CALIFORNIA COURT OF APPEAL
SIXTH APPELLATE DISTRICT
Plaintiff and Respondent,
STEFFAN E. CARROLL,
Defendant and Appellant.
Filed June 14, 1993
NOT TO BE PUBLISHED
IN OFFICIAL REPORTS
[[With Annotations and Comments by Appellant.]]
Santa Clara County Superior Court No. 144496
The Honorable Catherine A. Gallagher, Judge
May 9, 1991
Jury: 7 women, 5 men
Attorney for Appellant
3660 Wilshire Blvd. Penthouse F
Los Angeles, CA 90010
James McNair Thompson
Attorney for Respondent
Mary A. Roth
Deputy Attorney General
455 Golden Gate Ave, Suite 6200
San Francisco, CA 94102
Deputy District Attorney
San Jose Police Department
Arresting Officer: Paulides
Investigating Officer: McLaren
Table of Contents
STATEMENT OF PROCEDURE STATEMENT OF FACTS Trial DISCUSSION I. Admission of Prejudicial Evidence Testimony elicited Uncharged acts II. Prosecutorial Misconduct Closing Argument Bad Faith Questions Jury's Responsibility to Return Guilty Verdict Mischaracterization of Burden of Proof Personal Belief in Guilt III. Sufficiency of the Evidence Forcible Oral Copulation False Imprisonment Spousal Battery IV. Time Bar V. Ineffective Assistance of Counsel Failure to request jury instruction Failure to call Cary Snyder VI. Sentencing Errors DISPOSITION
Table of Authorities
ï¿½_ï¿½ï¿½_# 8, 9, 10, 11, 12, 13, 15 ï¿½_ï¿½Dawsonï¿½_ï¿½ v. ï¿½_ï¿½Delawareï¿½_ï¿½ (1992) ___ U.S. ___, 112 S.Ct. 1093 8 ï¿½_ï¿½Peopleï¿½_ï¿½ v. ï¿½_ï¿½Barnesï¿½_ï¿½ (1986) 42 Cal.3d 284 6 ï¿½_# 8, 10, 11, 12, 13, 14, 15, 16, 17
ï¿½_# 8, 10
ï¿½_# 5, 7, 8, 9, 11, 14, 15, 16, 17 Penal Code ï¿½ 288a 15
Plaintiff and Respondent,
STEFFAN E. CARROLL,
Defendant and Appellant.
Santa Clara County
Superior Court No. 144496
CALIFORNIA COURT OF APPEAL
SIXTH APPELLATE DISTRICT
Filed June 14, 1993
NOT TO BE PUBLISHED
IN OFFICIAL REPORTS
Defendant Steffan E. Carroll appeals from the judgment entered after a jury convicted him of several crimes against his wife. He claims numerous errors at trial. We affirm the judgment.
STATEMENT OF PROCEDURE
In January 1991, defendant was charged with bigamy (Pen. Code, ï¿½ 281),[footnote 1] forcible sodomy (ï¿½ 286, subd. (c)), forcible oral copulation (ï¿½ 288a, subd. (c)), false imprisonment (ï¿½ï¿½ 236/237), and spousal battery (ï¿½ 273.5, subd. (a).).
Defendant's demurrer and motion to dismiss were denied, but the bigamy charge was dismissed at the beginning of trial.[footnote 2][*** EOP 1]
On May 9, 1991, a jury convicted defendant of forcible oral copulation, false imprisonment and spousal battery. He was acquitted of forcible sodomy.
On August 28, 1991, defendant's motions for new trial and modification of verdict (filed by substituted counsel) were denied. The court sentenced defendant to state prison for six years (forcible oral copulation), with concurrent terms of three years (spousal battery) and two years (false imprisonment). He now appeals.
STATEMENT OF FACTS
Viewed in accordance with the usual rules on appeal (People v. Barnes (1986) 42 Cal.3d 284, 303), the record shows: In May of 1988, defendant[footnote 3] responded to a personal advertisement placed by Marilyn Ramos, a resident of the Philippines, in "Cherry Blossoms," a magazine through which women (primarily from Asian and Pacific countries) meet men. [[Marilyn's picture was displayed on the cover, along with about a dozen other women, with the caption "18 year old virgin seeks man to take care of her."]] They corresponded for the next several months, although Marilyn's knowledge of English was limited, and her letters were written or translated by "Auntie Gloria." In September 1988, defendant went to the Philippines, married Marilyn and gave her family a $2,000 dowry, most of which went to Auntie Gloria. Defendant soon returned to the United States and Marilyn followed in September [*** EOP 2] 1989 when her visa application was granted. During the interim, the parties corresponded and defendant sent money to Marilyn in the Philippines. [[$1800 total. $150 per month. Respondent's Brief (RB) 7, Reporter's Transcript (RT) 371]] Several of Marilyn's letters expressed concern for her immigration status if the authorities learned she met her husband through an advertisement, so she urged him to write letters back to her saying they had met through friends. [[Defendant refused to do so.]]
When Marilyn arrived in the United States, she found two other women living with defendant in his home: Kimberly Hart (a roommate [[a native, caucasian, female, college student]]) and Preeya Carroll, whom defendant said he had married in Thailand after he married Marilyn. Defendant did not tell Marilyn about Preeya before she arrived because he wanted her to see how she liked the situation. He referred to Preeya as his "wife," not his "spouse," which he considered only a legal designation. Marilyn and Preeya slept with defendant during alternate weeks; they divided household tasks and paid him $100.00 or more a week for "expenses." [[Defendant managed the family finances.]] Defendant called Marilyn his wift's Opening Brief (AOB) 13, RT 327]] He said his goal was to have three wives, and threatened to send her back to the Philippines if she didn't want to work. [[or go to school]]
Marilyn was upset with the situation, but did not want to return to the Philippines. Her English skills were poor and she had no friends in this country. [[She was friends with Tessie Brooks, a Filipina, Emmie Snyder, a Filipina, Kim Hart the roommate, and she had dated a "Mr. Murphy." AOB 8-9]] She also knew she had to remain married for two years to obtain permanent resident status. Marilyn disliked sharing her husband with Preeya and, on one or more occasions, waved a knife at her. Apparently one [[February 21, 1990]] time the police were called, and they sent Marilyn to spend the [*** EOP 3] night in a hotel. [[because she was a danger to Preeya and the defendant.]]
Defendant frequently attempted sodomy with Marilyn, but she resisted vigorously. [[There was no testimony of "vigorous" resistance. RT 137-143]] One time, in the spring of 1990 (approximately March or April), he [[attempted to]] forcibly penetrated her anally with his penis. [[I was found not guilty of sodomy. The jury determined that there was no penetration. This is an erroneous statement of the facts.]] She testified [[She did testify to this, but the jury found it not true.]] that he pushed her down on the bed, held her down as she struggled and penetrated her rectum with his penis. Under cross-examination, she was less than certain about actual penetration.[footnote 4] Defendant then turned her over, sat on her chest so she could not get up, [["so that she could not get up" is a conclusion with no basis in the testimony. RT 140]] and put his penis in her mouth and ejaculated. She was bleeding [[If the jury decieded there was no penetration (and they did) then there could be no bleeding. (And there was none!)]] and crying; he said "Go ahead, call the police, and let's see who's going back to the Philippines." [[This statement was not contemporaneous with the described events, but was made months earlier under non-sexual circumstances when Marilyn was having a temper tantrum. AOB 4, RT 143-144]] According to Marilyn, she did not consent to the acts, [[and she did not not consent either]] but at that time did not know they were crimes. [[The prosecution question Marilyn about "coming in her mouth" as if that was synonymous with oral copulation. Her testimony about not having done it before was in fact about defendant coming in her mouth, not about never having willingly engaged in fellatio. In fact it was a preferred activity for her and she gave herself the nickname "Mrs. Pacman."]]
In addition to her job in a restaurant, defendant encouraged Marilyn to sign up with a telephone dating service. She said he allowed her to have boyfriends if they paid money. Through this service, she met Ken Hopf and went on a date with him on June 14, 1990. The next night, she also went out with Hopf. When she called defendant to tell him she was spending the night with Hopf, [[because she was too tired. Defendant offered to come pick her up and she refused. AOB 12, RT 298-301, RB 4-5]] he became angry and told her that he would tie her to the bed and "fuck [her] up the ass" when she came back home, or would end their relationship. [[if she did not return that night.]]
When Marilyn returned home around noon [[1 pm]] the next day, Preeya [*** EOP 4] Carroll and Kim Hart were there with defendant. After the two women left, defendant demanded an apology. When she refused, they argued. He pushed her down and began to forcibly remove her clothes. He slapped her several times, then grabbed her by the hair and dragged her across the room to the stairs. [[Emphasis added. For this, defendant was sentenced to three years in prison. Defendand had no criminal record, did not drink, use drugs or smoke. He was a highly educated, multiply degreed professional in the aerospace industry. The police had never been summoned before because of wrongdoing by defendant, though they had been called twice before because of Marilyn's violence. If defendant had killed her, then her presentment of adultery would have raised the heat of passion mitigation of the homicide to voluntary manslaughter, a crime punishable by only three, six or eleven years. Yet the law recognizes no mitigating circumstances for even the most minor of domestic battery.]] Screaming, [[the testimony was that she "shouted" AOB 12, RT 308, RB 5]] Marilyn clung to the banister, and defendant eventually abandoned his efforts to remove her. He ordered her to leave and threw her clothes in a box. Defendant left the apartment briefly. [[After the struggle ended the defendant took a shower, put some of Marilyn's belongings into a box and left a message on Ken's answering machine to come pick her up. Thirty to forty-five minutes after the struggle ended the defendant left the home for fifteen minutes and returned with Chinese food. During his absence Marily made no attempt to call the police. Upon his return defendant continued acking her belongings, took them downstairs and left another message for Ken to pick them up.]] Eventually, [[at 4pm, three hours after the struggle at 1pm]] she used the telephone to call the police.
The responding police officer saw no bruises on Marilyn's body when he interviewed her about 4 p.m. that day, but she testified her head hurt for three days. [[Emphasis added. She testified at the preliminary hearing that defendant had never hurt her. She told the responding officer that she was not hurt; the responding officer saw no evidence of hair having been removed, not even a single strand. She told her friends the next day that she was not hurt. She initially testified that she had no injuries from this incident, but after the prosecutor asked her the leading question "How long did your head hurt after he pulled your hair?" She responded "About three days."]] After that, she went to stay with Hopf. Her divorce from defendant became final prior to trial.
[[The following prejudicial paragraph should not be here, it is a way of introducing evidence into this record inappropriately.]] Defendant's successful pre-trial motions kept from the jury much of the evidence seized from his home, including literature and other items exhibiting defendant's interest in certain sexual practices, such as sado-masochism, other evidence of his membership in specific organizations and documents reflecting interest in male/female dominance and submission. The trial court expressed concern that defendant not be tried for his philosophy or his unusual lifestyle. The prosecutor finally conceded the evidence did not meet the requirements of Evidence Code section 1101, subdivision (b). [[The preceding paragraph should not be in this record]]
In addition to Marilyn Ramos and defendant, other witnesses [*** EOP 5] at trial included defendant's roommate Kimberly Hart and Police Officer McLaren, who investigated the crimes. The testimony of the responding police officer (Paulides) was introduced by stipulation.
The complaining witness Marilyn Ramos had difficulty with her English communication skills. She apparently had used an interpreter at the preliminary hearing, and frequently blamed the interpreter for inconsistent statements introduced from that proceeding. Her responses at trial were sometimes confusing or unclear, and even contradictory.
In his trial testimony, defendant essentially admitted the acts of June 16, including the fact that he told Marilyn she would have to submit to anal sex [[at 3am on 6/16 defendant said she would have to submit to anal sex. Defendant did not mention anal sex when she returned at 1pm, or thereafter.]] or move out, that he was angry and planned to do something physical "with" her, and that he pushed, slapped and dragged her. He insisted he pulled her hair only because she was trying to bite him and that the slaps were "stage slaps." As to the March incident, he said there was no anal penetration because of his insufficient erection, and that oral copulation was frequent and consensual. He testified that the partners' fights or struggles frequently led to love-making, [[more accurately: our love-making frequently included fights or struggles]] so he didn't realize Marilyn was not consenting in June. He admitted he did not tell Marilyn about Preeya. He had gone through a religious ceremony with Preeya and intended to divorce Marilyn after two years. He said that he told her about the immigration laws for her own information and not to threaten her with deportation. [*** EOP 6]
I. Admission of Prejudicial Evidence
Defendant first contends that his right to a fair trial was "fatally impaired" by a series of erroneous evidentiary rulings. In essence, he complains that his First Amendment rights were violated by the prosecutor's cross-examination, which elicited testimony about his "social beliefs and practices." The People respond that this information was relevant to attack his credibility and to impeach his testimony.
Defendant relies primarily on the case of Dawson v. Delaware (1992) ___ U.S. ___ [112 S.Ct. 1093], wherein the Supreme Court concluded that the First and Fourteenth Amendments prohibited the introduction in a capital sentencing proceeding of the fact that the defendant was a member of an organization called the Aryan Brotherhood, where the evidence had no relevance to the crime or the issues being decided in the proceeding.
Before reaching the details of defendant's argument, we must consider the basic principles applicable to the admission of evidence. First, all relevant evidence is admissible, except as otherwise provided by statute. (Evid. Code, ï¿½ 351; People v. Green (1980) 27 Cal.3d 1, 19.) Relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action," including evidence relevant to the credibility of a witness. (Evid. Code, ï¿½ 210.) Although some character [*** EOP 7] evidence may be inadmissible when offered to prove specific conduct, relevant evidence offered to support or attack the credibility of a witness is generally admissible, subject to the provisions of Evidence Code section 352. (Evid. Code, ï¿½ 1101, subd. (c); ï¿½ 1100.) Moreover, "Evidence Code section 352 permits the trial court 'to strike a careful balance between the probative value of the evidence and the danger of prejudice, confusion and undue time consumption.' [Citation.] The court's exercise of discretion in admitting or rejecting proffered evidence will not be disturbed on appeal unless there is a manifest abuse of that discretion resulting in a miscarriage of justice. [Citations.]" (People v. Milner (1988) 45 Cal.3d 227, 239.)
Defendant challenges numerous questions asked of defendant concerning his personal preferences in marital partners, his relationship to Marilyn and Preeya and his opinion about male-female relationships. Some of these questions were objected to, but some were not. Accordingly, in the absence of a timely and specific objection on the appropriate ground, we deem the point waived. (People v. Green, supra, 27 Cal.3d at p. 22.)
We conclude the evidence now challenged was relevant to both main witnesses' credibility: defendant's credibility as to the two incidents involved as well as his overall veracity on the stand; Marilyn's credibility, which was attacked in cross-examination on both incidents and on details of the relationship. Defendant basically admitted the events of the [*** EOP 8] June incident, but interpreted them as a domestic disagreement. He insisted the March incident was consensual with no anal penetration [[and the jury agreed there was no penetration]]. He also maintained that he informed Marilyn about the immigration laws for her own benefit, not to threaten her. During her testimony, Marilyn was accused of immigration fraud and tarnished with her inconsistent statements about the offense and her confused, sometimes [[perjurious]] contradictory testimony. Moreover, the context of the relationship shed light on her delay in reporting the March incident.
The prosecutor questioned defendant about his behaviors, preferences and lifestyle choices. He now objects, as unduly prejudicial, to specific questions about his "marriage" to Preeya in addition to his marriage to Marilyn. Most of these questions were not objected to below. More importantly, the essential facts were testified to by Marilyn and were appropriately admitted to show the unconventional living situation.[footnote 5] Marilyn also testified to defendant's desire for several wives. Defendant now attacks the prosecutor's question, over objection, as to how many wives or living partners he wanted to end up with. But he had failed to object to a similar question a few minutes earlier concerning his desire to live with several women as his common law wives. [*** EOP 9]
As to questions concerning his preference for Asian women or methods for finding partners, this information had some probative value on defendant's intent in seeking and bringing to this country marital partners, as well as to threats [[I am legally entitled to exercise my remedies at law. "Threatening" to get a divorce is not menace, duress, or threat of future harm, I am not a public official and no one ever thought I was.]] of deportation. The question that comes closest to implicating defendant's "beliefs" is the prosecutor's query: "Don't you believe that men ought to be the dominant [[There was no expert testimony or "proof" as to what it means in terms of the relationship if one partner believes he should be "dominant." "Dominant"does not mean "domineering" or "abusive"! Not even a dictionary definition of dominant was offered.]] ones in an relationship?" But this question also has some relevance [[no, it does not. It has no relevance at all to anything at issue.]] to his alleged threats [[irrelevant and improper of the court to make this implication]] of deportation as well as his explanation of his slaps and use of physical force in the June incident as de minimis.
Defendant also challenges the testimony concerning and admission into evidence of thumb cuffs and a riding crop, which he admitted using in a sexual interaction with Marilyn. This information was apparently part of a statement given by defendant to the police officer when he was arrested. The trial court initially excluded the evidence under Evidence Code section 1101, subdivision (b), after the prosecutor sought to admit it either as evidence supporting an amendment of dates concerning the false imprisonment charge or as a prior specific incident where his attempted sodomy was prevented by Marilyn's vigorous [[there was never a vigorous struggle and no testimony of any]] struggles. However, the court remarked that the [*** EOP 10] evidence would be admissible if it later became relevant. After defendant previously testified on direct examination that he had never had anal intercourse without Marilyn's consent and that he never tried to override her objections by force, defense counsel asked: "Was there ever a time when you had any sexual conduct with Marilyn that you did not think did not believe that she was consenting to that conduct, whatever it was?" Defendant answered: "No." He then testified she consented to and initiated oral sex. On cross-examination, when defendant again denied non-consensual conduct, the prosecutor sought to admit the sexual devices and statement to the police officer. After a lengthy discussion of the various issues involved, the trial court ruled the items admissible.[footnote 6] [[The police report was not admitted as evidence and there was no opportunity to cross examine the officers, because it was not evidence.]]
Defendant now argues that because Marilyn never testified that this incident was against her will, the items should not have been admitted to impeach his statement that he never forced her to have sexual contact. He claims this evidence was not probative of any issue, and only illustrated an unconventional sexual practice. We disagree. Although we have only the quoted excerpt of the police report before us [[But, again, this was not admitted as evidence, and there was no cross-examination.]], the [*** EOP 11] trial court apparently reviewed the entire document. The reported incident does have some tendency to show previous nonconsensual sexual conduct, and thus is direct impeachment of defendant's denial and reflects on his veracity. (See People v. Harris (1989) 47 Cal.3d 1047, 1082.) Prejudice suffered from such evidence is outweighed by its probative nature.
As to defendant's assertion that the questions and evidence concerned his beliefs and practices and thus were protected by the First Amendment, we disagree. The preferences and lifestyle choices expressed by defendant do not form a coherent set of philosophical or political beliefs [[Yes they do! Buddhism is a major religion, polygyny is the preferred form of marital arrangement, worldwide, and power-exchange sexuality (SM) is a contrived method of relating specifically designed to improve intimacy.]] such that the First Amendment would prohibit their revelation in the context of this trial. (See Barclay v. Florida (1983) 463 U.S. 939 [evidence of defendant's desire to start a race war was relevant to the crimes charged for sentencing purposes].) Accordingly, we decline to review any errors under the harmless beyond a reasonable doubt standard set forth in Chapman v. California (1967) 386 U.S. 18.
To the extent the challenged information had some probative value because of the specific circumstances and crimes at issue here, any prejudice was outweighed. (See People v. Clark (1992) 3 Cal.4th 41, 123-131 [evidence of violence and deviant sexual practices not unduly prejudicial where murders alleged had sexual component]; People v. Nicolaus (1991) 54 Cal.3d 551, 577-578 [evidence of defendant's hostility toward religion admitted as relevant and probative even though prejudicial].) We find no manifest abuse of the trial court's discretion [*** EOP 12] resulting in a miscarriage of justice. (Ibid.; Evid. Code, ï¿½ 353.)
II. Prosecutorial Misconduct
Next, defendant makes numerous claims of prosecutorial misconduct. We consider each separately.
Closing ArgumentLarry, good luck on this - it is a mess, but beyond my expertise to refute!
"An argument by the prosecution that appeals to the passion or prejudice of the jury is improper. [Citations.]" (People v. Pitts (1990) 223 Cal.App.3d 606, 694; People v. Haskett (1982) 30 Cal.3d 841, 863.) However, "the initial question to be decided in all cases in which a defendant complains of prosecutorial misconduct for the first time on appeal is whether a timely objection and admonition would have cured the harm. If it would, the contention must be rejected [citation]; if it would not, the court must then and only then reach the issue whether on the whole record the harm resulted in a miscarriage of justice within the meaning of the Constitution." (People v. Green, supra, 27 Cal.3d at p. 34.)
Defendant insists that the prosecutor's closing argument unfairly emphasized his beliefs, attitudes, and practices, especially through the prosecutor's theme that defendant engaged in a pattern of exploitation, both economically and sexually.[footnote 7] He also maintains that his lack of objection is [*** EOP 13] excused because of the trial court's previous erroneous rulings. (People v. Pitts, supra, 223 Cal.App.3d at p. 693.)
We have already determined that the evidence referred to by the prosecutor was properly admitted. If defendant believed the emphasis on exploitation was unfair, he should have objected at trial and requested a curative admonition. "[I]t is well settled that the prosecutor has broad discretion to state his or her views as to what the evidence shows and what inferences may be drawn therefrom. [Citations.]" (People v. Kelly (1990) 51 Cal.3d 931, 967.) Both counsel in closing [*** EOP 14] argument pointed out that defendant was not to be convicted because his lifestyle was objectionable.
Bad Faith Questions
Next, defendant asserts he was prejudiced by the prosecutor's repeated bad faith questions accusing him of having multiple wives. He points first to the cross-examination of Kim Hart (his roommate), when counsel objected to the question: "And did he tell you he married Preeya before he brought her back?" After defense counsel's objection on relevance grounds and a conference at the bench with no reported ruling, the prosecutor went on to a different topic. Initially, we note that the most logical reading of the transcript at this point indicates the objection was sustained. In addition, counsel's failure to obtain a ruling on the record waives the point for appeal. (See People v. Hayes (1990) 52 Cal.3d 577, 619.) Defendant then points to several questions the prosecutor asked in cross-examining him about his desire for more than one wife the same questions complained of above.
Only one of these questions was objected to. Defendant asserts that the initial objection he made to the question asked of Kim Hart obviated the need for further objections because of the trial court's ruling. This is clearly incorrect. As noted above the record contains no ruling on the objection and it seems to have been sustained. An objection to a similar question asked directly of defendant should have been raised when the question was first asked. [*** EOP 15] (See People v. Green, supra, 27 Cal.3d at p. 22, fn. 8.)
After numerous questions of defendant relating to his desires for more than one wife, defense counsel objected on relevance and Evidence Code section 352 grounds, and a lengthy discussion was had on the record but outside the presence of the jury. Essentially, the trial court overruled the objections but urged the prosecutor to move on and not repeat the same questions. Defendant assigns error to two later questions: "Isn't it true that you had been trying to get additional wives the whole time that you were staying there?" "Okay. During the whole time that Marilyn was living there with you at the Norwalk address, you were in the process of trying to solicit other wives, weren't you?" Defense counsel renewed his continuing objection to the first of these questions.
"The rule is well established that the prosecuting attorney may not interrogate witnesses solely 'for the purpose of getting before the jury the facts inferred therein, together with the insinuations and suggestions they inevitably contained, rather than for the answers which might be given.' [Citations.]" (People v. Wagner (1975) 13 Cal.3d 612, 619.) Defendant insists that these questions prejudicially influenced the jury to believe he committed bigamy, when that charge had been dismissed prior to trial.[footnote 8] [*** EOP 16]
Defendant might have argued more successfully that the questions were repetitious or had been asked and answered. Even were we to assume error in permitting these questions to be asked, we see no prejudice because we find no reasonable probability of a different outcome in the absence of the error. (People v. Green, supra, 27 Cal.3d at p. 27.) Here, the general topic of more than one wife was introduced during the direct examination of Marilyn because it related to the unusual living situation she encountered when she arrived in this country as defendant's "wife." Defendant himself admitted that he did not tell Marilyn of this situation before marriage, and that he considered both women his wives. We do not see how the further, although possibly repetitive, questions about multiple wives could have prejudiced defendant such that a different verdict was reasonably probable.[footnote 9] [*** EOP 17]
Jury's Responsibility to Return Guilty Verdict
After urging the jurors to evaluate the truth of defendant's statement that he told Marilyn about deportation only for her information, not to control her, the prosecutor cited the jury instruction concerning a witness testifying falsely in one part of his testimony. The prosecutor then stated: "And it also sheds light on the defendant's frame of mind and his attitude toward this trial. He's trying to continue his pattern of exploitation. First it's Marilyn, then it's Preeya, now it's the system, and ultimately it's you. He's gotten away with it so far. He's trying to pull it off one last time. Don't let him do it." We do not read this portion of the closing argument as inappropriately urging the jury to return a guilty verdict and uphold its civic responsibility. Moreover, no objection was raised, and we consider it waived. (People v. Green, supra, 27 Cal.3d at p. 34.)
Mischaracterization of Burden of Proof
Defendant contends the prosecutor incorrectly defined "reasonable doubt" in his closing argument, thus undermining the reasonable doubt standard and mischaracterizing the burden of proof the state must meet. The People reply that the remarks were only a colloquial explanation of the concept of proof beyond a reasonable doubt, and that a misstatement of the law is only misconduct if done deliberately or in bad faith. (See People v. Bonin (1988) 46 Cal.3d 659, 702,)
In discussing the concept of reasonable doubt, the [*** EOP 18] prosecutor remarked that the definition was an example of "convoluted legalese." He then explained that the range of certainty required varied from civil to criminal trials and noted that the instruction on reasonable doubt didn't require scientific certainty. The remarks and the defendant's objections are set forth in full in the margin.[footnote 10] [*** EOP 19]
The state has the burden of proving a defendant guilty beyond a reasonable doubt. (ï¿½ 1096.) The Penal Code defines reasonable doubt,[footnote 11] and instructs that the court may read to the jury the statutory definition "and no further instruction . . . defining reasonable doubt need be given." (ï¿½ 1096a.) Error generally arises in the context of an incorrect instruction by the trial court. (See, e.g., People v. Garcia (1975) 54 Cal.App.3d 61, 63-67; People v. Rubalcava (1988) 200 Cal.App.3d 295, 299.) Here, there is no claim that the trial court mistakenly defined reasonable doubt; only that the prosecutor incorrectly explained the concept in his closing argument.
Certainly counsel have broad discretion in closing arguments to discuss the legal and factual merits of the case; however, "it is improper to misstate the law. [Citation.]" (People v. Bell (1989) 49 Cal.3d 502, 538.) Defendant twice, objected and each time the court admonished the jury. [[No, the jury was never admonished.]] We must assume the jury followed the trial court's instructions and admonitions. (People v. Frank (1990) 51 Cal.3d 718, 728.)
Defendant further asserts that the prosecutor's erroneous explanation implicates a federal constitutional right and thus [*** EOP 20] requires our review under the Chapman standard of determining whether the error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18.) However, our Supreme Court recently discussed the appropriate standard of review for prosecutorial comments, in the context of Griffin error and "prosecutorial remarks generally." (People v. Clair (1992) 2 Cal.4th 629, 662-663.) The Clair court noted that the United States Supreme Court embraced "the 'reasonable likelihood' standard for reviewing ambiguous instructions under the United States Constitution," which involves "inquiring whether there is a reasonable likelihood that the jury misconstrued or misapplied the words in violation of that document. [Citation]" (Clair, supra. 2 Cal.4th at P. 663.) The court also noted that '[a]lthough the same standard is applicable for instructions by the court and comments by the prosecutor, it must be used with recognition of the differing nature and force of its two objects in the eyes of the jury. We presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade." (Id. at p. 663, fn. 8.)
Here, we see no reasonable likelihood that the jury misconstrued the instruction or misapplied the prosecutor's words. (People v. Clair, supra, 2 Cal.4th at p. 663.)
Personal Belief in Guilt
"A prosecutor may not express a personal opinion as to guilt 'if there is substantial danger that a juror will [*** EOP 21] interpret it as being based on information not in evidence.' [Citation.]" (People v. Frierson (1991) 53 Cal.3d 730, 748.) On this ground, defendant attacks several statements in the prosecutor's rebuttal argument.
Initially, the prosecutor, after explaining the purpose of rebuttal, said: "Prosecutorial ethics prevent prosecutors from individually saying what we think the facts of the case are or what we personally believe of the defendant's guilt or innocence. What I'm telling you is what I believe the evidence shows. So you aren't going to hear me say I this, I that. It isn't because I don't have those beliefs, it is I can't express them in this context." This was actually a response to comments by defense counsel in his closing argument concerning his beliefs about marriage, love, relationships and including the statement: "[T]he fact is he's not guilty of each of those charges." We do not read the prosecutor's comments as expressing a personal belief in defendant's guilt based on information outside the record. Moreover, defendant made no objection at the time and his later motion for mistrial based on this and other statements does not negate the deficiency. Nor was there a specific objection to the prosecutor's final statement: "The reason the People have to prove their case beyond a reasonable doubt is to protect the innocent, not set the guilty free."
Unlike cases relied on by defendant, here the prosecutor did not intimate a pre-trial personal belief or one based on other information. (See, for example, People v. Bain (1971) 5 [*** EOP 22] Cal.3d 839, 848 [district attorney expressly told jury he would not have prosecuted defendant unless he personally believed him guilty]; People v. Alverson (1964) 60 Cal.2d 803 [Prosecutor asking for acquittal of one defendant based on his personal belief in innocence reflected an improper implication of belief in co-defendant's guilt]; see also People v. Green, supra, 27 Cal.3d at p. 35 [challenged remark did not mislead jury into believing prosecutor's request for verdict based on his own opinion and on evidence not introduced at trial].)
III. Sufficiency of the Evidence
"The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Jones (1990) 51 Cal.3d 294, 314, citations omitted.) We review defendant's claims of insufficient evidence with these principles in mind.
Forcible Oral Copulation
Defendant first claims that his acquittal on the companion charge of forcible sodomy demonstrates that there was insufficient evidence of the requisite force necessary for conviction of forcible oral copulation. We disagree. [*** EOP 23]
First, the record does not reveal on what evidence (or lack of it) the jury based its decision to find defendant not guilty of the sodomy charge. However, our reading of the record shows that the jury could have based its decision on Marilyn's inconsistent testimony about actual penetration and defendant's testimony that sodomy was not possible because of erectile insufficiency.[footnote 12] And, in fact, this possibility is consistent with the jury's determination that defendant did commit oral copulation, even though he did not commit sodomy.
Defendant is correct that the force required is force "substantially different from or substantially greater than that necessary" to accomplish the act itself. (People v. Bergschneider (1989) 211 Cal.App.3d 144, 153; see also People v. Quinones (1988) 202 Cal.App.3d 1154, 1158.) Here, Marilyn testified [[which doesn't make it true]] that defendant pushed her down on the bed, so she couldn't get up [[There was no such testimony]], sodomized her [[Not true, Defendant acquitted of ï¿½286(c)]], then "he turn me over and sat down on my chest and comes in my mouth. . . . . still struggle, but I can't move." The police officer's report [[There was no translator present, and was this report even admitted as evidence?]] indicated Marilyn said defendant "forcibly" [[was there a translator present, or is this what the officer read into what he thought Marilyn might be saying in response to a question she probably did not understand.]] put his penis in her mouth. We conclude this is sufficient evidence for the jury to find forcible oral copulation. "The testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions. [Citations.]" (In re Frederick G. (1979) 96 Cal.App.3d 353, 366.) Defendant's interpretation that his [*** EOP 24] sitting on her chest was merely positional and that his entry into her mouth required her cooperation present factual questions appropriately determined by the jury. The jury was correctly instructed on the legal requirements of the offenses charged.
We are aware of our previous decisions in People v. Schulz (1992) 2 Cal.App.4th 999 and People v. Senior (1992) 3 Cal.App.4th 765 and their discussions of sufficient force in the child molestation context. In both cases, however, the defendants' convictions were upheld on the basis of duress. (Schulz, supra, 2 Cal.App.4th at p. 1005; Senior, supra, 3 Cal.App.4th at p. 775-776.) Also, here, Marilyn testified to a struggle; the Senior court specifically noted there was no evidence of a struggle in that case. (3 Cal.App.4th at p. 774.)
Defendant was also convicted of felony false imprisonment: the "unlawful violation of the personal liberty of another," effected by "violence, menace, fraud, or deceit . . . . (ï¿½ï¿½ 236, 237.) He claims any restraint or force used was only incidental to the physical conflict between the parties. Recently, in People v. Hendrix (1992) 8 Cal.App.4th 1458, 1462, the court explained: "Force is an element of both felony and misdemeanor false imprisonment. Misdemeanor false imprisonment becomes a felony only where the force used is greater than that reasonably necessary to effect the restraint. In such circumstances the force is defined as 'violence' with the false imprisonment effected by such violence a felony." Here, [*** EOP 25] Marilyn testified that after she returned home on June 16, she refused to apologize to defendant even though he threatened [[no such contemporaneous threat occurred and there was no testimony that it did]] to sodomize her. She said he "suddenly hit me," "slapped me back and forth," "choke me and drag me . . . by my hair." She estimated that he dragged her 15 or 20 feet across the living room, to the bottom of the stairs, where she grabbed on to the banister and screamed. In fact, defendant admitted to forcibly trying to remove her clothes, slapping her, which he described as "stage slaps," and then dragging her by the hair, as he explained, to keep her from biting him. From this testimony, the jury could have concluded Marilyn was being restrained and forced to a location against her will with the use of force in excess of that needed to simply confine or move her. The parties' testimony that shortly thereafter defendant left Marilyn alone in the house briefly does not negate the preceding period of time during which she was confined against her will by violence.
In order to prove the crime of spousal battery, the prosecution must prove; (1) that one spouse intentionally inflicted a bodily injury upon the other spouse, and (2) that such bodily injury resulted in a traumatic condition. (See CALJIC No. 9.35.) "Traumatic condition" is defined as "a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force." (ï¿½ 273.5, subd. (c).) Marilyn testified that her head hurt for three days [[It is impossible for a head to hurt for three days from simple hair pulling. There was no medical evidence. Police are trained to use the technique specifically because it causes no injury.]] after defendant dragged her [*** EOP 26] across the room by her hair. Defendant claims such injury is transient, insubstantial and only incidental to the battery.
But the statute specifies that even a minor injury is the requisite traumatic condition. (ï¿½ 273.5, subd. (c).) [[A better interpretation is that a "traumatic condition," according to prevaling medical definitions, must exist and that it must be evidenced by some "injury." Pain is not, by medical definition, an injury. An "injury" requires some objective physical manisfestation.]] This element of the statute was approved by the court in People v. Gutierrez (1985) 171 Cal.App.3d 944, 952.) The court explained that some other offenses require higher degrees of harm to be inflicted before the crime denounced by them is committed (felony battery or felony assault), but "the Legislature has clothed persons of the opposite sex in intimate relationships with greater protection by requiring less harm to be inflicted before the offense is committed." (Ibid.)[footnote 13] We think the prolonged "hurting" of Marilyn's head is sufficient injury as required by the statute. [[This runs contrary to the oft stated public policy that "the state has an overriding interest in preserving the institution of marriage" (People v. Cameron (1975) 53 Cal.App.3d 786, 791)" Few, if any, marriages would survive the imprisonment of the principal earning spouse for three years because of a minor "hurt."]]
Defendant insists that allowing such an insubstantial and incidental injury to qualify as a spousal battery will "felonize" all spousal batteries and thus will not deter the infliction of more serious injuries. (See People v. Daniels (1969) 71 Cal.2d 1119, 1132-1133, discussing forcible kidnapping statute's element of bodily harm as requiring more than trivial injury.) We disagree. The Legislature obviously intended to punish more seriously even minor injuries inflicted by a spouse or partner. [[??? Really? Obviously?? Reasonable people could disagree.]][*** EOP 27]
Defendant further claims he was guilty only of a simple battery. (ï¿½ 242.) But he specifically declined jury instructions on that offense, and cannot now claim reversible error. (People v. Duncan (1991) 53 Cal.3d 955, 969.) Substantial evidence supports his conviction for spousal battery.
IV. Time Bar
Defendant next contends his prosecution for forcible sodomy and forcible oral copulation was barred by the 90-day reporting requirement applicable to spousal rapes under section 262, subdivision (b). That section prohibits arrest or prosecution for spousal rape unless the violation is reported to a peace officer or district attorney within 90 days after the day of the violation.[footnote 14] Defendant argues that the statute is broad enough to cover other sex acts, but he presents no authority for this position.
Section 262, subdivision (a) provides, in pertinent part: "Rape of a person who is the spouse of a perpetrator is an act of sexual intercourse accomplished against the will of the spouse by means of force or fear . . . ." In ascertaining legislative intent, we look to the language of the statute and [*** EOP 28] "accord words their usual, ordinary, and common sense meaning based on the language the Legislature used and the evident purpose for which the statute was adopted. [Citations.]" (In re Rojas (1979) 23 Cal.3d 152, 155; People v. Catelli (1991) 227 Cal.App.3d 1434, 1448.) The statute specifically prohibits the act of sexual intercourse. We think a common sense interpretation of this statute prohibits the act of vaginal intercourse against the will of a spouse.I had an extensive comment here, seperately typed. Where is it? Labeled "A". The dictionary definition of sexual intercourse is coitus, in turn defined as the "physical union of male and female sexual organs . . . ." (Am. Heritage Dictionary (2d Col. ed. 1991), pp. 289, 1124.)
Section 262 was added by the Legislature in 1979, and is in direct contrast to the general rape statute (ï¿½ 262), prohibiting sexual intercourse under specified conditions with "a person not the spouse of the perpetrator . . . . No such distinction exists in the statutes prohibiting nonconsensual sodomy or nonconsensual oral copulation. (See ï¿½ï¿½ 286, 288a.)
Moreover, we note that defendant was not convicted of the sodomy charge. Even if his point were arguable concerning sodomy, stretching the statute to cover oral copulation is an even more difficult task. [[How? Oral copulation is a very common marital sexual practice, much more so than anal sexI had a comment "B" here. Where is it? .]]
Defendant has presented little analysis and no authority for his statement that these statutory distinctions violate his right to equal protection. In light of the original rape statute. which prohibited nonconsensual intercourse only with a person other than a spouse, we think the Legislature had a rational basis to criminalize and subject to a reporting [*** EOP 29] requirement vaginal/penile intercourse, as the commonly acknowledged sexual interaction between marital partners.
Defendant's further complaint that the trial court erred in failing to give jury instructions based on his legal positions as set forth above and in the previous section is without merit.
V. Ineffective Assistance of Counsel
"To show ineffective assistance of counsel, defendant has the burden of proving that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [parallel citation]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218 [parallel citation].) A mere failure to object to evidence or argument seldom establishes counsel's incompetence. (People v. Ghent  43 Cal.3d [739,] 772; see also [People v.] Frierson  25 Cal.3d [142,] 158.)" (People v. Frierson, supra, 53 Cal.3d at p. 747.) "If the defendant fails to establish the prejudice component of the ineffectiveness claim, a reviewing court need not determine whether counsel's performance was deficient. [Citation.]" (People v. Hayes, supra, 52 Cal.3d at p. 608.)
Defendant complains his counsel at trial was ineffective because: (1) he failed to request a jury instruction based on certain immigration laws; and (2) he failed to call a specific [*** EOP 30] witness.
Failure to request jury instruction
Defendant asserts trial counsel should have requested a jury instruction specifically setting forth the immigration statutes, which require a showing of spousal abuse or lack of fraudulent intent in order to except an alien with permanent resident status based on marriage from the two year-marriage requirement to avoid deportation. (See 8 U.S.C. ï¿½ï¿½ 1186a, subd. (c)(4)(C); 1251, subd. (a)(1)(G).) He reasons that Marilyn's fear of deportation and desire to leave the marriage gave her a motive to fabricate charges against him. But this issue was explored on cross-examination, fully [[Absolutely not, there was only one or two brief questions on this issue]] informing the jury of this possibility. And in fact, her credibility was challenged in numerous ways. Moreover, the parties were divorced at the time of trial. There is no showing that Marilyn Ramos was in violation of the immigration statutes or that she was being prosecuted by immigration authorities. [[This would not have become an issue until September 1991 when Marilyn's two year limit was up.]] We see no reasonable probability of a different result if in fact the precise language of the relevant immigration statute had been before the jury as an instruction. Careful consideration of the immigration statutes by the jury might have redounded to defendant's disadvantage, as his marital intentions might be judged fraudulent and thus in violation of immigration statutes. [[So? It would have shed more light on Marilyn's motives, and Defendant's marital intent was not at issue in this trial. In any case, Defendant was not in any violation of immigration law.]]
Failure to call Cary Snyder
According to Snyder's declaration and testimony at the hearing on defendant's new trial motion, he offered to testify to a conversation with Marilyn shortly after the incident in [*** EOP 31] which she said defendant had not hurt her and he observed no marks or bruises on her. Snyder and his Filipina wife knew defendant through a business relationship; his wife apparently disappeared because she did not want to testify at the trial. [[She did not want to testify against a Filipina because it was not the thing to do, within the Filipino community, not because her testimony would have been false.]] Defendant's trial counsel testified that he doubted Snyder's credibility, tried to find his wife to testify (the longer conversation with Marilyn had been mainly in Tagalog), and believed sufficient evidence was already before the jury showing no visible injuries (through the victim herself and the police officer). This could be considered a satisfactory explanation. (See People v. Sanders (1990) 221 Cal.App.3d 350, 377.) More importantly, we do not believe admission of this testimony would have any reasonable probability of effecting a different outcome.
VI. Sentencing Errors
Finally, defendant claims two sentencing errors: failure to state reasons and violation of section 654. In denying probation, the trial court noted that it would be denied "because of the nature and seriousness of this crime and the circumstances under this crime. Also, it's fairly obvious the defendant is ineligible for probation because of the nature of this crime."
Because of his section 288a, subdivision (c) conviction, defendant was statutorily ineligible for probation. (ï¿½ 1203.065, subd. (a).) Thus, a statement of reasons was not [*** EOP 32] required for choosing a middle state prison sentence over probation. (People v. Langevin (1984) 155 Cal.App.3d 520, 523; see also People v. Hawthorne (1991) 226 Cal.App.3d 789, 793, fn. 5.)
As to the second alleged error, the Attorney General concedes that the acts of cohabitant battery and false imprisonment were part of an indivisible transaction with a common objective and thus one of the concurrent terms should be stayed under section 654. (People v. Williams (1984) 157 Cal.App.3d 145, 157.) We remand for the limited purpose of staying the two-year concurrent term on count 3.
The trial court is directed to modify the judgment to reflect a stayed sentence on Count 3. As modified, the judgment is affirmed. [*** EOP 33]
People v. Carroll
*** End of Official Report ***
1. All further statutory references are to the Penal Code unless otherwise indicated.
2. The remaining counts were renumbered 1 through 4.
3. Defendant was employed as an engineer. [[with a Masters in Business Administration. He is a Buddhist and a Humanist. Marilyn was a Mormon.]]
4. Her statement to the investigating police officer and at the preliminary hearing indicated no penetration.
5. No objection was made to the question eliciting defendant's response that he intended to "terminate the civil marriage" with Marilyn after two years.
6. [[This was not admitted as evidence, and therefore there was no opportunity to cross-examine or to otherwise clarify the meaning and context of these acts. In fact, it was just good clean, consensual marital fun.]] The prosecutor read from the police officer's statement: "'In March, he handcuffed the victim, Marilyn Carroll's hands, using his thumb cuffs. Forced her face down on the bed. He said he hit victim, Marilyn Campbell [sic], several times in the butt with a riding crop and then attempted anal intercourse with victim, Marilyn Carroll. . . . Suspect Carroll said victim, Marilyn Carroll, began to struggle to the point where suspect Carroll could not make penetration. Suspect Carroll said he gave up and made rear entry, vaginal intercourse with victim Marilyn Carroll.'"
7. "[DISTRICT ATTORNEY] . . . Now, this is an unusual case with very unusual facts, but I think there's one common theme that runs throughout it, and that common theme is exploitation. . . . The defendant testified that marriage doesn't mean a whole lot to him; he wants up to seven wives. Okay. So what does he really want? He's looking for servants. He's looking for someone to be submissive to him. He's looking for someone he can control. . . . [ï¿½] We're talking about Marilyn and Preeya now. Controls them with the threat of deportation [[Even if it were true, and it is not, it is legally proper for me to divorce a wife and I should not be prejudiced by doing that which I have a right to do.]]. Both Marilyn and Preeya depended on the defendant for them to stay in this country [[Not true, they were both here with legitimate visas and had jobs.]]. And with respect to Marilyn, why else would a woman who's married consent to live in a threesome with her husband? [[Polygyny is much more common in the world than is the serial monogamy practiced in this country. It is in fact, world-wide, the preferred form of family. Marilyn was a Mormon and a Filipina, don't impute christian american values to her.]] She doesn't want to go back. She feels like she's stuck. [[She had many options, including returning home. It was improper for the court to allow returning home to be characterized as a hardship.]] So the defendant brings her here, never tells her that he's already got another woman living with him here. . . . He's earning money from them, once they start working, so they aren't praying on his resources, they're benefiting him. And they're benefiting him in another way, as he's sleeping with them on an alternating basis, for at least the first couple of months that they are there. [ï¿½] So we've got economic exploitation concerning their pay and their work. We've got sexual exploitation and we've got psychological exploitation. He dominants [[wrong!]] [sic] them. . . . Marilyn isn't as compliant as the defendant hoped. And she's especially not compliant in that one particular area where he has a specific interest, and that is she won't give him what he wanted in bed, sodomy. Marilyn testified the defendant tried to sodomize her on numerous occasions. Based on that in the defendant's own statement of being interested in sodomy we know he's got an interest in this area. We also know by his own admission, that when he gets angry, he gets horny."
8. The parties now disagree as to the reason the bigamy charge was dismissed. Defendant claims the prosecutor knew defendant was not guilty of having more than one legal marriage and thus dropped the charges. The People insist that the requisite documentary evidence of an official marriage registered in Thailand could not be obtained, and that is why the prosecutor dismissed the charges. The People also speculate that Preeya Carroll's testimony would not be available at trial. However, at the preliminary hearing she testified that she and defendant had a religious marriage in Thailand but never officially registered it and that she understood she would not legally be married to defendant until he divorced Marilyn. This dispute involves speculation, the parties' differing interpretations of "marriage" and is not directly relevant to our resolution of this issue.
9. We reject defendant's position that any misconduct here and in closing argument implicates the harmless beyond a reasonable doubt standard of Chapman v. California, supra, 386 U.S. 18.
10. "[DISTRICT ATTORNEY] . . . What most defense arguments boil down to really is that the People haven't proved their case because we haven't proved it beyond a reasonable doubt. That requires you to judge what does the reasonable doubt instruction really mean. It's one of the most convoluted cases of legalese that most of us have probably ever seen. Unfortunately, that's the standard. So I just want you to think about this a little bit. The People have to prove their case beyond a reasonable doubt, and that means that to a moral certainty. [ï¿½] Well, what's beyond a reasonable doubt? We all know in a civil case you have to prove something just over fifty percent in order to prevail. We also know that beyond a reasonable doubt is not a hundred percent certainty, because that's impossible, and the judge will instruct you about that. So we just know its somewhere in that range and that's a heck of a large range. So what are we really talking about? [ï¿½] [DEFENSE COUNSEL]: I'm going to object to that characterization as a misstatement of the law. THE COURT: Sustained. [ï¿½] Ladies and Gentlemen, I will read you the appropriate instructions. [ï¿½] [DISTRICT ATTORNEY]: Here's how I want you to think about reasonable doubt. Here's absolute certainty up here, okay, that's not reasonable doubt. So what's the next level below that? Scientific certainty. What's scientific certainty? Well, there's certain things scientists can test, we can say within a certain percentage of error certain things are true, based on physical properties and that type of thing. Does the jury instruction say scientific certainty? No, it doesn't. So we've gone from absolute certainty to scientific certainty. That's not it. What's the next level down? Moral certainty. What's moral certainty? It has to do with every day life, day to day affairs of people. This is why I asked you during jury selection, don't leave your common sense at home. What is [ï¿½] [DEFENSE COUNSEL]: Your honor.rjection of scientific certainty into the reasonable doubt instructions. Again I'm convinced it misstates the law. [ï¿½] THE COURT: Scientific certainty isn't one of the elements, but you can continue and I'll be giving you the instruction."
11. "Reasonable doubt is defined as follows: 'It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they can not say they feel an abiding conviction, to a moral certainty, of the truth of the charge.'" (ï¿½ 1096.)
12. Defense counsel urged this approach in closing argument.
13. In Gutierrez, the husband pushed his wife, knocked her down, banged her head on the floor, grabbed her by the neck leaving a red mark, dragged her by the hair (causing her to lose quite a bit of hair) and through glass, causing lacerations to her legs. (Id. at p. 947-948.)
14. There is no showing that defendant demurred otherwise raised this issue before trial. [[The general demurrer ws that. We wanted more specificity as to acts, dates, and times.]] It first appears in his new trial motion. It is arguable that he has waived this claim.