P. v. Salazar

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Filed 12/12/06 P. v. Salazar CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ROLANDO DEJESUS SALAZAR,
Defendant and Appellant.
C050817
(Super. Ct. No.
03F06229)
A jury convicted defendant Rolando Salazar of forcible
sexual penetration based upon his digital penetration of the
vagina of a girl (the victim) when defendant was 40 years old
and the victim was 14 years old. The trial court sentenced
defendant to the upper term of eight years in state prison.
On appeal, defendant contends the verdict is not supported
by substantial evidence. He also contends that his conviction
must be reversed because of prosecutorial misconduct, ineffective
assistance of counsel, and instructional error, or because of the
cumulative effect of the errors at trial. In addition, defendant

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challenges the imposition of the upper term. We shall affirm the
judgment.
FACTS
The victim, who was 17 years old at the time of trial,
testified that defendant worked with her father, selling and
delivering meat. The two men were friends outside of work also.
From the time the victim was eight years old, she accompanied
her father to work several nights a week. When her father
became the manager, she assisted him in the office and played
pool with the men who worked there. The victim would joke with
the men, including defendant, and would let them know when it
was her birthday, hoping they would buy her a present.
When the victim was 12 years old, defendant started talking
“dirty” to her. For example, he asked to see her in a wet T-shirt.
When she was 13, he asked when he was going to see her in a thong.
Defendant rubbed her “behind” with his hand when she leaned over to
take a shot while playing pool. He touched her bottom a couple of
times, but the victim did not say anything to defendant or to her
parents about defendant’s conduct.
On May 23, 2003, when the victim was 14 years old, she and
her girlfriend (friend) decided to “ditch” school. After leaving
the campus, the girls wanted to go somewhere but needed a ride,
so the victim decided to call defendant because he was “cool” and
“easy going.” She knew his cell phone number, having called him
several times on her father’s behalf regarding work. The victim
telephoned defendant, told him she and her friend were ditching
school, and asked if he would give them a ride.

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Defendant left work, drove 20 to 25 minutes, and picked up
the girls. When he arrived, they asked him to drive them to a
movie theater, but he suggested they go to Discovery Park instead.
On the way to the park, defendant stopped at a liquor store and
bought vodka, which they drank after they arrived at the park.
At one point, while they were sitting on a bench defendant put
his hand under the victim’s T-shirt, but over her undershirt,
and touched her breast. This made the victim feel “[w]eird.”
The girls then walked to another part of the park to watch
the boats. According to the friend, defendant made inappropriate
“sexual” comments about wanting to see the girls in wet T-shirts
or swimming in their underwear. Defendant pretended to try to
throw the victim into the water, and the two wrestled playfully for
about 10 to 15 minutes. While they were wrestling, they fell to
the ground. The victim bit defendant’s arm because she “was trying
to get him . . . off of [her].” The friend thought the bite might
have been a signal to defendant to stop. She left the area and
went to the restroom because she felt “a little uncomfortable.”
She could not tell if their actions were “okay”; it seemed like
they were “joking around,” but “it just still didn’t sit right with
[her].” She asked the victim to go to the restroom with her, but
the victim did not accompany her.
After the friend left, defendant tried to kiss the victim on
the lips. He held her by both wrists so she could not get away.
She asked him to stop, but he held her wrists “very firmly” and
said, “[N]o, you know you want to kiss me” and “you know you want
to fuck me.” The victim yelled for her friend and repeatedly told

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defendant to stop and that she wanted to leave. Defendant tried
to kiss her again, but the victim moved her head to prevent him
from kissing her on the mouth.
Defendant got behind the victim and, while holding one of
her wrists, he put his other hand down her pants. He inserted
a finger into her vagina, which hurt her. The victim was scared
and kept yelling for her friend. She struggled to get away, but
could not stop defendant because “he had [her] wrist.” The victim
testified she never gave defendant permission to insert his finger
in her vagina.
After defendant removed his hand from her pants, the victim
saw her friend returning from the bathroom, and took her back into
the bathroom to tell her what had occurred. The victim cried as
she said defendant touched her with his hand down her pants.
The friend told the victim to fix herself up; they then left the
bathroom and tried to appear normal because they needed a ride
back to school. Defendant drove them back to school in time for
the victim’s mother to pick them up.
The next morning, the victim told Mark, one of her father’s
coworkers, what had happened. With his encouragement, she told
her parents about the incident. She also reported it to the
police. According to one of the officers, the victim was very
emotional and was crying during her statement. She said that
she had a bruise on her left wrist, but the bruise was not
visible in the photographs shown to the jury.
A few days later, the victim spoke with Detective Gerald Roth.
Roth observed that the victim seemed young for her age, cried while

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talking to him, and was embarrassed when she discussed the more
intimate details of the incident. She agreed to make a pretext
call to defendant, but he did not answer his phone. A couple of
hours after Detective Roth left, the victim called defendant again
and recorded the conversation on her own tape recorder. She then
contacted Roth and told him that defendant had denied he had been
with her, which upset her. She was concerned people would think
she was a “slut.”
The victim and Roth made another pretext call on June 3, 2003.
Defendant initially denied touching the victim, but then stated
repeatedly that he had made a “mistake.” When the victim asked
why he put his hand down her pants, defendant replied he was “just
playing around,” asked if she had told the police, and asked her
to forgive him. The victim responded, “[B]ut you put your finger
inside me and everything. Now like it’s going to be . . . weird
being around you.” Defendant replied that he knew and that it was
a terrible mistake, and then asked if the police were listening to
their conversation. The victim denied the police were involved,
whereupon defendant repeated his request for forgiveness, stating
he had been “confused” and “wish[ed he] never did it.” The victim
repeated that defendant had put his finger inside her and that it
hurt, to which defendant replied, “Yeah, . . . like I said, you
know, I made a huge mistake . . . .”
On June 5, 2003, defendant told a coworker, Kenneth, about
taking the victim to the “river.” Defendant said he had been
drinking, “something had went [sic] wrong,” and he had put his
hand down the victim’s pants and inserted a finger in her vagina.

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Defendant told Kenneth, “It was just my finger.” He said he was
afraid to go to work and face the victim’s father. Defendant
stated the police had come to his house and wanted to speak to
him. Defendant wanted to leave the area and go to El Salvador
or Southern California. He asked for money, but Kenneth refused
to give him any. That was the last time Kenneth saw defendant,
who first went to Los Angeles and then Atlanta, Georgia.
Defense
Defendant, who was 42 years old at the time of trial,
testified on his own behalf. He said he became friends with the
victim in 2003, and sometimes she called him on his cell phone
to talk about school. They also played pool at work. Defendant
denied telling the victim he wanted to see her in a thong or a
wet T-shirt, and denied touching her bottom when they played pool.
They “used to flirt basically, but nothing else.” He thought the
victim was interested in him sexually because she had been calling
him for months, and “didn’t seem like a kid anymore.”
Defendant admitted (1) picking up the victim and her friend
on May 23, 2003, (2) buying vodka, (3) driving to Discovery Park,
and (4) giving the girls vodka. After they finished their drinks,
he jokingly suggested, “[L]et’s swim, let’s get wet.” The victim
told defendant, “You first,” and then they tickled and shoved each
other playfully. After about five minutes, the victim bit his arm.
He stood up and called her a “little shit,” which was his “nickname
for her at work.” He did not interpret the bite as a defensive
action. At that point, the friend announced that she was going
to the bathroom and left.

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According to defendant, he and the victim sat watching the
boats, and when she began walking up the slope, he “had the bright
idea of approaching her.” He walked up behind her, placed his
hands on her hips, and when she stopped walking, he put his
“right arm on her stomach and . . . rubbed her a couple of times.”
She turned and said, “What’s up?” and defendant replied, “Nothing.”
She then closed her eyes and “kind of sucked her stomach in,” which
gave defendant “the impression she was allowing [him] to do
something else.” He thought she was making room for his hand to
enter her pants. He did not think she was sucking in her stomach
because she was scared.
Defendant testified he put his hand inside the victim’s
pants for about two or three seconds, but he did not insert his
finger in her vagina. She stood still, with her arms “loose,”
and looked at him silently. Defendant thought what he was doing
was okay with her. After about “two seconds,” his “sixth sense”
told him he “was about to do something wrong, and [he] took
[his] hand out” of her pants. He denied the victim ever told
him to stop, and denied he held her hands or used force.
According to him, “[i]f she would have told me [to stop] from
the beginning, if she made a motion to say don’t put your hand
anywhere, I wouldn’t be here talking to you.”
After defendant removed his hand from the victim’s pants,
he tried to kiss her, but she “tightened up her lips.” When
he asked why she did not want to kiss him, she replied, “Just
because.” Defendant told her, “You know you want to fuck me.

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Why don’t you want to kiss me?” She told him, “You can touch
me, but just don’t kiss me.”
Defendant and the victim then saw her friend returning from
the bathroom and began to walk toward her. The girls went into
the restroom together. When they emerged, defendant drove them
to school.
Defendant denied telling Kenneth that defendant inserted
a finger into the victim’s vagina. Rather, defendant had said
that he put his “hand in the cookie jar,” which meant inside the
victim’s pants in the genital area. Defendant also denied that
during the pretext phone call he admitted putting his finger
inside the victim’s vagina. She simply accused him of putting
his fingers inside of her, which to defendant meant inside her
pants, not her vagina. As for her reference to him hurting her,
he presumed she meant emotionally rather than physically.
DISCUSSION
I
Defendant challenges the sufficiency of the evidence to
support his conviction for forcible sexual penetration (Pen.
Code, § 289, subd. (a)(1); further section references are to the
Penal Code).1 In particular, he contends there is insufficient
evidence (1) that he used force, and (2) that he did not have
1 Section 289, subdivision (a)(1), punishes “[a]ny person
who commits an act of sexual penetration when the act is
accomplished against the victim’s will by means of force,
violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person.”

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a reasonable, good faith belief that the victim consented to
the penetration.
Under the substantial evidence rule, we review the facts
adduced at trial in the light most favorable to the judgment,
drawing all inferences in support of the judgment to determine
whether there is substantial direct or circumstantial evidence
that defendant committed the charged crime. (People v. Hillhouse
(2002) 27 Cal.4th 469, 496.) The test is not whether the evidence
proves guilt beyond a reasonable doubt, but whether substantial
evidence, of credible and solid value, supports the jury’s
conclusions. (People v. Mincey (1992) 2 Cal.4th 408, 432.)
We may not reweigh the evidence and substitute our judgment for
the trier of fact; all conflicts in the evidence must be resolved
in favor of the judgment. (People v. Clark (2000) 82 Cal.App.4th
1072, 1083.) Under this standard of review, defendant’s challenge
to the sufficiency of the evidence fails.
Defendant contends there is insufficient evidence that he
used force to insert his finger in the victim’s vagina; however,
his appellate argument is premised on a misunderstanding of the
requisite degree of force required.
In People v. Griffin (2004) 33 Cal.4th 1015, 1025-1029
(hereafter Griffin), the California Supreme Court held that the
term “force” as used in the rape statute (§ 261, subd. (a)(2)) was
not intended to have any specialized legal meaning significantly
different from common usage definitions. Drawing an analogy to
the element of force in a robbery, Griffin found the kind of force
utilized in a rape and whether the victim resisted was immaterial.

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(Id. at p. 1025.) The prosecution must show only that “defendant
used physical force of a degree sufficient to support a finding
that the act of sexual intercourse was against the will of the
[victim].” (Id. at pp. 1023-1024.) The rule in Griffin has been
extended to forcible oral copulation. (See People v. Guido (2005)
125 Cal.App.4th 566, 575-576 (hereafter Guido).) We see no reason
not to apply the analysis of Griffin and Guido to the crime of
forcible digital penetration.
Here, defendant attempted to intoxicate the 14-year-old victim
and, after her friend went to the bathroom, he held the victim by
both wrists so she could not get away and then tried to kiss her
on the lips. She asked him to stop, but he held her wrists “very
firmly” and said, “[N]o, you know you want to kiss me” and “you
know you want to fuck me.” The victim signaled to the contrary by
yelling for her friend and by repeatedly telling defendant to stop
and saying she wanted to leave. Instead of stopping his unwanted
sexual advances, defendant got behind her and, while holding one
of her wrists, he put his other hand down her pants. He inserted
a finger into her vagina, which hurt her. The victim was scared,
kept yelling for her friend, and struggled to get away, but she
could not stop defendant because “he had [her] wrist.” This amply
supports the finding defendant used force in digitally penetrating
the victim’s vagina.
Defendant also asserts there is insufficient evidence that
he lacked a reasonable and good faith belief that the victim
consented to the digital penetration. He is wrong.

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In People v. Mayberry (1975) 15 Cal.3d 143 (hereafter
Mayberry), the California Supreme Court held that a defendant’s
reasonable and good faith mistake of fact regarding a person’s
consent to sexual intercourse is a defense to rape. (Id. at p.
155.) Mayberry is premised on the notion that reasonable mistake
of fact regarding consent is incompatible with the existence of
wrongful intent. (Id. at pp. 154-155.)
“The Mayberry defense has two components, one subjective,
and one objective. The subjective component asks whether the
defendant honestly and in good faith, albeit mistakenly, believed
that the victim consented to [a sex act]. In order to satisfy
this component, a defendant must adduce evidence of the victim’s
equivocal conduct on the basis of which he erroneously believed
there was consent. [¶] In addition, the defendant must satisfy
the objective component, which asks whether the defendant’s mistake
regarding consent was reasonable under the circumstances. Thus,
regardless of how strongly a defendant may subjectively believe
a person has consented to [a sex act], that belief must be formed
under circumstances society will tolerate as reasonable in order
for the defendant to have adduced substantial evidence giving rise
to a Mayberry instruction.” (People v. Williams (1992) 4 Cal.4th
354, 360-361, fn. omitted.)
“The defendant bears the burden of raising a reasonable doubt
as to whether he harbored a reasonable and good faith but mistaken
belief of consent [citations], ‘and then only if the prosecution’s
proof did not of itself raise such a doubt.’ [Citation.]” (People
v. Williams, supra, 4 Cal.4th at p. 361.)

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Here, defendant relies on his testimony that he walked up
behind the victim, placed his hands on her hips, put his “right arm
on her stomach and . . . rubbed her,” whereupon she closed her eyes
and “kind of sucked her stomach in,” giving defendant the impression
she was making room for his hand to enter her pants. She stood
with her arms “loose,” looking at him silently so defendant thought
what he was doing was okay with her. But after about “two seconds,”
his “sixth sense” told him he “was about to do something wrong,
and [he] took [his] hand out” of her pants. According to defendant,
“[i]f she would have told me [to stop] from the beginning, if she
made a motion to say don’t put your hand anywhere, I wouldn’t be
here talking to you.”
The problem with defendant’s claim is that the evidence must
be viewed in the light most favorable to the judgment. When viewed
in this light, there is ample evidence that the victim did tell him
to stop. She did so explicitly when defendant kissed her and did
so implicitly when she repeatedly called out for her girlfriend,
but defendant ignored her entreaties, held her wrist and put his
hand down her pants. Any belief of consent that possibly could
have existed prior to that time became manifestly unreasonable
once the victim told defendant to stop. The evidence supports
the jury’s rejection of defendant’s Mayberry defense.
II
According to defendant, the trial court erred in giving the
jury a modified version of CALJIC No. 10.65, concerning his belief
that the victim consented to his sexual misconduct.

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The jury was instructed as follows: “In the crime of unlawful
penetration of the genital opening by a foreign object, substance,
instrument or device by force, criminal intent must exist at the
time of the commission of the penetration of the genital opening.
[¶] A reasonable good faith belief that the alleged victim
voluntarily consented to engage in penetration of the genital
opening by a foreign object, substance, instrument or device is
a defense to such a charge, unless the defendant thereafter became
aware or reasonably should have been aware that the other person
no longer consented to the sexual activity. [¶] However, a belief
that is based upon ambiguous conduct by an alleged victim, that
is the product of conduct . . . by the defendant that amounts to
force, violence, duress, menace, or fear o[f] immediate or unlawful
bodily injury on the person of the alleged victim is not a
reasonable good faith belief. [¶] If after a consideration of all
of the evidence you have a reasonable doubt that the defendant had
. . . criminal intent at the time of the accused sexual activity,
you must find him not guilty of the crime.”
Defendant challenges the omission of the following language
from the standard version of CALJIC No. 10.65: “There is no criminal
intent if the defendant had a reasonable and good faith belief that
the other person voluntarily consented to engage in penetration of
the genital opening by a foreign object, substance, instrument, or
device.” The trial court made the modification because it believed
the instruction “was written for a situation where the complaining
witness is an adult.” Defendant argues the court erred. While
consent or a reasonable belief in consent is not a defense to the

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section 288 lewd conduct charge (People v. Hillhouse (2003) 109
Cal.App.4th 1612, 1619-1620), it is a defense to the far more serious
sexual penetration charge even though the crime involved a minor.
(See People v. Neel (1993) 19 Cal.App.4th 1784, 1786-1787; People v.
Anderson (1983) 144 Cal.App.3d 55, 64, fn. 3.)
According to defendant, the effect of the unwarranted
modification was to reduce the People’s burden of proof with
respect to the elements of intent and lack of consent, leading
the jury to believe the prosecution did not have to prove beyond
a reasonable doubt that defendant lacked a reasonable good faith
belief that the victim consented to his conduct. In defendant’s
view, the error is akin to omitting an element of the offense,
which requires reversal unless the error is harmless beyond
a reasonable doubt. Defendant overstates the effect of the
court’s modification of the instruction.
In addressing a claim of instructional error, we determine
the correctness of the instructions from the entire charge,
rather than judging the propriety of a single instruction in
artificial isolation. (People v. Smithey (1999) 20 Cal.4th 936,
963; People v. Frye (1998) 18 Cal.4th 894, 957.) An erroneously
omitted element in one instruction may be supplied by another
instruction or cured in light of the instructions as a whole.
(People v. Burgener (1986) 41 Cal.3d 505, 539, disapproved on
another point in People v. Reyes (1998) 19 Cal.4th 743, 756;
People v. Castillo (1997) 16 Cal.4th 1009, 1016.)
The instructions given by the trial court defined consent and
informed the jury (1) the People had to prove the sexual penetration

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was committed by force, which meant without the victim’s consent
(CALJIC Nos. 1.23.1, 10.30); (2) it was a defense to the charged
offense if defendant reasonably and in good faith believed that
the victim consented to the digital penetration (CALJIC No. 10.65);
(3) the prosecution had the burden of proving defendant’s guilt
beyond a reasonable doubt (CALJIC No. 2.90); and (4) if, after
a consideration of all of the evidence the jury had a reasonable
doubt that defendant had the requisite criminal intent at the time
of the accused sexual activity, the jury must find him not guilty
of the crime of sexual penetration (CALJIC No. 10.65).
Viewed as a whole, the instructions properly instructed the
jury about the elements of the offense and the applicable burden
of proof.
Defendant disagrees, arguing the court neglected to inform
the jury that the People must prove the absence of a good faith
belief in consent. However, a good faith belief in consent is an
affirmative defense (People v. Burnham (1986) 176 Cal.App.3d 1134,
1141), and the absence of such a belief on the part of defendant
is not an element of the offense. As we have explained, if the
prosecution meets its burden of proving the absence of actual
consent beyond a reasonable doubt, then it is defendant’s burden
to raise a reasonable doubt as to whether he harbored a reasonable
and good faith belief the victim consented. (People v. Williams,
supra, 4 Cal.4th at p. 361.) Nothing in the instructions misled
the jury about defendant’s defense or the burden of proof.

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III
Defendant claims he received ineffective assistance of counsel
based on various perceived shortcomings of his trial attorney.
To succeed on a claim of ineffective assistance of counsel,
defendant must prove that counsel’s representation fell below an
objective standard of reasonableness under prevailing professional
norms, and that counsel’s deficient representation subjected the
petitioner to prejudice, i.e., there is a reasonable probability
that, but for counsel’s failings, the result would have been more
favorable to the petitioner. (Strickland v. Washington (1984) 466
U.S. 668, 687 [80 L.Ed.2d 674, 693] (hereafter Strickland); People
v. Kelly (1992) 1 Cal.4th 495, 519-520.) “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.”
(Strickland, supra, 466 U.S. at p. 694 [80 L.Ed.2d at p. 698].)
We review counsel’s performance deferentially. (In re
Jones (1996) 13 Cal.4th 552, 561.) “It is all too tempting for
a defendant to secondguess counsel’s assistance after conviction
or adverse sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to conclude
that a particular act or omission of counsel was unreasonable.
[Citation.] A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective
at the time. Because of the difficulties inherent in making
the evaluation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable

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professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy.’ [Citation.]”
(Strickland, supra, 466 U.S. at p. 689 [80 L.Ed.2d at pp. 694-695];
accord, In re Jones, supra, 13 Cal.4th at p. 561.)
When his counsel’s conduct is reviewed under this standard,
defendant’s claim of reversible error is unavailing.
A
According to defendant, defense counsel’s conduct fell below
that of a reasonably competent attorney when, during closing
argument, counsel said there were inconsistencies in the various
witnesses’ testimony, which counsel believed were explained by
human nature. In particular, counsel stated that defendant, “like
any defendant when he testifies, is in a particularly unique and
not positively so position. Every other one of the witnesses was
kept outside during the rest of the trial. No one heard the rest
of the testimony. But by right and by necessity, [defendant] sat
next to me the entire time. . . . And by definition, by human
nature that is going to color and alter his testimony.” Counsel
went on to posit that the victim’s testimony was altered also as a
result of the perspective she gained since the incident occurred,
and observed that when two people experience the same event, each
has a unique and different perspective. According to counsel,
these differences and alterations in memory were perfectly innocent
and did not reflect an intent to deceive anyone.
Defendant argues, as he did during a Marsden hearing
(People v. Marsden (1970) 2 Cal.3d 118) that counsel’s comments

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about defendant’s testimony being altered and colored by hearing
the other witnesses’ testimony inappropriately intimated he
committed perjury.
Counsel conceded during the Marsden hearing that she could
see how defendant might interpret her argument as stating that
he changed his testimony at trial. However, her argument had
been interrupted because it was the end of the day, and she
had not yet “brought it all together so that [it] makes sense.”
Counsel explained, “Suffice to say I have an explanation,
a theory of the case, a defense to put on that is grounded
99 percent in argument. [¶] I do not think that [defendant’s]
testimony is beneficial to this case in any way, and I’m going
to do the best I can to minimize the impact of his testimony
on this jury.”
Thereafter, counsel’s argument to the jury focused on the
inconsistencies in the various witnesses’ testimony and the
resolution of these inconsistencies in defendant’s favor in
light of the circumstantial evidence. According to counsel,
the evidence pointed to the victim and defendant having a
flirtatious relationship of increasing sexuality, which led
to the touching that defendant admitted committing but not to
forcible penetration. Counsel conceded the People had proved
the commission of the lesser offense of lewd conduct, but denied
they had proved the element of force necessary for a conviction
under section 289.
It appears counsel understood defendant was trapped by
his concessions to the victim during the pretext call and by

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his admissions to Kenneth, i.e., by his statements indicating
he indeed had penetrated the victim. His best defense was to
claim a reasonable belief in consent, such that the penetration
was not forcible. However, defendant muddied this defense when,
rather than simply testifying he did not use force, he attempted
to claim he never digitally penetrated the victim. Therefore,
counsel had the unenviable task of convincing the jurors that
defendant was being truthful about not using force regardless
of whether the jurors determined that he lied about penetration.
Counsel attempted to do so by demonstrating that all witnesses
make inconsistent statements and have their perceptions colored
by various events, but this did not mean witnesses are being
deceitful. Given the evidence defense counsel had to work with,
we cannot say her tactical decision was unsound. Counsel is
not required to be a miracle worker, only reasonably competent.
Moreover, in light of the strong evidence against defendant,
it is not reasonably probable that the jury would have returned
a more favorable verdict if counsel had refrained from making
the challenged comment. (People v. Kelly, supra, 1 Cal.4th
at pp. 519-520.)
B
Defendant also argues that trial counsel was incompetent
because she, in effect, conceded the element of penetration.
In particular, defendant observes that counsel told the jury
that defendant’s statement he placed his hand two or three
inches down the victim’s hip hugger pants was essentially
the same as the victim’s testimony he touched her vagina.

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Again, the record discloses counsel reasonably pursued the
tactic of convincing the jury that defendant did not use force,
given that defendant in effect had admitted penetration in his
conversations with Kenneth and the victim. As part of this tactic,
counsel demonstrated the consistencies between the testimony of
the victim and defendant, but emphasized the flaws in the victim’s
version by pointing out she told Detective Roth that defendant had
her right arm behind her back and she was attempting to walk away
when defendant put his hand in her pants and inserted his finger
into her vagina. Counsel asserted, “Logistically, just from a
practical standpoint, how much sense does that make[?]” In other
words, unless the act was consensual, it was physically impossible
for defendant to be able to insert a finger in the victim’s vagina
under the circumstances she described.
Counsel also valiantly tried to establish that defendant’s
statements during the pretext call were not inconsistent with his
testimony that he did not use force. For example, she posited that
sticking a hand down a girl’s form-fitting pants is bound to result
in “some shimmying and shaking and that could be uncomfortable.”
Moreover, “people who don’t have a lot of experience can have some
discomfort when they first become involved in sexual touching.”
Hence, defendant’s admission during the pretext call that he hurt
the victim did not mean that he admitted he forcibly assaulted her.
The victim clearly testified that defendant inserted his
finger in her vagina. During the pretext phone call, she accused
defendant of putting his finger “in her,” and he did not deny this
act. Indeed, he conceded he had made a huge mistake. Moreover,

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defendant admitted to Kenneth that he had inserted his finger in
the victim. Given the strength of the evidence of penetration,
counsel made a reasonable tactical choice to concentrate on the
element of force, rather than denying penetration. In any event,
it is not reasonably probable that a different result would have
occurred or that counsel’s performance “so undermined the proper
functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.” (Strickland, supra,
466 U.S. at p. 686 [80 L.Ed.2d at pp. 692-693; People v. Earp
(1999) 20 Cal.4th 826, 870.)
C
Lastly, defendant challenges trial counsel’s competency
based upon her failure to question the victim’s girlfriend about
the discrepancy between her trial testimony and the statement
she gave to the police concerning the amount of time she was
in the bathroom.
At trial, the friend testified she was in the bathroom about
20 minutes, but her statement to the police reflected that she was
absent for only a few minutes. During the Marsden hearing, counsel
explained that she made a tactical decision to not question the
witness about this discrepancy because counsel thought it was
better for the defense if the jury believed that the friend was
absent for a longer period of time. Counsel stated that with
respect to the defense of consent, “it was a better fact for the
jury to believe that [defendant] and [the victim] had an extended
period of time during which to, for lack of a better way to put it,
rekindle the physical relationship or physical contact that had

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been occurring . . . .” In addition, the trial court observed
that the friend was not a particularly good witness for defendant,
and that her emotional state and demeanor were such that counsel
“would want her off the stand pretty quickly.”
In light of counsel’s explanation, the claim of ineffective
assistance of counsel fails. Counsel reasonably concluded that
the jury would find it doubtful that the 14-year-old victim would
willingly move from playful wrestling to digital penetration in
record time. If the defense of consent or reasonable belief
in consent had any chance of succeeding, the jury would have to
be convinced that sufficient time elapsed for defendant and the
victim to rekindle their physical relationship, as counsel stated
so delicately and euphemistically. Under the circumstances,
counsel’s representation was not deficient because her decision to
accept the friend’s assessment that she was absent for 20 minutes
was a sound tactical decision. (People v. Jones (1997) 15 Cal.4th
119, 182 [in order to succeed on a claim of ineffective assistance
of counsel, the record must negate the possibility that counsel’s
decision resulted from an informed tactical choice within the
range of reasonable competence], overruled on other grounds
in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
IV
Defendant contends he was prejudiced by prosecutorial
misconduct in various respects.
“A prosecutor’s conduct violates the Fourteenth Amendment
to the federal Constitution when it infects the trial with such
unfairness as to make the conviction a denial of due process.

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Conduct 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 trial court or the jury.
Furthermore, and particularly pertinent here, when the claim
focuses upon comments made by the prosecutor before the jury,
the question is whether there is a reasonable likelihood that
the jury construed or applied any of the complained-of remarks in
an objectionable fashion.” (People v. Morales (2001) 25 Cal.4th
34, 44.) Acts of prosecutorial misconduct do not justify reversal
of a defendant’s conviction “unless it is reasonably probable that
a result more favorable to the defendant would have been reached
without the misconduct.” (People v. Crew (2003) 31 Cal.4th 822,
839.)
Observing that defense counsel did not object to all of the
instances of misconduct, defendant concedes this may result in the
forfeiture of his claims. (People v. Hill, supra, 17 Cal.4th at
p. 820 [a claim of prosecutorial misconduct is forfeited where an
objection was not made in the trial court and a timely objection
and admonition would cure the harm]. Therefore, he argues that
if counsel’s omission undermines any of his appellate claims of
prosecutorial misconduct, he received ineffective assistance of
counsel.
As we explained in part III, ante, to succeed on a claim of
ineffective assistance of counsel, the defendant must prove (1)
that counsel’s representation fell below an objective standard
of reasonableness under prevailing professional norms, and (2)

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that there is a reasonable probability that, but for counsel’s
failings, the result would have been more favorable to the
petitioner. (People v. Kelly, supra, 1 Cal.4th at pp. 519-520.)
A
Defendant asserts that during closing argument, the prosecutor
distorted the evidence and stated facts not in evidence.
Trial counsel did not object to any of the comments that
are the subjects of defendant’s complaints on appeal. As we will
explain, this is understandable because no prejudicial misconduct
occurred. Under the circumstances, counsel’s performance was not
deficient because counsel was not required to make futile objections.
(People v. Price (1991) 1 Cal.4th 324, 387; People v. Beasley (2003)
105 Cal.App.4th 1078, 1092.)
Generally, the prosecutor is given great leeway in making
closing argument. (People v. Farnam (2002) 28 Cal.4th 107, 200.)
“‘“The argument may be vigorous as long as it amounts to fair
comment on the evidence, which can include reasonable inferences,
or deductions to be drawn therefrom. [Citations.] It is also
clear that counsel during summation may state matters not in
evidence, but which are common knowledge or are illustrations
drawn from common experience, history or literature.” [Citation.]
“A prosecutor may ‘vigorously argue his case and is not limited
to “Chesterfieldian politeness”’ [citation], and he may ‘use
appropriate epithets . . . .’”’ [Citation.]” (People v. Williams
(1997) 16 Cal.4th 153, 221.)
Most of the prosecutor’s comments that defendant challenges
fall within this category. For example, defendant complains of

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the prosecutor’s assertion that defendant geared his testimony
to achieve a conviction on only the lesser offense charged by
claiming he did not insert his finger into the victim. He also
challenges the prosecutor’s statements that the victim spent the
last two years trying to forget what had occurred, and that when
she testified she appeared to be in a trance state. Defendant
takes particular offense at the prosecutor’s argument that adults
have the perspective to see that a 40-year-old man has no interest
in a 14-year-old girl “unless he wants something more,” but the
victim lacked the wisdom to see that she was not safe with the
“cool” guy who helped her ditch school, bought her alcohol,
and who she thought was her friend because he was her father’s
employee. The victim thought she was invincible, but she needed
a lecture that the type of decisions she made “gets you killed,
gets you what she got in this case, it gets you [defendant],
it gets you a predator.”
All of these statements are a fair comment on the evidence,
and it is not reasonably possible the jury construed or applied
the prosecutor’s comments in an objectionable manner. (People v.
Farnam, supra, 28 Cal.4th at p. 200; People v. Sandoval (1992)
4 Cal.4th 155, 180.)
According to defendant, the prosecutor erred in stating that
the victim’s friend recognized the victim biting defendant was a
sign that she wanted him to stop. This is so, defendant argues,
because the friend testified she thought the victim was still
having fun at that point. However, the evidence discloses that
the friend also testified she did not know what defendant did to

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make the victim bite her arm, “so maybe that was maybe something
that was a signal to stop maybe.” Hence, the prosecutor’s
assertion was a fair comment on the evidence.
Defendant points out the prosecutor argued defendant rubbed
the victim’s bottom when she was playing pool at the age of 12,
when, in fact, she had to be 13 or 14 years of age when this
occurred because that is when the pool table likely was acquired.
But this is an inconsequential mistake, a distinction without a
difference. An adult male should not be suggestively rubbing a
young adolescent female’s bottom regardless of whether she is 12,
13, or 14. It is highly unlikely the jury would have viewed
defendant more favorably had the prosecutor stated the victim’s
correct age at the time of defendant’s prior lewd conduct with her.
Defendant also complains the prosecutor incorrectly stated
that “one thing [the victim] never ever waivers on, never, not
from the first time she told [her friend] to the time she
testified and every statement in between, that [defendant] held
her arm and she couldn’t get away and he took his finger and he
stuck his hand down her pants and he stuck his finger inside
her.” According to defendant, the evidence reveals that
the victim told her friend only that defendant put his hand
in her pants and did not mention that he put his finger in her.
In other words, defendant believes that although the victim
consistently stated defendant held her and put his hand down her
pants, and consistently stated defendant put his finger in her, the
prosecutor’s argument was the equivalent of prejudicial misconduct
because the victim did not mention the digital insertion to her

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friend. We disagree. According to the friend, after the victim
told her defendant put his hand down her pants, the friend “didn’t
really want to ask her much more about what [defendant] did”
because the victim was crying and distraught. Thus, there is no
evidence that the victim changed her story at some later date to
include digital penetration; she merely did not immediately reveal
the entire incident to her friend, who understandably refrained
from questioning the victim about the intimate details of the
assault.
Defendant has failed to establish that the challenged portions
of the prosecutor’s argument exceeded the boundaries of fair comment
on the evidence.
B
According to defendant, the prosecutor erred by misleading
the jury about the applicable law.
For example, the prosecutor questioned why defendant fled to
Atlanta and hid from the police if he only put his hand down the
victim’s pants and put his hand on her stomach near her genitals.
When the prosecutor indicated this type of conduct was “misdemeanor
kind of conduct,” defense counsel objected and the court sustained
the objection.
Defendant argues the prosecutor misrepresented the severity
of the lesser offense of lewd conduct with a minor, which can be
treated as either a misdemeanor or as a felony punishable by up to
three years in state prison. (§ 288, subd. (c)(1).) In his view,
the comment likely misled the jury to believe defendant would not

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receive serious punishment unless it convicted him of the greater
offense of sexual penetration.
Although defendant’s trial counsel objected to the reference
to misdemeanor conduct, counsel did not ask the court to admonish
the jury, which is required to preserve a claim of prosecutorial
misconduct. (People v. Montiel (1993) 5 Cal.4th 877, 914 [although
counsel objected to prosecutor’s remarks at trial, the failure to
request an admonition failed to preserve a claim of prosecutorial
misconduct on appeal].) Because counsel may have made a tactical
decision not to draw more attention to the prosecutor’s otherwise
legitimate argument regarding defendant’s flight from the area,
we cannot conclude defense counsel was incompetent for neglecting
to request such an admonition. In any event, it is not reasonably
probable the jury would have reached a different verdict given the
strength of the evidence against defendant. The friend witnessed
the victim’s distress immediately after the offense; the victim
promptly reported the offense and clearly described the act of
sexual penetration; defendant implicitly admitted the act in the
pretext call and expressly did so to Kenneth; and defendant fled
the area, which is strong evidence of his guilt.
Next, defendant contends the prosecutor impermissibly shifted
the burden of proof to defendant or misstated the degree of proof
required. “[I]t is improper for the prosecutor to misstate the law
generally [citation], and particularly to attempt to absolve the
prosecution from its prima facie obligation to overcome reasonable
doubt on all elements. [Citation.]” (People v. Marshall (1996) 13
Cal.4th 799, 831.) According to defendant, the prosecutor distorted

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the burden of proof by stating that there is no quantum of proof or
evidence required to establish defendant’s guilt. Defendant also
contends the prosecutor erred in stating that for defendant “to not
be guilty of this crime [he] has to tell you, be able to convince
you in some way that [the victim] consented to this.”
Defendant’s claims of prosecutorial misconduct are forfeited
because trial counsel did not object to the prosecutor’s comments.
(People v. Hill, supra, 17 Cal.4th at p. 820.) His alternate claim
of ineffective assistance of counsel also fails because he does not
show prejudice from counsel’s failure to object, i.e., he has not
established a reasonable probability of a more favorable verdict
if defense counsel had objected to the prosecutor’s remarks.
(Strickland, supra, 466 U.S. at p. 697 [80 L.Ed.2d at pp. 699-700]
[when an ineffective assistance claim can be resolved on lack of
prejudice, a reviewing court need not determine whether counsel’s
performance was deficient].)
When viewed in context, the prosecutor’s statements about the
quantum of proof required were simply intended to convey that proof
beyond a reasonable doubt did not require a specific number of
witnesses or quantum of evidence. This is correct. (See, e.g.,
CALJIC No. 2.22.) But even assuming some of the prosecutor’s
statements can be construed as improperly shifting the burden
of proof to defendant concerning whether his conduct was
nonconsensual, we must decide whether the misstatement of law
was prejudicial “[i]n the context of the whole argument and the
instructions.” (People v. Marshall, supra, 13 Cal.4th at p. 831.)
Improper statements to the jury are not prejudicial unless

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“‘“reasonable likelihood that the jury construed or applied any
of the complained-of remarks in an objectionable fashion.”
[Citation.]’” (People v. Carter (2005) 36 Cal.4th 1215, 1263.)
The instructions are particularly significant because “‘[t]he
crucial assumption underlying our constitutional system of trial
by jury is that jurors generally understand and faithfully follow
instructions.’” (People v. Delgado (1993) 5 Cal.4th 312, 331.)
Thus, “[w]e 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.” (People
v. Clair (1992) 2 Cal.4th 629, 663, fn. 8; see also, People v.
Smith (2005) 35 Cal.4th 334, 372.)
Here, the trial court properly instructed the jury on
the prosecution’s burden of proving defendant’s guilt beyond a
reasonable doubt (CALJIC No. 2.90) and on the prosecution’s burden
to prove that the penetration was accomplished against the will of
the victim (CALJIC No. 10.30). The court also advised the jurors
that they must accept and follow the law as stated by the court,
not by the attorneys, and “[i]f anything concerning the law said
by the attorneys in their arguments or at any other time during the
trial conflicts with my instructions on the law, you must follow my
instructions.” (CALJIC No. 1.00.)
The jurors were also emphatically informed during defense
counsel’s closing argument that the People had the burden of proof.
In light of the instructions given by the court and the argument
of trial counsel, which accurately placed the burden of proving
defendant’s guilt on the People, we conclude that trial counsel’s

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failure to object to prosecutorial comments in closing argument was
not prejudicial because there is no “‘“reasonable likelihood that
the jury construed or applied any of the complained-of remarks in
an objectionable fashion.” [Citation.]’” (People v. Carter, supra,
36 Cal.4th at p. 1263.) Furthermore, the strong evidence of guilt
renders it not reasonably probable that a different result would
have occurred had counsel objected and the trial court admonished
the jury to disregard the prosecutor’s comments.
C
Next, defendant contends the prosecutor erred in stating
that the major problem with our system of justice is that “every
defendant has the absolute right if he is accused of a crime to
plead not guilty.” The prosecutor professed she would “not suggest
that it be any other way,” but went on to state that this placed a
sexual assault victim in the position of either letting a dangerous
person go free, or testifying, which “is a horrible thing to have
to do.” Defendant believes that these statements impermissibly
invited the jury to punish defendant for exercising his right to
a jury trial.
Defendant’s claim of prosecutorial misconduct is forfeited
due to the absence of any objection by trial counsel. (People
v. Hill, supra, 17 Cal.4th at p. 820) As for his alternate claim
of ineffective assistance of counsel, our review of the record
discloses no prejudicial error.
The prosecutor’s comments were part of a larger argument
explaining how difficult it was for the victim to testify and how
this affected her demeanor, memory, and the consistency of her

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testimony. Rather than objecting, defense counsel chose to
counter the People’s argument by pointing out that it was the
People who opted to pursue a case that was not supported by the
evidence, thus placing the victim in the position of having to
testify. Viewed in context, there is no reasonable likelihood
the jury understood the prosecutor’s comments as an invitation
to punish defendant for exercising his right to a jury trial.
Under the circumstances, even assuming defense counsel’s failure
to object can be viewed as incompetence, it was not prejudicial.
(People v. Carter, supra, 36 Cal.4th at p. 1263.)
V
Defendant argues that the trial court erred in failing to
instruct sua sponte on the lesser included offenses of (1) assault
with intent to commit sexual penetration, and (2) attempt to commit
sexual penetration.
“[A] trial court must instruct the jury sua sponte on an
uncharged offense that is lesser than, and included in, a greater
offense with which the defendant is charged only if there is
substantial evidence that, if accepted, would absolve the defendant
from guilt of the greater offense but not the lesser.” (People v.
Waidla (2000) 22 Cal.4th 690, 737.) When “‘there is no evidence
that the offense was less than that charged’” there is no duty to
instruct. (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5.)
Here, the evidence disclosed that defendant either forcibly
penetrated the victim’s vagina with his finger as she alleged,
or defendant put his hand down her pants without any penetration
as he maintained. Accordingly, the court instructed regarding

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the lesser offense of a lewd act committed with a 14-year-old
or 15-year-old child by a perpetrator more than 10 years older in
violation of section 288, subdivision (c)(1). This was designed
to cover the possibility the jury found that penetration had not
occurred. By finding defendant guilty of the greater offense,
the jury determined that penetration indeed occurred.
There was no evidence that defendant put his hand down the
victim’s pants with the intent to penetrate her, but failed to
accomplish his objective. Consequently, the court did not err
in not instructing on the lesser included offenses suggested
by defendant on appeal.
VI
Defendant asserts the cumulative effect of the aforementioned
errors requires reversal of his conviction. We disagree.
As discussed above, defendant’s appellate claims either fail
on the merits or are harmless and, as for the harmless errors, “the
whole of them did not outweigh the sum of their parts.” (People v.
Roberts (1992) 2 Cal.4th 271, 326.)
VII
Lastly, defendant contends that imposition of the upper term,
based on defendant’s forethought and planning in committing the
offense, violated his federal constitutional rights as set forth
in Blakely v. Washington (2004) 542 U.S. 296, 303-305 [159 L.Ed.2d
403, 413-414] (hereafter Blakely).
Defendant recognizes that his claim of Blakely error must fail
as a result of the California Supreme Court’s decision in People v.
Black (2005) 35 Cal.4th 1238, 1244, 1254-1256; Auto Equity Sales,

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Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Since he raises
the claim of error solely to preserve it for federal court review,
it requires no further discussion.
DISPOSITION
The judgment is affirmed.
SCOTLAND , P.J.
We concur:
RAYE , J.
ROBIE , J.

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