P. v. Thaing

Filed 8/23/07 P. v. Thaing CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Ya Thaing was found guilty at jury trial of three sex crimes against a child and was sentenced to 15 years to life in state prison. On appeal, he claims he was deprived of due process and a fair trial because of erroneous jury instructions, prosecutorial misconduct, and possible incompetence of counsel.

FACTS

Victim was 18 years old and living at home with her parents in San Jose at the time of defendants trial. During the summers between Victims ninth and 15th or 16th years, she spent between two weeks to a month each year visiting her adopted oldest sister A.T. and A.T.s husband, defendant, in their home in Stockton where they lived with their four children and defendants aunt,[1] who was called grandma.

Count 1, Continuous Sexual Abuse of a Child Under 14, Penal Code Section 288.5, Subdivision (a),[2] in Defendants Bedroom Between April 26, 1996, and August 30, 1998

In 1996, when Victim was nine years old, A.T. and her family lived in a two-story, two-bedroom house. According to A.T., defendant and she slept in the master bedroom upstairs with two of the children and with Victim when she visited. Grandma slept in the small room upstairs and the two small children slept in the big room downstairs.

Victim testified that five days a week, when defendant was on his way to work around 4:00 or 5:00 a.m., he began stopping by the downstairs room where she slept with her nieces and nephews on the floor. He would fondle her breasts and even if she turned away, defendant would continue touching her. Everyone else would be asleep, and if any of the children started moving, defendant would stop. He would also touch Victims breasts over her clothes while she was watching television when other family members were not around.

Count 2, Aggravated Sexual Assault of a Child Under 14 and 10 Years Younger Than the Defendant, Section 269, and its Lesser Included Offense, Lewd and Lascivious Acts on a Child Under 14, Section 288, Subdivision (a), Between September 1, 1998, and April 25, 2001

When Victim was 11, 12, and 13 years old, and in middle school, she slept in A.T.s and defendants bedroom on a sheet on the floor next to the bed of the youngest son. A.T. worked at night and had told Victim that whenever A.T. was at work, Victim was to take care of her son, the youngest son, sleep with him. On one occasion when everyone else was sleeping and A.T. was at work, defendant touched Victims breasts and took hold of her wrist. She got up and defendant led her to the bathroom, locked the door, and turned on the water. Victim was wearing a shirt, bra, underwear, and a floor-length, wrap-around home skirt similar to a sarong or a kimono. Defendant pulled Victims underwear down a little and she freed one foot. He pulled down his pants and underwear, picked up her thigh and put one foot on top of the toilet. He held her by the waist, and penetrated her vagina with his penis. Victim was scared and did not yell or try to stop him because the grandma was sleeping in the bedroom next to the bathroom and Victim was afraid that she might mistakenly believe that Victim was doing something to him, too. After the act of sexual intercourse, Victim went back to defendants room and lay down next to the youngest son because A.T. had told her to sleep with him.

Victim also remembered having sex with defendant in his bedroom more than two times . . . whenever the wife is at work, . . . I would sleep with the youngest son upstairs. They followed the usual scenario. Defendant would touch her breast, pull her by the hand, and she would lie down on the bed with him and he would lie next to her. She wasnt afraid of him but when it happened, like what he had done, when it happened Im afraid of him. He never said anything that scared her. She did not tell her sister what he had done while she was staying at the house because Victim was afraid her sister would think she was lying.

When Victim was 13 years old, and in the eighth grade, she went to defendants house in Stockton during Christmas break because defendant said A.T. wanted her to go there. At that time, defendant was working as a security guard in San Jose during the week and staying at Victims parents house. On that occasion, although she did not want to go with defendant, her mother, who did not know what defendant had done, told her to go, so she accompanied defendant to Stockton in his van.

On the way, defendant pulled off the road out of sight by a red bridge where people go fishing. He squeezed Victims breast. She was afraid he would hit her if she resisted because he was so big. He took her by the arm and pulled her gent[ly] to the back of the van and pushed a button on a seat which opened into a bed. Victim complied because she did not know what he would do to her if she resisted. In the back of the van, defendant placed her hand on his soft penis like jack him off. She stroked him a little and the penis got hard. Victim stopped stroking him and pulled her pants and underwear down to the ankles. She was scared because there was no one around. She already knew what he wanted; he gave her a sign. She lay on her back, defendant got on top of her and although she tried to push him away, he forced himself back. She did not tell him to stop because she was afraid he might slap her. Defendant withdrew his penis and ejaculated. Victim was tearing but not crying. She did not know why she deserved this treatment when she had done nothing bad to him. She put her pants back on and got into the passenger seat. They arrived at defendants house about 30 minutes later. Victim did not tell A.T. what happened because she did not think A.T. would believe her.

There were also incidents in Victims home in San Jose while defendant was staying there in her brothers room (the latter was living with a girlfriend). On one occasion, defendant came to Victims room at night while her parents were at a friends house. She was sleeping. He locked the door, got into her bed, and started touching her breasts and vagina. He then got on top of her and had intercourse with her.

On another occasion when her parents were at a friends house partying, he took her from her room where she was watching TV to his bedroom, fondled her, lay down on his bed, and forced her to have sex with him. She also testified that he did not have sex with her. He heard the front door open and it was her mom. He told her to go back to her room, closed his door and pretend [sic] hes sleeping, pretend [sic] like nothing happened.

Count 3, Lewd Acts on a Child Aged 14 or 15, Section 288, Subdivision (c)(1), April 26, 2002

At Victims 15th birthday party, held in the evening at her home in San Jose, defendant came into Victims room, locked the door, pushed her onto the bed, and squeezed her breast under her shirt. Someone knocked on the door; defendant left the bedroom through another door that led to the backyard.

While Victim was in the eighth grade, defendant called her from work every day and talked dirty to her. If she did not answer, he would keep calling. Before he had come to her moms house in August, he said, I hope no one is home so we can have sex in the shower. The next day, he called and said, Oh, your breasts got bigger.

Victim testified she did not yell or resist defendant because he was a lot stronger than she was and she was afraid he might hit her or doing something to her. He was 5 feet 7 inches tall and strong and she was five feet two. She had seen him hit (she also used the word spank) his children when he was mad at them. When defendant was not molesting her, he was friendly and nice toward her. He did not discipline her. She testified she was not afraid of him when his family was around, but she was afraid of him when she was alone with him. She continued visiting defendants house because she wanted to see her nieces and nephews and she thought defendant would stop molesting her.

In 2003, when Victim was 16 or 17 years old, about six months after her 21-year-old brother, D.s, funeral, Victim called her brother, S., known as John, and told him what defendant had done to her. She testified she told John because she hurt whenever she thought about what happened. She also admitted she was angry with defendant and had asked him how he dared to come to D.s funeral. She testified she did not blame him for D.s death but she was angry for what he had done to her. (Defendant testified that she did blame him for D.s death because defendant did not allow D. to stay in his house before he died.) She told defendant that she hated him.

John testified that Victim told him in some detail that defendant used to touch her private parts when she was sleeping and she described the incident in the van. John testified she sounded nervous, scared, and as if she were crying on the phone. John urged her to seek counseling and file a report. John had seen Victim with defendant and his family when his mother had parties and on special occasions. John had not noticed any tension between Victim and defendant before she filed the report, but they didnt look at each other or nothing. . . . When I saw, it looks pretty normal. Victim mostly stay[ed] in her room, maybe talk[ed] to the kids. The kids would go into her room. . . . When they come around, she kind of stick [sic] around her room area, . . . and come out to get something to eat and then she would go back in. John could not really tell if she was emotional when defendant was around.

Before Victim filed a report, defendant telephoned her to say that if she told the family or his wife, he would kidnap her and take her with him. Later, Victim told a counselor at school.

San Jose Police Detective Michael Wharton interviewed Victim at school. She described having sex with defendant in the van, the bathroom, and defendants bedroom. She described multiple incidents in the bedroom and defendants touching of her private parts and breasts. She said defendant asked her to jack him off in the van.

Victim agreed to make a pretext phone call to defendant from the police department. The recording was played for the jury. Victim was crying as she talked to defendant and complained that he had sex with her in the van and in the bedroom. Defendant asked her to just let it go and not let anything happen between the family. Victim asked him why he would have sex with a minor when he had a wife. Defendant said it was a mistake and he was sorry, so just let it go. He said, Oh, can you just let everything go, please? . . . I beg you. Okay? Can we agree? Lets do this between you and me, alright [sic]? When Victim expressed outrage that she was a little girl when he started having sex with her, defendant responded, [w]ell, its just your emotions. Victim asked why defendant had sex with her when she was younger. He said, I dont know. He admitted what he did was wrong and he made a mistake. He apologized and said he was sorry and felt bad.

Defense

A.T. testified that when Victim came to visit in the summertime, seven people stayed in their two-bedroom apartment. Victim would call and ask to be picked up for a visit and they would go to San Jose on holiday to get her. While A.T. was there, she never noticed anything unusual between defendant and Victim. He treated her the same way he treated his own children. She saw Victim push defendant, but not pinch him. It appeared to A.T. that Victim liked spending time with her children. A.T. verified that the family had a van with a sofa bed in it and that a red bridge was about 10 minutes from their home.

Grandma testified she lived with defendant and his family in Stockton. She slept in an upstairs room with a grandson although sometimes he slept downstairs with his mother. Victim slept with another granddaughter named [M.] in an upstairs bedroom. Grandma never talked to Victim and was not on friendly terms with her. She watched Victim all the time when she visited. She stated, I feel like shes a bad girl. She testified defendant liked Victim like his own daughter because she was the same age as his daughter. Sometimes Victim would follow defendant around the house and sometimes not. Grandma did not see Victim touch or push defendant, and she never saw him touch her or be alone with her. Victim was never upset or crying when she visited nor did she show a change in her emotional state. She just follow [sic] all the boys.

Defendants 17-year-old son, V.T., testified that Victim slept in the large bedroom with all the children when she came to visit, his grandma would sleep in the other bedroom, and his parents would sleep downstairs. Victim would sleep in the big bed with his sister and youngest brother, although sometimes she would sleep on the floor. The room was crowded. Sometimes when V.T. got up in the middle of the night, he would wake up other people. When V.T. was eight or nine, he normally went to bed around midnight or 1:00 a.m. and got up at 5:30 or 6:00 a.m. to watch his show . . . Rug rats, [sic] cartoons. He never saw defendant do anything sexually inappropriate to Victim and she never said she was afraid of him. He saw Victim joke with defendant, punch him, pinch him, and call him names. He never noticed a change in her behavior when she came to visit.

Defendants 15-year-old daughter, M.T.S., also testified that Victim did not appear afraid of defendant, was always playful with him, and that she never saw defendant touch Victim in a sexual manner. M.T.S. testified Victim slept next to her in the large bedroom. Sometimes they woke up at 4:00 in the morning, but it would vary depending on how late they went to bed the night before. M.T.S. and Victim were very close, and were always together. Defendant treated Victim like his own daughter. Victim was playful with defendant and never appeared to be afraid of him. M.T.S. never saw her father and Victim together in the early morning hours, and her parents never slept in an upstairs bedroom.

Defendant presented two character witnesses, V.H., who grew up with defendant, considered him his brother, and lived near him, and R.H., defendants second cousin. Both witnesses testified that they knew defendant well, saw him at Buddhist services and Cambodian social functions, and considered him honest.

William Van Cleave, the defense investigator, testified that he interviewed Victim twice. She told him that when defendant had sexual intercourse with her in her brothers room, he used a condom, and that when defendant made her have sexual intercourse with him, it was painful. Also, in the middle of having sex with her, defendant told her to be quiet, and she told him that she did not want him touching her or doing these things to her. She described an act of intercourse during which she told defendant it hurt and he said he was going to still force himself inside of her. Victim told Van Cleave that she was being blamed for breaking up the family.

Defendant testified that Victim sometimes called A.T. and asked to visit when she was alone and her parents were not home. He would take the whole family and they would go to pick her up. The first summer Victim stayed was when she was six or seven years old. She did not come every summer--defendant did not remember her being at his home in the summer of 1997 or from 2001 to 2004. When she did come, she would stay from four to six weeks. Sometimes she slept downstairs, but most of the time she slept on the floor in the big bedroom with the two big children and defendant also slept there with his wife on the bed.

Defendant treated her like one of his own children. She was friendly, respectful, and obedient. Victim was born prematurely, and defendant thought she appeared small for a nine-year-old. Defendant and his children and Victim played hide and go seek around the house and went out fishing. They did not engage in roughhousing or horseplay.

In 1999, Victim looked a little younger than her age, but otherwise normal. She just stick [sic] with my daughter, playing around the computer. She was not asked to help take care of defendants younger son. She slept both upstairs and downstairs, but always with his daughter and older son. She never slept alone with him. During that year, she also became more playful, pushing and pinching him. She pinched wherever she could reach and it hurt and made him mad. She would run and pinch him and then run back and sit on the couch. Defendants whole family saw her. Defendant never touched her breasts or vaginal area nor did he have any sexual contact with her.

In the year 2000, Victim had started to develop breasts and she became more aggressive in pushing and pinching him. Defendant again stated he never touched her breasts or vaginal area until one morning in June 2000, when he got up about 4:20 a.m. to go to work. His clothes were in the closet, and Victim, M.T.S., and V.T. were sleeping on the floor in front of it. Defendant could not step over them, so he tried to push Victim, who was closest to him, out of the way with his foot. She woke up and moved sideways, and defendant stepped over her and got his clothes. As he went toward the bathroom, Victim pinched his ankle. He pushed her hand away with his foot and continued into the bathroom.

He heard someone behind him and expected it to be A.T., who also got up early to go to work, but it was Victim. Somehow the door got closed, and Victim pushed him against the sink and began pinching his thigh, legs, and face. He tried to push her away but she would not stop. He put his hand on her breast and started to fondle it and she pulled her pants down. He got scared and pushed her back. She stopped pinching him but started stroking his neck, face, and head. He got even more scared and pushed her away, opened the door, and left the bathroom. He ran downstairs to the half-bath, washed his face, put his clothes on, warmed up his food, and went to work. Defendant felt bad about it but did not say anything about it to Victim.

In February 2001, when defendant was staying at Victims parents house on weekdays, he gave Victim a ride from San Jose to Stockton at Victims fathers request. Victim still kept pinching and pushing him when they were alone. After they drove past Tracy, Victim began pinching defendant on his face, arms and neck. He slapped her hands but she would not stop. He was swerving all over the road, so he pulled over and tried to push her off, but she would not stop. He put his hand on her breast and she stroked his face, but a sheriffs deputy drove by and defendant became scared. He started the van and drove off.

Defendant acknowledged that Victim accused him of sexual acts during the pretext call. He repeatedly testified that he did not deny her accusations on the phone because I didnt think about that, I couldnt think of any other answer, I didnt think of any other question--I mean answer, I didnt think of that, I didnt think of anything, specific answer, I couldnt think of any other answer, and I didnt think of it.

Defendant testified that Victims brother, D., died on April 8, 2003, and that Victim told him she held him responsible for D.s death and that she hated him. Before then, there had been no bad feelings between them.

Defendants first day of testimony ended with admissions of only touching Victims breast and nothing more. However, on his second day of testimony, after admitting sexual intercourse in the bathroom in June 2000, he stated he had been too ashamed and embarrassed the day before to testify to it in front of his family. He was admitting it then because it was the truth.

Defendant testified that Victim followed him into the bathroom and removed her own clothes and he put her foot on the toilet, and had sexual intercourse with her. He ejaculated in his pants and she went back to her room. Defendant testified that he believed Victim wanted to have sex with him and that she never said anything to suggest otherwise and that if she had said no, he would not have had sex with her. He testified that she consented to the intercourse in the bathroom.

Defendant admitted that something more happened in the van in February 2001. They had sex. It was a high top van, so defendant could walk between the seats to the back of the van. Victim followed him. She removed her own clothes and stroked his penis. He did not ask her to and she stopped on her own. She engaged in sexual intercourse with him and she stopped and got up before he ejaculated. She never said or did anything to suggest that she did not want to have sex with him, and he did not threaten her with physical violence. He had never harmed or disciplined her in the past. Defendant said he was not sexually attracted to Victim and had never touched her breasts or vaginal area for the purpose of sexual arousal.

In the summers between 1996 and 1998, when Victim visited, defendant would play with her just like he played with his own children. He denied touching either her breasts or vaginal area to arouse himself or to arouse her.

The parties stipulated that April 26, 2002, was a Friday. Defendant testified that he was in Stockton running his car detailing business and that he did not attend Victims 15th birthday party. On cross-examination, the prosecutor reminded defendant he testified he had an auto detailing business in 1996 and sold it in May 1998. Defendant explained that he started a second auto detailing business on May 7, 2001, and sold it in August 2002.

Defendant stated he did not decide ahead of time to have intercourse with Victim in the bathroom; it was just emotional. The event in the van was just emotional also. Her pinching and stroking caused him to be sexually aroused. She was never shy with him nor did she ever cry just because he looked at her.

Defendant was convicted of the charges as stated ante and was sentenced to 15 years to life in state prison on count 2 with a concurrent 14-year term calculated as the midterm of 12 years on count 1 and the two-year midterm on count 3. This appeal ensued.

ISSUES ON APPEAL

Defendant contends he was denied due process and a fair trial because (1) the trial court (a) erred in responding to the jurys question about consent and counsel was ineffective for failing to request further instruction on the meaning of consent; (b) failed to define menace for the jury, and (c) failed to instruct that if the jury had a reasonable doubt as to whether the defendant committed the greater offense as charged or a lesser included offense, it must convict only of the lesser offense in compliance with People v. Dewberry (1951) 51 Cal.2d 548. (2) Defendants due process and fair trial rights were also implicated by trial counsels failure to timely object to the prosecutors misconduct.

JURY INSTRUCTIONS

1. Consent

Defendant asserts that the conflicting instructions on consent--that it was a defense to count 2, aggravated sexual assault on a child based on forcible rape ( 269), and that it was not a defense for counts 3 and 4, lewd and lascivious acts on a child --were prejudicially inadequate and the apparent conflict should have been explained so that the concept that a 13-year-old child could consent to sexual intercourse was clear to the jury. When the jury was deliberating, it asked in regard to count 2 whether a 13-year-old can consent.[3] Defendant claims that further explanation of the conflict was required because the concept is counter-intuitive and was contrary to the instructions the jury received on all the other charges, namely, lewd conduct on a child. Furthermore, defense counsel should have asked for additional instructions and was ineffective in failing to do so.

The aggravated sexual assault charge in count 2 was based on the predicate offense of forcible rape. ( 261, subd. (a)(2) (section 261(a)(2)).) Defendant admitted two acts of sexual intercourse (in the bathroom and van) but claimed that Victim consented to them, namely, that she participated voluntarily and willingly and without force, violence, duress, menace, or fear of immediate and unlawful bodily injury to herself or others within the meaning of section 261(a)(2).[4]

The court instructed the jury pursuant to CALCRIM No. 1000,[5] which states, as is relevant here, that one of the elements of rape is [t]he female did not consent to the intercourse; that intercourse was accomplished by force and fear (see fn. 6, post); that [t]o consent, a female must act freely and voluntarily and know the nature of the act; that defendant is not guilty of rape if he actually and reasonably believed that the female consented to the intercourse; and that the People had the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the female consented.

As to counts 3, (lewd and lascivious acts on a child age 14 or 15 who was at least 10 years younger than defendant ( 288, subd. (c)(1))), and 4 (lewd and lascivious acts on a child under 14 years of age (id., subd. (a))) the court instructed that [i]t is not a defense that the child may have consented to the act.

Defendant argues that this was a cause of confusion as shown by the question sent out by the jury during deliberations which asked, The law refers to a woman giving consent. Can a 13 year old give consent at all by law? The court wrote back, Please refer to instruction #1000 on page 21. Consent as there defined refers to any female.

Defendant claims the answer was prejudicially inadequate, and that the court should have said, yes, a 13-year-old can give consent. He states an explanation of the apparent conflict in instructions was needed because [i]n the absence of a specific instruction, a reasonable juror would have concluded that the generic language in the instruction on rape, referring to a female or a woman, did not pertain to a 13-year-old child. Nothing in the instructions given to the jury made it clear that a 13-year-old child could consent to sexual intercourse. Defendant concludes that the court figuratively thr[e]w up its hands and t[old] the jury it c[ould] not help. (People v. Beardslee (1991) 53 Cal.3d 68, 97.)

The People counter that the court adequately answered the jurys question whether a 13-year-old can give consent under the law. A 13-year-old cannot give legal consent to sexual intercourse. (Pen. Code, 261.5 [unlawful sexual intercourse is an act of sexual intercourse with a minor; a minor is a person under 18 years of age].) . . . [The] defense was a claim of factual consent, not legal consent.

In a prosecution for rape in which consent is at issue, consent shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. ( 261.6.)

Before 1970, . . . a minor who voluntarily engaged in sexual intercourse with an adult was deemed unable to give legal consent to such an act, and actual consent was no defense to rape or related crimes. In People v. Verdegreen (1895) 106 Cal. 211, for example, we [the California Supreme Court] held that actual consent was not a defense to the crime of assault with intent to commit rape. Our opinion explained: It is the declared policy of our law, as expressed in [section 261], that any female under the age there fixed shall be incapable of consenting to the act of sexual intercourse; and that one committing the act with a girl within that age shall be guilty of rape, notwithstanding he obtain her actual consent. . . . [In] a case where under the law there can be no consent . . . the law implies incapacity to give consent, and this implication is conclusive. (Id. at pp. 214-215.) (People v. Tobias (2001) 25 Cal.4th 327, 339 (Tobias) (conc. opn. of George, C.J.).) When the Legislature adopted the crime of unlawful sexual intercourse with a person under age 18 ( 261.5), it necessarily acknowledged the obvious truism that minor females are fully capable of freely and voluntarily consenting to sexual relations. (Tobias, supra, 25 Cal.4th at p. 341 (conc. opn. of George, C.J.).)

In final arguments here, both counsel discussed consent with reference to Victims age during closing argument. The prosecutor stated, when deciding whether the act was accomplished by duress, consider all of the circumstances, including the childs age and relationship to the defendant. [] The analysis is totally different when we are talking about a kid as opposed to when we are talking about adults. And I just remind you, you met [Victim] when she was 18. Im talking about things that happened when she was 13 and she was younger, smaller, lighter, less knowledgeable, less sophisticated, and a child; and he was a man, twice her age, size, strength, and speed and in a position of trust.

Defense counsel commented that there are 13 year olds and there are 13 year olds . . . some girls that [are] far more advanced and some that [are] far more immature. And some that seem[] to be rather sexually aggressive and some that seem[] not to have any interest in sex whatsoever. He pointed out that the jury knew nothing about how Victim behaved at 13, and then launched into consent as it could be inferred from Victims testimony about her behavior (there were no threats, there was no force, . . . she didnt resist. She took off her own clothing. She put her own clothing back on. She went to the bathroom on her own volition, went to the back of the van on her own volition. . . . She stroked [defendants] penis on her own volition. She stopped on her own volition. [] They engaged in intercourse without saying no).

The jury began deliberating at 4:20 p.m., sent out its first question at 4:50 p.m., asking if Victim said on the stand that she was crying in the van during sex, and the second question about consent at 4:55 p.m. The jury recessed for the weekend at 4:59 p.m., returned to deliberations at 9:00 a.m. the next court day, listened to read back in answer to its first question from 9:04 to 9:05 a.m., sent out a note asking about a discrepancy between the count 3 verdict form and the information packet at 9:15 a.m., and announced it reached a verdict at 10:00 a.m.

During deliberations, if there be any disagreement between [jurors] as to the testimony, or if they desire to be informed on any point of law arising in the case, . . . the information required must be given. ( 1138.)

In reading the instructions given here, we see that the CALCRIM No. 1000 rape instruction referred to a or the female everywhere except in the statement, Intercourse is accomplished by fear if the woman is actually and reasonably afraid . . . . (Italics original.) The trial court read the instructions verbatim to the jury before it retired, and the written instructions were available to the jurors in the jury room. CALCRIM No. 1000 is the only source for the word woman. From the evidence of the jurys written questions to the court, it appears they gave a close reading to the documents provided by the court, quickly noting the discrepancy in the terminology used in the instructions (female and woman) and the count 3 verdict forms typographical error referring to a child under 14 when the form should have conformed to the information packets child under 14 or 15.

Consequently, the jurys reference to the law in its question (the law refers to a woman giving consent. Can a 13 year old . . . ?) must refer only to CALCRIM No. 1000 where the word woman is introduced. The trial courts answer referring the jurors back to CALCRIM No. 1000 and stating that Consent . . . refers to any female is directly on point in the tight frame of reference presented by the question.

Defendants concern whether the court adequately explained to the average lay-person unfamiliar with the intricacies of the law the counter-intuitive . . . concepts involved in the forcible rape of a child versus the childs incapacity to give legal consent to lewd acts on a child under 14 or 14 or 15 (see counts 2 and 4), is unfounded. The jury did not express confusion about a minors ability to give actual consent to sexual intercourse but inability to give legal consent to a differently-defined crime, lewd conduct with a child. Here, the court precisely answered the question asked related to a discrepancy in the terminology in a specific instruction on the elements of a particular crime. The court properly instructed the jury and responded precisely and completely to the question asked. There was no error. Counsel was not ineffective for failing to request further instructions on the concept of consent.

2. Menace

Defendant also asserts that count 2 must be reversed because the trial court failed to sua sponte define the term menace. He claims that menace has a particular legal meaning, which the trial court should have defined when it instructed that forcible rape is accomplished by force, . . . [or] menace. Defendant claims that the jurors could have had different understandings of the term and quotes a number of dictionary definitions which he says offer several different meanings of the term menace, such as a person whose actions, attitudes, or ideas are considered dangerous or harmful or an extremely annoying person, common concepts made popular by the comic strip character Dennis-the-Menace. He declares it highly unlikely the 12 members of [defendants] jury had the same common understanding of the definition of the term.

The rape statute defines menace to mean any threat, declaration, or act which shows an intention to inflict an injury upon another. ( 261, subd. (c).) Defendant states that common definitions include the statutory definition of the term, but also include a definition that falls short of covering what the statute requires (an extremely annoying person or an impending evil). That is precisely why the Legislature included the definition of the term menace in the statute.

When a word or phrase is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request. (People v. Estrada (1995) 11 Cal.4th 568, 574 (Estrada).) A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning. (Ibid.)

A brief check of dictionaries shows that the noun menace is commonly defined as a show of intention to inflict harm. (Merriam-Websters Collegiate Dict. (10th ed. 1999) p. 725; Websters New International Dict. (2d ed. Unabridged 1957) p. 1534; Merriam-Websters Online Dict. (http://www.m-w.com/cgi-bin/dictionary as of Jul. 26, 2007) menace.) If the jury has to decide if an act of sexual intercourse was accomplished against a persons will by menace, the jury is deciding whether defendant exhibited a show of intention to inflict harm. While, as defendant says in his brief, menace can also mean an impending evil and a troublesome or annoying person (defendant cites the American Heritage Dict. of the English Language (4th ed. 2000)), those definitions do not fit the context. Thus, it is highly unlikely that jurors, persons who understand and speak English, would think that the question to be decided was if defendant accomplished an act of sexual intercourse by use of a troublesome or annoying person or an impending evil.

Inasmuch as the statutory definition[] of . . . menace do[es] not differ significantly from the nonlegal, common meanings of [that] word[][.] [T]he trial court had no sua sponte duty to instruct the jury on the definition[] of . . . menace. (People v. Elam (2001) 91 Cal.App.4th 298, 307.) There was no error.

3. Dewberry Instruction on Counts 1 and 2

Defendant next complains that the trial court failed to instruct the jury, in accordance with Dewberry, that if they were convinced beyond a reasonable doubt that [defendant] committed a crime, but they had a reasonable doubt as to whether he committed the greater or lesser offense, they were required to convict [defendant] of only the lesser offense. Specifically, the court had a sua sponte duty to instruct that lewd and lascivious conduct ( 288, subd. (a)) was an uncharged lesser offense of both the continuous sexual conduct charged in count 1 and the aggravated sexual assault of a child charged in count 2. Defendant claims the failure to so instruct constituted prejudicial error requiring reversal.

The trial court instructed that for count 2, aggravated sexual assault, count 4, lewd act on a child under 14, was an alternative count to count 2 and that if the jury found defendant guilty of one of the charges, it could not find him guilty of the other. (CALCRIM No. 3516.)

The court stated that count 1 charged that defendant committed continuous sexual abuse; that the People presented evidence of more than one act to prove that defendant committed this offense and that the jury could not find the defendant guilty unless all agreed that the People proved that the defendant committed at least three or more of these acts but that the jury did not need to agree on which acts he committed; and that the offense of lewd and lascivious acts on a child under 14 is a lesser offense of continuous sexual abuse. (CALCRIM No. 1120.)

The instruction continued that the jury was given one verdict form for each offense and that it could consider these different offenses in whatever order it wished. The court stated it was going to explain how to complete the verdict forms using one order, but the jury could choose the order to use. As with all the charges in this case, to return a verdict of guilty or not guilty on an offense, the jurors must all agree on that decision. If they all agreed that the People had not proved that the defendant committed any of these offenses, then it must complete each verdict form stating that he is not guilty.

If the jurors all agreed that the People proved that the defendant was guilty of continuous sexual abuse, they were to complete the verdict form stating that the defendant was guilty of that offense. They were not to complete the other verdict form for the lesser offense. The jury could not find the defendant guilty of both continuous sexual abuse and the lesser offense of lewd and lascivious act upon a child under 14.

If the jurors all agreed that the defendant was not guilty of continuous sexual abuse, but agreed that the People proved that the defendant was guilty of lewd or lascivious act on a child under 14, it must first complete the verdict form stating that the defendant was not guilty of continuous sexual abuse then complete the verdict form stating that the defendant was guilty of lewd or lascivious act on a child under 14. The jury was instructed not to complete the verdict form stating that the defendant was guilty of lewd or lascivious act on a child under 14 unless it all agreed that the defendant was not guilty of continuous sexual abuse.

The court stated that the People had the burden of proving beyond a reasonable doubt that the defendant committed continuous sexual abuse rather than a lesser offense. If the People did not meet this burden, the jury had to find the defendant not guilty of continuous sexual abuse. (CALCRIM No. 3517.)

In addition, the court gave the reasonable doubt instruction (CALCRIM No. 220); CALCRIM No. 359, which stated, You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt; and CALCRIM No. 224, which stated in relevant part: If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent or mental state and another reasonable conclusion supports the finding that he did not, you must conclude that the required intent or mental state was not proved by the circumstantial evidence.

Dewberry, supra, 51 Cal.2d 548, was a murder case in which the trial court instructed the jury on the elements of murder and manslaughter, explained that there were two degrees of murder and that, if the jury decided defendant had committed murder but had a reasonable doubt as to the degree, they should give defendant the benefit of the doubt and find him guilty of second degree murder. [Citation.] Although the Dewberry jury also was instructed that if it had a reasonable doubt whether the killing was manslaughter or justifiable homicide, it was to acquit, the trial court refused a general defense instruction that would have told the jury that if it found the defendant was guilty of an offense included within the charge . . . , but entertain a reasonable doubt as to the degree of the crime of which he is guilty, it is your duty to convict him only of the lesser offense. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1262 (Musselwhite).)

Our Supreme Court reversed Dewberrys conviction of second degree murder because a criminal defendant is entitled to the benefit of a jurys reasonable doubt with respect to all crimes with lesser degrees or related or included offenses. [Citation.] The failure of the trial court to instruct on the effect of a reasonable doubt as between any of the included offenses, when it had instructed as to the effect of such doubt as between the two highest offenses, and as between the lowest offense and justifiable homicide, left the instructions with the clearly erroneous implication that the rule requiring a finding of guilty of the lesser offense applied only as between first and second degree and murder. (Musselwhite, supra, 17 Cal.4th at p. 1262.)

The jury was also instructed that where it could draw two opposing reasonable inferences regarding the defendants required intent or mental state, it must conclude that the required intent or mental state was not proved by the evidence. (CALCRIM No. 224.) (Italics added.)

Musselwhites case [was] different, (Musselwhite, supra, 17 Cal.4th at p. 1262) which we also conclude about the case here. In Musselwhite, the trial court did give the jury several generally applicable instructions governing its use of the reasonable doubt standard. All redounded to defendants benefit in the sense that each required the jury, where it had a reasonable doubt as to anyincluded or related offenses or degrees, to find defendant guilty of the lesser included or related offense or lesser degree, that is, to give defendant the benefit of any reasonable doubts it may have had. (Ibid.)

Defendants suggestion in his brief that the court should have given something like if the jury has determined that the defendant is guilty of a crime, but cannot determine whether to convict on the greater or the lesser offense, [it] must convict only of the lesser offense, was unnecessary in our case. The trial court clearly instructed that as to the alternative counts (counts 2 and 4) and the greater and lesser offenses (count 1), the jury could not convict defendant of both counts. Most importantly, the court made clear that the People had the burden of proving all the elements of the crime beyond a reasonable doubt (CALCRIM Nos. 220, 1123, 1000) and if the People had not proven each element of each crime to the level of proof, the jury was to return a not guilty verdict.

As for count 1, continuous sexual abuse of a child, unlike the murder charge in Dewberry, the jury did not have an array of lesser offenses to consider (in Dewberry, two degrees of murder, manslaughter, and justifiable homicide). The jury had only one lesser included offense to count 1 and, for that matter, one alternative charge (count 4) for the conduct alleged in count 2. The jury could consider the different offenses in any order it wished, but, as with all the charges in this case, to return a verdict of guilty or not guilty on an offense, all jurors had to agree on that decision.

Unlike Dewberrys jury, defendants jury was not instructed on the effect of reasonable doubt on some offenses and not on others; it was instructed that each element of each crime had to be proven beyond a reasonable doubt and that if the jury did not agree, it had to complete the not guilty form. This instruction addresses the question of how to choose between the greater and lesser offense. For example, the jury could not, as defendant feared, find him guilty of aggravated sexual assault even if it found that he had only accomplished consensual sexual intercourse with Victim. Under the instructions as given, if the jury did not find forcible rape, an element of aggravated sexual assault, it had to find defendant not guilty of aggravated sexual assault although it still had the duty to consider the alternative whether defendant was guilty of lewd acts on a child under 14. Similarly, if the jury could not agree, for example, that defendant committed three or more lewd acts with Victim as charged in count 1, then it had to find defendant not guilty of continuous sexual abuse but still had to decide if defendant was guilty of committing a lewd act on a child under 14 pursuant to section 288, subdivision (a). The instructions as given took the jury to the same analytical place that defendant wants to take them with his suggested instruction. The CALCRIM instructions were adequate; there was no instructional error.

ACQUITTAL ON COUNT 4

Next, defendant asserts that the judgment should be modified to reflect an acquittal on count 4 if this court does not reverse count 2. This court did not reverse count 2, and will not modify the judgment as requested because the jury did not acquit defendant of lewd and lascivious conduct on a child under 14 in count 4. The jury followed the trial courts instruction that if it convicted defendant of continuous sexual abuse, it should complete the verdict form showing that defendant was guilty of that offense, but that it should not complete any verdict form for the lesser offense because [y]ou cannot find the defendant guilty of both continuous sexual abuse and the lesser offense of lewd and lascivious act on a child under 14.

Once the jury convicted defendant of count 2, it did not consider count 4. The conviction on the greater charge did not imply an acquittal on the lesser charge. As the People put it, [o]n the contrary, the conviction of the greater charge implies a conviction of the lesser charge as well, but under the law a defendant cannot be convicted of both a greater offense and a necessarily included lesser offense. (People v. Pearson (1986) 42 Cal.3d 351, 355.)

PROSECUTORIAL MISCONDUCT

Finally, defendant contends that he was denied due process and a fair trial because trial counsel failed to timely object to the prosecutors misstating the law and erroneously arguing that it was impossible for [Victim] to consent to sexual intercourse with [defendant], in connection with the charge of aggravated sexual assault of a child. The prosecutor also elicited inadmissible evidence from Detective Michael Wharton that caused him to vouch for the truthfulness and persistence of people who are willing to make pretext telephone calls.

The prosecutors offending words came in rebuttal argument in response to defense counsels argument that there was no physical evidence of force like bleeding or semen stains; that Victim testified that there were no threats, force by defendant or resistance on her part; that she cooperated in both incidents of sexual intercourse; that there was no past behavior to suggest that she was in danger in any way and that she was not afraid of defendant; and that there was intercourse without saying no. Counsel stated defendant did not know that Victim did not consent and that the Victim did not let defendant know that she did not consent. She asked to go to defendants house and when she was in the same room with defendant, there was nothing to suggest to her relatives that she was afraid of defendant.

The portion of the argument appellate counsel cites is: Now [defense counsel] also says [that] [Victim] did not let the defendant know that she did not consent. First of all, she doesnt have to let him know. She has to be--she doesnt have to tell him outwardly. He can read the signs of her. And whats the first obvious sign. She is 13. She cant consent legally. I mean, how could she consent? Thats impossible. So lets just start with that.[6]

Defendant argues, [b]y telling the jury that it was legally impossible for 13-year-old [Victim] to consent, it followed, ipso facto, that the government either did not have to prove lack of consent or they proved it simply by establishing the uncontroverted fact that [Victim] was 13 years old at the time of the alleged acts. This is akin to unconstitutional presumption. The prosecutors erroneous argument effectively withdrew a critical element from the jurys consideration in violation of [defendants] rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. [] The Due Process Clause of the Fourteenth Amendment requires the prosecution to bear the burden of proving beyond a reasonable doubt every essential element of a crime. (In re Winship (1970) 397 U.S. 358.)

[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. (People v. Hill (1998) 17 Cal.4th 800, 829.) Consent is an issue in a prosecution for rape and the government must prove the victims nonconsent beyond a reasonable doubt along with all other elements of the corpus delicti. (People v. Key (1984) 153 Cal.App.3d 888, 895.) Lack of consent must be proved beyond a reasonable doubt even when the victim is a child. (People v. Young (1987) 190 Cal.App.3d 248, 257.)

The prosecutors argument, taken in context, does not withdraw a critical element from the jurys consideration or render the trial unfair. The argument presented by both sides was focused on whether Victims conduct manifested a lack of actual consent to the act of sexual intercourse. There was no issue whether Victim gave legal consent, and except for the prosecutors brief interjection that Victim could not consent legally, the thrust of the parties arguments was whether Victim did or did not manifest a lack of consent. There was no prosecutorial misconduct.

Defendants second complaint, that the prosecutor elicited inadmissible opinion testimony from Wharton that vouched for Victims credibility, was based on the italicized portion of the following direct examination of Wharton:

Q: Did you tell her before she got to the police department . . . what was going to happen there? [] A: Well, I explained to her . . . that I would like her to do the pretext call if she was willing. [] Q: Did you tell her why? [] A: Yes. [] Q: What did you say? [] A: I told her that in cases like this its often a very good tool and that suspects will often say things that will incriminate them when they dont know the call is being recorded and that the police are listening or involved. [] Q: Did you mention anything to her about the idea of the truth?[]A: I commonly tell the victims in my cases that the truth usually comes out during the pretext call because the suspect is unaware of whats going on. []Q: Why? . . . []A: Well, my training and experience has showed me that the victims that are willing to do the pretext call are often those that are most likely to see the prosecution all the way through to the end phase, and also its kind of--sometimes it can determine whether the victim is being deceptive or truthful with me.[]Q: Did you mean by their readily [sic] and willingness to engage in that pretext call? []A: Yes. []Q: What was [Victims] response?[]A:[Victim] was willing to do it without hesitation.

It is misconduct for a prosecutor to intentionally elicit inadmissible testimony (People v. Chatman (2006) 38 Cal.4th 344, 379-380) and the prosecutor has a duty to see that his or her witness volunteers no statement that would be inadmissible and especially [be] careful to guard against statements that would also be prejudicial. (People v. Schiers (1971) 19 Cal.App.3d 102, 113.) An officers opinion of the veracity of a witness is inadmissible. (People v. Sergill (1982) 138 Cal.App.3d 34 (Sergill).) In Sergill, two police officers were allowed to testify that in their opinion, the eight-year-old oral copulation victim was telling the truth when she reported that her uncle had sexually molested her. (Id. at pp. 37-38.) The reviewing court held that the opinion as to whether the witness was telling the truth was not admissible as testimony of the witnesss character for honesty or veracity (Evid. Code, 780, subd. (e)), nor as expert opinion testimony since the veracity of those who report crimes to the police is not a matter sufficiently beyond common experience to require the testimony of an expert. (Id., 801, subd. (a); Sergill, supra, 138 Cal.App.3d at pp. 39-40.) Whartons opinion as to the veracity of those who report crimes was not admissible as the opinion testimony of a lay witness (Evid. Code, 800), and it was irrelevant as not having a tendency in reason to prove or disprove a disputed fact that is of consequence to the action, namely, Victims credibility. (Id., 210, 780; Sergill, supra, 138 Cal.App.3d at p. 40.)

As we have stated, these officers neither knew the child, nor knew her reputation for truthfulness. [Citation.] Instead, their conclusions that she was telling the truth were based on their own self-proclaimed expertise in assessing victim veracity, but the record is devoid of any evidence to establish their qualifications in this regard. We conclude that the officers opinions on the childs truthfulness during their limited contacts with her did not have a reasonable tendency to prove or disprove her credibility and were therefore not relevant. (Sergill, supra, 138 Cal.App.3d at p. 40.)

Defendant states that [t]he obvious inference . . . from Whartons testimony is that because [Victim] readily agreed to place the call, it therefore follows that she is honest and truthful. Defense counsel did not object to this line or questioning or request the answers to be stricken and the jury admonished. Defendant claims that this constituted ineffective assistance of counsel.

The People answer that the prosecutor did not vouch for Victim by questioning Wharton as he did because he was not invoking his personal prestige, reputation, or depth of experience to bolster her credibility. Whartons testimony of Victims willingness to make the call was relevant to [Victims] credibility[] in the same way that a victims unwillingness to participate in a pretext call, after being told that the truth will come out, would have been relevant to the defense case.

Whartons quoted testimony was inadmissible. His training and experience on whether victims that are willing to do the pretext call . . . can determine whether the victim is being deceptive or truthful with me is inadmissible and irrelevant as stated above. (Sergill, supra, 138 Cal.App.3d at pp. 39-40.) Wharton was not an expert witness on whether the truth usually comes out during the pretext call because the suspect is unaware of whats going on. First, he might believe and hope that the suspect is unaware of what was going on, but he had no personal knowledge of the suspects state of mind and could not testify to it. Second, he might believe and hope that the statements made on the tape by the victim and the suspect would be the truth, but it is the fact finder, not the witnesses, who must draw the ultimate inferences from the evidence. (People v. Melton (1988) 44 Cal.3d 713, 714.)

Furthermore, Whartons belief that sometimes a victims readiness and willingness to make a pretext call can determine whether the victim is being deceptive or truthful with me was improper subject matter for an expert opinion because not based on a subject that is sufficiently beyond common experience that it would assist the trier of fact, and not based on matter that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his te