P. v. Davis

Filed 1/9/07  P. v. Davis CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEALS from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge.  Affirmed.  Cross-appeal dismissed. 

            A jury found Antoine Maurice Davis guilty of:  (i)  forcible rape while acting in concert (Pen. Code,^[1] §§  261, subd.  (a)(2), 264.1) (count  1); (ii)  oral copulation by force or fear (§  288a, subd.  (c)(2)) (count  2); (iii)  kidnapping for robbery (§  209, subd.  (b)(1)) (count  3); (iv)  two counts of robbery (§  211) (counts  4 and 5); and (v)  conspiracy to commit a crime (§  182, subd.  (a)(1)) (count  6).  The jury also made true findings that in committing the offenses in counts  1 and 2, Davis kidnapped the victim and by doing so substantially increased the victim's risk of harm (§  667.61, subd.  (d)), and that in committing each of the offenses Davis personally used a firearm (§  12022.53, subd.  (b)).  The trial court sentenced Davis to 25 years to life in state prison.

            Davis appeals, contending that his convictions must be reversed because:  (i)  there was insufficient evidence to support the jury's conclusion that he kidnapped the victim; (ii)  the trial court erred in failing to instruct the jury sua sponte on reasonable and good faith belief in consent; (iii)  the trial court erred in refusing to sever Davis's trial from that of his codefendant; and (iv)  his trial counsel provided ineffective assistance of counsel by failing to request applicable jury instructions and failing to object to damaging, irrelevant evidence.  As discussed below, our evaluation of these claims reveals them to be without merit and consequently we affirm the judgment.^[2]

FACTS

            On June 23, 2003, Jamila  K. (Jamila) was visiting her friend April  J. (April) who was stationed in San Diego while serving in the United States Coast Guard.  At approximately 11:00  p.m. that evening, after seeing a movie at the Horton Plaza movie theater in downtown San Diego, Jamila and April were walking to a trolley station when a red BMW with two men inside drove up alongside them.  The driver, Michael Anthony Shephard, asked Jamila and April if they wanted to " hang out."   Davis was in the front passenger seat of the car.  The women declined.

            Shephard drove the BMW around a corner.  When Jamila and April walked around the same corner, Davis got out of the car and positioned himself in their path.  Davis pulled a gun out and said, " This is a robbery."   Davis then ordered the two women to move about 15 feet to a more secluded area and to " empty [their] pockets and throw [their] ID's out on the ground."   Jamila gave Davis $40 and threw her ID on the ground.  When April did not produce any money, Davis indicated he would have to search her and acted " like he didn't believe [she] didn't have any money in [her] pockets."   In response April told Davis, " If you want, I'll take you to the ATM [automated teller machine], but I don't have any money."   April indicated they could " go to the ATM, which was right across the street" ; instead, Davis told her to get her ATM card and " get in the car."   As they headed to the car, Davis told Jamila, who was sitting on the ground, " Don't get up.  Don't call the police, because we're going to bring her back." ^[3] 

            April attempted to get into the back seat of the car, but was told to sit in the passenger seat next to Shephard.  Davis told Shephard to drive to an ATM and Shephard began driving.  April noticed Shephard was " driving by plenty of ATM's," and she repeatedly asked, " Where are we going?  There's an ATM right there[.]" -- " [W]hy [a]ren't we stopping?"   Davis and Shephard did not answer.  Shephard finally stopped at an alley behind a bank.  Shephard asked Davis if he had searched April; Davis said he had not.  The two then took April's backpack, and Shephard checked her pockets and waistband.  They left April's backpack, which contained her and Jamila's cell phones, in the back seat.

            When Shephard finally stopped near an ATM, Davis got out of the car with April and told her, " Don't try and run" ; " As long as you don't try to run, nothing's going to happen."  April approached the nearby ATM's with Davis pacing behind her, smoking.  (Photographs obtained from the bank surveillance camera show Davis pacing and April at the ATM's.)  The ATM's at the bank were out of service, and April and Davis returned to the car; Shephard then suggested another bank. 

            During the drive to the next ATM, Shephard asked April about her sexual history, and then " told [her] that [Davis] wanted [her] to perform oral sex."   Shephard asked if she was willing to comply, and April said, " I'll do whatever I need to do so you guys take me back."   Shephard then parked the car on a street near a bank.  With the car parked, April was ordered into the back seat, but when she started to get out of the car to comply, she was told to " [c]limb over the seat."   April did so, and Davis pulled his pants down, exposing his penis.  April said, " Look, I don't know what I'm doing" ; Shephard gave her instructions, telling her to use her lips and put her mouth on Davis's penis.  At the same time, Shephard got out of the front seat and moved behind April, pulled her pants down and put his penis in her vagina.  After a short while, Davis said, " Forget this.  Let's just get the money."

            Shephard then pulled the car forward a short distance and told April to get out and go to the ATM; April was instructed " not to talk to anybody and to come right back."   April withdrew $20  -- all that was available in her account -- and gave it and her ATM card to the men.  They returned the ATM card.  Shephard then drove to a freeway entrance and Davis told April she " needed to get out [because] they weren't taking [her] back" to Jamila.  After being dropped off, April told the residents of a nearby house that she had been raped, and the residents called 911.

            After the police arrived, they picked up Jamila and took both victims to the ATM locations where April had been taken; at one of the locations, April pointed out a cigarette butt left by Davis on the ground.  The police then drove April to a hospital where she was examined by a nurse.  The nurse testified that April had abrasions in her vaginal area that were consistent with her description of the sexual assault.  The nurse did not find any semen in her examination.

            On June 26 -- three days after the robbery -- after monitoring calls from Jamila and April's stolen cell phones to a Lise Avenue address (Davis's address), the police located and stopped a red BMW in the vicinity of the address.  Shephard and Davis were in the car.  Police obtained a DNA sample from Davis, and when the sample was later tested it matched the DNA on the cigarette butt identified on the night of the robbery.  The police also found Davis in possession of Jamila's cell phone.

DISCUSSION

I

The Trial Court Did Not Abuse Its Discretion in Denying Davis's Motion for

Severance, and the Resulting Joint Trial Was Not Unfair

            Davis contends that his convictions must be reversed because the trial court abused its discretion in denying his pretrial motion to sever his trial from the trial of codefendant Shephard, and that the resulting joint trial resulted in a deprivation of his constitutional right to a fair trial.  We evaluate this contention below, after setting forth the pertinent facts and applicable law.

A.        Facts Relating to Severance

            Immediately prior to trial, Shephard's counsel, John Lee, informed the trial court that based on the prosecutor's agreement not to introduce evidence of the codefendants' respective statements to police in a joint trial, he had agreed not to move for severance.^[4]  The prosecutor acknowledged the agreement, stating that the government's " case-in-chief .  .  . will be reduced by a quantum of evidence" in exchange for the judicial economy of a joint trial.  Davis's counsel, Pam Lacher, did not take an immediate position on severance, stating only that she " may ask for severance" depending on the trial court's ruling on the admissibility of evidence of prior instances where Shephard had been accused of sex crimes.  Lacher stated:  " If the court were to say that all of [Shephard's] prior sex crimes would be off limits in a joint trial, I think I'd be prepared to sever."   Lacher argued this evidence was important to a potential defense that Shephard, who according to Lacher had a " propensity" for sex crimes, had instigated and committed the sex offenses without assistance from Davis.

            Lacher then presented a proffer of the evidence she sought to admit -- a rape accusation for which Shephard was never charged and a misdemeanor sex offense charge that ultimately resulted in an acquittal.  Lacher conceded that she had no admissible evidence to support the prior sex crime accusations, stating that she could only introduce the evidence by " ask[ing] Mr. Shephard" about it were he to testify.  The trial court ruled the proffered evidence inadmissible on relevance grounds, stating there was an insufficient showing that Shephard had, in fact, engaged in the conduct he was accused of, and even if there had been such a showing, the conduct of which Shephard was accused had little, if any, similarity to the instant offense.  In response to the court's ruling, Lacher sought a severance on the grounds that a joint trial unfairly precluded her from introducing evidence of the prior sex crime accusations against Shephard.^[5]  The court denied the motion to sever.

            After the court's ruling, the trial went forward with the prosecution presenting its case against both defendants to a single jury.  After the prosecution rested, Shephard took the stand in his own defense.  Shephard testified that he had only met Davis on a few occasions and was giving him a ride on the night in question while he was out getting food.  Shephard said Davis smelled funny, and when Shephard asked about the smell, Davis told him it was PCP.

            Shephard confirmed that he had a brief conversation with April and Jamila as he drove by them, and testified he pulled the car over when Davis told him that Jamila had made a motion suggesting she wanted to buy marijuana.  Davis left the car and later came back accompanied by April.  Davis told him they had to go to an ATM.  When Shephard drove to a nearby ATM, Davis told him not to stop because there were too many police around.  Davis told him, " [d]on't make me use the gun," at which point, Shephard claimed, he first noticed that Davis had a gun in his hand.  Shephard then followed Davis's requests to drive to other ATM's because he was afraid if he did not comply, Davis would shoot him or April.

            Shephard testified that the events then unfolded essentially as April had testified, but he denied having engaged in any sex acts with her, and emphasized that he only cooperated with Davis because he was afraid of getting shot.  Shephard said his fear of Davis was strengthened by his belief that Davis was a gang member.^[6]

            During Shephard's testimony, Lacher sought reconsideration of the trial court's ruling regarding the admissibility of the prior sex crime accusations against Shephard.  Lacher argued the evidence should be admissible to impeach Shephard's testimony that he had not participated in the sexual offenses and had only participated in the robbery under duress.  Lacher, in a lengthy colloquy with the court, made the following request:  " Firstly, I'm asking that the court allow me to ask him about the [prior sex crime accusations].  Secondly, if the court denies that, I guess I'll make a motion for mistrial."   Lacher also requested " a continuance to defend against Mr. Shephard," by obtaining an expert to analyze Davis's oral swab results for PCP, " or a mistrial based on all of that."   The court indicated that it would grant both of Lacher's requests; the court stated Lacher could go into the sex crime accusations on cross-examination if she " ask[ed] the right questions," ^[7] and that " as far as the PCP, .  .  . I am inclined to allow you to explore that." ^[8]  Lacher did not move for a mistrial.

B.        Applicable Law

            The Legislature has created a statutory preference for persons who are jointly charged with a crime to be tried jointly, and our Supreme Court has stated that the "   'classic case'  " for a joint trial is where multiple defendants are " charged with having committed 'common crimes involving common events and victims.'  "   (People v. Hardy (1992) 2 Cal.4th 86, 168 (Hardy); §  1098.)  Nevertheless, a trial court has the discretion to order separate trials in such a circumstance where certain factors warrant it, such as "   '  " an incriminating confession"   '  " by one of the defendants, "   '  " prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony."   '  "   (Hardy, at p.  167.)

            When a trial court's severance determination is challenged on appeal, the reviewing court engages in two levels of review.  The first level is to evaluate whether the trial court abused its discretion in denying the motion to sever, based on the information in front of the court at the time the severance motion was made.  (People v. Greenberger (1997) 58 Cal.App.4th 298, 343; People v. Cummings (1993) 4 Cal.4th 1233, 1286 (Cummings) [" Granting separate trials is a matter committed to the sound discretion of the trial court" ].)  A second level of review, which commences if the trial court is deemed not to have abused its discretion, evaluates whether, due to subsequent developments in the course of the trial, the failure to sever resulted in " a gross unfairness [that] deprive[d] the defendant of a fair trial or due process of law."   (People v. Turner (1984) 37 Cal.3d 302, 313 (Turner); Greenberger, at p.  343.)

C.        The Trial Court Did Not Abuse Its Discretion, and Davis's Right to a Fair Trial Was Not Violated

            Applying the legal principles noted above, we conclude that reversal is not required because the trial court did not abuse its discretion in denying Davis's request for severance and an unfair trial did not result from the trial court's refusal to sever.

            At the time that Davis initially requested a severance, the primary ground asserted was that a joint trial presented an obstacle to the introduction of the prior sex crime accusations against Shephard.  Arguably, Davis's counsel also supported her request for severance by speculating that there was a possibility that Shephard might testify in favor of Davis in a separate trial or against Davis in a joint trial.

            Given the arguments made to the trial court, we cannot say that " on the facts as they appeared at the time the court ruled on the motion," the trial court abused its discretion in denying severance.  (Hardy, supra, 2 Cal.4th at p.  167.)  Neither the speculation regarding Shephard's possible testimony nor the obstacle to the introduction of Shephard's prior sex crime accusations presented by a joint trial required severance as a matter of law.  There was no proffer before the trial court as to Shephard's likely testimony, if any, and the factual proffer regarding the admissibility of the sex crime accusations against Shephard indicated that the evidence would not be inadmissible in either joint or separate trials.  (Id. at p.  168 [severance not required even if there is " some evidence before the trial court that defendants would present different and possibly conflicting defenses" ].)  In addition, the prosecution had assured the trial court that at a joint trial it would not introduce incriminatory statements of the codefendants -- one of the primary justifications for separate trials in this context.  (See Turner, supra, 37 Cal.3d at p.  312 [" Potential justification for separate trials was dissipated when the prosecution assured the court that it did not intend to use extrajudicial confessions [or] statements .  .  . in which one defendant incriminated the other" ].)

            Davis alternatively contends that even if the trial court did not abuse its discretion in denying a severance, the joint trial that resulted was unfair and requires reversal. 

            Davis's primary contention that his trial was unfair is that Shephard's defense implicated Davis in the offenses, creating a situation where the codefendants' respective defenses were " mutually antagonistic," forcing Davis to defend against a second " de facto prosecutor[]."   While Davis is correct that the existence of antagonistic defenses is a factor that favors severance, " no denial of a fair trial results from the mere fact that two defendants who are jointly tried have antagonistic defenses and one defendant gives testimony that is damaging to the other and thus helpful to the prosecution."   (Turner, supra, 37 Cal.3d at p.  313, overruled on another ground in People v. Anderson (1987) 43 Cal.3d 1104, 1149; Cummings, supra, 4 Cal.4th at p.  1287 [" That defendants have inconsistent defenses and may attempt to shift responsibility to each other does not compel severance of their trials" ]; People v. Boyde (1988) 46 Cal.3d 212, 232 [" Although several California decisions have stated that the existence of conflicting defenses may compel severance of codefendants' trials, none has found an abuse of discretion or reversed a conviction on this basis" ].)  In fact, our Supreme Court has repeatedly ruled, in circumstances indistinguishable from those presented here, that the relatively common circumstance of a defendant attempting to exonerate himself by casting blame on a codefendant does not, in itself, create the kind of "   'gross unfairness'  " that will require reversal.  (Id. at p.  233 [reversal not warranted where codefendant in a joint trial testified that he participated in robbery, kidnapping and murder of store clerk only because he was under duress]; Cummings, at p.  1287 [reversal not warranted where codefendants defending against murder charge presented evidence that the other was the shooter where it was undisputed that each defendant was involved in the incident, " and the prosecution had offered evidence sufficient to support verdicts convicting both defendants" ]; see also People v. Simms (1970) 10 Cal.App.3d 299, 305, 317 [no gross unfairness where codefendant testified in joint trial that defendant had committed the crimes but he had not participated].)  Thus, controlling precedent requires rejection of Davis's contention that because Shephard ultimately presented a defense that implicated Davis, reversal is required.

            Davis also supports his argument that the joint trial was unfair by highlighting certain evidence he contends would not have been admissible in a separate trial, specifically Shephard's references to Davis's purported gang affiliation and drug use, which Davis claims " place[d] [him] in an extremely negative light."   The record demonstrates, however, that evidence regarding gang affiliation and drug use was not a product of the joint trial.  While Shephard referenced Davis's drug use and gang affiliation in his testimony, drug and gang evidence was first admitted in the prosecution's case, without objection, before Shephard testified and was subsequently relied on by Davis to support his defense.^[9]  Consequently, it does not appear that the introduction of drug and gang evidence in Shephard's testimony, which the jury was instructed to " view[] with caution," is the type of " gross unfairness" resulting from a joint trial that would warrant reversal.

            Davis also suggests that unfairness occurred because by virtue of the joint trial, he became associated with the evidence that Shephard previously had been accused of sex crimes.  We cannot countenance this claim for two reasons.  First, it was Davis who introduced the evidence he claims created the unfairness, and a defendant cannot complain on appeal about the admission of evidence he himself introduced.  (People v. Visciotti (1992) 2 Cal.4th 1, 72.)  Second, Davis argued to the trial court that severance should be granted specifically for the purpose of allowing him to offer the evidence of the prior sex crime accusations in a separate trial.  It would make an absurdity of the judicial process for Davis to be able to argue for severance in the trial court for the purpose of admitting certain evidence, and then to claim on appeal that he was prejudiced by that same evidence in a joint trial.  (People v. Pijal (1973) 33 Cal.App.3d 682, 697 [defendant " cannot mislead the court .  .  . by seeming to take a position on issues [at trial] and then disputing or repudiating the same on appeal" ].) 

            Citing People v. Chambers (1964) 231 Cal.App.2d 23, Davis also contends that his trial was unfair because the prosecution's " weak case" against him was combined with a strong one against Shephard, resulting in his being found guilty by association.  Chambers is distinguishable.  The Court of Appeal in Chambers reversed a conviction due to the danger that the defendant was convicted of " [g]uilt by association," where " more than half of the total testimony offered at the trial" consisted of testimony about prior similar offenses that solely related to the codefendant.  (Id. at pp.  28, 27.)  Here by contrast, there is no comparable likelihood that Davis was convicted of guilt by association.  The evidence that solely applied to Shephard -- the sex crime accusations -- was a very small portion of the testimony at trial and, contrary to Davis's contention, the record does not suggest that there was a " weak case" against Davis and a strong one against Shephard.  Rather, the case against Davis was significantly stronger than that against Shephard.  The victims testified that Davis (not Shephard) had a gun, and that Davis initiated the criminal offenses, while Shephard waited in the car.  Further, there was abundant physical evidence linking Davis to the crime -- e.g., the victim's cell phone found in Davis's pocket, the cell phone calls from that cell phone to Davis's address, Davis's DNA on a cigarette butt identified by the victim, and Davis's photograph on bank surveillance videotape -- while there was no such physical evidence with respect to Shephard.

            Finally, we do not believe that the fact that Shephard's counsel informed the jury that both defendants were in custody -- a separate factor that Davis relies on for his argument that the joint trial was unfair -- warrants reversal.^[10]  Informing the jurors of the custody status of the defendants in voir dire to elicit their assurance that it would not influence their deliberations was a reasonable tactical decision given the circumstances of this case.  While the tactical decision was apparently not shared by Davis's counsel, it is not the type of gross unfairness that would warrant a new trial in these circumstances.

            In sum, we conclude that the trial court did not abuse its discretion in denying Davis's pretrial severance motion, and we are not persuaded that the failure of the trial court to sever the trial resulted in " gross unfairness" such that Davis was deprived " of a fair trial or due process of law."   (Turner, supra, 37 Cal.3d at p.  313.)

II

Substantial Evidence Supports the Jury's Kidnapping Verdict

            Davis next contends that there was insufficient evidence for the jury to conclude that he kidnapped April because there was no " compelled movement" but rather " [April] volunteered to accompany [Davis] and take him to an ATM where she could obtain more money for him."   Davis supports this contention by arguing that after the initial robbery, April led the way back to the BMW without being physically forced to do so, never asked to be let out of the vehicle, and did not see Davis brandish the gun after " the one initial display."   We reject Davis's contention because the jury's verdict was supported by substantial evidence.

            Our role in reviewing a challenge to the sufficiency of evidence is a limited one.  " [W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence  -- that is, evidence that is reasonable, credible and of solid value  -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."   (People v. Snow (2003) 30 Cal.4th 43, 66 (Snow).)  Reversal is not warranted " unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'  "   (People v. Bolin (1998) 18 Cal.4th 297, 331.)

            In performing our review of the record, we are further limited by the fact that it "   '  " is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends."   '  "   (People v. Smith (2005) 37 Cal.4th 733, 739.)  " [I]t is not within our province to reweigh the evidence or redetermine issues of credibility."   (People v. Martinez (2003) 113 Cal.App.4th 400, 412.)  So, even the " uncorroborated testimony of a single witness is sufficient to sustain a conviction unless the testimony is physically impossible or inherently improbable."   (People v. Scott (1978) 21 Cal.3d 284, 296.)

            Applying the above legal standards, we conclude that, viewing " the whole record in the light most favorable to the judgment below," there was sufficient evidence for the jury to conclude that Davis kidnapped April -- i.e., that Davis compelled April to move a substantial distance, without her consent, by instilling in her a reasonable apprehension of harm.^[11]  (See Snow, supra, 30 Cal.4th at p.  66.)  We reach this conclusion on three separate grounds.

            First, the victims' testimony supported a reasonable conclusion that April was compelled, and did not volunteer, to accompany Davis to an ATM.  Jamila and April testified that after threatening them with a gun, forcing them to move to a more secluded location,^[12] and taking Jamila's money and identification, Davis appeared " pissed off" that April did not have any money, indicated disbelief and threatened to search her.  April testified that this behavior instilled in her an apprehension of harm, causing her to say, " If you want, I'll take you to the ATM, but I don't have any money."   A rational jury could have concluded on this evidence that April's apprehension of harm was reasonable, and consequently her suggestion to take Davis to an ATM was not voluntary, but compelled.  (People v. Perez (1973) 9 Cal.3d 651, 659 ["   '  " Consent induced by fear is no consent at all"   '  " ].)^[13]  This conclusion was supported not only by April and Jamila's live testimony, but Jamila's recorded 911 call in which she stated that Shephard and Davis " took my girlfriend to go the ATM" and " I don't know if [Davis] is going to shoot her."   (Italics added.)

            Second, even if the evidence required a conclusion that April's suggestion to go to an ATM was a voluntary one, her testimony would still support a rational conclusion that she only got into the car under compulsion -- and was thus kidnapped when Davis told her to get in the car.  April testified that she suggested going to " the ATM" that was " right across the street," but instead Davis told her to get her ATM card and " get in the car."  As April explained, " It was my idea to take them to the ATM.  But he [Davis] told me to get in the car."

            Third, there was substantial evidence to support a reasonable conclusion that even if April suggested going to an ATM and got in the car " voluntarily," Davis later prevented her from leaving the car -- a separate basis for a kidnapping conviction.  April testified that as soon as they started driving she noticed they were " driving by plenty of ATM's" and repeatedly asked, " Where are we going?  There's an ATM right there[.]" -- " [W]hy [a]ren't we stopping?"   April testified that Davis and Shephard did not answer, and that throughout the ordeal, Davis " reiterated plenty of times" :  " Don't try and run" ; " As long as you don't try to run, nothing's going to happen" ; " You better not try to run."   Given this testimony, the jury could have concluded that April's accompaniment of Davis and Shephard, even if initially voluntary, became a kidnapping when she was compelled through a reasonable apprehension of harm not to leave.

            In sum, April's testimony provided sufficient evidence for the jury to reasonably conclude that Davis committed the offense of kidnapping.  April's testimony supported a rational conclusion that Davis, by creating " a reasonable apprehension of harm," caused her to move a substantial distance through " unlawful compulsion" without her consent.  (See CALJIC No.  9.54.)

III

The Trial Court Did Not Err by Failing to Sua Sponte Instruct on

Good Faith Belief in Consent

            Davis contends that the trial court erred by failing to sua sponte instruct the jury that a reasonable and good faith belief that a victim has consented is a defense to the crimes of kidnapping and rape/oral copulation.  We disagree that such an instruction was required because there was no substantial evidence to support it.

            The defendant's belief that a victim consented can be a defense to a charge of kidnapping or rape.  (People v. Mayberry (1975) 15 Cal.3d 143, 158.)  This defense, often referred to as a Mayberry defense, " has two components, one subjective, and one objective."   (People v. Williams (1992) 4 Cal.4th 354, 360 (Williams).)  For the subjective component, the defendant must demonstrate that he " honestly and in good faith, albeit mistakenly, believed that the victim consented" ; and for the objective component, the defendant must show that his " mistake regarding consent was reasonable under the circumstances."   (Id. at pp.  360-361.)  An instruction supporting a Mayberry defense is only required if there is " substantial evidence supporting each feature of the defense."   (People v. Stitely (2005) 35 Cal.4th 514, 554.)  In addition, the defense is not available if the " equivocal conduct on the part of the victim [which the defendant relies on to establish consent] was the product of 'force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.'  "   (Williams, at p.  364.)^[14]

            In the instant case, an instruction on the Mayberry defense was not required because there was no substantial evidence to support either its subjective or objective component.  First, there was no substantial evidence that Davis " honestly and in good faith" believed that April consented to the kidnapping or the sexual assaults.  There was no direct evidence presented at trial that Davis believed April consented, and the only testimony that permitted an inference as to Davis's belief (the testimony of victims, and to a lesser extent, the corroborating testimony of Shephard) supports the conclusion that Davis believed April did not consent.  With respect to the kidnapping, April testified that Davis repeatedly emphasized that she better not try to escape -- telling her not to try to talk to anyone, and repeatedly stating, " You better not try to run.  You better not try to run."  Along these same lines, as April got into the car, Davis warned Jamila, " Don't get up" and " Don't call the police."   (Italics added.)  These statements  -- the only substantial evidence even arguably probative of Davis's state of mind  -- are irreconcilable with a rational jury conclusion that Davis believed April consented to the kidnapping.

            Similarly, with respect to the sexual offenses, the only testimony that shed light on Davis's belief as to whether April consented was April's testimony that, after being accosted at gunpoint, ordered into the car, and asked whether she would orally copulate Davis, she responded she would " do whatever I need to do so you guys take me back."  Further illuminating Davis's perception of whether April was a voluntary participant, April testified that at various points during her ordeal, she was told to " stop all that crying" and " be quiet" ; and that she " kept telling them, 'Please, don't kill me.'  "   Given this evidence -- the only evidence available from which to draw a conclusion about Davis's state of mind -- a reasonable jury could not have concluded that Davis " honestly and in good faith" believed that April consented.  (Williams, supra, 4 Cal.4th at pp.  360-361.)

            Second, there was no substantial evidence to support a conclusion on the objective component of the Mayberry defense that Davis's " mistake regarding consent was reasonable under the circumstances."   (Williams, supra, 4 Cal.4th at p.  361.)  Given the undisputed testimony at trial -- that April never met Davis and Shephard before the night of the offenses and was robbed and forced to abandon her friend Jamila in the middle of the night on the street -- it would not have been reasonable for Davis to believe that:  (i)  April consented of her own free will to being driven to various ATM's for Davis to extract money from her account; or (ii)  April's statement that she would do " whatever I need to do so you guys take me back" constituted valid consent to engage in sex acts.  (Ibid. [" regardless of how strongly a defendant may subjectively believe a person has consented  .  .  .  , that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction" ].)  Consequently no Mayberry instruction was required.

IV

Davis Fails to Establish that He Received Ineffective Assistance of Counsel

            Davis contends that his counsel was ineffective because she failed to request three jury instructions and failed to object to certain evidence.  We evaluate these claims below, after setting forth the applicable standard of review.

A.        Standard of Review

            To obtain relief on the ground of ineffective assistance of counsel, a defendant has the burden of establishing both counsel's deficiency and resulting prejudice, i.e.:  (i)  that "   'counsel's representation fell below an objective standard of reasonableness .  .  . under prevailing professional norms'  " ; and (ii)  "   'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'  "   (In re Fields (1990) 51 Cal.3d 1063, 1069, 1070, quoting Strickland v. Washington (1984) 466 U.S. 668, 688, 693-694.)  In evaluating a claim of ineffective assistance of counsel, we must indulge a " strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" (Strickland, at p.  689); accordingly, " a mere failure to object to evidence or argument seldom establishes counsel's incompetence."   (People v. Ghent (1987) 43 Cal.3d 739, 772.)

            When a claim of ineffective assistance of counsel is raised on direct appeal, reversal is permitted "   '  " only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission."   '  "   (People v. Lucas (1995) 12 Cal.4th 415, 437, 445, alteration in original.)  If the " record does not demonstrate there could be no rational tactical reason for [an] omission," the claim fails.  (Id. at p.  442; People v. Anderson (2001) 25 Cal.4th 543, 569 [" When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation" ].)

B.        The Appellate Record Does Not Establish that Davis's Counsel Was Ineffective for Failing to Request Jury Instructions or Object to Evidence

            Davis contends that his convictions must be reversed because his trial counsel was ineffective for failing to request instructions regarding a good faith belief in consent and voluntary intoxication and for failing to object to various evidence.  Because the appellate record does not establish that Davis's counsel could have had no rational tactical reason for her actions, we reject the contention.

            A potential tactical reason for Davis's trial counsel's failure to request the jury instructions identified on appeal (CALJIC Nos.  9.58, 10.65 & 4.21) was that the instructions were inconsistent with the defense theory of the case.  Davis's primary defense theory was that the victims' testimony was largely fabricated and Davis had not engaged in any crime, apart from perhaps a marijuana sale.^[15]  Consequently, Lacher could have reasonably concluded not to request the instructions because they implied that Davis did, in fact, rob and rape April (but had an excuse for doing so), which was inconsistent with the defense that the victims fabricated their testimony.  (People v. Rodrigues (1994) 8 Cal.4th 1060, 1140, fn.  44 [rejecting claim of ineffective assistance of counsel for failing to request instruction because " [c]ounsel's omission was consistent with the defense strategy .  .  . and thus appears to have resulted from an informed tactical choice within the range of reasonable competence" ]; People v. Wader (1993) 5 Cal.4th 610, 643 [rejecting claim of ineffective assistance of counsel for failing to request voluntary intoxication instruction because " [a]n instruction on voluntary intoxication as negating specific intent would have been inconsistent with defendant's theory of the case" ].)

            The appellate record also does not establish that Lacher had no reasonable tactical reason for failing to object to the drug and gang evidence now highlighted on appeal.  As noted above, Lacher relied on evidence of Davis's possession of marijuana for her primary defense argument -- that Davis was involved in a drug deal, not a kidnapping and rape -- and utilized a portion of the gang-related testimony to make a subsidiary argument that Davis had been recently injured in a gang-related shooting and was carrying a cane (not a gun) at the time of the offense.  To the extent any of the drug/gang evidence did not assist in this argument, Lacher may have decided against objecting because she did not want to risk a ruling that precluded her from relying on the related drug/gang evidence that was helpful, or to avoid highlighting the unhelpful evidence for the jury.  (In re Seaton (2004) 34 Cal.4th 193, 200, fn.  3 [" Attorneys often choose not to object for reasons that have no bearing on their competence as counsel" ].) 

            In sum, trial counsel's omissions now highlighted by Davis on appeal are not omissions for which "   'there simply could be no satisfactory explanation.'  "   (People v. Carter (2005) 36 Cal.4th 1114, 1189.)  Rather, the omissions could have been supported by reasonable tactical choices and thus do not support reversal on direct appeal, but are "   'more appropriately raised,'  " if at all, "   'in a petition for writ of habeas corpus.'  "   (Ibid.)^[16]

DISPOSITION

            The judgment is affirmed.  The cross-appeal, filed by the district attorney and subsequently abandoned, is dismissed.

IRION, J.

WE CONCUR:

                       HALLER, Acting P. J.

                                         AARON, J.

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^[1]           All statutory references are to the Penal Code unless otherwise indicated.

^[2]           The district attorney initially cross-appealed, contending that the trial court was required to sentence Davis to 35 years to life in prison, rather than 25 years to life, based on the jury's findings under the " One Strike" sentencing law.  (§§  667.61, 12022.53, subd.  (b).)  We invited further briefing regarding the cross-appeal in light of a significant variance between the language of the sentencing special circumstance that the district attorney was relying on to trigger an increased sentence and the applicable jury finding.  (See Pen. Code, §  667.61, subd.  (d)(2); Gov. Code, §  68081.)  In response to our invitation for briefing, the district attorney abandoned its cross-appeal.  (Letter dated Dec.  7, 2006, to Justice Judith McConnell from Stephen E. Carr, Deputy District Attorney, pursuant to Cal. Rules of Court, former rule  30.3(a) (now rule 8.316).)

^[3]           Jamila remained where she was for about 45 minutes and then went to a restaurant and called 911.  In the 911 call, Jamila stated:  " Some guys.  They robbed us.  And they had me sit.  And they took my girlfriend to go to the ATM and they told me to stay there.  And I don't know if I should go back because if they're not there I don't know if he is going to shoot her."

^[4]           (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 43 (Coffman) [noting " the rule of Bruton v. United States (1968) 391 U.S. 123 and its progeny .  .  . provides that if the extrajudicial statement of a nontestifying codefendant is to be introduced at a joint trial, either the statement must be redacted to avoid implicating the defendant or severance must be granted" ].)

^[5]           In the lengthy colloquy on severance and other pretrial issues, Lacher also brought the court's attention to a letter Shephard had sent to the district attorney's office stating he would be willing to testify; as the court noted, the letter was ambiguous about whether Shephard was offering to testify on behalf of or against Davis.  Finally, Lacher raised her own client's statement to police as a factor implicating severance, but agreed that this factor was moot because the statement would not be coming in regardless of a purported Miranda [v. Arizona (1996) 384 U.S. 436] violation based on the agreement of the prosecutor not to introduce it in a joint trial.  This statement -- according to a proffer of the prosecutor -- that the sex acts did happen, but were Shephard's " idea" and Davis only participated " for a matter of a few seconds," was presumably a factor that diminished Lacher's desire for severance because it would potentially be admissible in a separate, but not a joint, trial.  (Coffman, supra, 34 Cal.4th at p.  43.)

^[6]           The jury was instructed that Shephard's testimony, as the testimony of an accomplice that tended to incriminate a codefendant, " should be viewed with caution."   (CALJIC No. 3.18.)

^[7]           In an earlier opinion considering Shephard's appeal of his convictions, a panel of this Court ruled that the trial court's admission of evidence of prior accusations of sex crimes required reversal, and remanded the case against Shephard for a new trial.  (See People v. Shephard (May 22, 2006, D046147) [nonpub.].)

^[8]           Lacher ultimately determined that a continuance was not needed because any evidence of PCP on the oral swab would no longer be detectable.

^[9]           The primary theory of the case presented by Davis's counsel was that the incident was " a marijuana deal," not a robbery.  To support this contention, Lacher attempted to elicit evidence connecting Davis with drugs, such as a glass pipe with residue found at his house.  Davis's counsel also suggested that the victims might have mistaken Davis's cane for a gun on the night of the robbery, and to support this argument she elicited evidence that Davis had recently been shot in a gang-related shooting and, as a result, walked with a cane when the robbery took place.

^[10]         During voir dire, Shephard's counsel stated that the jurors had " probably figured out by now that Mr. Shephard and Mr. Davis are not on bond," and asked if there were any jurors who would consider it as evidence of their guilt.

^[11]         The jury was instructed, without objection, that kidnapping for robbery is " the unlawful compulsion of another person without that person's consent and because of a reasonable apprehension of harm, to move for a substantial distance where such movement is not merely incidental to the commission of the robbery and where the movement substantially increases the risk of harm to the person moved, over and above that necessarily present in the crime of robbery."   (See CALJIC No. 9.54.)

^[12]         We need not decide whether this movement was itself sufficient to uphold the conviction.  (See People v. Shadden (2001) 93 Cal.App.4th 164, 169 [testimony that defendant moved victim nine feet to a more secluded area constituted sufficient evidence to support jury verdict for kidnapping].)

^[13]         In fact, while arguing another point on appeal, Davis concedes that " the evidence presented at trial permitted the jury to infer [April]'s actions throughout the encounter were the product of fear created by appellant's initial firearm display."

^[14]         While the jury was not instructed regarding the Mayberry defense, it was, of course, instructed that " there is no kidnapping" if the person who was allegedly kidnapped consented (CALJIC No. 9.56), and that conviction of rape and oral copulation required proof that the sex act took place against the will of the victim.

^[15]         At trial, Lacher attempted to counteract the damning testimony of the victims and powerful corroborating physical evidence by arguing that the victims' testimony was at least partially fabricated.  Through cross-examination and argument, Lacher presented an alternative theory of the case to that presented by the prosecution -- i.e., that Davis was engaged in a marijuana deal, not a robbery.  In support of this theory, Lacher elicited from Shephard that Davis had marijuana with him, accused April of volunteering to go to the ATM because she was getting money for " pot," and argued that a " plausible explanation[]" for the evidence presented was that April accompanied Davis to various ATM's to facilitate her purchase of marijuana.  Lacher buttressed this argument by developing a motive for the victims to have fabricated their story, eliciting from April that her curfew at the Coast Guard barracks was 11:00  p.m., and suggesting that she initially concocted the story to explain her failure to abide by curfew.  Lacher argued the victims' lies might have " start[ed] out as something minor, innocent, [and] then [became] embellished," and emphasized the prosecution's failure to find any physical evidence linking Davis to the rape as support for her alternative theory.

^[16]         As we have concluded that Davis has failed to establish any error in the trial proceedings, we, of course, deny his final claim that the cumulative effect of error at trial requires reversal.