California Court of Appeal Feb 22, 2016 No. D067116Unpublished
Filed 2/22/16 P. v. Rafail CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067116
Plaintiff and Respondent,
v. (Super. Ct. No. SCN325828)
JAY RAFAIL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Robert J.
Kearney, Judge. Affirmed.
Zachary McCready & Associates, Zachary James McCready; Law Office of
Kristine L. Adams and Kristine L. Adams for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene Sevidal and Allison V.
Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
In late September 2014 a San Diego County jury convicted Jay Rafail of a total of
25 sexual offenses committed between 1999 and 2008 against four boys (Phillip L., John
Doe, Jeremy S. & Justin S.), as follows: 15 counts of committing a lewd act upon a child
under 14 years of age (Pen. Code,1 § 288, subd. (a) (hereafter § 288(a)): counts 1–7
[victim: Phillip L.], 13–16 & 18–21 [victim: John Doe]2); plus 9 counts of committing a
and one count of sodomy of an intoxicated person (§ 286, subd. (i) (hereafter § 286(i)):
count 12 [victim: Phillip L.]).
With respect to counts 1–7, 13–16, and 18–21, the jury found to be true an
allegation that Rafail committed the offenses against more than one victim (§ 667.61).
As to those same 15 counts, the court found to be true an allegation that Rafail qualified
as a habitual sex offender (§ 667.71, subd. (a)). The court also found to be true an
allegation that Rafail had suffered three prior convictions of committing a lewd act upon
a child (§ 288(a)), which qualified as strike priors within the meaning of the Three Strikes
law (§§ 667, subdivisions (b)–(i), 1170.12, 668).
On December 1, 2014, the court sentenced Rafail to a total state prison term of
1,375 years to life plus five years.
Rafail raises several claims on appeal. First, he contends the court committed
instructional error and the prosecutor committed misconduct during her closing
arguments by telling the jury to not consider the lesser included offenses for each of the
1 All further statutory references are to the Penal Code unless otherwise specified.
2 At the end of the prosecution's case, the court dismissed count 17, on the People's motion, for lack of jurisdiction. 2
25 charged sexual offenses, thereby denying both his right to present his defense and his
right to a fair trial.
Second, he contends (1) the evidence is insufficient to support the jury's finding
that the prosecution met its burden of proving the requirements under section 803,
subdivision (f), and CALCRIM No. 3250 for extending the statute of limitations period
for count 23; and (2) CALCRIM No. 3250 as given by the court confused the jury.
Third, he contends the prosecutor committed misconduct during her closing
argument, and thereby violated his federal constitutional rights to cross-examination and
a fair trial, by misrepresenting facts and misstating the law.
Fourth, he contends "the prosecution's misuse of the prior uncharged acts, and
current uncharged acts, under Penal Code [sic]3 sections 1101 and 1108 exploited
existing confusion in the complex of facts and law [sic] which sabotaged most, if not all,
of the safeguards to a constitutionally fair trial."
Last, he contends the court "committed reversible error when it failed to
adequately address the jury's request for assistance in jury note [No.] 1."
For reasons we shall explain, we affirm the judgment.
3 We assume Rafail meant to refer to the Evidence Code. 3
FACTUAL BACKGROUND
A. The People's Case
1. Prior sex offenses against Patrick V.
Patrick V. testified that his parents employed Rafail as a tutor from September
1989 to December 1989 when he (Patrick) was nine years old. During that time period,
Rafail picked Patrick up from school but, instead of helping Patrick with his homework,
he would drive around and then park near Patrick's house. Rafail would then masturbate
Patrick, Patrick would masturbate him, and he would perform oral sex on Patrick.
Patrick's parents fired Rafail because Patrick was not completing his homework. After he
was fired, Rafail occasionally picked up Patrick from the babysitter's house. Rafail
sometimes took Patrick to Rafail's house and molested him there by engaging in oral sex
and rubbing his penis on Patrick's buttocks.
In 1990 Patrick reported Rafail's conduct to his babysitter's daughter, his mother,
and the police. In the present trial, the parties stipulated that Rafail was convicted as a
result of his conduct toward Patrick.
4
2. John Doe4
John Doe (Doe) testified that when he was nine or 10 years old, he developed a
friendship with Rafail, who was an adult, through martial arts. Rafail would invite Doe
to go to the movies and events like Monster Truck racing. When they became better
acquainted, Rafail began telling Doe about his sexual experiences, and Doe began to
respect him as a "sex guru." Rafail started buying him presents such as Game Boys,
Pokemon cards, and bicycles.
Rafail began living with Doe's family in Escondido when Doe was 10 or 11.
Rafail began sleeping on the floor in Doe's room, but eventually he slept with Doe in
Doe's bed. Rafail's first sexual contact with Doe occurred at night when Doe was 10
years old. Doe testified that when he got out of the shower, Rafail was lying on the bed,
and he (Doe) "felt some sort of sexual tension that [Rafail] wanted." Remembering
stories Rafail had told him about experimenting with his friends when he was younger,
Doe offered to put his mouth on Rafail's penis for 10 seconds in exchange for $40. Rafail
accepted the offer and Doe performed the act.
After this first sexual contact, sexual acts between Rafail and Doe began to occur
with more frequency, three to five times a week. Rafail regularly masturbated and orally
4 The court granted this victim's request to keep his name out of the public record and allowed him to testify as John Doe. The prosecution charged that Rafail committed the following nine offenses against Doe: (1) count 13 (receiving oral sex), (2) count 14 (giving oral sex at Rafail's parents' house), (3) count 15 (first time giving oral sex at Doe's home), (4) count 16 (last time giving oral sex at Doe's home), (5) count 17 (giving oral sex at karate tournament; see fn. 2, ante), (6) count 18 (first time masturbating by "dry-humping"), (7) count 19 (last time masturbating by dry-humping), (8) count 20 (videotaping receiving oral sex), and (9) count 21 (videotaping masturbation of Doe). 5
copulated Doe to the point of ejaculation. About once a week, Rafail would ask Doe to
place his mouth on his penis or Rafail would dry-hump Doe by rubbing his genitals on
Doe's buttocks. On other occasions, when Doe was between the ages of 10 and 13, Rafail
performed and received the same sexual acts at Rafail's parents' house.
Doe testified he felt the sexual acts were wrong, but he enjoyed the toys and fun
experiences his parents could not afford to give him. Sometimes Doe felt uncomfortable
engaging in sexual acts with Rafail. Whenever Doe refused Rafail's requests, Rafail
would become angry and make Doe feel guilty by reminding Doe of the gifts he had
given to him. Doe would then give in to Rafail's sexual demands. Doe was afraid to say
no, and he did not want to lose Rafail's friendship.
When Doe was 11, he, his parents, and Rafail went to a karate tournament. Rafail
persuaded him to go with him into Doe's parents' van and then performed oral sex on
Doe.
On another occasion at Rafail's parents' house, Rafail and Doe went "skinny-
dipping" in the pool, and Rafail later gave Doe oral sex inside the house. Rafail tried to
perform anal sex on Doe on one occasion, and Doe performed anal sex on Rafail several
times.
A video played for the jury showed Doe performing oral sex on Rafail, Rafail
masturbating Doe, and Rafail masturbating himself while dry-humping Doe. Doe was 10
or 11 years old at the time and did not know he was being filmed.
Doe also testified that Rafail lived with Doe's family for about a year and a half.
Doe's sister saw Rafail touching Doe's genitals at one point and reported the incident.
6
Doe's parents confronted Doe and asked him whether Rafail had had any inappropriate
sexual contact with him. Doe lied to them because he enjoyed the presents Rafail gave
him and he was afraid that people would know he had been molested. Doe testified that
his parent's "kicked [Rafail] out" of their house, and Rafail moved to San Marcos.
However, Rafail's sexual contact with Doe continued. When Doe was 12 years old,
Rafail formed two paintball teams that included Doe and other boys, and he began
encouraging the boys to drink alcohol. Eventually, there was a total of 10 boys under the
age of 14 in the two teams. The group regularly traveled to tournaments and stayed in
hotels, and Rafail acted as the chaperone. When they were in the hotel rooms, Rafail
encouraged them to perform sexual acts on one another. Specifically, Doe testified that
Rafail encouraged the boys to masturbate each other, and Rafail sometimes filmed the
acts.
The sexual acts continued until Doe was 15 or 16 years old. Doe testified he
planned to "take it to the grave" by never speaking about the sexual molestation, and he
repeatedly lied to his parents when they questioned him. Although Doe was 25 years old
when he testified against Rafail in this case, he did not want his name made public.
7
3. Phillip L.5
Phillip L. testified that he met Doe and Rafail through martial arts when he was
between the ages of 10 and 12. He first started "hanging out" with Doe and Rafail when
Rafail invited him to Doe's birthday party. During the party, Rafail dared Phillip to "go
streaking," and Phillip did it. After the party, Phillip began to interact with Rafail and
Doe on a regular basis. Phillip initially thought Doe and Rafail were brothers because
they were so close and shared a room. Several times before Rafail ever touched him,
Phillip woke up and saw Rafail giving Doe oral sex.
Phillip testified that his first sexual contact with Rafail occurred when Phillip
spent the night at Doe's house and awoke to Rafail's fondling Phillip's penis under his
underwear. Phillip told no one about the incident because he was "scared of what people
would think."
On other subsequent occasions, Rafail encouraged Phillip and Doe to masturbate
themselves in front of him. Phillip testified that Rafail made this conduct seem normal,
and Phillip became loyal to Rafail because Rafail "kind of took the place of [Phillip's]
father."
After Rafail moved out of Doe's house, Phillip began to spend the night at Rafail's
apartment on the weekends prior to paintball tournaments. Although Phillip's mother
5 Rafail was charged with committing the following 12 offenses against Phillip: counts 1 (fondling at Rafail's house), 2 (first time instructing Phillip to masturbate himself), 3 (last time instructing Phillip to masturbate himself), 4 (first time showering), 5 (last time showering), 6 (first time naked massage), 7 (last time naked massage), 8 (first time giving oral sex), 9 (last time giving oral sex), 10 (giving oral sex after trip), 11 (shaving testicles), and 12 (sodomy of intoxicated person). 8
asked him whether Rafail ever did anything inappropriate to him, he told her nothing was
going on, in part because he was afraid.
Phillip testified that by the time he was 12 or 13 years old, he was living with
Rafail Wednesdays through Sundays. During that time, Rafail and Phillip always slept
together naked, regularly showered together, regularly drank alcohol, and Phillip
masturbated in front of Rafail daily. When they showered together, Rafail washed
Phillip's entire body with his bare hands. Rafail regularly massaged Phillip while Phillip
was naked, and the massages included his buttocks, penis, and testicles. When he was
14, at Rafail's request, Phillip and another boy masturbated each other while Rafail
recorded them.
Phillip also testified that when he was 13 or 14 years old, Rafail began performing
oral sex on him while he was asleep in Rafail's apartment in San Marcos. A few nights a
week, prior to oral sex, Rafail gave Phillip both alcohol and pills that relaxed him. On
many of these occasions, Phillip awoke the next morning with lubricant on his penis but
no memory of what had happened. On one occasion, Phillip woke up on his back with
Rafail sitting on top of him and with Phillip's penis in Rafail's anus. Phillip testified that
before he woke up, while he was on his stomach and "kind of coming in and out," he felt
"something trying to go inside my butt but that didn't happen." He felt "ejaculation on
[his] back." He recalled drinking a lot of alcohol the night before, and he felt like he was
still under the influence of something at the time.
Phillip testified he participated in Rafail's paintball team and traveled to paintball
tournaments with Rafail and the other boys. Inside the hotel room the boys typically
9
were naked, they would masturbate each other in different positions, and on one occasion
Rafail videotaped them. The masturbation "contests" and video-recording were Rafail's
ideas.
Phillip also testified that on one occasion, when he was 15 years old, Rafail shaved
Phillip's testicles in Rafail's apartment, and in exchange Rafail gave Phillip a paintball
gun. Rafail used his hands to apply a chemical hair remover to Phillip's testicles, then
washed it off and used a razor to shave off the remaining hair on Phillip's testicles.
Phillip twice discovered recording devices in Rafail's apartment. The first time, he
found a camcorder hidden inside a sock in a pile of laundry near the living room couch.
The camera was hooked up to a wire that went into a wall and then to a VCR in another
room. One of the video tapes showed Phillip masturbating. Phillip confronted Rafail
about it, and Rafail agreed to destroy the tape. Later, at a different apartment, Phillip
found a similar setup and a similar video, and Phillip destroyed it.
Phillip testified that Rafail's sexual acts with him continued until Phillip was 18
years old. While Phillip was in high school, Rafail discouraged him from having
relationships with girls. Rafail agreed to purchase a car for Phillip if Phillip slept naked
with him for a year. After that year, Rafail bought him a new Volkswagen GTI.
One night, as Phillip was getting ready for bed, Rafail asked him whether he
wanted another shot of liquor. Thinking Rafail was taking too long in pouring the drink,
Phillip checked on him and found him trying to hide something that turned out to be a
powdery substance he had been getting ready to put into Phillip's drink. Phillip became
so angry that he grabbed all of his belongings and left Rafail's apartment. Phillip testified
10
he went to a behavioral health facility the next day and told a psychiatrist about what
Rafail had done to him. In September 2012, Phillip reported Rafail's actions to law
enforcement. Phillip did not see Rafail again until Phillip testified in this case.
4. Jeremy S.6
Jeremy S. testified that when he was 13 years old, he met Rafail at a karate studio
in Escondido where Rafail worked as an instructor. Jeremy socialized with Rafail and
Doe during tournaments and joined them at amusement parks and the beach. One time,
while spending the night at Doe's parents' house, Jeremy became intoxicated, fell asleep
on the floor, and awoke as Rafail was giving him oral sex. Doe witnessed the act.
Jeremy testified that on another occasion at Rafail's parents house, when Jeremy
was 15 years old, Rafail gave him a few beers and offered him $750 if he would shave
his pubic hair. Rafail helped Jeremy shave himself and videotaped the act. After he
helped Jeremy shave his scrotum, Rafail helped him wash his testicles and penis. They
had more drinks, and Rafail asked him to wear a white cotton thong before going to bed.
After Jeremy fell asleep, he awoke as Rafail was giving him oral sex. Doe corroborated
Jeremy's testimony by testifying that Rafail asked Jeremy to "shave his pubic hair" in
exchange for "hundreds of dollars."
Jeremy also testified that when was 19 years old, he briefly lived in Rafail's living
room. Before he moved in, he told Rafail that he remembered what he had done and that
6 Rafail was charged with committing three offenses against Jeremy S.: counts 22 (giving oral sex at Doe's house), 23 (shaving testicles), and 24 (giving oral sex at Rafail's parents' house). 11
it was wrong. Rafail replied that he should not tell anyone and that, if asked, he should
say he was 18 years old at the time.
5. Justin S.7
Justin S. testified he was 14 or 15 years old when he became involved with Rafail
and the other boys through participation on the paintball team. He sometimes socialized
with the group at Rafail's apartment. Rafail encouraged a lot of nudity and showering
together, and Justin noticed Rafail had a lot of pornography and alcohol. Rafail shared
beds with the boys and encouraged them to drink alcohol. Justin also testified that while
they were in Florida for a tournament, Rafail performed oral sex on him after they drank
alcohol and Justin began to fall asleep.
Justin also testified that when he was 15 or 16 years old, Rafail performed oral sex
on him three to five times at Rafail's apartment after Justin had been drinking. Justin
stopped playing paintball with the group when he was 16 or 17 years old after the group
discovered Rafail was a registered sex offender.
6. Other Evidence
Jeremy K., another member of the group, corroborated the victims' testimony. He
testified that when he was about 13 years old, he met Rafail at the karate studio and
became involved in martial arts competitions and the paintball team. He noticed that
Rafail gave him and the other boys anything they asked for, including alcohol. Whenever
he spent the night at Rafail's house, he noticed that Rafail shared a bed with Phillip or
7 Rafail was charged with committing two offenses against Justin S.: counts 25 (first time giving oral sex) and 26 (last time giving oral sex). 12
Doe. Rafail had a lot of pornographic magazines and encouraged the boys to look at
them. Jeremy also noticed that Rafail gave a lot of gifts to Doe and Phillip. When the
group traveled to tournaments, Rafail supplied alcohol and pornography, videotaped
them, and encouraged nakedness, wrestling, and masturbation contests. Rafail once
offered to masturbate Jeremy in Rafail's apartment, but Jeremy refused the offer.
A search of Rafail's home resulted in the discovery of numerous videos. The
video played for the jury was the only one that depicted sexual acts.
B. The Defense
Justin's father testified for the defense. He stated that he became suspicious about
Rafail and the karate team when Justin was 16 years old. Justin told him nothing had
happened, and he believed Justin at the time.
Doe's mother, Patricia G., testified about her family's relationship with Rafail.
Rafail lived with them and shared a room with Doe. She explained that Rafail spent
increasing amounts of time with her son and bought him many things, including a
bicycle, she could not afford to buy for him. Doe's father was infuriated by the gifts.
Patricia G. testified that Doe convinced her "[t]o a certain degree" that Rafail had not
inappropriately touched him, but she admitted at trial that, in retrospect, she had been "an
idiot."
The defense also called Polly Grissom. She met Rafail at the karate studio. When
she learned in 2005 about Rafail's prior conviction and asked him about it, she was
satisfied with his explanation and eventually began living with him in 2008. She testified
she was not aware of any inappropriate contact between Rafail and any children. At
13
some point, she observed behavioral changes in Phillip and suspected he was using drugs.
Grissom also testified that Rafail gave Phillip a debit card for Phillip to use to buy food
while Rafail was in the hospital, and Phillip took all of the money from Rafail's account.
She trusted other children, including her own son and daughter, to be alone with Rafail
because she never saw any behavior that would make her be concerned.
DISCUSSION
I. CLAIMS OF INSTRUCTIONAL ERROR AND PROSECUTORIAL MISCONDUCT (ALL 25 COUNTS)
Rafail challenges his convictions of all 25 charged sexual offenses by contending
the court committed instructional error and the prosecutor committed misconduct during
her closing arguments by telling the jury to not consider the lesser included offenses for
each of those 25 greater offenses, thereby denying him the right to present his defense
and his right to a fair trial. We reject this contention because Rafail has distorted the
court's instructions and the prosecutor's statements by quoting them out of context.
A. Background
As to the sodomy-of-an-intoxicated-person offense charged in count 12, the court
instructed the jury under CALCRIM No. 960 on the lesser included offense of simple
battery (§ 242). As to count 12 and the 24 lewd act charges (counts 1-11, 13-16 & 18-
26), the court instructed the jury under CALCRIM No. 915 on the lesser included offense
of simple assault (§ 240).
The court orally instructed the jury regarding its consideration of the lesser
included offenses. The court began by explaining that Rafail was charged with 25 counts
14
and the jury had one verdict form for each of those greater offenses. The court also
explained there was one lesser included offense for 24 of those counts and two lesser
included offenses for the remaining count (count 12), and, thus, there was a total of 51
verdict forms. Soon thereafter, the court told the jury:
"If you find the Defendant guilty of the greater charged crime . . . , then you leave the [lesser included offense] form blank. [¶] But if you find the Defendant not guilty[], then you may consider the lesser offense." (Italics added.)
The court also told the jury, "I cannot accept a verdict on a lesser offense unless
the jury unanimously comes back not guilty on the greater charged offense. If you can't
reach a verdict on the charged offense, then you leave both forms blank and return them
to me and tell me you can't reach a verdict." The court added:
"You can consider the charges in whatever order you want. I'm just telling you I can't accept a verdict unless it's not guilty on the greater charge." (Italics added.)
In its written instructions to the jury, the court gave CALCRIM No. 3517
("Deliberations and Completion of Verdict Forms"), which stated in part:
"If all of you find that the defendant is not guilty of a greater charged crime, you may find him guilty of a lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime. [¶] . . . [¶] It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have found the defendant not guilty of the corresponding greater crime." (Italics added.)
During her closing arguments, the prosecutor explained the verdict forms to the
jury and how the jury should complete them:
15
"You're going to fill in your answers. If it's guilty, true and true, for example, you sign and date. [¶] And what that means is you don't get to the lesser included offenses that were talked about. So the lesser included offenses of assault or battery as it relates to sodomy, you don't get to those. You leave those blank. And you move on to the next one. [¶] You fill out the next verdict form. You see the lesser included offense. You leave that blank. It's only if you can't agree or you find him not guilty that you then move on to the lesser charge." (Italics added.)
B. Analysis
1. Instructional error claims
a. Consideration of lesser included offenses
Rafail claims the court erroneously "instructed the jury not to look at the lesser
included [offense] until after making a decision on the charged crime." In making this
claim, he relies on the court's following oral statement to the jury: "If you find the
Defendant guilty of the greater charged crime . . . , then you leave the [lesser included
offense] form blank. [¶] But if you find the Defendant not guilty . . . , then you may
consider the lesser offense." (Italics added.) We reject Rafail's claim.
"When reviewing an instructional ambiguity claim, we ask whether the jury was
reasonably likely to have construed the instruction in a manner that violated the
The California Supreme Court has explained that "[u]nder the acquittal-first rule, a
trial court may direct the order in which jury verdicts are returned by requiring an
express acquittal on the charged crime before a verdict may be returned on a lesser
included offense." (Bacon, supra, 50 Cal.4th at p. 1110, italics added.) However, the
jury can deliberate on the charges in any order, and the trial court may not prohibit the
16
jury from considering or discussing a lesser included offense before returning a verdict
on the corresponding charged offense. (People v. Kurtzman (1988) 46 Cal.3d 322, 325,
335-336.)
Here, the record establishes that the court correctly instructed the jury on the law,
and it shows that Rafail has quoted the court's foregoing statement out of context.
Specifically, the record shows the court made the statement on which Rafail relies.
However, Rafail disregards the court's subsequent clarifying statement, "You can
consider the charges in whatever order you want. I'm just telling you I can't accept a
verdict unless it's not guilty on the greater charge." (Italics added.) Thus, the court did
inform the jury it could consider a lesser included offense before it made a decision on
the corresponding charged offense. The court's written instructions further emphasized
that the jury could consider the lesser included offenses during its deliberations.
Specifically, the court instructed the jury under CALCRIM No. 3517 that "[i]t is up to
you to decide the order in which you consider each crime and the relevant evidence, but I
can accept a verdict of guilty of a lesser crime only if you have found the defendant not
guilty of the corresponding greater crime." (Italics added.)
In light of the court's clarifying oral instructions and the foregoing written
instruction that it gave under CALCRIM No. 3517, we conclude it was not reasonably
likely the jury would have failed to understand that it could consider and discuss the
lesser included offenses before it made its decisions on the corresponding charged
offenses.
17
b. Dewberry
Relying on People v. Dewberry (1959) 51 Cal.2d 548 (Dewberry), Rafail also
claims the court erroneously failed to instruct the jury that if it had a reasonable doubt
whether a greater or a lesser offense was committed, it had to convict him of the lesser
offense. In support of this claim, he asserts "[t]he absence of this clarification aggravated
the already-contaminated instructions on the lesser-included offenses." This claim is
unavailing.
Dewberry held that when the evidence is sufficient to support a finding of guilt of
both a charged offense and a lesser included offense, the trial court must instruct the
jurors that if they have a reasonable doubt which crime the defendant committed, they
must give the defendant the benefit of the doubt and find him guilty of the lesser crime,
provided they are convinced beyond a reasonable doubt that the defendant is guilty of the
lesser crime. (Dewberry, supra, 51 Cal.2d at pp. 555-556.) Dewberry explained that
"[i]n every case the principle of reasonable doubt requires an acquittal of an offense when
the prosecution has not met its burden of proof. Thus, [when] reasonable doubt
exists . . . as between the inclusive and included offense, the jury can only convict of the
crime whose elements have been proved beyond a reasonable doubt." (Id. at p. 556.)
Here, the court properly instructed the jurors under CALCRIM Nos. 220 and 3517
that if they had a reasonable doubt as to whether Rafail committed a charged offense or a
corresponding lesser included offense, they must find him guilty of the lesser offense,
provided they were convinced beyond a reasonable doubt that Rafail was guilty of the
lesser crime. The court's instruction under CALCRIM No. 220 told the jury the
18
prosecution had to prove Rafail was guilty beyond a reasonable doubt, and he was
entitled to an acquittal if the evidence did not prove him guilty beyond a reasonable
doubt. The court's instruction under CALCRIM No. 3517 reflected and incorporated the
principle of reasonable doubt set forth in CALCRIM No. 220─and its specific application
under Dewberry─because it informed the jury it could not find Rafail guilty of a greater
crime unless all the jurors agreed he was guilty of the greater crime beyond a reasonable
doubt. Thus, the court's instructions under CALCRIM Nos. 220 and 3517 did not permit
the jury to find Rafail guilty of the greater offense of sodomy or committing a lewd act
upon a child in the event the jurors did not agree or some of them had a reasonable doubt
about whether he was guilty of the greater offense.
2. Prosecutorial misconduct claim
Rafail also contends the prosecutor erroneously "instructed the jury NOT to
consider the lesser included offenses." In support of this contention, Rafail relies on the
following incomplete excerpt of the prosecutor's closing argument statements:
"And what that means is you don't get to the lesser included offenses that were talked about. So the lesser included offenses of assault or battery as it relates [sic] to sodomy, you don't get to those. You leave those blank. And you move on to the next one. [¶] You fill out the next verdict form. You see the lesser included offense. You leave that blank. It's only if you can't agree or you find him not guilty that you then move on to the lesser charge." (Italics added.)
Rafail asserts that the prosecutor's foregoing statements "magnified" the claimed
ambiguity of the court's instructions because they told the jurors they "could not look at
the lesser included crime until after they concluded that he was not guilty of the charged
crime."
19
We reject Rafail's contention because he has quoted the prosecutor's foregoing
statements out of context and he misconstrues her remarks. Rafail disregards the
prosecutor's statements that immediately preceded the excerpt quoted above. The
prosecutor actually told the jury:
"You're going to fill in your answers. If it's guilty, true and true, for example, you sign and date. [¶] And what that means is you don't get to the lesser included offenses that were talked about. So the lesser included offenses of assault or battery as it relates [sic] to sodomy, you don't get to those. You leave those blank. And you move on to the next one. [¶] You fill out the next verdict form. You see the lesser included offense. You leave that blank. It's only if you can't agree or you find him not guilty that you then move on to the lesser charge." (Italics added.)
Rafail disregards the prosecutor's foregoing statement, "If it's guilty, true and true,
for example, you sign and date." The full excerpt shows the prosecutor properly
explained that if the jury reached a guilty verdict on a greater offense, it should not
complete the verdict form for a corresponding lesser included offense. The prosecutor
did not argue, as Rafail erroneously claims she did, that the law precluded the jury from
considering a lesser included offense until after it had decided Rafail was not guilty of
the charged greater offense. Although Rafail urges this court to interpret the prosecutor's
statements "you don't get to the lesser included offenses" and "you don't get to those" as a
"firm instruction" or a "flat-out misstatement of the law", neither those partial statements
nor the context we have discussed support such an interpretation.
20
II. COUNT 23 (CLAIMS OF INSUFFICIENCY OF THE EVIDENCE AND INSTRUCTIONAL ERROR)
Rafail also challenges his conviction of count 23, the lewd act charge (§ 288(c)(1))
that involved his videotaped shaving of Jeremy's pubic hair and testicles. Rafail does not
contend the evidence of the elements of this offense was insufficient. Instead, he raises
various contentions regarding (1) the extension of the applicable statute of limitations
under section 803, subdivision (f) (hereafter section 803(f)), which extends the time
period within which the People may charge specified sexual offenses committed against a
child, subject to certain restrictions; and (2) the related jury instruction given by the court,
CALCRIM No. 3250 ("Time Limitation for Prosecution ([§] 803(f))").
Specifically, Rafail contends there is insufficient evidence to support the jury's
finding that the prosecution met its burden of proving the requirements under section
803(f) and CALCRIM No. 3250 for extending the statute of limitations period for count
23 because (1) there is no evidence of "substantial sexual conduct" by "mutual
masturbation," and (2) there is no independent evidence corroborating Jeremy's
testimony. Rafail also contends CALCRIM No. 3250 as given by the court confused the
jury. These contentions are unavailing.
A. Background
1. Defense motion for acquittal (count 23)
After the People rested their case, Rafail brought a motion under section 1118.1
for judgment of acquittal as to count 23 for insufficient evidence. Defense counsel
argued there was no evidence of substantial sexual conduct because there was no
21
evidence that Rafail or Jeremy became sexually aroused. The court denied the motion,
finding there was sufficient circumstantial evidence that during the shaving incident,
Rafail acted with a sexual purpose. The court stated, "[T]hat's why he wanted to have it
videotaped and why he was willing to pay [Jeremy] $750 to do it." The court also found
the People had presented sufficient evidence of substantial sexual conduct within the
meaning of section 803(f), citing People v. Lamb (1999) 76 Cal.App.4th 664 (Lamb) for
its definition of the term "mutual masturbation" used in CALCRIM No. 3250.
2. Court's instruction under CALCRIM No. 3250
Later, without a defense objection, the court instructed the jury with a modified
version of CALCRIM No. 3250. That instruction informed the jury that if it found Rafail
guilty of count 23, it was also required to decide whether the People had "proved the
additional allegation that the crime was committed pursuant to Penal Code section
803(f)" (hereafter the section 803(f) allegation).8 The instruction informed the jury that
to prove this allegation, the People were required to prove that (1) the victim was under
the age of 18 at the time of the charged crime, (2) the victim reported the crime to law
enforcement and the criminal complaint in this case was filed within one year of that
8 The section 803(f) allegation in count 23 of the amended information stated: "And it is further alleged that within one year of filing this criminal complaint . . . the above offense was reported to a California law enforcement agency by a person of any age alleging that [he,] while under the age of 18 years[,] was the victim of a crime described in Penal Code section 288, and that the limitation periods specified in Penal Code sections 800, 801 and 801.1 have expired, and that the offense involves substantial sexual conduct as defined by Penal Code section 1203.066(b), and there is independent evidence that corroborates the victim's allegation, within the meaning of PENAL CODE SECTION 803(f)." (Italics added.) 22
report, (3) the 10-year statute of limitations had expired, (4) the alleged crime
(§ 288(c)(1)) involved "substantial sexual conduct," and (5) "clear and convincing
evidence . . . corroborat[ed] the victim's allegation."
The instruction defined "clear and convincing" evidence as evidence that
"persuade[s] you that it is highly probable that the fact is true." It defined "substantial
sexual conduct" as "penetration of the vagina or rectum of either the child or the
defendant by the penis of the other or by any foreign object, oral copulation of either the
child or the defendant, or mutual masturbation of either the child or the defendant."
(Italics added.) The instruction also defined "masturbation" as "any contact, however
slight, of the genitals or sexual organ of either the child or the defendant."
The court's instruction also explained the People's burden of proving the section
803(f) allegation by a preponderance of the evidence:
"The People have the burden of proving by a preponderance of the evidence that prosecution of this case began within the required time. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the People must prove that it is more likely than not that prosecution of this case began within the required time. If the People have not met this burden, you must find the defendant not guilty of these crimes."
3. Prosecutor's closing argument
In her closing argument, the prosecutor stated with respect to count 23, "You
heard testimony that [Rafail] . . . shaved Jeremy's testicles and then performed oral sex on
him later. That was at [Rafail's] parents' house in Escondido."
23
Regarding the section 803(f) allegation in count 23 concerning the statute of
limitations, the prosecutor argued that the People had proved Jeremy was under the age
of 18 years when Rafail committed count 23, that the criminal complaint was filed within
a year after Jeremy reported the crime to law enforcement, and that the crime involved
substantial sexual contact. The prosecutor told the jury that substantial sexual contact
included oral copulation and masturbation. She also told the jury that "even slight
touching of the genitals, under the law[,] is considered masturbation."
The prosecutor also told the jury, "You have to have clear and convincing
evidence that corroborates Jeremy's testimony. The clear and convincing evidence in this
case is the video. [¶] That corroborates Jeremy's testimony. And this statute of
limitations needs to be proven by a preponderance of the evidence, more likely than not.
So we know that the statute of limitations [has] been met."
B. Applicable Legal Principles
1. Section 803(f)
As already noted, section 803(f) extends the time period within which the People
may charge specified sexual offenses committed against a child, subject to certain
restrictions. Specifically, when a person of any age reports that he or she was a victim of
various sexual offenses, including offenses under section 288, while under the age of 18,
section 803(f) authorizes a criminal complaint to be filed within one year of that person's
initial report to a law enforcement agency. (§ 803, subd. (f)(1).) This statutory extension
of the limitation period applies only if the following three requirements set forth in
section 803, (f)(2)(A) through (f)(2)(C) are met: (1) the applicable statute of limitations
24
period has expired (§ 803(f)(2)(A)), (2) the crime involved "substantial sexual conduct"
as defined by section 1203.066, subdivision (b) (hereafter section 1203.066(b)),
excluding "masturbation that is not mutual" (§ 803(f)(2)(B)); and (3) independent
evidence "clearly and convincingly corroborate[s] the victim's allegation" (§
803(f)(2)(C), italics added).
Thus, as pertinent here, section 803(f) expressly incorporates the definition of
"substantial sexual conduct" contained in section 1203.066(b) with the exception of
"masturbation that is not mutual." (§ 803(f)(2)(B).)
Section 1203.066(b) defines "[s]ubstantial sexual conduct" as "penetration of the
vagina or rectum of either the victim or the offender by the penis of the other or by any
foreign object, oral copulation, or masturbation of either the victim or the offender"
(§ 1203.066(b), italics added), excluding (as already noted) "masturbation that is not
mutual" (§ 803(f)(2)(B)). Although this exclusion−"masturbation that is not mutual"−is
not statutorily defined, the courts have clarified that it "refers to a defendant's self-
masturbation in the presence of the victim." (People v. Terry (2005) 127 Cal.App.4th
750, 771 (Terry), citing Lamb, supra, 76 Cal.App.4th at pp. 677-682.) Therefore, a
defendant's "acts in masturbating the victim fall within the definition of mutual
masturbation" (Lamb, at p. 682) and qualify for the extended statute of limitations
described in section 803(f). (§ 803(f)(2)(B); see Terry, at p. 771 [a defendant's "'acts in
masturbating the victim fall within the definition of mutual masturbation set forth in
section 803, subdivision (g), and thus qualify for the extended statute of limitations
described in that section'"].)
25
"Masturbation encompasses any touching or contact, however slight, of the
genitals of the victim or the offender done with the intent to arouse the sexual desires of
the victim or the offender." (People v. Dunn (2012) 205 Cal.App.4th 1086, 1098, fn. 9
(Dunn); see Terry, supra, 127 Cal.App.4th at p. 772.)
"The People ha[ve] the burden to prove the charges were timely brought." (People
v. Ruiloba (2005) 131 Cal.App.4th 674, 681 (Ruiloba).) Although the prosecution bears
the burden of proving each element of an offense beyond a reasonable doubt, "the statute
of limitations is not an ingredient of an offense but a substantive matter for which the
prosecution's burden of proof is a preponderance of the evidence." (People v. Riskin
(2006) 143 Cal.App.4th 234, 241, italics added; see Ruiloba, at p. 681 [People's burden in
proving charges were timely brought under § 803, subd. (g) "is by a preponderance of the
evidence"].)
2. Standards of review
a. Insufficiency-of-the-evidence claims
When assessing a challenge to the sufficiency of the evidence supporting a
conviction, we apply the substantial evidence standard of review, under which we view
the evidence "in the light most favorable to the judgment below to determine whether it
discloses substantial evidence−that is, evidence which is reasonable, credible, and of
solid value−such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; see Jackson v.
Virginia (1979) 443 U.S. 307, 319.)
26
In this regard, substantial evidence is "evidence sufficient to 'deserve consideration
by the jury,' not '. . . any evidence . . . presented, no matter how weak.'" (People v.
Williams (1992) 4 Cal.4th 354, 361.) "The same standard of review applies to cases in
which the prosecution relies mainly on circumstantial evidence." (People v. Maury
(2003) 30 Cal.4th 342, 396.)
b. Instructional error claims
"The trial court is obligated to instruct the jury on all general principles of law
relevant to the issues raised by the evidence, whether or not the defendant makes a formal
request." (People v. Blair (2005) 36 Cal.4th 686, 744, overruled on other grounds in
People v. Black (2014) 58 Cal.4th 912, 919.) "In reviewing a claim of instructional error,
the ultimate question is whether 'there was a reasonable likelihood the jury applied the
challenged instruction in an impermissible manner.'" (People v. Hajek and Vo (2014) 58
Cal.4th 1144, 1220.) "'[T]he correctness of jury instructions is to be determined from the
entire charge of the court, not from a consideration of parts of an instruction or from a
particular instruction.'" (Ibid.) We review de novo a claim of instructional error.
(People v. Posey (2004) 32 Cal.4th 193, 218.)
C. Analysis
1. Sufficiency of the evidence
a. Substantial sexual conduct
Rafail contends there is insufficient evidence to support the jury's finding that the
prosecution met its burden of proving the requirements under section 803(f) and
CALCRIM No. 3250 for extending the limitation period for count 23 because there is no
27
evidence of "substantial sexual conduct" by mutual masturbation. We reject this
contention. Viewing the evidence in the light most favorable to the judgment of
conviction, as we must (People v. Johnson, supra, 26 Cal.3d at p. 578), we conclude the
prosecution met its burden of presenting substantial circumstantial evidence from which a
reasonable trier of fact could infer by a preponderance of the evidence (see Ruiloba,
supra, 131 Cal.App.4th at p. 681) that when Rafail helped Jeremy shave his pubic hair
and wash himself, his actions constituted "substantial sexual conduct" by means of
mutual masturbation within the meaning of section 803(f)(2)(B). As already discussed, a
defendant's "'acts in masturbating the victim fall within the definition of mutual
masturbation'" (Terry, supra, 127 Cal.App.4th at p. 771), and masturbation "encompasses
any touching or contact, however slight, of the genitals of the victim or the offender done
with the intent to arouse the sexual desires of the victim or the offender." (Dunn, 205
Cal.App.4th at p. 1098, fn. 9.)
Here, the prosecution presented substantial circumstantial evidence supporting a
reasonable inference that Rafail was sexually attracted to prepubescent boys, he received
sexual gratification from the process of shaving Jeremy, and he wanted to help Jeremy
shave himself so that he (Rafail) would experience more satisfaction from the sexual acts
he committed later in the evening. Jeremy testified regarding the offense charged in
count 23 that, when he was 15 years old, Rafail gave him a few beers and offered him
$750 if he (Jeremy) would shave off his pubic hair. Rafail helped Jeremy shave himself
and videotaped the act. Jeremy also testified that after Rafail helped shave his testicles,
Rafail used his hands to help wash Jeremy's testicles and penis. After they had a couple
28
more drinks, Rafail asked him to wear a white cotton thong before they went to bed in the
same bed. Jeremy also testified that after he fell asleep, he awoke to find Rafail giving
him oral sex.
Based on the foregoing substantial evidence, a reasonable trier of fact could infer
that Rafail engaged in "substantial sexual conduct" by mutual masturbation by helping
Jeremy shave his pubic hair and wash his genitals "with the intent to arouse the sexual
desires of the victim or the offender." (Dunn, supra, 205 Cal.App.4th at p. 1098.)
b. Corroboration
Asserting that the prosecution "presented no independent witnesses to the [c]ount
23 shaving event," Rafail also contends there is insufficient evidence to support the jury's
finding that the prosecution met its burden of proving the requirements under section
803(f) and CALCRIM No. 3250 for extending the statute of limitations period for count
23 because the prosecutor "presented no evidence−let alone corroborating evidence−that
any of the listed acts that comprise substantial sexual conduct occurred."
We reject this contention. Although section 803(f) requires corroboration of the
victim's allegation by clear and convincing evidence (see § 803(f)(2)C), it does not
require corroboration of any specific offense. (Ruiloba, supra, 131 Cal.App.4th at p.
683.) Evidence that generally shows a defendant's propensity to commit sexual offenses
against a child may corroborate all of the charged offenses, even if that evidence does not
particularly corroborate any specific offense. (Ibid.)
Viewing the evidence in the light most favorable to the judgment, as we must
(People v. Johnson, supra, 26 Cal.3d at p. 578), we conclude the prosecution met its
29
burden of presenting substantial evidence that "clearly and convincingly corroborate[d]
[Jeremy's] allegation" (§ 803(f)(2)(C)). Doe corroborated Jeremy's count 23 accusation
by testifying that he remembered Rafail asking Jeremy to "shave his pubic hair" in
exchange for "hundreds of dollars." Doe also testified he witnessed Rafail perform oral
sex on Jeremy, thereby corroborating Jeremy's own testimony that Rafail performed oral
sex on him after Rafail helped to shave Jeremy's testicles and after Rafail touched and
washed Jeremy's testicles and penis. Both Doe and Phillip testified that Rafail
videotaped his sexual acts with them, thereby corroborating Jeremy's testimony that
Rafail videotaped his act of shaving Jeremy's pubic hair. Based on the foregoing
substantial evidence, we conclude Rafail's contention the prosecution presented no
corroborating evidence is meritless.
2. Instructional error claim
Rafail next contends the court's modified version of CALCRIM No. 3250
(discussed, ante) confused the jury because (1) it "correctly required any masturbation to
be mutual to satisfy the requirements of section 803(f)" but then defined masturbation as
"any contact, however slight, of the genitals or sexual organ of either the child or the
defendant", and (2) it "introduce[d] two new burdens" (proof by clear and convincing
evidence and proof by a preponderance of the evidence) that "operate[d] in addition to
the beyond-a-reasonable-doubt burden for the elements of [c]ount 23." This contention is
unavailing.
Our Supreme Court has explained that, "'[g]enerally, a party may not complain on
appeal that an instruction correct in law and responsive to the evidence was too general or
30
incomplete unless the party has requested appropriate clarifying or amplifying language.'"
(People v. Guiuan (1998) 18 Cal.4th 558, 570 (Guiuan).)
Here, Rafail's claim that the modified version of CALCRIM No. 3250 given by
the court was confusing to the jury is a complaint that the court should have provided
clarifying instructions. He states, "No clarifying instructions were given to the jury as to
how to apply the two standards in addition to the reasonable doubt standard." However,
the record shows the defense did not request any clarifying or amplifying language
during the jury instructions conference, and it did not object to the giving of that set of
instructions. Thus, we conclude Rafail forfeited his claim of instructional error because
he did not request that the court give clarifying instructions. (See Guiuan, supra, 18
Cal.4th at p. 570; People v. Valdez (2004) 32 Cal.4th 73, 113 ["Defendant did not request
the clarifying language he now contends was crucial and may not now 'complain on
appeal that an instruction correct in law and responsive to the evidence was too general or
incomplete.'"].)
Were it necessary to reach the merits of Rafail's contention, we would reject it.
Rafail's assertion that there is "something of a struggle" between the requirement that any
masturbation be "mutual"—which he concedes is correctly set forth on the first page of
the challenged instructions9—and the definition of masturbation set forth at the end of
9 The court instructed that "[s]ubstantial sexual conduct means penetration of the vagina or rectum of either the child or the defendant by the penis of the other or by any foreign object, oral copulation of either the child or the defendant, or mutual masturbation of either the child or the defendant." (Second italics added.)
31
the court's instructions,10 is based on his own faulty interpretation of "mutual
masturbation." In addition, although the court's instructions under CALCRIM No. 3250
did involve the standards of proof by a preponderance of the evidence and proof by clear
and convincing evidence, the court correctly explained those standards. "We presume
that jurors are intelligent and capable of understanding and applying the court's
instructions." (People v. Butler (2009) 46 Cal.4th 847, 873.) Rafail has failed to show a
likelihood that the jury misunderstood or misapplied those instructions.
III. ADDITIONAL CLAIMS OF PROSECUTORIAL MISCONDUCT
Rafail next contends the prosecutor committed misconduct many times (discussed,
post) during her closing argument, and thereby violated his federal constitutional rights to
cross-examination and a fair trial, by misrepresenting facts, misstating the law,
"exploit[ing] existing confusion in the complex of facts and legal directives,"
"fabricat[ing] facts," and telling the jury to "cheat" the applicable standards of proof. We
conclude Rafail forfeited some of his claims of prosecutorial misconduct by failing to
object to the challenged statements, and his remaining claims are unavailing.
A. Applicable Legal Principles
"When a prosecutor's intemperate behavior is sufficiently egregious that it infects
the trial with such a degree of unfairness as to render the subsequent conviction a denial
of due process, the federal Constitution is violated. Prosecutorial misconduct that falls
short of rendering the trial fundamentally unfair may still constitute misconduct under
10 The court instructed that "[m]asturbation is any contact, however slight, of the genitals or sexual organ of either the child or the defendant." 32
state law if it involves the use of deceptive or reprehensible methods to persuade the trial
court or the jury." (People v. Panah (2005) 35 Cal.4th 395, 462 (Panah).) "Misconduct
that does not constitute a federal constitutional violation warrants reversal only if it is
reasonably probable the trial outcome was affected." (People v. Shazier (2014) 60
Cal.4th 109, 127 (Shazier).)
"To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant
must make a timely objection, make known the basis of his objection, and ask the trial
court to admonish the jury." (People v. Brown (2003) 31 Cal.4th 518, 553 (Brown).) "If
the defendant fails to object to the asserted misconduct and does not request an
instruction or admonition to lessen any possible prejudice, then the asserted objection is
thereby waived." (People v. Nguyen (1995) 40 Cal.App.4th 28, 36.)
"There are two exceptions to this forfeiture: (1) the objection and/or the request
for an admonition would have been futile, or (2) the admonition would have been
insufficient to cure the harm occasioned by the misconduct." (Panah, supra, 35 Cal.4th
at p. 462.) "A defendant claiming that one of these exceptions applies must find support
for his or her claim in the record. [Citation.] The ritual incantation that an exception
applies is not enough." (Ibid.)
Prosecutors "ha[ve] a wide-ranging right to discuss the case in closing argument."
(People v. Lewis (1990) 50 Cal.3d 262, 283.) Thus, a prosecutor has wide latitude to
discuss and draw inferences from the evidence presented at trial, and the question of
whether the inferences the prosecutor draws are reasonable is for the jury to decide.
(Shazier, supra, 60 Cal.4th at p. 127.)
33
Accordingly, "prosecutorial commentary should not be given undue weight."
(People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21, superseded by statute on other
grounds as explained in In re Steele (2004) 32 Cal.4th 682, 691.) "Juries are warned in
advance that counsel's remarks are mere argument, missteps can be challenged when they
occur, and juries generally understand that counsel's assertions are the 'statements of
advocates.' Thus, argument should 'not be judged as having the same force as an
instruction from the court. And the arguments of counsel, like the instructions of the
court, must be judged in the context in which they are made.'" (Gonzalez, at p. 1224, fn.
21, quoting Boyde v. California (1990) 494 U.S. 370, italics added.)
To prevail on a claim of prosecutorial misconduct based on the prosecutor's
remarks to the jury, the defendant must show a reasonable likelihood the jury understood
or applied the complained-of comments in an improper or erroneous manner. (Shazier,
supra, 60 Cal.4th at p. 127.)
B. Analysis
Rafail first claims the prosecutor committed misconduct during her closing
argument (1) by stating without supporting evidence that "instead of mentoring Patrick
V., [Rafail] masturbated him" and Rafail and Patrick "rubbed their penises together," that
Patrick suffered a "lasting emotional scar", and that the jurors could use this "propensity
evidence" concerning Patrick if they wanted to; (2) by stating that Rafail "started out with
Patrick" and then "with John Doe took it to that next level" and (3) by mischaracterizing
Doe's testimony by stating that Rafail "talk[ed] about sexual things with John Doe" and
told him about sex, masturbation, and his own sexual acts as a child.
34
The Attorney General asserts Rafail forfeited these claims of prosecutorial
misconduct because he failed to object during the prosecutor's closing argument. We
agree. The record shows the defense did not object when the prosecutor made the
foregoing remarks during her closing argument. By failing to object, Rafail forfeited the
claims he now raises on appeal. (See Brown, supra, 31 Cal.4th at p. 553; People v.
Nguyen, supra, 40 Cal.App.4th at p. 36.) Rafail attempts to avoid application of the
forfeiture rule by asserting the court had "always overruled" other defense objections
during the prosecutor's closing argument "on the grounds that it was 'just argument'" and
"the efforts became futile." Rafail's argument is unavailing. As already discussed, a
defendant claiming the futility exception to the forfeiture rule applies "must find support
for his or her claim in the record" and the "[t]he ritual incantation that an exception
applies is not enough." (Panah, supra, 35 Cal.4th at p. 462.) Here, the record shows
that, although the court did overrule some of the defense objections on the ground the
prosecutor's challenged remarks were "argument," it overruled other objections on other
grounds.
Rafail also claims the prosecutor committed misconduct during her closing
argument by "falsely claim[ing]" she had presented all of the evidence she had promised
during her opening statement that she would present, such as evidence that Rafail
molested Patrick while Patrick was asleep in the car on a "dark street," and that Rafail
engaged in "oral sex on Patrick, mutual masturbation, [and] masturbating Patrick while
masturbating himself." This claim is unavailing because Patrick specifically testified that
Rafail would pick him up from school and either take him to get something to eat or drive
35
around, and then he would park on a street near Patrick's parents' house. Patrick also
testified they "would usually just sit there, and sometimes I would fall asleep," and Rafail
"would kind of pick me up over to him and . . . rub on my penis and had me rub his . . . ."
Patrick further testified that Rafail "would have oral sex with me there and rub his penis
on my butt and things . . . of that nature."
Rafail also claims the prosecutor committed misconduct during her closing
argument by making "misrepresentations of fact" by "present[ing]" the "picture" that
Phillip was "homeless and alone when he moved to San Diego" when she told the jury,
"What was the one thing Phillip was missing when he came to California? He was
missing a dad. He was missing his dad. He didn't have friends out here. He didn't have a
community. Heck, he didn't even have a home when he first got here." This claim is
unavailing because Phillip did testify, "I had no family out here. I had nobody." He also
testified his father was in Philadelphia, he did not have connections in San Diego, "karate
was [his] life at that time," and Rafail "kind of took the place of [his] father." Thus, the
prosecutor's statements were accurate.
All of the foregoing claims of prosecutorial misconduct, are unavailing because, as
Rafail acknowledges, the court instructed the jury under CALCRIM No. 222 that
"[n]othing that the attorneys say is evidence. In their opening statements and closing
arguments, the attorneys discuss the case, but their remarks are not evidence." We
presume the jury in this case understood and followed these instructions. (See People v.
Brady (2010) 50 Cal.4th 547, 566, fn. 9.)
36
In sum, we conclude Rafail has failed to meet his burden of showing a reasonable
likelihood the jury understood or applied the prosecutor's complained-of closing
comments in an improper or erroneous manner. (See Shazier, supra, 60 Cal.4th at p.
127.) We reject his contention that he was denied his federal constitutional rights to
cross-examination and a fair trial.
IV. PROPENSITY EVIDENCE (EVID. CODE, § 1108)
Rafail next contends that "the prosecution's misuse of the prior uncharged acts,
and current uncharged acts, under [Evidence Code] sections 1101 and 1108 exploited
existing confusion in the complex of facts and law which sabotaged most, if not all, of the
safeguards to a constitutionally fair trial." We reject this contention.
A. Background
1. Propensity evidence (Evid. Code, § 1108)
The People filed a motion in limine seeking to admit under Evidence Code section
1108 evidence of Rafail's 1992 convictions of three counts of committing a lewd act upon
a child (§ 288(a)) against Patrick. Rafail opposed the motion, arguing the convictions
were remote and admission of the evidence would create a substantial danger of undue
prejudice.
Following a hearing on the motion, the court found Rafail's prior conduct
involving Patrick were "very similar" to his conduct involving the alleged victims in the
instant case because both cases involved young boys, "[i]n both cases [he] got to know
the parents and took over a position of trust with regards to the custody of the children,"
and both cases involved "the same type of conduct of fondling and orally copulating."
37
The court also found that the prior acts were not too remote in time because they took
place in 1989, that Rafail was sentenced in 1992, that he was released on parole in 1995,
and that the alleged incidents at issue in the present case began in 1997 to 1998, within
two to three years after he was released on parole. The court also found the evidence
regarding the crimes committed against Patrick was no more inflammatory than the
evidence of the charged offenses and its presentation would not consume an undue
amount of time. On the issue of prejudice, the court explained to defense counsel that the
evidence "would be damaging as to your client's case, but damaging is not [synonymous]
with prejudice. Evidence that uniquely tends to evoke an emotional bias against the
Defendant which has little effect on the issues would be considered prejudicial." Thus,
the court ruled the evidence was admissible under Evidence Code section 1108 because
the probative value would not be "substantially outweighed by undue prejudice."
During the trial, outside the presence of the jury, defense counsel objected to
Justin's testimony about uncharged offenses Rafail allegedly committed against him in
Florida. The court ruled the testimony was admissible under Evidence Code sections 352
and 1108 because "this was an incident that occurred between the complaining witness
and [Rafail] . . . . So I do think it is relevant." The court indicated its intent to provide a
limiting instruction. Almost immediately thereafter, the court explained to the jury, "[A]t
this time the testimony about the Florida incident, or alleged incident, will be admitted.
You may hear it. It is evidence in this case to which you may give it whatever weight, if
any, you think is appropriate." The court also told the jury, "The Court will instruct you
in the final instructions on how to consider such evidence if you find that it was proven.
38
Also, I will remind you that any events that occurred outside of San Diego County are not
part of the charged offenses. It's only incidents which occurred in San Diego County that
are part of the charged offenses."
2. CALCRIM No. 1191 ("Evidence of Uncharged Sex Offense")
During the jury instructions conference, the court explained it had initially added
language to the CALCRIM No. 1191 instruction specifying that the uncharged sex
offenses involved Patrick. The court then stated, "Now we have evidence of the incident
which occurred in Florida," and asked counsel, "Do we add Justin S. to this?" The court
explained that "[t]he advantage of having the two names in there is that the jurors are
specifically told this information can only be considered under these circumstances, and
not all the other information from the other complaining witnesses about stuff that
occurred that wasn't charged." Defense counsel responded, "My preference would be that
this jury instruction be generic and that the names be removed." The prosecutor
expressed her agreement.
The court then read the first and last paragraphs of the draft instruction, explaining
that it was removing the language referencing Patrick. The court stated, "With those
modifications, [CALCRIM No.] 1191 will be given in that generic sense." Defense
counsel confirmed he had no objections to that instruction.
The court thereafter instructed the jury, both orally and in writing, with the
modified version of CALCRIM No. 1191 discussed during the jury instructions
conference. That instruction generically stated that "[t]he People presented evidence that
39
the Defendant committed the crimes of Lewd Act on a Child . . . that were not charged in
this case."11
The court also instructed the jury with CALCRIM No. 303 ("Limited Purpose
Evidence in General"), which stated: "During the trial, certain evidence was admitted for
a limited purpose. You may consider that evidence only for that purpose and for no
other."
B. Applicable Legal Principles
1. Evidence Code sections 1108 and 352
As a general rule, evidence of a person's character, including evidence of a
person's character in the form of specific instances of uncharged misconduct, is
inadmissible to prove conduct on a specific occasion. (People v. Ewoldt (1994) 7 Cal.4th
11 The modified version of CALCRIM No. 1191 the court gave to the jury stated in full: "The People presented evidence that the defendant committed the crimes of Lewd Act on a Child in violation of Penal Code section 288(a) that were not charged in this case. These crimes are defined for you in these instructions. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit the sexual offenses as charged in this case. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charges in this case. The People must still prove each charge and allegation beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose." 40
§ 1101(a)).) Thus, evidence of other crimes or bad acts is generally inadmissible when it
is offered to show a defendant had the criminal disposition or propensity to commit a
charged crime. (Ewoldt, at p. 393.)
However, an exception to this rule is set forth in section 1108, which provides that
"[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of
the defendant's commission of another sexual offense or offenses is not made
inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible
Evid. Code, § 1108(a); People v. Nguyen (2010) 184 Cal.App.4th 1096, 1115-1116.)
In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the California Supreme
Court explained the legislative purpose of Evidence Code section 1108:
"[T]he Legislature enacted [Evidence Code] section 1108 to expand the admissibility of disposition or propensity evidence in sex offense cases. . . . [¶] Available legislative history indicates [Evidence Code] section 1108 was intended in sex offense cases to relax the evidentiary restraints [Evidence Code] section 1101[(a)] imposed, to assure that the trier of fact would be made aware of the defendant's other sex offenses in evaluating the victim's and the defendant's credibility." (Falsetta, at p. 911.)
Thus, Evidence Code section 1108 allows admission, in a criminal action in which
the defendant is accused of one of a list of sexual offenses, of evidence of the defendant's
commission of another listed sexual offense that otherwise would be made inadmissible
by Evidence Code section 1101(a). (See Evid. Code, § 1108, subds. (a), (d)(1).)
Furthermore, the uncharged and charged offenses are considered sufficiently
similar if they are both sexual offenses enumerated in Evidence Code section 1108.
41
(People v. Frazier (2001) 89 Cal.App.4th 30, 41 (Frazier).) Frazier explained that "[t]he
charged and uncharged crimes need not be sufficiently similar that evidence of the latter
would be admissible under Evidence Code section 1101, otherwise Evidence Code
section 1108 would serve no purpose. It is enough the charged and uncharged offenses
are sex offenses as defined in [Evidence Code] section 1108." (Frazier, at pp. 40-41.)
In Falsetta, supra, 21 Cal.4th 903, the Supreme Court explained that, in
determining whether to admit Evidence Code section 1108 propensity evidence of a
defendant's prior sexual offense, trial courts "must engage in a careful weighing process
under [Evidence Code] section 352" by "consider[ing] such factors . . . as its nature,
relevance, and possible remoteness, the degree of certainty of its commission and the
likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its
similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on
the defendant in defending against the uncharged offense, and the availability of less
prejudicial alternatives to its outright admission, such as admitting some but not all of the
defendant's other sex offenses, or excluding irrelevant though inflammatory details
surrounding the offense." (Falsetta, supra, at pp. 916-917.) The Falsetta court held that
Evidence Code section 1108 does not violate due process principles, and, thus, is
constitutionally valid, because it subjects evidence of uncharged sexual misconduct to the
weighing process of Evidence Code section 352 in sex crime prosecutions. (Falsetta,
supra, at pp. 907, 917-918, 922.)
Under Evidence Code section 352, evidence is properly excluded if its probative
value is "substantially outweighed" by the probability that its admission will necessitate
42
undue consumption of time, or create a substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury. (Evid. Code, § 352; People v. Cudjo
(1993) 6 Cal.4th 585, 609.) A decision to exclude evidence under Evidence Code section
352 comes within the trial court's broad discretionary powers and "will not be overturned
absent an abuse of that discretion." (People v. Minifie (1996) 13 Cal.4th 1055, 1070.)
"The prejudice which exclusion of evidence under Evidence Code section 352 is
designed to avoid is not the prejudice or damage to a defense that naturally flows from
relevant, highly probative evidence. '[All] evidence which tends to prove guilt is
prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is
"prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to
evidence which uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues. In applying [Evidence Code]
section 352, "prejudicial" is not synonymous with "damaging."'" (People v. Karis (1988)
46 Cal.3d 612, 638 (Karis).) "'In other words, evidence should be excluded as unduly
prejudicial when it is of such nature as to inflame the emotions of the jury, motivating
them to use the information, not to logically evaluate the point upon which it is relevant,
but to reward or punish one side because of the jurors' emotional reaction.'" (People v.
Branch (2001) 91 Cal.App.4th 274, 286.)
2. Standard of review
On appeal, we review the trial court's admission of Evidence Code section 1108
evidence, including its Evidence Code section 352 weighing process, for abuse of
discretion. (People v. Dejourney (2011) 192 Cal.App.4th 1091, 1104-1105; People v.
43
Miramontes (2010) 189 Cal.App.4th 1085, 1097.) "We will not find that a court abuses
its discretion in admitting such other sexual acts evidence unless its ruling '"falls outside
the bounds of reason."'" (Dejourney, at p. 1105.) Alternatively stated, we will not
reverse a trial court's exercise of discretion under Evidence Code sections 1108 and 352
unless its decision was "'"arbitrary, capricious, or patently absurd [and] resulted in a
manifest miscarriage of justice."'" (People v. Lewis (2009) 46 Cal.4th 1255, 1286;
People v. Nguyen, supra, 184 Cal.App.4th at p. 1116.)
C. Analysis
Rafail contends the court abused its discretion and violated his constitutional right
to a fair trial by admitting evidence that (1) he had been convicted of sexual offenses
(§ 288(a)) he committed against Patrick in 1989, and (2) he had committed an uncharged
sexual offense (oral copulation) against Justin in Florida. This contention is premised on
Rafail's assertion−which is not supported by a citation to the record as required by rule
8.204(a)(1)(C) of the California Rules of Court12−that "the prosecution introduced the
1989 acts (prior [§] 288(a) conviction) under the theory of a 'common design or plan'"
within the meaning of Evidence Code section 1101, subdivision (b).13 He then cites
12 Rule 8.204(a)(1)(C) of the California Rules of Court states that each appellate brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." All further rule references are to the California Rules of Court.
13 Subdivision (b) of Evidence Code section 1101 provides that "[n]othing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, 44
Ewoldt, supra, 7 Cal.4th 380, for the proposition that "a greater degree of similarity is
required to prove existence of a common design."14 Rafail then asserts−again without a
citation to the record as required by rule 8.204(a)(1)(C)−that the prosecutor "argued a
nonexistent similarity between the prior acts and the facts supporting the present charges"
and she "simply fabricated the similarity."
Rafail has distorted the record. Contrary to his assertion that the prosecution
presented the evidence of Rafail's prior sexual offenses against Patrick under the theory
of a "common design or plan" within the meaning of Evidence Code section 1101,
subdivision (b), the record (discussed, ante) shows the prosecutor presented this evidence
as propensity evidence as authorized under Evidence Code section 1108. Rafail's
reliance on Ewoldt and subdivision (b) of Evidence Code section 1101 is misplaced
because they have no application here. Our decision is governed by Evidence Code
section 1108.
Rafail has failed to meet his burden of showing the court abused its discretion by
admitting propensity evidence of his prior sexual offenses against Patrick and his
uncharged acts against Justin in Florida. Regarding the similarity requirement for
preparation, plan, knowledge, identity, absence of mistake or accident . . . ) other than his or her disposition to commit such an act."
14 For evidence of uncharged misconduct to be admissible under subdivision (b) of Evidence Code section 1101 to prove such facts as motive, intent, identity, or common design or plan, the charged offenses and uncharged misconduct must be "sufficiently similar to support a rational inference" of these material facts. (People v. Kipp (1998) 18 Cal.4th 349, 369.) "The least degree of similarity . . . is required in order to prove intent." (Ewoldt, supra, 7 Cal.4th at p. 402.) "A greater degree of similarity is required in order to prove the existence of a common design or plan." (Ibid., italics added.) 45
admission of propensity evidence in sex offense cases, as already discussed, "[t]he
charged and uncharged crimes need not be sufficiently similar that evidence of the latter
would be admissible under Evidence Code section 1101, otherwise Evidence Code
section 1108 would serve no purpose. It is enough the charged and uncharged offenses
are sex offenses as defined in [Evidence Code] section 1108." (Frazier, supra, 89
Cal.App.4th at pp. 40-41.)
Here, Rafail acknowledges his prior sex offenses against Patrick were convictions
for lewd or lascivious acts upon a child under the age of 14 years in violation of section
288(a)−one of the enumerated sexual offenses listed in subdivision (d)(1)(A) of Evidence
Code section 1108. The propensity evidence of Rafail's uncharged acts against Justin in
Florida when Justin was 15 years old also involved lewd acts. All 25 of the charged sex
offenses in this case−violations of sections 288(a), 288(c)(1), and 286(i)−are also listed in
subdivision (d)(1)(A) of Evidence Code section 1108. The uncharged and charged
offenses are sufficiently similar for purposes of Evidence Code section 1108 because they
are both sexual offenses enumerated in subdivision (d)(1)(A) of that section. (See
Frazier, supra, 89 Cal.App.4th at pp. 40-41.)
Thus, the challenged propensity evidence at issue here was admissible under
Evidence Code section 1108 to prove Rafail had a propensity to commit the charged and
listed offenses of which he ultimately was convicted in this case, unless that evidence
was inadmissible under Evidence Code section 352. (See Evid. Code, § 1108(a).)
46
"'[T]he willingness to commit a sexual offense is not common to most individuals;
thus, evidence of any prior sexual offenses is particularly probative and necessary for
determining the credibility of a witness.'" (Falsetta, supra, 21 Cal.4th at p. 912.)
Here, the evidence of Rafail's uncharged sexual offenses against Patrick and Justin
was highly probative because those offenses involved conduct similar to the acts he
allegedly committed against Doe, Phillip, and Jeremy. The evidence summarized, ante,
in the factual background shows all the victims of both the charged and uncharged
offenses were boys who were 15 years old or younger when Rafail committed those
offenses, and they all alleged he performed oral sex upon them. All of the victims
described a man who ingratiated himself with the boys and their parents by assuming a
role as a tutor or coach. The evidence shows that whether Rafail's role was that of an
afterschool tutor, a paintball coach, or a karate coach, he obtained the trust of the boys
and their parents and exploited that trust in order to isolate the boys and sexually molest
them. Rafail's claim that the prosecutor "simply fabricated [a] similarity" where none
existed, is not supported by the record. To the contrary, the uncharged offenses were
very similar and relevant to the charged offenses.
The propensity evidence was not unduly prejudicial. As already discussed, "[t]he
prejudice which exclusion of evidence under Evidence Code section 352 is designed to
avoid is not the prejudice or damage to a defense that naturally flows from relevant,
highly probative evidence." (Karis, supra, 46 Cal.3d at p. 638.) Here, the uncharged
sexual conduct about which Patrick and Justin testified did not involve rape, violence, or
threats; and they testified about relatively few sexual acts. In contrast, Doe testified that
47
Rafail videotaped his sexual acts with Doe, asked Doe to provide oral sex, purchased
numerous gifts for Doe, "dryhumped" him, and sexually molested him on many more
occasions. Phillip also testified that Rafail purchased numerous gifts for him, recorded
videos of sexual acts without his knowledge, gave him medication to relax him, and
sodomized him. Thus, the evidence of Rafail's uncharged sexual molestations of Patrick
and Justin was less inflammatory than the evidence presented to prove the charged
offenses. Although the Evidence Code section 1108 propensity evidence showing Rafail
had sexually molested Patrick and Justin was harmful to his defense in that it tended to
prove his guilt of the charged sexual offenses, we cannot conclude it "'uniquely tend[ed]
to evoke an emotional bias against the defendant as an individual [with] very little effect
on the issues.'" (Karis, at p. 638.)
Rafail also complains that the court promised it would give a limiting instruction
to the jury but failed to do so. His complaint is unavailing. Although the evidence of
Rafail's uncharged sexual offenses was admitted to prove the charged offenses, the court
explained to the jury that such evidence was insufficient by itself to find Rafail guilty of
the charged offenses. Specifically, the court cautioned the jury that it could find Rafail
guilty of the charged offenses only if it found that "the evidence proves the defendant
guilty beyond a reasonable doubt," and it instructed the jury under CALCRIM No. 1191
that the uncharged conduct evidence was "only one factor to consider, along with all the
other evidence" and "[i]t [was] not sufficient by itself to prove that [Rafail was] guilty of
the charges in this case." The prosecutor reinforced these instructions during her closing
arguments. Although the prosecutor discussed the uncharged acts, she stressed to the
48
jury that those acts were not charged in this case, she explained that this case was about
Rafail's molestation of Doe, Phillip, Justin, and Jeremy S.; and she reminded the jury that
the People carried the burden of proving the charged offenses beyond a reasonable doubt.
Rafail also contends the prosecutor encouraged the jury to convict him of the
charged offenses based upon propensity evidence alone. We reject this contention. A
review of the reporter's transcript of the prosecutor's closing arguments shows she made
no such statement and she did not rely upon the uncharged sexual acts while arguing how
she had proved Rafail committed the charged offenses. Although Rafail quotes
extensively from the prosecutor's closing argument, he provides no analysis of those
arguments. The record shows the prosecutor clearly indicated that the uncharged sexual
acts were not charged in this case, and she clarified that the jury could disregard the
evidence of those uncharged acts if it chose to do so. In addition, she emphasized that
Rafail was presumed to be innocent and it was the People's burden to prove all elements
of the charged offenses beyond a reasonable doubt.
Rafail also asserts the prosecutor "left [a] significant section out" of her discussion
of CALCRIM No. 1191, and thereby "[left] the jury with a somewhat muddled
understanding of how the various charges and burdens of proof played into one another."
However, during the prosecutor's closing argument, the court clarified that "the Court has
told the jury if anything that the attorneys say is contrary to . . . the Court's indication of
the law, the jury is to follow the Court"s instructions." The court also instructed the jury
under CALCRIM No. 200, "If you believe that the attorneys' comments on the law
conflict with my instructions, you must follow my instructions."
49
For all of the foregoing reasons, we conclude that the court properly admitted the
propensity evidence under Evidence Code sections 1108 and 352 and that Rafail has
failed to show his constitutional rights to due process and a fair trial were violated.
V. COURT'S RESPONSE TO JURY QUESTION
Last, Rafail contends the court "committed reversible error when it failed to
adequately address the jury's request for assistance in jury note [No.] 1." This contention
is unavailing.
A. Background
During deliberations, the jury sent to the court a note (jury note No. 1) that stated:
"We have a 2-part request relating to testimony about John Doe showering with the defendant: [¶] 1) Query testimony from John Doe about showering with the defendant[;] [¶] 2) Query testimony from Justin S. about boys (specifically John Doe) showering with the defendant." (Italics added.)
The court and both counsel had difficulty reading the word that followed "1)" and
"2)," but agreed the word was "query."
The court drafted a response that stated:
"The Court is having some difficulty reading the note submitted. It appears that you are asking for read back of certain portions of testimony from John Doe and Justin S. As to John Doe['s] and Justin S.'[s] testimony, if you wish to have any part of their testimony read back, you will be required to listen to read back of their entire testimony. The Court Reporter cannot select which portions to read to the jury. [¶] Are you requesting read back of John Doe's and Justin S.'[s] testimony?"
The court discussed its draft response with counsel. The prosecutor agreed with
the proposed response. Defense counsel initially stated, "I would request that they just be
50
given a read back like we would do in trial, where if we have a witness on the stand, I can
ask . . . the Court to ask the court reporter to do a read back of the last question or the
witness['s] answer to the last question." In response, the court stated, "[W]hat I'm not
going to do is have Madam Court Reporter go back there and try and figure out which
portions she should read and which ones she shouldn't. [¶] So if they want a portion of
the testimony from one of those witnesses, then they're going to be told they have to
listen to the entire testimony of that witness." Defense counsel replied, "That's fair."
Following a brief discussion off the record, the court confirmed that both counsel
agreed with the court's proposed response, and then it stated: "All right. We will send
that back and see if they are actually requesting read back."
The court sent to the jury its response to jury note No. 1 and then recessed the
court proceedings until the following day. The next day, early in the afternoon, the jury
returned its verdicts without requesting a read-back of testimony.
B. Section 1138
Section 1138 provides: "After the jury have retired for deliberation, if there be
any disagreement between them as to the testimony, . . . they must require the officer to
conduct them into court. Upon being brought into court, the information required must
be given in the presence of, or after notice to, the prosecuting attorney, and the defendant
or his counsel, or after they have been called."
Thus, section 1138 "'provides that only when there is a disagreement among the
jurors as to the testimony must it be read to them.'" (People v. Stafford (1973) 29
Cal.App.3d 940, 944 (Stafford), italics omitted.)
51
C. Analysis
As noted, Rafail claims the judgment must be reversed because the court "failed to
adequately address the jury's request for assistance in jury note [No.] 1." However, he
does not explain in what respect the court's response was inadequate.
To the extent Rafail suggests the court violated section 1138 by failing to order the
court reporter to read back Doe's and Justin's testimony to the jury, any such claim is
unavailing because section 1138 requires a read-back of testimony "only when there is a
disagreement among the jurors as to the testimony." (Stafford, supra, 29 Cal.App.4th at
p. 944, italics added.) Here, as was the case in Stafford, "it does not appear that there was
such disagreement but only that the jury wanted certain testimony to be reread." (Ibid.)
Rafail asserts "[t]here is nothing in the record that indicates that the jury agreed
that 'query' was the intended word." However, in its response to jury note No. 1, the
count notified the jury that the court was "having some difficulty reading the note
submitted," and it specifically asked the jury, "Are you requesting read back of John
Doe's and Justin S.'[s] testimony?"
Rafail asserts it is "important" that "there is nothing in the record that indicates the
jury's answer to the Court's question, or whether any of the testimony was read back to
the jury at all." However, the fact that the record shows the jury did not respond to the
court's question indicates they decided to resume deliberations and they did not want or
need a rereading of the testimony. (See Stafford, supra, 29 Cal.App.3d at p. 944 ["[T]he
jury resumed its deliberations and apparently concluded that they could agree upon a
verdict without having such testimony read."].)
52
In any event, Rafail forfeited his claim of error by consenting to the court's
response to jury note No. 1. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1193
["Inasmuch as defendant both suggested and consented to the responses given by the
court, the claim of error has been waived."].) For all of the foregoing reasons, we