Filed 7/28/15 P. v. Banks CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                   A139907
v.
MAURICE BANKS,                                                     (San Mateo County
                                                                   Super. Ct. No. SC072824A)
         Defendant and Appellant.


                                                  INTRODUCTION
         After entering a motel room through a window in the early morning hours of
December 4, 2010, defendant severely beat and then sexually assaulted the young woman
asleep there. A jury convicted him of assault with intent to commit oral copulation
during a burglary, and burglary, among other offenses. On appeal, defendant argues he
cannot be convicted of both assault with intent to commit oral copulation during a
burglary, and burglary, because the latter offense is a necessarily included lesser offense
of the former. The People concede the point and we concur. We reject defendant’s claim
of prejudicial prosecutorial misconduct. Accordingly, we will dismiss defendant’s
conviction for burglary and otherwise affirm the judgment.
                                       STATEMENT OF THE CASE
         A jury convicted defendant of assault with intent to commit oral copulation during
a burglary, burglary, aggravated assault, attempted oral copulation, and indecent
exposure. (Pen. Code, §§ 220, subd. (b), 460, subd. (a), 245, subd. (a)(1), 288a,
subd. (c)(2)/664, 314.)1 The jury also returned great bodily injury findings. (§§ 12022.7,
12022.8, 1203.075.) A separate count of dissuading a witness (§ 136.1) was dismissed
by the court on defendant’s motion. (§1118.1.) Defendant was sentenced to a total term
of life plus 5 years, and timely appeals.
                                 STATEMENT OF FACTS
         Jane Doe was a San Francisco City College student in December 2010. Needing a
quiet place to study, she rented a motel room in Redwood City on December 3, 2010, and
checked into room No. 9. When Doe went outside to get something from her car, a Black
man standing on the sidewalk near room No. 8 said something to her while grabbing and
rubbing his crotch. She ignored him and went into her room.
         Doe studied, spoke with friends on her phone, and went to sleep. Loud noises
woke her up at some point, but she went back to sleep. She was awakened again by noise
coming from the back window in her room. A man came into the room from the
window. Terrified, she called for help and ran to the front door. As she tried to unlock
the two locks on the door, the man grabbed her from behind. “He said don’t scream and
do what I told you,” and started beating her.
         The man dragged her to the middle of the room, beat her in the face and choked
her until she lost consciousness. When she regained consciousness she was on the bed
and the man was standing in front of her. He told her to “suck his dick” and put her
hands on his penis. When the man turned around to look at the rear window, Doe ran to
the front door, unlocked it, and escaped. Screaming for help, she ran to the motel office
and called 911. A man working at the 7-Eleven store across the street from the motel
heard her screaming for help and also called 911.
         Doe told the 911 dispatcher she was in room No. 9 when a man entered the room,
beat her up and tried to rape her. When the dispatcher asked, “What did he look like?


1
    Unless otherwise indicated, all further statutory references are to the Penal Code.

                                                2
White, Black, Hispanic?” Doe said the room was dark but she thought “the man was
Black from the—.” Doe did not finish her thought, but exclaimed, “Oh, oh my god. I
don’t know if he’s still in my room or whatever. Please—.” The dispatcher persisted:
“A Black male? Was he Black? White?” Doe responded: “I don’t know because the
room was dark, so I heard from his voice—probably a Black male.”2
       The call was made at 4:58 a.m. When the first Redwood City police officer
arrived at the motel two minutes later, Doe was screaming for help. She was bleeding
from the nose, eyes and mouth and appeared to have been severely beaten in the face and
neck. She had difficulty seeing and her face was swollen. Later, her eyes were swollen
shut. Doe told police the man was still inside her motel room. However, when police
cleared the room, no one was inside. The window was open and the drapes were pushed
through to the outside of the window. Some of the bedclothes were on the floor and there
were bloodstains on a fitted sheet on the bed.
       Doe’s injuries were photographed by police and she was taken to the hospital.
The doctor told her the bones behind her eyeball were broken and she would need
surgery. Doe was not able to identify her attacker. She suffered permanent injury to her
left eye.
       At the hospital, Doe was examined by sexual assault examiner nurse Kathryn
Biddle. Doe had numerous injuries all over her body. She had extreme swelling and
broken bones around the eyes and in the bones of her face. Doe reported to Biddle she
had been strangled, and her injuries were consistent with that report. Biddle documented
Doe’s injuries and took swabs of secretions from Doe’s inner thighs, breasts, legs, mouth,
vagina, anus and rectum.
       Doe told Biddle a man entered her motel room through a window in the back of
her room and attacked her. He punched her and removed her underwear. He removed

2
   The recording of Doe’s 911 call was played for the jury and admitted into evidence. A
transcript of the call was also given to the jury, but was not admitted into evidence.

                                             3
his own pants, placed her hand on his penis and pushed her head to his penis. She ran to
the motel office screaming and dialed 911.
       Police set up a perimeter and spoke to other motel occupants. At approximately
7:30 a.m., they went to room No. 8 for the second time; the first time, no one had
answered. This time, defendant eventually answered the door. He was naked and said he
had been asleep. Defendant dressed in blue jeans, tan boots and a blue jacket with a
black pattern. The front portion of defendant’s boots were noticeably scuffed and there
was debris on the bottom consistent with dirt and gravel debris in the motel alleyway
behind the motel rooms. There was also fresh debris on the inside of Doe’s window and
a partial boot print.
       Defendant was taken to the police station. At booking, a key to room No. 8 was
recovered from defendant’s pants pocket. The booking officer noticed one of the work
boots defendant was wearing had a scuff mark on the tip of the toe, as well as a blood
drop on the right boot. The boots were seized as evidence. Defendant had fresh-looking
scrapes on both arms and shins. He had scratches on his cheek and right hand, and
abrasions on his left knuckles. Police collected a buccal swab and other evidence for a
sexual assault forensic kit from defendant at the police station. Defendant had very short
hair. Doe told police her attacker had very short hair.
       Later that morning, a police officer took digital images of the motel area,
examined the windows, and recovered a shirt with a bloodstain on it from defendant’s
room. The motel windows “had a crank to open them,” a latch near the top of the
window, and opened outward to 90 degrees. However, the officer did not check to see if
the crank and latch in Doe’s room were operational. The prosecutor (6'2'' and “200 plus”
pounds) fit through the open window. There were scuff marks on the wall outside the
window, and it appeared that someone had tried to climb the wall and slipped. There
were no signs of forced entry.



                                             4
       The window in Doe’s room opened out to a fenced and locked alleyway. The
window in Doe’s room was open. The inside of the window was dusted for fingerprints
and photographed. There was a partial footprint from a boot on the window sill inside
Doe’s room. A motel surveillance video showed defendant walking around in the
parking lot at various times, including at 4:33 a.m. on December 4, wearing what
appeared to be the same jacket he donned when the police officers let him get dressed. A
police officer opined the pattern on the sole of defendant’s boot was similar to the print
recovered from the windowsill of Doe’s window, and that it was made when defendant
left the room. However, the officer had no specific training in shoe pattern comparisons.
       A criminalist created genetic (DNA) profiles for Jane Doe and defendant.
Defendant was the sole source of blood from one of the stains on the bed sheet.
Defendant was the major contributor and Doe was the minor contributor of another
bloodstain on the sheet. Doe was the major contributor and defendant the minor
contributor of a third bloodstain on the sheet. A possible single spermatozoan cell, but no
semen, was found in the blood sample from Doe’s left eye swab. Spermatozoa, blood
and semen were found on a gray T-shirt.
Defense Evidence
       A forensic science consultant and expert in criminalistics and footprint
comparisons testified she compared defendant’s boot with the photograph of the shoe
print on the window sill of Doe’s motel room. She opined defendant’s boot did not leave
the shoe print.

                                      DISCUSSION
Burglary Is a Lesser Included Offense of Assault with Intent to Commit Oral
Copulation During a Burglary
       The jury convicted defendant of assault with intent to commit oral copulation
during a burglary (§ 220, subd. (b); count 1), and burglary (§ 460, subd. (a); count 2).
The trial court stayed imposition of sentence on the burglary count pursuant to section


                                             5
654. Defendant argues the court should have dismissed count 2 because it is a
necessarily lesser included offense of count 1. As the People acknowledge, and we
agree, he is correct. “[A]ssault with intent to commit rape during the commission of first
degree burglary cannot be committed without also committing first degree burglary. . . .
Section 220, subdivision (b) expressly provides that the prohibited offense must be
committed ‘in the commission of a burglary of the first degree, as defined in subdivision
(a) of Section 460.’ Thus, first degree burglary is a lesser included offense of section
220, subdivision (b).” (People v. Dyser (2012) 202 Cal.App.4th 1015, 1021.) The
remedy is to dismiss the lesser included offense conviction. (Id. at pp. 1021–1022.)
The Prosecutor Did Not Commit Prejudicial Misconduct
       Defendant argues the prosecutor committed prejudicial misconduct during rebuttal
argument. He asserts the prosecutor’s comments disparaged defense counsel and were so
prejudicial that reversal is required. We disagree.
Factual Background
       During his closing argument, defense counsel focused on the weaknesses he
perceived in the prosecution’s case which he argued was “riddled . . . with cognitive
bias.” He argued, for example, the geneticist assumed defendant was a contributor to the
mixed DNA samples found on Jane Doe’s bed, when “truth be known, we don’t know
who the attacker was based on that DNA.” He also argued it was a sign of cognitive bias
that the dispatcher asked Jane Doe three times if her attacker was Black, even though
Jane Doe initially told the dispatcher her assailant was White. Defense counsel also
argued the window in Jane Doe’s room could not have been the point of entry or exit,
because “there was no sign of a break-in in the room. [T]he window latch, . . . they can
only be opened from a crank on the inside.” Defense counsel also argued the window
was not wide enough for a person of defendant’s size to use for ingress or egress without
leaving debris behind. At one point, returning to the theme of cognitive bias, defense
counsel argued the police assumed defendant was Doe’s attacker from the fact there was

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blood in both rooms, but “they didn’t know it was all his blood in his room.” The
prosecutor objected on the ground of facts not in evidence. The court overruled the
objection and instructed “it is up to the jury to determine what the evidence is in the
case.” Finally, defense counsel told the jury that if Johnny Cochrane were talking to the
jury, he might say, “If the boots don’t fit, you must acquit.”
       In rebuttal, the prosecutor began: “So as [defense counsel] said, I think it’s
probably the only thing we agree about, is I’m going to rebut what he said. Not
everything because you heard the evidence yourselves. [¶] But as I sat there and listened
to the defense butcher, misstate facts, create new facts, I was wondering were we all
sitting through the same trial here?” (Italics added.) Defense counsel interposed,
“Objection. Misconduct.” The objection was overruled.
       Before addressing defense counsel’s arguments about the DNA evidence, the
prosecutor stated: “I’m just trying to go through and think of the many, many things that
were either misstated or mischaracterized.” (Italics added.) Again, defense counsel
interposed, “Same objection. Misconduct,” and again the court overruled the objection.
       Before discussing the defense argument about the boot print, the prosecutor stated:
“Another mischaracterization about the evidence saying that they didn’t find the boot
print somehow.” (Italics added.) There was no objection. Moving on to the defense
arguments about the window, the prosecutor stated: “Another invented fact was that Jane
Doe’s window was locked—.” (Italics added.) Defense counsel’s, “Same objection.
Misconduct,” was overruled. Rebuttal argument concluded shortly thereafter.
       Outside the jury’s presence, defense counsel elaborated on his objection: “Where
[the prosecutor] gets up and tells the jury that I fabricated evidence, or I am misleading
the jury, it’s prosecutorial misconduct. It’s been held to be so in numerous cases. It
deprives my client of a fair trial by going directly at my credibility and not commenting
on the evidence.” The prosecutor responded he was “commenting on the state of the
evidence.” He apologized if defense counsel took it as a personal attack; he did not

                                              7
intend his comments to be taken that way. Rather, “I said the defense was introducing
facts into the record in closing arguments that were not presented during the trial. I made
such an objection during his closing argument. I was overruled. And it’s my belief that
that occurred on several different occasions. [¶] And so I was commenting on the fact
that the jury was being—was being given new evidence during the closing by the
defense.”
       Defense counsel maintained one of his objections followed the prosecutor’s use of
the word “fabricated,” and two of his objections followed his use of the word
“misrepresent.” The trial court disagreed and observed it heard the words “misstatement,
mischaracterization, and invented fact. I found none of those constitute an attack on the
integrity of [defense counsel]. And of course the credibility of defense counsel is not an
issue. Defense counsel nor the prosecutor are witnesses in this case. On that basis, I
found no prosecutorial misconduct. . . . And that’s why I overruled on the objections.”
General Principles
       “ ‘The applicable federal and state standards regarding prosecutorial misconduct
are well established. “ ‘A prosecutor’s . . . intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct “so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.]
Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.” ’ ” [Citation.]’
[Citation.] ‘[W]hen the claim focuses upon comments made by the prosecutor before the
jury, the question is whether there is a reasonable likelihood that the jury construed or
applied any of the complained-of remarks in an objectionable fashion.’ [Citation.]”
(People v. Smithey (1999) 20 Cal.4th 936, 960 (Smithey).) “In conducting this inquiry,
we ‘do not lightly infer’ that the jury drew the most damaging rather than the least
damaging meaning from the prosecutor’s statements. [Citation.]” (People v. Frye (1998)

                                              8
18 Cal.4th 894, 970, disapproved on another ground in People v. Doolin (2009)
45 Cal.4th 390, 420.) “If there is a reasonable likelihood that the jury would understand
the prosecutor’s statements as an assertion that defense counsel sought to deceive the
jury, misconduct would be established.” (People v. Cummings (1993) 4 Cal.4th 1233,
1302.)
         “It is, of course, improper for the prosecutor ‘to imply that defense counsel has
fabricated evidence or otherwise to portray defense counsel as the villain in the case. . . .
Casting uncalled for aspersions on defense counsel directs attention to largely irrelevant
matters and does not constitute comment on the evidence or argument as to inferences to
be drawn therefrom.’ ” (People v. Fierro (1991) 1 Cal.4th 173, 212, overruled on another
ground in People v. Thomas (2012) 54 Cal.4th 908, 941.) “In addressing a claim of
prosecutorial misconduct that is based on the denigration of opposing counsel, we view
the prosecutor’s comments in relation to the remarks of defense counsel, and inquire
whether the former constitutes a fair response to the latter. [Citation.]” (People v. Frye,
supra, 18 Cal.4th at p. 978.)
         Taken in context, and drawing the least damaging inference possible, we do not
conclude the prosecutor here accused defense counsel of fabricating defense evidence.
The prosecutor’s comments referred to defense counsel’s interpretation of the
prosecution’s evidence. It is true the prosecutor’s comments did not accuse attorneys or
defense counsel generally of employing tricks or twisting facts. Rather, his comments
specifically accused defendant’s attorney of butchering, misstating, creating,
mischaracterizing, and inventing new facts for the jury’s consideration. However, the
prosecutor’s rebuttal argument did not dwell on defense counsel’s tactics, or attempt to
gain any advantage by persuading the jury to disapprove of defense counsel. Instead, the
prosecutor’s rebuttal focused on the evidence presented and the unreasonableness, in his
view, of the inferences defense counsel’s argument asked the jury to draw from it. In this
respect, the substance of the prosecutor’s argument was a fair response to defense

                                               9
counsel’s argument and “properly served to remind the jury to focus on the relevant
evidence and to not be swayed by argument alone.” (People v. Gionis (1995) 9 Cal.4th
1196, 1217, fn. 13.)
       Arguably more egregious comments have not been found to have crossed the line
into misconduct. (See, e.g., People v. Williams (1996) 46 Cal.App.4th 1767, 1781–1782
[prosecutor’s remarks that defense counsel’s argument intended to “ ‘obscure the truth’ ”
in order to “ ‘deceive,’ ‘distract’ and ‘confuse’ the jurors” properly reminded jury it
should not be distracted from relevant evidence and inferences that might logically be
drawn therefrom]; People v. Bell (1989) 49 Cal.3d 502, 538 [comments that defense
counsel’s job is to “ ‘throw sand in your eyes’ ” and “get his man off” gives same
reminder]; People v. Medina (1995) 11 Cal.4th 694, 759 [saying any experienced defense
attorney can “ ‘twist’ ” and “ ‘poke’ ” at the prosecution’s case to get the jury to speculate
and “ ‘buy something’ ” is “unobjectionable”]; People v. Cummings, supra, 4 Cal.4th at
p. 1302 & fn. 46 [accusing defense of attempting to hide the truth and comparing defense
to octopus ink is “nothing more than urging the jury not to be misled by defense
evidence”]; People v. Marquez (1992) 1 Cal.4th 553, 575–576 [comparing defense to
“smokescreen” to hide the truth from the jury “was proper argument against the jury’s
acceptance of the defense presented”]; People v. Huggins (2006) 38 Cal.4th 175, 207 [in
saying defense counsel “ ‘tried to smoke one past us’ ” the “prosecutor simply used
colorful language to permissibly criticize counsel’s tactical approach”].) We think there
is a reasonable likelihood the prosecutor’s comments “were clearly recognizable as an
advocate’s hyperbole” by the jury. (People v. Sandoval (1992) 4 Cal.4th 155, 184.)
Accordingly, we do not find misconduct occurred.
       In any event, assuming arguendo there was misconduct, we do not view the
prosecutor’s isolated comments during rebuttal argument as a pattern of misconduct
elevating the error to one of federal constitutional dimension or necessitating application



                                             10
of the federal standard of review.3 (Chapman v. California (1967) 386 U.S. 18, 24;
People v. Estrada (1998) 63 Cal.App.4th 1090, 1106–1107.) We therefore apply our
state Constitution’s Watson standard of prejudice and determine if there is a reasonable
probability of different result. (People v. Watson (1956) 46 Cal.2d 818.) We conclude
that, given the strength of the prosecution’s case, which included unrebutted DNA
evidence linking defendant to the attack, defendant’s lewd conduct toward Jane Doe
earlier in the day, evidence surrounding the open window and access to the alley, the
scuffs and debris on defendant’s shoes, the severity of Jane Doe’s injuries and the injuries
on defendant’s face, hands and shins, we find no reasonable probability the jury would
have reached a more favorable result absent the objectionable comments.
                                     DISPOSITION
       The judgment is modified to dismiss count two as a lesser included offense of
count one. As so modified, the judgment is affirmed. The trial court is directed to
prepare an amended abstract of judgment omitting count two and reflecting a term of life
in prison with the possibility of parole on count one. The trial court shall forward a
certified copy of the amended abstract of judgment to the California Department of
Corrections and Rehabilitation.




3
  We reject the People’s contention that defendant forfeited a federal claim by failing to
object on federal grounds. (People v. Partida (2005) 37 Cal.4th 428, 435 [defendant can
argue on appeal that overruling his objection had additional legal consequence of denying
him due process.]) In addition, counsel argued the prosecutor’s remarks deprived him of
a fair trial.

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                                 _________________________
                                 DONDERO, J.


We concur:


_________________________
MARGULIES, Acting P. J.


_________________________
BANKE, J.




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A139907




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