Filed 4/15/14 P. v. Vasquez CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B248129

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA084859)
         v.

CHRIS VASQUEZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Stan
Blumenfeld, Judge. Affirmed.
         Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and
Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.


                                             ____________________
                                     INTRODUCTION


       Defendant Chris Vasquez appeals from a judgment of conviction entered after a
jury trial. The information charged Vasquez with assault with intent to commit a felony
during the commission of a first degree burglary (Pen. Code, § 220, subd. (b);1 count 1),
first degree burglary with a person present (§ 459; count 2), assault with intent to commit
a felony (§ 220, subd. (a)(1); count 3), and forcible rape (§ 261, subd. (a)(2); count 4).
As to count 4, the information alleged that Vasquez committed forcible rape during the
commission of a residential burglary (§ 667.61, subds. (a), (d)).2 The information further
alleged that Vasquez had a prior serious felony conviction (§§ 667, subds. (a)(1), (b)-(i),
1170.12) for which he served a separate prison term (§ 667.5, subd. (b)).
       The prosecution dismissed count 3 prior to trial. The jury found Vasquez guilty
on counts 1 and 4 and found true the special allegation as to count 4. The jury did not
return a verdict on count 2 because it was a lesser included offense of count 1. The trial
court found true the prior conviction and prison term allegations. The trial court
sentenced Vasquez to 25 years to life on count 4, doubled under the three strikes law,
stayed sentence on count 1 pursuant to section 654, and imposed a five-year serious
felony enhancement, for a total sentence of 55 years to life.
       On appeal, Vasquez contends that the trial court committed instructional error by
failing to instruct on a lesser included offense, and that the trial court violated his
privilege against self-incrimination by failing to suppress statements Vasquez made to the

1      The information did not specify a particular felony, and neither did the jury
instructions or verdict form. Because of the forcible rape allegation (Pen. Code,
§ 667.61, subd. (a)), however, the case was tried on the theory that the felony Vasquez
intended to commit was rape.
       Statutory references are to the Penal Code unless otherwise indicated.
2       Section 667.61, subdivision (a), permits imposition of a sentence of 25 years to
life for the commission of the offenses specified in subdivision (c), under circumstances
specified in subdivision (d). It applies to the commission of rape during the commission
of a first degree burglary, with the intent to commit rape. (Id., subds. (c)(1), (d)(4).)


                                               2
police during a custodial interrogation at his probation officer’s office. Vasquez also
argues that the prosecutor engaged in misconduct by questioning Vasquez’s expert about
his hourly rate and the amounts he had billed for his expert services and arguing these
issues to the jury, and by referring in closing argument to facts not in evidence. Finally,
Vasquez argues that he received ineffective assistance of counsel. We affirm.


                                          FACTS


       A.     Jenny A. Goes Out for the Evening
       Jenny A. lived with her daughter in a one-bedroom apartment in Burbank. She
slept on a bed in the dining room, and her daughter slept in the bedroom.
       On May 4, 2011 Jenny and her friend Araceli had plans to attend a jazz concert.
Araceli and her children arrived at Jenny’s apartment at approximately 8:30 p.m.
Andrew, who was the father of Araceli’s son and lived next door to Jenny, took Araceli’s
children and Jenny’s daughter to Araceli’s house, where Araceli’s son would babysit
them. Jenny locked her front and back doors when she and Araceli left.
       Araceli drove to a restaurant near the concert venue. Jenny had one or two
martinis, because Araceli was the designated driver. They walked over to the concert
venue. After the concert ended, they went to two bars. Jenny had drinks at both bars and
was beginning to feel drunk. About 1:00 a.m. Araceli drove to a drive-thru restaurant and
picked up some food. Then she drove to Jenny’s apartment and dropped Jenny off by the
back door.


       B.     Vasquez Commits the Crimes
       Jenny entered her apartment through the back door and locked the door. She put
down the items she was holding and was standing in the kitchen when she realized that
someone else was in the apartment. Vasquez grabbed Jenny’s arms and began yelling,
“You know me. You know me. It’s me. You know me. You know me.” Jenny
responded, “No, I don’t. No, I don’t know you. I don’t know you. No, I don’t.”

                                             3
       The next thing Jenny remembered was waking up on the living room floor with
Vasquez on top of her. His penis was in her vagina, and he was kissing her neck and
chest. She saw blood at the bottom of the door frame leading into the hallway.
       Jenny next remembered that she was in the kitchen, with Vasquez standing in front
of her and holding her arms tightly. He yelled at her, “What are you going to say? What
are you going to say happened to you? What are you going to do? What are you going to
say?” Jenny thought that Vasquez was going to kill her and that her daughter was going
to find her dead in the morning. She told Vasquez, “I’m going to say I fell. I’ll clean up
the blood. I’ll go to sleep. I’m not going to tell. I’m not going to do anything.”
Vasquez kept saying, “You’re not going to say anything? But look at your face. Look at
your face. There’s blood everywhere. Look at your house.” Jenny looked and saw
blood on the kitchen wall. She kept trying to reassure him that she would say she fell.
She touched his arms and felt him tense up. She removed her hands because she was
afraid he would kill her.
       The next thing Jenny remembered was that she was back on the living room floor
and she saw Vasquez leave through the back door. She realized she was covered in
blood, and there was blood all over the floor. She was naked except for a tank top and
torn blouse. She felt like she was going to pass out but she struggled to get up. She ran
next door to Andrew’s home and banged on the door. He opened the door, and she fell
on the floor. Andrew called the police.


       C.     The Police Investigate the Crimes
       Burbank police officers arrived at Andrew’s home at about 3:00 a.m. Jenny was
crying and upset and incoherent because she was intoxicated. Jenny gave a statement and
said that her attacker had put his penis in her vagina. She was then taken to the hospital.
       Jenny’s face and head had been “split open,” and her hair was soaked in blood.
Her forehead, nose, and lips were swollen, and there was blood in her mouth. She had
bruises on her hips and arm. The doctors closed her head wound with seven staples and
stitched closed a laceration over her eye.

                                             4
       Mary Ann Lague, a Sexual Assault Response Team nurse, examined Jenny at
approximately 7:00 a.m. Lague did not find any semen on Jenny’s body but took internal
and external vaginal swabs as well as swabs from Jenny’s neck. She did not find any
vaginal trauma but testified that about half of rape victims have no vaginal trauma.
       After the examination Jenny returned home. She discovered that her bra, panties,
cell phone, house keys, and laptop were missing.
       Juli Watkins, senior criminalist at the Los Angeles County crime lab, performed
DNA analysis on the swabs taken from Jenny and her clothing. Watkins found a small
amount of male DNA on the external genital swabs, but there was not enough to identify
the contributor. Sperm fractions found on Jenny’s neck and tank top matched Vasquez’s
DNA. The random match probability of someone having the same DNA profile as
Vasquez was 1 in 350 quadrillion.3 Watkins also testified that the absence of male DNA
on a woman’s vagina could mean that there was no penis insertion, but it could also mean
that the man wore a condom.


       D.     The Police Interview and Arrest Vasquez
       After learning that the DNA evidence identified Vasquez, Burbank Police
Detective Martha Jimenez interviewed Vasquez during a scheduled meeting between
Vasquez and his probation officer.4 Vasquez initially told Detective Jimenez that he had
not been to Burbank since July or August 2010, and insisted that he had never seen
Jenny, did not know her, and had not had sex with her. Vasquez stated that he was
shocked and bummed out, and he was willing to provide a DNA sample—even though he
was “already in the system”—and to participate in a lineup. When the police told
Vasquez that his DNA matched sperm fragments found on Jenny, Vasquez stated that he
had no explanation because he had not been to Burbank. Vasquez said that the only

3     350 quadrillion is 350 “followed by 15 zeros,” or 350,000,000,000,000,000.
(People v. Xiong (2013) 215 Cal.App.4th 1259, 1277.)
4      The People played a recording of the interview for the jury.


                                             5
possibility he could come up with was that she was “sexually active at the . . . at the spots
around Hollywood” where he paid for sex. The police arrested Vasquez after this
interview.
       Jenny was unable to identify Vasquez from a photographic lineup. She was able
to identify him, however, at the preliminary hearing and at trial.


       E.     Vasquez Calls His Mother and Implicates Himself in the Crimes
       Vasquez was booked into the Glendale Jail, where all phone calls by inmates were
recorded. Detective Jimenez received recordings of two telephone calls between
Vasquez and his mother.5
       In the first conversation, Vasquez’s mother asked Vasquez what had happened.
Vasquez responded, “Nothing. I failed you.” His mother asked what he did, and he said
he was “being accused of raping a woman.” She asked, “And how can that be, then? Did
you do it?” He responded, “I love you a lot, mom.” She asked him again, and he said,
“No, mom.” After he again said he had failed her, his mother asked, “And look, Chris, is
it certain it was you?” He told her, “Look, I can’t talk about that right now.” She said,
“Oh, Chris, my God. The police came here. And why are you doing stuff knowing quite
well, Chris-?” He said, “Mom, I know that . . . .”
       His mother asked if he “already told the judge that, that it was you.” He said, “No,
I confessed a little about what happened.” His mother asked if the girl was a Latina.
When he responded that she was not, she said, “You’re sick, Chris. You’re sick.” He
said, “I think so.” His mother later told him, “I don’t know why . . . you didn’t deny it.
You should’ve closed yourself to no, no, no, no.” He told her, “It can’t be done, mom,
they say they found something there, that it was from my blood.”
       During the second conversation, Vasquez’s mother told him he had made “a big
mistake.” He agreed it was “such a big mistake, mom. I know, mom. I’m really sad,



5      The People also played these recordings for the jury.


                                              6
down.” She asked, “And is the broad a friend of yours?” He responded, “No. No. She’s
nothing. . . . That’s what the detectives are asking, well, what was I doing there anyway.
They want to know what, what I was doing there.” His mother asked where he was, and
he said, “I was in Burbank. The lady lives in Burbank. . . .”
       After further conversation, Vasquez told his mother, “I’m sad, mom. They were
not going to let me get out this time.” She said, “And how are they going to let you out?
Look at what you did. You’ve done the same shit twice. And did you do anything to the
lady?” He said he did not and he was “really sad.” She told him, “This, this thing that, it
hurt you a lot now. What you did today is worse—” He agreed, and she continued,
“Because it’s already the same shit twice.” He responded, “Yes.”
       After further conversation, during which Vasquez’s mother talked about how
ashamed she was and Vasquez said he was afraid he would receive a life sentence, the
following exchange occurred:
       “[Mother]     And is the lady American, Chris?
       “[Vasquez] Yes.
       “[Mother]     And was she, the lady, on the street?
       “[Vasquez] No, she was at her home.
       “[Mother]     And why . . . did you go inside her house? Did you go inside?
       “[Vasquez] That’s what I’m being asked. Yes. What I was doing inside.
       “[Mother]     And . . . how did you get in, Chris?
       “[Vasquez] I went in through the front of the house.
       “[Mother]     Was it open?
       “[Vasquez] Yes. That’s what they don’t understand, why I was inside.
       “[Mother]     Oh, Chris, you see, because you were high, Chris. . . .
       “[Vasquez] No, mom.
       “[Mother]     And why did you go in there, Chris?
       “[Vasquez] I know. I know.
       “[Mother]     Chris, what you have done cannot be forgiven, Chris.
       “[Vasquez] I know.

                                             7
       “[Mother]     What you have done is hard, Chris.
       “[Vasquez] I know. That’s why, that’s why I’m looking at life right now.”


       F.     Vasquez’s Expert Testifies About DNA
       Marc Scott Taylor is a forensic scientist and director of Technical Associates, Inc.,
which performs DNA analysis in criminal and civil cases. Vasquez hired him to review
the DNA testing in this case, and Taylor was compensated for his work by the court. In
his testimony, Taylor discussed the trace amounts of male DNA found on the external
genital swabs taken from Jenny, the ways in which it could have gotten there, and how it
was not possible to identify the contributor from the DNA. Taylor also testified that if a
man has intercourse with a woman without using a condom, even if he does not ejaculate,
there would be a transfer of his DNA to the inside of the woman’s vagina.


                                      DISCUSSION


       A.     Failure To Instruct on the Lesser Included Offense of Assault With Intent
              To Commit Rape
       At the end of the second day of trial, the court noted that some of the crimes
charged were lesser included offenses and wondered whether it was appropriate to obtain
convictions on the lesser included offenses, citing People v. Dyser (2012) 202
Cal.App.4th 1015. The court asked counsel to address the procedural issue of whether
the court should instruct on all of the charged offenses and then dismiss the convictions
on the lesser included offenses, or instruct the jury on the lesser included offenses.
       The next day the court stated that it would instruct the jury on assault with intent
to commit a felony (§ 220, subd. (a)(1)) as a lesser included offense of assault with intent
to commit a felony during the commission of a burglary (§ 220, subd. (b)). In response,
the prosecutor moved to dismiss count 3 as duplicative, and the court granted the motion.
       The trial court instructed the jury on assault with intent to commit rape while
committing first degree burglary (CALCRIM No. 890), burglary (CALCRIM Nos. 1700

                                              8
& 1701), rape (CALCRIM No. 1000), and the section 667.61, subdivisions (a) and (d),
sex offense allegation (CALCRIM No. 3178). The court also instructed the jury on
attempted rape as a lesser included offense of both rape and assault with intent to commit
rape while committing a first degree burglary (CALCRIM No. 460), and on simple
assault as a lesser included offense of assault with intent to commit rape while
committing a first degree burglary (CALCRIM No. 915). Vasquez contends the trial
court erred in failing to instruct the jury on assault with intent to commit rape as a lesser
included offense of assault with intent to commit rape during the commission of a
burglary, as the court originally indicated it would do.
       “‘It is settled that in criminal cases, even in the absence of a request, the trial court
must instruct on the general principles of law relevant to the issues raised by the
evidence. [Citations.] The general principles of law governing the case are those
principles closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case. [Citations.]’ [Citation.] ‘That
obligation has been held to include giving instructions on lesser included offenses when
the evidence raises a question as to whether all of the elements of the charged offense
were present [citation], but not when there is no evidence that the offense was less than
that charged.’ [Citation.]” (People v. Smith (2013) 57 Cal.4th 232, 239.) “‘Under
California law, a lesser offense is necessarily included in a greater offense if either the
statutory elements of the greater offense, or the facts actually alleged in the accusatory
pleading, include all the elements of the lesser offense, such that the greater cannot be
committed without also committing the lesser.’ [Citation.]” (People v. Jennings (2010)
50 Cal.4th 616, 667-668; accord, Smith, supra, at p. 240; see People v. Martinez (2012)
208 Cal.App.4th 197, 199.)
       The duty to instruct on lesser included offenses arises only if there is
“‘“substantial evidence” [citations], “‘which, if accepted . . . , would absolve [the]
defendant from guilt of the greater offense’ [citation] but not of the lesser.”’ [Citation.]
Evidence is substantial if ‘a reasonable jury could find [it] persuasive.’ [Citation.]”
(People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137; accord, People v. Medina

                                               9
(2007) 41 Cal.4th 685, 700.) People v. Dyser, supra, 202 Cal.App.4th 1015, which the
trial court cited at the beginning of the discussion on lesser included offenses, held that
both burglary and assault with intent to commit rape are lesser included offenses of
assault with intent to commit rape during the commission of first degree burglary. (Id. at
pp. 1020-1021.) The trial court, however, did not instruct the jury on this lesser included
offense.
       Even assuming that the trial court erred in failing to instruct the jury on assault
with intent to commit rape as a lesser included offense, we conclude any such error was
harmless. We review an erroneous failure to instruct on lesser included offenses for
prejudice according to the standard in People v. Watson (1956) 46 Cal.2d 818, 836.
(People v. Beltran (2013) 56 Cal.4th 935, 955.) “‘[U]nder Watson, a defendant must
show it is reasonably probable a more favorable result would have been obtained absent
the error.’ [Citation.]” (Beltran, supra, at p. 955.) “‘[T]he Watson test for harmless
error “focuses not on what a reasonable jury could do, but what such a jury is likely to
have done in the absence of the error under consideration. In making that evaluation, an
appellate court may consider, among other things, whether the evidence supporting the
existing judgment is so relatively strong, and the evidence supporting a different outcome
is so comparatively weak, that there is no reasonable probability the error of which the
defendant complains affected the result.” [Citations.]’” (People v. Rios (2013) 222
Cal.App.4th 704, 728.)6
       Vasquez argues that there is such a reasonable probability here because the
commission of a burglary was the weakest element of the prosecution’s case. Vasquez


6       We reject Vasquez’ assertion that the federal harmless beyond a reasonable doubt
standard in Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]
applies here. Vasquez’s reliance on People v. Thomas (2013) 218 Cal.App.4th 630 for
this assertion is misplaced. In Thomas, the trial court failed to give an instruction
requested by the defendant, which had the result of relieving the prosecution of the
burden of proving all elements of the charged crime beyond a reasonable doubt. This
constituted federal constitutional error. (Id. at p. 643.) The alleged instructional error
here is not a federal constitutional error.


                                             10
argues that Jenny’s testimony “suggested that [he] may have been confused as to where
he was and with whom. His repeated statements that Jenny knew him strongly suggested
that he may have believed he had entered his own residence or that of a woman he knew
at the time he gained access. Also, there were no signs of forced entry which would
further support the conclusion that Vasquez entered without any felonious intent but in
the belief that he was in a place he was authorized to be.”
       The evidence Vasquez cites might have supported an instruction on the lesser
included offense of assault with intent to commit rape. The jury, however, found true the
special allegation as to the rape count that Vasquez “committed the crime during the
commission of a burglary, with the intent to commit rape, as defined in [CALCRIM
No.] 3178 . . . .” In other words, the jury necessarily found that the assault with intent to
commit rape occurred during the commission of a burglary. “Therefore, any hypothetical
error was harmless.” (People v. Yeoman (2003) 31 Cal.4th 93, 129; cf. People v. Nunez
and Satele (2013) 57 Cal.4th 1, 45-46.)


       B.     Admission of Statements Made During the Police Interview
       At the beginning of trial, the court held a hearing outside the presence of the jury
“to address the issue of whether the defendant was in custody for Miranda[7] purposes
concerning the probation office interview.” The court heard testimony from Detective
Jimenez that she learned that Vasquez had a scheduled interview at the probation office
in Los Angeles. She met with Vasquez and the probation officer in a small room at the
probation office. Her supervisor, Sergeant DeSantis, and Detective Medlin were also
there. All three were wearing business attire, not uniforms. Vasquez drove himself to the
interview in his vehicle, and he gave his consent to a search of that vehicle.
       At the beginning of the interview, Detective Jimenez did not handcuff Vasquez,
draw her gun, or tell him he was under arrest. She told him several times during the



7      Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].


                                             11
course of the interview that he was not under arrest. There was one door to the interview
room that initially was open, but was closed after five or ten minutes for privacy and
because there was noise outside the room. Vasquez was seated closest to the door, and
there was no one between him and the door. At the time of the interview, Detective
Jimenez had the DNA evidence linking Vasquez to the crimes. She testified that she was
not sure at the beginning of the interview if she had enough evidence to arrest him, but
she acknowledged that there was nothing he said in the interview that contributed to the
evidence she had against him.
       The court also read the transcript of the interview. The transcript showed that at
the beginning of the interview, Detective Jimenez asked if they could talk, and Vasquez
agreed. She told him she wanted him to understand that he was not under arrest, and he
was free to go at any time. Vasquez responded, “I totally understand,” and “I just want to
cooperate.” A little later, Detective Medlin asked if it was okay if the probation officer
sat in on the interview, and Vasquez said he was surprised the officers were “letting me
know if it’s okay or what’s not okay.” Detective Jimenez then let Vasquez know that she
was “conducting an investigation out in Burbank.” She asked if Vasquez had any idea
why she would want to talk to him about it, and he said he did not.
       A short time later, Detective Jimenez repeated that she was investigating an
incident in Burbank, and stated, “I just wanted to ask you questions, whether . . . you’re
involved, or not.” Vasquez said he was shocked and willing to cooperate. Detective
Jimenez questioned Vasquez about Jenny. During the course of the questioning, Vasquez
said he was shocked because he was on probation, so they could “automatically” conduct
a “search and seizure.” He said, “I’m surprised you guys are giving me a chance,” rather
than arresting him, “and then I’d be sitting in the County, waiting.”
       The questioning became more intense, and Detective Jimenez asked Vasquez if
there was any reason why his fingerprints would be in Jenny’s house or his sperm would
be on her body. After again denying that he knew her, Vasquez observed, “You know,
first, you guys are making me comfortable, and you guys are . . . throwing details at me,
now.” Vasquez said he was willing to participate in a lineup and to provide a DNA

                                             12
sample, because he was “already in the system.” He added, “I’m surprised you guys
haven’t arrested me, or something.” Vasquez told the detective, “You guys have my
DNA, so what do you guys want, you know? Just take me in already, you know?”
Someone in the room told him, “Well, you’re not under arrest. That’s why we told you,
when you first came in. And that’s the reason why we even asked you if it’s okay to
close the door, ‘cause we don’t want you to feel like you’re—you’re in trouble.”
Vasquez said he was rattled, and the person said the officers were just trying to get the
truth, “not trying to put something on you that you didn’t do, okay?”
       As Detective Jimenez continued to press Vasquez for an explanation for why his
DNA was found on Jenny, he asked, “I’m being charged right now, then, right?”
Detective Jimenez said he was not being charged. She then told him, “[Y]ou’re not under
arrest but . . . I’m gonna let you know that, you know, you’re not free to leave, at this
point, because we’d like to get some more information.”
       The trial court concluded that Vasquez was not subject to custodial interrogation
until the point that Detective Jimenez told him he was not free to leave. The trial court’s
ruling was based on the detectives advising Vasquez several times that he was not under
arrest and was free to leave, plus “the physical environment . . . as well as the overall
atmosphere.” The detectives did not threaten Vasquez, they were in civilian clothing, and
they did not display their guns. There was no evidence they were physically
intimidating; they just sat around a table in the interview room. The court found that it
“was not a coercive environment that would trigger Miranda.”
       “On appeal, we defer to the trial court’s factual findings supported by substantial
evidence and independently determine from the factual findings whether appellant was in
custody for Miranda purposes. [Citation.] It is settled that Miranda advisements are
required only when a person is subjected to ‘custodial interrogation.’ [Citations.]”
(People v. Davidson (2013) 221 Cal.App.4th 966, 970; accord, People v. Leonard (2007)
40 Cal.4th 1370, 1400.) “An interrogation is custodial when ‘a person has been taken
into custody or otherwise deprived of his freedom of action in any significant way.’”
(Leonard, supra, at p. 1400, quoting from Miranda v. Arizona, supra, 384 U.S. at p. 444.)

                                             13
       “Whether a person is in custody is an objective test: the pertinent inquiry is
whether there was a formal arrest or restraint on freedom of movement of the degree
associated with a formal arrest. [Citation.] The totality of the circumstances is
considered and includes ‘(1) whether the suspect has been formally arrested; (2) absent
formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to
suspects; and (5) the demeanor of the officer, including the nature of the questioning.’
[Citation.] Additional factors are whether the officer informed the person he or she was
considered a witness or suspect, whether there were restrictions on the suspect’s freedom
of movement, whether the police were aggressive, confrontational, and/or accusatory, and
whether the police used interrogation techniques to pressure the suspect. [Citation.]”
(People v. Davidson, supra, 221 Cal.App.4th at pp. 971-972.) The question is whether,
under the circumstances surrounding the interrogation, “‘a reasonable person in [the]
defendant’s position would have felt free to end the questioning and leave’ [citation].”
(People v. Leonard, supra, 40 Cal.4th at p. 1400; see People v. Zamudio (2008) 43
Cal.4th 327, 341.)
       Vasquez identifies a number of circumstances that he argues support a finding of
custodial interrogation. Vasquez asserts that “he was taken by surprise” by detectives
“waiting to interrogate him at the time of a previously schedule meeting with his
probation officer,” that “[f]ailure to comply would likely result in revocation of probation
and potential incarceration,” and that he was “taken into a fairly small room, where the
door was closed, and he was questioned . . . .” Although the officers told him he was not
under arrest, “none of the law enforcement personnel asked if he objected to being
interviewed or informed him that his participation was voluntary . . . .”
       Vasquez’s characterization of the facts is not supported by the record. The record
showed that Detective Jimenez asked if they could talk, and Vasquez agreed. The
interview room was approximately 15 to 20 feet by 10 feet and the door to the room was
initially open; it was closed later for privacy and because of noise outside the room. The
detectives did not threaten to revoke Vasquez’ probation if he did not agree to speak with
them. And as Vasquez acknowledges, the United States Supreme Court held in

                                               14
Minnesota v. Murphy (1984) 465 U.S. 420, 430-431 [104 S.Ct. 1136, 79 L.Ed.2d 409]
that questioning in a probation officer’s office is not, in and of itself, custodial. Murphy
also notes that the state cannot revoke probation based on a probationer’s exercise of his
Fifth Amendment privilege. (Id. at pp. 437-438.)
       Vasquez also claims that once the door was closed, “it would have been apparent
to [him] that he was not free to leave.” Yet even after he was confronted with the DNA
evidence, one of the detectives reminded him “you’re not under arrest. . . . And that’s the
reason why we even asked you if it’s okay to close the door, ‘cause we don’t want you to
feel like you’re—you’re in trouble.” Vasquez said he was rattled, and that one of the
officers said they were just trying to get the truth, “not trying to put something on you
that you didn’t do, okay?” Nothing that the detectives or Vasquez said suggested that
Vasquez believed he was not free to leave because the door was closed.
       Vasquez also points to the fact that the interview moved from general questions to
statements that the detectives had evidence linking him to the crime and asking him to
explain the evidence. He points out that “‘[a]ccusatory questioning is more likely to
communicate to a reasonable person in the position of the suspect, that he is not free to
leave. [Citation.] General investigatory questioning may convey a different message.
[Citation.]’ [Citation.]” (People v. Bellomo (1992) 10 Cal.App.4th 195, 199.)
       It is true that Miranda warnings may be required if the questioning becomes
“aggressive, confrontational, accusatory, coercive, or sustained . . . .” (People v.
Davidson, supra, 221 Cal.App.4th at p. 973.) However, “the ‘shift from investigatory to
accusatory questioning can be very subtle . . . .’ [Citation.]” (People v. Bejasa (2012)
205 Cal.App.4th 26, 40.) When Detective Jimenez indicated that she had evidence
linking Vasquez to the crime, she kept asking him for an explanation for how it got there.
Nothing in the transcript of the interview indicates she was behaving aggressively or
coercively in her questioning. Vasquez expressed surprise that he was not under arrest
and offered to participate in a lineup and to provide a DNA sample. The shift from
investigatory to accusatory questioning did not immediately turn the interview into a
custodial interrogation. (See People v. Moore (2011) 51 Cal.4th 386, 402 [“police

                                             15
expressions of suspicion, with no other evidence of a restraint on the person’s freedom of
movement, are not necessarily sufficient to convert voluntary presence at an interview
into custody”].) Even Vasquez recognized that he was not under arrest.
       Despite the factors Vasquez cites in support of his position, we agree with the trial
court that he was not subjected to custodial interrogation. Detective Jimenez told
Vasquez more than once that he was not under arrest and he was free to go at any time.
(See People v. Leonard, supra, 40 Cal.4th at p. 1401.) Vasquez repeatedly made
statements reflecting his awareness that he was not under arrest. Substantial evidence
supports the trial court’s conclusion that only when Detective Jimenez told Vasquez that
he was not free to leave did the interview become a custodial interrogation for Miranda
purposes, and the trial court did not err by allowing the prosecution to admit evidence of
the probation officer’s interview prior to that point in time. (See id. at p. 1400.)


       C.     Prosecutorial Misconduct
       Vasquez argues that the prosecutor engaged in misconduct by “repeatedly
referencing the amount of taxpayer funds paid to the defense expert” and referring to
facts not in evidence during argument. Vasquez argues that he did not forfeit these
arguments, even though his attorney did not object, and that, if he did forfeit them, he
was denied the effective assistance of counsel. We conclude there was no prosecutorial
misconduct.


              1.     References to the Amount Paid to Vasquez’s DNA Expert
       The prosecutor asked Vasquez’s defense expert, Taylor, on cross-examination,
“How much have you billed the County of Los Angeles the last calendar year for your
services?” Counsel for Vasquez objected on the ground of relevancy, and the court
overruled the objection. Taylor testified it was “in the vicinity of $400,000.” The
prosecutor also asked Taylor how much he was going to be paid for his testimony in this
case. Taylor responded that his hourly rate with the county was $300, so he expected to
receive $600. Further questioning revealed that Taylor had testified “[d]ozens of times”

                                              16
in the last 12 months, but only once for the prosecution. Counsel for Vasquez did not
object to this questioning.
       During closing argument, in discussing Taylor’s testimony regarding the DNA
evidence, the prosecutor stated, “I’m sure he’s a nice man, but he’s a man who billed the
county at least $400,000 in the last year and testified for the defense except for one case.
So I don’t know if that affected his testimony or not, but I do know that he was extremely
reluctant to answer any questions about DNA directly.” Again, counsel for Vasquez did
not object.
       Under California law “‘[a] prosecutor commits misconduct when his or her
conduct either infects the trial with such unfairness as to render the subsequent conviction
a denial of due process, or involves deceptive or reprehensible methods employed to
persuade the trier of fact.’ [Citation.] A defendant asserting prosecutorial misconduct
must further establish a reasonable likelihood the jury construed the remarks in an
objectionable fashion. [Citation.]” (People v. Duff (2014) 58 Cal.4th 527, 568.) “‘“To
preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely
objection at trial and request an admonition; otherwise, the point is reviewable only if an
admonition would not have cured the harm caused by the misconduct.”’ [Citations.]”
(People v. Barnett (1998) 17 Cal.4th 1044, 1133; accord, People v. Williams (2013) 58
Cal.4th 197, 274.) “‘Reversal of a judgment of conviction based on prosecutorial
misconduct is called for only when, after reviewing the totality of the evidence, we can
determine it is reasonably probable that a result more favorable to a defendant would
have occurred absent the misconduct.’ [Citation.]” (People v. Williams (2013) 218
Cal.App.4th 1038, 1073.)
       Vasquez did not forfeit his claim of prosecutorial misconduct with respect to the
amount paid to Taylor. Counsel for Vasquez objected to the prosecutor’s first reference
to the amount paid to Taylor, and the trial court overruled the objection. Although
counsel for Vasquez did not request an admonition, the failure to do so is excused where
“the court promptly overruled an objection and the objecting party had no opportunity to
request an admonition [citation].” (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1412;

                                             17
People v. Bordelon (2008) 162 Cal.App.4th 1311, 1323.) Once the trial court overruled
the objection to this line of questioning, further objection would have been futile. Thus,
the failure to object and request an admonition does not forfeit the claim of prosecutorial
misconduct. (People v. Gamache (2010) 48 Cal.4th 347, 373; People v. Zambrano
(2004) 124 Cal.App.4th 228, 237.)8
       The prosecutor’s questions and argument, however, were proper. “A prosecutor
has wide latitude to challenge a defendant’s evidence, and so long as the argument is fair
comment on the evidence or a reasonable inference drawn therefrom, it is permissible.
[Citation.]” (People v. Gray, supra, 37 Cal.4th at p. 216.) We do not agree with
Vasquez’s contention that the prosecutor’s emphasis on the fact the county paid for
Taylor’s expert witness fees was impermissible. “Evidence Code section 722,
subdivision (b) expressly provides that the ‘compensation and expenses paid or to be paid
to an expert witness by the party calling him is a proper subject of inquiry by any adverse
party as relevant to the credibility of the witness and the weight of his testimony.’
[Citation.] Defense counsel remained free to argue that the prosecutor, his investigators,
and his expert witnesses were also paid from public coffers.” (Ibid.) Similarly, “it is not
misconduct to question an opponent’s expert witness about payment for services or about
the expert’s testimony in prior cases involving similar issues.” (People v. Price (1991) 1
Cal.4th 324, 457; see, e.g., People v. Monterroso (2004) 34 Cal.4th 743, 783-784 [no
prosecutorial misconduct where prosecutor commented on defense expert’s “substantial
fee, . . . history of testifying only for criminal defendants,” and that witness was
“‘collecting good money’” for this testimony].)
       Moreover, the thrust of the prosecutor’s argument was that Taylor was well paid
for his testimony in favor of criminal defendants, leading to a bias in favor of defendants.
For that reason, the prosecutor properly argued, Taylor was reluctant to answer questions


8     Because an objection and request for an admonition would have been futile,
counsel’s failure to make them does not constitute ineffective assistance of counsel. (See
People v. Gray (2005) 37 Cal.4th 168, 208.)


                                              18
regarding the DNA evidence and his testimony was not credible. It is not reasonably
likely “the jury construed the remarks in an objectionable fashion.” (People v. Duff,
supra, 58 Cal.4th at p. 568; see People v. Dykes (2009) 46 Cal.4th 731, 772 [“‘we “do not
lightly infer” that the jury drew the most damaging rather than the least damaging
meaning from the prosecutor’s statements’”].) Nor was the prosecutor’s comment, as
Vasquez argues, an appeal to the jury’s “passions, prejudices and self-interest” or an
invitation to convict Vasquez as punishment for the use of taxpayer money.9


              2.     Referring to Facts Not in Evidence
       Juli Watkins, the prosecution’s DNA expert, testified that she found a small
amount of male DNA on Jenny’s external genital swabs, but there was not enough to
identify the contributor. Watkins also testified that if the swabs do not find male DNA on
a woman’s vagina, then it could mean that there was no penis insertion. It could also
mean that the man wore a condom.
       The prosecutor argued in his closing argument that the most likely reason for the
absence of Vasquez’s DNA on Jenny’s genitals was that he was wearing a condom. The
prosecutor also argued the fact that sperm was found in trace amounts on Jenny’s neck
suggested that Vasquez ejaculated on her and then wiped her down. Counsel for Vasquez
then argued that Jenny was mistaken about Vasquez inserting his penis in her vagina
because there was no physical trauma and an absence of DNA. He added that there was
no evidence that Vasquez used a condom, pointing out that no one ever found a condom
wrapper at Jenny’s apartment.


9      Vasquez also claims the prosecutorial misconduct constituted federal
constitutional error. “‘Under the federal Constitution, conduct by a prosecutor that does
not result in the denial of the defendant’s specific constitutional rights—such as a
comment upon the defendant’s invocation of the right to remain silent—but is otherwise
worthy of condemnation, is not a constitutional violation unless the challenged action
“‘so infected the trial with unfairness as to make the resulting conviction a denial of due
process.’” [Citation.]’ [Citation.]” (People v. Fuiava (2012) 53 Cal.4th 622, 679.)
Because we find no prosecutorial misconduct, we find no constitutional violation.


                                             19
      In his rebuttal the prosecutor made the following statements that Vasquez claims
constituted misconduct:
      “With respect to the condom, if the point is that because the police did not find a
condom wrapper or a used condom, I’m asking you to assume that he used one. That’s
not [sic] a fair inference from the evidence. Obviously if a rapist rapes a woman and
thinks enough about the evidence to wipe her down—
      “[Defense Counsel]: Objection, misstates [sic] facts not in evidence.
      “The Court: Overruled at this time. You may continue.
      “[The Prosecutor]: I’ve already made the argument why I think the evidence
suggests why he wiped her down. Because there’s no visible semen. If he goes to the
point of doing that, do you really think he would leave a condom wrapper with his
potential DNA with him? No. He would take it with him. Just like he took . . . her bra
and panties. So that’s clearly what a criminal with that mind set would do.”
      “A prosecutor engages in misconduct by misstating facts or referring to facts not
in evidence . . . . [Citation.]” (People v. Ellison (2011) 196 Cal.App.4th 1342, 1353;
accord, People v. Linton (2013) 56 Cal.4th 1146, 1207.) Nevertheless, the prosecutor
“enjoys wide latitude in commenting on the evidence, including urging the jury to make
reasonable inferences and deductions therefrom.” (Ellison, supra, at p. 1353; accord,
People v. Hill (1998) 17 Cal.4th 800, 823.) “A prosecutor’s ‘argument may be vigorous
as long as it is a fair comment on the evidence, which can include reasonable inferences
or deductions to be drawn therefrom.’ [Citation.]” (People v. Edwards (2013) 57 Cal.4th
658, 736.)
      Although we agree that Vasquez did not forfeit this claim of prosecutorial
misconduct (Rayii v. Gatica, supra, 218 Cal.App.4th at p. 1412; People v. Bordelon,
supra, 162 Cal.App.4th at p. 1323), we reject it. The possibilities that Vasquez used a
condom and wiped his semen off Jenny were reasonable inferences drawn from the




                                            20
evidence and were permissible bases for argument. (People v. Edwards, supra, 57
Cal.4th at p. 736.)10


       D.     Instruction Pursuant to CALCRIM No. 362
       The trial court instructed the jury pursuant to CALCRIM No. 362 as follows: “If
the defendant made a false or misleading statement before this trial relating to the
charged crime, knowing the statement was false or intending to mislead, that conduct
may show he was aware of his guilt of the crime and you may consider it in determining
his guilt. If you conclude that the defendant made the statement, it is up to you to decide
its meaning and importance. However, evidence that the defendant made such a
statement cannot prove guilt by itself.”
       Vasquez did not object to instruction with CALCRIM No. 362. The People argue
that Vasquez “forfeited his claim as to CALCRIM No. 362.” Vasquez argues that this
failure did not forfeit his claim of error on appeal because the “instruction is alleged to be
legally incorrect,” citing section 1259 and People v. Smithey (1999) 20 Cal.4th 936.
       We agree with Vasquez that he has not forfeited this issue. We review any claim
of instructional error that affects a defendant’s substantial rights whether or not there was
an objection to the instruction at trial. (See § 1259 [“[t]he appellate court may also
review any instruction given . . . even though no objection was made thereto in the lower
court, if the substantial rights of the defendant were affected thereby”]; People v. Hudson
(2006) 38 Cal.4th 1002, 1011-1012; People v. Smithey, supra, 20 Cal.4th at p. 976, fn. 7;
People v. Denman (2013) 218 Cal.App.4th 800, 812 [“[w]hen the trial court gives an
incorrect or incomplete instruction that allegedly affects the substantial rights of a
defendant, it is reviewable even if no objection was raised in the trial court”].) We
cannot determine whether the defendant’s substantial rights were affected, however,


10   Because there was no prosecutorial misconduct, any failure to request an
admonition did not constitute ineffective assistance of counsel. (People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 120.)


                                             21
without deciding if the instruction given was erroneous and, if so, whether the error was
prejudicial. Therefore, we must review, and Vasquez has not forfeited, the merits of his
challenge to CALCRIM No. 362.
       Vasquez contends the instruction violated his due process rights by allowing the
jury to make an inference of guilt unjustified by the facts on which the inference was
based. (See Francis v. Franklin (1985) 471 U.S. 307, 314-315 [105 S.Ct. 1965, 85
L.Ed.2d 344] [“[a] permissive inference violates the Due Process Clause only if the
suggested conclusion is not one that reason and common sense justify in light of the
proven facts before the jury”].) The California Supreme Court has repeatedly rejected the
argument that consciousness of guilt instructions such as CALCRIM No. 362 are
constitutionally infirm because they permit “the jury to draw irrational and impermissible
inferences . . . .” (People v. Howard (2008) 42 Cal.4th 1000, 1021; see also People v.
McWhorter (2009) 47 Cal.4th 318, 377 [referring to CALJIC No. 2.03, which is similar
to CALCRIM No. 362]; People v. Stitely (2005) 35 Cal.4th 514, 555 [CALJIC No. 2.03
“did not generate an irrational inference of consciousness of guilt”].)


                                      DISPOSITION


       The judgment is affirmed.



                                                  SEGAL, J.*


We concur:



              PERLUSS, P. J.                             ZELON, J.


*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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