P. v. Flores

Filed 3/22/07 P. v. Flores CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Richard J. Oberholzer, Judge.

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Stan Cross, Acting Senior Assistant Attorney General, Charles A. French and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Javier Suarez Flores stands convicted of a violent sexual assault for which he received a sentence of 15 years to life. We affirm that conviction, rejecting defendants several claims of prejudicial error, including his claim that the trial court abused its discretion when it rejected defendants bid to deny or explain prior offenses the prosecution planned to use to impeach his credibility. Any mistake the court made in this regard was harmless because the evidence of guilt was overwhelming.

With respect to an additional conviction for failing to register as a sex offender, we agree with defendants claim of prejudicial jury-instruction error. We reverse that conviction.

FACTUAL AND PROCEDURAL HISTORIES

D., the victim, arrived at Kern Medical Center by ambulance on December 19, 2004. She told a paramedic and a nurse that she had been sexually assaulted. Emergency room personnel examined her and found that she was hemorrhaging from five wounds to her genitals, two internal and three external. Two of the lacerations were 10 centimeters long and a third was seven centimeters long. There were also bruises on her genitals and thighs. The sexual assault nurse examiner concluded that D. had been forcefully penetrated by something larger than a penis. Another nurse who was present believed that, of more than 600 sexual assault cases she had seen, this was only the third with a similar amount of injury and bleeding. The injuries were no more than a day old. D. underwent surgery to repair the lacerations.

By the time D. was released from the hospital the following day, the Shafter Police Department had begun an investigation. A detective showed her a photographic lineup, including a picture of defendant, whom D. identified as the assailant.

The district attorney filed an information charging defendant with one count of sexual penetration with a foreign object. (Pen. Code,  289, subd. (a).)^[1] With respect to this count, the information alleged that defendant caused great bodily injury. ( 667.61, subd. (e)(3).) The information also charged one count of being required to register as a sex offender and failing to do so. ( 290, subd. (g)(1).)

At trial, D. described the assault. On the night of December 18, 2004, she was at a cabin court in Shafter, waiting outside her friends cabin for the friend to come home. Defendant, who lived in another cabin, approached. D. identified defendant in the courtroom. He asked D. her name and invited her to his cabin for a soda. D. went with him. Inside his cabin, defendant went to the kitchen momentarily and then returned and attacked D. He got on top of her and tried to pull her pants off. She said no and resisted, but he put his fingers in her vagina. Then she felt him pulling from the inside. She saw that she was bleeding. Defendant became angry, saying D. was making a mess. He began trying to clean up the blood. D. fled to the cabin of her friend. The ambulance came to take her to the hospital early the next morning.

Several items of evidence relevant to D.s credibility were introduced. She was arrested for drugs the morning of the day she was assaulted and did not know if she was still under the influence at the time of the attack. Between 1992 and 2003, she was convicted of second degree felony burglary, felony forgery, escaping from jail while charged with a felony, misdemeanor petty theft (on two separate occasions), and possessing a bad check.

A nurse who examined D. testified that, at the hospital, D. said she was out in Shafter near a field, walking, and that somebody came and attacked her and tried to penetrate her. [] And then because he was unable to, that he put his fingers and his fist inside of her. Defense counsel argued that this was inconsistent with D.s trial testimony.

The prosecution introduced DNA evidence that placed the injured victim inside defendants cabin. Officer Robert Courtney testified that he searched the cabin. He found fresh blood on defendants mattress. The mattress had been turned over so that the bloody side faced downward. Courtney cut samples from the bloody mattress and sent them to the Kern County Crime Lab. A laboratory technician testified that she performed DNA tests on the blood from the mattress samples. The odds were 469 quadrillion to one against the blood belonging to anyone but D.

There was additional DNA evidence. On the afternoon after the attack, defendant was taken to the Shafter police station. There, Officer Courtney read him his Miranda rights, took his statement, and arrested him. Before taking defendant to the county jail for booking, Courtney had defendant remove his outer clothes. He found blood on defendants t-shirt and underpants. When Courtney saw the blood, defendant said, Oh, shit. These are not mine. You put that there. These items were also sent to the crime lab, where DNA testing determined that the blood was that of the victim.

Mark Cooter, another officer who participated in the investigation, testified about still more bloody items. When Officer Cooter drove up to defendants cabin, he saw defendant placing a duffel bag in a car. The bag was open and he saw a bloody bed sheet or pillowcase inside. He seized the bag and found a pair of coveralls that also had blood on them. Inside a dumpster a few hundred feet from defendants cabin, Cooter found bloody rags. DNA from the blood on the coveralls was tested and found to belong to the victim.

Defendant told Officer Courtney he did not know where the blood on all these items came from and denied that it had been there when he woke up that morning. In a second interview, he told Courtney there was no blood when he went to bed, but while he was sleeping someone brought in the bloody sheets and coveralls and put blood on the mattress. He admitted that the underwear belonged to him and claimed the police put blood on them. He also claimed that the victim was accusing him because she had asked him for a loan and he had refused, angering her.

The Shafter Police Department employee responsible for sex-offender registration testified. She said defendants most recent registration was on February 13, 2004, at an address on Alamo Street. He had never registered at 1035 South Central Valley Highway, where his cabin was located. To prove that defendant was required to register, the People introduced a certified court docket showing that he pleaded guilty in 1989 to a violation of section 647.6 (annoying or molesting a child). The People also introduced a certified rap sheet showing this conviction. The rap sheet was unredacted and also showed additional convictions: misdemeanor sexual battery, felony driving under the influence, and misdemeanor battery. It also contained a long list of charges that did not result in convictions, including lewd acts with a child under 14, oral copulation with a child under 16, rape, kidnapping, and domestic battery.

A friend of defendant testified about how long defendant lived in the cabin. The prosecutor asked, Do you know about how long he was living at 1035 South Central Valley Highway? The friend replied, The truth, I dont know if its two months or something like that.

After the prosecution completed its presentation of evidence, defense counsel told the court that, against counsels advice, defendant wanted to testify. Defense counsel and the court then advised defendant of his rights and admonished him regarding the use of prior offenses to impeach him. In a motion in limine, the People had sought to introduce two prior misdemeanors of moral turpitude to prove intent and motive. The court had denied the motion but indicated that at least one of these offenses would be admissible for purposes of impeachment if defendant testified. These prior offenses were the principal focus of the discussion among defendant, defense counsel, and the court regarding defendants decision to testify or not to testify. When this discussion took place, the certified court docket and certified rap sheet had already been admitted into evidence.

[DEFENSE COUNSEL]: Do you understand once you testify, any prior convictions of moral turpitude or dishonesty can be brought up to impeach your credibility? [] []

THE DEFENDANT: I believe I understand.

[DEFENSE COUNSEL]: In other words, the jury wouldnt necessarily hear that unless you take the stand and testify.

THE DEFENDANT: I dont knowI dont know what thatwhat it means. [] [] Can your repeat it? Can you repeat it?

[DEFENSE COUNSEL]: Yes. Let me say it differently. There are two prior convictions both involving children. [] If you testify in this case, [the prosecutor] can bring those convictions up before this jury. [] The jury is allowed to use those in judging your credibility.

THE DEFENDANT: About those problems that Ive been accused of previously, they didnt want to take any fingerprints nor my saliva analysis.

[DEFENSE COUNSEL]: Those arent an issue. Those are convictions.

THE DEFENDANT: But I wasnt found guilty.

[DEFENSE COUNSEL]: Those are convictions.

THE COURT: Okay. And thats incorrect, you were found guilty. At least thats apparently what the record shows.

[DEFENSE COUNSEL]: The record shows that.

THE COURT: The record shows that you were guilty and the jury is going to have the right to know that you committed two felonies, which they will be able to consider in weighing your truthfulness when youre testifying.

[THE PROSECUTOR]: Your Honor, theyre not felonies, theyre misdemeanors.

THE COURT: Okay. Two prior crimes involving moral turpitude which the jury will be able to consider in weighing your testimonythe truthfulness of your testimony.

THE DEFENDANT: About these questions, I wanted to clear these things up about what I was charged with.

[DEFENSE COUNSEL]: This is not a trial on those issues and you cannot do that. [] [] This trial is not on your prior convictions. Those are simply going to be used to show that you have prior crimes that involve children, crimes of moral turpitude. [] If you chose not to testify, those issues do not come up. And the court will instruct the jury that they can infer nothing negative from you not taking the stand in your own defense. [] You dont have to prove anything.

THE DEFENDANT: Well, I was told that on those charges that I wasnt guilty of anything because they didnt want to give me the analysis that I asked for.

[DEFENSE COUNSEL]: Those are convictions. Theres nothing I can do about that.

THE DEFENDANT: They have to prove the evidence back in Los Angeles.

[DEFENSE COUNSEL]: They are proved, and [the prosecutor] has the paperwork that will, in fact, be admitted.

THE DEFENDANT: Ill answer those questions later when thats dealt with. Im not guilty. Im not guilty of those charges. [] And those charges that I was charged with before, Im also not guilty.

[DEFENSE COUNSEL]: You understand that this trial is about the rape?

THE DEFENDANT: Yes. Yes, I understand.

[DEFENSE COUNSEL]: You cannot defend yourself against the prior convictions.

THE DEFENDANT: Well

[DEFENSE COUNSEL]: Well, what?

THE COURT: What year were those prior convictions?

[DEFENSE COUNSEL]: 88 for the female, 05 for the little boy.

THE COURT: Okay. Earlier this year. [] []

[THE PROSECUTOR]: No, it was 01 not 05 with the little boy. The little boy was just simple battery. The court already said I wasnt allowed to impeach on the little boy.

THE COURT: Okay. One prior.

[THE PROSECUTOR]: But then he also has a 1988 conviction for annoying and molesting children, 647.6, and then a 1995 conviction for sexual battery on an adult woman. [] Those are both misdemeanors and I provided the court with the case of People versus Duranyeah, People versus Duran that allows the People just to impeach with the conviction, itself, and not be required to bring in other evidence.

THE COURT: The convictions that occurred in 1995 are not going to be heard in this courtroom. [] If you contend youre not guilty, you had to do it back in 1995 and in that particular court. Not going to be able to try and prove your innocence in this court because youve already been found guilty. [] As long as you understand that. [] Now, also, [defense counsel] has told you the jury would not hear about these prior incidents unless you testify. If you do testify, then they can hear about those. [] Also they can use your testimony against you if you do testify. If you do not testify, the jury will be told that they cannot use your silence or your failure to testify against you in any way. [] Not only can they not consider it, theyre not even allowed to discuss it during their deliberations. [] Do you understand all of that?

THE DEFENDANT: Yes, I understand.

THE COURT: Understanding that, do you wish to testify? []  []

THE DEFENDANT: No, no, no. I dont understand a lot of things.

THE COURT: Okay. So do you not want to testify?

THE DEFENDANT: It depends on the questions later.

THE COURT: Okay. And the thing is, if you decide to testify, you cannot refuse to answer a question. [] You cant pick and choose the questions you want to answer.

THE DEFENDANT: Yes, correct.

THE COURT: So what Im going to suggest you do

THE DEFENDANT: But theres a lot of questions that Im asked.

THE COURT: Yes. There will be a lot of questions that youll be asked. [] I suggest you talk to your attorney and decide whether or not you want to testify. [] Its your right to testify. It is your right to not testify. Go talk to your attorney.

After a discussion off the record between defendant and defense counsel, defense counsel told the court, Judge, based on this recent conversation with Mr. Flores, its my understanding he wishes to remain silent in the matter. The court obtained confirmation of this from defendant. Defendant did not testify. Defense counsel called no witnesses and introduced no other evidence. The jury found defendant guilty as charged and found true the allegation of great bodily injury.

Defendant addressed the court at the sentencing hearing:

Ive been locked up for 11 months. Since that date, they havent brought forth the clinical proof. [] Theyve accused me of kissing the woman. They havent brought forth any saliva samples that prove I did thatand I would have gladly given thosethe fingerprint proof that would show that I touched her, the hair, and, also, the proof of the rape or, rather, the sex that occurred between she and I .

Also, the clothing that they brought forth showing that was mine, the size of the clothing is too large for it to have been mine.

The mattress and bedding that was dirty that was brought forth by the police, the personthe lady who is the owner of those belongings is outside. And theyve never wanted to come forth and speak to her about that.

Those are four examples of the problems with the charges that I have been brought forth with.

And a lady said another onethe lady gave a story where the facts were actually to the contrary.

And Ive wanted for all of thoseall that proof to be brought forth that is supposedly existent against me.

I also want the people who supposedly saw that I hit the lady to come forth. Also, the proof that the lady hit me down here, hit me very hard and caused damage. And, also, to show that I wasI needed to be seen medically for those things, given the severity of the hits.

And the investigator didnt want to investigate the fact that she also was hit, Your Honor. And the person who hit her is her companionher drug companion.

And there are people outside who could testify to the fact that they saw this person go to where I was living.

This is a person 35 to 40 years of age. And as the police officer can attest to, who originally interviewed me, Im 63 years old.

They also havent wanted to bring forth proof to show that Im actually disabled in my hands.

The hospitalthe hospitalMercy Hospital has proof of the fact that I have no more strength in my hands than a 15-year-old boy. And either to a woman or, actually, to any person, I would be incapable of doing what theyre accusing me of. I dont have the capacity to molest, in any way, a woman or, actually, anyone, for that matter.

They havent wanted to do an investigation of the work that Ithat I do, of where I was working or where Ive been since.

They also havent wanted to answer the fact that the detective destroyed all of my property. He destroyed all of the documentation that we were using. We were actually in the process of legalizing my whole family to be here in the United States. He destroyed all of my paperwork, all of my records from my tax returns from 1983 to the present date. All of themthey are all destroyed.

Also, they havent investigated the fact that the woman stole money from me when she entered my house by force and attacked me. Because if I had actually attacked her in the way that the police is saying that I did, I would have had blood on the front part of my clothing.

The lady dirtied me with her blood from behind because she was attacking me, trying to take the money that I had on me. She only took $43 from me. The rest, I threw it below the bed.

There are many things that have not been investigated. For example, the photographs that had been brought to court by [defendants former counsel], they never wanted to investigate those or include them here in the court proceedings.

The court denied probation and, pursuant to section 667.61, sentenced defendant to 15 years to life in prison for the sexual assault. It imposed a concurrent sentence of six months for failure to register as a sex offender.

DISCUSSION

I. Sexual assault conviction

A. Defendants bid to explain or deny prior offenses

Defendant contends that the trial courts statements about his desire to controvert evidence of his prior offenses amounted to an erroneous ruling on the admissibility of his testimony on that subject. He argues that because this error deterred him from testifying, a second error resulted: the denial of his right to take the witness stand in his own defense. As we will explain, any error was harmless beyond a reasonable doubt.

As a threshold matter, the People argue that this issue has not been preserved for appeal because defendant did not testify. They rely on People v. Collins (1986) 42 Cal.3d 378 which involved an in limine ruling on the admissibility of prior offenses for impeachment purposes. As we will now explain, Collins is not applicable here. Defendant wanted to explain or deny the priors after they were admitted. He never argued that the priors were not admissible to impeach him.

In Collins, after the prosecution rested, a defendant charged with burglarizing an automobile moved to prohibit the use of his prior burglary and robbery to impeach him if he testified. The trial court denied the motion, ruling that article I, section 28, subdivision (f), of the California Constitution (adopted as part of Proposition 8 in the June 1982 primary election) meant it had no discretion to exclude prior offenses. Defense counsel announced that the defendant decided not to testify because of this ruling. The defendant was convicted and the Court of Appeal affirmed the judgment. (People v. Collins, supra, 42 Cal.3d at pp. 381, 383.)

The trial courts ruling was in conflict with People v. Castro (1985) 38 Cal.3d 301, in which our Supreme Court held that, despite Proposition 8, trial courts must exercise discretion pursuant to Evidence Code section 352 when determining the admissibility of prior offenses for purpose of impeachment. The Supreme Court reversed and remanded. (People v. Collins, supra, 42 Cal.3d at pp. 381, 396.)

For future cases, however, the court adopted from Luce v. United States (1984) 469 U.S. 38 a federal rule that error in a ruling on the admissibility of prior offenses for purposes of impeachment is preserved for appeal only if the defendant testifies and is impeached. (People v. Collins, supra, 42 Cal.3d at pp. 383-384.) Luce announced a rule of federal criminal procedure, and our Supreme Court was persuaded by its reasoning and adopted the same rule for California courts. (People v. Collins, supra, at p. 385.)

The United States Supreme Courts main concern in Luce was that, unless the defendant testified, the trial court would not be in a position to carry out the balancing analysis required by rule 609(a) of the Federal Rules of Evidence when deciding whether to admit prior offenses for impeachment. This would preclude meaningful appellate review. (Luce v. United States, supra, 469 U.S. at p. 41.) The rule 609 analysis requires the trial court to weigh the probative value of the prior offense against the prejudicial effect of admitting it. (Fed. Rules Evid., rule 609(a)(1), 28 U.S.C.) The high court believed that if the defendant did not testify, an appellate court could only speculate about whether the prior offenses should have been admitted and, if not, whether the error of admitting them would have been prejudicial. Without knowing the precise nature of the testimony the defendant would actually have given, the reviewing court cannot determine whether the probative value of the priors outweighed their prejudicial effect. An offer of proof would not solve the problem, since the defendant could change his mind about what to say. (Luce v. United States, supra, 469 U.S. at p. 41 & fn. 5.) Further, the reviewing court has no way of knowing whether the prosecution would have changed its mind about introducing the priors or whether the trial court would have changed its mind about admitting them. (Id. at pp. 41-42.) Finally, without knowing the defendants testimony, the court could not determine whether any erroneous evidentiary ruling was prejudicial or harmless. (Id. at p. 42.) The California Supreme Court repeated these arguments when it adopted the Luce rule. (People v. Collins, supra, 42 Cal.3d at p. 384.)

The rule of Collins and Luce does not apply to this case. We deal here with a decision that defendant not be allowed to deny or explain the priors with which the prosecution proposed to impeach him. The California Supreme Court adopted the rule for cases involving the denial of a motion to exclude a prior conviction offered for impeachment . Nothing in Collins implies that it should be applied more broadly. (People v. Collins, supra, 42 Cal.3d at p. 383.)

At least one Court of Appeal panel has declined to apply the rule in a closely related context. People v. Brown (1996) 42 Cal.App.4th 461 involved the trial courts in limine ruling that the prosecution could use a prior inconsistent statement to impeach the defendants credibility. The defendant argued that the statement was taken in violation of his right against self-incrimination and his right to counsel under the Fifth and Sixth Amendments. (People v. Brown, supra, at p. 468.) The Court of Appeal rejected the Peoples argument that the claimed error was not preserved for appeal because the defendant decided not to testify. It reasoned that it could determine whether a constitutional violation occurred based on the record of the suppression hearing and did not need the defendants testimony to determine whether the impeachment evidence was inadmissible. (Id. at pp. 470-471.) It considered the issue to be a pure issue of law concerning a fundamental constitutional right and held that Collins did not preclude reaching the merits. (People v. Brown, supra, at p. 471.)

Even if we thought the reasoning of Collins and Luce should be extended to establish a new rule covering the present situation, it is doubtful the new rule would apply retroactively to this case. In Collins, our Supreme Court held that a new rule of this kind should only be applied prospectively. It declined to apply the rule to Collins own case, in which it reversed the conviction and remanded to the trial court. (People v. Collins, supra, 42 Cal.3d at pp. 388, 396.)

In deciding whether a new state rule of criminal procedure will apply retroactively, California courts still follow the approach of People v. Guerra (1984) 37 Cal.3d 385, even though federal courts follow more recent decisions such as Griffith v. Kentucky (1987) 479 U.S. 314. (See People v. Hedgecock (1990) 51 Cal.3d 395, 410, fn. 4.) Under the California approach, if a decision establishes a new rule which, because it contradicts a preexisting rule, is a clear break with the past, a reviewing court has the option of concluding that the new rule applies prospectively only and of declining to apply the new rule to pending cases, including the case before it. (People v. Collins, supra, 42 Cal.3d at p. 388; People v. Guerra, supra, 37 Cal.3d at pp. 399-406.)

The rule proposed by the People here is new and would not be a mere extension of the rule of Collins. Collins applies to rulings on the admissibility of priors, and its reasoning arises from a special feature of those rulingsa need to hear the testimony to be impeached before deciding whether erroneous admission of priors for impeachment was prejudicial.

There is a preexisting rule the new rule would contradict. The general rule is that, in the absence of waiver or estoppel, a ruling occurring during trial and properly contested or objected to is reviewable on appeal from a final judgment. To hold that defendant had to testify to preserve the issue of his right to explain or deny prior offenses admitted for impeachment would be to adopt a previously unknown exception to that general rule. This would make it unfair to apply the proposed new rule to pending cases, including the present casejust as the Supreme Court concluded in Collins. (People v. Collins, supra, 42 Cal.3d at p. 388.)

For all these reasons, we reject the Peoples contention that the issue is not preserved for appeal because defendant did not testify. We proceed to consider the issue.

Defendant argues that a testifying defendant who has been impeached with prior offenses has a right to try to rehabilitate his credibility by explaining or denying those offenses. The People argue that the trial court was right to exclude this type of testimony. We need not decide which position is correct. Any mistake on the courts part was insufficiently prejudicial to the defense to warrant reversal of the conviction. We will assume, without deciding, that the harmless-error standard of Chapman v. California (1967) 386 U.S. 18, 24 applies and that the error must be found harmless beyond a reasonable doubt.

For purposes of argument, we will assume that the court should have allowed defendant to comment on his prior offenses and that if it had, he would have decided to testify. Even if defendant could have rehabilitated his credibility in some measure by commenting on the priors, however, we are confident that his testimony regarding the current charges would not have affected the verdict. Defendants several versions of the facts not only were implausible but also conflicted with one another in multiple ways. He first told police there was no blood on him or in the cabin when he woke up in the morning, then later told them someone came in and placed it there while he was sleeping. He also said police put the victims blood on the undershirt and underpants he was wearing. At the sentencing hearing, defendant gave yet another account, saying that the victim, bleeding from a previous attack by someone else, broke into his cabin, attacked him, robbed him, and spread her blood around in the process.

We must compare the weakness of any testimony along these lines with the strength of the prosecutions case. The proof of the victims blood on defendants mattress and on the undergarments he wore to the police station constituted overwhelming evidence that defendant was the person who inflicted her injuries. Defendants contention that this evidence was not overwhelming is based on exaggerated descriptions of a few items of evidence. He says the nurses testimony that the victim said she was attacked when she was near a field, walking constitutes one of two stubborn facts that easily could have defeated a finding of guilt beyond a reasonable doubt. The nurses recollection of what the victim said after losing blood and while possibly under the influence of drugs is not powerful evidence. In light of the circumstances under which the statement was made, it is not even necessarily inconsistent with the victims trial testimony. The cabin court might have been near a field, and the victim might have gotten there by walking. The victim might, in her debilitated state, have been trying to tell this to the nurse.

The other stubborn piece of evidence defendant relies on is Officer Courtneys testimony that he did not see blood on defendants hands or around his fingernails. A juror might well doubt whether even a professional manicurist could have eliminated all the telltale evidence of the crime from under his fingernails, defendant argues. This is not persuasive. Courtney did not see defendant until the day after the attack when defendant was brought to the police station; he did not make contact with him at the cabin. There is no reason why defendant could not have washed the blood off his hands by the time Courtney interviewed him.

Defendant places emphasis on the evidence undermining the victims credibility. He also makes much of the fact that his claim that the victim wanted money from him partially coincides with the victims testimony that she was waiting to see her friend at the other cabin because she wanted to borrow money. In a different record, points like these might appear more significant. Here they are overwhelmed by the evidence of defendants guilt.

For these reasons, the trial courts error, if any, was harmless beyond a reasonable doubt. There is no likelihood that defendants testimony would have resulted in an outcome more favorable for him.

We reject defendants argument that any error affecting his decision to testify or not is reversible per se. First, People v. Collins, supra, 42 Cal.3d at page 387 stated that a similar ruling discouraging a defendant from testifying (there, it was a ruling that certain prior offenses were admissible for impeachment purposes) did not deny the defendant the right to testify at all. Instead, it impacted only the right to testify without being impeached, which the court did not regard as a constitutional issue. The court held not only that the ruling was not reversible per se, but that it was subject to harmless-error review only under People v. Watson (1956) 46 Cal.2d 818, 836, i.e., review for whether it was reasonably probable that the result would have been more favorable absent the error. (People v. Collins, supra, at pp. 394-395.) We are assuming for the sake of argument that Chapman, not Watson, supplies the applicable standard of harmless-error review, but the approach taken in Collins still weighs strongly against considering the type of error here at issue reversible per se.

Further, even if we were dealing with an unconstitutional denial of the right to testify, only one of the cases to which the parties have directed our attention held that a denial is reversible per se. (United States v. Butts (D.Me. 1986) 630 F.Supp. 1145, 1148 [This Court considers a defendants right to testify in a criminal proceeding against him so basic to a fair trial that its infraction can never be treated as harmless error].) In the others, the court carried out a harmless-error analysis. (United States v. Tavares (D.C.Cir. 1996) 100 F.3d 995, 998 [counsels ineffective assistance resulting in denial of defendants right to testify, not reversible per se]); Martinez v. Ylst (9th Cir. 1991) 951 F.2d 1153, 1157 [in pre-Collins case, defendant decided not to testify after California state trial court erroneously ruled it lacked discretion to exclude prior offenses proffered for impeachment; federal appellate court affirmed writ of habeas corpus, holding that error infringed defendants right to testify and was not harmless]; Ortega v. OLeary (7th Cir. 1988) 843 F.2d 258, 262, 263 [state trial judge erroneously denied defendants request to testify but error was harmless; denial of writ of habeas corpus affirmed]; Wright v. Estelle (5th Cir. 1977) 549 F.2d 971, 974 [defense counsels refusal to permit defendant to testify infringed defendants constitutional rights, but error was harmless; denial of writ of habeas corpus affirmed] affd. en banc (1978) 572 F.2d 1071.)

We acknowledge that, unlike in the cases cited above, here defendant never placed on the record a proffer of the testimony he would have given. Two of the above cases were habeas cases in which a record of the proposed testimony was made in the writ proceedings in the trial court. (Martinez v. Ylst, supra, 951 F.2d at p. 1157; Ortega v. OLeary, supra, 843 F.2d at p. 260.) In a third habeas case, the writ petition stated that the defendants testimony would have been the same as that of witnesses who testified at trial, except for specified minor details. (Wright v. Estelle, supra, 549 F.2d at p. 974.) Another case was an appeal directly from a conviction, but the defendant had filed an affidavit in the trial court in support of a motion to vacate the sentence in which he detailed his proposed testimony. (United States v. Tavares, supra, 100 F.3d at pp. 996, 998.) Further, unlike in Collins, we are not remanding the case to require the trial court to hear defendants proffered testimony before ruling on the question of whether any error was harmless. (People v. Collins, supra, 42 Cal.3d at p. 393.)

Unlike the cases cited above, this is an unusual case in that there is both overwhelming evidence of defendants guilt and an extensive record of his attempts to account for the facts, both to the police and to the sentencing court. Under the circumstances, we do not believe we need a formal proffer of testimony to determine that any error in the ruling at issue was harmless beyond a reasonable doubt.

B. Prosecutors comments about defendants courtroom behavior

Defendant argues that the prosecutor committed prejudicial misconduct during her closing argument by commenting on his courtroom behavior. The People claim that any error is not preserved for review because defense counsel did not object and ask the court to admonish the jury to disregard the comments. Defendant contends that objection was unnecessary because an admonition to the jury would have been futile or would have made matters worse by further highlighting defendants courtroom demeanor. He also asserts that if an objection was required to preserve the issue, his counsel provided ineffective assistance by failing to object. We hold that the prosecutors comments were improper but, in light of the overwhelming evidence of defendants guilt, harmless.

The prosecutor began her closing argument with these comments:

Good morning [l]adies and [g]entlemen. [] This is a case about power and control. [] On December [18], 2005, Javier Suarez Flores wanted to exert control over [D.], and she didnt want to cooperate with him, so he ended up basically shredding her insides and then we are here today. [] And as many of you may have seen while she was testifying, while defense counsel was giving opening statements, the defendant was laughing, again exerting power and control over [D.]. [] Rape is not a crime about sex; its a crime about control.

Defendant argues that, by linking his laughter with a purported desire for power and control and then linking a desire for power and control with the crime, the prosecutor improperly encouraged the jury to infer criminal conduct from bad character.

It is improper for a prosecutor to comment on the courtroom conduct of a non-testifying defendant. In People v. Garcia (1984) 160 Cal.App.3d 82, which involved a defendant who made faces while a witness was testifying (id. at p. 87), the court explained:

Ordinarily, a defendants nontestimonial conduct in the courtroom does not fall within the definition of relevant evidence as that which tends logically, naturally, [or] by reasonable inference to prove or disprove a material issue at trial. [Citations.] Neither can it be properly considered by the jury as evidence of defendants demeanor since demeanor evidence is only relevant as it bears on the credibility of a witness. [Citation.] If anything, focusing the jurors attention on a defendants courtroom conduct distracts their attention from and may diminish the weight they assign to the permissible factors identified by the instructions as legitimately aiding in the determination whether the defendant committed the alleged offense. Authorizing the consideration of such demeanor in the determination of guilt or innocence also runs the grave danger of inviting the jury to use the character of the accused to prove guiltsomething that is wholly improper unless the defendant first presents evidence of his good character. (People v. Garcia, supra, 160 Cal.App.3d at p. 91, fn. omitted.)

The prosecutor remarked on the defendants behavior in closing argument, saying he could no more explain why a person would commit a brutal crime than he could explain why the defendant would behave that way in the courtroom as the crime was being described. (People v. Garcia, supra, 160 Cal.App.3d at p. 93.) The Court of Appeal held that this was improper because it invited the jury to speculate that defendants courtroom conduct shows him to be the type of person willing to participate in unlawful activity; and therefore he is likely to have committed the crimes in question. (Ibid.)

Exceptions exist to the rule that a defendants courtroom conduct should not be considered by the jury. For instance, in People v. Heishman (1988) 45 Cal.3d 147, 196-197, the Supreme Court held that a prosecutor did not commit misconduct by commenting to the jury on the defendants allegedly remorseless facial expression during a capital sentencing trial. Doing so was not improper because guilt was already established, remorse was relevant to mitigation and aggravation, and defendant himself had put his remorse or lack of it in issue when one of his witnesses testified about it.

Nothing similar is present here, and the usual rule against using character to prove criminal conduct applies. This case is on all fours with Garcia and we agree with the courts reasoning in that case.

We also reject the Peoples argument that the issue is not properly before us on account of defense counsels failure to object and request an admonition. Either an objection was not required because any admonition by the court would only have increased the distraction (People v. Hill (1998) 17 Cal.4th 800, 820; People v. Garcia, supra, 160 Cal.App.3d at p. 93, fn. 11; People v. Johnson (1981) 121 Cal.App.3d 94, 103) or, if it was required, counsel fell below the threshold of reasonable professional performance in failing to make it (Strickland v. Washington (1984) 466 U.S. 668, 687-688).

If an objection was not required, we come directly to the question of whether the prosecutors mistake was prejudicial. This means we must determine whether, absent the error, there is a reasonable likelihood that defendant would have obtained a more favorable verdict. (People v. Garcia, supra, 160 Cal.App.3d at p. 93.) If an objection was required, we come to the same point via the doctrine of ineffective assistance of counsel: We must determine whether, absent counsels inadequate performance, a more favorable verdict was reasonably likely. (Strickland v. Washington, supra, 466 U.S. at p. 694.)

Defendant argues that a different standard of prejudice is applicable, the harmless-beyond-a-reasonable-doubt standard of Chapman v. California, supra, 386 U.S. at page 24. This standard applies, he argues, because the prosecutors comments violated his rights under the Fifth, Sixth, and Fourteenth Amendments. We disagree. A prosecutors improper comments to the jury might conceivably rise to the level of constitutional error under some circumstances. They did not do so here, where the impropriety was akin to the admission of inadmissible evidence that cast defendants character in a bad light. (See People v. Bolton (1979) 23 Cal.3d 208, 214, fn. 4 [Courts of this state have generally assumed that prosecutorial misconduct is error of less than constitutional magnitude]; People v. Garcia, supra, 160 Cal.App.3d at p. 93, fn. 12 [Chapman standard did not apply to prosecutors improper reference to defendant making faces during testimony].) The question, therefore, is whether a more favorable verdict was reasonably likely absent the error.

It is not reasonably likely that the jury would have returned a more favorable verdict if the prosecutor had never made comments about defendants courtroom behavior or if the court had admonished the jury to disregard the comments after objection by defense counsel. As we have said, the evidence of guilt was overwhelming. The prosecutors improper comments were not of great significance under the circumstances. The bottom line here is the same as it was in Garcia: The evidence presented against defendant at trial was overwhelming. While the prosecutors closing argument should have avoided reference to defendants courtroom conduct, it does not justify disturbing the guilty verdict. (People v. Garcia, supra, 160 Cal.App.3d at p. 95.)

C. Admission of evidence of prior offenses in support of failure-to-register charge

Defendant contends that his counsel rendered ineffective assistance in his handling of the prior-offense evidence introduced for the purpose of proving the failure-to-register charge. This evidence, he contends, prejudiced him with respect to the sexual-assault charge. He focuses on the introduction of the certified rap sheet, which showed many convictions and charges in addition to the conviction pursuant to which defendant was required to register as a sex offender. He says his counsel should have 1) objected to the admission of evidence of those other convictions and charges; 2) moved for a bifurcated trial; and 3) requested a limiting instruction. He also argues that the prosecutor committed misconduct in introducing the rap sheet.

The rap sheet should never have been placed before the jury and the prosecutor and defense counsel are both at fault. That document was filled with inadmissible evidence. The admissible evidence in itthe record of the crime for which defendant was required to registerwas contained (by itself) in another document, the certified docket. Even that piece of evidence could have been presented in a bifurcated proceeding on the failure-to-register charge, and there is no reason why defense counsel should not have requested this type of proceeding. Likewise, the failure to request a limiting instruction could not have been the result of a reasonable tactical decision. Again, however, the error is harmless in light of the overwhelming evidence of guilt.

We begin with the conduct of the prosecutor. She moved in limine for permission pursuant to Evidence Code sections 1101 and 1108 to introduce evidence of two prior acts of sexual misconduct to prove defendants intent to commit the current offense and his motive of obtaining sexual gratification. The first incident involved sexual touching and oral copulation with a five-year-old girl on December 11, 1988. This resulted on January 5, 1989, in a misdemeanor conviction, by guilty plea, of annoying or molesting a child. ( 647.6.) In the second incident, on May 20, 2001, defendant gave a five-year-old boy candy to induce him to play a biting game in which defendant bit the boys neck. This resulted in a misdemeanor conviction of simple battery. The court ruled that the first incident was inadmissible under Evidence Code section 352 and that the second was inadmissible because it was not sufficiently similar to the currently charged conduct. It denied the Peoples motion to admit those priors, indicating that the question of their admissibility could be raised again if defendant testified and the People wished to impeach him.

The requirement that defendant register as a sex offender was based on the January 5, 1989, conviction under section 647.6. That conviction was documented in Peoples Exhibit 42, the certified docket sheet the People offered for admission at the close of their presentation of evidence. The docket sheet contained only that one offense and referred to it only by Penal Code section number. At the same time, however, the prosecutor offered for admission Peoples Exhibit 43, the certified rap sheet. That document reflected the January 5, 1989, conviction, along with many other convictions and charges spanning a period of many years, as we described earlier. It also gave a name to the January 5, 1989, conviction, Annoy/Molest Children. Defense counsel asked to take a quick look at the exhibits, which were then admitted without objection.

There can be no legitimate reason why the prosecutor placed the rap sheet in evidence. The certified docket contained all the information the jury needed to find that defendant was required to register as a sex offender. There was no other reason for evidence of prior offenses to be admitted: Defendant did not testify, so no priors could be admitted for impeachment, and the court had already denied permission to present evidence of prior sex offenses to help prove the current sexual assault charge under Evidence Code sections 1101 and 1108. The rap sheet had only one function in this trial: to violate the prohibition on the admission of character evidence to prove conduct on a specific occasion. (Evid. Code,  1101, subd. (a).) In their appellate brief, the People do not seriously attempt to provide a legitimate reason for introducing the rap sheet. They say defendant overlooks the fact that the prosecutor was obligated to prove the elements of failure to register as a sex offender, and as part of that burden had to demonstrate that appellant was required to register in the first place, but the certified docket sheet supplied the necessary information and the rap sheet added nothing relevant.

For these reasons, we conclude that the prosecutor acted improperly, whether deliberately or negligently, in moving the rap sheet into evidence. It is unnecessary to make the further determination of whether the prosecutors conduct involve[d] the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury (People v. Gionis (1995) 9 Cal.4th 1196, 1215) and whether the conduct satisfied the first element of reversible prosecutorial misconduct. The second element, prejudice, was not satisfied. For the reasons we have discussed, the evidence of defendants guilt was overwhelming. There is no reasonable likelihood that, absent the error, defendant would have obtained a more favorable verdict. (People v. Garcia, supra, 160 Cal.App.3d at p. 93.) Due to this conclusion, we need not resolve the parties dispute over whether, on the one hand, the misconduct issue was waived by defense counsels lack of objection, or, on the other, an objection was not required because the misconduct was of an egregious nature and the prosecution had a duty to ensure on its own that it did not introduce inadmissible evidence.

Citing People v. Cabrellis (1967) 251 Cal.App.2d 681, defendant contends that the error is reversible per se. We do not agree. First, Cabrellis did not hold that the error there was reversible per se; it held that it [p]ossibly was and that [i]n any event the error was not harmless beyond a reasonable doubt. (Id. at p. 688.)

Further, Cabrellis involved the improper admission through a police officer of the defendants question, Why should I tell you anything that would send me back? (People v. Cabrellis, supra, 251 Cal.App.2dat p. 686.) It was necessary for the defendant to take the stand and explain that he meant he was concerned about being sent back to prison for a parole violation, not that he had committed the new crime for which he was being tried. This led to damaging admissions on cross-examination. In the appellate courts opinion, these events implicated defendants constitutional right to remain silent. (Id. at p. 687.) Nothing similar is at issue here. As we have said, prosecutorial misconduct generally does not rise to constitutional magnitude and generally is evaluated under the standard of People v. Watson, supra, 46 Cal.2d at page 836. The erroneous introduction of evidence of prior offenses is ordinary state-law evidentiary error. In Cabrellis, the court acknowledged that, [g]enerally, improper evidence of a past crime does not cause reversal where there is heavy evidence of guilt. (People v. Cabrellis, supra, at p. 688.)

We turn to the conduct of defense counsel. There is no question that counsel should have objected to the admission of the rap sheet. No tactical reason for allowing it to be received is conceivable. Defendants appellate counsel speculates that trial counsel did not really read the exhibits during the quick look he took at them, but it does not matter whether he read them or not. Allowing their admission without objection after reading them would have been just as professionally unreasonable as allowing their admission without reading them. We also see no conceivable tactical reason for failing to request a bifurcated trial. Given the trial courts ruling against the Peoples motion to admit prior sex offenses to prove the current sex offense, the jury in a bifurcated trial need not have heard anything about defendants prior sex offenses. This is an advantage defense counsel should have sought for his client. There is no guarantee that the trial court would have made this discretionary determination in defendants favor, but that is no reason not to ask.

The same considerations lead to the conclusion that defense counsel behaved unprofessionally when he failed to request that the jury be given an instruction limiting the way in which it could use the prior-offense evidence. The first element of Strickland, professionally unreasonable conduct on the part of counsel, is present. (Strickland v. Washington, supra, 466 U.S. at pp. 687-688.)

Once again, however, the error is not reversible because defendant was not prejudiced. The evidence of guilt was overwhelming, so it is not reasonably likely that, absent counsels deficient conduct, defendant would have obtained a more favorable result. (Strickland v. Washington, supra, 466 U.S. at p. 694.)

D. Neighbors hearsay statement

Defendant argues that the prosecution introduced inadmissible hearsay when Officer Courtney testified as follows about his conversation with defendant: I asked him who he had argued with last night. [] Flores told me that he hadnt argued with anyone. [] I told him that his neighbor saw him arguing with the lady that was hurt. [] And he, again, said that he drank his beers and went to bed. [] Flores said he was alone all night, no visitors. Defendant says the information that a neighbor claimed to have heard defendant arguing with the victim was hearsay for which there was no exception. Defendant contends that the admission of this evidence violated the confrontation clause of the Sixth Amendment as interpreted in Crawford v. Washington (2004) 541 U.S. 36 because the neighbors statement 1) was made in response to police questioning and therefore constituted testimonial hearsay; and 2) came from a witness who was not shown to be unavailable and was never subjected to cross-examination.

We decline to reach the merits of this argument because defendant did not object or make a motion to strike at trial, so the issue is not preserved for appeal. (Evid. Code,  353.) Defendant argues that no objection or motion to strike was required because an important constitutional right is at issue. He relies on People v. Vera (1997) 15 Cal.4th 269, in which the Supreme Court stated that a defendant is not precluded from raising for the first time on appeal a claim asserting a deprivation of certain fundamental, constitutional rights. (Id. at p. 276.) However, Vera also held that not all constitutional rights are within this rule. (Id. at p. 277.) And in People v. Burgener (2003) 29 Cal.4th 833, 869, the Supreme Court held that the defendant waived a confrontation-clause claim based on admission of hearsay evidence by failing to articulate that claim before the trial court. The claim is waived for the same reason here.

Defendant contends that he was not required to make an objection in the trial court because the testimony was part of a narrative the officer was giving rather than a response to a specific question, so the introduction of the hearsay was unexpected and an objection could not timely be made. He asserts that the only appropriate remedy was a motion to strike. The making of that motion was excused, he says, because the granting of it, and any admonition to the jury, would have been futile after the jury had already heard the testimony. (See People v. McDermott (2002) 28 Cal.4th 946, 1001.)

We disagree. An order to strike testimony and an admonition to disregard it are not futile every time inadmissible evidence makes an appearance. If they were, that kind of order and admonition would have no reason to exist. Officer Courtneys comment about the neighbor presented nothing out of the ordinary in this regard, so we will adhere to the general rule that juries are presumed capable of following instructions. (People v. Yeoman (2003) 31 Cal.4th 93, 139; People v. James (2000) 81 Cal.App.4th 1343, 1363.) Even if the officers words were out before defense counsel could object, a motion to strike was required to preserve the issue for appeal.

Defendant further points out that the Courts of Appeal have discretion to review at least some issues that are unpreserved. We see no reason to exercise that discretion in defendants favor where there is overwhelming evidence of guilt relative to which the alleged inadmissible evidence was not of great importance.

We also reject defendants contention that if an objection or motion to strike were required to preserve the issue for appeal, his trial counsel rendered ineffective assistance by not making the objection or motion. First, we cannot conclude from this record that counsels conduct was professionally unreasonable. (Strickland v. Washington, supra, 466 U.S. at pp. 687-688.) On cross-examination, defense counsel questioned Officer Courtney about the neighbors statement. Defendants appellate brief explains that this was an attempt to impeach Courtneys testimony by showing that the neighbors statement was not in Courtneys report. (This was unsuccessful; it turned out that the neighbors statement was reflected in another officers report.) It is possible that counsel made a tactical decision to try to under