P. v. Beleche

Filed 4/24/07 P. v. Beleche CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Helios Hernandez, Judge. Affirmed.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

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

I. INTRODUCTION

Defendant Jose Beleche appeals from his conviction of a felony count of penetration with a foreign object (Pen. Code,^[1] 289, subd. (a)(1)) and a misdemeanor count of touching an intimate part of another for purposes of sexual arousal ( 243.4, subd. (a).) Defendant contends he was deprived of his constitutional due process rights and right to a fair trial by the trial courts (1) instructing the jury with a modified version of Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 1045 that omitted the specific intent element of the crime of penetration with a foreign object; (2) admitting evidence of prior uncharged acts of domestic violence; (3) instructing the jury with CALCRIM No. 852; (4) admitting prejudicial and irrelevant evidence that defendant violated a restraining order; and (5) instructing the jury on flight after a crime. Defendant further claims the prosecutor committed misconduct and the cumulative error doctrine requires reversal. We find that any error was harmless, and we affirm.

II. FACTS AND PROCEDURAL BACKGROUND

In early 2005, defendant and his wife, Maria P., lived in a trailer park in Beaumont with their four young children. Marias mother, Mercedes P.,^[2]lived in the same trailer park.

In August 2005, defendant and Maria began having marital problems and frequent arguments based on defendants accusations that Maria was having sexual relations with other men, including her own brother. The couple separated in September; Maria and the children remained in the trailer home, and defendant occasionally visited the children there. Twice in October, defendant spent the night on the sofa in the living room while Maria slept in the bedroom with the children.

On October 4, Maria and defendant argued over the telephone about rent money defendant had given Maria on September 29. Defendant wanted $400 back from Maria, but she did not have the money. Defendant made fun of Maria and called her names. She hung up, but he called back several times. Maria told defendant to stop calling her. He replied that he would come over to the trailer, and Maria would pay him back by having sex with him.

About 6:00 a.m. on October 5, defendant arrived and knocked on the door for five to 10 minutes. Maria heard him trying to force the door open with a metal object. She did not want to anger him further, so she opened the door.

At first, defendant was peaceful, but when Maria told him she did not want to get back together with him, he became angry. He asked for the rent money back, and he asked Maria if they could have sex. He slid his hands under her T-shirt, over her bra, and touched and squeezed her breasts. She pulled his hands away. He then grabbed her drawstring pants and pulled them down to her hips.

Defendant saw that Maria was wearing a pair of underwear he had purchased for her. He became enraged because she had not worn the underwear for him, and he believed she was wearing the underwear for another man. He pulled and ripped the underwear, causing the elastic to tear and bruising her right thigh. Marias ripped underwear was introduced into evidence.

Maria rose, pushed defendant to the nearby sofa, and told him to leave her alone. Defendant grabbed and squeezed Marias arm painfully and pulled her onto the sofa. He stood and faced her while he lifted her feet against his shoulders and chest with her back on the couch. Using his body weight to keep her from moving, he started pulling her pants down. He also unzipped his own pants.

Defendant stuck the fingers of his left hand into Marias vagina while she struggled to try to force him to stop and pleaded for him to let her go. She felt pain and burning deep inside her vagina. Maria started to call for their seven-year-old son, Edgar, who was sleeping about 30 feet away. Defendant placed his hand over her mouth, but she moved his hand away and called for Edgar again.

Edgar came into the room, and defendant removed his hand from inside Marias vagina. She told defendant to leave, and he drove away.

Maria removed her torn clothing and bathed, and she noticed blood when she urinated. She was still in pain, and the pain lasted all that day. After bathing, Maria called the police and spoke to an officer who did not speak Spanish. She asked for Miguel Macias, a Spanish-speaking officer she had previously met, and left a message asking him to call her at home.

Mercedes went to Marias house, saw her crying, and asked what had happened. Maria told Mercedes that defendant had grabbed her and pulled down her pants and underwear and had ripped her underwear. She had never before told her mother that defendant had been violent with her.

Mercedes testified she had seen defendant arrive at Marias house around 6:00 a.m. and had seen him leave about 30 minutes later, driving normally. However, she had earlier told an investigator defendant had driven faster than normal when he was leaving.

Officer Macias went to Marias home and interviewed her. He observed that her clothing was disheveled, her hair was coming out of her ponytail, and she was crying. After initial reluctance to confide in him, she told him that she and defendant had had an argument, and defendant had insisted they have sex. After she refused his advances, defendant fondled her breasts underneath her T-shirt and pulled on her sweatpants and underwear. He had forced his fingers into her vagina. Maria said defendant had bruised her thigh, but she did not show Macias the bruise because she was embarrassed. He told her to photograph the injury and gave her a camera to do so. She took pictures of the bruise and returned the camera. Photographs of the bruise were introduced into evidence. Macias observed fresh pry marks on the door of the trailer.

Maria did not tell Macias about any blood in her urine or vaginal area because she was embarrassed, and she never went to the doctor after the incident. She did not tell Macias that defendant had grabbed her by the arms and forced her onto the sofa. Macias saw no signs of a struggle in the trailer. Maria showed Macias the torn underwear; he did not see any blood on the underwear.

Maria obtained a restraining order against defendant. On October 10, Maria called the police because defendant had telephoned her that night.

Evidence of prior instances of domestic violence was introduced over the objection of defense. On August 21, 2005, Maria had spent several hours at the hospital with her brother, visiting their mother. When she returned home, defendant accused her of sleeping with her brother. He told her he was going to leave her and that she would not have money to pay for things. He grabbed and squeezed her neck for about one minute but then let her go and went to the bathroom. Maria had fallen to the floor unconscious. To revive her, defendant took her outside, poured water and alcohol on her, and called 911. When the police arrived, Maria was conscious, but she testified she could not speak. Her throat hurt and her tongue felt numb.

Officer George Walter responded to a 911 hang-up call from Marias trailer on August 21. Defendant told Walter that Maria was inside the trailer, but she was not feeling well. He had dialed 911, but had hung up at Marias request because they could not afford medical treatment. Walter went inside and saw Maria sitting on a chair with her hands across her stomach; she appeared to be in pain. Maria did not speak English, and Walter did not speak Spanish, so he spoke to Maria only through defendants translations. She indicated she did not want Walter to call an ambulance.

On another occasion, defendant had threatened Maria that if she called the police, he would go after them . . . for them to kill him so that the children could see that.

The jury found defendant guilty of violations of section 289, subdivision (a)(1) (count 1) and 243.4, subdivision (a) (count 2). The trial court sentenced him to the middle term of six years for count 1 and to a concurrent term of 180 days for count 2.

III. DISCUSSION

A. CALCRIM No. 1045

Defendant contends that he was deprived of his constitutional due process rights and right to a fair trial by the trial court instructing the jury with a modified version of CALCRIM No. 1045. He argues that the instruction removed the element of specific intent from the jurys consideration.

1. Factual Background

The court instructed the jury with a modified version of CALCRIM No. 1045 as follows: Sexual penetration by force, fear, or threats. The defendant is charged in Count 1 with sexual penetration by force. To prove that the defendant is guilty of this crime, the People must prove that (1) the defendant committed an act of sexual penetration with another person; (2) the penetration was accomplished by using a foreign object; (3) the other person did not consent to the act; and (4) the defendant accomplished the act by force, violence, duress, menace or fear of immediate and unlawful bodily injury. [] . . . [] Penetration for sexual abuse means penetration for the purpose of causing pain, injury, or discomfort. The modified instruction omitted the language of CALCRIM No. 1045 that states the penetration must be for the purpose of sexual abuse, arousal, or gratification. (Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 1045.)

2. Forfeiture

The People argue that the trial court instructed the jury with the modified version of CALCRIM No. 1045 pursuant to defense counsels request, and defense counsel did not object to the instruction. The People claim defendants objection was therefore forfeited. (See People v. Arias (1996) 13 Cal.4th 92, 170-171 [defendants failure to request clarifying instruction waived claim of error].)

However, this court may review any instruction given even though no objection was made in the lower court if the substantial rights of the defendant are affected. (People v. Arredondo (1975) 52 Cal.App.3d 973, 978;  1259.) We will therefore consider the issue on the merits.

3. Analysis

Defendant was charged with a violation of section 289, subdivision (a)(1), which provides, Any person who commits an act of sexual penetration when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years. Section 289, subdivision (k)(1) defines sexual penetration as the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendants or another persons genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object. (Italics added.)

The specific intent involved in foreign object penetration is the purpose of sexual arousal, gratification, or abuse. (People v. Senior (1992) 3 Cal.App.4th 765, 776.) However, the modified version of CALCRIM No. 1045 did not expressly require the jury to find that defendant had the specific intent of penetrating Maria for the purpose of sexual arousal, gratification, or abuse. We agree with defendant that the jury should have been so instructed.

However, the trial court instructed the jury that section 289, subdivision (a)(1), required proof of a union or joint operation of act and wrongful intent. In order to be guilty of the . . . crime[], a person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state. The act and intent or mental state required are explained in the instructions for every crime. As noted, the modified version of CALCRIM No. 1045 instructed the jury that [p]enetration for sexual abuse means penetration for the purpose of causing pain, injury, or discomfort. Thus, we conclude the instruction adequately informed the jury that the defendant had to have the purpose of sexual abuse.

Moreover, both counsel clarified that requirement in argument. The prosecutor argued to the jury: Now, this is a specific intent crime. Basically, whats required is that theres a joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. The prosecutor continued, And, basically, what has to be proven is that the defendant acts with a purpose of sexual abuse, arousal, or gratification. You can decide on any of these of what his purpose is, however, the theory and what fits the facts in this case is that it was done to abuse Maria. . . . . [] And, basically, the penetration for sexual abuse means penetration for the purpose of causing pain, injury, or discomfort to Maria.

Defense counsel similarly emphasized the specific intent element, although arguing that the evidence did not show that element had been proven: Again, while she was restrained, we dont have that when [defendant] touched an intimate part of her, where the touching was done against her will and the touching was done for the specific purpose of arousal, sexual gratification, or sexual abuse.

Notwithstanding the above, to the extent the instruction might have been deficient, any resulting error was harmless. The jury obviously believed Marias testimony that defendant penetrated her with his fingers during a violent struggle, causing her pain and bleeding. We can conceive of no scenario reasonably presented by the evidence under which the jury could have believed that the penetration was accidental or for any benign and lawful purpose. Thus, it is unlikely any outcome more favorable to defendant would have resulted in the absence of the alleged deficiency. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see also People v. Flood (1998) 18 Cal.4th 470, 490 [Watson standard applies to instructional error regarding elements of a crime].)

B. Evidence of Prior Uncharged Acts of Domestic Violence

Defendant contends that he was deprived of his constitutional due process rights and right to a fair trial by the admission of evidence of prior uncharged acts of domestic violence.

1. Factual Background

Before trial, the trial court addressed the prosecutors proffer of evidence regarding two prior incidents of domestic violence that defendant committed against Maria. The trial court found that the evidence was probative to show intent, knowledge, and motive. The trial court acknowledged the proffered evidence would be prejudicial, but after balancing that potential prejudice under Evidence Code section 352, the trial court ruled the evidence would be admissible. Thereafter, over defense objection, the trial court allowed the prosecutor to introduce evidence that on August 21, 2005, defendant strangled Maria, causing her to lose consciousness, and that on another occasion, he threatened to fight with the police until they killed him if she called the police.

2. Standard of Review

We review the trial courts ruling on the admissibility of the prior acts evidence under the abuse of discretion standard. (People v. Memro (1995) 11 Cal.4th 786, 864.) We do not disturb the trial courts ruling on appeal unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)

3. Constitutionality of Evidence Code Section 1109

Defendant contends that the admission of prior domestic violence evidence under Evidence Code section 1109 violated his federal Constitutional rights to due process of law and a fair trial. Defendant acknowledges that the California Supreme Court and this court have held that Evidence Code section 1109 does not violate such rights because Evidence Code section 352 provides a safeguard against the admission of uncharged sex offenses when the admission of such evidence could result in a fundamentally unfair trial. (People v. Falsetta (1999) 21 Cal.4th 903, 917; see also People v. Hoover (2000) 77 Cal.App.4th 1020, 1029.) Defendant nonetheless raises the issue to preserve it for federal review. We are bound by People v. Falsetta, supra, 21 Cal.4th at p. 917 (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and we therefore reject defendants argument.

4. Admissibility Under Evidence Code Section 352

Defendant further argues that the trial court abused its discretion under Evidence Code section 352 by admitting evidence of his prior acts of domestic violence.

The trial court has discretion to admit evidence of uncharged crimes the defendant has committed if such evidence is relevant to prove some fact at issue, and the probative value of the evidence is not substantially outweighed by its prejudicial effect. (Evid. Code,  352, 1101, subd. (b); People v. Lenart (2004) 32 Cal.4th 1107, 1123.) Evidence Code section 1109, subdivision (a)(1) specifically provides, Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.

At the hearing on the admissibility of the prior acts evidence, the trial court undertook a careful balancing of the probative value of the proffered evidence and its potential for undue prejudice. (See People v. Brown (2000) 77 Cal.App.4th 1324, 1338.) The trial court found the prior acts evidence to be highly probative. Moreover, the prior acts evidence was no more inflammatory than the evidence of the current crimes, the prior acts were recent, and the evidence of those prior acts did not consume undue time at trial. Those factors all support the trial courts exercise of discretion in admitting the challenged evidence. (Ibid.) We conclude the trial court did not abuse its discretion in admitting the prior-acts evidence.

C. CALCRIM No. 852

Defendant contends that he was deprived of his constitutional due process rights and right to a fair trial by the trial court instructing the jury with CALCRIM No. 852 concerning evidence of uncharged domestic violence. Defendant argues the instruction unconstitutionally permitted the jury to infer he had a disposition to commit domestic violence and was likely to and did commit the charged offense if the jurors found by a preponderance of the evidence that he committed a prior act of domestic violence. Defendant acknowledges that the California Supreme Court has rejected the same argument as applied to the similar CALJIC No. 2.50.01 (People v. Reliford (2003) 29 Cal.4th 1007, 1016), but he raises the issue to preserve it for federal review. We are bound by the holding in People v. Reliford, supra (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455), and we therefore reject defendants argument.

D. Evidence That Defendant Violated a Restraining Order

Defendant contends that he was deprived of his constitutional due process rights and right to a fair trial by the admission of prejudicial and irrelevant evidence that he violated a restraining order.

1. Factual Background

During opening argument, the prosecutor stated that defendant had been arrested about five days after the October 5 incident when he had attempted again to call Marias home bothering her. Defense counsel did not object. The prosecutor further stated that the day after the October 5 incident, Maria had obtained a restraining order against defendant. Defense counsel did not object. During trial, Maria testified that she had obtained a restraining order against defendant, and she had called the police on October 10 because defendant had telephoned her house. Again, defense counsel did not object. Later, Detective Velasquez testified that he had responded to a call at Marias house on October 10 to investigate a possible violation of a restraining order. Defense counsel did not object. Detective Velasquez testified Maria had stated she filed a restraining order against [defendant]. Defense counsel objected on the ground of relevance, and the trial court sustained the objection; however, defense counsel did not move to strike Detective Velasquezs testimony about the restraining order.

2. Standard of Review

We review the trial courts ruling on the admissibility of the challenged evidence under the abuse of discretion standard. (People v. Memro, supra, 11 Cal.4th at p. 864; People v. Guerra, supra, 37 Cal.4th at p. 1113.)

3. Forfeiture

The People first contend that any error in the prosecutors opening argument or in Marias testimony about a restraining order was forfeited because defense counsel failed to raise a timely objection either to the prosecutors comment or to Marias testimony. (People v. Heard (2003) 31 Cal.4th 946, 972, fn. 12.) Nonetheless, to forestall any future claim of ineffective assistance of counsel based on the failure to raise a timely objection, we will consider the issue on the merits. (People v. Norman (2003) 109 Cal.App.4th 221, 229-230.)

4. Analysis

Defendant argues that evidence that Maria filed for a restraining order was improperly admitted, and the trial court erred in failing to strike the evidence and admonish the jury. We conclude, however, that evidence Maria filed for a restraining order was relevant and admissible to show that Maria feared defendant and therefore had not consented to defendants acts on October 5. Thus, there was no abuse of discretion in the admission of that evidence.

Moreover, even if error occurred in the admission of evidence that Maria had filed for a restraining order or that defendant had violated such an order, such error was harmless. Given the strength of the evidence against defendant, it is not reasonably probable that he would have received a more favorable outcome had the challenged evidence been excluded. (Watson, supra, 46 Cal.2d at p. 836.)

E. Flight Instructions

Defendant contends that he was deprived of his constitutional due process rights and right to a fair trial by the trial court instructing the jury that flight after a crime evidences a consciousness of guilt.

1. Forfeiture

The People first contend that any error was forfeited because defense counsel never objected to the trial courts giving the flight instruction. However, this court may review any instruction given even though no objection was made in the lower court if the substantial rights of the defendant are affected. (People v. Arredondo, supra, 52 Cal.App.3d at p. 978;  1259.) We will therefore consider the issue on the merits.

2. Analysis

The law is well settled that the flight of the accused is competent evidence against him as having a tendency to establish his guilt. (Allen v. United States (1896) 164 U.S. 492, 499; People v. Jackson (1996) 13 Cal.4th 1164, 1226.) Moreover, section 1127c requires that the flight instruction be given in any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt.

A flight instruction is proper when the circumstances of the defendants departure from the crime scene permit an inference that his movement was motivated by guilty knowledge. (People v. Turner (1990) 50 Cal.3d 668, 694.) Flight manifestly does require, however, a purpose to avoid being observed or arrested. (People v. Crandell (1988) 46 Cal.3d 833, 869, abrogated on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) Thus, the mere fact that a defendant does not remain at the scene of the crime for a time sufficient to enable the police to arrest him is insufficient evidence to warrant a flight instruction. (People v. Watson (1977) 75 Cal.App.3d 384, 403.) However, it is not necessary that the defendant ran from the scene or made an escape; a flight instruction is proper if the defendant acted with the purpose of avoiding observation or arrest. (People v. Bradford (1997) 14 Cal.4th 1005, 1055 [flight instruction proper when defendant left the victims apartment after killing her, told someone he really got [sic] to get the hell out of here, returned to his apartment and packed his belongings, asked a friend if he could stay with her out of the area, and asked another friend to drive him out of town].) Under the flight instruction, the jury must determine whether the defendants conduct amounts to flight, and if so, the weight to be attached to such evidence. (People v. Olea (1971) 15 Cal.App.3d 508, 516.)

Here, Maria told defendant to leave, and he did so. She had not threatened to call the police before his departure. Mercedes testified at trial that she had seen defendant drive away from Marias house in a normal manner. If that were all the evidence showed, we would be inclined to agree with defendants position that a flight instruction was not warranted.

However, other evidence showed that defendant stopped his sexual assault on Maria only when their seven-year-old son entered the room in response to Maria screaming for him to help her. And an investigator testified that Mercedes told him that defendant had driven away from the scene faster than normal. This evidence leads to a reasonable inference that defendant departed quickly from the scene because of his consciousness of guilt and his desire to avoid arrest, and the prosecutor relied on that evidence in his argument to the jury. There was no error in giving the flight instruction.

F. Prosecutorial Misconduct

Defendant contends the prosecutor committed misconduct by eliciting testimony from Maria that she wanted defendant to undergo rehab after the court had ruled that evidence of defendants drug use was inadmissible.

1. Factual Background

Defendant moved before trial to exclude evidence of his alleged drug use. The trial court ruled that such evidence was not really that probative, but highly prejudicial, [and an] undue use of court time, and therefore would be inadmissible.

During examination of Maria, the prosecutor asked Maria if she was testifying truthfully, and she said she was. The prosecutor asked, Do you want [defendant] to get in any kind of trouble? Defense counsel objected on the ground of relevance, but the trial court overruled the objection. Maria then responded, No. All that I ask for him is for him to rehabilitate of [sic] whatever he has. During closing argument, the prosecutor stated, She doesnt want him to go to jail. She just wants him to get some rehab for whatever problem he has. Defense counsel did not object at trial on the ground of misconduct, and the jury was not admonished or instructed concerning the challenged testimony and argument.

2. Forfeiture

The People contend the issue of prosecutorial misconduct was forfeited because defense counsel never objected at trial on that ground. As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) However, to forestall any future claim of ineffective assistance of counsel based on the failure to raise a timely objection, we will consider the issue on the merits. (People v. Norman, supra, 109 Cal.App.4th at pp. 229-230.)

3. Analysis

From Marias testimony and the prosecutors closing argument, defendant concludes that [a]lthough the prosecutor never mentioned the word drugs, there was no other reasonable interpretation of the meaning of rehabilitation. We reject this argument.

First, it is speculative at best that Marias testimony about wishing defendant to rehabilitate of [sic] whatever he has or that the prosecutors reference to that testimony implied defendant was addicted to drugs. [A] court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations. (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 647; see also People v. Frye (1998) 18 Cal.4th 894, 970; People v. Morales, (2001) 25 Cal.4th 34, 44.) Under the circumstances of the case, the jury could more reasonably have interpreted the testimony and argument to refer to defendants problems of anger, violence, and obsessive jealousy, which were shown by ample evidence, than to drug use, which was not in evidence.

Second, [a] prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citation.] (People v. Samayoa, supra, 15 Cal.4th at p. 841.) And [c]onduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] (Ibid.) The prosecutors conduct in this case falls far short of meeting either the federal or state standards of error. The prosecutors question to Maria does not appear to have been designed to elicit evidence that the trial court had ruled inadmissible, and the prosecutors argument was based on, and did not go beyond, the evidence elicited.

Finally, any error was necessarily harmless. Prosecutorial misconduct is cause for reversal only when it is reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the comment attacked by the defendant. [Citation.] (People v. Milner (1988) 45 Cal.3d 227, 245.) Given the strength of the evidence against defendant, the fleeting and ambiguous references to rehabilitation were not likely to have had any effect on the outcome of the case.

G. Cumulative Error

Defendant contends the cumulative error doctrine requires reversal. Under that doctrine, the cumulative effect of several trial errors may be prejudicial even if they would not be prejudicial when considered individually. (See People v. Sanchez (1995) 12 Cal.4th 1, 60, 63-64.) Here, however, we have found only one error that of instructing the jury with the modified version of CALCRIM No. 1045 and we found that error to be harmless. On its face, therefore, the cumulative error doctrine does not apply.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

KING

J.

MILLER

J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line attorney.

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

^[2] For clarity, Maria P. and Mercedes P. are referred to herein by their first names only.