an innocent person.” The prosecutor argued that Graham failed to show that the officers who searched his cell read his legal mail and, even assuming arguendo that did occur, that he failed to show that the officers who did so disclosed any confidential communication to the prosecution. The defense accepted the prosecutor’s offer of proof and declined the court’s offer to have the officer who led the search testify. The court found that the purpose of the search was “to investigate an alleged solicitation of murder” and that Graham made “no showing that a government agent” with “any involvement in the investigation or prosecution of criminal charges” “reviewed” or “communicated” any “confidential information” to “the prosecution” and denied the motion.
On December 30, 2009, Graham’s attorney represented to the court that his client “still doesn’t have [his legal mail] back” and requested an order requiring its return. The court replied, “To the extent that this is with the Sheriff’s Department it will be ordered returned to Mr. Graham. He gets his legal mail back.” On January 4, 2010, the court signed an order to that effect.
On January 21, 2010, Graham filed a motion to dismiss “due to government/jail misconduct in concert with police malfeasance.” He argued that the seizure of, and the refusal to return, his legal mail made a fair trial impossible. On January 28, 2010, the court held a hearing on the motion. At the court’s request, the prosecutor spoke on the telephone with a sergeant “involved in the search of the cell” who told her, she said, that “Mr. Graham’s legal mail was never seized, and had it been seized it would have been noted in the report.” Inferring from the sergeant’s remarks that “perhaps we’ve been working on an improper assumption,” the prosecutor represented to the court that police standing in the hall outside Graham’s cell during the search by sheriff’s deputies inside his cell never saw his legal mail. The court observed that Graham apparently listened to, but did not watch, the officers inside his cell and that the sheriff’s department incident report “doesn’t say they photocopied legal mail.” Finding “no violation of the court order or any infringement on the attorney-client or attorney work product” privileges and “no showing” of “possession [of] legal mail” by police officers or sheriff’s deputies or of “governmental or jail misconduct in concert with any police malfeasance” or of “misconduct on the part of the District Attorney’s Office,” the court denied the motion.
On February 10, 2010, as the defense was about to rest, Graham moved for a mistrial on the ground that he exercised his right not to testify because “the government that is prosecuting [him] is out of compliance with a court order” requiring the return of the legal mail the government seized from him and that, as a consequence, he “now does not trust the government” and “cannot risk cross-examination by this professional highly-trained prosecutor when [he] believes the government is in possession of the notes taken by [him] and his counsel.” The court put the matter over to the following day.
On February 11, 2010, the court noted that the sole foundations of the order requiring the return of Graham’s legal mail were good-faith representations by both counsel about statements each had heard, that the order failed to establish the existence of a seizure from his cell, and that the court’s ruling on the motion would turn on “evidence that will either prove or disprove [the defense] theory.” The court found “no violation of a court order,” “no infringement on the attorney-client or attorney work product privileges,” “no showing that the District Attorney’s Office or the Bakersfield Police Department [or] the Kern County Sheriff’s Department” had possession of his legal mail, “no showing of misconduct” by any of those governmental agencies, and no evidence that his right to a fair trial was compromised “in any way.” The court denied the motion.
In People v. Alexander (2010) 49 Cal.4th 846 (Alexander), our Supreme Court rejected a challenge similar to the one before us. In Alexander, the prosecution secured a search warrant authorizing the monitoring and recording of telephone conversations “to attempt to prevent intimidation or dissuasion of witnesses” and, insofar as “conversations concerning attempts to influence witnesses” might be seized, “to bolster the prosecution’s case against defendant by demonstrating his consciousness of guilt.” (Id. at p. 884.) In a call in which he, his mother, and his investigator took part, “several subjects concerning the trial were discussed, including potential defense witnesses and how the defense might respond to the prosecution’s evidence.” (Ibid.) After a hearing on defendant’s motion to dismiss, the court “denied the motion to dismiss because the evidence demonstrated that the interception of the call did not prejudice defendant or benefit the prosecution.” (Id. at p. 886.) Rebuffing an appellate challenge to the court’s ruling, Alexander observed that defendant “made no showing that any witness disclosed any information from the call,” that “the record demonstrates there was no realistic possibility of injury to the defendant or benefit to the prosecution,” and that the United States Supreme Court has rejected a rule requiring reversal per se whenever the prosecution knowingly arranges or permits an intrusion into the attorney-client relationship. (Id. at p. 897, citing Weatherford v. Bursey (1977) 429 U.S. 545, 549 (Weatherford).)
Seeking to distinguish Alexander, Graham argues that “the intrusion into [his] confidential communications” caused him to fear “that the information might be used by the prosecution team to his detriment if he testified.” Alexander emphasized “that unless the record supports ‘at least a realistic possibility of injury to [the defendant] or benefit to the State, there can be no Sixth Amendment violation.’” (Alexander, supra, 49 Cal.4th at p. 888, quoting Weatherford, 429 U.S. at p. 558.) His statements to his attorney that he no longer trusted the government and could not risk cross-examination if the government was in possession of his and his attorney’s notes fall far short of the requisite showing.

3. Proffer of Impeachment Evidence

Graham argues that the court’s exclusion of his proffer of impeachment evidence of the mother’s sexual habits and marital separation was prejudicial error. The Attorney General argues the contrary.
Shortly before the victim testified, the court and counsel discussed two motions together. One was the defense motion in limine to allow the use of “character evidence, including opinion testimony, reputation evidence, [and] evidence of specific acts to attack the credibility and character” of the victim. The other was the prosecutor’s motion “to exclude any questioning of the victim regarding a brief separation 10 years ago.” The evidence of marital discord, Graham argued, was relevant to a defense of consent. The prosecutor countered that the evidence the defense sought to admit “has no relevance.” Deferring a ruling, the court ordered that “no mention be made unless we have a sidebar hearing and an offer of proof.”
On direct examination, the victim testified that she and her husband had been married for 15 years, that the last time she had had intercourse with him was four or five days before the assault, and that, in answer to Graham’s questions, she had told him that her marriage was good and that she loved her husband, whom she characterized as a good man. Before cross-examination, Graham requested leave to cross-examine her about that testimony. The prosecutor objected, noting that her question about the last time she had had intercourse with her husband was to provide context for DNA evidence showing the presence of his semen. Finding that the prejudice outweighed the relevance, the court barred the defense proffer of impeachment evidence.
Our analysis begins with Graham’s proffer of impeachment evidence of the mother’s sexual habits. “Under California’s rape shield law, specific instances of a complaining witness’s sexual conduct are not admissible to prove consent by the complaining witness in a prosecution for specified sex offenses. (Evid. Code, § 1103, subd. (c)(1).) Such evidence may be admissible, though, when offered to attack the credibility of the complaining witness, provided that its probative value outweighs the danger of undue prejudice and the defendant otherwise complies with the procedures set forth in Evidence Code section 782. First, the defendant must file a written motion and an offer of proof detailing the relevancy of the evidence. (Id., § 782, subd. (a)(1), (2).) If the court finds the offer sufficient, it shall order a hearing out of the presence of the jury to allow questioning of the complaining witness regarding the offer of proof. (Id., § 782, subd. (a)(3).) If the court finds the evidence relevant under [Evidence Code] section 780 and admissible under [Evidence Code] section 352, the court may make an order stating what evidence may be introduced by the defendant and what questions are permitted. (Id., § 782, subd. (a)(4).)” (People v. Fontana (2010) 49 Cal.4th 351, 354.)
Conspicuously absent from Graham’s proffer are the “written motion” and “offer of proof” that the statute requires. (Evid. Code, § 782, subd. (a)(1), (2).) A court’s ruling on the admissibility of prior sexual conduct will be overturned on appeal only if appellant can show an abuse of discretion. (People v. Chandler (1997) 56 Cal.App.4th 703, 711.) Graham fails to make the requisite showing.
With reference to the proffer of impeachment evidence of the mother’s marital separation, Graham argues, “Information about marital separation and discord would have contradicted her direct examination testimony and was therefore admissible to impeach the complaining witness’s direct examination testimony,” and, “Evidence of a witness’s dishonesty is classic impeachment.” Yet the mother, in all honesty, could characterize her marriage as good and her husband as a good man even if she had briefly separated from him 10 years earlier. As the court noted in the ruling denying his proffer, the evidence was more prejudicial than probative without “some offer of proof” showing relevance. On appellate review of an Evidence Code section 352 ruling, the deferential abuse of discretion standard governs. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) The record shows no abuse of discretion.
Likewise, the record shows no violation of Graham’s right to due process of law or right to confront and cross-examine witnesses. “Although the complete exclusion of evidence intended to establish an accused’s defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right.” (People v. Cunningham (2001) 25 Cal.4th 926, 999.) “A trial court’s limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness’s credibility had the excluded cross-examination been permitted.” (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.) Even though the mother’s credibility was central to the case, the impeachment evidence Graham proffered was too tangential to have significantly affected his defense or the jury’s impression of her credibility. The court did not err in denying his proffer of impeachment evidence of the mother’s sexual habits and marital separation.

4. DNA Testing

Graham argues that the court’s ruling admitting prosecution DNA test results without requiring an evidentiary foundation establishing “the reliability of the testing equipment” cannot withstand constitutional analysis. The Attorney General argues the contrary.
A forensic DNA analyst testified for the prosecution about the testing he performed for the male-specific Y chromosome with short tandem repeats in the DNA structure (Y-STR testing). Y-STR testing, which is an especially sensitive method of DNA testing that is quite useful with samples with a small amount of DNA from a male in the presence of a large amount of DNA from a female, can yield results for the Y chromosome component of a DNA mixture in which the less sensitive methods of DNA testing can see only the female portion of the mixture. The analyst performed Y-STR testing on four biological samples (the mother’s cervix and clothing) and on two reference samples from known individuals (Graham and the mother’s husband) and compared the two reference samples with the four biological samples. He testified that the Y chromosome profile of the non-sperm fraction of the mother’s cervical swab was inconsistent with her husband’s Y chromosome profile but consistent with Graham’s Y chromosome profile. The non-sperm fraction could have originated in blood, sweat, tears, or any other bodily fluid besides sperm. The biological samples from the clothing generated like findings, all of which were consistent with an act of oral intercourse by a person with Graham’s Y chromosome DNA profile, some of which were also consistent with a mixture of DNA from two other males, some of which were also consistent with a mixture of DNA from Graham, her husband, and a third male.
On voir dire by the defense outside the presence of the jury, the analyst testified that DNA testing is “all done primarily by automated instrumentation and software these days. So it looks like a big gray box. You put the sample in and you get the data out.” He puts DNA fragments that he extracts and amplifies from the biological samples into the “big gray box,” he testified, which separates the DNA fragments by size and color and mathematically calculates both the location and the number of repeats at that location of the fragments in the DNA strand. A software program translates the electronic data file into an electropherogram graph of allele peaks commonly referred to as “a suspect’s DNA profile.” The analyst does “some routine things” on the instrument , he testified, but he does not do “anything in the nature of technical servicing,” which technicians from his laboratory and technicians from the manufacturer perform.
Relying on Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [174 L.Ed.2d 314; 129 S.Ct. 2527] (Melendez-Diaz), Graham objected to the analyst’s testimony on the ground that the lack of an evidentiary foundation showing that the instrument “operates properly” renders the analyst’s opinion about DNA testing constitutionally objectionable. After the court heard argument and overruled the objection, Graham made a motion for a mistrial, which the court likewise denied. On appeal, he again challenges the admission of the analyst’s testimony, casting the lack of an evidentiary foundation of “calibration and testing” showing that the instrument “was properly functioning and yielded accurate results” as constitutionally objectionable.
Writing for the majority in Melendez-Diaz, Justice Scalia noted, albeit in dicta, that “we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.” (Melendez-Diaz, supra, 557 U.S. at p. __, fn. 1 [174 L.Ed.2d at p. 322, fn. 1; 129 S.Ct. at p. 2532, fn. 1.] In other states, most cases after Melendez-Diaz have rejected arguments analogous to Graham’s. (See, e.g., Ramirez v. State (Ind.App. 2010) 928 N.E.2d 214, 218-219; People v. Lent (N.Y. Supp.App.Term 2010) 908 N.Y.S.2d 804, 808-809; State v. Bergin (Or.App. 2009) 217 P.3d 1087, 1087-1088; Settlemire v. State (Tex.App. 2010) 323 S.W.3d 520, 521-522; but see People v. Carreira (N.Y. City Ct. 2010) 893 N.Y.S.2d 844, 846-851.) Here in California, our Supreme Court has granted review in several cases adjudicating Melendez-Diaz issues. (See, e.g., People v. Dungo (2009) 176 Cal.App.4th 1388, review granted Dec. 2, 2009, S176886.) Justice Scalia’s footnote in Melendez-Diaz and the weight of authority in other states persuade us that Graham’s argument is meritless.

5. Recusal of District Attorney’s Office

Graham argues that the court improperly denied his pretrial motion to recuse the entire district attorney’s office. The Attorney General argues the contrary.
Graham filed his motion for recusal on November 23, 2009. He argued that the prosecutor, who was a candidate for district attorney at the time, “improperly vouched for the [mother’s] credibility” in the media, offered him no options other than a “plea to the sheet” or “a ‘death in prison’ sentence” after trial, and pursued “personal political gain (to win an election) at the expense of her ethical obligation as a prosecutor.”
On December 22 and 23, 2009, respectively, the Attorney General’s office and the district attorney’s office filed oppositions to Graham’s motion. The Attorney General’s office argued that he failed to show that a conflict of interest existed that would make a fair trial unlikely. The district attorney’s office argued that he failed to show that the district attorney’s office could not exercise its discretionary function in an evenhanded manner and that he was not likely to receive fair treatment during all of the proceedings. Attached to both oppositions was the prosecutor’s declaration stating that she was “the most experienced sexual assault prosecutor” in the office, that Graham’s charged conduct and criminal history made the lack of an offer “entirely appropriate,” and that her comment about the mother’s credibility was in response to a reporter’s question after the preliminary hearing.
On December 29, 2009, the court held a hearing on the motion. After Graham’s attorney characterized the prosecutor as “heir apparent” to the office of district attorney in “a county that hasn’t had a new one for some 20 odd years, maybe more,” the court noted that “she’s the only candidate.” His attorney argued that other facts that were “not in dispute” were that the prosecutor “has this case and this case alone” and that the case was a “spectacular” one that had attracted “immense attention” locally, nationally, and internationally. Together, he argued, the prosecutor’s running for election, “vouching” for the mother’s credibility, and “offering the sheet” meant she had “become a witness,” in reply to which the court disclaimed awareness of anything she had done “that would make her a witness.” Graham’s attorney represented to the court that the prosecutor was “now absolutely a defense witness” on the issue of Graham’s legal mail. He professed to be “professionally suspicious of prosecutorial offices that fight tooth and nail to avoid recusal.” The prosecutor argued that the media coverage was neither “spectacular” nor “pervasive” and that Graham had failed to meet his “burden of proof on recusal.” The court observed that a “mere appearance of impropriety” was an insufficient basis for disqualification, found “no indication that the District Attorney’s Office would not exercise its discretionary function in an even-handed manner” and no showing of an “actual likelihood of unfair treatment,” and denied the motion for recusal.
The governing statute “sets out a two-part test for determining whether recusal is appropriate.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 713 (Haraguchi), citing § 1424.) The first part requires the court to determine whether the circumstances of a case show a reasonable possibility that the district attorney’s office may not exercise its discretion in an evenhanded manner. (Haraguchi, supra, at p. 713.) The second part requires the court, if and only if a conflict exists, to determine whether the conflict is so grave as to render it unlikely that defendant will receive fair treatment during all portions of the criminal proceedings. (Ibid.) The record shows the court’s careful compliance with the law. On appeal, the deferential abuse of discretion standard of review applies to the court’s ruling. (Hollywood v Superior Court (2008) 43 Cal.4th 721, 728.)
Even though Graham briefly acknowledges the applicable standard of review, he argues at length the inadequacies of the harmless error standard of review and the merits of the per se reversal standard of review. Citing Young v. U.S. ex rel Vuitton et Fils S.A. (1987) 481 U.S. 787, he urges us to reverse on the basis of the latter standard. Yet he overlooks a salient point. “Vuitton was decided not on constitutional grounds but under the United States Supreme Court’s supervisory powers over the lower federal courts.” (People v. Vasquez (2006) 39 Cal.4th 47, 61, citing Vuitton, supra, at pp. 790, 809.)
Our Supreme Court has articulated the components of the applicable standard of review. “The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court’s ruling under review. The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.” (Haraguchi, supra, 43 Cal.4th at p. 711, fns. omitted.)
By the applicable standard of review, Graham fails to persuade us that the court’s ruling denying his motion for recusal was an abuse of discretion. Instead, he argues here, as he did at the hearing, that the prosecutor was “the front-running candidate for district attorney,” that “to infer that [her] hard-line position was influenced by” her campaign was “hardly a logical leap,” and that she “publicly vouched for the complaining witness in the press, improperly influencing the jury pool.” He fails to make the showing that the governing statute requires.

6. Assistance of Counsel

Graham argues that his attorney rendered ineffective assistance of counsel not only by eliciting but also by failing to object to testimony that vouched for the mother’s credibility. The Attorney General argues the contrary.
Graham focuses his challenge on the testimony of two witnesses, one of whom was the detective who drove the mother to the medical center shortly after the assault. He puts at issue four excerpts from his testimony, the first three on direct examination and the final one on cross-examination. In reply to the prosecutor’s question, “After you interviewed her and she had told you what had happened, did you believe her‌,” he testified, “Yes, I did.” To the prosecutor’s question, “After you finished the second interview with [the mother] on January 30th, did you still believe her‌,” he replied, “Yes.” After the prosecutor later asked him, “[W]hen you went into the February 4th interview, did you believe – did you still believe [the mother]‌,” he replied, “Yes.” Finally, after the detective testified that she started crying and her legs started shaking uncontrollably when she got into the car to recreate the crime, Graham’s attorney asked him, “Couldn’t that be an indication that her lies were about to be discovered by the experienced police‌,” he testified, “No.” To none of those excerpts from the detective’s testimony did Graham’s attorney object.
The other witness whose testimony Graham challenges was the sexual assault nurse who examined the mother at the medical center. He puts at issue two excerpts from her testimony, a single question-and-answer on redirect examination and a brief colloquy on recross-examination. To the prosecutor’s question, “Was there anything during your time that you were with [the mother] that suggested to you that she was lying,” the nurse replied, “No.” Later, after Graham’s attorney asked, “And you told this Court probably about a half hour ago that you didn’t think she was lying, right‌,” she replied, “I don’t assume that anybody’s lying, no, so that’s correct.” After he commented, “You thought she was truthful,” she responded, “I assumed she was truthful.” He asked, “Why would you assume that‌,” and she replied, “I assume that on everybody.” After he inquired, “Well, is that the best policy for a medical professional‌,” she answered, “Yes.” He asked, “Regardless of mental condition or mental state, inebriation, under the influence of drugs‌ Is that your testimony‌,” and she replied, “Yes.” To his question, “Now, you never saw [the mother] before that day, did you‌,” she replied, “No.” Finally, he asked her, “Do you know anything about [the mother’s] credibility save for the few hours you spent with her‌,” and she answered, “No.” To none of those excerpts from the nurse’s testimony did Graham’s attorney object.
Graham argues that neither the detective nor the nurse “was an expert in judging anyone’s credibility in general, let alone [the mother’s] credibility” specifically, and that “there can be no reasonable tactical justification for competent criminal defense counsel not to object to testimony by experts, a police detective and a sexual assault nurse, telling lay jurors that the complaining witness was telling the truth.” On that premise, he argues that the testimony he puts at issue “irreparably tainted the trial.”
Graham fails to persuade us. To establish ineffective assistance, the defendant has the burden of showing that the attorney’s performance not only “fell below an objective standard of reasonableness” but also prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 684-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) To establish prejudice, the defendant has the burden of showing a “reasonable probability” “sufficient to undermine confidence in the outcome” that but for counsel’s performance “the result of the proceeding would have been different.” (Strickland, supra, at pp. 693-694; Ledesma, supra, at pp. 217-218.) Finally, the defendant has the burden of showing that counsel’s act or omission was not attributable to a tactical decision that a reasonably competent and experienced criminal defense attorney would make. (People v. Gurule (2002) 28 Cal.4th 557, 610-611.)
With reference to the detective’s testimony, Graham fails to show that his attorney’s act or omission was not attributable to a tactical decision that a reasonably competent and experienced criminal defense attorney would make. After the detective testified on direct examination that he believed the mother, Graham’s attorney asked him on cross-examination about, in his words, “questionable” evidence that he observed as she recreated the crime and asked him if that evidence was “one of the pieces that didn’t fit” into his story that he believed her. He answered in the affirmative. The detective’s testimony on direct examination that he believed the mother laid the foundation for his impeachment on cross-examination.
With reference to the nurse’s testimony, our reading of the record differs from Graham’s. The nurse testified that, apart from her observations during the sexual assault examination, she knew nothing about the mother’s credibility. Her testimony that her policy as a medical professional was to assume the mother and everyone else was telling her the truth simply gave some context for her testimony about the findings of her sexual assault examination. Graham fails to persuade us that she was “telling lay jurors that the complaining witness was telling the truth.”
Reviewing courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight. (People v. Scott (1997) 15 Cal.4th 1188, 1212.) An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffective assistance of counsel. (People v. Avena (1996) 13 Cal.4th 394, 421.) On an insufficient showing that the attorney’s performance either fell below the requisite standard or prejudiced the defense, a claim of ineffective assistance of counsel fails. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.) That is so here.

7. Argument on Burden of Proof

Graham argues that the prosecutor’s argument to the jury improperly misstated and shifted the burden of proof. The Attorney General argues the contrary.
The comments that Graham puts at issue are the prosecutor’s argument that “the defense has portrayed [the mother] as a liar, and they have to. They have to. Because the only way you’re going to find Anthony Graham not guilty is if you think [the mother] is a liar. That’s the only way.” At that juncture, Graham’s attorney objected on the ground that the prosecutor’s argument “misstates the law.” The court responded, “At the end of the case, ladies and gentlemen, we’ll be reading to you shortly jury instructions that embody the law. You will follow those instructions. If you have any questions concerning what the law is or any other question, when you’re back there deliberating feel free, through your foreperson, she or he, to direct a note to us and we’ll gladly respond. Thank you.” Invited by the court to proceed, the prosecutor added, “The defense has portrayed her as a liar. And really, if she was lying, she’d have to be crazy, wouldn’t she, to go through all this‌”
Graham argues that the “prosecutor’s improper comments denied [him] a fundamentally fair trial.” The Attorney General, pointing out that the prosecutor’s argument was a rebuttal to Graham’s attorney’s argument, calls the prosecutor’s argument “a fair comment on the evidence.” We agree with the Attorney General. Graham’s attorney argued to the jury, “Everything that [the mother] said that happened in that car couldn’t have happened in that car.” He exhorted the jury, “Look at the inside of the car. There’s no scuff marks.” He emphasized that “she cannot explain why the medical doctor found [her] at the E.R. in zero distress, none.” Articulating his view of the physical evidence as inconsistent with her testimony, he argued, “There’s no condom lubricant. There’s no condom. There’s no wrapper. There’s no vaginal tearing. There’s no vaginal injury. There’s no bruising, nothing.” He argued that the mother was “telling big lies to confuse and to cover up her bad personal behavior.” He called the prosecution “obscene” and “perverse” and told the jury that the mother “wanted to cry rape to cover up her other indecent activity so that she wouldn’t have to explain to her husband why she got an additional $500 out of the bank for some other nefarious purpose, and then made up this story that she didn’t know would spiral into this gigantic TV camera media event. That’s what happened.”
A prosecutor has wide latitude to argue vigorously to the jury and to use appropriate epithets so long as the argument amounts to fair comment on the evidence, including reasonable inferences from the evidence, and deductions from the evidence. Only if the defendant shows a reasonable likelihood that jurors understood or applied the argument in an improper or erroneous manner can he or she prevail on a claim of prosecutorial misconduct. (People v. Gamache (2010) 48 Cal.4th 347, 371.) Here, the prosecutor’s comments did not refer to the burden of proof but simply rebutted Graham’s attorney’s own characterization of the mother as a liar. The court thoroughly instructed on the presumption of innocence, on the prosecution’s burden of proof beyond a reasonable doubt, and on the jury’s duty to follow the law as instructed by the court, “even if you disagree with it. If you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.” (CALCRIM Nos. 103, 200, 220.) “We presume that jurors understand and follow the court’s instructions.” (People v. Gray (2005) 37 Cal.4th 168, 231.) Graham fails to make the requisite showing.
Graham argues, too, that “to the extent that it violates state-law standards” the prosecutor’s argument constituted federal constitutional error. Since the premise of his claim is that the prosecutor’s argument was prejudicial error, his constitutional argument likewise fails. (Sanders, supra, 11 Cal.4th at p. 510, fn. 3.)

8. Other Argument

Graham argues that the prosecutor’s argument to the jury improperly denigrated counsel, vouched for the mother’s credibility, and appealed to the jury’s sympathies, that his attorney’s failure to object was ineffective assistance of counsel, and that the court breached a sua sponte duty to control the prosecutor. The Attorney General argues that the lack of an objection to all but one of the prosecutor’s comments forfeited Graham’s right to review, that his attorney did not render ineffective assistance of counsel, that the court did not breach any sua sponte duty, and that Graham’s claims are meritless.
With reference to his claim that the prosecutor improperly denigrated counsel, Graham draws our attention to comments in her opening and closing arguments alike. In her opening argument, she said Graham’s attorney spent six of his six-and-one-half hours of cross-examination of the mother “asking her about things she didn’t do, but could have done,” and asked the jury, “[H]ow is that revealing the truth to you‌” She noted that he cross-examined the criminalist for 40 minutes without asking “one question about the DNA work she did,” even though her work linked Graham “with numbers of one in 54 quadrillion,” and mused to the jury, “[Y]ou have to wonder how is that helping you to find the truth.” She said he “demean[ed]” a “nurse with 25 years [of] experience” because “her nursing degree is from a junior college” and exhorted jurors to ask, “[H]ow does that help me figure out the truth‌”
The prosecutor then answered her own questions. “Those questions are not designed to help you find out what happened. Those are designed to obscure the truth, and in the process cause you to lose sight of it, and I don’t want you to lose sight of the truth in this case.” She said her “only job during this trial is to produce the evidence that will help assist you, lead you, whatever you want to say, guide you, to see the truth about what happened” so the jury could see that the mother “is telling the truth.” In her closing argument, she argued “a defense attorney’s loyalty is to his client,” and acknowledged that is “how it should be,” but noted how “it is important that you recognize that his job, his job, is not to find the truth. His job is not to clarify. It’s to confuse. His job is not to focus on what the evidence is. It’s to deflect your attention from the evidence. And he’s very good at it.”
A prosecutor has “wide latitude in describing the deficiencies in opposing counsel’s tactics.” (People v. Bemore (2000) 22 Cal.4th 809, 846.) A prosecutor may argue that “‘any experienced defense attorney can twist a little, poke a little, try to draw some speculation, try to get you to buy something’” without making “a personal attack on counsel’s integrity.” (People v. Medina (1995) 11 Cal.4th 694, 759.) A prosecutor’s reference to defense “tricks” or “moves” is not an “improper personal attack on defense counsel’s integrity.” (People v. Taylor (2001) 26 Cal.4th 1155, 1166-1167.) Here, the prosecutor did not accuse Graham’s attorney of fabricating a defense or deceiving the jury. (Cf. Bemore, supra, at p. 846.) Instead, her comments “focused the jury upon the evidence rather than distracting it from its task.” (People v. Redd (2010) 48 Cal.4th 691, 735 (Redd).) “There was nothing deceptive or reprehensible in the prosecutor’s comments; rather, they reflected an attempt to clarify the People’s burden of proof.” (Id. at p. 736.)
As for his claim that the prosecutor’s argument improperly vouched for the mother’s credibility, Graham argues that the prosecutor characterized the mother as a good mother, a credible mother, and a model mother who forsook working outside the home due to her devotion to her children and husband. He challenges the prosecutor’s portraying the mother’s putting a blanket over her daughter at the time of the assault as an act of good character and self-sacrifice. He quarrels with her characterization of the mother’s reporting of the alleged assault, participating in the investigation, and disposing of the car as lending her accusations credibility. He faults her for noting that the detective thought she was credible.
“It is misconduct for prosecutors to bolster their case ‘by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in support of it.’” (People v. Bonilla (2007) 41 Cal.4th 313, 336, quoting People v. Huggins (2006) 38 Cal.4th 175, 206-207.) “‘[S]o long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the “facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,” her comments cannot be characterized as improper vouching.’” (Bonilla, supra, at p. 337, quoting People v. Frye (1998) 18 Cal.4th 894, 971, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Here, the prosecutor did not “suggest to the jury” that she had “information undisclosed to the trier of fact bearing on the issue of credibility, veracity, or guilt,” but rather she “simply drew inferences as to credibility on the basis of evidence presented to the jury; this [s]he was entitled to do.” (People v. Padilla (1995) 11 Cal.4th 891, 946 (Padilla), overruled on another ground by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
With reference to his claim that the prosecutor’s argument improperly appealed to the jury’s sympathies, Graham draws our attention to the prosecutor’s characterization of the mother’s shielding the child with a blanket, once she knew “something really, really horrible [was] going to happen,” as “the ultimate act of sacrifice” of her body, mind, and soul. After the assault, the prosecutor noted, she cut her hair, which was “a huge thing for a woman,” and sold her car, which was “a reminder of the man who raped her, orally copulated her, and digitally penetrated her in the back seat.” Since she “will never, ever, for the rest of her life, be able to go out in public without worrying,” the prosecutor said, “the only thing that anyone – and it happens to be the 12 of you – can do for [her] now is to find Anthony Graham guilty of these crimes and maybe in that way she will have some peace of mind.” The “invasive, humiliating, and painful” sexual assault examination and the “humiliation” of a trial with a “brutal” cross-examination made her “a victim in the truest sense of the world – word and you know that she’s telling the truth,” the prosecutor concluded.
“‘It is, of course, improper to make arguments to the jury that give it the impression that “emotion may reign over reason,” and to present “irrelevant information or inflammatory rhetoric that diverts the jury’s attention from its proper role, or invites an irrational, purely subjective response.”’” (Redd, supra, 48 Cal.4th at p. 742, quoting Padilla , supra, 11 Cal.4th at pp. 956-957.) Our reading of the record persuades us that the argument Graham characterizes as an improper appeal to the jury’s sympathies was a permissible summation of evidence on the issue of credibility. Our Supreme Court has construed comments about a victim “suffering” a “savage beating” as “fair comments on the evidence.” (People v. Martinez (2010) 47 Cal.4th 911, 957.) Here, as in Redd, the prosecutor’s comments “focused the jury on its role” without inviting either “an irrational or emotional response.” (Redd, supra, 48 Cal.4th at p. 743.) In short, Graham’s claims of prosecutorial misconduct are meritless.^[3]
Graham argues that the prosecutor’s arguments constituted federal constitutional error, too, but the premise of his claim is that those arguments were prejudicial error. So his constitutional arguments likewise fail. (Sanders, supra, 11 Cal.4th at p. 510, fn. 3.)

9. Law Enforcement Personnel Records

Graham requests an independent review of the court’s in camera rulings on his motions for discovery of law enforcement personnel records. (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) The Attorney General does not object to his request.
On April 1, 2009, Graham filed a motion for discovery of personnel records of a Bakersfield police detective. On April 20, 2009, the Bakersfield city attorney filed an opposition. On May 13, 2009, the court held an in camera hearing, reviewed the records at issue, and denied the motion.
On September 28, 2009, Graham filed two motions for discovery of personnel records, one of a Bakersfield police officer, the other of a detective, a sergeant, and two officers of the Los Angeles Police Department. The Bakersfield city attorney filed an opposition on October 9, 2009. The Los Angeles city attorney filed an opposition on October 26, 2009. On October 28, 2009, the court held in camera hearings, reviewed the records at issue, and issued rulings. As to the Bakersfield police officer, the court denied the motion. As to the members of the Los Angeles Police Department, the court denied the motion in part, granted the motion in part, and ordered disclosure of names and contact information of some of the persons identified in camera.
On appeal, the court’s rulings are subject to review for abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330, citing Pitchess, supra, 11 Cal.3d at p. 535.) Our independent review of the records at issue satisfies us there was no abuse of discretion.

10. Battery Prior

On the premises, first, that he did not admit personal infliction of serious bodily in his plea of no contest to his battery-with-serious-bodily-injury prior and, second, that he did not admit that his prior was either a serious felony (§ 1192.7, subd. (c)) or a violent felony (§ 667.5, subd. (c)), Graham argues that an insufficiency of the evidence of both a serious felony prior (§ 667, subd. (a)(1)) and a strike prior (§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) requires a remand for resentencing. The Attorney General argues the contrary.
On January 3, 2007, a complaint charged Graham with the commission of a battery with infliction of serious bodily injury. (§ 243, subd. (d).) On January 16, 2007, he pled no contest in return for a disposition of three years of formal probation, 180 days of county jail, and his agreement to stay away from the victim. On January 30, 2007, the court sentenced him in conformity with the negotiated settlement.
The reporter’s transcript of the plea proceedings shows that Gra