Filed 5/13/15 P. v. Clay CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE


THE PEOPLE,                                                          B251482

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA351868)
         v.

ERIC LAMONT CLAY,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Craig J.
Mitchell, Judge. Modified and affirmed with directions.
         Marilee Marshall & Associates and Marilee Marshall for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, James William
Bilderback II, Supervising Deputy Attorney General, and Brendan Sullivan, Deputy
Attorney General, for Plaintiff and Respondent.
                                             ——————————
       Eric Lamont Clay appeals from his convictions by a jury of seven counts of assault
and sexual offenses. We remand for resentencing on count 7 and for the calculation of
conduct credits, if any. We otherwise affirm the judgment.
                                       BACKGROUND
       An amended information filed August 5, 2012 charged Clay with one count of
assault by means likely to cause great bodily injury to victim D. W. (Pen. Code,1 § 245,
subd. (a)(1); count 1); one count of forcible oral copulation against victim L. R. (§ 288a,
subd. (c)(2); count 2); four counts of forcible oral copulation against victim Linda M. (§
288a, subd. (c)(2); counts 3, 4, 5, & 6); and one count of attempted forcible oral
copulation against victim Laura R.2 (§§ 664, 288a, subd. (c)(2); count 7). The
information also alleged that Clay committed an offense specified in section 667.61,
subdivision (c) against more than one victim, within the meaning of section 667.61,
subdivisions (a) and (e). Clay pleaded not guilty.
       A jury found Clay guilty on all seven counts. The trial court denied his motion for
new trial, and sentenced Clay to a total state prison term of 42 years to life, with
presentence custody credit. Clay filed a timely notice of appeal.
       Linda
       At trial in August 2013, sixty-three-year-old Linda3 testified that on an August
evening in 2008 (she remembered it was a warm evening, but “I don’t remember when I
was born. . . . I don’t remember no dates at all”), she was walking in the area of San
Pedro Street and 7th Street in Los Angeles when she hailed a yellow van cab with blue
checks. The van was dirty, with blue carpets, bucket seats in the front, and a bench seat
in the back. The driver was a heavy set, round-faced black man. Linda pointed out Clay
in court as the man. Clay told her to get in the back seat because papers were piled in the


       1   All further statutory references are to the Penal Code unless otherwise indicated.
       2For the purpose of clarity, in the body of the opinion we will refer to the victim
witnesses by their first names. No disrespect is intended.
       3   All the victims were in their 50’s or 60’s.

                                                2
front passenger seat. Linda wanted to go to Beverly Hills. On the way Clay said, “‘Oh,
look over, there’s a pretty young girl waiting to be picked up,’” which at that time Linda
didn’t think much about. Clay said he had to urinate, and pulled into a dark alley about
20 minutes after he picked her up. He parked the cab with the passenger side as close to
a fence as possible, got out, and climbed in the back with Linda.
        Clay got on top of Linda, put his hands around her throat and squeezed, saying,
“‘I’m going to rape you, but I’m going to choke you first.’” Linda had trouble breathing
and thought she was going to die. Clay slapped her up to 25 times. He pulled her to the
front of the cab, sitting so Linda had to lean on her left side, and pushed his penis down
her throat for a long time until he ejaculated. He ordered Linda not to spit out his semen,
and she swallowed it. Clay said, “‘I never thought I’d have a 60-year-old girlfriend,’”
and made Linda “deep-throat” him again. Clay then asked Linda if she’d ever been
anally raped, and she said never; he asked if she was sure, and she said yes. He then said
he needed to ejaculate again and “‘[t]hat’s the only way I can finish. Turn over.’” Linda
turned over and Clay pulled up her dress, but she did not feel any part of his body touch
hers.
        Clay held a piece of wood with nails in it over Linda’s head and told her she
wouldn’t make it to the hospital if she tried to escape. He made Linda suck his nipples,
lick his testicles, and lick his anus for an hour. Clay asked Linda how old she was, and
told her he was going to take it easy on her because of her age.
        Clay told Linda he would give her $10 if she got out of the cab and walked, or $5
if he drove her back. She asked him to drive her back, because she was afraid he would
run her over if she got out of the car in the dark alley, and she did not know where she
was. He took her to 11th Street and gave her $5, which she accepted just to get rid of
him, although she did not want him to think that paying her made it okay: “It’s not okay.
It was still rape, no matter what.” Linda did not go to the police that day because Clay
said he knew a lot of people in the area and if she told anyone, he would get them to kill
her. The entire attack had lasted around two hours.



                                             3
       Linda reported the incident to the police a few weeks later. On January 22, 2009,
she identified Clay as her assailant in a photographic lineup, at position number 5. His
hair was longer at the time of the incident, in braids that were not fresh so his hair was
puffed up. Linda also identified Clay without hesitation as her attacker in a live lineup, in
position number 4.
       The day that Linda got into the cab, she was not working as a prostitute, was not
homeless, and had not taken any illegal drugs. She did take Prozac, Abilify, and Adderall
to help her cope on a daily basis. Linda had attention deficit disorder, which affected her
memory, and took medication for schizophrenia. The medications did not affect her
memory.
       Los Angeles Police Department (LAPD) Detective Joshua Riggs testified that he
interviewed Linda and took a full report. Linda described the vehicle as a yellow and
blue checkered taxicab van, with a sliding door and gray interior with two bucket seats in
the front and two bench seats in the back, with no windows in the back. The van was
messy with papers in the front passenger seat. The driver was a light-skinned black male
with a broad nose and full lips, and slanted or “‘bedroom eyes,’” about six feet tall and
250 pounds. She remembered that she entered the van on 7th Street just south of San
Pedro Street, and past Staples Center the car turned into an alley. Detective Riggs
thought Linda described her attacker as wearing a blue hat with a brim, like a fishing hat.
       LAPD Detective Carlos Garcia also interviewed Linda, who described the taxi as
blue and yellow and her attacker as a light skinned male black with poufy hair. Linda
also pointed to a moving company advertisement with a stick figure, and said, “that’s
him.” Linda was uncooperative, going from calm to very aggressive and saying she
would not be able to identify the suspect if she saw him again.
       Investigating LAPD Officer Sharlene Johnson also interviewed Linda, who told
her she had been assaulted for three hours. Linda described the suspect as having a light
to medium complexion, similar to a Hispanic.




                                              4
       L.
       57-year-old L. testified that on the day after Thanksgiving in 2008, she was
walking near Los Angeles Street and 8th Street between 8:00 p.m. and 9:00 p.m. when
she saw a van cab that she thought was green, with two long seats in the back and black
upholstery. The driver asked her if she needed a ride and she answered yes. He asked
her if she was working and she said maybe, and when he asked how much she said $10.
The driver asked L. how old she was and she said 54. He told her to get in through a
sliding door. L. identified Clay as the driver. L. worked as a prostitute and was addicted
to crack cocaine, and had smoked $40 of crack cocaine just before being picked up. She
just wanted a ride because her feet were hurting, and she and the driver did not discuss
sex for money before she got in the cab.
       L. became worried when Clay stopped behind a building near some train tracks by
Western Avenue, got in the back seat with her, and told her she had to do what he said
before she got out. If she didn’t do what he said “he was going to put [her] in a concrete
wall and [would not] lose a bit of sleep over it.” L. told Clay she had a problem holding
her bowel movements, and she soiled her pants and started crying harder. Clay flipped L.
onto her stomach, told her to be quiet, and pulled her pants down, but then pulled them
back up when he realized she had defecated. Clay spat in L.’s face, pulled her hair, and
made her play with his testicles and suck his penis, telling her she had to swallow his
semen or she would have to do it again. Clay choked and punched her with his fist,
giving her a black eye, and put his hand over her mouth and told her to shut up when
someone walked by with a dog. She told Clay she needed money to buy something to
eat, and Clay put something in the ashtray in the back of the seat. Clay made her clean
his penis with her jacket, and told her to lie down. Clay drove her a few blocks from
Main Street, got out, opened the cab door, put a cigarette in her hand, and told her that if
she told anyone he would put her in a brick wall.
       After L. got out of the cab, she called her girlfriend instead of the police because
after what Clay said to her she was afraid he would follow her. The next day her
girlfriend talked her into going to the police. L. didn’t know whether she talked to the

                                              5
police on November 30. When she got there, she spoke to the front desk officer and then
to LAPD Officer Deon Joseph, who saw her face and then asked her what happened; she
said, “the cabdriver did it.” She also met with Officer Johnson, and a sketch artist made a
drawing from her description.
       L. admitted she had multiple convictions for prostitution. She could not read or
write. Her memory was good, and although she sometimes forgot things, when “you get
assaulted, [or] get beat up, you don’t forget things like that.” L. had identified Clay in a
photographic lineup as her attacker. A recording of an interview just after she made the
identification was played to the jury. L. also attended a live lineup. The officers asked
each suspect to say something. L. identified Clay, who was in position 4, on the basis of
his appearance and the sound of his voice, although his hair was different from the night
of the attack.
       On cross-examination, L. stated that she went to the police on November 30, and
could not remember much of what she told the first officer she spoke to except that she
told him that her attacker was stocky. She only felt comfortable talking to Officer
Joseph, telling him her attacker looked Hispanic but he was black.
       LAPD Officer Jesus Toris testified that he was at the front desk of the Central
Police Station on November 30, 2008, when he took a report from L. about the November
29 attack. She told him that it happened around 9:00 p.m., the cab was white and green,
and the assailant was Hispanic with a dark complexion and a moustache, and had an
accent.
       Detective Riggs testified that he interviewed L., who told him that the driver was a
light-skinned black man with a deep voice and might have had an accent. He had slanted
“‘bedroom eyes’” and was about six feet tall and 250 pounds. The taxi had a white top
and a green bottom and a dark interior, with two bucket seats and in the rear, two bench
seats. Officer Joseph also spoke to L., who had a blackened left eye and told him she had
been picked up, transported, and sexually assaulted.
       LAPD Detective Adolfo Contreras met with L. on January 22, 2009 to show her
the photographic lineup, and gave her an admonition, recording her statement because

                                              6
she was unable to read and write. He placed the photos face down and asked L. to turn
them over, and when she did so she immediately identified Clay, circling, signing, and
dating the photograph.
       LAPD Detective Steve Koman conducted the live lineup on January 22, 2009, at
which both Linda and L. were present, with defense counsel (who made several
objections) also present. The two women were given their admonitions together and
viewed the lineup together. They were admonished not to speak to each other and
Detective Koman watched to make sure they did not. Either Linda or L. became visibly
shaken and emotional while marking her paper, and so Detective Koman asked her to
leave the room. After she left without in any way indicating whom she had chosen, the
other woman made her identification.
       Laura
       Laura testified that in November 2008, she was working as a prostitute on Towne
Avenue and 7th Street when a yellow and blue cab pulled over. She got into the cab
through the sliding door and told the driver it was $20 for “everything,” meaning sexual
acts. The cab had a black interior and was messy with papers and clothes. Laura
identified Clay as the driver. Clay drove around and took her to an alley on 11th Street,
where he parked the cab near a wall, urinated, and came around to the back. Clay handed
her the $20, grabbed it back and said she wasn’t getting the money, and punched her in
the head three times. Clay’s shirt was open and his pants were down, and he tried to rip
off her shirt. He tried to put his penis in her mouth but she pushed him away, so his penis
just hit her mouth and did not go in. She did not remember seeing his penis. Laura did
not want any sexual contact with Clay because he was too rough; she tried to get out of
the taxi but Clay wouldn’t let her.
       A man came into the alley and started to go through the dumpster. Clay got in the
driver’s seat and began to drive away. When Laura screamed at Clay to stop and he
would not, she jumped out of the moving car and ran away, trying to put her top and bra
back on. Clay backed up in an attempt to run her over with the car.



                                             7
       Laura thought she was illiterate, but she knew her numbers. She was using crack
cocaine in 2008 and took medication for mood swings. She had no difficulty
remembering the attack.
       Laura did not go to the police immediately because she was scared. Sometime
later she saw Officer Joseph in his police car, using his loudspeaker to tell people that
“the cab driver [¶] . . . [¶] he’s hurting the chicks out here,” and she flagged him down.
Laura had seen her attacker three days before she spoke to Officer Joseph. Later, in a
photographic lineup, she identified her attacker in position number 5 (although his hair
was different). She also said it could be number 2. At trial, she testified that if she had to
choose again she thought her attacker was in position number 2, although she had circled
only Clay, who was in position number 5.
       In a live lineup, Laura had identified the individual in position number 2 (Clay)
and number 3, although she had not been sure which one had assaulted her. Now she was
sure it was number 3.
       On cross-examination, Laura admitted she told Officer Joseph that she didn’t see
any scars or tattoos on the cab driver, who was a bald, dark-skinned male with a deep
voice and a mustache, and was not circumcised. She was not sober when she talked to
Officer Joseph.
       Officer Deon Joseph testified that he was a senior lead officer, and had worked
with the prostitutes in the area to help them change their lives and report crime to the
police. On December 23, 2008 he was driving down 7th Street passing out flyers
(without photographs) about a man in a taxicab who was assaulting prostitutes, when
Laura flagged him down, saying she knew who it was. She talked to Officer Joseph at
the station, and told him that in November she agreed to engage in an act of prostitution
with a driver of a yellow and blue taxi with a gray interior. The driver took back the
money, ripped off some of her clothes, and was about to sexually assault her but stopped
when a transient began rummaging through trash. Laura appeared sober and coherent,
and her left eye was blackened. Shown a composite sketch of the suspect, she said, “‘I
know who that is. He tried to rape me.’” She had seen him in the area three days earlier

                                              8
(December 20) and on December 18, trying to pick up other women. Laura described
him as an uncircumcised, bald dark black male in his 40’s with a deep voice and hair
somewhere.
       LAPD Detective Jesse Alvarado testified that on January 22, 2009, he showed
Laura a photographic lineup. Laura circled the photograph in position number 5, which
was Clay’s photograph. She signed a statement saying: “‘It looks like number 5 but his
hair is different. When he attacked me, he had no hair or a moustache. I think it’s him.
I’m not sure. It could be number 2. If I had to make a choice, it would be number 5. If I
saw him in person, I could identify him.’”
       LAPD Detective Barry Telis testified that he assisted at the live lineup on
April 28, 2009. A defense attorney and defense investigator were present, and Laura was
the only witness present. Laura stopped the lineup and said she thought number 3 was
her assailant. Each of the men in the lineup was asked to say, “‘You ain’t getting this
money tonight,’” and Laura said number 3 sounded like her assailant. Laura then asked
if she could pick someone else, and after she was told that she could, she said, “‘It’s
between 3 and 2.’” Clay was in position number 2.
       D.
       D. testified that she was currently in custody for an unrelated drug matter, had
many convictions for prostitution and drug-related crimes, “like[d] crack,” and did not
read or write very well. At the end of 2008, D. was in Gladys Park on 6th Street during
the day, high on crack, when a van taxicab drove up and the driver, who was black and
wearing a black stocking cap, asked, ‘Would you like some crack or some money or
something to go fool around?’” The cab was yellowish green or fluorescent green, in two
colors, half yellow fading into another color. She said yes and got in the sliding door,
intending to have sex with the driver for money or crack. The driver drove the cab to a
secluded area like an empty parking lot. He told D. to get into the back, and she went to
the back row of the two bench seats. D. took off her clothes, and the driver told her to
move into the middle portion of the back. He got into the back of the cab with her and
folded the seat down. The driver had D. lie on her stomach and rubbed oil on her

                                             9
buttocks; she thought he might have penetrated her anus but wasn’t sure. She noticed he
had scars and bite marks on his hands, which looked like photographs of Clay’s hands
shown to her at trial.
       The driver put on gloves with the fingers cut off, and asked, “‘Do you know why I
brought you here?’” D. said no, and he continued, “‘I brought you here because I bring
all the women here to hurt them. And I—and I rip their body parts apart, and the more
harm I do to them the harder I get.’” The driver was holding D. down, but she grabbed
the van window and tried to get out; she was afraid for her life. There was a plexiglass
partition in the cab with two jackets covering it. D. tried to pull one jacket down so that
someone could see what was happening and come help her, and the driver froze, and said,
“‘Bitch, you rip that jacket, that jacket means everything to me.’” He said it was a
Michael Jordan jacket, and started punching her in the face repeatedly until she almost
passed out. The driver flipped D. over and put her in a headlock, putting pressure on her
throat and lying on top of her. He said, “‘you know how you do a cat [when] his eyeballs
start popping out, when you grab him by the throat?’” and “‘[s]ee how easily I could kill
you, bitch?’” D. was screaming loudly and he tried to cover her mouth.
       The driver told her to go get her clothes out of the far back and she did so, smiling
and trying to play along; she had been in the business a long time and knew how to stay
safe. The driver calmed down and she tried to get out. He pushed her back in and told
her to put the jacket back up, but she refused. He said he would let her go now but would
think about killing her later. He held up a wad of money and asked her if she wanted it,
but D. said no because she was afraid he would pull her back into the van. She ran up the
street to where there were some businesses.
       D. was afraid to go to the police because the driver had threatened to kill her, but
after a few days she went because everyone told her she had to report the attack. She had
black eyes and scrapes on her face. She did not positively identify anyone in a
photographic lineup, but did say that two photographs, numbers 2 and 5, might be her
assailant. Clay was in position number 5. She did not identify Clay at the preliminary
hearing or at trial.

                                              10
       LAPD Officer Jose Soto testified that he interviewed D. on November 24, 2008.
She told him her assailant was black with a muscular build, and had placed gloves on his
hands, which were scarred. The van was yellow-green and fluorescent with a plexiglass
partition, and the back seat was folded down. Officer Johnson testified that D. told her
the attacker wore a dark stocking cap.
       Arrest and investigation
       LAPD Officer Daniel Jara testified that in December 2008 he received a crime
alert about a wanted kidnap/sexual assault suspect. He kept the crime alert notice in his
police car. At 10:15 p.m. on January 21, 2009, he was flagged down by a woman near
Gladys and 7th Street. He then noticed a taxi. In the dark, it was hard to see the color.
When Officer Jara drove closer, he saw that the taxi was blue and yellow and the driver,
Clay, looked like the person on the composite that accompanied the alert. Officer Jara
did a traffic stop. He asked Clay what race he was because in the dark, Clay, who was
black, also looked Hispanic. Clay was stocky with a light facial mustache and scars on
his hands. The rear of the second seat of the vehicle was torn. Officer Jara and his
partner decided to arrest Clay, and they handcuffed him and took him to the station.
       Detective Contreras searched Clay’s home pursuant to a warrant. He recovered a
black beanie cap, and a jacket with a Michael Jordan emblem. The cab upholstery in a
photo appeared to be tan and gray. There was some damage to the back part of the
second seat.
       LAPD Criminalist Elizabeth Swanson searched the vehicle, which was a 2002
Chevrolet Astro van being used as a Checker taxicab, with bucket seats in the front and
two bench seats in the back. The van was messy with clutter on the floor, and had a
sliding rear door. A pair of fingerless black gloves, two tubes of aloe vera gel, and a bag
of a white powdery substance were recovered. The cushions on the two back seats tested
positive for semen. Detective Alvarado, who supervised the search, stated that he did not
try to lift fingerprints because many people had used the taxi and the cloth seats would
not provide prints. An LAPD criminalist testified that cuttings from both back seats



                                            11
tested positive for semen, with secretions consistent with saliva, vaginal fluids, and
blood.
         The president of the Los Angeles Checker Cab Cooperative testified that Clay was
a full-time driver who drove taxicab number 3453. Every cab driver had scheduled
airport days, which they did not usually miss although they could drive anywhere on
those days. Clay had airport days on August 22, 2008, November 15, 2008,
December 20, 2008, and December 25, 2008.
         Los Angeles County Sheriff’s Department Sergeant John Powell had 10 years of
experience with tracking devices on vehicles under criminal investigation and formal
training in using global positioning system (GPS) tracking. He testified that he had
plotted the Checker Cab GPS records for Clay’s taxi van on November 29, 2008 (the day
L. stated she was assaulted), which showed that from 8:45 p.m. to 8:56 p.m., the cab was
east of San Pedro Street and south of 7th Street in the Skid Row area, and at 9:04 p.m.,
the cab was at 8th Street and Los Angeles Street. The taxi headed south, drove around in
the area of Washington Boulevard and Maple Street, and then stopped for an hour and 20
minutes near Stanford Avenue and Washington Boulevard. Around 10:36 p.m., the taxi
traveled to San Pedro Street and 14th Street.
         LAPD Detective Monica Cross testified regarding her compilation of the
photographic lineup shown to the victims, and her showing of the photographic lineup to
Linda and D.
         Officer Johnson was the investigating officer, and she testified (over defense
objection) that at her direction, a computer crime analysis had been run in a department
database, using broad parameters similar to the crimes in issue (area, sexual assaults and
kidnapping, outside or taxicab, black suspect 35-45 years old). She had reviewed the
results. After Clay’s arrest on January 21, 2009 through August 13, 2012, there were no
reports of similar sexual assaults involving a taxicab driver and a woman.
         Defense evidence
         Dr. Mitchell Eisen, who had a doctorate in psychology, had testified in numerous
cases about memory, eyewitness memory, and suggestibility. He had not interviewed

                                              12
any of the witnesses, and was not in court to testify about the accuracy of eyewitness
identifications in this case. Memories closer in time to an event were fresher, more
detailed, and more accurate, making an initial report the best indication. Chronic use of
crack cocaine can disrupt memory. In proper live and photographic lineups, no
individual should stick out from the group. If only one suspect had the skin tone that a
witness described, for example, that suspect would be more likely to be picked by the
witness. If the lineup contained only one suspect with such a characteristic, or if the
supervisor of the lineup did not properly admonish the witness or talked to the victim to
somehow suggest one individual might be more familiar, it was possible that multiple
witnesses could select the wrong person. There was no difference in accuracy between
live and photographic lineups. Multiple identification procedures increased the
likelihood that the witness would select the same individual initially selected, even if the
actual perpetrator appeared elsewhere in the second procedure. Studies had shown that
false identifications in sexual assault cases can occur even when a woman was exposed to
an attacker for long periods of time. On cross-examination, Dr. Eisen clarified that he
had no opinion about the procedures used by the police in Clay’s case.
       Dr. Ronald Markman, a psychiatrist, testified that the use of crack cocaine
impaired cognition and the ability to interpret events. Klonopin, a medication for
schizophrenia, would lessen a schizophrenic’s tension and anxiety, but would not change
the impaired thought process.
       A defense investigator who attended the live lineup for Laura in April 2009
testified that after the witness picked an individual, all the individuals were asked to step
forward, and then the person conducting the lineup told Clay to open his eyes. Maryetta
Marks, Clay’s attorney at the preliminary hearing, testified that she was at the lineup and
the witness had picked the individual in position number 3 before the detective asked
Clay, who was in position number 2, to open his eyes. The witness thereafter added
position number 2 to her identification. Marks did not include this in her objections to
the lineup, thinking she was not allowed to, although she did make a complete objection
to the lineup at the preliminary hearing.

                                             13
       Hari Williams testified that he lived in the same apartment complex as Clay, and
in 2008 Clay had low cut hair and wore baseball caps. Williams never saw Clay’s hair
long. Clay had a peaceful nature. Almarko Taylor testified that Clay worked with her as
a 911 dispatcher at the Chicago Police Department and they dated for about a year, until
he moved to California in 2002 or 2003. Clay was circumcised, and was a gentle, loving
person.
       Boris Rozman testified that he was a board member at Checker Cab and leased a
cab to Clay from 2007 to 2009. Clay was not the first driver to use the cab. Clay’s cab
never had a broken seat and was always in decent shape, although a photograph showed
torn upholstery. Clay was always nice and polite and there were no complaints about
him. A different company, United Independent, had green and white cabs and two other
companies had green cabs. Clay was around six feet tall, and Rozman had never seen
him bald, or wearing a ski cap.
       Vicente Vasquez was the on-site operations manager at Checker Cab. GPS
records showed the following locations of Clay’s cab, in 30-minute intervals, between
8:00 p.m. and 11:00 p.m.: August 22, 2008, near the airport, South Gate, and on the 105
freeway; November 15, 2008, near and at LAX, and heading back downtown on the 110
freeway; November 20, 2008, at the airport, Olympic and Fairfax, and West Hollywood,
and back at the airport; December 20, 2008, at the airport and in Torrance.
       Defense counsel recalled Laura as a witness, who testified that on September 20,
2011, she was served with a subpoena to testify in another person’s criminal case. She
had told a police officer that the person had robbed her. She had called it a robbery
because the person had taken her money and given her some “bunk dope,” drugs that
were not really drugs. Laura told the police that she thought selling her bunk dope was
the same as stealing her money.
       Defense counsel also called Officer Johnson, who explained that L. had initially
stated that the sexual attack took place on November 29, and a month later stated it
occurred on the day after Thanksgiving. At one point, L. described the location as Maple
Street and 20th Street.

                                            14
       Rebuttal evidence
       DNA analyst Stephanie Sivak testified that she had analyzed the cutouts from the
cab’s seat cushions, and the sperm on the samples matched Clay’s DNA.
       Postverdict proceedings
       Clay provided the court with a list of concerns about the conduct of the trial, and
the court relieved trial counsel and appointed new counsel. Clay’s counsel filed a 92-
page motion for new trial, arguing that the trial court erred in admitting the evidence that
after Clay’s arrest there had been no more sexual assaults by cab drivers, and failed to
allow the defense to present evidence that Linda had reported an unrelated sexual assault
in which the medical records were inconsistent; the evidence was insufficient; trial
counsel provided ineffective assistance; and the prosecutor committed misconduct. The
respondent filed an opposition. Clay filed a 10-page handwritten addendum to the
motion for new trial raising numerous issues as objections to his trial attorney’s strategy
and performance.
       On September 6, 2013, the trial court sentenced Clay and denied the motion for a
new trial. Clay filed this timely appeal.
                                       DISCUSSION
I.     Clay has not shown that his counsel provided ineffective assistance.
       A.     Counsel did not provide ineffective assistance by failing to challenge or
excuse Juror No. 11.
       On the first day of voir dire, after the prosecutor read a list of potential witnesses
including “Officer D. Joseph,” prospective Juror No. 27 stated: “I heard T. Joseph. I do
know an officer T. Joseph by the name of Ted Joseph.” The court promised to address
the issue if the juror was seated.
       The next day the juror was seated as Juror No. 11. Juror No. 11 said he did not
think anything would prevent him from being fair, but “[he] was the one [who] raised
[his] hand yesterday, about one of the potential witnesses, [he didn’t] think that would
bias [him], but [he] can’t say for sure.” The court asked if the witness was a law
enforcement officer and the juror answered yes. Asked if Juror No. 11 had a friendship

                                              15
with the witness, the juror answered, “I’ve known him for quite a while,” as they had
attended elementary school and high school together, and their children went to the same
elementary school. Juror No. 11 said he understood that his relationship could not affect
the scrutiny of the witness’s testimony, and both sides would get a fair trial from him. At
sidebar, the prosecutor explained that Officer Joseph, if called, would testify about the
victims’ prior statements, and defense counsel said, “What I need to know is if it’s the
right Joseph. Because I thought he said T.” On questioning from the court, Juror No. 11
agreed that the first name of the person he knew was Deon.
       Later, defense counsel told Juror No. 11 that “from what you said, he’s really a
buddy of yours,” and Juror No. 11 answered, “Yeah.” Their youngest children went to
elementary school together, and Juror No. 11 still had contact with Officer Joseph
through the school. Juror No. 11 agreed that he “really like[d]” Officer Joseph. Defense
counsel asked if that would affect his assessment “whether he’s being truthful or not,”
Juror No. 11 replied, “I would hope not. I’ve known him for a while. I hope I wouldn’t
have preconceived notions about him. I would hope. I hope he would be honest.”
Defense counsel continued that her concern was that “you look at him and analyze his
testimony the way any other witness would testify. I know you know him and it’s going
to be tough, but do you think you can do it?” Juror No. 11 replied that the verdict had to
be based on the evidence. The court explained that the concern was whether Juror
No. 11’s relationship would lead him to give Officer Joseph “any preferential treatment,”
and Juror No. 11 replied, “That’s not my goal. That’s not what I’m trying to do.”
Counsel for Clay responded, “That’s good enough.” Later, defense counsel asked
whether anything in the jurors’ backgrounds interfered with being a fair juror, and Juror
No. 11 stated, “I’ll be fair.”
       Defense counsel did not challenge Juror No. 11 for cause or use a peremptory
challenge, and Juror No. 11 sat on the jury throughout trial. At trial, Officer Joseph
testified regarding his interviews with victims L. and Laura. Clay raised counsel’s failure
to challenge the juror in his claims of ineffective assistance in his addendum to the
motion for new trial.

                                             16
       A criminal defendant has a constitutional right to trial by an impartial jury. (U.S.
Const., 6th Amend.; Cal. Const., art. I, § 16.) An impartial juror is capable to decide the
case solely on the evidence before the juror. (In re Hamilton (1999) 20 Cal.4th 273,
294.) Juror bias may be implied “when the existence of the facts as ascertained, in
judgment of law disqualifies the juror” (Code Civ. Proc., § 225, subd. (b)(1)(B)), and a
party may challenge a juror for implied bias, including “[t]he existence of a state of mind
in the juror evincing enmity against, or bias towards, either party.” (Code Civ. Proc.,
§ 229, subd. (f).) “A prospective juror’s ability to be fair and impartial is explored during
the process of voir dire,” which can result in challenges for cause or peremptory
challenges based on responses by the prospective juror. (People v. Duran (1996) 50
Cal.App.4th 103, 111.)
       Clay argues that his trial counsel’s failure to challenge Juror No. 11 constitutes
ineffective assistance of counsel. To succeed on this claim, Clay must demonstrate that
“‘counsel’s representation fell below an objective standard of reasonableness . . . under
prevailing professional norms.’” (People v. Ledesma (1987) 43 Cal.3d 171, 216.) We
presume that counsel’s performance was within the wide range of reasonableness, and
that counsel’s actions can be explained as a matter of trial strategy. (People v. Carter
(2003) 30 Cal.4th 1166, 1211.) On direct appeal, we “‘“will reverse convictions . . . on
the ground of inadequate counsel only if the record on appeal affirmatively discloses that
counsel had no rational [basis] for [his or her] act or omission.”’” (People v. Lucas
(1995) 12 Cal.4th 415, 437.) Clay must also show prejudice, by demonstrating that if
counsel had not performed ineffectively, there is a reasonable probability that the
outcome of the trial would have been different. (Ibid.)
       After Juror No. 11 stated that he had a friendship with Officer Joseph, defense
counsel examined the juror in an attempt to rehabilitate him. That attempt at
rehabilitation, however, did not result in an unequivocal statement from Juror No. 11 that
he could evaluate Officer Joseph’s credibility without being influenced by his friendship
with the officer, who he “really like[d].” Instead, the juror stated only that he “would
hope” he could objectively judge Officer Joseph’s credibility. Juror No. 11 also stated, “I

                                             17
hope he would be honest,” which could be interpreted as a strong desire to find the
officer credible. Pressed further by the court, the juror stated that it was not his goal to
give Officer Joseph preferential treatment. That falls short of a firm profession of
objectivity, and counsel should have continued to examine Juror No. 11 until it was clear
whether he could be fair despite his friendship with the witness.
       Nevertheless, although the examination did not go far enough, defense counsel
examined the juror and “made the effort to rehabilitate [the juror] and to make clear in
[the juror]’s own mind that [the juror] could be a fair and impartial juror. Such conduct
shows defense counsel had some reasonable justification for wanting to keep [the juror]
on the jury.” (People v. Lloyd (1992) 4 Cal.App.4th 724, 735; see People v. Kipp (1998)
18 Cal.4th 349, 367–368.) The record does not disclose that counsel did not have a
tactical reason for failing to challenge Juror No. 11, whose answers and demeanor during
voir dire might have made counsel believe that in spite of his connection to Officer
Joseph, he was a favorable juror for Clay’s defense. “Counsel, who were also able to
observe [the juror]’s personality and demeanor, might have formed the impression that,
despite his views, this panelist would indeed perform fairly, and would not be a liability
as a sitting juror.” (People v. Mai (2013) 57 Cal.4th 986, 1046.) On this record, it was
not a “‘demonstrable reality’” that Juror No. 11 could not perform his function (People v.
Holt (1997) 15 Cal.4th 619, 659), and we cannot say that any reasonable defense counsel
would have requested his removal.
       We also see no reasonable probability that the outcome of Clay’s trial would have
been different if Juror No. 11 had not been on the jury. Officer Joseph testified regarding
his interview at the police station with Laura, including her statement that her assailant
was uncircumcised, and refreshing his recollection with the police report. He also
testified regarding his interview with L., again refreshing his recollection by looking at
his summary. Defense counsel cross-examined him regarding the date that Laura stated
she was attacked and whether Laura had seen her attacker on prior occasions. She also
questioned Officer Joseph about whether L. said she was high when she was attacked and
whether she was “loaded most of the time,” to which he replied that she had been high a

                                              18
couple of the times that they interacted. Officer Joseph also confirmed that L. had told
him her attacker was Hispanic. Officer Joseph’s testimony supported two aspects of the
defense argument that the attacks happened but the assailant was not Clay: Laura said
the attacker was uncircumcised and Clay was circumcised; and L. had told Officer Joseph
that her attacker was Hispanic and Clay was black. If Juror No. 11 had a predisposition
to believe Officer Joseph’s testimony, that might have actually aided the defense. Clay
does not identify any way in which a belief that Officer Joseph was credible would have
prejudiced him, and we find no prejudice from defense counsel’s failure to challenge
Juror No. 11 on the record on direct appeal.
       Further, Clay was not deprived of his right to a fair trial by the presence of Juror
No. 11 on the jury. Clay relies upon People v. Tidwell (1970) 3 Cal.3d 62, 64, a death
penalty appeal in which the appealing defendant argued that the trial court erred in
denying motions for change of venue both before and after jury selection. The victims,
who were brutally murdered, included well-known members of a small community, and
“the press and public were apprised of virtually every detail in the investigation of the
crimes.” (Id. at p. 70.) In addition, “[t]he process of jury selection corroborated the
defense affidavits,” in one of which defense counsel averred that each time he referred to
his appointment in the case, he received rejoinders from “‘“I don’t envy you your
impossible job”’ to ‘“Why don’t they just turn them [the defendants] loose, we’ll take
care of them.”’” Another affidavit detailed a survey of 500 adults throughout the county,
which showed that the majority thought they knew a lot about the case and the vast
majority thought they would not be able to set aside their views and try the case fairly.
(Id. at pp. 66, 73.) After conducting “an independent review of all relevant circumstances
to determine whether a trial judge’s denial of a motion for a change of venue deprived
defendant of a fair . . . trial,” the court held “the trial judge in the instant case was
presented before voir dire with persuasive evidence that a fair trial could not be had in
Lassen County.” (Id. at pp. 68, 71.) The jury eventually selected included 10 people
who had discussed the case with others, eight who knew one or more witnesses, and four
who knew one or more of the victims. (Id. at p. 67.)

                                               19
       The trial judge also denied a motion for change of venue after jury selection was
complete. (People v. Tidwell, supra, 3 Cal.3d at p. 68.) Although all the jurors had
stated they would sit impartially, the court concluded: “Permitting a panel largely
composed of acquaintances of victims to adjudicate an accused’s guilt can only thwart
the policies which demand that sympathy play no part in a juror’s deliberations on the
issue of guilt [citations] and that evidence concerning the character of a victim generally
be excluded from the jury’s consideration,” and “the fact that jurors have known
witnesses as old friends infects the whole process of guilt adjudication.” (Id. at pp. 73–
74.) Our Supreme Court concluded: “‘It would be a judicial murder to affirm a
judgment thus rendered, when the reason of the people of a whole county was so clouded
with passion and prejudice as to prevent mercy, and deny justice,’” and reversed the
judgment, remanding for the trial court to determine where a fair trial could be had and to
transfer the case accordingly. (Id. at pp. 76–77.)
       In this case, we do not engage in de novo review of denials of motions for change
of venue in a sensational triple murder case in a small county, nor are we faced with a
jury comprised of individuals almost all of whom had discussed the case, eight of whom
knew one or more witnesses, and four of whom knew one or more of the victims. Clay
did not receive an unfair trial, as he has not “demonstrate[d] a ‘reasonable probability of
prejudice.’” (People v. Sanders (1988) 203 Cal.App.3d 1510, 1514.) In Sanders, the
trial court allowed a sworn juror who had been excused for cause to testify that he had
twice seen the defendant sell marijuana to his brother. (Id. at p. 1513.) The court of
appeal concluded that the entire jury’s “intimate association” with the former juror
witness during two days of voir dire, including additional time spent together in the hall
and in the jury assembly room, presented a reasonable probability of prejudice. (Id. at
p. 1515.)
       Juror bias “may be presumed only in ‘extreme’ or ‘extraordinary’ cases.” (Fields
v. Brown (9th Cir. 2005) 431 F.3d 1186, 1196.) No extraordinary circumstances as were
present in People v. Tidwell, supra, 3 Cal.3d 62 and People v. Sanders, supra, 203
Cal.App.3d 1510 exist here. Nothing in the record indicates that it is reasonably probable

                                             20
that allowing Juror No. 11 to hear the case prejudiced Clay and violated his right to a fair
trial.
         B.     Counsel did not provide ineffective assistance in failing to move to
suppress the identifications.
         Clay argues counsel was ineffective in failing to file a pretrial motion to suppress
the four victims’ identifications of Clay. Clay raised this issue in his motion for new
trial. Clay was represented by four different counsel through trial: Maryetta Marks at the
preliminary hearing on December 7, 2009; appointed counsel Vincent Oliver from
December 29, 2009 to February 24, 2010; private counsel Alec Rose from February 24,
2010 to November 16, 2010; and appointed counsel Sue Brown from November 16, 2010
through trial. None filed a motion to suppress the identifications.
         On appeal, Clay describes the preliminary hearing and trial testimony about the
various identifications, and maintains that it was ineffective assistance not to file a
suppression motion because Clay “stood out in the six-pack lineup, the photographic
identifications and live lineup was held on the same day for Linda and L., Linda and L.
viewed the live lineup in the same room together, the individuals in the live lineup lacked
similarity, and attention was directed to [Clay] during Laura’s live lineup.” Clay bears
the burden to establish that the identification procedures were unduly suggestive.
(People v. Ochoa (1998) 19 Cal.4th 353, 412.) To determine whether an extrajudicial
identification is so unreliable as to violate due process, the court ascertains “(1) ‘whether
the identification procedure was unduly suggestive and unnecessary,’ and if so, (2)
whether the identification was nevertheless reliable under the totality of the
circumstances.” (People v. Wash (1993) 6 Cal.4th 215, 244.) Beyond repeating trial
testimony, Clay provides almost no additional analysis to explain how the procedures
were unduly suggestive or that the identifications were thereby unreliable. We
nevertheless briefly address his general contentions.
         Whether Clay stood out in the six-pack photographic lineup was thoroughly
examined at trial. Detective Cross testified about her compilation of the lineup,
explaining that she searched the database based on gender, ethnicity, and age for pictures

                                               21
similar to Clay’s. She then looked for pictures with similar facial features, facial hair,
similar background and format, and similar clothing. Clay was in position number 5,
randomly selected by a computer; another suspect was in position number 6. He was
lighter than the men in the other photographs. Clay also had facial hair on his upper lip
and chin; the individuals in position numbers 1, 2, 3, and 4 had hair around their chin
area. The hair on the individuals in position number 4 and position number 5 (Clay) was
similar.
       Detective Cross also testified that when she showed the photographic lineup on
separate occasions to D. and Linda, she read them the standard admonition and handed
them the lineup face down, without suggesting in any way which photograph they should
pick out. Linda identified Clay, and D. identified Clay and another individual in position
number 2. Laura testified that (like D.) she struggled to choose between Clay’s
photograph and the photograph in position number 2. Detective Contreras testified that
he gave L. the standard admonition, placed the lineup face down on the table for her to
turn over, and when L. did so she immediately identified Clay.
       “[T]here is no requirement that [individuals] in a lineup . . . be . . . nearly identical
in appearance.” (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) “Minor
differences in facial hair . . . [do] not make the lineup suggestive.” (People v. Johnson
(1992) 3 Cal.4th 1183, 1217.) “The question is whether anything caused defendant to
‘stand out’ from the others in a way that would suggest the witness should select him.”
(People v. Carpenter (1997) 15 Cal.4th 312, 367, superseded by statute on another
ground as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106–1107.)
       The testimony at trial, and our own review of the photographic lineup as
introduced in the trial court, persuades us that defense counsels’ failure to file a
suppression motion as to the photographic lineup did not fall below an objective standard
of reasonableness. We see no “very substantial likelihood of irreparable
misidentification” in the photographic lineup (People v. Contreras (1993) 17 Cal.App.4th
813, 819), especially as two of the four victims identified Clay’s and another individual’s
photograph as possibilities, indicating that Clay’s photograph did not stand out from the

                                              22
others so as to make the photographic lineup unduly suggestive. Further, we see nothing
in the procedure as described at trial to support a conclusion that the officers showing the
victims the photographic lineups suggested that they choose Clay’s photograph. Counsel
could reasonably have concluded that moving to suppress was futile.
         As to the live lineup, we do not see (and Clay does not explain) how it was unduly
suggestive to show Linda and L. the live lineup on the same day as they saw the
photographic lineup. Linda and L. were in the room together at the live lineup, but
Detective Koman testified that they were admonished not to speak while the lineup was
underway, and he was able to observe the women and saw that they made no attempt to
speak to each other. When one woman became emotional, Detective Koman asked her to
leave the room; she had done nothing to indicate which individual she had chosen. As
for whether the individuals in the live lineup lacked similarity, Detective Koman testified
that he understood the individuals selected were meant to be similar in some respects (so
that the suspect did not obviously stand out), it was his responsibility to make sure the
lineup was fair, and he believed it was fair. Beyond requiring that the defendant not
stand out from the others, “case law does not require that a lineup contain persons
resembling the defendant in appearance.” (People v. Cook (2007) 40 Cal.4th 1334,
1355.)
         Finally, Clay’s claim that undue attention was directed to Clay during Laura’s live
lineup is not supported by the record. When she testified at the preliminary hearing,
Laura did not remember that Clay was asked to open his eyes. Defense counsel and a
defense investigator testified that Clay was asked to open his eyes (although counsel did
not include this in her objections to the lineup), but Detective Telis testified that a
photograph of the lineup showed an individual in a different position with his eyes
closed, and no words were spoken to the lineup other than asking each individual to say,
“‘You ain’t getting this money tonight.’” In any event, Linda vacillated between Clay
and another individual.
         As with the photographic lineups, counsel reasonably could have concluded that it
would be futile to file a motion to suppress the live lineup identifications. Instead, trial

                                              23
counsel strongly argued misidentification at trial, including the earlier counsel’s
objections to Linda and L.’s live lineup. “The circumstances of the identification were
disclosed to the defense, they were the subject of thorough cross-examination, and the
jury was able to evaluate the reliability of [the witnesses’] identification by comparing
the photographs . . . to defendant’s current appearance at trial. As the [U.S. Supreme
Court] stated . . . [citation], ‘[E]vidence with some element of untrustworthiness is
customary grist for the jury mill. Juries are not so susceptible that they cannot measure
intelligently the weight of identification testimony that has some questionable feature.’”
(People v. Alexander (2010) 49 Cal.4th 846, 903.) Challenging the identifications during
trial to plant a reasonable doubt as to Clay’s guilt would have been a reasonable tactical
choice, given that counsel could reasonably have believed there was only a slim chance
of suppressing the victims’ identifications outright.
       C.     Counsel did not provide ineffective assistance in not impeaching victim
witnesses for their crimes of moral turpitude.
       Before trial began, the prosecutor provided a summary of the victim witnesses’
crimes of moral turpitude to defense counsel, who said she planned to impeach L. At
trial, defense counsel impeached L. regarding her crimes of moral turpitude (convictions
for prostitution), and on direct examination D., who was in custody, admitted she had
many convictions for prostitution and drug related crimes. Laura admitted on direct
examination that at the time of the attack she was working as a prostitute and using crack
cocaine. Defense counsel made multiple attacks on each victim’s credibility based on
crimes of moral turpitude, and Clay does not provide any evidence of what additional
crimes of moral turpitude defense counsel should have used for impeachment. We
therefore are unable to assess whether defense counsel fell below an objective standard of
reasonableness in not impeaching the witnesses further.
II.    The trial court’s evidentiary rulings were harmless error.
       A.     Linda’s 2011 sexual assault accusation
       Clay argues that the trial court erred when it excluded evidence of unrelated sexual
assault accusations by Linda.

                                             24
       Before trial began, the prosecutor advised the court she wished to “exercise our
right under Evidence Code section 782 with respect to the witness Linda . . . who had
filed other reports involving rape allegations.” A written motion by the defense and an
affidavit were required and none had been filed. The prosecutor made the same objection
regarding L. The court agreed that Evidence Code section 782 required a written motion
and stated it would exclude the evidence. Defense counsel did not object.
       During Linda’s testimony the next day, defense counsel stated she wanted to ask
Linda questions about the police report “because it’s not to show sexual consent on a
prior occasion. It’s not really to show sexual anything except to show credibility,
because she says that she’s raped, she’s found in an alley.” Counsel promised to give the
court the police reports, and stated that Linda had been taken to the hospital and was
examined, and there had been no findings of sexual abuse, contending: “[i]t’s not [an
Evidence Code section] 782 material when it’s for credibility and not for consent.” The
court responded, “The court is mindful that whether there are actual findings by medical
professionals with regard to sexual contact, those findings are often inconclusive or non-
existent.” Counsel replied that the report says “no finding,” and the court continued,
“Well, that’s oftentimes the case, there are no findings, particularly when someone is
extremely sexually active. But I will review those.”
       The same day at a sidebar, the court noted defense counsel had provided the court
with “documentation that . . . chronicles an incident in 2011,” apparently including
medical documents. Defense counsel stated that she wished to show that Linda reported
she was sexually attacked and that the medical findings contained “no sexual findings,”
and “[she has] the person, the nurse. She is the one that interviewed [Linda].” The
prosecutor replied that she had already objected based on the lack of a written defense
motion under Evidence Code section 782. The court stated, “I don’t need to get there.
Stop. There has been no written motion.” Defense counsel argued, “It’s for credibility,
that there was no sexual act.” The prosecutor responded, “[Evidence Code section] 782
is precisely for that purpose, to attack someone’s credibility based on unrelated sexual



                                            25
conduct.” Defense counsel stated she would give the judge “the case on it,” and the court
declined to make a ruling on the spot.
       Two days later, the trial court ruled that it would not admit the report of a sexual
assault and the medical records. The court had read People v. Fontana (2010) 49 Cal.4th
351 (Fontana), and Evidence Code section 782 had not been complied with. Defense
counsel argued that under Fontana, “[Evidence Code section] 782 applies if you’re
offering specific evidence of a victim’s specific conduct to show she consented. [¶] The
point that I’m making is that she wasn’t raped. There wasn’t sexual contact. Not that she
consented to any conduct,” and the statute therefore did not apply. The court replied,
“you and I respectfully disagree as to the applicability of [Evidence Code section] 782 as
to this factual circumstance.” Neither the report of sexual assault nor the medical
findings is in the record.
       “Evidence of the sexual conduct of a complaining witness is admissible in a
prosecution for a sex-related offense only under very strict conditions.” (Fontana, supra,
49 Cal.4th at p. 362.) Evidence Code section 1103, subdivision (c)(5), provides that the
rule barring evidence of a victim's sexual conduct with persons other than the defendant
does not “make inadmissible any evidence offered to attack the credibility of the
complaining witness as provided in [Evidence Code] Section 782.” (Evid. Code, § 1103,
subd. (c)(5).) Evidence Code section 782, subdivision (a), provides: “if evidence of
sexual conduct of the complaining witness is offered to attack the credibility of the
complaining witness,” the defense shall make a written motion accompanied by an
affidavit under seal stating the offer of proof, and the court shall order a hearing if the
offer of proof is sufficient. If after the hearing the court concludes that the evidence is
relevant under Evidence Code section 780 (regarding credibility of a witness) and the
probative value of the evidence outweighs the danger of undue prejudice under Evidence
Code section 352, the court may make an order stating what evidence the defense may
introduce. The special procedure for evidence of sexual conduct is designed to protect
victims of sexual assault and molestation “from ‘embarrassing personal disclosures’



                                              26
unless the defense is able to show in advance that the victim’s sexual conduct is relevant
to the victim’s credibility.” (People v. Bautista (2008) 163 Cal.App.4th 762, 782.)
       “Evidence of a prior false report of . . . rape is relevant to the credibility of the
victim. [Citations.] Prior rape complaints do not reflect upon credibility unless proven to
be false. [Citations.] The trial court has discretion under Evidence Code section 352 to
exclude evidence of prior reports of sexual assault if proof of the falsity of the prior
complaint ‘would consume considerable time, and divert the attention of the jury from
the case at hand.’” (People v. Miranda (2011) 199 Cal.App.4th 1403, 1424, fn. omitted.)
The evidence of a false report by Linda was not presented as evidence of sexual conduct
but “‘of the fact that she stated as true something that was false,’” and would have been
admissible as relevant to Linda’s credibility. (People v. Tidwell (2008) 163 Cal.App.4th
1447, 1456 (Tidwell).) Evidence Code section 782 was thus inapplicable, as the evidence
was of a false complaint, not of Linda’s “prior sexual conduct or willingness to engage in
sexual activity. Under these circumstances, the language of [Evidence Code] section 782
does not apply and the procedure mandated by [Evidence Code] section 782 is
unnecessary.” (Ibid.) The trial court erred in considering the evidence of a false report as
evidence of sexual conduct automatically subject to the stringent procedure in Evidence
Code section 782, subdivision (a), and in excluding the evidence because defense counsel
did not follow that procedure.
       “However, [Linda’s] prior rape complaint[] would have no bearing on her
credibility unless it was also established that th[e] prior complaint[ was] false.” (Tidwell,
supra, 163 Cal.App.4th at p. 1457.) “[I]f the trier of fact found it true that [the victim]
falsely stated that [she had been raped], this statement would be relevant to the trier of
fact’s determination of her credibility on defendant’s culpability. The evidence should
have been admitted.” (People v. Franklin (1994) 25 Cal.App.4th 328, 336.)
       Although the evidence was not subject to the strictures of Evidence Code section
782, we also must consider whether it would have been an abuse of discretion to exclude
the evidence as more prejudicial than probative under Evidence Code section 352.
(Tidwell, supra, 163 Cal.App.4th at pp. 1456–1457.) We conclude that it would not have

                                               27
been an abuse of discretion to exclude the evidence on that basis, because it was weak on
the issue of Linda’s credibility and would have required undue time to prove falsity at
trial.
         Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.” While the trial
court did not make an explicit finding under Evidence Code section 352, the court stated
that medical exams regarding sexual conduct often resulted in findings that are
“inconclusive or non-existent . . . [¶] . . . [¶] . . . particularly when someone is extremely
sexually active.” Although Linda testified she was not working as a prostitute the day
she was assaulted, in her opening statement the prosecutor told the jury that all the
victims either had been convicted of prostitution or were engaged in prostitution around
the time of the attacks. In stating its doubt that the medical examination’s findings were
proof that Linda made a false report of rape, the trial court indicated that it considered the
probative value of the evidence to be low.
         In addition, from the record before us the defense would have attempted to prove,
through the medical report and testimony, that at the time of the 2011 report Linda had
not engaged in sexual activity at all, not that she had engaged in consensual activity and
called it rape. Admitting the evidence and allowing the defense to litigate whether Linda
did or did not engage in sexual activity in 2011 would have resulted in a consumption of
considerable time, including at the very least testimony regarding the 2011 incident,
questioning and cross-examination of Linda regarding the incident and the medical
records, and apparently testimony by the nurse who interviewed Linda. As in Tidwell,
supra, 163 Cal.App.4th 1447, “it is not readily apparent that th[e] prior complaint[] [was]
false,” and “‘[t]he value of the evidence as impeachment depends upon proof that the
prior charges were false. This would in effect force the parties to present evidence
concerning . . . sexual incidents which never reached the point of formal charges. Such a
proceeding would consume considerable time, and divert the attention of the jury from

                                              28
the case at hand.’” (Id. at p. 1458.) In light of the weakness of the evidence that Linda
made a false report, it was within the trial court’s discretion to conclude that its probative
value was outweighed by “the confusion of the jury and consumption of time it would
have engendered for the parties to embark on the task of litigating the truthfulness of [the
victims’ former] complaints.” (Ibid.)
       We also see no miscarriage of justice in excluding the evidence. “‘Evidence Code
section 354 provides inter alia that an erroneous exclusion of evidence shall not cause a
judgment to be reversed unless the error complained of resulted in a miscarriage of
justice and it appears of record that: “(a) the substance, purpose, and relevance of the
excluded evidence was made known to the court by the question asked, an offer of proof,
or by any other means; [¶] (b) The rulings of the court made compliance with
subdivision (a) futile; or [¶] (c) the evidence was sought by questions asked during
cross-examination or recross-examination.”’” (People v. Franklin, supra, 25 Cal.App.4th
at p. 336.) We see no miscarriage of justice. Linda’s credibility was already at issue. In
opening argument, the prosecutor told the jury that she had been a prostitute. Linda
testified that she was forgetful, that her attention deficit disorder affected her memory,
and she took medication for schizophrenia. Defense counsel’s expert testified that even
with medication, schizophrenia would impact cognitive functioning and perception. In
closing argument, the prosecutor addressed the credibility of all the victims: “[T]hey are
prostitutes from the skid row area, and they’ve got mental health issues, and they’ve got
drug issues . . . . [¶] . . . [¶] . . . [L]et’s get past whatever biases you may have or you
may have had about whether or not you are going to buy or believe these women and take
away any biases and judge the case on its merits.” Defense counsel argued in closing that
Linda suffered from mental illness, and was not reliable or credible. “A trial court has
discretion to exclude impeachment evidence if it is collateral, cumulative, confusing, or
misleading. [Citation.] The excluded evidence, although admissible and probative, was
cumulative. Therefore, although the court erred in excluding the evidence, the error was
harmless.” (Id. at p. 337.)



                                               29
        As for Clay’s contention that the exclusion of the evidence violated his
constitutional rights, he has forfeited this claim by his failure to object on those grounds.
(People v. Riggs (2008) 44 Cal.4th 248, 304; People v. Riccardi (2012) 54 Cal.4th 758,
801.)
        B.     Evidence that sexual assaults by cabdrivers stopped after Clay’s arrest
        Clay argues that the trial court abused its discretion in admitting Officer Johnson’s
testimony that a computer crime analysis showed that after Clay’s arrest, there were no
reports of sexual assaults on a woman by a taxicab driver in the area. Clay’s counsel
objected to Officer Johnson’s testimony as hearsay, and the trial court overruled the
objection. As above, Clay has forfeited his constitutional claims by his failure to object
on those grounds.
        Officer Johnson testified that crime reports taken by patrol officers or detectives
were given to the police department’s record unit, where the record clerks coded the
reports using “modus operandi [(M.O.)] codes of what exactly occurred,” including
victim and witness information, vehicles, weapons, and specifics of the crime, and gave
them a number. At her direction, a crime analysis was run in the database from the date
of Clay’s arrest on January 21, 2009 to August 13, 2012. Officer Johnson had the
searcher use parameters “much broader” than an M.O., including the downtown area
around skid row, sexual assault or kidnapping, outside or taxicab location, and a black
male suspect between 5 feet 7 inches and 6 feet tall, 35 to 45 years old. Of the 56 hits
that resulted, none involved a taxicab or a van. In rebuttal closing argument (again under
objection), the prosecution stated: “[S]ince his arrest in January of 2009, there hasn’t
been any other sexual assaults involving a woman in a taxi or a taxi van. What are the
odds of that? For three and a half years we haven’t heard from another prostitute in the
skid row area, even though during this timeframe between July or August of 2008 to
about November 29th you have four. That points to his guilt.”
        Clay argues that Officer Johnson’s testimony was irrelevant, but this argument is
forfeited, as Clay did not object to the evidence at trial on relevance grounds. (People v.
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 409.) We note that even assuming the

                                              30
data reliably reflected an absence of similar crimes following Clay’s arrest, there exists a
myriad of explanations for that fact having nothing to do with Clay: the real perpetrator
died, moved, or wanted the police to believe Clay was responsible; subsequent crimes
were unreported; crimes were unreported until later (as had been some of the attacks in
this case); the survey area was inadequate; the survey terms were too narrow; and others
too numerous to describe. Even assuming the evidence had some marginal relevance,
however, it was indamissable as hearsay.
       In People v. Hernandez (1997) 55 Cal.App.4th 225 (Hernandez), the prosecution
in Hernandez’s trial for six violent sex offenses against two victims hoped to use in its
case in chief a computer search to “show there had been no similar crimes in the
geographic areas where the attacks against the two victims in this case had occurred,
before Hernandez moved to California and after his arrest.” (Id. at p. 228.) Hernandez
objected to the evidence and the trial court held an evidentiary hearing, at which a crime
analyst testified that she searched on a San Diego Police Department (SDPD) computer
system called “Sherlock,” an in-house data base. Detectives investigating sex crimes
would put very specific information in a sex crimes log; “in turn, that log is given to us
and we enter it, give it to a clerical support person in the crime analysis unit who then
enters each item into the Sherlock system” within three to four days after a reported sex
crimes incident. The crime analyst testified she did not know whether there might be any
sex crimes not assigned to detectives that would not be entered into Sherlock, or whether
there might be crimes reported to the sheriff that would not be included. (Id. at pp. 228–
229.) The programs were limited to crimes in the SDPD’s jurisdiction, and included
separate data base files on homicides and “‘unique descriptors of suspects.’” The SDPD
used it daily. (Id. at p. 229.)
       To access the information on Sherlock, a crime analyst would pick variables and
define criteria, and then selected those from the system; variables contained in Sherlock
included physical descriptions (height, race, sex), variables concerning the crime (date,
time, location, weapon), and M.O.’s like binding or taping. For Hernandez’s case, the
analyst had prepared a diagram showing the two police beats where the crimes in issue

                                             31
occurred, and then searched for those areas for sex crimes occurring between January
1994 and June 1995, with “‘suspects that were not Black’” and a “‘stranger’” as
perpetrator. The search yielded eight incidents, which she reviewed and narrowed down
(based on place of attack, suspect description, and the M.O) to two cases, which were the
cases in which Hernandez was charged. She eliminated the others because they did not
match the details of the search. (Hernandez, supra, 55 Cal.App.4th at pp. 229–230.)
       The original information for Sherlock’s data came from initial police reports by
the investigating officer, who would turn the report over to the sex crime unit, where the
information would be transferred by clerical support (or by the detective, who had editing
authority as to the particular case in the log) to a log. The information was identified by
specific incident, location, time, and a synopsis including key words regarding the actions
of the suspect or victim, victim actions or statements, a description of the assailant, and
any modifications. After the log was complete it would be given to the analyst’s unit for
crime analysis and inputting into Sherlock. The information entered into Sherlock “is not
‘exactly what’s told to the original reporting officer. It’s either . . . what’s in the 911
tape, or . . . what’s told to the reporting officer, or . . . it’s an edited version of what is told
to the sex crimes detective.’” (Hernandez, supra, 55 Cal.App.4th at pp. 230–231.) The
analyst did not know whether someone periodically checked to make sure all sex crimes
in a beat were included in Sherlock. (Ibid.) A crime even just a block away from the two
beats she searched for would not be included in the information she retrieved, and she did
not rely entirely on the computer, also looking into sex crimes files and handwritten
police reports to check on variables she had not included in her search on Sherlock. (Id.
at p. 231.)
       Over a continuing defense objection, the analyst testified regarding the process by
which information was put into Sherlock from the sex crimes log, and how it was used to
search for relevant data, including M.O. (Hernandez, supra, 55 Cal.App.4th at p. 236.)
She explained how during the time range and in the two beats she had searched for a
suspect who was not black and who was a stranger to the victim, and described the search
results (eight cases, including the two instant crimes). (Id. at pp. 236–237.) The analyst

                                                32
testified as to the relevant factors of the six crimes she had excluded, and pointed out that
the remaining two crimes were charged against Hernandez and were the only crimes
fitting the M.O. during the crime period. (Id. at p. 237.)
       Hernandez’s defense was mistaken identity, based on an expert’s testimony about
the difficulty with identifications in poor lighting and stressful circumstances (the attack
on one victim occurred around sunset), and testimony regarding inconsistencies in the
victims’ identifications. (Hernandez, supra, 55 Cal.App.4th at p. 237.) The prosecutor
referred repeatedly to the analyst’s testimony in closing, arguing “the only logical
inference” from her testimony that there were no similar crimes except when Hernandez
was in the area and “after he had been in custody” was that “he must be the one who
committed the charged crimes in this case.” (Id. at p. 238.)
       The court of appeal concluded that the trial court abused its discretion in admitting
the crime analyst’s testimony regarding her search and analysis of Sherlock data.
(Hernandez, supra, 55 Cal.App.4th at p. 240.) Although computer data could at times be
admitted as a business record, the issue was “the basic question of whether the sources of
information for the data base of Sherlock’s system ‘were such as to indicate its
trustworthiness.’ (Evid. Code, § 1271, subd. (d).)” Police reports were not admissible as
business records because they “are or might be based upon the observations of victims
and witnesses who have no official duty to observe and report the relevant facts
[citations]. The data base in Sherlock was taken from the sex crimes log prepared from
the purported ‘relevant facts’ from original police reports, whatever those may be.” Such
information did not become reliable simply because it was “transferred to a computer,”
and there was “multiple hearsay” in the database. (Hernandez, at pp. 240, 241.) The
error in admitting the testimony was prejudicial, as it gave a false aura of infallibility to
the identification of Hernandez, the analyst was presented as an expert without being so
qualified, and the prosecutor stressed her expertise in closing argument. (Id. at p. 241.)
The analyst’s testimony was analogous to profile evidence, whose “thrust . . . [is] to show
the defendant ‘fit’ a certain ‘profile.’” “‘Evidence of other similar crimes linked to no
one at all is clearly inadmissible to prove any element,’” even when there is a proximity

                                              33
of time and place. (Id. at p. 242.) Here there was a “‘vicious circle’” at work in a trial
where identity was the issue, and “the prosecution via the analyst’s testimony was using
evidence of other crimes not yet linked to Hernandez to prove his identity and to provide
that link.” (Id. at p. 243.) “Under the circumstances of this case, where the outcome of
the trial turned on the credibility of the two victims, whose descriptions of their attacker
varied before and at trial and contained many inconsistencies and contradictions, we
cannot say the trial court’s error in admitting the analyst’s testimony was harmless.”
(Ibid.)
          As in Hernandez, supra, 55 Cal.App.4th 225, here the evidence was used to prove
there had been no similar sexual assaults in the downtown skid row area involving a taxi
or van after Clay’s arrest. The computer data that had been searched was taken from
police reports by the LAPD records unit, where clerks coded the information based on
M.O. codes. The details included information about the victims and suspects, vehicles,
and specifics of the crime. Officer Johnson testified that the search itself did not use an
M.O. but less specific search parameters, which included three areas of south central and
downtown Los Angeles, sexual assaults, kidnapping, outside or taxicab, and a black
suspect 35 to 45 years old.
          The LAPD database here, as described by Officer Johnson, was akin to the SDPD
log in Hernandez, supra, 55 Cal.App.4th 225 as it existed before it was edited by the sex
crimes unit and put into Sherlock. The database created in the LAPD records unit was
not turned over to another unit and reentered and edited into a database like Sherlock, but
as with the SDPD log and the Sherlock data base created from it, the information in the
LAPD database was or might be based on the observations of individuals such as
witnesses and victims, who had no official duty to observe and report the details. While
some aspects of the police reports (fact and date of report, time and date made, nature of
crime investigated, and names of witnesses) may have been admissible as official records
based on the observations of public employees, such things as victim and witness
descriptions of the suspect were not. (Id. at p. 240; People v. Baeske (1976) 58
Cal.App.3d 775, 780–781; Evid. Code, § 1280.) The additional layer of hearsay in

                                             34
Hernandez, added by the input and editing of the log as it was entered into Sherlock, does
not exist in this case, but hearsay is hearsay, and a single layer is enough to make the
evidence inadmissible. The search of the LAPD database, which produced a result
offered to show that no similar crimes were committed after Clay was arrested, still
served as “‘pseudo-scientific’ testimony,” which elevated to truth hearsay recorded in a
computer system in a prosecutorial effort to bolster the credibility of the victims’
accounts. (Hernandez, at p. 244.)
       It was an abuse of discretion to allow the testimony regarding the results of the
computer search. Nevertheless, we conclude that admitting the testimony was harmless
error. The evidence of identity here was stronger than that in Hernandez, supra, 55
Cal.App.4th 225, with two victims firmly identifying Clay as the assailant before and
during trial and two who identified Clay as one of two possible perpetrators. The
testimony of all four victims showed a similar pattern and similar behavior by the
assailant. Officer Johnson’s testimony regarding the computer search was brief, and
there was no evidence that she reviewed other sources of hearsay such as handwritten
police reports (as did the crime analyst in Hernandez, at p. 231). The search run in the
LAPD database for the period after Clay’s arrest did not use the very specific M.O.
information, but broader parameters, lessening the likelihood (present in Hernandez) that
the jury would view it as profile evidence. Finally, the search results were not central to
the case against Clay. We conclude that it is not reasonably probable that without the
search results, Clay would have been acquitted.
       Clay also argues that the admission of the testimony regarding crimes occurring
after his arrest impermissibly referred to his custody status. He does not identify any
direct reference to his custody status, instead arguing that the presentation of the evidence
that there were no similar crimes in the area after his arrest and up to the time of trial
necessarily suggested he was in custody thereafter. Requiring a defendant to wear jail
clothing during trial impairs the presumption of innocence, and other “information,
having the same tendency to remind the jury that a defendant is in custody, might have a
similar effect.” (People v. Bradford (1997) 15 Cal.4th 1229, 1336.) Here, the

                                              35
prosecution “did not refer expressly to the circumstance that defendant was in custody,”
and Officer Johnson’s brief testimony “does not create the potential for the impairment of
the presumption of innocence that might arise were such information repeatedly
conveyed to the jury.” (Ibid.) The evidence that there were no broadly similar crimes
after Clay’s arrest is equally consistent with a defendant who, although he does not
remain in custody after he is arrested for the conduct for which he is being tried, sensibly
does not repeat the same criminal behavior while awaiting trial. Even if the evidence did
indirectly refer to his custody status, as we concluded above, it is not reasonably probable
that a result more favorable to Clay would have been reached if the evidence had been
excluded.
       Clay argues that the prosecutor committed misconduct by commenting in rebuttal
argument that the absence in the database of similar sexual assaults involving a woman in
a taxi or taxi van after Clay’s arrest “points to his guilt,” characterizing the remarks as
referring to facts not in evidence. Clay did not object on the ground of prosecutorial
misconduct and thus has forfeited this claim. (People v. Williams (2013) 56 Cal.4th 630,
672.) In any event, while a prosecutor who states facts not in evidence in argument to the
jury commits misconduct, the prosecutor referred to facts that were then in evidence; the
prosecutor’s statements did not “‘tend[] to make the prosecutor his own witness—
offering unsworn testimony not subject to cross-examination.’” (People v. Hill (1998) 17
Cal.4th 800, 828.) And although we concluded above the testimony to those facts should
not have been admitted, we also concluded that its admission was harmless error.
Similarly, we see no reasonable probability that Clay would have been acquitted in whole
or in part had the prosecutor not referred to the evidence in closing argument.
III.   Sufficient evidence supported Clay’s convictions.
       Clay argues that there was insufficient evidence that he was the person who
committed the crimes against Linda, L., Laura, and D. Our inquiry on review for
sufficiency of the evidence is to “determine whether the record evidence could
reasonably support a finding of guilt beyond a reasonable doubt.” (Jackson v. Virginia
(1979) 443 U.S. 307, 318 [99 S.Ct. 2781, 61 L.Ed.2d 560], fn. omitted.) We do not ask

                                              36
whether we believe that the evidence at the trial established guilt beyond a reasonable
doubt, but rather “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” (Id. at p. 319; People v. Johnson (1980) 26 Cal.3d 557,
576.) We “‘presume in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence,’” in light of the entire record. (Johnson, at p. 576.)
We do not reweigh the evidence or reevaluate the credibility of witnesses, but determine
whether substantial evidence supports the finder of fact’s choice between conflicting
evidence. (People v. Alexander (2010) 49 Cal.4th 846, 917.)
       A.     Count 1 (D.)
       Clay argues that D. never positively identified him and points to inconsistencies in
her testimony and her use of crack cocaine on the day of the incident. D. noticed that her
assailant had bite marks and scars on his hands, which looked like photographs of Clay’s
hands shown her at trial. She identified Clay and another individual in a photographic
lineup as looking like her assailant. She remembered that her assailant had gloves with
cut-off fingers, had rubbed oil on her buttocks, and had what he called a “Michael
Jordan” jacket. Gloves with cut-off fingers and aloe vera gel were found in Clay’s taxi,
and a Michael Jordan jacket was found in his home.
       D.’s identification of Clay was inconclusive, but the weight to give her testimony
is to be determined by the jury. (People v. Elwood (1988) 199 Cal.App.3d 1365, 1372.)
The same is true of the circumstantial evidence of the items found in Clay’s cab and his
home. (Id. at pp. 1372–1373.) An identification of the defendant need not be positive;
testimony that a defendant “‘looks like’” the defendant has been held sufficient. (People
v. Wiest (1962) 205 Cal.App.2d 43, 45.) “[U]nless the evidence of identity is so weak as
to constitute no evidence at all this court cannot set aside the decision of the trial court.”
(People v. Kittrelle (1951) 102 Cal.App.2d 149, 154.) Whether D.’s drug use made her
less than credible was for the factfinder to decide, and we cannot substitute our
evaluation of a witness’s credibility for that of the jury. (People v. Ochoa (1993) 6



                                              37
Cal.4th 1199, 1206.) The identification evidence was sufficient to support Clay’s
conviction on count 1.
       B. Count 2 (L.)
       L. identified Clay in a photographic lineup, in a live lineup, and at trial as her
assailant. “Identification of the defendant by a single eyewitness may be sufficient to
prove the defendant’s identity as the perpetrator of a crime.” (People v. Boyer (2006) 38
Cal.4th 412, 480.) GPS records were consistent with her account of Clay’s movements.
The evidentiary conflicts pointed out by Clay, and what he characterizes as “problems
with her credibility,” were for the jury to resolve, and we cannot second-guess their
decision to convict Clay on count 2. The evidence was sufficient to support Clay’s
conviction on count 2.
       C.     Counts 3, 4, 5, and 6 (Linda)
       Linda also identified Clay in a photographic lineup, a live lineup, and at trial as the
man who assaulted her. The identification is sufficient evidence, and as with the other
victim witnesses, her credibility was for the jury to determine. Substantial evidence
supports Clay’s convictions on counts 3, 4, 5, and 6.
       D.     Count 7 (Laura)
       Laura identified Clay as one of two men that could have been her assailant in the
photographic lineup; in the live lineup, she identified Clay and another individual. She
identified Clay at trial. While she stated her assailant was uncircumcised, and medical
records were introduced by the defense to show that Clay was circumcised, this conflict
in the evidence (as with other conflicts in her identification) was for the jury to resolve,
as was Laura’s credibility as a witness. We will not reweigh the evidence. Substantial
evidence supported Clay’s convictions.
IV.    We need not address the motion for a new trial.
       Clay lists 31 issues he raised in his motion for a new trial, and refers to his
addendum to that motion in which he raised 50 additional issues. He then states that he
understands the standard of review to be an abuse of discretion, and states without any
analysis that the trial court abused its discretion when it denied his new trial motion.

                                              38
“[W]hat is missing is any coherent argument why the . . . court should have ruled
otherwise regarding [the new trial motion]. Thus, we need not say anything more about
the matter.” (In re S.C. (2006) 138 Cal.App.4th 396, 409.) Clay has forfeited this claim
of error. (Id. at p. 410.)
V.     The cumulative effect of the errors does not require reversal.
       We concluded above that the trial court erred in excluding evidence of Linda’s
prior rape complaint under Evidence Code section 782, and in admitting the evidence of
the LAPD computer search for similar crimes after Clay’s arrest. In both instances, we
also concluded the errors were harmless. The cumulative effect of those errors does not
mandate reversal.
VI.    The trial court must resentence Clay on remand.
       Clay argues, and the respondent agrees, that the trial court erred in sentencing him
to eight years on count 7 (attempted forced oral copulation of Laura). Section 288a,
subdivision (c)(2)(A) provides for a three, six, or eight year sentence, and section 664
states that one-half the sentence should be applied for an attempted offense. The
maximum full term was therefore four years. Further, section 1170.1, subdivision (a),
provides that the term for each consecutive offense is one-third of the middle term of
imprisonment prescribed for each other felony conviction for which “a consecutive term
of imprisonment is imposed.” The middle term for forcible oral copulation is six years,
and for attempted oral copulation would be three years. One-third of that sentence would
be one year. Although section 667.6, subdivision (c) mandates a full, separate and
consecutive term for each crime involving separate victims, that section does not apply to
attempted crimes. (People v. Le (1984) 154 Cal.App.3d 1, 10–11.) The sentence for
count 7 should be one year.
       Clay argues that he is entitled to conduct credits, although he received none.
While a conviction of certain offenses and two or more prison terms for prior convictions
would bar Clay from earning conduct credit (§ 2933.5, subd. (a)(1)), the record does not
reflect that Clay had served any prior prison terms. He therefore may be eligible for
conduct credit under section 2933.1, which states that an individual (such as Clay)

                                            39
convicted of a felony listed in subdivision (c) of section 667.5 shall accrue no more than
15 percent of work time credit, as defined in section 2933. On remand, the trial court
shall determine if Clay is eligible for conduct credits and, if so, how much conduct credit
he is entitled to under sections 2933.1 and 2932.
                                      DISPOSITION
       Eric Lamont Clay’s sentence on count 7 is vacated and the matter is remanded for
resentencing for the trial court to enter a sentence of one year. The trial court shall
determine whether Clay is eligible for conduct credit and, if so, shall modify the
sentencing minute order and the judgment to reflect the amount. The superior court is
directed to prepare an amended abstract of judgment reflecting these modifications and to
forward a copy to the Department of Corrections and Rehabilitation. As modified, the
judgment is affirmed.
       NOT TO BE PUBLISHED.


                                           JOHNSON, J.


We concur:


              ROTHSCHILD, P. J.


              CHANEY, J.




                                             40
