Filed 11/26/18 P. v. Adkins CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge.

Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Caleb Ryan Adkins’s sole contention on appeal is that the prosecutor committed misconduct by commenting on his failure to testify, in violation of Griffin v. California (1965) 380 U.S. 609 (Griffin). Adkins contends his convictions for forcible oral copulation and attempted forcible rape must be reversed. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

Adkins was charged in count one with forcible oral copulation, in violation of Penal Code[1] section 288a, subdivision (c)(2)(A); in count two with attempted forcible rape, in violation of sections 261, subdivision (a)(2) and 664; and in count three with first degree burglary, in violation of sections 459 and 460. Several enhancements were alleged.

The victim, Y.M., is Japanese and was an exchange student in the United States in 2014. Y.M. testified with the assistance of a Japanese language interpreter. She was attending classes at California State University Fresno (CSUF) in 2014. Y.M. attended classes for about one week before being sexually attacked, after which she moved back to Japan.

In late August 2014, Y.M. was walking back to her apartment after attending classes. As she walked, a male called out to her from behind. He said he was doing volunteer work helping children and asked to take her picture. Y.M. declined, but the male continued to follow her all the way home.

When she got to her apartment and opened the door with her key, the male tried to get inside the apartment. He grabbed the door and opened it, then went inside the apartment after her. The male asked for money and Y.M. responded that she was in the “exchange program, and it’s not my money, so I cannot give it.”

The male told her he wanted to take her picture in a bikini to make the children happy; she told him she did not want her picture taken. He told Y.M. that she was not being cooperative. When she declined to have her picture taken in a bikini, the male responded that his father “was an upper echelon of a police department” and asked if he should call his father.

Y.M. was scared and thought “everything” the man was saying was “lies.” Despite her refusal, the male said the picture “absolutely” had to be taken. He told her she could be photographed in her underwear; then told her to take off her brassiere, but that she could leave on her tank top. Y.M. was wearing jeans, underwear, and a white shirt with a tank top underneath.

The male asked her if he “should remove your clothes” and tried to touch her in the chest area. She told him to stop and took a step away from him. The male forced Y.M. to engage in oral copulation and he attempted to rape her. Y.M. was scared, “couldn’t do anything,” and was crying. Y.M. used tissues to wipe the inside of her mouth and she spit into the tissues.

When she hit the male, he threatened to call the police. Y.M. asked him not to call the police on her. She wrote, “Don’t call the police” on a slip of paper and had him sign the paper. After that, the male left and Y.M. showered. She threw up and washed out her mouth. Y.M. called her father. She then called a friend in San Diego. Someone notified the police.

About 9:51 p.m., Officer Ron Gaxiola of the CSUF police department arrived at Y.M.’s apartment after receiving a report of a sexual assault. Gaxiola could not understand everything Y.M. was saying because she did not speak English very well. Y.M. contacted a friend through a computer program and he served as an interpreter for her. Based on Y.M.’s description of what happened, Gaxiola called for a detective to take over the investigation.

Detective Joseph Pulido of the CSUF police department arrived at the apartment. Pulido requested an interpreter at the scene, and a professor from CSUF arrived to interpret. When Pulido interviewed Y.M. with the help of the translator, Y.M. was upset, emotional, and crying. Pulido collected evidence, including the note the male had signed.

On September 2, 2014, Y.M.’s father flew to the United States. On September 8, 2014, she flew back to Japan with her father.

The jeans Y.M. had been wearing were tested for seminal fluid using an acid phosphatase test; the tests were negative. Her shirt and tank top also tested negative. Twenty-two tissues were tested; acid phosphatase was found on one tissue. Further testing of that tissue disclosed the presence of semen and spermatozoa.

On November 24, 2015, Pulido took a DNA sample from Adkins. This DNA sample was compared with the DNA sample obtained from the tissue from Y.M.’s apartment. Based upon the results of the comparison, “there’s very strong evidence that these profiles came from the same person.”

Uncharged Act

Cynthia Woish testified that in September 2014, she was living in an apartment on San Pablo in Fresno. One night that month, Adkins knocked on her door around 8:00 or 9:00 p.m. She opened the door, thinking he might be one of her neighbors. Adkins stated he “had a bunch of random questions to ask as a school assignment.”

At one point he asked if her husband was home and Woish responded he would be home soon. There was a struggle and Adkins pushed into the apartment, shoving Woish inside. Woish did not give Adkins permission to enter her home. Adkins claimed he had a gun and hit Woish. Woish screamed in his ear. During a struggle, Adkins called Woish “a crazy bitch” and said, “his dad was a police officer.” Woish was able to push Adkins out of the apartment and shut the door. She called the police and subsequently identified Adkins as her attacker.

Defense

Adkins did not testify. He called Gaxiola to testify for the defense. Gaxiola testified he understood Y.M. to say that she let the man in and subsequently he asked to take sexy photographs of her. She did not want to and felt forced to perform oral sex on him.

Verdict and Sentence

On October 14, 2016, the jury found Adkins guilty of counts one and two and not guilty of count three. On November 15, 2016, Adkins was sentenced to a total term of eight years in prison.

Adkins filed a timely notice of appeal on November 23, 2016.

DISCUSSION

Adkins claims the prosecutor committed misconduct in closing argument. He bases his contention on this remark by the prosecutor: “So do we have that Matlock moment where the defendant says, yes, I was going to rape her and I meant to rape her and I was intending on raping her? No, we don’t.” [Italics omitted.] Adkins maintains this comment “inexorably highlights the fact that [he] did not testify.” He also claims the remark assumes that if he had testified, he would have admitted guilt.

1. No Prosecutorial Misconduct

“ ‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’ ” (People v. Nunez and Satele (2013) 57 Cal.4th 1, 31.) “A claim will not be deemed forfeited due to the failure to object and to request an admonition only when ‘an objection would have been futile or an admonition ineffective.’ ” (People v. Thomas (2012) 54 Cal.4th 908, 937.)

“When a defendant makes a timely objection to prosecutorial argument, the reviewing court must determine first whether misconduct has occurred, keeping in mind that ‘ “[t]he prosecution has broad discretion to state its views as to what the evidence shows and what inferences may be drawn therefrom” ’ [citation], and that the prosecutor ‘may “vigorously argue his case.” ’ ” (People v. Welch (1999) 20 Cal.4th 701, 752-753.) “When a claim of misconduct is based on the prosecutor’s comments before the jury, … ‘ “the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” ’ ” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305.) In reviewing the prosecutor’s comments, “we do not lightly infer that the prosecutor intended his remarks to have their most damaging meaning or that the jury drew that meaning rather than the less damaging one.” (People v. Howard (1992) 1 Cal.4th 1132, 1192.)

Standard of Review

In Griffin, “the United States Supreme Court held that the prosecution may not comment upon a defendant’s failure to testify in his or her own behalf. Its holding does not, however, extend to bar prosecution comments based upon the state of the evidence or upon the failure of the defense to introduce material evidence or to call anticipated witnesses. [Citations.] Nonetheless, … [the California Supreme Court has] held that a prosecutor may commit Griffin error if he or she argues to the jury that certain testimony or evidence is uncontradicted, if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand.” (People v. Bradford (1997) 15 Cal.4th 1229, 1339.)

“We evaluate claims of Griffin error by inquiring whether there is ‘a reasonable likelihood that any of the [prosecutor’s] comments could have been understood, within its context, to refer to defendant’s failure to testify.’ ” (People v. Sanchez (2014) 228 Cal.App.4th 1517, 1523; see People v. Clair (1992) 2 Cal.4th 629, 663.) As with any claim a prosecutor’s comments constituted misconduct, we “ ‘do not lightly infer’ ” the prosecutor intended his or her remarks “ ‘to have their most damaging meaning, or that the jury would draw that meaning from the other, less damaging interpretations available.’ ” (People v. Young (2005) 34 Cal.4th 1149, 1192.)

Background

During closing argument, when the prosecutor addressed the count two charge of attempted forcible rape, the prosecutor argued:

“So let’s talk about what is rape by force. Sexual intercourse with a woman that is not married to him. She did not consent to the intercourse. And he accomplished it by violence, force, violence, duress, menace, or fear of immediate and unlawful bodily injury [sic]. So we know that the defendant did not rape [Y.M.]. His penis did not go in her vagina. We know that. However, he attempted to do so. And this is how he attempted to do so: He had her pinned on a couch, laying on top of her, he starts by touching her breasts, licking or sucking on her breasts, causing her pain, and he tried to get her pants off. And she is struggling. She is trying to move. She said she can’t really move because he is on top of her. And she is trying to move her feet and her arms. So she resists. So that’s the direct but ineffective step. He tries to take off her pants. He had been hurting her.

“The direct but ineffective step means that it is not just that he thought about raping her, it is not that he intended on raping her, but that he took that further step. He took that step. And those were those steps, holding her down on the couch, licking and sucking her breasts and trying to take off her pants. But she resisted.

“Now, let’s talk about intent, that he intended to commit rape. Well, if you remember my story in jury selection about Johnny in the pool and circumstantial evidence, this is one of those situations where we proved our case by circumstantial evidence. Circumstantial evidence is not any less good. It’s not weak. It’s just what it says, it is circumstantial. It is the circumstances surrounding an event.

“So how do we know he intended on raping [Y.M.]? His actions, threatening to sue her, put her in jail. So that is how we know his intent was through force or fear. Laying on top of her so she couldn’t move. That is how we know what his intent was. Because, once again, he is using force and fear and is attempting to remove her pants.

“So do we have that Matlock moment where the defendant says, yes, I was going to rape her and I meant to rape her and I was intending on raping her? No, we don’t. But what we do have are we have the circumstances surrounding this event. And when you look at those, when you look at the totality of those circumstances and you look at what happened and the defendant’s actions and what went down with [Y.M.], then you’re going to know that’s exactly what he meant to do, exactly.” [Emphasis added.]

Claim of Griffin Error Forfeited

Adkins claims the prosecutor committed misconduct by commenting there was no testimony from him regarding his intentions. Specifically, Adkins bases his contention on this remark by the prosecutor: “So do we have that Matlock moment where the defendant says, yes, I was going to rape her and I meant to rape her and I was intending on raping her? No, we don’t.” Adkins maintains this comment “inexorably highlights the fact that [he] did not testify.” He also claims the remark assumes he would have admitted guilt if he had testified.

Adkins, however, did not object to this remark by the prosecutor in the trial court. If the defendant fails to object to Griffin error or seek an admonition, the error is waived. (People v. Turner (2004) 34 Cal.4th 406, 420.) Consequently, Adkins has forfeited any claim of Griffin error.

No Griffin Error

We evaluate claims of Griffin error by inquiring whether there is a reasonable likelihood that any of the challenged comments could have been understood to refer to Adkins’s failure to testify. (People v. Sanchez, supra, 228 Cal.App.4th at p. 1523.) As with any claim of prosecutorial misconduct, we do not infer the prosecutor intended her remarks to have their most damaging meaning. (People v. Young, supra, 34 Cal.4th at p. 1192.)

Applying the foregoing standards, we conclude the prosecutor did not commit Griffin error by any of these remarks. Her comments clearly were directed to the fact that intent in this case had to be inferred from the circumstantial evidence. After making the challenged remark, the prosecutor went on to state the jury had “the circumstances surrounding this event” and “the totality of those circumstances” from which to infer intent. The crime of attempted forcible rape is a specific intent crime; it requires proof the defendant formed the specific intent to commit the crime of rape and performed a direct but ineffectual act beyond mere preparation leading toward the commission of rape. (§ 21a; People v. Rundle (2008) 43 Cal.4th 76, 138; People v. Carpenter (1997) 15 Cal.4th 312, 387.) The jury was instructed that attempted forcible rape required specific intent, and that both direct and circumstantial evidence are acceptable to prove intent and mental state, before counsel gave closing arguments.

There are many instances where defense counsel is commenting on the state of the evidence, as the prosecutor here was, without committing Griffin error. (See, e.g., People v. Thomas, supra, 54 Cal.4th at p. 945 [“ ‘[n]ot one person came forward’ to say defendant ‘couldn’t have done it, he was with me’ ” not Griffin error; the prosecutor’s comments were framed in terms of failure to call someone other than the defendant who would testify defendant was with him or her]; People v. Castaneda (2011) 51 Cal.4th 1292, 1333 [the prosecutor’s review of evidence, followed by comment it was not contradicted by any other evidence, was not comment on the defendant’s failure to testify]; People v. Brady (2010) 50 Cal.4th 547, 565-566 [the prosecutor did not commit Griffin error by arguing the defendant “ ‘did not appear to refute the issue of identity,’ ” then noting that other than questioning the witnesses presented, there was no evidence presented to suggest someone other than the defendant committed crime; if the defendant had evidence relevant to identity of victim’s killer, the defendant could have presented it in numerous ways without testifying]; People v. Taylor (2010) 48 Cal.4th 574, 633-634 [no Griffin error where the prosecutor asked who took witness stand and gave reasonable explanation concerning the defendant’s presence at victim’s home; in context, the prosecutor’s query was proper comment on evidence against the defendant, not implicit suggestion defendant should or could have provided nonfelonious reason for entry into victim’s home]; People v. Cornwell (2005) 37 Cal.4th 50, 90-91 [the prosecutor’s comments that defense did not produce evidence to explain why the car the defendant had borrowed was parked near scene of homicide at or near time of crime, constituted proper comment on failure of the defense to call witnesses who might logically explain vehicle’s presence], disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Bradford, supra, 15 Cal.4th at pp. 1339-1340 [no Griffin error where the prosecutor’s comments amounted to notation of absence of evidence contradicting that produced by prosecution and failure of the defense to introduce material evidence or alibi witnesses; the prosecutor did not allude to lack of refutation or denial by sole remaining witness (the defendant), but rather to lack of evidence, which could have been presented in form of testimony from someone other than the defendant]; People v. Medina (1995) 11 Cal.4th 694, 755-756 [the prosecutor argued several times that defense counsel failed to explain certain evidence; in context, remarks were fair comment on state of evidence].)

Moreover, even if the prosecutor’s remarks could be viewed as having violated Griffin, most indirect Griffin error is harmless. (People v. Vargas (1973) 9 Cal.3d 470, 478-481.) Any indirect Griffin error here was harmless. In addition to being instructed that attempted forcible rape required specific intent and that circumstantial evidence was acceptable to prove intent, the trial court instructed the jury that “before you may rely on circumstantial evidence to conclude that the defendant had the required intent, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent.” The jury also was instructed prior to closing argument that:

“A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.”

We presume the jury understood and correctly applied these instructions. (People v. Holt (1997) 15 Cal.4th 619, 677.)

2. No Ineffective Assistance of Counsel

Adkins contends counsel rendered ineffective assistance because he failed to object in the trial court to the challenged comment. “The burden of proving ineffective assistance of counsel is on the defendant.” (People v. Babbitt (1988) 45 Cal.3d 660, 707.) To meet this burden, “a defendant must show both that his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney and that counsel’s deficient performance resulted in prejudice to defendant[.]” (People v. Lewis (2001) 25 Cal.4th 610, 674.) Prejudice is shown when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (In re Sixto (1989) 48 Cal.3d 1247, 1257.) Since the failure of either prong of an ineffective assistance of counsel claim is fatal to establishing the claim, we need not address both prongs if we conclude appellant cannot prevail on one of them. (People v. Cox (1991) 53 Cal.3d 618, 656, disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) “In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” (Strickland v. Washington (1984) 466 U.S. 668, 697.)

Our analysis of Adkins’s claim of prosecutorial misconduct in the form of alleged Griffin error is that the claim was forfeited, the remark did not constitute misconduct, and in any event the remark was harmless. We conclude, therefore, that Adkins has failed to show either deficient performance or prejudice.

DISPOSITION

The judgment is affirmed.