Filed 8/2/13 P. v. Aknin CA1/4
Received for posting 8/6/13
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A130256
v.
JEAN CLAUDE AKNIN,                                                   (San Mateo County
                                                                     Super. Ct. No. SC067512)
         Defendant and Appellant.


                                                       I.
                                                 INTRODUCTION
         Defendant Jean Claude Aknin was convicted by jury of forcible rape, assault with
intent to commit rape, and related charges and enhancements. In this appeal, he makes
two principal arguments. First, he argues that his trial counsel was ineffective for failing
to move to suppress certain evidence before trial and for failing to object to some
testimony and alleged prosecutorial misconduct. Second, he argues that the evidence is
insufficient to support the rape conviction. We reject these arguments, but we agree with
the parties that the conviction of assault with intent to commit rape must be reversed
because the crime is a lesser included offense of rape. We also agree with the People that
the trial court erred in sentencing and that Aknin‟s sentence must be corrected.1


         1
        Aknin also filed a petition for a writ of habeas corpus (No. A138091), asserting
claims of ineffective assistance of trial counsel and prosecutorial misconduct. We
address that petition in a separate order filed concurrently herewith.


                                                             1
                                       II.
                             FACTUAL AND PROCEDURAL
                                  BACKGROUND
A.     The Facts
       The parties dispute many facts, but we begin by discussing some that are
uncontroverted. After work on the evening of August 21, 2008, Aknin went out to eat
and drink. According to him, he drank the equivalent of about seven beers over six
hours. When he was finished, he asked a bartender to call a cab, and when the cab
arrived he told the driver that he wanted to find some girls and party.
       A.F. was working as a prostitute on the streets of Redwood City that evening. She
worked for a pimp who went by the name of “Gorilla.” The cab driver pointed A.F. out
to Aknin and told him that she was “ „a girl who will party with you.‟ ” The cab pulled
over, and Aknin and A.F. agreed on a price for sex.
       Aknin asked the driver to take them to the Garden Motel on Broadway. No rooms
were available. According to A.F., Aknin declined an invitation to use a room she had
rented in a different motel. The two then walked from the Garden Motel to a nearby 7-
Eleven, and A.F. used Aknin‟s cellular phone outside of the store. It is at this point that
their stories diverge.
       A.F. testified that Aknin became aggressive, and she told him that she wanted to
end their association. She stated that she started to walk away, but she was then grabbed
from behind, dragged into an alley, and choked. She testified that she lost consciousness
and, when she came to, found herself naked from the waist down. She stood up and
yelled for help. She does not recall having any type of sexual relations with Aknin, and
she does not know how her pants were removed. She was uncertain if she had been
sexually assaulted, but at trial she testified: “Pretty sure I was. I know I was. In my
heart, it tells me I was.”
       A.F. testified that a man who was nearby, later identified as Eddie Griffith, arrived
at the scene after she screamed, told her he would “get him,” and chased after Aknin.
Another man, later identified as Colin Beaumont, took A.F. to a motel room where he



                                             2
was staying so she could wash her face. He gave her a pair of pants to wear and told her
that the police were on the way.
       Aknin testified and gave a different account of the events. He stated that after
A.F. used his cellular phone, she went into the 7-Eleven store alone, spoke with a man he
later identified as Griffith, exited the store, and started walking with Aknin back to the
motel. According to Aknin, A.F. suggested they go into the alley to have sex. Once in
the alley, A.F. pulled her pants down, pulled one leg out of her pants, squatted down,
rolled a condom onto his penis with her mouth and fingers, and initiated oral sex. He
stated he could not become fully erect, told A.F. that they were done, pulled the condom
off and threw it aside, and zipped up his pants.
       Aknin testified that when he refused to continue sexual relations, A.F. demanded
his money, pointed to Griffith who was waiting nearby, and told Aknin that Griffith had a
gun. Aknin testified that he was afraid for his life, lunged forward, grabbed A.F.‟s neck,
and pushed backwards. According to Aknin, both he and A.F. fell to the ground. He
landed on top of her holding her neck, pushed himself up while still holding her neck, and
then ran away.
       Other than the events at the 7-Eleven store and in the alley, many other facts are
undisputed. It is undisputed that A.F. sustained injuries, including a black eye, bloodshot
eyes, bruises on her neck, and scrapes on her shoulder and knee. Although Aknin does
not deny these injuries, he disagrees about the manner in which A.F. sustained them.
Photographs of A.F.‟s injuries were shown to the jury.
       The parties also do not dispute that several items were found at the scene,
including a used tampon, a used condom, A.F.‟s cellular phone, and A.F.‟s pants.
Photographs of the scene showing these items were also shown to the jury.
       And the parties do not dispute the results of DNA and other forensic examinations,
although, as we will discuss in more detail below, they disagree whether some of these
examinations were lawful. The forensic results revealed that Aknin and A.F. had a
sexual encounter but were inconclusive as to whether the encounter was oral, vaginal, or
both. Swabs taken from Aknin‟s scrotum and penis revealed A.F.‟s DNA. A.F. was the


                                              3
source of DNA on the outside of the used condom found at the scene, and Aknin and A.F
both contributed to DNA on the inside of the condom. The interior of the condom tested
positive for one of the components of semen, but no sperm cells were found. Nucleated
epithelial (skin) cells were found on the outside of the condom. These cells came from
an orifice, but no conclusion could be drawn as to which one. Low levels of amylase, an
enzyme found in bodily fluids, were also detected on the outside of the condom.
Amylase is found in high concentrations in saliva and in low concentrations in vaginal
fluids. But again, no conclusion was reached whether the condom was necessarily or
exclusively used for an oral encounter.
       Other forensic findings related to A.F.‟s blood, but they were also inconclusive as
to the nature of the sexual encounter. Blood was detected on swabs of A.F.‟s vagina
taken after the incident, but no blood was detected on the condom or on the swabs from
Aknin‟s scrotum, penis, or hands. A.F. was menstruating at the time of the incident, and
she had been using a tampon that evening. She testified that she did not know what
happened to her tampon, although a used one was found at the scene. Tests revealed that
her DNA, but not Aknin‟s, was on the tampon. A DNA test of a bloodstain on the back
wall of the alley showed it was A.F.‟s.
       The only people other than Aknin and A.F. who witnessed some aspects of the
incident in the alley were Griffith and Beaumont, and at the trial the parties disputed the
reliability of their testimony. Griffith was staying at the Garden Motel at the time and
was sharing his room with Beaumont. Both men had criminal histories. Griffith was on
parole at the time after serving a prison term for rape, and he had been convicted of
armed robbery. At the time of the trial, Beaumont was in jail facing charges for being
under the influence of crack cocaine and possession of drug paraphernalia. Beaumont
admitted to frequently using drugs, and he testified that he and Griffith had drunk beer
and smoked marijuana and crack.
       Griffith testified that on the night of the incident he left the motel to use the pay
telephone at the 7-Eleven store and saw a couple walk by. He had never seen the woman
before. After returning to his motel room, he heard a sound that he described as sounding


                                              4
like someone in a football uniform and helmet running into the wall. He went outside,
and saw a man whom he identified as Aknin on the ground making what appeared to be
digging or swimming motions with his arms. Griffith thought Aknin might be having a
seizure and asked if he needed help. Griffith did not see Aknin move his hips up and
down, and he acknowledged that he did not see a sexual act. Aknin sprang up. Griffith
told the police immediately after the incident that he saw Aknin fumble with his pants as
if to pull up a zipper, but at trial he could not recall having seen this. Aknin then fled.
Griffith heard a whimpering sound and saw a naked woman on the ground who started to
get up. Griffith chased Aknin, suspecting that a sexual assault had occurred. Griffith
eventually caught up with Aknin, and Griffith waved over police cars as they arrived.
       Beaumont also testified about the incident. He was in his motel room when he
heard a sound and went outside. He saw a man, later identified as Aknin, lying on the
ground. He testified that he watched him for two to three minutes and did not see him
move. He then saw Aknin get up and start running, and Griffith chased after him.
Beaumont heard a woman, later identified as A.F., screaming for help. He did not see
A.F. having a sexual encounter with Aknin, but he testified at trial that he saw Aknin‟s
hand on A.F.‟s neck as she was struggling. A.F. had blood on her face and neck and was
not wearing pants. When A.F. got up, she was unsteady on her feet and had trouble
maintaining her balance. Beaumont took A.F. to the motel room and gave her a pair of
Griffith‟s pants. A.F. said that she had been raped and used the bathroom to wash the
blood off.
       As part of his defense, Aknin suggested that Griffith was actually A.F.‟s pimp,
Gorilla, and that Griffith and A.F. were working together at the time of the incident in a
scheme to rob him. A.F. and Griffith denied these suggestions. Whether Griffith was
A.F.‟s pimp and working with A.F. to rob Aknin became an important issue at the trial.
       Griffith testified he had never seen A.F. before seeing her in the 7-Eleven store on
the night of the incident and never threatened to rob Aknin. He testified he had never
been a pimp or involved with prostitution and did not have a street name or nickname of



                                              5
Gorilla. He did admit, however, that he had a tattoo of a gorilla on his back, which he
testified signified his history with heroin.
       Beaumont told a defense investigator before the trial that Griffith was known as
Gorilla, and at trial he testified he believed that was because of the tattoo on his back.
But Beaumont testified that he never heard anyone call Griffith Gorilla. Before the trial,
Beaumont also told the defense investigator that Griffith had told him he was from Las
Vegas and told a police investigating officer that he thought Griffith was from Las Vegas.
This mattered because Gorilla apparently had stayed or lived in Las Vegas. At the trial,
however, Beaumont recanted these statements. He testified that Griffith had never told
him he was from Las Vegas and that he had been wrong about Griffith being from Las
Vegas, but had thought that was where Griffith was from because most people who have
tattoos come from Las Vegas.
       After the incident, Aknin was taken into custody and examined, and a sexual-
assault examination was performed on A.F.
B.     The Charges, Verdict, and Sentence
       An information charged Aknin with forcible rape (count 1; Pen. Code, § 261,
subd. (a)(2)),2 assault with intent to commit rape (count 2; § 220, subd. (a)), assault by
means of force likely to produce great bodily injury (count 3; § 245, subd. (a)(1)), and
battery with serious bodily injury (count 4; § 243, subd. (d)).3 As to counts 1 through 3,
the information alleged Aknin personally inflicted great bodily injury (under §§ 667.61,
subd. (e)(3), 12022.8 as to count 1; under § 12022.7, subd. (a) as to counts 2 and 3).
       After a two-week trial, the jury convicted Aknin of all four charges and found the
enhancement allegations to be true. The court sentenced Aknin to a term of 15 years to


       2
         All statutory references are to the Penal Code unless otherwise stated. All
references to statutes defining criminal offenses or setting out punishments or
enhancements refer to the versions of those statutes in effect on August 22, 2008, the date
of the charged crimes.
       3
        The information also charged that Aknin made a threat in violation of section
422 (count 5). The People dismissed that charge.


                                               6
life for rape (count 1). The court stated it was staying the sentences on the other counts
under section 654. Aknin timely appealed.
                                            III.
                                        DISCUSSION
A.     Ineffective Assistance: Failure to Move to Suppress Evidence
       Aknin first argues that his trial counsel was ineffective for failing to file a pretrial
motion to suppress evidence obtained by swabbing Aknin‟s genitals and combing his
pubic hairs. He argues these measures were unconstitutional because police did not
obtain a warrant, and there were no exigent circumstances justifying a warrantless search.
We reject the claim of ineffective assistance.
       After he was arrested, Aknin was first taken to a hospital. At the hospital, a nurse
asked Aknin if he would consent to a sexual-assault examination, which would include
collecting evidence from inside his mouth, underneath his fingernails, and the outside of
his genitals. Aknin refused. Police officers then took Aknin to the Redwood City Police
Department, and Detective David Cirina spoke to the on-duty deputy district attorney,
who told him that a warrant was not necessary to conduct the sexual-assault examination.
The police then took Aknin back to the hospital and asked hospital staff to conduct the
examination. Nurse Amie Dubois declined, and told Cirina that she would not collect
evidence from Aknin‟s body without Aknin‟s consent or a court order.
       The police then returned Aknin to the police department, where Cirina and another
detective collected the evidence from Aknin. Cirina had received training on the
collection of sexual-assault evidence. The detectives had Aknin remove each item of
clothing individually, and they scraped the underside of his fingernails and obtained a
DNA swab from his cheek. Cirina combed Aknin‟s pubic hairs with a surgical brush to
obtain any foreign matter and had Aknin pluck about 15 pubic hairs. Finally, Cirina
swabbed both sides of Aknin‟s penis and both sides of his scrotum.
       As mentioned above, the test results showed that A.F. was a contributor to DNA
on Aknin‟s scrotum and penis. A.F. was the source of DNA on the outside of the used
condom found at the scene, and Aknin and A.F. were both contributors to DNA on the


                                               7
inside of the condom. No blood was detected on the condom or on the swabs from
Aknin‟s scrotum and penis.
       To establish a claim of ineffective assistance of counsel, a defendant must show
that (1) trial counsel‟s performance fell below an objective standard of reasonableness
under prevailing professional norms, and (2) the defendant suffered prejudice, i.e., there
is “a reasonable probability that, but for counsel‟s unprofessional errors, the result of the
proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668,
687-688, 694 (Strickland); People v. Carter (2003) 30 Cal.4th 1166, 1211 (Carter).) “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Strickland at p. 694; Carter at p. 1211.) Finally, the defendant must show
that “ „the [act or] omission was not attributable to a tactical decision which a reasonably
competent, experienced criminal defense attorney would make.‟ [Citation.]” (People v.
Gurule (2002) 28 Cal.4th 557, 610-611.)
       When the alleged deficiency is defense counsel‟s failure to file a pretrial motion to
suppress evidence, a reviewing court considers: (a) whether, based on the law and the
information available before trial, a reasonably competent attorney would have filed a
motion to suppress; (b) whether the motion would have been successful; and (c) whether
a successful motion would have resulted in an outcome more favorable to the defendant.
(People v. Gonzalez (1998) 64 Cal.App.4th 432, 438.) Counsel may for tactical reasons
forego making a motion even though it has merit. (Id. at p. 437, fn. 1.)
       We reject Aknin‟s ineffective assistance argument for two independent reasons.
First, the record on appeal does not disclose that defense counsel‟s decision to forego
filing a motion to suppress lacked a tactical basis, and the decision is not of the type for
which there could be no satisfactory explanation. (See People v. Hart (1999) 20 Cal.4th
546, 623-624, 625, 629, 633; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266;
People v. Fosselman (1983) 33 Cal.3d 572, 581.) Defense counsel reasonably could have
concluded that, given the other clearly admissible evidence, the evidence obtained from
the swabbing of Aknin‟s genitals was not significantly harmful, and was potentially



                                              8
helpful, to Aknin‟s defense (i.e., his testimony that his only sexual contact with A.F. was
consensual oral sex).
       The evidence showed A.F. was the source of DNA on the outside of the condom
found at the scene, and both Aknin and A.F. were contributors to DNA on the inside of
the condom. In light of this evidence establishing Aknin and A.F. had sexual contact of
some type, defense counsel reasonably could have concluded that evidence that A.F.‟s
DNA was on Aknin‟s scrotum and penis was not harmful to the defense. Indeed, counsel
reasonably could have concluded the test results from the swabs of Aknin‟s genitals were
helpful to the defense of the rape charge. Although A.F. was menstruating, no blood was
detected on the swabs from Aknin‟s genitals or on the condom. During his cross-
examination of criminalist Mona Ten, defense counsel highlighted these test results,
eliciting Ten‟s testimony that the test used to detect blood is “quite sensitive”; no blood
was detected on the swabs of Aknin‟s penis, scrotum, or hands, or on the condom; and
visible blood was found on the swabs of A.F.‟s vagina. Counsel also emphasized these
points in closing argument, arguing that, “if there was any penetration by [Aknin] into
[A.F.‟s] vagina, he would have had blood on him.”4
       Because defense counsel reasonably could have concluded the evidence obtained
from Aknin‟s genitals could assist the defense of the rape charge, counsel reasonably
could have decided not to move to suppress that evidence.
       Second, apart from the question of whether counsel had a tactical purpose, Aknin
has not shown his counsel‟s performance fell below an objective standard of
reasonableness under prevailing professional norms. (See Strickland, supra, 466 U.S. at
pp. 687-688, 694; Carter, supra, 30 Cal.4th at p. 1211.) In light of the limited case law
on this issue that was available before trial, we decline to hold that a reasonably
competent attorney necessarily would have moved to suppress this evidence, or that



       4
         Consistent with trial counsel‟s approach, Aknin argues in his opening appellate
brief that a weakness in the prosecution case was “the surprising DNA evidence that
failed to show blood on Aknin‟s genitals or the condom he allegedly used[.]”


                                              9
Aknin‟s counsel was ineffective because he failed to do so. (See People v. Gonzalez,
supra, 64 Cal.App.4th at p. 438.)
       No published California case has addressed the constitutionality under the Fourth
Amendment of swabbing the exterior of a sexual-assault suspect‟s genitals and combing
his pubic hairs soon after an arrest. The parties cite a few decisions by courts in other
jurisdictions reaching different conclusions on this issue, based in part on the evidence
presented in those cases. Aknin relies on State v. Lussier (Minn. Ct.App. 2009)
770 N.W.2d 581, 589-590, in which the Minnesota Court of Appeals held that a
warrantless examination and touching of the defendant‟s genitals was not valid as a
search incident to a lawful arrest, in part because no record evidence showed “body-fluid
evidence following a sexual assault” would naturally evaporate or become compromised
over time. The court declined to address whether exigent circumstances justified the
examination because no record evidence supported that argument and because the
argument had not been raised in the trial court. (Id. at p. 590, fn. 4.)
       Other courts have concluded exigent circumstances can justify a warrantless
examination of a sexual-assault suspect‟s genitals. (See Ontiveros v. State (Tex. Ct. App.
2007) 240 S.W.3d 369, 371-372 [warrantless swabbing of defendant‟s penis was
justified; although handcuffed, defendant could have urinated in his pants and damaged
fragile DNA evidence]; Kaliku v. United States (D.C. Ct.App. 2010) 994 A.2d 765, 779-
781 [warrantless swabbing of defendant‟s penis was justified because DNA evidence
could have been contaminated or wiped or rubbed away]; see also Commonwealth v.
Banville (2010) 931 N.E.2d 457, 465, fn. 2 [genital swab and combing of pubic hair was




                                              10
urgent because delay could have resulted in destruction of evidence; although warrant
was obtained, search would have been valid as warrantless search incident to arrest].)5
       In light of the absence of controlling California case law, as well as the limited
case law from other jurisdictions and the differing conclusions reached in those cases, we
cannot conclude Aknin‟s trial counsel provided constitutionally ineffective assistance by
failing to file a motion to suppress. (See People v. Upsher (2007) 155 Cal.App.4th 1311,
1328-1329 [failure to move to bifurcate prior conviction trial in prosecution for
dissuading witness with prior conviction of same offense was not deficient performance
because of “absence of controlling case law” and “unsettled state of the law” whether
recidivist aspect was element of offense or sentencing provision]; People v. Foster (2003)
111 Cal.App.4th 379, 385 [because no California authority established whether certain
cross-examination questions were proper, defendant could not establish that his counsel‟s
failure to object to the questions “ „fell below an objective standard of
reasonableness‟ ”].)
       In addition to the limited applicable case law cited by the parties and discussed
above, Aknin suggests other cases would have supported a motion to suppress, such as
cases addressing the reasonableness of searches involving intrusions into the body.6 (See,
e.g., Schmerber v. California (1966) 384 U.S. 757, 758-759, 767-768, 771-772 [taking of
blood sample found reasonable]; Winston v. Lee (1985) 470 U.S. 753, 763-766 [proposed

       5
         In his reply brief, Aknin cites Lee v. State (Ind. Ct.App. 2012) 967 N.E.2d 529,
536-539, in which the court distinguished Ontiveros v. State, supra, 240 S.W.3d 369, and
Kaliku v. United States, supra, 994 A.2d 765, and found a lack of evidence of exigent
circumstances justifying a warrantless penile swab. Lee was decided in 2012, so it was
not available to Aknin‟s trial counsel prior to Aknin‟s 2010 trial. Even if Lee had been
decided prior to Aknin‟s trial, it would not change our conclusion about the state of the
law for purposes of deciding Aknin‟s ineffective assistance claim.
       6
         In a supplemental letter brief, Aknin cites Florida v. Jardines (2013) ___ U.S.
___, 133 S.Ct. 1409, 1417-1418, in which the United States Supreme Court held the
government‟s use of a trained police dog outside a suspect‟s home was a “search” within
the meaning of the Fourth Amendment. That case did not involve police conduct of the
type at issue here. Moreover, it was decided after Aknin‟s trial, so his counsel could not
have been deficient for failing to rely on it as the basis for a motion to suppress.


                                             11
involuntary surgery to remove bullet found unreasonable]; People v. Bracamonte (1975)
15 Cal.3d 394, 397-398, 401-404 [forced regurgitation found unreasonable].)7 We are
not persuaded that Aknin‟s trial counsel was constitutionally ineffective because he did
not use this case law to develop a motion to suppress the evidence at issue in this case
(obtained through a different type of conduct, i.e., the swabbing of the exterior of Aknin‟s
genitals).8
       Because Aknin has not established counsel‟s deficient performance, we need not
address the parties‟ arguments as to whether the performance was prejudicial. Thus, we
do not address (1) whether a motion to suppress would have been successful, or
(2) whether a successful motion would have resulted in an outcome more favorable to
Aknin. (See People v. Gonzalez, supra, 64 Cal.App.4th at p. 438 [both showings
necessary to establish prejudice].)
B.     Ineffective Assistance: Failure to Object to Evidence and Argument
       Aknin contends his trial counsel was ineffective by failing to object to certain
testimony by prosecution witnesses and certain statements the prosecutor made during




       7
         In his supplemental letter brief, Aknin also cites Skinner v. Railway Labor
Executives’ Assn. (1989) 489 U.S. 602, 617, in which the Supreme Court held the
collection and testing of urine samples was a Fourth Amendment search. The Skinner
case, like the cases cited in the text, does not address the type of conduct at issue here,
and we are not persuaded that Aknin‟s trial counsel was deficient for failing to rely on it
as the basis for a motion to suppress.
       8
          We note that the Fourth Amendment argument Aknin now presents was not
initially obvious to his appellate counsel—in his opening brief on appeal, Aknin
presented no Fourth Amendment claim. In a subsequent motion for leave to file a
supplemental opening brief (which this court granted), Aknin‟s appellate counsel stated
he “was not aware” of the Fourth Amendment issue when he filed Aknin‟s opening brief
and only became aware of it while later researching an unrelated matter.


                                             12
closing argument.9 Aknin argues that this evidence and the argument were prejudicial
because they bolstered the credibility of A.F. and Griffith.
       We consider each instance of allegedly objectionable testimony or argument
below, but we find no basis to reverse the judgment on the record before us on direct
appeal. We conclude that much of the testimony and argument that Aknin challenges
was proper. We also conclude that, even if defense counsel could have successfully
objected in some instances, Aknin has failed to show prejudice because he has not
demonstrated a reasonable probability that, but for counsel‟s alleged errors, the result of
the trial would have been different. (See Strickland, supra, 466 U.S. at pp. 687-688, 694;
Carter, supra, 30 Cal.4th at p. 1211.)
       1.     Lay Opinion Testimony
       Aknin contends that some of the prosecution‟s lay witnesses—Police Officers
David Gilbert and Jesse Bets, Detective David Cirina, and sexual-assault examiner
Victoria Galanter—improperly opined that A.F. told the truth in pretrial conversations. A
lay witness may testify to an opinion if it is rationally based on the witness‟s perception
and if it is helpful to a clear understanding of the witness‟s testimony. (Evid. Code,
§ 800; People v. Farnam (2002) 28 Cal.4th 107, 153.) Aknin cites cases holding a lay
witness‟s opinion about the veracity of another person‟s particular statements is irrelevant
and inadmissible on the issue of the statements‟ credibility. (See People v. Melton (1988)
44 Cal.3d 713, 744; People v. Zambrano (2004) 124 Cal.App.4th 228, 239-240; People v.
Sergill (1982) 138 Cal.App.3d 34, 39-40; but see People v. Riggs (2008) 44 Cal.4th 248,
300 [noting Supreme Court has not decided whether this aspect of Melton survived
Prop. 8].) However, a court may, in its discretion, permit questions to a witness about
whether another person is telling the truth, if the witness to whom the questions are


       9
        In general, trial counsel‟s failure to object to claimed evidentiary error or
prosecutorial misconduct results in a forfeiture of those issues on appeal. (People v.
Dykes (2009) 46 Cal.4th 731, 756-757.) Aknin does not appear to present any direct
claim of evidentiary error or prosecutorial misconduct; instead, he argues his attorney
was ineffective because he failed to object.


                                             13
addressed “has personal knowledge that allows him [or her] to provide competent
testimony that may legitimately assist the trier of fact in resolving credibility questions.”
(People v. Chatman (2006) 38 Cal.4th 344, 384.) For instance, lay opinion testimony
regarding the veracity of a statement made by a defendant or other witness “may be
appropriate when necessary to clarify a particular line of testimony.” (Zambrano at
p. 242.)
              a.      Officer Gilbert
       After the incident, A.F. traveled to Las Vegas, and on August 26 (four days after
the incident) she approached Las Vegas Police Officer Gilbert and asked “for some help
to get away from her pimp.”
       At trial, Gilbert first testified about A.F.‟s visible injuries, including her
“completely bright red” eyes and dark bruising on her neck and shoulders. He testified
that there were finger marks on her neck, and that, based on experience, he believed the
injuries were a few days old. Gilbert asked A.F. if her pimp had caused the injuries, and
at trial the prosecutor asked Gilbert about A.F.‟s response:
       “Q.    And what if anything did she say?
       “A.    She actually discussed quite in length. I felt she was trying to protect her
pimp who was referred to as „Gorilla‟ and you know being a cop I wanted to look into it
and so I pressed her pretty hard. I thought that she was trying to protect him. I watched
her and she kept looking out towards the Boulder Highway of the Fremont area and I
kind of thought that he was maybe in the area and she was afraid to say anything. So we
talked quite a bit and she convinced me that it was not him and it didn‟t happen recently.
She told me that it was up here in California—I hope I get this right—she said it was in
Redwood City where she was raped and beaten and I pretty much took her word after that
because I didn‟t feel like as if she was lying at all.”
       Aknin recognizes that the prosecutor did not directly ask Gilbert to opine about
A.F.‟s veracity, but he argues that defense counsel was ineffective for not moving to
strike Gilbert‟s statement that he did not feel as if A.F. had been lying. We are not
convinced.


                                               14
       To begin with, Gilbert‟s unsolicited comment that he did not feel as if A.F. had
been lying was not as much an opinion about whether A.F. was telling the truth as it was
a statement of Gilbert‟s personal view of A.F.‟s story (at the time he heard it) to explain
why he accepted A.F.‟s statement about the injuries. Furthermore, the comment was
made in the context of a long answer that was at least partially helpful to Aknin‟s
defense. Gilbert‟s testimony that he “pressed” A.F. “pretty hard” reinforced the notion
that prostitutes protect pimps by not being truthful (suggesting the possibility that A.F.
would be untruthful in this case to protect her pimp), and his testimony about A.F.‟s
injuries reinforced the notion that pimps hurt their prostitutes (suggesting the possibility
that A.F.‟s injuries were caused or worsened by her pimp).
              b.     Officer Bets
       Redwood City Police Officer Jesse Bets interviewed A.F. shortly after the
incident. At the trial, the prosecutor asked Bets about the interview and asked whether
Bets had doubts about A.F.‟s statement that she was visiting a friend and had gotten lost
while walking around Redwood City at night because she wanted to see the area. Bets
doubted A.F.‟s explanation and believed she was a prostitute. The prosecutor asked
whether Bets also found inconsistent the part of A.F.‟s story that she had been thrown to
the ground and strangled. Bets responded that he thought that this portion of A.F.‟s
account might have been true; he testified A.F.‟s injuries and emotional state were
consistent with someone who had just been attacked.
       We do not believe it was objectively unreasonable for defense counsel to have
refrained from objecting to these answers. Bets did not just testify that he thought A.F.
was truthful; he first testified that he believed she had been untruthful when she told him
she was visiting a friend and got lost after exploring the area. This testimony helped
Aknin and, after accepting the benefits of it, defense counsel would have been hard
pressed to object to the subsequent comment about her perceived truthfulness.
       Furthermore, even assuming counsel should have objected to Bets‟s response that
he thought part of A.F.‟s story might have been true, Aknin has not shown his failure to
do so was prejudicial. Bets already had testified that when he spoke to A.F. she was


                                             15
crying uncontrollably and had fresh abrasions on her shoulder. And the jury heard other
testimony and saw other evidence that A.F.‟s injuries (including bleeding and bruising
inside her eyes, bleeding inside her mouth, and bruising on her neck) were consistent
with strangulation. Bets‟s comment that A.F.‟s statement that she was attacked may have
been true and was consistent with her injuries and demeanor, added little to this
testimony and evidence.
              c.     Detective Cirina
       David Cirina, the lead Redwood City detective investigating the case, interviewed
A.F. at the Keller Center where her sexual-assault examination took place. A.F. was still
crying and shaking. After talking for a few minutes to build rapport, Cirina told A.F. he
did not believe her story about why she was out that night, and A.F. admitted she had
been working as a prostitute. Cirina then conducted an official interview. The prosecutor
asked about the interview:
       “Q.    Can you tell me a little bit about her demeanor and what she was like
during the time that you were talking to her in the Keller interview?
       “A.    She remained upset, seemed to calm down and focus once the interview
began and she certainly appeared to be forthcoming and honest from that point on.”
       The prosecutor‟s question about A.F.‟s demeanor did not ask for Cirina‟s opinion
of her veracity, so it was not objectionable on that ground and could even have elicited
favorable testimony, which Aknin appears to concede. The response was less an opinion
of A.F.‟s truthfulness than a statement of Cirina‟s personal interpretation of her
demeanor. Rather than stating a definitive opinion that A.F.‟s account was true, Cirina
instead simply stated in the context of describing her demeanor she “appeared to be
forthcoming and honest” and answered all his questions.
       Even assuming that the unsolicited comment constituted an opinion that Aknin‟s
counsel could have successfully had stricken, Aknin has not shown counsel‟s failure to
move to strike it was prejudicial. Cirina‟s testimony about A.F. at the Keller Center
benefitted the defense in connection with the rape charge because A.F. admitted that she



                                             16
did not know whether she had been sexually assaulted. Her credibility on this point
furthered the defense‟s argument that there was no sexual assault.
              d.      Sexual-Assault Examiner Galanter
       Victoria Galanter, a sexual-assault examiner, testified that part of the examination
procedure is to determine whether the physical findings are consistent with the history
provided by a victim. The prosecutor asked her whether the physical evidence was
consistent with A.F.‟s account in this case.
       “Q.    Okay. And in this case, after you did your examination and you completed
all of the work that you did with [A.F.], did you determine whether or not all the physical
findings that you had were consistent with the history she had given you about being
strangled?
       “A.    Yes, it was consistent.
       “Q.    Was there anything inconsistent in the evidence and her description of what
had happened?
       “A.    No.”
       Aknin argues that this was inadmissible opinion testimony because Galanter “in
effect told the jury she also believed [A.F.‟s] account.” We disagree. Galanter was not
asked to, and did not, opine whether A.F. was credible or was telling the truth. Instead,
Galanter, who had personally examined A.F.‟s physical injuries, had training and
experience examining sexual-assault victims, and was familiar with the types of injuries
caused by strangulation, simply stated that the physical injuries she observed were
consistent with A.F.‟s report of being strangled. Because this testimony was based on
Galanter‟s personal knowledge and could assist the trier of fact in assessing A.F.‟s
credibility, the trial court would have had discretion to admit it even if counsel had
objected. (See People v. Chatman, supra, 38 Cal.4th at p. 384 [court may permit witness
with personal knowledge to provide “competent testimony that may legitimately assist
the trier of fact in resolving credibility questions”]; People v. Sergill, supra,
138 Cal.App.3d at p. 40 [“relevant evidence includes evidence that has any tendency in



                                               17
reason to affect the credibility of a witness”]; see also People v. Zambrano, supra,
124 Cal.App.4th at p. 242.)
       Furthermore, Aknin has not shown Galanter‟s response was prejudicial. Galanter
already had provided testimony, which Aknin does not contend was inadmissible, that
A.F.‟s injuries were consistent with prolonged strangulation. Accordingly, this response
was cumulative. For that reason as well, we do not believe it was objectively
unreasonable for defense counsel to have refrained from objecting under these
circumstances.
       2.     Prior Consistent Statements
       Aknin contends his counsel was ineffective because he failed to object on hearsay
grounds when prosecution witnesses testified about prior consistent statements by A.F.,
Griffith, and Beaumont. Aknin argues that introduction of the prior statements “unfairly
provided credibility” to A.F. and Griffith.
       Hearsay evidence is “evidence of a statement that was made other than by a
witness testifying at the hearing and that is offered to prove the truth of the matter stated”
(Evid. Code, § 1200, subd. (a)); hearsay evidence is inadmissible unless it falls within an
exception to the hearsay rule (Evid. Code, §§ 1200, subd. (b), 1201). Aknin argues the
statements he now challenges were not admissible under the hearsay exception for prior
consistent statements of a witness. Under that exception, a prior consistent statement of a
witness is admissible if an express or implied charge has been made that the witness‟s
testimony is recently fabricated or is influenced by bias or other improper motive, and the
statement was made before the bias or improper motive is alleged to have arisen (Evid.
Code, §§ 1236, 791, subd. (b)). Aknin claims the statements he challenges were not
admissible under this exception because the defense contended A.F. and Griffith had a
motive to lie “from the point each participated in the charged incident,” and their
consistent pretrial statements were not made before this alleged motive arose.
       We conclude some of the testimony Aknin challenges was objectionable as
inadmissible hearsay, but we also conclude that defense counsel‟s failure to object to it
was not prejudicial.


                                              18
              a.     A.F.’s Prior Statements
                     i.     Officer Gilbert
       As we discussed above, Las Vegas Police Officer Gilbert testified that when A.F.
asked him for help to get away from Gorilla, she told him that her visible injuries came
from having been beaten and raped in Redwood City by someone other than Gorilla.
Aknin argues that defense counsel should have objected to Gilbert‟s testimony about
A.F.‟s response because it constituted inadmissible hearsay. A.F.‟s response arguably
was relevant to the nonhearsay purpose of showing Gilbert‟s state of mind and
subsequent actions, i.e., he did not question A.F. further about whether Gorilla caused her
injuries (although he did arrest Gorilla for traffic violations). (See Evid. Code, § 1200,
subd. (a); People v. Hill (1992) 3 Cal.4th 959, 987 [statements offered to explain hearer‟s
state of mind and conduct are not hearsay], disapproved on other grounds in Price v.
Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; 1 Jefferson, Cal. Evidence
Benchbook (4th ed. 2013) § 1.35, p. 26.)
       But even assuming counsel could have successfully objected to this testimony on
hearsay grounds, Aknin has not shown his failure to do so was prejudicial. A.F.‟s
statement she wanted to get away from her pimp was potentially helpful to Aknin. It was
consistent with his argument that her pimp was violent and could have caused the
injuries, a theme Aknin‟s counsel explored while cross-examining Gilbert. A.F.‟s
statement she was beaten and raped in Redwood City (rather than later, by Gorilla) also
was not likely to be prejudicial because other evidence showed A.F. had significant
injuries when she was treated at the Keller Center shortly after her encounter with Aknin.
There was no direct evidence that anyone other than Aknin caused the injuries. And,
even according to Aknin‟s own testimony, he grabbed A.F. by the neck, fell with her to
the ground, and pushed up on her while still holding her neck.
                     ii.    Officers Bets and Unga
       As mentioned above, Officer Bets spoke to A.F. shortly after the incident. A.F.
told Bets she was grabbed from behind and choked until she lost consciousness, and
when she woke up her pants had been removed. A.F. provided Bets with a description of


                                              19
her assailant, which he radioed to other officers. A.F. told Bets she was lost and asked
Aknin for directions, that Aknin propositioned her, and that she did not respond to Aknin
because she was “ „not that type of girl.‟ ”
       Officer Steve Unga testified Bets stated over the radio that a female victim said
she had been raped and provided a description of the suspect. While driving toward the
scene, Unga saw Aknin (who matched the description) and detained him.
       Aknin has not shown his counsel was ineffective for failing to object to this
testimony. A.F.‟s statements, whether made by her or repeated by Bets, were likely
admissible under the spontaneous-statements exception to the hearsay rule. “Evidence of
a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports
to narrate, describe, or explain an act, condition, or event perceived by the declarant; and
[¶] (b) Was made spontaneously while the declarant was under the stress of excitement
caused by such perception.” (Evid. Code, § 1240; see People v. Thomas (2011)
51 Cal.4th 449, 495.) Bets testified that, when he spoke to A.F. shortly after the attack,
she was upset and emotional and was crying uncontrollably, and her injuries were fresh.
       Moreover, Aknin has not shown prejudice. Portions of the testimony were helpful
to the defense of the rape charge. A.F. told Bets she was choked until she was
unconscious, did not remember anything that happened after that, and did not know
whether she had been sexually assaulted, points that defense counsel underscored on
cross-examination. Bets‟s testimony about A.F.‟s false explanation of why she was in the
neighborhood also was helpful to the defense because it weakened A.F.‟s credibility, a
point defense counsel also pursued during cross-examination.
                     iii.   Sexual-Assault Examiner Galanter
       Galanter testified about A.F.‟s answers to questions Galanter asked as part of the
sexual-assault examination. A.F. stated she was having her menstrual period, had had
sexual contacts in the days prior to the attack, and stated she “ „had a tampon on.‟ ” A.F.
told Galanter she got lost and asked for directions; she was grabbed from behind and
choked until she passed out; and she did not know what happened after that.



                                               20
       Aknin has not shown his counsel was prejudicially ineffective for failing to object
to this testimony on hearsay grounds. Portions of Galanter‟s testimony were helpful to
the defense. A.F. did not know what happened after she was choked and lost
consciousness, a point defense counsel asked Galanter to reiterate during cross-
examination. A.F.‟s statement that she got lost and asked for directions (instead of
acknowledging she was working as a prostitute) assisted the defense argument that A.F.
was not credible, and defense counsel had Galanter repeat that statement during cross-
examination as well. And A.F.‟s statement she was menstruating was helpful to the
defense, specifically the defense argument that the lack of blood on the condom and on
Aknin‟s hands, penis, or scrotum undermined the sexual-assault charges.
                     iv.    Witness Beaumont
       The prosecutor asked Beaumont whether A.F. had said anything about knowing or
working with Griffith, and Beaumont answered “no.” Aknin contends his counsel should
have objected on hearsay grounds. Counsel was not deficient. “ „Hearsay evidence‟ is
evidence of a statement that was made other than by a witness testifying at the hearing
and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a),
italics added; People v. Zamudio (2008) 43 Cal.4th 327, 350 (Zamudio).) Aknin appears
to suggest that A.F.‟s failure to say anything about whether she knew or was working
with Griffith—i.e., her silence about these matters—constitutes “a statement that was
made” for purposes of the hearsay rule. (Evid. Code, § 1200, subd. (a).) But “nonverbal
conduct,” such as a person‟s silence, constitutes a “ „statement‟ ” under the hearsay rule
only if it was “intended by [the person] as a substitute for oral or written expression.”
(Id., § 225; Zamudio at p. 350.) Because nothing suggests A.F. intended her failure to
say anything about whether she knew or was working with Griffith to be “a substitute for
oral or written verbal expression” (Evid. Code, § 225), Aknin‟s counsel was not deficient
for failing to object to Beaumont‟s testimony on hearsay grounds. (See Zamudio at
p. 350; cf. People v. Snow (1987) 44 Cal.3d 216, 227 [“nonassertive responses or
reactions,” such as defendant‟s lack of reaction upon hearing news of victim‟s death, are
not hearsay].)


                                             21
       Aknin also challenges the following portion of Beaumont‟s testimony:
       “Q.     . . . And during the time that you were waiting for the police to get there,
what was [A.F.] doing?
       “A.     She was sitting there and just talking and she said that „This guy raped me.
I tried to call for help.‟ ”
       The prosecutor‟s question did not call for hearsay and therefore was not
objectionable on that ground. And defense counsel was not deficient for failing to move
to strike Beaumont‟s answer. A.F.‟s statement to Beaumont (made shortly after the
attack) likely was admissible as a spontaneous statement. (See Evid. Code, § 1240.)
Aknin also has not shown prejudice. The jury probably did not give significant weight to
Beaumont‟s testimony that A.F. told him she was raped because the jury had already
heard testimony from A.F. and from Galanter that A.F. did not know what happened
while she was unconscious.
                       v.      Detective Cirina
       Detective Cirina testified about his interview with A.F. and stated that A.F. told
him she used Aknin‟s cellular phone to call Gorilla for assistance in getting away from
Aknin. Aknin has not shown this testimony was prejudicial. Portions of the account A.F.
gave to Cirina were potentially helpful to the defense. On cross-examination, defense
counsel asked Cirina to repeat a number of A.F.‟s statements, emphasizing such points as
A.F.‟s reluctance to admit she was engaged in prostitution and the fact she did not tell
Cirina she knew she had been raped.
               b.      Griffith’s Out-of-Court Statements
                       i.      Witness Frisby
       Linda Frisby, a longtime friend of Griffith, testified about a telephone
conversation she had with Griffith after he had chased and caught up with Aknin. Aknin
argues that her testimony included inadmissible hearsay. We conclude that Aknin has not
shown his counsel was ineffective for failing to object to this testimony.
       First, Aknin contends Frisby testified that Griffith said he never left California.
The cited testimony is as follows:


                                                22
       “Q.    Did he ever tell you that he‟d been out of California?
       “A.    No. He couldn‟t go out of California because he had to wear an anklet.
       “Q.    And was he—
       “A.    That was the reason why we had to get permission all the time for him to go
to Santa Rosa or even to go to Hayward because of the anklet.
       “Q.    Okay. So he never described for you having gone to Las Vegas?
       “A.    No.
       “Q.    Never been to Las Vegas?
       “A.    No.”
       Frisby thus responded that Griffith had not told her about leaving California or
about going to Las Vegas. Aknin‟s counsel was not deficient for failing to object on
hearsay grounds because Frisby did not relate a “statement that was made” for purposes
of the hearsay rule. (Evid. Code, §§ 1200, subd. (a), 225; see Zamudio, supra, 43 Cal.4th
at p. 350; cf. People v. Snow, supra, 44 Cal.3d at p. 227.) As for Frisby‟s statement about
Griffith‟s ankle device, even if construed as relating statements by Griffith, Aknin has not
shown prejudice. The statement was potentially helpful to the defense (because it
underscored that Griffith was a parolee) and, in any event, was peripheral to the central
issues in the case.
       Second, Aknin argues Frisby testified Griffith told her the gorilla tattoo on his
back was to remind him of his heroin addiction, rather than because he was a pimp. The
prosecutor questioned Frisby as follows:
       “Q.    Did you ever know him to be known by the nickname of Gorilla?
       “A.    No.
       “Q.    Okay. Ever hear that?
       “A.    No.
       “Q.    Now, do you know he has a—
       “A.    Yes, I do.
       “Q.    —tattoo on his back?
       “A.    Yes, I do.


                                             23
       “Q.    Okay. And has he ever explained to you what the meaning of that tattoo is?
       “A.    Yes.
       “Q.    What did he tell you?
       “A.    It was to remind him of the heroin addiction.
       “Q.    Okay. The monkey on his back?
       “A.    The monkey on the back.”
       Aknin has not shown prejudice. The most important point for the defense was that
Griffith, for whatever reason, had a gorilla tattoo on his back, thus permitting the defense
to argue he was A.F.‟s pimp, Gorilla. Whether Griffith had the tattoo on his back
because of his heroin addiction or for some other reason was incidental.
       Third, Aknin refers to Frisby‟s testimony that, after the incident, Griffith called
her and asked whether he had done the right thing by chasing Aknin. Most of this
testimony (i.e., Griffith‟s questions to Frisby whether he had done the right thing) was
not objectionable as hearsay because it was not offered to prove the truth of the matter
stated. (See Evid. Code, § 1200, subd. (a).) As for Griffith‟s statement he had chased a
man he believed had committed a rape, that was undisputed, so Frisby‟s testimony to that
effect was not prejudicial.
       Fourth, Aknin notes Frisby‟s testimony that Griffith told her he did not know A.F.
before the night of the incident. The prosecutor questioned Frisby as follows:
       “Q.    Did Eddie ever tell you that he knew the woman before—whether or not he
knew the woman before he had seen her at the 7-Eleven?
       “A.    No, he never knew her.
       “Q.    He told you he did not know her?
       “A.    He told me he didn‟t know her.”
       Defense counsel may have been able to object successfully to this testimony on
hearsay grounds, as the prosecutor asked Frisby to recount, and Frisby did recount,
Griffith‟s statement. The response also could have had some prejudicial impact because
it bolstered Griffith‟s testimony that he had not met A.F. before seeing her in the 7-
Eleven store. But, assuming the response was potentially prejudicial to Aknin, we


                                             24
conclude later in this opinion that Aknin has not shown a reasonable probability that, but
for counsel‟s alleged errors in not objecting to this and other items of evidence, the result
of the trial would have been different. (See Strickland, supra, 466 U.S. at pp. 687-688,
694; Carter, supra, 30 Cal.4th at p. 1211.)
       Fifth, Aknin contends Frisby testified that Griffith said he was not involved in
prostitution. The exchange was as follows:
       “Q.      Okay. Have you ever known Eddie to be involved in any kind of
prostitution?
       “A.      No.
       “Q.      Has he ever told you anything about being involved in any prostitution?
       “A.      No.”
       Aknin‟s counsel was not deficient for failing to object on hearsay grounds because
Frisby did not relate a “statement that was made” for purposes of the hearsay rule. (Evid.
Code, §§ 1200, subd. (a), 225; see Zamudio, supra, 43 Cal.4th at p. 350; cf. People v.
Snow, supra, 44 Cal.3d at p. 227.)
                       ii.   Detective O‟Gorman
       Redwood City Police Detective Joseph O‟Gorman spoke to Griffith at the scene,
after Griffith had chased Aknin and was detained by police. O‟Gorman also testified
Griffith was still “out of breath” and “excited.” O‟Gorman testified Griffith told him he
heard a commotion, went out of his room, and saw a man moving on the ground; the man
got up and ran; Griffith saw a woman on the ground; and Griffith chased the man. Aknin
has not shown his counsel was prejudicially ineffective for failing to object to this
testimony. Some or all of Griffith‟s statements to O‟Gorman were likely admissible as
spontaneous statements. (See Evid. Code, § 1240.)
       Moreover, Aknin has not shown O‟Gorman‟s testimony was prejudicial. The
testimony supported the defense position that Griffith provided shifting and incomplete
accounts of the incident. O‟Gorman testified Griffith did not say he had threatened to
shoot Aknin while he chased him; instead, Griffith claimed Aknin had threatened to shoot
him. (At trial, Griffith testified that, although he did not have a gun, he yelled that he had


                                              25
one and threatened to shoot Aknin if he did not stop.) Griffith initially told O‟Gorman he
had never seen the woman he believed had been raped; he then changed his story to say
he might have seen her in the 7-Eleven store. Defense counsel explored these points on
cross-examination.
                        iii.   Parole Officer Babb
       Griffith‟s parole officer, Mark Babb, testified that Griffith never discussed Las
Vegas or requested permission to go there. Aknin‟s counsel was not deficient for failing
to object on hearsay grounds because Babb did not relate a “statement that was made” for
purposes of the hearsay rule. (See Evid. Code, §§ 1200, subd. (a), 225; Zamudio, supra,
43 Cal.4th at p. 350; cf. People v. Snow, supra, 44 Cal.3d at p. 227.)
       Griffith met with Babb on August 22, 2008. The prosecutor asked whether
Griffith told Babb “about the event that had happened the evening before[.]” Babb
replied that Griffith had done so and described his demeanor as emotional and somber.
The testimony was not hearsay because Babb did not recount Griffith‟s statements.
                        iv.    Witness Beaumont
       In response to the prosecutor‟s questions, Beaumont testified Griffith did not say
he knew A.F. or Aknin before the incident, Griffith did not say he had lived in Las
Vegas, and A.F. did not say she knew Griffith or was working with him. Aknin‟s counsel
was not deficient for failing to object on hearsay grounds because Beaumont did not
relate a “statement that was made” for purposes of the hearsay rule. (See Evid. Code,
§§ 1200, subd. (a), 225; Zamudio, supra, 43 Cal.4th at p. 350; cf. People v. Snow, supra,
44 Cal.3d at p. 227.)
                        v.     Witness Griffith
       Aknin contends Griffith testified about his own prior hearsay statements. Griffith
testified that, when he was detained by the police, he answered all their questions, told
them about his parole status, and told them about the events to which he had testified at
trial, except he did not tell them he had threatened Aknin while chasing him. The
prosecutor then questioned Griffith about why he had not told the police about his threat.
Aknin has not shown this testimony was prejudicial. The testimony was phrased in


                                              26
general terms (i.e., Griffith did not repeat his account of chasing Aknin). Moreover,
testimony about what Griffith did and did not tell the police was potentially helpful to the
defense because it highlighted Griffith‟s failure to admit he had threatened Aknin.
              c.     Beaumont’s Out-of-Court Statements
       Redwood City Police Officer Walter Montti testified about his interview of
Beaumont at the scene of the incident. Beaumont stated he and Griffith went outside to
buy cigarettes; a white male with a ponytail ran by; Griffith yelled, “ „Hey, you rapist,‟ ”
and began chasing the man; a woman called for help; the woman‟s face was bloody, and
she was nude from the waist down; Beaumont gave her a pair of pants; and the woman
said the man with the ponytail had choked her.
       Aknin has not shown his counsel‟s failure to object to this testimony was
prejudicial. Beaumont‟s testimony and statements were largely cumulative of other
testimony in the case. Further, the inconsistency between Beaumont‟s statements to
Montti (reporting only that A.F. said she was choked) and Beaumont‟s trial testimony
(that A.F. said she was raped) potentially weakened Beaumont‟s reliability as a witness
and thus assisted the defense. In closing argument, defense counsel argued Beaumont
was an unreliable witness whose story changed over time.
       3.     Allegedly Improper Testimony by Detective Cirina
       Aknin contends his counsel was ineffective because he failed to object when the
prosecutor elicited inadmissible testimony, including hearsay and opinion testimony,
from Cirina. We disagree. Some of the testimony Aknin challenges was admissible.
And, assuming counsel should have objected to some of the testimony, his failure to do
so was not prejudicial.
              a.     The Sexual-Assault Examination
       Aknin contends that Cirina improperly opined or speculated that A.F. did not have
a tampon inserted when she was examined at the Keller Center. This is incorrect. In the
passage Aknin cites, Cirina did not give his opinion. Instead, he referred to the trial
testimony of Galanter, the sexual-assault examiner, that A.F. stated she had a tampon
inserted (and therefore Galanter wrote that on the form), but when Galanter conducted the


                                             27
physical examination, A.F. did not have a tampon inserted. (“Q. . . . Explain to us what
that confusion was [about whether A.F. had a tampon inserted]. [¶] A. As Victoria
Galanter testified to, she noted in her report that [A.F.] had a tampon on. When the exam
began, she did not have a tampon in.”)10
       Aknin also contends his counsel should have objected to Cirina‟s testimony that,
during his later telephone conversations with A.F. about the tampon, she seemed
confused and did not have a clear recollection on that issue. Although the court sustained
defense counsel‟s objection to a question whether Cirina believed A.F. was “guessing,”
Aknin has not shown his counsel was deficient for failing to object to other questions that
were more closely tied to Cirina‟s observations of A.F.‟s demeanor, such as questions
whether A.F. “seem[ed] certain” or “seem[ed] confused.” In any event, Aknin has not
shown prejudice, as evidence of A.F.‟s confusion about the tampon was potentially
helpful to the defense. Moreover, A.F.‟s used tampon, which was found at the scene,
showed she was menstruating, while the forensic tests from the condom and the swabs of
Aknin‟s genitals lacked any indication of blood, assisting Aknin‟s argument that he had
not raped A.F.
              b.     Detective Cirina’s Telephone Call with Gorilla
       Both Aknin and A.F. testified that A.F. had used Aknin‟s cellular phone outside
the 7-Eleven store. A.F. said the number she had called on Aknin‟s cellular phone
belonged to Gorilla. During his direct examination at the trial, Cirina testified that he
called this number. Based on the voice of the man who answered, Cirina was sure the
man was not Griffith.
       Aknin‟s counsel cross-examined Cirina about whether he had followed up on
leads supporting the defense theory that Griffith was Gorilla or was working with A.F.
       On redirect, the prosecutor elicited Cirina‟s explanation why he had or had not
followed certain leads identified by defense counsel. As part of that examination, the

       10
         In his reply brief, Aknin argues the testimony was hearsay. Aknin forfeited this
argument by failing to raise it in his opening brief. (See People v. Alexander (2010) 49
Cal.4th 846, 922.)


                                             28
prosecutor addressed the call to Gorilla and asked: “And [the person who answered]
gave you no indication that he wasn‟t „Gorilla,‟ correct?” Cirina responded: “He said he
was „Gorilla.‟ ” The prosecutor asked: “You had no reason to believe that that person
you were speaking with was not the person that [A.F.] had told you about?” Cirina
answered: “No, no reason whatsoever.”
       Aknin contends his counsel should have objected to Cirina‟s testimony because it
violated a pretrial ruling and included hearsay statements by Gorilla and improper
opinion testimony by Cirina.11
       The pretrial ruling does not establish counsel was ineffective. The pretrial ruling
was entered after Aknin filed a motion in limine to exclude hearsay testimony about the
call. In the motion, Aknin described a number of statements, set forth in Cirina‟s police
report, that the person who answered (Gorilla or Mike) made during the call.12 Aknin
argued in the motion that “[t]he statements contained in Detective Cirina‟s police report
as summarized above are clearly hearsay,” and he requested an order “precluding any
hearsay testimony from Detective Cirina regarding alleged conversations with „Mike‟
A.K.A. „Gorilla.‟ ” At a hearing on the motions in limine, the court stated it would
“preclude Detective Cirina from making any statements regarding a conversation
between himself and Mike or Gorilla. . . . [u]ntil some theory that would demonstrate
either non-hearsay or exception to the hearsay rules becomes clear. And then we will do
that outside the presence of the jury.”



       11
          In his reply brief, Aknin suggests the testimony was improper because it
included A.F.’s hearsay statement as to which telephone number was Gorilla‟s. We
decline to address this argument, which Aknin did not raise in his opening brief. (See
People v. Alexander, supra, 49 Cal.4th at p. 922.)
       12
          According to the motion, Gorilla told Cirina he was in Redwood City on the
night of the incident and received a telephone call from A.F. just after midnight. He
heard an aggravated male voice in the background say something like “ „Come on!‟ ”
When Gorilla saw A.F. the next day, she had visible choke marks on her neck, which she
said were the result of being choked until she “ „blacked out.‟ ” A.F. told Gorilla that,
when she woke up, her clothes were gone.


                                            29
       Although the court phrased its oral ruling broadly, it appears the parties
understood the ruling not as precluding any testimony about the call but as precluding
evidence of statements allegedly made by Gorilla during the call (which were the focus of
Aknin‟s motion). At trial, the prosecutor confirmed Cirina was not to discuss the
substance of the conversation. (“Q. Okay. You‟re not allowed to talk about what
specifically was engaged in that conversation, correct? [¶] A. Right.”) Defense
counsel‟s failure to object on the ground that Cirina‟s testimony violated the court‟s
ruling suggests he shared the prosecutor‟s understanding of the scope of the ruling, which
was reasonable in light of the motion‟s focus on Gorilla‟s alleged statements. Defense
counsel was not deficient for failing to object to all testimony about the call on the
ground it violated the pretrial ruling.
       Aknin‟s counsel also was not deficient for failing to object to Cirina‟s opinion
that, based on the voice of the person who answered, he was sure the person was not
Griffith. As noted, a lay witness may testify to an opinion if it is rationally based on the
witness‟s perception and if it is helpful to a clear understanding of the witness‟s
testimony. (Evid. Code, § 800; People v. Farnam, supra, 28 Cal.4th at p. 153.) Cirina‟s
opinion was based on his perception—he had spoken with the person who answered the
telephone, and he had spoken with Griffith. Cirina‟s opinion also was helpful to a clear
understanding of his testimony about such matters as his efforts to locate Gorilla and the
calls between Aknin‟s telephone and Gorilla‟s number.
       We acknowledge Cirina‟s testimony that the person on the telephone “said he was
„Gorilla‟ ” may have been hearsay or improper under the court‟s pretrial ruling. The
prosecutor‟s question (i.e., whether the person who answered “gave you no indication
that he wasn‟t „Gorilla,‟ correct?”) did not expressly call for hearsay, so counsel was not
deficient for failing to object on that ground. Assuming counsel should have moved to
strike Cirina‟s response, his failure to do so could have had some prejudicial impact. As
the Attorney General notes, the prosecutor did not follow up by asking Cirina to relate the
substance of the conversation, and she later reminded him he was not to do so. But, as
Aknin points out, the prosecutor emphasized this testimony in closing argument, stating:


                                             30
“[Detective] Cirina talked to him on the phone, and he admitted that he was „Gorilla.‟ ”
Assuming this response was potentially prejudicial to Aknin, we conclude later in this
opinion that Aknin has not shown a reasonable probability that, but for counsel‟s alleged
errors in not objecting to this and other items of evidence, the result of the trial would
have been different. (See Strickland, supra, 466 U.S. at pp. 687-688, 694; Carter, supra,
30 Cal.4th at p. 1211.)
       Finally, counsel was not deficient for failing to object to Cirina‟s testimony that
(1) he had no reason to believe the person on the telephone was not A.F.‟s pimp, and
(2) nothing he learned in his investigation, including on the call in question, led him to
believe Griffith was the pimp or was working with A.F. This testimony did not recount
statements by Gorilla, so counsel was not deficient for failing to object on hearsay
grounds or on the basis that the testimony violated the pretrial ruling. This evidence also
was not improper opinion testimony. Cirina testified on these points during redirect
examination, after Aknin‟s counsel had cross-examined Cirina about the adequacy of his
investigation. To the extent Cirina stated opinions, he was explaining the views he held
at different points in the investigation, which were relevant to why he did or did not
pursue certain leads. Such opinions were based on Cirina‟s perception and were helpful
to a clear understanding of his testimony.13 (See Evid. Code, § 800.)
              c.     A.F.’s Injuries
       Aknin contends Cirina‟s testimony included hearsay and improper opinions about
the source of A.F.‟s injuries. We disagree.
       During recross-examination, defense counsel, continuing his inquiry into the
adequacy of the police investigation, asked Cirina if he had considered whether A.F.‟s
pimp Gorilla, rather than Aknin, might have caused A.F.‟s injuries. Counsel elicited that

       13
          Aknin suggests the prosecutor introduced her own hearsay statements when she
asked if Cirina “[t]ook every effort [to find Gorilla] as I was yelling at you on the phone
to „find him, find him, find him,‟ right?” (Cirina answered: “Yes, ma‟am.”) Aknin has
not shown prejudice. In light of the admissible evidence about Cirina‟s search for Gorilla
(discussed in the text), the addition of the challenged statements (i.e., the prosecutor ‟s
direction to Cirina to find Gorilla) was not prejudicial.


                                              31
Cirina was “aware” that pimps often physically abuse prostitutes and that prostitutes
often protect their pimps from law enforcement. Defense counsel also asked: “So did it
ever occur to you that [A.F.‟s] injuries could have been caused by „Gorilla‟ also known
as Mike Smith, either before or after the encounter with Mr. Aknin?” (Italics added.)
Counsel also asked: “It didn’t occur to you, though, that when [A.F.] went back to Las
Vegas, she may have been harmed by Mike Smith, also known as „Gorilla‟?” (Italics
added.) Cirina answered that, when he interviewed A.F. shortly after the incident, her
injuries were fresh; when he dropped her off at her motel several hours after photographs
of her injuries were taken, the injuries already looked worse than in the photographs; and,
based on his training and experience, such injuries worsen over time, which he believed
explained the more extensive visible injuries observed by Officer Gilbert several days
later.
         On re-redirect examination, the prosecutor followed up on this line of questioning
by asking Cirina whether, at the time he first interviewed A.F., he had any reason to
believe Gorilla had harmed her. (“Q. . . . And did you have any reason to believe on the
evening that you were interviewing [A.F.] that „Gorilla‟ had done anything to her?
[¶] A. No. [¶] Q. Okay. And she never said anything about that? [¶] A. Nope.”)
Cirina thus testified about his state of mind during the investigation (a subject defense
counsel had explored); Aknin is incorrect in suggesting Cirina was stating his opinion at
the time of trial. Even if Cirina‟s response can be characterized as including an opinion
(i.e., the opinion he held at a certain point in the investigation), that opinion was based on
Cirina‟s perception and was helpful to a clear understanding of his testimony about the
adequacy of the investigation. (See Evid. Code, § 800.)
         As to hearsay, the prosecutor asked if A.F. had ever said anything about Gorilla
having harmed her, and Cirina answered that she had not. Aknin‟s counsel was not
deficient for failing to object to those responses on hearsay grounds because Cirina did
not relate a “statement that was made” for purposes of the hearsay rule. (See Evid. Code,
§§ 1200, subd. (a), 225; Zamudio, supra, 43 Cal.4th at p. 350; cf. People v. Snow, supra,
44 Cal.3d at p. 227.) In other responses, Cirina did relate A.F.‟s statements, saying


                                             32
“[A.F.] said she was afraid of [Gorilla], but, yet, he had never hit her.” But this
testimony had a nonhearsay purpose—A.F.‟s statement that Gorilla had never hit her,
regardless of its truth, was relevant because it explained Cirina‟s investigative decisions
and conclusions (such as why it did or did not “occur[]” to Cirina that Gorilla had caused
A.F.‟s injuries).
              d.     Consistency of Statements
       Defense counsel cross-examined Cirina about why he did not investigate whether
Griffith was A.F.‟s pimp or was working with A.F. On redirect, the prosecutor referred
to this line of cross-examination, and asked whether Cirina, at the time he arrested Aknin,
had “any doubt in your mind that [Griffith] was not the pimp?” Cirina responded: “I had
no doubt in my mind [Griffith] was not the pimp.” Cirina testified his telephone
conversation with Gorilla strengthened his opinion Griffith was not the pimp. The
prosecutor asked: “Did that person [i.e., Gorilla] have anything—was there anything
inconsistent with what [A.F.] had told you?” Cirina responded: “Everything [A.F.], the
real „Gorilla‟ and Eddie Griffith said were consistent with each other with „Gorilla‟ being
the pimp and [Griffith] and [A.F.] not having met before that evening.”
       Aknin contends this response was improper opinion testimony. We disagree.
Cirina‟s opinion that the statements of three people with whom he had spoken were
consistent on this point was based on his perception and was helpful to a clear
understanding of his testimony about his investigation (a topic raised by the defense).
(See Evid. Code, § 800.)
              e.     Alleged Conspiracy to Rob Aknin
       On redirect, the prosecutor followed up on defense counsel‟s cross-examination of
Cirina about the adequacy of the investigation. The prosecutor asked: “And there was
nothing that you learned during your investigation that led you to believe that [Griffith]
might be involved with [A.F.] or somehow had robbed [Aknin]?” Cirina replied:
“Things I learned during my investigation discounted that.” The prosecutor later asked:
“Did [Griffith‟s] history as an armed robber and a rapist in any way change your opinion
that he was not involved in this incident as anything other than a good Samaritan?”


                                             33
Answer: “No.” The prosecutor elicited from Cirina that, in some cases involving alleged
sexual assaults, he has determined there was insufficient evidence to arrest or charge
anyone; in this case, he believed arresting Aknin was appropriate based on the evidence
he had, and nothing in his investigation changed his opinion about what had happened.
       Aknin contends these responses included improper opinion testimony. We
disagree. The defense, by cross-examining Cirina about the adequacy of his
investigation, opened the door to redirect examination on those matters. To the extent the
above responses included Cirina‟s description of the opinions he held at certain points
during the investigation, those opinions were based on his perception and were helpful to
a clear understanding of his testimony about the investigation. (See Evid. Code, § 800.)
Moreover, Aknin has not shown this testimony was prejudicial. Defense counsel
followed up by cross-examining Cirina again about leads he had not pursued.
              f.     Beaumont’s Credibility
       Aknin contends Cirina improperly opined about Beaumont‟s credibility. The
prosecutor asked Cirina about his interview with Beaumont. “During the time that you
spoke to him, what was his demeanor and his persona like?” Cirina responded: “I‟ve
had a lot of experience with people like Colin where they‟re just chronic drug users.
Colin is like—the best I could describe him, he‟s very impulsive. I don‟t think he can
think out more than ten, maybe twenty minutes down the road unless he‟s focusing on
getting high; he cannot focus. So Colin‟s demeanor has always been—two or three
contacts I‟ve had with him, confused, perplexed, uninterested, not very focused, not able
to recall with much clarity.” In closing argument, the prosecutor argued some things
Beaumont said (such as that Griffith was from Las Vegas) were not true, but there was
nothing inconsistent about Beaumont‟s basic story that he saw A.F. outside his motel
room and helped her.
       Aknin has not shown this testimony was inadmissible or defense counsel was
ineffective for failing to object to it. The prosecutor asked about Beaumont‟s demeanor,
and Cirina‟s answer focused on Beaumont‟s demeanor and manner during Cirina‟s
contacts with him.


                                            34
       Moreover, any suggestion by Cirina or the prosecutor that Beaumont was not a
reliable witness on all issues could not have been prejudicial because the defense took the
same position. Defense counsel asked Cirina: “Now, Mr. Beaumont, obviously, he‟s got
some mental impairment [as a result of long-term drug use], would you agree?” Cirina
responded: “I‟m not a medical doctor, but I would agree with you, yes.” In closing
argument, defense counsel stated: “I think I can speak fairly when I say [the prosecutor]
and I thought Colin Beaumont would be a main and important witness, but as it turns out,
as we witnessed [during Beaumont‟s trial testimony], his brain is just a bit too fried to be
reliable.” Defense counsel noted many parts of Beaumont‟s story had changed over time;
counsel argued, however, that Beaumont had consistently said Griffith‟s street name was
Gorilla. Both parties thus argued Beaumont was unreliable on many issues, but was
credible on certain key issues. Aknin has shown no prejudice from Cirina‟s testimony on
this point.
       4.     Closing Argument
       Aknin contends his counsel was prejudicially ineffective for failing to object to
prosecutorial misconduct during closing argument. “ „The applicable federal and state
standards regarding prosecutorial misconduct are well established. “ „A prosecutor‟s . . .
intemperate behavior violates the federal Constitution when it comprises a pattern of
conduct “so egregious that it infects the trial with such unfairness as to make the
conviction a denial of due process.” ‟ ” [Citations.] Conduct by a prosecutor that does
not render a criminal trial fundamentally unfair is prosecutorial misconduct under state
law only if it involves “ „ “the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.” ‟ ” [Citation.]‟ [Citation.] „[W]hen the claim
focuses upon comments made by the prosecutor before the jury, the question is whether
there is a reasonable likelihood that the jury construed or applied any of the complained-
of remarks in an objectionable fashion.‟ [Citation.]” (People v. Smithey (1999)
20 Cal.4th 936, 960.) A defendant‟s conviction will not be reversed for prosecutorial
misconduct unless it is reasonably probable that a result more favorable to the defendant
would have been reached if the misconduct had not occurred. (People v. Crew (2003)


                                             35
31 Cal.4th 822, 839.) We conclude some of the prosecutor‟s statements that Aknin
identifies were not improper, and the others were not sufficiently prejudicial.
                a.     Comment on Aknin’s Explanation of A.F.’s Injuries
         The prosecutor argued Aknin‟s explanation for A.F.‟s injuries (i.e., she threatened
to rob him, and, as he attempted to flee, he grabbed her neck and fell on top of her) was
implausible. The prosecutor contended a person who fell would put his or her arms out
and then push up (rather than holding on to another person‟s neck while falling and while
pushing up). The prosecutor also argued Aknin‟s claim that the injuries resulted from his
falling on A.F. and holding her neck for 10 to 15 seconds was implausible because the
medical evidence showed that, in light of her strangulation injuries, Aknin must have
held her throat for at least 50 seconds. As part of this argument, the prosecutor stated
Aknin‟s explanation of how he fell was “the most contrived testimony I have ever heard
to explain the most obvious and apparent strangulation injuries I have ever seen in my
life.”
         Aknin contends the prosecutor, by making this statement, improperly urged the
jury to decide the case based on facts not in evidence and the prosecutor‟s experience in
other cases. We conclude it is not reasonably likely the jury construed the prosecutor‟s
remark in that fashion. (See People v. Smithey, supra, 20 Cal.4th at p. 960.) The
statement was, at most, fleeting hyperbole in the midst of the prosecutor‟s argument that
Aknin‟s account was implausible in light of the evidence and common sense. The jury
reasonably would have understood the prosecutor‟s argument in that manner, not as an
entreaty to decide the issue based on the prosecutor‟s experience in other cases. (See
People v. Stansbury (1993) 4 Cal.4th 1017, 1057 [holding “not inappropriate,”
prosecutor‟s statement “ „that‟s the best case I‟ve ever seen in any case I‟ve ever
prosecuted of intentional misrepresentation and consciousness of guilt.‟ ”], revd. on other
grounds (Stansbury v. California (1994) 511 U.S. 318, 327); People v. Rich (1988) 45




                                              36
Cal.3d 1036, 1092 [“fair” comment on the evidence where prosecutor argued “ „I have
never seen deliberation and premeditation like that‟ ”].)14
              b.     Comment on Whether Aknin Attacked A.F.
       The prosecutor stated the biggest issue for the jury would be whether Aknin was
guilty of rape (count 1). In making this argument, the prosecutor stated: “Now, here‟s
where, ladies and gentlemen, I find the bottom of the issue is going to result. I have no
doubt in my mind—I certainly hope that there is going to be no doubt that [Aknin]
pushed [A.F.] into that alley, choked her to unconsciousness and then something
happened before [Griffith] came out. What happened is what‟s going to be at issue here.
And you will—I‟ll tell you about the elements in a minute. I don‟t think you‟re gonna
have any problem finding it was an assault with intent to commit rape [count 2]. I don‟t
think that you‟ll have any problem finding that it was an assault with force likely to cause
great bodily injury [count 3]. And I don‟t think there will be any problem with Count 4,
finding that she was battered and serious bodily injury occurred. [¶] I think the issue is
going to lie in Count 1, did he or did he not rape her?”
       Aknin argues that the prosecutor, by stating “ „I have no doubt in my mind,‟ ”
improperly expressed her personal opinion Aknin was guilty and suggested there was
additional evidence beyond what the jurors heard. In view of the entire context in which
these statements were made, it is not reasonably likely the jury understood them in this
manner. (See People v. Smithey, supra, 20 Cal.4th at p. 960.) The prosecutor was
referring to the evidence, rather than arguing her personal belief based on matters outside
the record. She argued overwhelming evidence supported conviction on counts 2 through
4, after which she argued in detail about the evidence supporting the rape charge in

       14
          In People v. Medina (1995) 11 Cal.4th 694, 758, cited by Aknin, the prosecutor
argued “ „no case I have ever seen‟ ” had such overwhelming evidence, and the Attorney
General conceded the comment was objectionable. The Supreme Court held, however,
that given the strong evidence of guilt, it was not likely the comment unduly influenced
the jury. (Medina at p. 758.) Similarly, here, in light of the medical evidence as to the
sustained pressure needed to inflict strangulation injuries like those suffered by A.F., it is
not likely the jury was unduly influenced by the prosecutor‟s statement.


                                              37
count 1. Even within the specific remark challenged by Aknin, the prosecutor shifted
from stating her own view (“I have no doubt in my mind”), to expressing her hope that
the jury would have no doubt what the evidence showed. Aknin has not shown
prejudicial misconduct.
              c.       Comment on Credibility of Witnesses
       Aknin contends the prosecutor improperly vouched for the credibility of
prosecution witnesses when she stated: “All I can tell you, ladies and gentlemen, is
Eddie [Griffith] and [A.F.] and Colin [Beaumont] came in here and did the best they
could to tell you the truth.” In light of the context in which the prosecutor made this
statement, we conclude it was not prejudicial.
       The prosecutor acknowledged there were discrepancies in the evidence and stated
defense counsel would point out inconsistencies among witnesses‟ statements. The
prosecutor urged the jury to look at “the big picture,” and to consider whether the
inconsistencies were important or were just caused by differences in how people perceive
and recall events. She also noted the trial court would instruct the jury on factors to
consider in assessing credibility. The prosecutor then stated Griffith, A.F., and Beaumont
did their best to tell the truth, while acknowledging that some of the things Beaumont
said were not true, and that all three witnesses had admitted being untruthful on certain
issues. The prosecutor discussed the evidence at length, and argued the jury should
consider how reasonable a witness‟s testimony is in light of other evidence in the case.
       The jury reasonably would have understood the prosecutor‟s statement that A.F.
and Griffith did their best to tell the truth as a part of her argument that the jury should
focus not on minor discrepancies in the evidence, but on whether the witnesses‟
testimonies were reasonable in light of the other evidence. The jury would not
reasonably have understood the prosecutor‟s statement as an assertion that she knew,
based on facts outside the record, that the witnesses were telling the truth. The statement
was not prejudicial.




                                              38
               d.     Discussion of Rape at Scene of Incident
       Aknin testified the ambulance attendant who transported him to the hospital
threatened to put surgical tubing down his nose if he did not confess what he had done.
On cross-examination, Aknin suggested the attendant, William McClurg, might have
reacted that way because the police had told him Aknin was a rapist. In closing
argument, the prosecutor argued this portion of Aknin‟s account was not credible because
there was no plausible reason that McClurg (an independent witness unaffiliated with law
enforcement, who testified he asked Aknin for basic information such as his name and
medical history) would take such actions or lie in court. As part of this argument, the
prosecutor stated: “There is no doubt that William McClurg, the guy who is now a
supervisor of paramedics, who has no connection whatsoever to lie in court, who
basically told you he, you know, was a medic and then a paramedic and then a paramedic
supervisor. He‟s going to hear that this is a rape suspect—first of all, nobody at the scene
was talking about a rape. Remember that. The defendant was loaded into the ambulance
before any statements were being taken, before anybody knew what was going on
exactly. He might have heard something over the dispatch, but the fact is nobody was
saying, „Oh, he‟s a rapist. He‟s a rapist,‟ or anything like that. It was all just—remember
Eddie [Griffith] said it was crazy and chaotic, they made him sit down for 20 or 30,
maybe, then, 40 minutes before they interviewed him because they were trying to
stabilize the situation.”
       Aknin argues the prosecutor‟s statement that there was no discussion of rape at the
scene was improper because the prosecutor knew it was false. The evidence Aknin cites
does not support this assertion. Aknin cites pretrial hearing testimony showing that some
police officers knew or believed Aknin was suspected of sexual assault. Officer Angela
Wittman testified about what she knew when she arrived at the scene: “I believe—well,
there was a call that came out at the Garden Motel, a possible rape had occurred and they
gave a description of one of the suspects and that there was another male following him
on foot.” Officer Walter Montti testified he responded to the Garden Motel because of a
report of a sexual assault. Montti also testified that the reason he stayed with Aknin at


                                             39
the hospital (after following the ambulance there) was because Aknin was in custody for
sexual assault.
       Aknin cites no evidence showing any officer accused Aknin of rape in McClurg‟s
presence or told McClurg that Aknin was suspected of rape, or showing officers
discussed an alleged rape at the scene. We also note the prosecutor qualified her
statement by acknowledging that McClurg, like the officers, “might have heard
something over the dispatch” about an alleged sexual assault. Aknin has not shown the
prosecutor knowingly made a false statement.
              e.     Comment on Efforts to Locate Gorilla
       Aknin contends the prosecutor improperly made herself a “witness” during closing
argument by describing the efforts to locate A.F.‟s pimp, Gorilla. Aknin has not shown
prejudicial misconduct.
       First, the prosecutor‟s statements were based on the evidence. Cirina testified
about his efforts to find Gorilla. Cirina testified that, before he read Beaumont‟s
interview statements saying Griffith was from Las Vegas, he did not know the defense
theory would be that Griffith was Gorilla. The prosecutor‟s comments in closing
argument echoed these points. The prosecutor stated that, before the prosecution
received Beaumont‟s statements, “it never dawned on us in a million years that somebody
was going to try to play [Griffith] off as „Gorilla‟ and there was gonna be this big story
about a conspiracy and a robbery and him being her pimp and all of that.” For that
reason, some facts that turned out to be important did not initially appear relevant. (“That
explains, ladies and gentlemen, why some of the details that we eventually found to be
necessary and relevant, we didn‟t see in the beginning.”)
       Second, Aknin is incorrect in asserting that it was improper for the prosecutor to
present any testimony or argument about the investigation. Defense counsel suggested
that police had conducted an inadequate investigation and had failed to follow up on
leads that would have supported the defense, such as further investigating whether
Griffith was Gorilla or was working with A.F., and whether Gorilla, rather than Aknin,
might have caused A.F.‟s injuries. The cross-examination focused in part on Cirina‟s


                                             40
state of mind during the investigation (e.g., defense counsel questioned Cirina about
whether certain scenarios had “occur[red]” to him). For this reason, Cirina‟s testimony
about what he knew and thought at different points during the investigation was
admissible because it was relevant to why he did or did not follow up on leads. The
prosecutor‟s arguments on this point were based on the evidence and were proper.
              f.        Summary of Testimony About Call with Gorilla
       The prosecutor argued Griffith was not Gorilla. As part of this argument, she
referred briefly to Cirina‟s testimony about his call to the number A.F. said belonged to
Gorilla. The prosecutor stated: “Detective Cirina didn‟t just get the number and get the
records, he actually called the number. He told you he placed the call. He spoke to a
person. The person had an African-American voice and the person did not give him any
details that were inconsistent with what [A.F.] told him.”
       Aknin contends these statements by the prosecutor about the call violated the
pretrial ruling on that issue. As we discussed above, although the court phrased its oral
pretrial ruling broadly, the record suggests the parties reasonably understood the order
not as precluding any reference to the call, but only as barring repetition of the statements
allegedly made by Gorilla on the call. In the portion of the argument challenged by
Aknin, the prosecutor did not repeat Gorilla‟s alleged statements during the call. She just
noted Cirina‟s testimony that he made the call, his description of the voice of the person
who answered, and his statement that the person gave no details inconsistent with what
A.F. had told Cirina.
              g.        Comment that Police Officers Would Not Lie
       The prosecutor argued the police did not intentionally ignore evidence, and she
discussed Aknin‟s testimony that he did not report the alleged crimes against him because
everyone at the scene was against him. In the context of this argument, the prosecutor
stated the officers had no reason to lie, their “entire livelihoods are wrapped up in their
credibility,” they risked prosecution for perjury if they lied, and the jury had no reason to
disbelieve their testimonies. The prosecutor stated that, if she asked a police officer to
lie, “[he] would laugh in my face and say, „Do you think my home and my wife and my


                                             41
kids and my family are worth what you‟re asking me to do for some scum ball?‟ ” The
prosecutor suggested that, if the police were lying, they would “make up something
better,” and that, if A.F. were lying, she would say she was raped instead of saying she
did not know whether she was raped.
       Aknin argues the prosecutor improperly vouched for the police witnesses. We
agree some of the prosecutor‟s statements were improper. The prosecutor argued factual
matters outside the record, such as the likelihood the officers would be prosecuted or
would risk their homes and families if they lied, to support the veracity of the testifying
officers. (See People v. Woods (2006) 146 Cal.App.4th 106, 114-115 [prosecutor
vouched for police officers by arguing factual matters outside the record, such as the
officers‟ experience and financial obligations].)
       But assuming defense counsel should have objected to these statements, Aknin has
not shown that the failure to do so was prejudicial. The prosecutor made the statements
in the context of arguing that Aknin had not shown the officers conspired against him or
intentionally ignored evidence, and that, if the officers were lying, they would have made
up testimony that was more incriminating than their actual testimony. Moreover, the
officers‟ testimony was not central to the prosecution‟s case. Their testimony only
concerned what happened after the officers arrived at the scene and after the charged
crimes had been completed. The evidence primarily implicating Aknin in the charged
crimes was the testimony of A.F. and Griffith, the photographs, and the medical and
DNA evidence.
       5.     References to A.F. as Victim
       Aknin filed a motion in limine asking the court to preclude the prosecutor and
prosecution witnesses from referring to A.F. as “the „victim. ‟” Aknin requested a ruling
that the court, parties, and all witnesses refer to Aknin and A.F. by their names. The
People opposed the motion, arguing they should be permitted to refer to A.F. as the
“ „alleged victim,‟ ” and to Aknin as the “ „defendant.‟ ” At the hearing on the motion,
the court stated: “It is my practice to refer to the victim as the alleged victim. It is my
practice to refer to the defendant as the defendant.”


                                              42
       Aknin contends his trial counsel should have objected or moved to strike when, on
several occasions, the prosecutor and prosecution witnesses referred to “the victim”
rather than “the alleged victim.” Aknin has not shown his counsel was prejudicially
ineffective. The references Aknin cites did not dominate the trial. To the contrary,
during testimony, the prosecutor and the witnesses frequently referred to A.F. by her
name. The prosecutor also repeatedly referred to A.F. by her name during closing
argument. Even if counsel should have objected or moved to strike when the prosecutor
or a witness referred to “the victim,” it is unlikely these references had a significant
prejudicial impact.
       6.      Prejudice
       Aknin contends his counsel‟s failure to object to the above evidence and argument
was prejudicial because the allegedly inadmissible evidence, considered cumulatively,
improperly bolstered the credibility of A.F. and Griffith. We disagree. First, as we
discussed above, much of the evidence Aknin identifies was admissible, and several of
the challenged portions of closing argument were proper. Second, as we also discussed
above, Aknin has not shown the potentially objectionable portions of testimony and
argument were prejudicial. Considering the potentially objectionable evidence
cumulatively, we conclude Aknin has not shown a reasonable probability that, absent his
counsel‟s allegedly deficient performance, the outcome of the trial would have been
different. (See Strickland, supra, 466 U.S. at pp. 687-688, 694; Carter, supra, 30 Cal.4th
at p. 1211.)
       Aknin argues the credibility of A.F. and Griffith was suspect because they lied to
the police about certain matters; Griffith lied at the preliminary hearing about whether he
threatened to shoot Aknin; A.F. was working as a prostitute; and Griffith had been
convicted of, and imprisoned for, rape and robbery. But these issues were fully aired
before the jury, and A.F. and Griffith admitted the conduct Aknin identifies. Moreover,
portions of Aknin‟s account may have seemed implausible to the jury in light of other
evidence. For example, Aknin‟s claim that A.F.‟s injuries resulted from his falling on her
and grabbing her neck as he fell may have appeared unlikely in light of the medical


                                              43
evidence that he must have held her throat for at least 50 seconds. Similarly, since Aknin
directed the cab driver to go to the Garden Motel, his claim that Griffith was A.F.‟s pimp
and coincidentally happened to be staying at that motel may have appeared implausible to
the jury. We are not persuaded that the potentially objectionable evidence identified by
Aknin had a significant impact on the jury‟s assessment of the witnesses‟ credibility.
C.     The Rape Conviction (Count 1)
       1.     Forcible Rape
       Aknin argues he was “wrongly convicted” (boldface and capitalization omitted) of
forcible rape (§ 261, subd. (a)(2)) because, if he raped A.F., he instead committed rape of
an unconscious person (§ 261, subd. (a)(4)).15 We disagree.
       “Forcible rape is defined as „an act of sexual intercourse accomplished with a
person not the spouse of the perpetrator . . . [¶] . . . [¶] (2) [w]here it is accomplished
against a person‟s will by means of force, violence, duress, menace, or fear of immediate
and unlawful bodily injury on the person or another.‟ (§ 261, subd. (a)(2).)” (People v.
Griffin (2004) 33 Cal.4th 1015, 1022 (Griffin).) To establish force within the meaning of
section 261, subdivision (a)(2), “ „the prosecution need only show the defendant used
physical force of a degree sufficient to support a finding that the act of sexual intercourse
was against the will of the [victim].‟ [Citation.]” (Griffin, supra, 33 Cal.4th at pp. 1023-
1024.) Consistent with this standard, the trial court instructed the jury that: “Intercourse
is accomplished by force if a person uses enough physical force to overcome the
woman‟s will.” (See CALCRIM No. 1000.)
       The evidence supports the conclusion that, if Aknin had intercourse with A.F., she
did not consent to the intercourse and Aknin accomplished the intercourse by force or
violence. (See § 261, subd. (a)(2); Griffin, supra, 33 Cal.4th at p. 1022; CALCRIM
No. 1000.) A.F. testified that, although she initially agreed to have sex with Aknin, she

       15
         The distinction is relevant to sentencing. Section 667.61 provides for a
mandatory 15-years-to-life sentence for a defendant who is convicted of forcible rape and
who personally inflicted great bodily injury on the victim; this sentencing provision does
not apply to rape of an unconscious person. (See § 667.61, subds. (b), (c)(1), (e)(3).)


                                               44
changed her mind and told Aknin: “ „I‟m done. No more.‟ ” She then walked away. As
she walked away, Aknin grabbed her from behind, dragged her into an alley, and choked
her into unconsciousness. Aknin then allegedly had intercourse with her. This evidence
shows Aknin used physical force sufficient to support a finding that the act of intercourse
was against A.F.‟s will. (See Griffin, supra, 33 Cal.4th at pp. 1023-1024.)
       Despite the evidence that A.F. explicitly withdrew her initial consent and Aknin
then used physical force to overcome her will, Aknin contends his conviction of forcible
rape was improper. He appears to argue that because the force he used rendered A.F.
unconscious before he had intercourse with her, the People could only prosecute him for
rape of an unconscious person and could not prosecute him for forcible rape. We reject
this argument. Although the evidence could have supported a charge of rape of an
unconscious person, it also supports the charge and conviction of forcible rape. Aknin
cites no authority holding or suggesting that a forcible rape charge is improper when a
victim expresses a lack of consent, and the defendant then overpowers the victim by
using so much force that the victim is rendered unconscious before there is sexual
penetration.16
       The cases Aknin cites do not support his position. Aknin cites People v. Dancy
(2002) 102 Cal.App.4th 21, 34 for the proposition that a defendant may be convicted of
rape of an unconscious person where the defendant caused the victim to become
unconscious. In Dancy, the defendant was charged with, and convicted of, rape of an
unconscious woman; the court did not address a charge of forcible rape. (Id. at pp. 29,
31.)



       16
          In a footnote, Aknin cites People v. Smith (2010) 191 Cal.App.4th 199, 205, in
which the court held a single act of intercourse can support only one rape conviction. But
a single act of intercourse may be chargeable under multiple theories that are supported
by the evidence. (See ibid. [“ „[O]nly one punishable offense of rape results from a
single act of intercourse, though it may be chargeable in separate counts when
accomplished under the varying circumstances specified in the subdivisions of
section 261 of the Penal Code.‟ [Citation.]”])


                                            45
       Aknin‟s reliance on People v. Kusumoto (1985) 169 Cal.App.3d 487 is also
misplaced. In Kusumoto, the court held the evidence was insufficient to support a
conviction of forcible penetration with a foreign object because the penetration occurred
while the victim was asleep, and the only force used was that necessary to accomplish the
penetration. (Kusumoto at pp. 490, 494.) Here, in contrast, there is evidence Aknin used
force against A.F. after she expressed her lack of consent.17
       Finally, Aknin argues the forcible rape conviction is improper because the alleged
act of intercourse occurred about 30 minutes after he rendered A.F. unconscious. Aknin
appears to base this argument on Griffith‟s response to the prosecutor‟s question about
how much time passed between the time he left the 7-Eleven store and the time he heard
the noise outside his room. Griffith stated: “Okay. I‟m gonna guess, and my guess is
gonna be not more than an hour but—more than half an hour but not more than an hour.
Somewhere like 35 minutes.” The jury was not required to conclude that Griffith‟s
equivocal testimony on this point established the amount of time that passed between the
time Aknin rendered A.F. unconscious and the time he had intercourse with her.
       2.     Sufficiency of Evidence
       Aknin contends there is insufficient evidence to sustain his conviction of rape. To
determine whether the prosecution met its burden to prove a charge beyond a reasonable
doubt, we apply the “substantial evidence” test. (People v. Cuevas (1995) 12 Cal.4th
252, 260.) Under that standard, we “ „must review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial evidence—
that is, evidence which is reasonable, credible, and of solid value—such that a reasonable


       17
          The remaining cases cited by Aknin are inapposite and did not involve forcible
rape charges. In People v. Lyu (2012) 203 Cal.App.4th 1293, 1301-1302, the court held
the defendant‟s convictions of (nonrape) sexual offenses against an unconscious person
were not supported by substantial evidence because the evidence showed the victim was
conscious. In People v. Ing (1967) 65 Cal.2d 603, 606-607, 612, questioned on other
grounds in People v. Tassell (1984) 36 Cal.3d 77, 89, fn. 8, the court held there was
sufficient evidence to support the defendant‟s conviction of rape where he administered
an intoxicating substance that prevented the victim from resisting.


                                            46
trier of fact could find the defendant guilty beyond a reasonable doubt.‟ [Citations.]” (Id.
at pp. 260-261.) “ „Substantial evidence includes circumstantial evidence and any
reasonable inferences drawn from that evidence. [Citation.]‟ [Citation.] We
„ “ „presume in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.‟ ” [Citation.]‟ [Citation.]” (People v. Clark
(2011) 52 Cal.4th 856, 943.) “ „Although it is the jury‟s duty to acquit a defendant if it
finds the circumstantial evidence susceptible of two reasonable interpretations, one of
which suggests guilt and the other innocence, it is the jury, not the appellate court that
must be convinced of the defendant‟s guilt beyond a reasonable doubt. [Citation.]‟
[Citation.] Where the circumstances reasonably justify the trier of fact‟s findings, a
reviewing court‟s conclusion the circumstances might also reasonably be reconciled with
a contrary finding does not warrant the judgment‟s reversal. [Citation.]” (Zamudio,
supra, 43 Cal.4th at pp. 357-358.)
       Ejaculation is not an element of rape. (People v. Wallace (2008) 44 Cal.4th 1032,
1079.) All that is required is “sexual penetration, however slight.” (§ 263; Wallace at
p. 1079.) The penetration necessary to show rape is “sexual penetration and not vaginal
penetration. Penetration of the external genital organs is sufficient to constitute sexual
penetration and to complete the crime of rape even if the rapist does not thereafter
succeed in penetrating into the vagina.” (People v. Karsai (1982) 131 Cal.App.3d 224,
232, disapproved on other grounds by People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8;
see People v. Quintana (2001) 89 Cal.App.4th 1362, 1366.)
       Applying the above standards, we conclude there is substantial evidence
supporting Aknin‟s conviction of rape. Based on A.F.‟s testimony, the jury could have
concluded that, after A.F. told Aknin she was done and walked away, he grabbed her,
dragged her into the alley, and choked her until she was unconscious. A.F. did not recall
ever knowingly having sexual contact with Aknin. But, as Aknin concedes, the evidence
establishes there was sexual contact between him and A.F. A.F. was a contributor to
DNA on Aknin‟s scrotum and penis. A.F. was the source of DNA on the outside of the



                                             47
used condom found at the scene; and Aknin and A.F. were contributors to DNA on the
inside of the condom.
       Based on the evidence of sexual contact, and A.F.‟s testimony that no sexual
contact occurred before Aknin rendered her unconscious, the jury reasonably could infer
that the sexual contact occurred after A.F. was unconscious. And, the jury reasonably
could infer that the type of sexual contact Aknin engaged in after A.F. was unconscious
was not oral sex, but was instead sexual penetration with his penis of A.F.‟s external
genital organs. (See People v. Karsai, supra, 131 Cal.App.3d at p. 232; People v.
Quintana, supra, 89 Cal.App.4th at p. 1366.)
       Other evidence supported the inference that the type of sexual contact that
occurred was penetration of A.F.‟s genital organs. A.F. testified that, when she regained
consciousness, she was naked from the waist down. Griffith and Beaumont also testified
A.F. had no pants on when they saw her. A.F. was using a tampon that evening, but it
was removed during her encounter with Aknin. Griffith testified that, when he went
outside his room, Aknin was on the ground making what appeared to be digging or
swimming motions with his arms, and he looked like he might be having a seizure. In
light of this evidence and the evidence that there was sexual contact of some type
between Aknin and A.F., the jury reasonably could infer that Aknin attempted to have
intercourse with A.F. and achieved at least slight penetration.
       Aknin argues that some of the forensic evidence did not point to a conclusion he
raped A.F. For example, Aknin was excluded as a contributor of DNA found in A.F.‟s
vagina, on her pubic area, and on the tampon; he was excluded as a contributor of
spermatozoa found on A.F.‟s body; and he was excluded as a source of DNA found in
two of the stains on A.F.‟s jeans while a test of the third stain was inconclusive.
Although A.F. was menstruating, no blood was detected on the condom or on Aknin‟s
scrotum, penis, or hands. Low levels of amylase, which is found in low concentrations in
vaginal fluids and in high concentrations in saliva, were found on the outside of the
condom.



                                             48
       This evidence does not establish that the jury‟s verdict was unsupported by
substantial evidence. As to the absence of blood on Aknin and the condom, criminalist
Mona Ten testified that, if a woman were menstruating with a limited flow of blood, it
would be possible for blood to be on the condom, but it would not necessarily occur.
Nurse practitioner Diana Emerson testified to the same effect. Similarly, the test results
did not permit a conclusion as to which bodily orifice was the source of the amylase on
the outside of the condom. Ten testified the results of the testing on the condom were
consistent with a penis with a condom on it being inserted into A.F.‟s vagina and were
also consistent with a penis with a condom on it being placed into A.F.‟s mouth. And,
while the evidence would support a conclusion Aknin did not ejaculate and may not have
fully penetrated A.F., it does not establish a lack of substantial evidence supporting a
finding of at least slight penetration.
       In his reply brief, Aknin notes that Griffith testified he did not see Aknin‟s hips
move up and down, and Griffith did not testify he saw Aknin sexually penetrate A.F. We
conclude, however, that Griffith‟s testimony about what he did see (Aknin on the ground
making swimming or digging motions), in combination with other evidence, could
support an inference that Aknin sexually penetrated A.F.
       After reviewing the record in the light most favorable to the judgment, we
conclude there is substantial evidence such that a jury reasonably could find Aknin guilty
of rape beyond a reasonable doubt. (See People v. Clark, supra, 52 Cal.4th at p. 943.)
D.     Assault with Intent to Commit Rape (Count 2)
       The parties correctly note that assault with intent to commit rape is a lesser
included offense of forcible rape and that Aknin may not be convicted of both offenses
based on the same conduct. (See People v. Lewis (1977) 75 Cal.App.3d 513, 521;
People v. Moran (1973) 33 Cal.App.3d 724, 730.) The conviction of assault with intent
to commit rape (count 2) is reversed.
E.     The Sentence
       The court stated it was staying the sentences on counts 2 through 4 under
section 654; the court did not specify sentences for those counts. As the Attorney


                                             49
General notes, the correct procedure is to impose a sentence for each count and
enhancement and then to stay execution of sentence as necessary to comply with
section 654. (People v. Duff (2010) 50 Cal.4th 787, 795-796; People v. Alford (2010)
180 Cal.App.4th 1463, 1469, 1471-1472.) That way, if the unstayed sentence is reversed,
a valid sentence will remain. (Id. at p. 1469.) Failure to follow this procedure results in
“an unauthorized absence of sentence” that we must correct on appeal. (Id. at pp. 1467,
1472.) We will remand for the trial court to impose and stay sentences on count 3 and
the enhancement associated with that count, and on count 4.
                                          IV.
                                      DISPOSITION
       The conviction of assault with intent to commit rape (count 2) is reversed. The
case is remanded for the trial court to hold a new sentencing hearing, at which it shall
impose, and stay under section 654, sentences on (1) the conviction of assault by means
of force likely to produce great bodily injury (count 3) and the enhancement associated
with that conviction, and (2) the conviction of battery with serious bodily injury (count
4). In all other respects, the judgment is affirmed.




                                                  _________________________
                                                  Humes, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Reardon, J.




                                             50
