P. v. Aristondo

Filed 3/2/07 P. v. Aristondo CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Jose Giovani Aristondo, defendant below, seeks reversal of his rape conviction or, at the least, a reduction of his sentence from six to three years. We affirm his conviction and sentence.

BACKGROUND

The facts relevant to this appeal are as follows. On February 24, 2004, an information was filed in San Mateo County Superior Court charging defendant with rape of a victim prevented from resisting by an intoxicating substance in violation of Pen. Code 261, subd. (a)(3).[1] The prosecution later dismissed a rape by force count. A codefendant, Nilson A., was charged with the same count of rape of the same victim, as well as seven other sex-related offenses, four of which the prosecution later dismissed.

W. D.s Testimony

At trial, W.D., 19 years old, testified that she worked as a hostess at Chevys in Stonestown Mall in San Francisco, where Nilson A. also worked as an assistant kitchen manager. W.D. had dated Nilsons cousin, Nelson A., for a few months, but they had broken up. In January 2004, Nilson called her, claiming to be with Nelson, and asked to talk with her because he was depressed. W.D. agreed to meet with him, and Nilson and defendant picked her up. W.D. had spoken to defendant, who was Nelsons nephew, on the telephone a few times before, but had never met him.

W.D., Nilson, and defendant drank some beers in the car, then purchased some rum and decided to watch a movie at Nilsons apartment. W.D. went with Nilson inside his apartment and, because a roommate was in the living room, into his bedroom; defendant stayed outside talking on the phone. W.D. had the equivalent of about four shots of rum with Nilson, who told her about the problems causing his depression as W.D. rubbed his back in consolation. Nilson kissed her, and she kissed him back.

Defendant came into the bedroom. W.D. told the men she did not want to drink any more because she blacked out if she drank too much. Someone held a glass and gave W.D. the equivalent of two more shots of rum. W.D. blacked out. She next remembered Nilson on top of her and defendant touching her. Nilson took her pants off and touched her vagina. W.D. asked him to stop, then blacked out again. After she came to, she saw and felt Nilson put his penis into her vagina. W.D. told him no and tried to push him off, but she was too drunk to move. She passed out again. She awoke to find defendant on top of her with his penis in her vagina. She asked him to stop, but was too drunk to fight him off. She passed out again.

W.D. felt sick and went to the bathroom. As she was throwing up, Nilson sodomized her and put his penis in her mouth. W.D. blacked out again and woke up the next morning in bed with Nilson. Nilson took her home. M.L., a Chevys supervisor, learning what happened, persuaded W.D. to go to the hospital.

Other Relevant Testimony

A nurse testified that she examined W.D. at the hospital and found a laceration on her posterior fourchette, an area below the vagina. The nurse testified that this location is the most likely site of injury from sexual assault and that she had seen it almost exclusively as a result of such an assault, or because of childbirth, in the course of over 2,000 pelvic examinations. The nurse also took swabs from W.D.s vagina and anus, including external and internal vaginal areas.

A criminalist with the Santa Clara County Crime Laboratory testified that she conducted presumptive testing for the presence of semen. She took cuttings from an external vaginal vulvar swab and a rectal swab for a DNA extraction procedure and, having found sperm, did not check any other swab. Her analysis after extracting DNA from the semen and comparing it to DNA samples from defendant and Nilson was that both were possible contributors.

M.L. also testified about what W.D. told her the morning after the incident when she came to work. Among other things, M.L. testified that W.D. told her that Nilson had sex with her, but that she saw [defendants] face on top of her, but she didnt know if he had sexual intercourse with her as well.

Nilsons roommate, J.M., testified that he saw Nilson and a woman go into Nilsons bedroom. Later, he heard the sound of a woman enjoying sex. The woman emerged from the bedroom to go to the bathroom and appeared drunk. Nilson accompanied her. J.M. did not hear any sounds coming from the bathroom, but after the two returned to the bedroom, he again heard the sounds of a woman enjoying sex. The woman later went to the bathroom again, where she was joined by defendant, and J.M. heard the sound that he was enjoying sex.

Nilson, but not defendant, testified at trial. Nilson said that W.D. had not resisted him when he had sex with her in the bedroom, and that she appeared to enjoy it. After he returned to the bedroom from the bathroom, he found W.D. having sex with defendant. Later, he heard sounds of people enjoying sex coming from the bathroom. Since he was in the bedroom and his roommate was in the living room, he concluded defendant was in the bathroom with W.D.

The jury found defendant and Nilson guilty of rape of a victim prevented from resisting by an intoxicating substance. The jury found Nilson not guilty of the remaining counts, which included charges of sodomy and oral copulation. The court later denied probation and sentenced defendant to the middle term of six years in prison. It subsequently sentenced Nilson to three years in prison.

Defendant filed a timely notice of appeal.

DISCUSSION

I. The Trial Courts Denial of Defendants Motion for a Mistrial

Defendant first contends that the trial court committed prejudicial error when it denied his motion for a mistrial, arguing that the prosecutors reference during a cross-examination to his being in jail violated his rights to due process, a fair trial, and equal protection under the Fifth, Sixth, and Fourteenth Amendments of the federal Constitution and their California counterparts. This argument lacks merit.

The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment. (Estelle v. Williams (1976) 425 U.S. 501, 503.) Thus courts must be alert to factors that may undermine the fairness of the fact-finding process. (Ibid.) One such factor is the constant reminder of the accuseds custodial status, which may affect a jurors judgment. (Id at p. 504-505.) Such a reminder also violates equal protection because it operates usually against only those who cannot post bail prior to trial. (Id. at p. 505; see also People v. Taylor (1982) 31 Cal.3d 488, 493-494.)

A trial court should grant a mistrial only when a partys chances of receiving a fair trial have been irreparably damaged . . . . (People v. Bolden (2002) 29 Cal.4th 515, 555.) Thus, the prejudice from asserted error must be incurable by admonition or instruction. (People v. Hines (1997) 15 Cal.4th 997, 1038.) A trial courts ruling on a motion for mistrial is reviewed for abuse of discretion. (People v. Valdez(2004) 32 Cal.4th 73, 128.)

At trial, Nilson called Nelson as a witness. The prosecutor cross-examined and, in an apparent effort to show witness bias, engaged in the following exchange:

Q: And since this incident, have you seen Jose?

A: Yes, I have.

Q: Where did you see him?

THE COURT: Meaning [defendant]?

Q: Meaning [defendant]. You saw him, right?

A: Yes.

Q: Have you seen him once?

A: More than once.

Q: More than twice?

A: More than twice.

Q: More than three times?

A: More than three times.

Q: You visited him a total of 21 times in the county jail, correct?

A: II dont know how many times I visit [sic] him.

[DEFENDANTS COUNSEL]: Your honor, may the jury be instructed to disregard the custodial status.

THE COURT: Yes. Yeah. The custodial status of either defendant is not an issue and is irrelevant to any issue in this case. And the jurys instructed to disregard that.

Q: You started visiting―you started seeing Nilson, excuse me, [defendant] in August of 2004; is that correct?

A: Correct. I dont remember, but I have been visiting him since hes been in here.

The next day, defendants counsel moved for a mistrial. He argued that the prosecutors reference to Nilsons 21 meetings with defendant in jail was unduly prejudicial because it pointed out defendants custodial status. The court asked why its admonition to disregard either defendants custodial status was not sufficient to dispel any prejudice, to which counsel replied, Because the fact that Nilson [A.] is obviously out of custody means that a jury will speculate that they are keeping my client . . . in custody because for some reason hes the more serious perpetrator. Defendants counsel also requested that the court, should it deny his motion, instruct the prosecutor not to refer to Nelsons 21 meetings with defendant so as not to remind the jury of defendants custodial status.

The court denied defendants motion because of its belief that the admonition that the court delivered promptly and emphatically was sufficient to cure the problem. It granted defendants request that the prosecutor be barred from referring in closing argument to the 21 meetings. At defendants request, the court also instructed the jury at the end of the trial that the mere fact that a defendant is in custody must not prejudice you for or against him. Do not speculate as to why a defendant is in custody.

Defendant contends that since the prosecutor did not question Nelson about visiting Nilson in jail, the jurors would reasonably infer that he was not incarcerated. Knowing that [defendant] was in jail, the jurors would thinkeither consciously or subconsciouslythat [defendant] was a dangerous criminalmuch more so than Nilson who had to be locked up. Such a dangerous man would surely rape a defenseless woman, or so the jurors would think.

Defendants contentions about the jurys inferences and conclusions are far-fetched and unsupportable. While prejudice may occur from the constant reminder of the accuseds condition (Estelle v. Williams, supra, 425 U.S. at p. 504 [italics added]), an isolated comment that a defendant is in custody simply does not create the potential for the impairment of the presumption of innocence that might arise were such information repeatedly conveyed to the jury. (People v. Bradford (1997) 15 Cal.4th 1229, 1336.) To the extent the prosecutors isolated question was an error which resulted in some amount of prejudice,[2] it was cured by the courts prompt admonition and subsequent jury instruction. (See People v. Cecil (1981) 127 Cal.App.3d 769, 778 [any prejudice from the jurys brief observation of defendant in custody may be cured by admonition]; Romo v. Ford Motor Co. (2002) 99 Cal.App.4th 1115, 1135 [ [a]bsent evidence to the contrary, a jury is presumed to follow the instructions of the trial court ], disapproved on other grounds as stated in People v. Ault (2004) 33 Cal.4th 1250, 1272.) Therefore, the court did not abuse its discretion when it denied defendants motion for mistrial.

II. The Trial Courts Jury Instructions

Defendant next argues that the trial courts failure to instruct the jury sua sponte regarding rapes lesser included offenses violated his rights to due process, a jury trial, a fair trial, and fundamental fairness under the Fifth, Sixth and Fourteenth Amendments of the federal Constitution and their California counterparts, requiring reversal. This argument also lacks merit.

A. Legal Standards

It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] . . . That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present . . . but not when there is no evidence that the offense was less than that charged. (People v. Breverman (1998) 19 Cal.4th 142, 154.)

To warrant an instruction on a lesser included offense, there must be substantial evidence of the lesser included offense, that is evidence from which a rational trier of fact could find beyond a reasonable doubt that the defendant committed the lesser offense. [Citation.] Speculation is insufficient to require the giving of an instruction on a lesser included offense. [Citation.] In addition, a lesser included instruction need not be given when there is no evidence that the offense is less than that charged. (People v. Mendoza(2000) 24 Cal.4th 130, 174.) Attempted rape, assault with the intent to commit rape, battery, and assault are lesser included offenses of rape. (People v. Atkins (2001) 25 Cal.4th 76, 88 [attempted rape]; People v. Chambers (1982) 136 Cal.App.3d 444, 455-456 [assault with the intent to commit rape, battery, assault].)

[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility. . . . [S]uch misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. (Cal. Const., art. VI, 13, [People v. Watson (1956) 46 Cal.2d 818, 836].) (People v. Breverman, supra, 19 Cal.4th at p. 165.)[3]

B. Substantial Evidence of Sexual Intercourse

Defendant first argues reversible error because there was substantial evidence that he may have had some sort of contact with [W.D.] short of actual intercourse. He cites the testimony of M.L., the former Chevys supervisor, that W.D. told her the day after the incident that she was not sure that she had sexual intercourse with defendant; the criminalists observation of sperm on an external vaginal swab only, although both internal and external vaginal swabs were taken; Nilsons failure to specifically state that he saw defendants penis penetrate W.D.s vagina when he testified that he saw defendant having sex with W.D.; the failure of Nilson or the roommate to see any sexual activities in the bathroom between defendant and W.D.; and W.D.s own testimony that she had sex with Nilson in the bathroom.

None of this evidence constitutes substantial evidence that defendants contact with W.D. was anything less than sexual intercourse. W.D.s statement to M.L. did not include anything about an unwanted touching short of rape; M.L.s testimony was at best an indication that W.D. was struggling to recall what had occurred at the time. At trial, W.D. was unequivocal in her recollection that she woke up to find defendant on top of her, and his penis already in her vagina.

The criminalist testified that she did not examine the internal swabs once she had identified sperm on an external swab from which she could extract DNA. Therefore, her testimony about the external swab was not substantial evidence that defendants contact with W.D. fell short of intercourse; to so argue is really to speculate about the significance of the evidence.

Furthermore, although Nilson did not specifically testify that he saw defendants penis inside W.D.s vagina, his testimony left very little doubt about what he saw. First, in response to questions from his own counsel, Nilson testified that he wanted to have sex with W.D., and that he had sexual intercourse with her, meaning that he put his penis in her vagina. A short time later, he testified about defendants activities:

Q. Okay. What did you do after you finished having sex with [W.D.]?

A. I went to the bathroom to clean myself.

Q. How long were you in the bathroom?

A. About one minute or two minutes.

Q. Okay. And how far is the bathroom from your bedroom?

A. About three meters.

Q. Okay. So about 10 feet?

A. Yes.

Q. Okay. And when you got back to the room, what was [W.D.] doing?

A. Having sex with my cousin.

Q. Okay. Was [W.D.]who waswas one of them on top of the other?

A. Yes. My cousin was on top of her.

Nilson further testified:

Q. Okay. And when [defendant] was on top of her, was [W.D.] saying anything?

A. No.

Q. Was she making any sounds?

A. Yes, enjoying the sex.

Q. Was it the same sounds that she made when you were having sex with her?

A. Yes.

Q. When you were having sex with [W.D.], was she doing anything with her hands?

A. Just hugging me.

Q. Okay. When she was having sex with [defendant], was she doing anything with her hands?

A. I dont remember that.

The only reasonable conclusion that can be drawn from Nilsons testimony is that he saw defendant having sexual intercourse with W.D., just as he had done. Both Nilson and his attorney used the phrase having sex to describe Nilsons own sexual intercourse with W.D. Furthermore, Nilson compared W.D.s conduct while having sex with defendant to her conduct when she did so with him, stated that defendant was on top of W.D., and that he observed her enjoying the sex. Nilsons testimony points only to sexual intercourse, and not to any lesser act. Accordingly, defendants contention that there was substantial evidence that he might have committed a lesser offense of rape is without merit.

C. Defendants Intoxification Argument

Defendant also argues that even if the evidence shows nothing but an act of sexual intercourse, the court was still required to instruct the jury on lesser included offenses of rape because there was substantial evidence that defendant was so intoxicated that he could have formed an honest and reasonable belief that W.D. was not too intoxicated to give legal consent to the sexual intercourse. Defendant contends that such a belief would have entitled him to a not guilty verdict regarding rape, but that his intoxication would not have been a defense to at least battery and simple assault. This argument also lacks merit.

Penal Code section 261, subdivision (a)(3) states that a rape occurs under the following circumstance:

Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused. (Pen. Code, 261, subd. (a)(3).)

Accordingly, the trial court properly instructed the jury as follows:

Defendant can be found guilty only if the victims incapacitating level of intoxication if such exists was known or reasonably should have been known by the accused. An honest and reasonable but mistaken belief that the complaining witness is not too intoxicated to give legal consent to the sexual activity in question is a defense. Thus, if you have a reasonable doubt as to whether the accused held such a belief, you must give him the benefit of that doubt and find him not guilty.

Defendant argued below that it was not proven that he knew or should have known that W.D. was prevented from resisting due to her intoxication, because defendant himself was drinking.

In order for defendants theory to constitute a defense, he was required to prove that he actually and honestly held a mistaken belief that W.D. was not too intoxicated to give her legal consent, and that this belief was reasonable under the circumstances. (See People v. Stitely (2005) 35 Cal.4th 514, 553-554 [stating these two parts as required elements of the mistake-of-fact defense against forcible rape charges].) The reasonableness of defendants belief is evaluated objectively. (Ibid.) Voluntary, self-induced intoxication is not a basis for such reasonableness. If, as a result of self-induced intoxication, appellant believed that the victim was consenting, that belief would not thereby become either reasonable or in good faith. (People v. Potter (1978) 77 Cal.App.3d 45, 51.) Accordingly, defendant was not entitled to this defense, and it cannot be a basis for arguing that defendant was entitled to instructions on lesser included offenses regarding rape.

Moreover, even if the trial court erred by not instructing the jury about lesser included offenses, any such error was clearly harmless under People v. Watson, supra, 46 Cal.2d 818, 836. (People v. Breverman, supra, 19 Cal.4th at p. 178 [applying the state standard for harmless error analysis regarding a trial courts failure to instruct on lesser included offenses].) As we have already discussed, there was no substantial evidence that defendant engaged in any illegal contact with W.D. short of sexual intercourse. Furthermore, the jury, in finding defendant guilty of rape, necessarily rejected defendants asserted defense that he had an honest and reasonable belief regarding W.D.s ability to consent to having sexual intercourse with him. Thus, it is not reasonably probable that the jury would have found him guilty of anything other than rape if it had been instructed regarding rapes lesser included offenses.

III. Defendants Sentencing

Defendant next argues that the courts sentencing him to the middle term of six years, while sentencing Nilson to a mitigated term of three years, violated his right to equal protection. This argument lacks merit as well.

The guarantees of equal protection embodied in the Fourteenth Amendment of the United States Constitution and article I, section 7 of the California Constitution compel[] recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment. (Darces v. Woods (1984) 35 Cal.3d 871, 885.)

The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (In re Eric J. (1979) 25 Cal.3d 522, 530.) The analysis will not proceed beyond this stage if the groups at issue are not similarly  situated with respect to the legitimate purpose of the law, or if they are similarly situated, but receive like treatment. Identical treatment is not required. (People v. Rhodes(2005) 126 Cal.App.4th 1374, 1384.)

Generally, a trial court has broad discretion when weighing aggravating and mitigating factors and selecting a sentence. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) The defendant carries the burden of showing a sentencing decision was irrational or arbitrary and thus an abuse of discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)

The trial court received a report from the probation department which recommended that defendant be denied probation. At the sentencing hearing, the parties discussed whether defendant should be granted probation or sentenced to three, six, or eight years. The court stated its view that the case was pretty straightforward and the trial evidence a little bit stronger against defendant than against Nilson. It stated that [a]s to this defendant, the victim testified that she had passed out and that when she awakened, that this defendant was on top of her penetrating her. It continued:

And its hard to understand anyone reasonably could have believed under that set of circumstances that the person who was unconscious was giving consent also . . . . I think the evidence is somewhat stronger [against defendant] than against the co-defendant.

Defendants counsel pointed out that W.D. made a quite similar statement about the co-defendant Nilson that she was passed out and then woke up and he was on top of her. The court replied that there was a more complicated sequence of events with Nilson, but as to [defendant], it seems that her testimony was pretty consistent that she was passed out, that she awoke and [defendant] was on top of her. The court also stated its conclusion that the jury had accepted W.D.s account of what happened, and that, assuming her account was accurate, the evidence was somewhat clearer and stronger as to defendant.

The prosecutor argued that, according to the probation report, defendant continued to deny having sexual intercourse with W.D. against her will, stated that it was not fair that he was in jail, that the accusations were false, that W.D. was the initiator, and that he and Nilson laughed when they heard she was accusing them of rape. In light of defendants outlook and his lack of acceptance of responsibility and continued belief that he is being wronged, the prosecutor asked the court to sentence defendant to the maximum term of eight years.

After further questions from the court, the prosecutor emphasized that defendant was slightly different than his cousin because W.D., while she had a relationship with Nilson, had no relationship with defendant prior to the incident, and this was the first time she had ever laid eyes on him.

The court stated its view that the trial evidence indicated that Nilson and W.D. shared a bottle of rum while defendant was not in the room, causing the court to form the impression that defendant was somewhat less intoxicated than W.D. and Nilson. While defendants counsel argued that the evidence indicated defendant was in fact intoxicated because of the beer drinking in the car, he also conceded that [w]e dont know to what extent, and the court noted [i]ts a little bit more ambiguous as with regard to the incident. Among other things, the court noted that defendants being outside the room making phone calls for an hour while W.D. and Nilson drank in the bedroom meant it was at least plausible that he was somewhat less intoxicated . . . which ultimately is an aggravating factor under these circumstances[.] The court contrasted this with its view of Nilsons drinking:

[A]s to Nilson, it strikes me that the evidence was that he arguably was more intoxicated, and that bears in the question of whether he actually knew or reasonably should have known that she was so intoxicated to give consent.

The court continued: Coupled with that, as I say, the inference that the jury most likely grew accepting the [victims] testimony she was unconscious and then woke up with [defendant] on top of her its accepting that evidence, its hard to avoid the conclusion that he knew or reasonably should have known that an intoxicated woman thats unconscious is too intoxicated to give consent.

The court also pointed to a letter from W.D., indicating its view that she was on the more severe end of the spectrum with regard to the psychological effects on her from the incident. The court stated that this was the principal aggravating factor, that there were a number of mitigating factors, including that defendant lacked a significant criminal history.

The court stated its view that the offense was a serious one inappropriate for probation, that the aggravating and mitigating factors are evenly balanced, and that a mitigated term of six years was appropriate.

Defendant contends that the trial courts conclusion that the evidence was a bit stronger against defendant than against Nilson is incorrect because it was the same, since W.D. testified that she passed out before Nilson put his penis in her vagina. The record does not support defendants contention. W.D. recalled Nilson taking off her pants and panties, touching her vagina with his fingers, and getting on top of her, indicating that she was conscious during this time. She testified that when he was putting his fingers there, she was asking him to stop. And then I was too drunk. I was fading away. And then I pass out. Defendant ignores the import of the testimony that followed, as W.D. recounted that she saw Nilson use his hands to put his penis inside her, and that she could feel him doing so. Thus, she was conscious when Nilson began intercourse with her.

W.D.s testimony about defendants sexual intercourse with her was different. She testified that she awoke to find defendant being on top of her and his penis already in her vagina. This testimony, the evidence about Nilson and W.D.s drinking for an hour while defendant made phone calls, as well as their interactions during this time, and W.D.s pre-existing relationship with Nilson, provide sufficient support for the courts exercise of its discretion to sentence defendant to six years, rather than to three years, the term the court subsequently imposes on Nilson.

Defendant makes much of some of the courts comments at Nilsons subsequent sentencing hearing, which occurred more than two months after defendants sentencing hearing. For example, the court stated in response to Nilsons counsels argument that defendant, rather than Nilson, engaged in the acts in the bathroom, that the trial evidence pretty convincingly showed that [defendant] . . . probably sodomized [W.D.] in the bathroom while she was vomiting, which strikes me as being a whole different level than your client. However, the courts comments were made more than two months after it had sentenced defendant. The courts comments at defendants previous sentencing hearing made clear the evidence and mitigating and aggravating factors it considered in determining his sentence. These did not include the acts in the bathroom. Therefore, defendants argument that the courts comments at Nilsons sentencing hearing are somehow relevant to our review of its sentencing of defendant lacks any basis of support in the record, and must be rejected.

DISPOSITION

Defendants conviction and sentence are affirmed.

__________________________

Lambden, J.

We concur:

_________________________

Kline, P.J.

_________________________

Haerle, J.

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

[2] We do not conclude that the prosecutors remark was an error that resulted in any prejudice, but merely assume so for the sake of argument. The parties vigorously debate a number of issues, such as whether the prosecutor was entitled to refer to the location of the visits, and whether the jury would have inferred from the prosecutors question that defendant was currently in custody. We do not address these issues in light of our ruling that any resulting prejudice was cured by the courts admonition. Similarly, we do not address the parties debate about whether any trial court error was harmless in light of the evidence about the incident.

[3] Defendant argues we should apply the federal standard for harmless error outlined in Chapman v. California (1967) 386 U.S. 18. However, defendant relies on capital cases in doing so. (See Beck v. Alabama(1980) 447 U.S. 625; Hopper v. Evans (1982) 456 U.S. 605.)