P. v. Scott

Filed 6/16/08 P. v. Scott CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles F. Palmer, Judge. Affirmed.

Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth N. Sokoler and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.

introduction

A jury convicted defendant Marquette Deon Scott of kidnapping for sexual purposes (Pen. Code,  208, subd. (d)),[1]and of forcible rape ( 261, subd. (a)(2)). The jury also found that defendant personally used a handgun ( 12022.5, subd. (a)(1) & 12022.3, subd. (a)). The court sentenced defendant to state prison for 29 years to life.

In this appeal, defendant raises multiple contentions of error. We affirm.

statement of facts

Tasha R. was raped in May 1996. She reported the attack to the police and was taken to the hospital, where hospital staff collected samples from Tasha and completed a sexual assault kit. The identity of the rapist remained unknown for many years.

Years later, defendant was convicted of the January 2003 rape of Cheryl S. In that case, police collected DNA samples from him, and his DNA profile was matched to the sexual assault kit collected from Tasha R. in 1996.

Prosecution Evidence

Tasha R. was 15 years old on May 10, 1996. On that day, Tashas mother drove her to school. Tasha skipped school and instead took a bus to visit a relative. She went to a fast food restaurant near her grandmothers house. Defendant was waiting in line in front of her, and began conversing with her, asking her name and age. She said she was too young for him. As she left with her food, Defendant followed her and asked if she wanted to earn some money by having sex. She responded that she was a virgin. Appellant then showed her a chrome gun in his left pocket and told her to come with him, threatening to shoot her if she tried to scream or run away. He took her to a motel and told her to stand to the side while he paid for a room. He took her to a room at the top of the stairs.

Inside the room, defendant told Tasha to lie down. He put his gun on the night stand. Tasha was crying, and he told her to shut up. He tried to kiss her. Tasha asked him to use a condom but he refused, telling her that he would not ejaculate inside her, and proceeded to insert his penis into her vagina. At some point, he allowed her to use the bathroom and when she returned, he raped her again. Defendant then told Tasha to count to 100 after he left the room, before leaving the room herself. She locked the door when he left.

Tasha went to her grandmothers house a few blocks away and told her cousin, Daphne, that she had been raped. She asked her not to tell anyone. Daphne told Tashas Aunt Nichelle, who then told Tashas mother, Deborah, the following day. Deborah took Tasha to the hospital.

Dr. Nassrin Rahemi examined Tasha. Dr. Rahemi found no vaginal bleeding or bruising, but Tasha complained of tenderness in that area as she was being examined. Tasha said she had changed her clothes since the attack. Dr. Rahemi completed a sexual assault kit and gave it to Officers Phillip Thompson and Nicholas Serfas. Dr. Rahemi concluded that her findings were consistent with a sexual assault having occurred.

In 2005, a criminalist with the Los Angeles Police Department analyzed the biological samples contained in the sexual assault kit prepared by Dr. Rahemi when she examined Tasha in 1996. The criminalist also analyzed biological material collected from defendant. She concluded that the samples collected from Tasha contained a mixture of Tashas and defendants DNA profiles.

Tashas mother said that Tasha refused to return to school after she was raped, and had to be home schooled. For over five years, she rarely left their house and would not venture out alone.

Defense Evidence

Denise Hicks testified that appellant is right handed.

Officer Nicholas Serfas interviewed Tasha on May 11, 1996, at the hospital. Tasha told him that the man who raped her showed her a blue steel handgun and threatened to shoot her if she did not shut up and keep walking with him. Once inside the hotel room, she said she removed her clothes as defendant demanded because she feared for her life. The police did not collect clothing from her because the clothes she was wearing during the incident had been washed.

discussion

A. Batson/Wheeler Error

1. Introduction

Defendant contends the prosecutor violated his state and federal constitutional rights under Wheeler[2]and Batson[3]by using peremptory challenges to excuse a prospective juror because he was African-American. Wheeler held that a prosecutors use of peremptory challenges to strike prospective jurors on the basis of group membership violates a criminal defendants right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. Batson held, among other things, that such a

practice violates a defendants right to equal protection of the laws under the United States Constitutions Fourteenth Amendment. As we explain, there was no Batson/Wheeler error.

2. Factual Background

After jury selection began, defense counsel objected to the racial composition of the jury venire, stating that, unless he was mistaken, it appeared there were only two African-American jurors in the panel of 55 jurors. Counsel noted this was disproportionate to the population of Los Angeles County in which, he opined, the African-American community is somewhere around 20 percent. Defense counsel asked that the court dismiss the panel and order a new one. The court declined, stating that this panel was selected according to processes which have ultimately proven to develop an accurate reflection of the community and that there are variations in panels just because the jurors are picked randomly. The judge noted that, because of the large size of the panel and the configuration of the courtroom, he could not see the entire panel to confirm the number of African-American jurors. Defense counsel then noted for the record that one of the two African-American jurors had been excused for health reasons, leaving only Juror No. 3. Subsequently, the prosecutor exercised a peremptory challenge to excuse Juror No. 3. Defendant does not contend Juror No. 3 was excused for improper reasons.

After additional jurors were seated and questioned, defense counsel informed the court that defendant felt that his rights to due process and to a fair trial were being violated because he is African-American and there were no African-Americans on the panel.

Jury selection continued. Prospective Juror No. 7 stated during voir dire that he had been arrested and jailed for possession of marijuana in 1994. He was not charged, but said he felt the police had acted improperly. He said the police had no reason to stop him, and assumed the marijuana belonged to him even though it was not his car and not his bag. The court asked if there was anything about the incident that made him unable to be fair and impartial. He replied, No; mistakes happen. The court and counsel later agreed that Juror No. 7 appeared to be African-American.

Shortly thereafter, the prosecutor excused Juror No. 7. Defense counsel objected, stating he was making a Wheeler motion based on the fact Juror No. 7 was African-American. Defense counsel stated that although Juror No. 7 had been arrested, he also said that he had two cousins in law enforcement and three relatives who had been victims of rape or sexual assault a long time ago. The juror stated that none of his prior experiences would interfere with his ability to be fair. Defense counsel asserted that the prosecutor did not have adequate reason to dismiss the juror, and was doing so because she did not want any African-American jurors on the panel.

The court concluded that defense counsel had met his burden of establishing a prima facie case to support an inference of discriminatory purpose. The prosecutor then explained that her reason for excusing the juror was his response and demeanor when questioned about his 1994 arrest. He elevated his voice saying it wasnt me, it wasnt mine. I found that to be a very disconcerting position taken by him, one that Im familiar with, and that defendants often recite those very words it wasnt me; it wasnt mine. That information alone caused me to find that he is not a juror that I would want on this particular panel. The prosecutor noted that she herself was African-American, as was the victim.

The court stated: In viewing the totality of the circumstances and considering the evidence presented, this court finds that the reasons offered to justify the peremptory challenges demonstrate that the challenges were not exercised under grounds of group bias, but were exercised for reasons relevant to the facts of this case, the parties and witnesses; namely, that the defendant the fact that the juror had a prior arrest for marijuana and his demeanor when answering the questions. I did detect that he did raise his voice somewhat when he responded. The fact that in this case race is likely to be less of an issue in that both potential victims, as I understand, are going to testify, I dont know that the victim in this case is African-American, but the prosecutor is African-American. And based on those factors, I think the People have produced sufficient reasons. So the motion is denied.

3. Discussion

If a defendant establishes a prima facie case of racial discrimination by the People in using their peremptory challenges, then the burden shifts to the People to articulate a neutral explanation for each challenge. (Batson v. Kentucky, supra, 476 U.S. at pp. 96-98.) If the People meet their burden, then the trial court, taking into consideration all relevant circumstances, determines whether defendant has established purposeful discrimination and thus, whether to grant the Wheeler motion. (Ibid.)

Defendant showed that the prospective juror was a member of a cognizable group: African-American people. (People v. Alvarez (1996) 14 Cal.4th 155, 193.) The trial court found that a prima facie showing had been made (People v. Johnson (1989) 47 Cal.3d 1194, 1217; People v. Cervantes (1991) 233 Cal.App.3d 323, 332), and shifted the burden to the prosecution to present a neutral explanation for the challenge (People v. Silva (2001) 25 Cal.4th 345, 384; People v. Williams (1997) 16 Cal.4th 153, 187). Defendant claims that the prosecutors justification was pretextual. In reviewing the sufficiency of a prosecutors showing of neutral grounds for an excusal, an appellate court defer[s] to our trial courts to distinguish bona fide reasons from the sham that hide improper motives (People v. Boyette [(2002)] 29 Cal.4th [381,] 422), and [recognizes] that a party may decide to excuse a prospective juror for a variety of reasons, finding no single characteristic dispositive. (People v. Gray (2005) 37 Cal.4th 168, 189.) [A]n appellate court independently reviews a trial courts conclusion on whether the prosecutor stated adequate neutral reasons for the peremptory challenges in question: It amounts to the resolution of a pure question of law [citation]. (People v. Alvarez, supra, 14 Cal.4th at p. 198, fn. 9.) At the same time, we review for substantial evidence a finding that the prosecutors stated reasons were genuine: It is plainly the resolution of a pure question of fact. (Id. at p. 198.)

Here, the prosecutors reason for exercising a peremptory challenge against Juror No. 7 was his demeanor when discussing his prior arrest. Most notably, as stated by the prosecutor and confirmed by the court, the juror raised his voice when he began discussing the issue, and stated that he felt the police had acted improperly. Defendant contends that the prosecutors justification was pretextual in the context of an African-American male prospective juror. He asserts that [t]raffic stops resulting in a search for no apparent reason occur at a much higher rate in the African-American community than they do elsewhere, and therefore the prosecutors justification could be [used] to rationalize excusing a large percentage of African-American jurors. Defendant reasons that if Juror No. 7 was upset in his tone, it was likely because this is a problem that impacted both himself, on a personal level, and his community.

Notably, defendant does not dispute that Juror No. 7 sounded upset. Rather, he argues in essence that Juror No. 7 had good reason to be upset, and that a disproportionately large percentage of prospective African-American jurors are likely to be upset because of unwarranted traffic stops. However, even if defendants assertion is true, it does not render the prosecutors reason for excusing Juror No. 7 pretextual, implausible, or impermissible.

In evaluating the race neutrality of an attorneys explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law. A court addressing this issue must keep in mind the fundamental principle that official action will not be held unconstitutional solely because it results in a racially disproportionate impact. . . . Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-265 (1977); see also Washington v. Davis, 426 U.S. 229, 239 (1976). Discriminatory purpose . . . implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected . . . a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (footnote and citation omitted); see also McCleskey v. Kemp, 481 U.S. 279, 297-299 (1987). [] A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutors explanation. Unless a discriminatory intent is inherent in the prosecutors explanation, the reason offered will be deemed race neutral. (Hernandez v. New York (1991) 500 U.S. 352, 359-360, italics added. See also People v. Superior Court (Williams) (1992) 8 Cal.App.4th 688, 707-708.)

The prosecutors reason for excusing Juror No. 7 was race-neutral, and it was an adequate basis upon which to exercise a peremptory challenge. The prosecutor stated, and the court believed, that she excused Juror No. 7 because his behavior suggested that he harbored resentment toward the police, indicating that he might tend to favor the defense despite his assertion of impartiality. Thus, the juror was properly excused for suspected bias, not because of purposeful discrimination based on his race.

Furthermore, in the absence of evidence to the contrary, we conclude that substantial evidence supports the trial courts finding that the prosecutors explanation for her challenge was genuine and the juror was not excused for membership in a cognizable group. (People v. Jackson (1992) 10 Cal.App.4th 13, 21.) The court properly denied defendants Wheeler motion.

B. Admission of Evidence Regarding Uncharged Sexual Offense

1. Introduction

Under Evidence Code section 1108, the prosecution introduced evidence of defendants January 2003 rape of Cheryl S. Defendant contends that the admission of evidence pursuant to Evidence Code section 1108, which permits evidence of other sex crimes committed by a defendant to be admitted in a prosecution of a sexual offense to show the defendants disposition to commit such crimes, violates his federal due process rights. Defendant acknowledges that we are bound to follow the California Supreme Court opinion in People v. Falsetta (1999) 21 Cal.4th 903, and raises the issue solely for purposes of preserving the issue for federal review. In Falsetta, the Supreme Court rejected a due process challenge to Evidence Code section 1108. (People v. Falsetta, supra, 21 Cal.4th at pp. 910-922.) Accordingly, we too must do so. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Defendant further contends that the trial court erred by admitting evidence of the sex crime he committed against Cheryl S. because it lacked probative value. (Evid. Code,  352.) We note that this issue was forfeited by defense counsels failure to object on this basis during trial. Furthermore, we find the trial court did not abuse its discretion by admitting the evidence.

2. Factual Background

On January 15, 2003, seven years after the charged incident in May 1996, Cheryl S., then 20 years old, was walking to her aunt and uncles home after taking the bus home from work. She passed defendant, who began to follow her. He tried to converse with her and asked her name. She said she was not from the area and asked him to leave her alone. He followed her and asked for her phone number. She lost sight of him for a few minutes, but then she turned a corner and found him standing right in front of her. He was upset and said she was lying to him about not being from the area. She said she lived with her aunt and uncle and told him their address. He said he was tired of her lies and put his hand in his pocket, indicating he had a gun. He said he would kill her if she tried to scream, run, or fight. He forced her across the street to a parked car and made her get into the front seat. After forcing her to remove one leg from her pants and underwear, he inserted his penis into her vagina. She asked him to use a condom, and eventually he stopped and put one on, then continued to rape her. He ejaculated into the condom. He then got into the back seat and appeared to remove the condom and set it outside through the open car window, after wiping himself with a towel. He took $100 from her purse and her cell phone. He removed her from the car and took her to the opposite sidewalk, telling her to keep her eyes closed. She stood there for about one minute before realizing he had driven away. She ran to her aunt and uncles house and told them she had been raped. They called the police. She was interviewed by the police and taken to the hospital. Cheryl later identified defendant as the rapist from a photographic lineup.

3. Discussion

Evidence Code section 1108, subdivision (a) provides, in pertinent part: In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352. Section 352 grants the trial court discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice.

In enacting Evidence Code section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of Evidence Code section 1101. [Citation.] (People v. Britt (2002) 104 Cal.App.4th 500, 505-506, italics omitted.) Sex crimes frequently are committed in secret, without corroborating witnesses or evidence, and trials in such cases often are pure credibility contests between alleged victims and defendants, involving determinations of the defendants disposition to commit such crimes and whether the victim has falsely accused the defendant. Section 1108 passes constitutional muster because the trial court has the discretion to exclude the evidence. (People v. Falsetta, supra, 21 Cal.4th at pp. 911-912.) We review the admission of evidence under section 352 and section 1108 for an abuse of discretion. (Id. at pp. 916-920.)

Pursuant to Evidence Code section 352, the probative value of the evidence must be balanced against four factors: (1) the inflammatory nature of the uncharged conduct; (2) the possibility of confusion of issues; (3) remoteness in time of the uncharged offenses; and (4) the amount of time involved in introducing and refuting the evidence of uncharged offenses. (People v. Falsetta, supra, 21 Cal.4th at pp. 916-920; see People v. Branch (2001) 91 Cal.App.4th 274, 282.)

Defendant concedes that defense counsel did not object during trial to admission of the uncharged sex crime, but argues on appeal that an objection would have been futile because the trial court was bound to follow Falsetta. Even if that justified the failure to object based on the ground that section 1108 violates the federal constitution, it does not excuse counsels failure to object on the ground that the evidence was more prejudicial than probative. (Evid. Code,  352.) Defendant has forfeited the issue for purposes of appeal by the failure to object. (People v. Earp (1999) 20 Cal.4th 826, 882-884.) In any event, the trial court did not abuse its discretion by admitting the evidence.

Defendant argues the Cheryl S. incident lacked probative value because Cheryl was 20 years old at the time of the attack by defendant, while Tasha was 15 years old. In the uncharged incident, defendant dragged Cheryl to a car and raped her, while he walked several blocks with Tasha to a motel, and she waited while he rented a room. In addition, the incident involving Tasha occurred in 1996, while the uncharged crime occurred seven years later, in 2003. He argues that the incident involving Cheryl was inadmissible because it was more violent, too dissimilar, and too remote in time. (People v. Harris (1998) 60 Cal.App.4th 727, 740.) According to defendant, admitting the evidence increased the danger that the jury might have been inclined to punish defendant for the uncharged offense, and the likelihood of the jury confusing the issues. (Id. at pp. 738-739; People v. Ewoldt (1994) 7 Cal.4th 380, 405.)

The factual distinctions noted by defendant do not support his assertion of error. Section 1108 does not contain exacting requirements of similarity between the charged offense and the defendants other offenses. (People v. Soto (1998) 64 Cal.App.4th 966, 984.) The incident involving Cheryl was not any more violent or forceful. Indeed, defendant actually brandished a gun at Tasha and threatened to shoot her, while he merely led Cheryl to believe that he had a gun but she did not actually see one. The difference in the victims ages is of little significance, and the seven-year time span between the two incidents does not render the uncharged crime remote, particularly where, as here, the uncharged crime occurred recently.

Evidence of an uncharged offense is not considered highly inflammatory when evidence of the charged offense is equally graphic. (People v. Yovanov (1999) 69 Cal.App.4th 392, 406.) We do not agree that the prejudicial effect of Cheryls testimony outweighed its probative value. With the enactment of section 1108, the Legislature declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the witness. [Citation.] (People v. Callahan (1999) 74 Cal.App.4th 356, 367.) Such evidence is presumptively admissible and highly probative. (People v. Soto, supra, 64 Cal.App.4th at pp. 989, 991.) The prejudice presented by evidence of this type is inherent in all propensity evidence. (Id. at p. 992.) Propensity evidence is prejudicial, not because it has no appreciable probative value, but because it has too much. . . . [Citations.] (People v. Falsetta, supra, 21 Cal.4th at p. 915, italics omitted.) However, [t]he prejudice which exclusion of evidence under . . . section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. [A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more it is prejudicial. . . . In applying section 352, prejudicial is not synonymous with damaging. [Citation.] (People v. Karis (1988) 46 Cal.3d 612, 638.)

The trial court did not act in an arbitrary, capricious or patently absurd manner, but reasonably exercised its discretion under section 352. (See People v. Callahan, supra, 74 Cal.App.4th at pp. 366-367.)

C. Use of CALCRIM No. 372

1. Introduction

Defendant contends the trial court erred in instructing the jury pursuant to CALCRIM No. 372 that flight by a defendant may show awareness of guilt. Defendant argues there was no evidentiary support for the instruction, and that the instruction lessened the prosecutions burden of proving his guilt beyond a reasonable doubt. We disagree.

2. Factual Background

Defense counsel objected to the court instructing the jury regarding defendants flight from the scene, based on the testimony that he immediately left the motel room after having sexual intercourse with Tasha. The court found there was sufficient factual foundation for the instruction. The jury was instructed using CALCRIM No. 372: If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.

3. Discussion

The California Supreme Court has held regarding the former flight instruction, CALJIC No. 2.52, that In general, a flight instruction is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt. (People v. Bradford (1997) 14 Cal.4th 1005, 1055, quoting People v. Ray (1996) 13 Cal.4th 313, 345; People v. Jones (1991) 53 Cal.3d 1115, 1145;  1127c.) Flight requires neither the physical act of running nor the reaching of a far-away haven. (People v. Cannady (1972) 8 Cal.3d 379, 391.) It does require however, a purpose to avoid being observed or arrested. [Citations.] (People v. Bradford, supra, 14 Cal.4th at p. 1055.)

Here, Tasha testified that he was on top of [her] for a couple of minutes. And he got up and told [her] to count, count to I dont know exactly to what number. And then he was going to leave. Defendant indicated he was going to leave first and she had to wait before she could leave. This is sufficient evidence of flight to support the instruction. A reasonable jury could have inferred that defendant left the scene to avoid being further observed or arrested. (People v. Jackson (1996) 13 Cal.4th 1164, 1226.) The flight instruction was properly given.

Furthermore, the instruction acknowledged the possibility that flight might not have been shown by the evidence and it was for the jury to determine if it had. (See People v. Harris (1992) 10 Cal.App.4th 672, 675.) The jury was also instructed pursuant to CALCRIM No. 200 as follows: Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them. Thus, the instruction left the weight of the evidence of flight to the trier of fact.

In light of other evidence of defendants guilt and other instructions given, even if we were to find that it was error to instruct on flight, such error would be harmless. It is not reasonably probable a result more favorable to defendant would have been reached absent such an alleged error. (People v. Silva (1988) 45 Cal.3d 604, 628; People v. Watson (1956) 46 Cal.2d 818, 836.)

D. Prosecutorial Misconduct

1. Introduction

Defendant next contends that the prosecutor committed prejudicial misconduct during closing argument. He argues that the prosecutor repeatedly appealed to the jurors to allow their sympathy for the victim to influence their verdict, made reference to facts not in evidence, and misstated the applicable law with regard to the standard of proof to support a conviction. Defense counsel did not object to any of the statements which defendant now asserts constituted misconduct, and thereby forfeited the issues for review. In any event, we conclude there was no misconduct.

2. Forfeiture

Defendants various contentions of prosecutorial misconduct have not been preserved for review because defense counsel raised no objection to any of the comments. It is, of course, the general rule that a defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion he made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. (People v. Benson (1990) 52 Cal.3d 754, 794; see also People v. Clair (1992) 2 Cal.4th 629, 662.) In each instance, any potential harm caused by the comments could have been quickly cured through an admonition to the jury. Defendants failure to object and request an admonition constitutes a forfeiture of his claims. To avoid the force of that conclusion, defendant argues that his counsel was ineffective in failing to object to the prosecutors statements. As we explain, there was no misconduct. Hence, counsel was not ineffective by failing to object.

3. The Alleged Misconduct

a. Victim Impact Evidence

Factual Background

Defendant points to several statements by the prosecutor that focused on the impact of the rape on Tasha. Specifically, the prosecutor stated that, as she had promised, she had proved beyond a reasonable doubt that the defendant kidnapped and raped Tasha. She continued: You learned that the defendant . . . cruelly and forever changed the chemistry of Tashas thinking and stripped her of the audacity to live without fear. The prosecutor referred to testimony by Tashas mother that before the rape she was a quiet but typical young girl, but after she was raped, [h]er potential to thrive in the world was thwarted. She stopped going to school and had to be home schooled, would not leave the house alone, and had only recently been able to beg[i]n a consistent way of productive living. The prosecutor stated that testifying would be one of Tashas most courageous acts, based on the demeanor of Tasha in court, the tentative nature of the conversation while answering questions, her visibly painful hesitation in describing the invasion of her bodys privacy by this defendant, the way she moved in and out of the courtroom. This was tough for her. The prosecutor noted that [w]e dont know everything about Tasha. We dont know everything about her history. But what we do know up to now is that even though it was ten years ago, what happened on May 10th, 1996 will be a major part of her history. In the same vein, the prosecutor later reiterated: And the stress of that event on May 10th, 1996 permeated the lives of Tasha, her mother, and family for at least five to six years. As I said, Tasha wouldnt go to school. Can you imagine how traumatized Tasha must have been for Deborah [D.] to give in and take her daughter out of school.

The prosecutor also told the jury: Now Tasha was now inside of the room where no one could see her and she was terrified. Within moments of going inside of that room, he inflicted what would be [a] lifetime of emotional injury on Tasha.

In addition, defendant asserts that it was misconduct for the prosecutor to tell the jury: She is not the same kind of victim as Cheryl S., but what the two do have in common is stumbling into his spider web unprotected and initially unaware of the intensity of the evilness and cowardness [sic] of the man that they happened upon.

Discussion

Defendant acknowledges that the prosecutor was permitted to argue victim credibility based on Tashas experience. He contends that the prosecutor committed misconduct, however, by inviting the jury to depart from their duty to view the evidence objectively, and instead to view the case through the eyes of the victim. We disagree.

It is well settled that appeals to the sympathy or passions of the jury are inappropriate at the guilt phase of a criminal trial. (People v. Fields (1983) 35 Cal.3d 329, 362-363.) Here, however, in her statements regarding the emotional impact the rape had on Tasha, the prosecutor did not recount the evidence in a manner that invited the jurors to imagine themselves in Tashas place. (Cf. People v. Fields, supra, 35 Cal.3d at pp. 361, 362 [You are now naked and tied to the bed rails of the defendants bed. And it takes 10 or 15 minutes for you to die].)

More importantly, as defendant acknowledges, the statements served a permissible objective: commenting on Tashas credibility. Defendants defense was that Tasha consented to having sex with him. Her behavior and emotional state following the incident with defendant directly contradicted that defense, and was therefore an appropriate subject of comment by the prosecutor. The prosecutors statements served a valid, objectively relevant purpose, and were not gratuitously offered merely to play upon the jurors sympathy. It was not misconduct for the prosecutor to call that evidence to the jurors attention. (See, e.g., People v. Farnam (2002) 28 Cal.4th 107, 167 [no misconduct found where comments that victim was a widow, and that murder occurred on her birthday, were relevant for purposes other than eliciting juror sympathy].)

Furthermore, the prosecutors statement that Tasha and Cheryl had stumbl[ed] into defendants spider web unprotected and initially unaware of the intensity of the evilness and cowardness [sic] of the man, were not inappropriate. For example, in People v. Farnam, supra, the court found that [T]here was nothing inappropriate about the prosecutors use of epithets in describing defendants actions, or her characterization of the evidence as horrifying and more horrifying than your worst nightmare. Prosecutors are allowed a wide range of descriptive comment and the use of epithets which are reasonably warranted by the evidence [citation], as long as the comments are not inflammatory and principally aimed at arousing the passion or prejudice of the jury [citation]. Here, the prosecutors statements were no more than fair comment on what she anticipated the evidence would show. In light of the record, the comments were neither deceptive nor reprehensible. [Citation.] Nor were they so unfair as to deny defendant due process. [Citation.] (People v. Farnam, supra, 28 Cal.4th at p. 168.) We conclude that the prosecutors statement here was reasonably warranted by the evidence, and was not excessive or inflammatory.

b. Referring to Facts Not in Evidence

Factual Background

Defendant complains that the prosecutor argued a factual inference, that defendant had no job, when there was no evidence to support such an inference. The prosecutor stated: So who is left on the street at 9:00 oclock in the morning with Tasha? The defendant, the defendant who obviously had nothing positive or productive to do that morning. Certainly, he wasnt planning on going to a job on that day.

Discussion

Defendant argues that there was no evidence what defendant did after leaving the motel room, and no evidence whether he had a job. According to defendant, the prosecutor therefore used an argument not based on evidence before the jury to inferentially portray appellant as someone who existed solely as a predator, with no redeeming social value. He contends the prosecutor was calling upon the jurors generic fear that street people commit these types of crimes.

We agree that there was no evidence to support an inference that defendant was unemployed at the time of the rape. However, the prosecutors statement did not amount to an assertion that defendant was a street person with no redeeming social value. Rather, the prosecutors statement that defendant had nothing positive or productive to do was simply fair comment based on the evidence regarding defendants actions. Even were we to find that the statement constituted misconduct, we would conclude that the comment did not prejudice defendant. The evidence of defendants guilt was overwhelming, and we find no reasonable probability that the prosecutors assertion that defendant did not have a job affected the verdict. (People v. Watson, supra, 46 Cal.2d at p. 836; see People v. Fields, supra,35 Cal.3d at p. 363.)

c. Arguing Erroneous Propositions of Law

Factual Background

According to defendant, the prosecutor explained the states burden of proof to the jury as follows: Nothing has been presented to undermine the credibility of Tasha or the charges against this defendant. Now your guilty verdict is the signature that is needed to purchase the insurance that justice will be served. He deserves a guilty verdict. He earned a guilty verdict. Tasha deserves a guilty verdict. You have everything you need to sleep soundly every day for the rest of your life because your guilty verdict will have been the absolute and the only right thing to do in this case based on the evidence. And thats what we ask you to do. Convict him of having kidnapped Tasha to rape her, for raping her, for using a gun in the process of the kidnap and the rape. Thank you.

Discussion

We reject the assertion that the prosecutors statement was an explanation of the states burden of proof. The statement was simply an exhortation to the jury to render a verdict of guilt. There is nothing in the quoted language that would confuse a juror as to the required standard of proof, or even make a juror think the prosecutor was attempting to describe the reasonable doubt standard. The jury was properly instructed by the court as to the reasonable doubt standard, and nothing in the prosecutors statement purported to contradict the courts instruction. There was no misconduct.

disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

MANELLA, J.

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[1] All undesignated statutory references are to the Penal Code.

[2]People v. Wheeler (1978) 22 Cal.3d 258, 276-277.

[3]Batson v. Kentucky (1986) 476 U.S. 79, 89.