P. v. Wang

Filed 3/22/07 P. v. Wang CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. Affirmed.

Law Offices of William J. Kopeny & Associates and William J. Kopeny for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald A. Jakob and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted defendant John Wang of kidnapping for extortion (Pen. Code,  209, subd. (a); all further statutory references are to the Penal Code), second degree robbery ( 211 & 212.5, subd. (c)), and intimidating a witness by force or fear ( 136.1, subd. (c)(1)), and also found he personally used a knife in committing the latter two offenses. Defendant challenges the sufficiency of the evidence to support his conviction on count 1 and the jury instructions on counts 1 and 2. He also claims the prosecutor committed misconduct while cross-examining him, and his trial attorney failed to competently represent him. We find all of these claims lack merit and affirm.

FACTS

Fushing (Henry) Wu owns a business that imports and distributes family and kitchen products. In mid-2004, Sherling Haung worked for Wu.

Haung shared a two bedroom apartment with defendant. During several informal conversations with defendant and his girlfriend, Haung had mentioned the names of her boss, his wife, and Diana, one of Wus daughters. On one occasion, defendant gave Haung a ride to work and she pointed out Wus car to him.

On the evening of Friday, July 23, Wu was alone at work when a man he later identified as defendant confronted him in the reception area. Defendant pointed what appeared to be a handgun at Wu. He asked Wu if his name was Henry and whether he had a daughter named Diana. Wu said yes to each question. Defendant claimed to be a member of a gang and that Diana owed money to the gang for drug purchases. Wu said that allegation was impossible.

Defendant ordered Wu into an office, removed a knife from a black bag he was carrying, told Wu to lie on the floor, and bound Wus hands with plastic zip ties. Later, defendant moved Wu to a chair, bound his hands to the arms of the chair, and pulled a wool cap over his eyes. He obtained the front door key and locked it.

Defendant asked Wu, What are you going to do since Diana owed us so much money. Wu repeated his disbelief of the claim. After holding what appeared to be a telephone conversation with another gang member, defendant asked Wu How much [his] life [was] worth, and demanded Wu give him $500,000. Wu denied having that much money. Defendant said, I know your wifes name and what kind of car she drives and what kind of car you drive. Then he demanded Wu pay him $300,000.

Wu claimed he only had $100,000 in his personal and business checking accounts. Defendant ordered Wu to prepare a $12,000 check from his personal account and an $88,0000 check from his business account, directing that each check be made out to defendants buddy John Wang. Claiming he needed at least another $50,000, defendant also ordered Wu to give him a second, post-dated business check for that amount and said, Ill give you one week to gather the money.

Before leaving, defendant grabbed Taiwnese and Chinese currency that Wu kept in the drawer with his business checks, $500 in United States currency from Wus desk, an additional $500 from Wus wallet, plus the videotape from the businesss surveillance system. Defendant told Wu, I know where you live, I know who is your wife and I know who is your daughter, and Im not afraid of you going to report me to the police. The encounter lasted for approximately 75 minutes.

Haung testified that when defendant returned to the apartment on Friday evening, July 23, he told her a business deal he had been working on was completed and he would be starting a business. She first learned about Wus experience after arriving for work the following Monday. When Wu described what happened, she immediately thought of defendant.

When arrested, defendant was carrying over $700 in United States currency. In his bedroom the police found a starter pistol, a knife Wu identified as the one used against him, Taiwanese and Chinese currency, the $50,000 postdated check from Wus business account, and records for defendants personal bank account, including deposit slips for $12,000 and $88,000. After his arrest, defendant told the police he had gone to Wus business on July 23 to collect on a $150,000 bet Wu owed based on the results in a recent Taiwanese political election.

At trial, defendant testified that he and two other persons had formed a company named Digi Super Store to sell computer parts. In early 2004, defendant and Harry Wu (no relation to Fushing Wu), another one of Digi Super Stores owners, agreed they needed to find more capital to operate the company.

Defendant claimed he met Fushing Wu at a restaurant when the two began discussing Taiwanese politics. In July, defendant called Wus office to solicit his investment in Digi Super Store, and set up a meeting with him on Friday evening, July 23. During the meeting, Wu agreed to invest in the company and gave defendant the three checks. Defendant denied forcing Wu to prepare and sign the checks or taking any money from him. He claimed the Taiwanese and Chinese currency found in his possession was left over from a recent trip he took to locate manufacturers.

Harry Wu corroborated defendants claims the two of them, along with a third man, had started Digi Super Store, and that he and defendant traveled to China on a business trip in early 2004. However, Harry Wu testified they closed the business in May 2004 for financial reasons and he did not seek additional financing for it after that time.

DISCUSSION

1. Insufficiency of the Evidence

Count 1 charged defendant with kidnapping for extortion in violation of section 209, subdivision (a). Defendant claims the evidence fails to support his conviction on this count because the evidence demonstrates that all property with which the victim parted, was parted with against his will by means of force or fear, and not with his consent as that term is defined in . . . [s]ection 518, and thus, the evidence shows a forcible standstill robbery.

When an insufficiency of the evidence claim is made, an appellate court examine[s] the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidenceevidence that is reasonable, credible and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt[] and presume[s] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (People v. Guerra (2006) 37 Cal.4th 1067, 1129.)

Section 209, subdivision (a) declares, Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away another person by any means whatsoever with intent to hold or detain, or who holds or detains, that person for ransom, reward or to commit extortion or to exact from another person any money or valuable thing, . . . is guilty of a felony . . . . Extortion is defined in section 518 as the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right. Section 209, subdivision (a) applies where a person is held in order to force a payment of some kind to the perpetrator. . . .  [I]t does not require an asportation and therefore can be committed even though no kidnapping occurs within the common law and general usage of that term. (People v. Ordonez (1991) 226 Cal.App.3d 1207, 1227; see also People v. Greenberger (1997) 58 Cal.App.4th 298, 367.)

Defendant confronted Wu displaying what the latter believed was a gun, ordered Wu into an office, displayed a knife in a threatening manner, used zip ties to bind Wus hands, and locked the front door. Defendant claimed that he belonged to a gang, said Wus daughter owed the gang money for drug purchases, and asked Wu What are you going to do about the debt. He also told Wu that he knew both his wifes and daughters names and the type of cars Wu and his wife drove. When Wu repeatedly denied believing his daughter owed money for drugs, defendant then asked Wu how much his own life was worth. Defendant eventually obtained three checks from Wu, one of which was postdated to give Wu time to gather the money. He also made a threatening comment about what would occur if the checks bounced. This evidence shows defendant seized and confined Wu for an extended period while endeavoring to induce Wu to prepare checks payable to defendant with threats of injury or death to Wus family or to himself. It supports the guilty verdict on count 1.

Defendants argument focuses on whether his success in exacting one or more checks from Wu amounted to robbery or extortion. Contrary to the premise underlying much of defendants argument, it was not necessary that he succeed in extorting money from Wu to support the conviction under section 209, subdivision (a). Since [i]t is the dominant crime of kidnaping, albeit of the aggravated type condemned in . . . section 209, which is the prohibited act, it was not necessary to establish the defendant accomplished the underlying offense to support a conviction. (People v. Beaumaster (1971) 17 Cal.App.3d 996, 1007 [discussing kidnapping for robbery under  209, subd. (b)]; People v. Hernandez (1950) 100 Cal.App.2d 128, 132 [same].)

Cases recognize [t]he crime of extortion is related to and sometimes difficult to distinguish from the crime of robbery. [Citations.] (People v. Hesslink (1985) 167 Cal.App.3d 781, 790.) The statutory definitions of robbery and extortion are structurally similar [citation]; [b]oth offenses have their roots in common law larceny and both share a common elementacquisition by means of force or fear. [Citation.] (People v. Kozlowski (2002) 96 Cal.App.4th 853, 866; see also People v. Torres (1995) 33 Cal.App.4th 37, 50.) Some decisions have stated the primary distinction between the two crimes is that in an extortion, the property is taken with the victims consent, while in a robbery, the property is taken against the victims will. [Citation.] (People v. Kozlowski, supra 96 Cal.App.4th at p. 866; see also People v. Anderson (1922)

59 Cal.App. 408, 426.) Justice Kauss concurring opinion in People v. Norris (1985)

40 Cal.3d 51 provides an apropos distinction between kidnapping for extortion and robbery. The statutory scheme makes it clear that the Legislature intended to reserve the more drastic penalty of [section 209,] subdivision (a) for cases involving

the . . . scenario[] where the kidnaping victim is held for some period of time to extort some collateral act [citation], while in the typical robbery . . . the victim is required, by force or fear, immediately to part with a wallet, a car or some other property. (Id. at p. 58, conc. opn. of Kaus, J.)

Furthermore, the question of whether a victim consented to the taking of property so as to constitute the crime of extortion rather than theft presents an issue for the trier of fact to resolve. (People v. Goldstein (1948) 84 Cal.App.2d 581, 585-586.) As discussed in greater detail below, the court instructed the jury on the elements of the crimes of kidnapping for extortion, robbery, and extortion, plus gave a special defense instruction distinguishing the latter two crimes. Defendants trial counsel argued that, if the jury rejected defendants claim Wu voluntarily gave him the checks, the evidence established only a robbery, not kidnapping for extortion. If [defendant], because of fear instilled in Mr. Wu, got a check for $12,000, . . . a check for $88,000, . . . and another check even though postdated for $50,000, . . . the fact is under the law a thing of value was obtained and a robbery has happened right then and there. Its over, cant be an extortion. In convicting defendant on count 1, the jury necessarily rejected defendants theory of the case.

Defendant argues the facts of this case are strikingly similar to the facts in People v. Anderson, supra, 59 Cal.App. 408. In Anderson, the defendants were convicted of robbery based on evidence that, at gunpoint, they took valuables from the victim and forced him to assign to them the bill of sale and certificate of title to his car, and to sign a check made payable to one of them. The Court of Appeal affirmed the convictions, rejecting the defendants claim that the evidence supported only a conviction for the uncharged offense of extortion.

Anderson is distinguishable. First, it was decided prior to the 1933 amendment of section 209 which eliminated the crimes asportation element. (Stats. 1933, ch. 1025,  1, pp. 2617-2618; see People v. Ordonez, supra, 226 Cal.App.3d at p. 1226.) At the time the crime occurred in Anderson, it would not have been possible for the state to charge the defendants with kidnapping for extortion.

Second, as discussed above, the issue is not whether defendant succeeded in acquiring Wus property by extortion or robbery, but rather what was his intent when he seized and detained Wu. In rejecting the defendants claim that the evidence supported a conviction of extortion, Anderson held: But, even if it were necessary to concede that the evidence disclosed some semblance of the crime of extortion, it cannot be doubted that the evidence is such that the finding of the jury that the crime committed was robbery is conclusive upon this court. It is only where the evidence compels the conclusion that a crime other than that of which the defendant has been convicted was committed that a reviewing court will be forced to order a reversal of the cause on the ground of variance between the allegations of the accusatory pleading and the proof. [Citations.] (People v. Anderson, supra, 59 Cal.App. at p. 428.) Thus, if defendant held Wu for 75 minutes with the intent to extort property from him, the crime was completed regardless of the means by which he ultimately obtained Wus property.

The evidence does not compel a conclusion defendant is guilty of only committing a robbery. Thus, we conclude defendants insufficiency of the evidence claim on count 1 lacks merit.

2. Instruction Error

a. Distinguishing Between Kidnapping for Extortion and Robbery

Applying a void for vagueness analysis, defendant contends that, as applied to the facts of this case, the court violated his right to due process because the jury instructions failed to define the crime of a kidnap for extortion with sufficient definiteness that ordinary people can understand how that conduct differs from conduct that constitutes a standstill robbery. Contrary to the Attorney Generals claim, since the sufficiency of the jury instructions affected defendants substantial rights, he is entitled to assert this claim even though he failed to interpose an objection at trial. ( 1259; People v. Van Winkle (1999) 75 Cal.App.4th 133, 139-140.) Even so, defendants argument is meritless.

A trial court must instruct the jury on the law applicable to each particular case. [Citation.] (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) In deciding whether an instruction is erroneous, we ascertain at the threshold what the relevant law provides. We next determine what meaning the charge conveys in this regard. (People v. Warren (1988) 45 Cal.3d 471, 487.) [T]he question is whether there is a reasonable likelihood that the jury understood the charge as the defendant asserts. [Citations.] In addressing this question, we consider the specific language under challenge and, if necessary, the charge in its entirety. [Citation.] Finally, we determine whether the instruction, so understood, states the applicable law correctly. [Citation.] (People v. Kelly(1992) 1 Cal.4th 495, 525-526.) Absent a contrary showing in the record, an appellate court assumes the jurors were able to understand, correlate, and follow the courts instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331; People v. Martin, supra, 78 Cal.App.4th at p. 1111.)

The court gave the jury the standard instructions on kidnapping for extortion (CALJIC Nos. 9.53 [defining offense and listing its elements], 9.55 [Achievement of Purpose not Essential to Kidnapping]), robbery (CALJIC Nos. 9.40 [defining offense and listing its elements], 9.41 [defining fear], 9.43 [crime second degree as a matter of law]), and extortion (CALJIC Nos. 14.70 [defining offense and listing its elements], 14.71 [What Threats Constitute Inducing Fear], 14.73 [Causal Relation Between Fear and Consent], 14.74 [What Constitutes Consent]). Defendant does not challenge the correctness of these instructions. The court also read the following special defense distinguishing robbery and extortion: 1. In the crime of robbery the property taken from the other person must be taken against his will and without his consent, accomplished by force or fear. [] 2. In the crime of extortion the property taken from the other person must be obtained with his consent, induced by a wrongful use of force or fear.

Defendant cites no authority supporting his claim the foregoing instructions failed to adequately convey to the jury the nature of the crimes and how these offenses related to each other. The bulk of the cases cited by him involved the constitutional validity of assertedly vague statutory enactments. (Kolender v. Lawson (1983) 461 U.S. 352, 353-354 [103 S.Ct. 1855, 75 L.Ed.2d 903] [state law making it a crime for a person to loiter and fail to provide credible and reliable identification when requested by a police officer]; Smith v. Goguen (1974) 415 U.S. 566, 567-568 [94 S.Ct. 1242,

39 L.Ed.2d 605] [state law making it a crime to contemptuously misuse the flag]; Wainwright v. Stone (1973) 414 U.S. 21, 21-22 [94 S.Ct. 190, 38 L.Ed.2d 179] [state law making it illegal to commit crime against nature]; United States v. Harriss (1954)

347 U.S. 612 [74 S.Ct. 808, 98 L.Ed. 989] [prosecution for violation of Federal Regulation of Lobbying Act].)

Defendant also quotes from Justice Kauss concurring opinion in People v. Norris, supra, 40 Cal.3d 51. Norris considered the validity of a kidnapping for extortion conviction where the defendant, a state prisoner being transported by police officers, acquired a gun and forced the officers to drive him to a location where he could escape. The Supreme Court reversed the conviction. The majority opinion found the defendants demand that he be taken to a place of safe haven did not constitute the obtaining of an official act of a public officer under section 518 because the Legislature intended to limit the concept of official act to include only those acts performed by an officer in his official capacity, which make some use of his public office. (Id. at pp. 55-56.)

In his concurring opinion, Justice Kaus agreed the conviction should be reversed, but on a different rationale: [S]ection 518 appears to put property and official acts on a par, as alternative objectives of a possible act of extortion. Thus one would suppose that if a defendant applies force or fearor bothto obtain property along with the official act, then if the crime is robbery with respect to the property, it cannot be extortion as far as the official act is concerned. (People v. Norris, supra,

40 Cal.3d at p. 58, fn. omitted (conc. opn. of Kaus, J.).)

Justice Kaus also criticized section 518s consent element. (People v. Norris, supra, 40 Cal.3d at p. 58 (conc. opn. of Kaus, J.).) While defendants argument focuses on this portion of the concurring opinion, he ignores Justice Kauss earlier distinction between the crimes of kidnapping for extortion and robbery. Here, [t]he facts . . . are obviously closer to the . . . [kidnapping for] extortion model than the robbery model. (Ibid.)

Defendant initially held Wu for at least 75 minutes while he attempted to induce Wu to pay his daughters alleged drug debt. Ultimately, defendant negotiated a payment from Wu in return for not harming Wu and his family. Defendant then opportunistically took money from Wus wallet and grabbed the currency in the desk. Given the courts instructions, the jurors recognized the difference between a lengthy detention involving give and take between the perpetrator and victim concerning what property the victim is willing to part with, and the momentary encounter where the perpetrator, through the threat of force, takes from the victim whatever valuables he finds available.

The parties closing arguments also assisted the jury in applying the instructions. The prosecutions theory of the case was that defendant violated section 209, subdivision (a) by seizing and confining Wu for over one hour and negotiating, if you want to call it that, over how much [Wu] had to come up with to avoid injury or death to himself and his family. As for count 2, the prosecution theorized that defendant committed the robbery when he took the wallet out of Mr. Wus pocket and took the money out of it, and then took the money out of Mr. Wus desk drawer . . . .  Mr. Wu didnt consensually say, Oh, sure, here you go. I dont want to do this but here you go. No, the defendant took those . . . .

In response, defense counsel argued the entire transaction amounted to only a robbery. [U]nder the law my client did no more than commit a violent

robbery . . . . The extortion is all over. And I submit to you when you look at the definition of robbery, the element[] of fear, that its stupid to hint that he gave over any of that stuff because he thought maybe something was going to happen down the road and even if he did think there was some future harm to himself or his family, that is still fear as defined under the robbery statute . . . .

Defendant failed to establish the trial courts instruction of the jury violated his constitutional rights.

b. The Nature of the Fear Element for Robbery

Defendants second instructional error claim is based on the trial courts refusal to give one of his two proposed instructions modifying CALJIC No. 9.41s definition of the fear element required to support a robbery conviction.

CALJIC No. 9.41 defines [t]he element of fear in the crime of robbery as either: [] 1 The fear of an unlawful injury to the person or property of the person robbed, or to any of [his] [her] relatives or family members; or [] 2 The fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery. At trial, defense counsel requested the court give one of two proposed modifications of this instruction. The first proposal would have amended the first paragraph of the standard instruction to declare the element of fear could be [t]he fear of an immediate or future unlawful injury to the person or property of the person being robbed, or to any of his relatives or family members[.] (Italics added.) The second proposal would have modified the first paragraph of standard instruction to declare [t]he fear of a future unlawful injury to the person or property of the person being robbed, or to any of his relatives or family members[.] (Italics added.)

The court refused to give either version. It agreed there is certainly case law that supports [a conclusion that] . . . threat of a future injury . . . can be a

robbery . . . . But it concluded the first paragraph of CALJIC No. 9.41 made this concept clear because it just talks of fear, whether it be fear of future injury or an immediate injury . . . .

Defendant claims the proposed changes convey[ed] a correct statement of the law under [s]ection 212, and would have permitted him to argue that if . . . Mr. Wu[] parted with the post dated check, or any other property out of fear of injury of his wife or daughter in the future, that constitutes the crime of robbery, and not the crime of kidnap for extortion.

We find no error occurred. [A] trial court may refuse to give an entirely accurate instruction if it is duplicative  . . . .  [Citations.] [] There is no error in a trial courts failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial. As long as the trial court has correctly instructed the jury on all matters pertinent to the case, there is no error. The failure to give an instruction on an essential issue, or the giving of erroneous instructions, may be cured if the essential material is covered by other correct instructions properly given. [Citations.] (People v. Dieguez (2001) 89 Cal.App.4th 266, 277.) Here, the trial court properly concluded the proposed modifications were merely duplicative of CALJIC No. 9.41.

In addition, contrary to his opening brief, defendant was allowed to place his interpretation of the facts before the jury through closing argument. Defense counsel asserted that, at most, defendant committed a robbery. [P]lease take a look at this CALJIC No. 9.41, because thats where the fear element is defined and if you think it out logically, it means that you can have an immediate fear of harm to the victim or you can have a future harm and it says right in there it specifies relative and family members. [] So here is what I am saying. If [defendant] because of a fear instilled in Mr. Wu got [checks for $12,000, $88,000, and $50,000], these are items of value that he got immediately out of force or fear . . . and the fact is under the law . . . a robbery has happened . . . .  Its over, cant be extortion.

No instructional error occurred in this case.

3. Prosecutorial Misconduct

Defendant claims the prosecutor committed misconduct by the manner in which he cross-examined him.

Defendant testified he made two calls to Wus business on his cellular telephone before the two of them met. On cross-examination, the prosecutor questioned defendant about his intent to introduce the cellular telephone records to corroborate his testimony. Two of the questions began with the phrase I am assuming. In a third question, the prosecutor stated, I am sure in preparation for this trial and your possible testimony in this case that you tried to make sure that all things that would aid you in your defense would be available as evidence, correct . . . . Defense counsel unsuccessfully interposed argumentative objections to two of these questions. At a later point, the prosecutor asked defendant if it was his testimony that Wu, who admittedly had three persons handling the paperwork for his own business, nonetheless agreed to invest $150,000 in defendants very detailed business proposal with no paperwork involved . . . ? Finally, after defendant testified he purchased the starter pistol found in his possession on the Internet, the prosecutor asked, you realize youre testifying under oath, correct? Defendant argues these argumentative questions and [the prosecutors] sarcastic manner of ridiculing [him] amounted to misconduct because, through them, the prosecutor express[ed] his personal opinion on the guilt of [defendant].

Initially, the Attorney General notes defendant has waived the bulk of his claims by failing to object to the prosecutors questions on this ground and request the jury be admonished to disregard them. (People v. Farnam (2002) 28 Cal.4th 107, 167.) However, since defense counsel did unsuccessfully object to some of the questions concerning defendants cellular telephone records on the ground they were argumentative, a request for a jury admonition or the lodging of further objections would have been futile, and [a]dditional objections were not necessary to preserve the claim. [Citation.] (People v. Chatman (2006) 38 Cal.4th 344, 380.)

A defendant who elects to testify does not give up his Fifth Amendment rights nor his corresponding California privilege against self-incrimination [citation] except as to matters within the scope of relevant cross-examination [citations]. [] Even when a defendant chooses to offer testimony on his own behalf, the privilege against self-incrimination serves to prevent the prosecution from questioning the defendant upon the case generally, and in effect making him its own witness. [Citations.] (People v. Tealer (1975) 48 Cal.App.3d 598, 604.)

But, while the permissible scope of cross-examination in California is restricted to the scope of the direct examination [citations], when a defendant takes the stand and makes a general denial of the crime with which he is charged the permissible scope of cross-examination is very wide. [Citations.] (People v. Saddler (1979)

24 Cal.3d 671, 679.) None of [the] fundamental principles [precluding cross-examination of a testifying defendant beyond the scope of direct examination] . . . imply that when a defendant voluntarily testifies in his own defense the People may not fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them. [Citations.] (People v. Coffman & Marlow (2004) 34 Cal.4th 1, 72.)

Although it is misconduct for a prosecutor intentionallyto elicit inadmissible testimony [citation], merely eliciting evidence is not misconduct. (People v. Chatman, supra, 38 Cal.4th at pp. 379-380.) Thus, a prosecutor does not commit misconduct when, during cross-examination of the defendant he or she dr[aws] an inference from the evidence and ask[s the] defendant about it. . . .  [I]t [is] up to the jury to determine the reasonableness of the inferences. (People v. Smith (2003) 30 Cal.4th 581, 617.)

With the possible exception of the last question, the prosecutors questions were not argumentative. An argumentative question is a speech to the jury masquerading as a question. . . .  An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all. (People v. Chatman, supra, 38 Cal.4th at p. 384.) Inquiries about the existence of telephone records that would corroborate defendants claim he called Wu to set up a meeting on the business proposal were proper. While the prosecutor knew defendant did not have such records, this fact did not render his line of questioning improper. The assertion that Wu, a man who admittedly documented transactions in his own business, agreed to invest $150,000 in a startup corporation in the form of checks made payable to defendant alone with a shake of the hand was also understandably incredulous. Questions that legitimately assist the jurors in discharging th[e] obligation [to determine credibility] are proper. (Id. at p. 380.)

The query about whether defendant understood he was testifying under oath appears more questionable. But defendant answered the question by saying Yes, sir, and the prosecutor took the matter no farther. Although the prosecutor in this case certainly asked the questions intentionally, nothing in the record suggests he sought to present evidence he knew was inadmissible . . . . (People v. Chatman, supra,

38 Cal.4th at p. 380; see also People v. Price (1991) 1 Cal.4th 324, 484 [defendant suffered no prejudice where argumentative questions did not state[] or impl[y] the existence of facts not otherwise before the jury; [n]one of the arguments contained in the questions would have been improper if made to the jury at the appropriate time].)

4. Competency of Defendants Trial Counsel

Finally, defendant claims his trial attorney was incompetent in his handling of the introduction of Sherling Haungs testimony.

a. Background

Haung, a Taiwanese citizen, returned to Taiwan before trial began. Before she departed, the prosecution sought to conduct a videotaped conditional examination of her under section 1336. Defendants attorney at the time waived the procedural requirements for seeking the examination, and it was conducted in court before the trial judge with both defendant and his attorney present.

On cross-examination, Haung testified she was surprised when she learned about the charges against defendant because it seemed out of character for him. At defense counsels request Haung recounted what Wu told her had occurred on July 23. She denied ever seeing defendant with a black bag, zip ties, or a wool hat. Although defendant was released from custody on bail, she continued to live in the same apartment with him and his girlfriend until she moved in mid-September. She denied being afraid of defendant.

On redirect examination, Haung admitted defendant told her that he once broke another persons nose during a fight. She testified defendant was bothered by the incident and he fe[lt] bad about it. She considered defendant a very good friend.

At trial, the prosecutor and defense counsel stipulated the entire videotape could be shown to the jury. Before doing so, defendants trial attorney informed the court, there were some objections made by both the prior lawyer for [defendant] and by [the prosecutor]. Weve reviewed this matter and as far as I am concerned, I am prepared to just let the jury see the tape as it is and let whatever rulings that were made stand and I would not have any further objections or comments to things that were done by the prior lawyer.

b. Analysis

Defendant argues [t]he testimony by H[au]ng at her conditional exam about what Wu told her happened, interspersed with her own reactions to it in light of her later conclusion that [defendant] was the man that robbed Wu, was all totally inadmissible hearsay and/or opinion evidence, which was obviously prejudicial or harmful to the defense case . . . . Thus, he claims his trial attorney was ineffective because he did not object to this evidence. We disagree.

To otherwise demonstrate ineffectiveness of counsel, defendant must show that counsels representation fell below an objective standard of reasonableness under prevailing professional norms [citation], and that a reasonable probability exists that, but for counsels unprofessional errors, the result would have been different. [Citations.] (People v. Farnam, supra, 28 Cal.4th at p. 148.) An appellate courts review of an ineffective assistance of counsel claim on appeal is deferential, beginning with a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. [Citations.] (People v. Jones (2003)

29 Cal.4th 1229, 1254.) Incompetency of counsel claims based on an attorneys tactical decisions during trial are evaluated in the context of the available facts, rather than second-guess[ed] . . . in the harsh light of hindsight [citation]. (Ibid.) As a result, alleged tactical errors, such as failing to make evidentiary objections, rarely support an ineffective assistance of counsel claim. (People v. Chatman, supra, 38 Cal.4th at p. 384; People v. Kelly, supra, 1 Cal.4th at p. 520.)

A review of Haungs entire testimony indicates some of it was helpful to the prosecution and some of it was helpful to the defense. According to defense counsels comments to the court, he and the prosecutor reviewed the matter before the jury saw the videotape of Haungs examination. During the conditional hearing, both sides interposed objections to the other partys questions and, at trial, each could have sought to redact portions of the tape. Defense counsel may have concluded that if he was successful in excluding portions of the tape harmful to the defense, the prosecutor may have been able to also exclude favorable portions of it.

In People v. Kelly, supra, 1 Cal.4th 495, the Supreme Court rejected an ineffective assistance of counsel claim where the defendants trial attorney did not object to the admission of his clients confession, noting [t]he record in this case strongly suggests a reasonable explanation for the failure to object. [Citation.] Although the confession was harmful in some respects, competent counsel could reasonably believe it helped the defense in other respects. (Id. at p. 520.) In addition, counsel may have been concerned that any effort to redact portions of the videotape might lead the jury to speculate about whether the omitted parts were harmful to defendant. (See People v. Stewart (2004) 33 Cal.4th 425, 483.)

In light of these considerations, we conclude defendant has failed to overcome the presumption that his trial counsel competently represented him.

DISPOSITION

The judgment is affirmed.

RYLAARSDAM, J.

WE CONCUR:

SILLS, P. J.

IKOLA, J.

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