Filed 5/10/19
                       CERTIFIED FOR PARTIAL PUBLICATION*

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIRST APPELLATE DISTRICT

                                       DIVISION FOUR


THE PEOPLE,
        Plaintiff and Respondent,
                                                   A149394
v.
TYRONE JOHNSON,                                    (San Francisco City & County
                                                   Super. Ct. No. 225044)
        Defendant and Appellant.


        A jury convicted defendant Tyrone Johnson of rape of an intoxicated person (Pen.
Code, § 261, subd. (a)(3)),1 and the trial court sentenced him to eight years in prison. On
appeal, he contends (1) the court committed several instructional errors, (2) the statute
defining the crime of rape of an intoxicated person is unconstitutionally vague and
improperly permits conviction without a finding of intent or criminal negligence, (3) the
prosecutor engaged in misconduct, (4) the court erred by admitting prejudicial evidence,
(5) his trial counsel was ineffective, and (6) the court erred by imposing a restitution fine
and certain fees at sentencing without determining whether Johnson had the ability to pay
them.
        In the unpublished portion of this opinion, we reject Johnson’s challenges to his
conviction. In the published portion of the opinion, we reject his challenge to the
imposition of fines and fees at sentencing. Accordingly, we affirm the judgment.



        *
         Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part I.B and parts II.A through II.H.
        1
            Undesignated statutory references are to the Penal Code.


                                               1
                                   I. BACKGROUND
A.     The Charges
       An information charged Johnson with (1) kidnapping to commit another crime
(§ 209, subd. (b)(1)) (count one), (2) forcible rape (§ 261, subd. (a)(2)) (count two), and
(3) rape of an intoxicated person (§ 261, subd. (a)(3)) (count three). As to count two, the
information included special allegations that Johnson kidnapped the rape victim
(§ 667.61, subd. (e)(1)) and that the kidnapping substantially increased the risk of harm to
the victim beyond the level inherent in the underlying rape (§ 667.61, subd. (d)(2)).2
B.     The Evidence Presented at Trial
       1.     Annie’s Recollection of Events
       On Friday, August 28, 2015, 23-year-old Annie Y. returned to her residence in
San Francisco after an ordinary day at work. Upon arriving home, she began getting
ready for a friend’s birthday celebration later that night. Three female friends arrived at
Annie’s home at about 11:00 p.m. and began taking shots of vodka. Annie took two or
three shots of vodka with them. Annie, who was about five feet, five inches tall and
weighed about 128 pounds, felt a little buzzed but not drunk at the time.
       At around 11:40 p.m., Annie left with her three friends via Lyft or Uber to Ruby
Skye, a nightclub about a five- to seven-minute drive away from her home. By then, the
club was fairly busy and the birthday host was already at a table on the second floor.
Annie took a shot with the birthday girl upon arriving and continued to take shots until
leaving the club at around 1:40 a.m., taking a total of about five shots of cognac.
Eventually, she started to feel drunk. She could not find her friends in the club and
decided to walk home.
       Annie had no memory of what happened between when she left the club and later
that early morning, when she found herself at a Best Western hotel and in need of a place
to relieve herself. Some people let her into a single-occupancy restroom, and the door
closed behind her. She collapsed on the floor of the bathroom before arriving at the

       2
         The trial court dismissed similar allegations that were included in the information
as to count three.


                                             2
toilet, however, and soiled her pants. She felt like she was about to pass out. She heard
pounding on the bathroom door and male voices demanding that she open the door.
From where she was sitting on the floor, she unlocked the door. Someone pulled her up
by the upper arms, but she could not remember who it was.
       Annie recalled seeing two people who appeared to be in uniform, and she assumed
they were hotel employees. Annie pleaded with them, apologizing and saying, “ ‘Please
help me,’ ” and, “ ‘Just give me two hours.’ ” She also recalled stating, “ ‘I don’t know
this guy. I think he’s going to kill me,’ ” referring to a man who was with her at the time,
later identified as Johnson. She recalled being in the lobby area of the Best Western with
her shoes off and, shortly after, being right outside the Best Western. She was sitting on
the sidewalk and was drifting in and out of consciousness. Johnson was attempting to
hail a taxi. She remembered wanting to go home, and she recalled providing her address
in an attempt to get home.
       Annie next remembered lying on a bed, with no idea where she was or how she
had gotten there. It was still dark outside. Someone took her pants and underwear off
without saying a word. She felt nauseous, very intoxicated, and extremely weak. She
vaguely recalled Johnson’s voice making slurping noises and “ ‘mmmmmm’ ” noises as
though he was performing oral sex on her. The room did not seem to stay in place, and
she blacked out again.
       Annie next remembered feeling a lot of pain as Johnson, completely naked, lay on
top of her and put his penis in and out of her vagina. Annie was clothed only in a bra and
a tank top. She repeatedly said, “ ‘Ow. This hurts. Please stop,’ ” and, “ ‘You’re hurting
me.’ ” She took his penis out with her hands several times and placed her hands in front
of her vaginal opening, but Johnson moved her hands out of the way and put his penis
back inside. Johnson responded, “ ‘Please, baby. Don’t stop. This feels so good.
You’re so beautiful,’ ” and, “ ‘You’re so cute.’ ” Finding her legs pinned down by
Johnson’s body, Annie attempted to push away Johnson’s face with her hands but found
herself too weak to do so. Annie was not sexually active, and she had never previously
felt this “ ‘very, very sharp pain in the entrance of [her] vagina.’ ” She did not know how


                                             3
long Johnson inserted his penis in and out of her vagina, as she blacked out before he
stopped.
       Annie next remembered waking up after it was daylight, lying in the same position
but with a blanket on top of her. It was about 11:07 a.m. Annie felt disoriented. She did
not know where she was. She had a headache, her body ached, and her vagina was very
sore. She was wearing only a bra and tank top, and Johnson was sleeping next to her
completely naked. She looked around and saw she was in a very small room with dingy
walls with graffiti on them. Annie cursed and was disgusted by where she was. She
looked around for her possessions—her phone, watch, credit card, ID, and money.
Johnson pointed to her clutch, which still had everything inside. Johnson also handed
Annie her FitBit watch when she asked about it. Annie was able to find everything but
her keys. She looked at Johnson in shock, and he got out of bed with a smirk and asked,
“ ‘Was I too big for you?’ ” Annie felt stupid for getting separated from her friends and
being in a stranger’s room where he had sex with her while she was defenseless.
       Annie then recalled that Johnson did not have a condom on the previous night.
“ ‘Did you pull out?’ ” she asked, to which Johnson replied, “ ‘Of course I did.’ ” Annie
also asked if Johnson had any sexually transmitted diseases, to which Johnson responded,
“ ‘Do I look like the type who would?’ ” Annie went down the hall to the restroom but
returned without using it because it was dirty and had no toilet paper. She returned to the
room and asked Johnson where her pants and underwear were. He knew where they were
and pointed to the top of the wardrobe. She saw a bloody stain on the bed close to the
side where she had slept and asked, “ ‘What’s that?’ ” Johnson said he did not know and
that he should get the stain out. Annie thought it might have been blood from her broken
hymen but, not wanting Johnson to know, she said, “ ‘[O]h, I must just be on my
period.’ ” Annie also tried to find out Johnson’s identity by asking his name, age, and
number in order to piece together later what happened that night. They exchanged names
and numbers. Johnson took out his cell phone and showed Annie pictures of his son, who
was about two years old, and an African-American woman in her thirties, remarking,
“ ‘This is my girl.’ ”


                                             4
       Annie put her still damp pants and underwear back on but had no shoes. Johnson
led her down a small elevator and they walked out of the building—the Henry Hotel,
which was close to where Annie lived. Annie called a Lyft to take her home and, now
out in the open and wanting Johnson to understand what he had done, she told him,
“ ‘Oh, by the way, you took my V-card,’ ” referring to her virginity.
       2.     Other Evidence of the Incident
       In addition to Annie’s testimony, the prosecution presented testimony from a
security guard at the Best Western and another hotel employee there, both of whom
testified Annie was very intoxicated. She had difficulty standing and walking and had
slurred speech, and she vomited outside the Best Western. Annie said she did not want to
go with Johnson, but the employees assumed, based in part on statements Johnson made
(such as calling Annie pet names like “baby” and “doll,” and saying Annie was “[his]
girl”), that the two were a couple.
       The prosecution presented surveillance video footage of Annie outside the Best
Western. The prosecution also presented video footage from the Henry Hotel, which
apparently showed Annie in a walker or wheelchair and being pushed by Johnson and a
friend into the hotel.
       3.     Subsequent Events
       After the incident, Annie struggled with how to confront what had happened and
whether to report it to police. On Saturday, August 29, 2015, she confided in a friend,
who assured her it was not her fault. Late that night, Annie found information on the
Internet about services provided by San Francisco General Hospital. On Sunday, August
30, 2015, she went to the hospital, where a nurse practitioner conducted a sexual assault
examination. Annie was very sore and tender. There was dried blood on the inside of
Annie’s labia, but with only minimum maneuvering the opening began to bleed again,
indicating that the wound was fresh. The examination revealed a complete tearing of
Annie’s hymen. Annie cried throughout the examination and repeated that Johnson
“stole [her] V-card.”




                                            5
       Also in the first days after the incident, Annie exchanged text messages with
Johnson. She did this in an effort to understand better what had happened. At 11:21 a.m.
on Saturday, August 29, 2015, Annie texted Johnson using his nickname, “ ‘Tyrone,
Skittles, Annie, I fucking lost my keys. Can you check if they’re at your place?’ ” When
he responded that he checked and confirmed that the keys were not there, Annie stopped
responding to his texts until the afternoon. Johnson continued to text, “ ‘Callme layer
when ur done K’ ” and “ ‘Are u okay.’ ”
       Johnson continued to text through the afternoon, although Annie had not
responded. He wrote: “ ‘Please TeX back I’m really thinking about u and what u said to
me when u left I now how u feel and care about how feel I’m a good person if u give me
a chance to show u Annie city TeX me back please u don’t have to callme just TeX me I
would like to talk and get to no each chether.’ ” He also wrote: “ ‘Are u mad at that’s
why u not responding I won’t bother u no more godbless I’m sorry if I hert you in mining
tips of way place forgive I just want to help u that was My tention. [¶] I didn’t mean no
harm I really like u and want to be u first that all I can think of right now.’ ”
       Annie eventually responded in the afternoon by texting, “ ‘Lol I’m not mad.
Honestly I’m just disappointed in myself. Also, I left my house without my phone that’s
why I want responding.’ ” Johnson replied, “ ‘Don’t be disappointed thank god that u
was with .me k and if I can see u later.’ ” Annie thought meeting with Johnson might
help her learn what happened that night and give her closure, so she replied, “ ‘Sure man.
We can grab coffee or go for lunch some day.’ ” Johnson responded, “ ‘That work. And
u pick the day and time and I will b there.’ ” Annie replied, “ ‘Okie dokes.’ ” Johnson
continued to text that night, stating, “ ‘I miss u a lot from yesterday,’ ” and, “ ‘Ur so
funny and cute when ur drunk lol.’ ” Annie did not respond.
       On Sunday night (August 30, 3015), Johnson began texting again, stating, “ ‘Hi
have a blessday,’ ” and, “ ‘Hi again have a blessday.’ ” By this time, Annie’s sexual
assault examination had been conducted, and she had seen the visual tears on her vagina
and the bleeding. She replied, “ ‘You really hurt me. And you really shouldn’t have
done what you did.’ ” Johnson replied, “ ‘I’m sorry if I hurt u please forgive me I really


                                               6
like u.’ ” Annie asked, “ ‘How old are u,’ ” to which Johnson replied, “ ‘How old are
u.’ ” This led to the following exchange: Annie responded, “ ‘I already told you but you
never told me.’ ” Johnson replied, “ ‘No u didn’t tell me u was playing like u was
underage that’s all u said,’ ” and followed with, “ ‘I’m 32.’ ” Annie replied, “ ‘Oh
okay.’ ”
       At this point, Annie stopped responding to most of Johnson’s texts. Johnson also
called Annie several times, but she did not return his calls. On Tuesday morning
(September 1, 2015), she texted, “ ‘Do you feel bad,’ ” thinking she would decide
whether to report the rape based on whether Johnson felt sorry for what he had done.
Johnson replied later that afternoon, “ ‘No because u grab my head when I was making
love to u so u was in joying it to.’ ” Annie felt very offended by this response, which
solidified her resolve to file a police report.
       On Thursday afternoon (September 3, 2015), Annie called a rape hotline to try to
get advice on what filing a police report would entail. (She had tried calling the hotline a
few days earlier but everyone there was busy and she was unable to speak to anyone.)
Annie felt concerned that filing a police report and initiating the criminal process would
be too much for her when the ordinary demands of life—adjusting to a new city, meeting
expectations at a demanding job, and trying to live a normal life—seemed daunting. But
after talking with someone on the hotline, Annie called law enforcement that evening and
reported to two officers that Johnson had sex with her without consent. After checking
with the police on whether she could block Johnson’s number or whether they needed to
collect more evidence, Annie blocked Johnson’s number on her phone.
       Several days later, on September 15, 2015, Annie met with Sergeant Nathaniel
Yuen, who became the assigned investigator on the case. At Sergeant Yuen’s direction,
Annie unblocked Johnson’s number and texted him (and tried calling him once) in an
effort to obtain more information in connection with the police investigation. At 12:19
p.m. that day, Annie texted, “ ‘Hey are you free to chat.’ ” Johnson replied, “ ‘Yes bout
five are. six.’ ” Annie responded at 4:05 p.m., “ ‘I’ve been thinking about you and that
night,’ ” and then at 4:12 p.m., “ ‘I feel like a lot happened. Do you remember how


                                                  7
drunk I was.’ ” Johnson replied, “ ‘I was a little drunk my self u was drunker then me yes
I remember.’ ”
       Later, on Thursday, September 17, Johnson texted, “ ‘Like that you must not be a
vergin you got ur fhilone off I’m ur first I Hope,’ ” which seemed incomprehensible to
Annie. Then, at 4:35 a.m. the next day, Johnson texted, “ ‘U b playing mind games with
me all u got to say is stop calling are texting me and I will u b tripping saying one thing
then change up I’m not calling u no more I’m done trying to understand u it’s all good
god noes were my hart is I tried can get my mind straight with u calling me every blue
moon godbless.’ ” The last either of them texted was on the following Monday, when
Annie texted, “ ‘Hey.’ ”
       4.     The Defense Case
       Johnson’s sisters, Felecia Johnson (Felecia) and Twonda Johnson, testified as
character witnesses and stated Johnson is an honest person. They acknowledged he has a
criminal record, but they said he is the type of person who will admit when he has done
something wrong. Felecia also testified that, on Sunday, August 30, 2015, she was with
Johnson, and he received a phone call from Annie. Sergeant Yuen testified that, when he
reviewed Annie’s call log history at his meeting with her on September 15, it showed no
calls from Annie to Johnson.
       Johnson testified that, on the evening of Friday, August 28, 2015, he was with his
one-year-old son around the intersection of Market and Seventh Streets enjoying an
outdoor event. After an hour or two, the mother of Johnson’s son came and picked up the
child. Johnson stayed in the area, and after the sun went down, he began drinking a fifth
of Grand Marnier and a fifth of Hennessey with a friend. After drinking the fifths, he
went with his friend toward the intersection of Turk and Taylor to get more alcohol. He
saw Annie walking down the street from the direction of the Ruby Skye club. When they
made eye contact, Johnson asked Annie her name, which she gave. Johnson replied,
“ ‘My name is Skittles.’ ” Annie then asked for his real name and, when he gave it, she
grabbed him and his friend by the hand and asked, “ ‘Why don’t you all walk with me,’ ”




                                              8
as they walked toward Market Street. Johnson could tell that Annie had been drinking by
the way she was walking.
       Johnson testified that he, Annie, and his friend chatted and joked as they walked a
few blocks to Sixth and Market. They stopped at a bus stop to rest, and Annie sat on
Johnson’s lap instead of sitting on a bus stop seat. Johnson’s friend left, and Johnson and
Annie sat for five to 10 minutes. Annie then suggested going to her place and said she
lived on “Fifth.” Rather than going toward Fifth, however, Johnson and Annie walked
toward Seventh and Mission. Annie tried to put her keys into a gate in an alley, but the
gate did not open. She then said she needed to use the bathroom badly.
       At Johnson’s suggestion, they walked to the nearby Best Western so Annie could
use the restroom. While Annie was in the restroom, Johnson waited outside and smoked
a cigarette. He checked on her once and she responded that she was okay. When he
returned to the bathroom a second time, he could barely hear her. Johnson told personnel
at the front desk that he had a girlfriend in the restroom and needed help checking on her
because he felt something was wrong.
       The hotel staff tried to explain to Annie how to open the door, but Johnson did not
recall how long it took for Annie to comply. When the door opened, he saw Annie on the
floor in a puddle of water or urine. She had vomit on her. Johnson helped clean her up
and, at the hotel security guard’s direction, he picked Annie up to move her from the
bathroom toward the front door. Once at the front of the hotel, Annie said she felt like
throwing up again and Johnson put her down. Annie threw up in a nearby garbage can.
Annie then walked back to the bathroom to get something and came back outside
quickly. Annie’s attitude changed after leaving the bathroom, and she began saying
negative things about how she did not want to go with Johnson.
       Johnson began to leave, but the security guard stopped him and told him not to
leave Annie when she was drunk. Johnson returned, and a cab came around that time.
The driver refused to serve Annie because “ ‘[s]he is throwing up too much’ ” and left
with Johnson’s broken belt and Annie’s shoes in the cab. Annie apologized for what she



                                             9
said previously and said, “ ‘Let’s just get out of here. Let’s just go. Let’s just walk.’ ”
Annie stated, “ ‘I’ll just go with you to your room or wherever your place is at.’ ”
       Johnson testified that Annie, now barefoot, was “walking fine” and grabbed his
hand again. Annie did not seem as drunk as when she was in the bathroom at the Best
Western. But Johnson also testified Annie had to sit down in an alley for a long time
because her head hurt very badly. At one point, Annie asked for water, and Johnson gave
her a bottled water that the Best Western staff had provided for her earlier. Johnson told
Annie he was going to rent a room at the Henry Hotel and asked if she wanted to stay
with him for the night. Annie responded that she did. Johnson then went to get a walker
or wheelchair for Annie because she was barefoot. Johnson saw his friend Big Chuck
pass by, and told him, “ ‘I need some help with my girlfriend,’ ” and asked him for a
walker. Big Chuck came back with a walker, and Annie got up and sat on the walker
with some assistance. Big Chuck pushed her into the Henry Hotel.
       Johnson testified that, once inside the room at the Henry Hotel, Annie got up from
the walker and lay down on the bed. Johnson then left with Big Chuck and walked him
to the elevator where he gave Big Chuck seven dollars for his assistance with the walker.
When he returned to the room, Annie asked him for a bucket because she needed to
throw up again. She threw up a little bit. Annie then seemed less drunk than she had
previously. Sometime before Annie got into bed, Johnson asked her to take her soiled
jeans off.
       Johnson testified that Annie lay with her pants off but in her panties, and after a
while Johnson took off his pants as well because he figured he might as well relax too.
Johnson watched television for a while. Annie then put her hands around his head and
pushed it toward her vagina, which prompted him to give her oral sex. Annie was awake,
was moving Johnson’s head around, and was moaning as if what Johnson was doing felt
good. Annie then pulled her panties down further and removed them with Johnson’s
help. Johnson removed his boxers, and then he placed his penis into Annie’s vagina.
Johnson testified that Annie was awake with her eyes open and never told him to stop or
that he was hurting her. They were moaning like they were “both into it.” Johnson


                                             10
pulled his penis out of Annie’s vagina to ejaculate. Annie was still awake and turned to
her side. Then they both fell asleep.
       Johnson testified that, when they woke up the next morning, Annie asked where
they were, and he replied that they were at the Henry Hotel. Annie joked with him by
asking how old he was and teasing him by claiming she was 16. She then said she had to
go to a party, asked for her things, and asked him to walk her to her Uber. While still in
the room, Annie said she was mad at herself and disappointed in herself for the way
things happened, which prompted Johnson to ask if she was mad at him. Annie stated
she was only mad at herself and asked for the bathroom. When she returned, she said she
had to leave and asked him to take her to the cab. Once in the car, she opened the door
and told him, “ ‘You took my V-Card,’ ” which he did not understand until later to mean
that she had been a virgin. Annie had not previously said she was a virgin.
       Johnson said Annie texted him to check whether she had left her keys in the room
and that he texted to check on her later that day. He wanted to get to know her better and
tried to keep in touch with her with texts and calls.
C.     The Verdict and Sentence
       At the conclusion of the trial, the jury found Johnson guilty of rape of an
intoxicated person (count three). The jury found Johnson not guilty of the kidnapping
and forcible rape charges in counts one and two and found the kidnapping special
allegations were not true. For count one, the jury was unable to reach a verdict as to the
lesser included offenses of simple kidnapping (§ 207) and false imprisonment (§ 236).
       The trial court sentenced Johnson to the upper term of eight years in prison (§ 264,
subd. (a)). Johnson appealed.
                                     II. DISCUSSION
A.     The Instruction on Rape of an Intoxicated Person
       The trial court, using a version of CALCRIM No. 1002, instructed the jury the
crime of rape of an intoxicated person has the following elements: (1) the defendant had
sexual intercourse with a woman; (2) the defendant and the woman were not married;
(3) the effects of an intoxicating substance prevented the woman from resisting; and


                                             11
(4) “[t]he defendant knew or reasonably should have known that the effect of an
intoxicating substance prevented the woman from resisting.” (See § 261, subd. (a)(3)
[“Rape is an act of sexual intercourse accomplished with a person not the spouse of the
perpetrator . . . [¶] . . . [¶] (3) [w]here [the] person is prevented from resisting by any
intoxicating or anesthetic substance, or any controlled substance, and this condition was
known, or reasonably should have been known by the accused.”].) The court further
instructed that an intoxicating substance prevents resistance when it prevents the giving
of legal consent—that is, “consent given freely and voluntarily by someone who knows
the nature of the act involved.”
       At Johnson’s request, the court included a bracketed, optional portion of
CALCRIM No. 1002, which states: “The defendant is not guilty of this crime if he
actually and reasonably believed that the woman was capable of consenting to sexual
intercourse, even if that belief was wrong. The People have the burden of proving
beyond a reasonable doubt that the defendant did not actually and reasonably believe that
the woman was capable of consenting. If the People have not met this burden, you must
find the defendant not guilty.” (Italics added.)
       On appeal, Johnson argues the optional portion of the instruction, which addresses
a defendant’s reasonable belief in the capacity to consent (and which Johnson refers to as
“the defense of mistake of fact”), was legally incorrect. He contends that a defendant’s
belief in the capacity to consent, whether or not that belief was reasonable, is a defense to
the charged crime. He relies on section 26, which refers to a defendant’s “mistake of
fact” as a circumstance preventing criminal liability but does not expressly state the
mistake must be reasonable. (See § 26 [“All persons are capable of committing crimes
except those belonging to the following classes: [¶] . . . [¶] Three—Persons who
committed the act or made the omission charged under an ignorance or mistake of fact,
which disproves any criminal intent.”].)
       We reject this argument. The “defense” described in the optional portion of
CALCRIM No. 1002—the defendant actually and reasonably believed the victim was
capable of giving legal consent—is “merely the negation of an element of the offense” of


                                               12
rape of an intoxicated person.3 (Lujano, supra, 15 Cal.App.5th at p. 195 [discussing
analogous elements and instruction pertaining to sodomy of an intoxicated person, § 286,
subd. (i)].) Specifically, the optional language in CALCRIM No. 1002 restates the fourth
element of the offense listed earlier in the instruction: “[I]nstead of saying that the
defendant can be guilty only if he knew or reasonably should have known that the victim
was prevented from resisting, the optional language says that the defendant is not guilty if
he actually and reasonably believed that the victim was capable of consenting.” (Lujano,
supra, 15 Cal.App.5th at p. 193, italics added.) Both portions of the instruction
accurately reflect the statutory language specifying that rape occurs when a woman is
prevented from resisting by intoxicants “and this condition was known, or reasonably
should have been known by the accused.” (§ 261, subd. (a)(3), italics added.)
       We are not persuaded by Johnson’s suggestion that the general language of section
26 overrides this legislative scheme and requires that, in every case (and regardless of the
mental state specified for the statute at issue), a defendant who makes an unreasonable
mistake of fact has a defense to liability.4 As Johnson acknowledges, when a mistake of
fact is asserted as a defense to a rape charge (as in the case of the Mayberry affirmative
defense to forcible rape, which is based on § 26), our Supreme Court has expressly
required that the mistake be reasonable. (People v. Williams (1992) 4 Cal.4th 354, 360–
361 [“regardless of how strongly a defendant may subjectively believe a person has
consented to sexual intercourse, that belief must be formed under circumstances society

       3
         This contrasts with the “Mayberry defense” to a charge of forcible rape, i.e.,
“that the defendant actually and reasonably but mistakenly believed that the victim
consented.” (People v. Lujano (2017) 15 Cal.App.5th 187, 194 (Lujano); see People v.
Mayberry (1975) 15 Cal.3d 143, 154–155.) “[B]ecause the victim’s lack of consent is an
element of [forcible rape] but the defendant’s belief in the absence of consent is not an
element, the Mayberry defense is an affirmative defense, not merely the negation of an
element of the offense.” (Lujano, supra, 15 Cal.App.5th at p. 194.)
       4
         In part II.C below, we reject Johnson’s argument that the mental state specified
in section 261, subdivision (a)(3) runs afoul of section 20’s requirement that “[i]n every
crime or public offense there must exist a union, or joint operation of act and intent, or
criminal negligence.”


                                              13
will tolerate as reasonable” for the Mayberry defense to apply].) To the extent Johnson
suggests that support for a contrary rule can be gleaned from legal commentary or from
language in judicial opinions addressing other issues (e.g., People v. Elmore (2014) 59
Cal.4th 121, 136–137 [discussing unreasonable self-defense doctrine applicable in
homicide cases]), that argument provides no basis for reversal here. As we noted in a
prior case involving the Mayberry defense to rape, “[w]e of course are bound to follow
the California Supreme Court’s test for [the] mistake of fact defense.” (People v. Castillo
(1987) 193 Cal.App.3d 119, 124, fn. 7.)
B.     Vagueness of Section 261, Subdivision (a)(3)
       Johnson contends the “reasonably should have been known” language in section
261, subdivision (a)(3) is unconstitutionally vague. (See § 261, subd. (a)(3) [rape occurs
when a “person is prevented from resisting by any intoxicating or anesthetic substance
. . . and this condition was known, or reasonably should have been known by the
accused”].) Johnson argues specifically that “it is impossible to determine when a person
‘reasonably should have known’ that another is ‘prevented from resisting by any
intoxicating or anesthetic substance.’ ” We reject this argument.
       The due process clauses of the federal and state constitutions require “ ‘a
reasonable degree of certainty in legislation, especially in the criminal law . . . .’
[Citation.] ‘[A] penal statute [must] define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory enforcement.’ ” (People v.
Heitzman (1994) 9 Cal.4th 189, 199.) In addressing a vagueness challenge, we apply a
presumption in favor of the constitutionality of statutes. (Williams v. Garcetti (1993) 5
Cal.4th 561, 568.) A statute “ ‘ “cannot be held void for uncertainty if any reasonable
and practical construction can be given to its language.” ’ ” (Ibid.)
       In People v. Linwood (2003) 105 Cal.App.4th 59, 66 (Linwood), our colleagues in
Division One of the Fourth Appellate District rejected the claim that the “reasonably
should have been known” language in section 261, subdivision (a)(3) is
unconstitutionally vague. The Linwood court explained: “The concept of reasonableness


                                              14
in criminal statutes is not new. [Citation.] ‘ “There is no formula for the determination
of reasonableness.” Yet standards of this kind are not impermissively vague, provided
their meaning can be objectively ascertained by reference to common experiences of
mankind.’ [Citation.] ‘Reasonableness as the standard of an act, which can be
determined objectively under the circumstances, is a constitutionally valid standard of
law.’ ” (Linwood, supra, 105 Cal.App.4th at p. 67.) The use of a reasonableness
standard “does not make a statute uncertain; it requires either actual or constructive
knowledge of the risk. [Citation.] Imputed knowledge of the risk is tested on an
objective basis: ‘ “[I]f a reasonable person in defendant’s position would have been
aware of the risk involved, then defendant is presumed to have had such an
awareness.” ’ ” (Ibid.)
        We agree with the Linwood court and hold section 261, subdivision (a)(3) is not
unconstitutionally vague. Johnson notes that the defendant in Linwood apparently argued
primarily that section 261, subdivision (a)(3) did not provide adequate notice for an
individual to avoid liability under the statute. (Linwood, supra, 105 Cal.App.4th at
p. 66.) Johnson argues Linwood is not dispositive as to whether the statute satisfies the
other concern underlying constitutional vagueness doctrine, i.e., the need to provide an
adequate guide for official decisionmakers and thus avoid arbitrary and discriminatory
enforcement. (See Williams v. Garcetti, supra, 5 Cal.4th at p. 567 [“a criminal statute
must ‘ “be definite enough to provide (1) a standard of conduct for those whose activities
are proscribed and (2) a standard for police enforcement and for ascertainment of
guilt” ’ ”].)
        But the Linwood court did address this second vagueness concern in part,
concluding the statute provides a definite enough standard for a jury to determine guilt.
(Linwood, supra, 105 Cal.App.4th at p. 68.) Specifically, the Linwood court held that a
jury applying the statute can “determine whether a defendant reasonably should have
known that a person’s level of intoxication was such as to prevent him or her from
resisting an act of sexual intercourse[.]” (Ibid.) The court relied on People v. Rodriguez
(1986) 42 Cal.3d 730, in which our Supreme Court upheld a statute (§ 190.2,


                                             15
subd. (a)(7)) providing for a possible death penalty if a defendant in a murder case
“reasonably should have known” his victim was a peace officer engaged in the
performance of official duty. (Rodriguez, supra, at pp. 779, 782; see Linwood, supra, at
p. 68.)
          In that context, the Supreme Court stated in part that “the average juror has the
ability to cull from everyday experience a standard by which to assess the ability of a
defendant to know the status of his or her victim.” (Rodriguez, supra, 42 Cal.3d at
p. 782, italics added.) The Linwood court similarly concluded that “jurors are able to
resolve the factual issue of whether a defendant reasonably should have known that a
given victim was too intoxicated to resist an act of sexual intercourse.” (Linwood, supra,
105 Cal.App.4th at p. 68.) We agree that jurors drawing on common experience can
make this determination. We also conclude law enforcement officers and prosecutors are
just as able as jurors to apply the statute’s reasonableness standard, thus obviating any
concern about arbitrary and discriminatory enforcement of the statute.
          The familiar reasonableness standard used in section 261, subdivision (a)(3)
distinguishes it from the legislation found problematic in the decisions cited by Johnson.
(See Johnson v. United States (2015) 576 U.S. ___ [135 S.Ct. 2551, 2558] [Supreme
Court’s “repeated attempts and repeated failures to craft a principled and objective
standard out of the residual clause [of the federal Armed Career Criminal Act] confirm its
hopeless indeterminacy”]; City of Chicago v. Morales (1999) 527 U.S. 41, 61–63
[ordinance defining loitering as remaining in one place “ ‘with no apparent purpose’ ”
provided insufficient guidance to law enforcement]; Kolender v. Lawson (1983) 461 U.S.
352, 358–360 [statute that had been construed to permit arrest of persons who failed to
provide “ ‘credible and reliable’ identification” did not provide sufficient standards to
regulate police discretion].)
C.        The Mental State Element of the Offense of Rape of an Intoxicated Person
          Johnson argues the language in section 261, subdivision (a)(3) permitting
conviction when a person’s intoxicated condition “reasonably should have been known”
by the defendant improperly establishes a civil negligence standard for imposing criminal


                                               16
liability and thus violates section 20 and due process. The Linwood court rejected a
similar argument (Linwood, supra, 105 Cal.App.4th at pp. 70–72), and we do as well.
       Section 20 states: “In every crime or public offense there must exist a union, or
joint operation of act and intent, or criminal negligence.” Our Supreme Court has stated:
“The interpretive rule embodied in this statute is by no means inflexible, public welfare
offenses being the chief recognized exception. Nonetheless, at least where the penalties
imposed are substantial, section 20 can fairly be said to establish a presumption against
criminal liability without mental fault or negligence, rebuttable only by compelling
evidence of legislative intent to dispense with mens rea entirely.” (In re Jorge M. (2000)
23 Cal.4th 866, 879.)
       Consistent with this general rule, section 261, subdivision (a)(3) includes a mens
rea requirement. Conviction of rape requires proof of general criminal intent, i.e., “the
perpetrator’s criminal intent to commit sexual intercourse without the partner’s consent.”
(Linwood, supra, 105 Cal.App.4th at p. 70.) Under section 261, one circumstance that
makes sexual intercourse nonconsensual and therefore criminal is the victim’s inability to
consent due to a degree of intoxication that prevents resistance. (§ 261, subd. (a)(3);
Linwood, supra, at p. 71.) The statute requires proof that the victim’s condition “was
known, or reasonably should have been known” by the defendant. (§ 261, subd. (a)(3);
Linwood, supra, at p. 71.) As the Linwood court explained, this language “does not
eliminate the knowledge requirement; rather, it sets a standard of knowledge or
constructive knowledge.” (Linwood, supra, at p. 71.)
       Johnson contends, however, that the statute’s articulation of the constructive
knowledge standard (“reasonably should have been known”) is improper because it does
not track the usual description of “criminal negligence” and is more akin to a “civil
negligence” standard. The Linwood court acknowledged that a “ ‘ “reasonably should
have known” formulation departs somewhat from the usual description of criminal
negligence.’ ” (Linwood, supra, 105 Cal.App.4th at p. 71.) In defining the latter term,
our Supreme Court has stated, “ ‘Criminal negligence refers to “ ‘a higher degree of
negligence than is required to establish negligent default on a mere civil issue. The


                                            17
negligence must be aggravated, culpable, gross, or reckless.’ ” ’ ” (Stark v. Superior
Court (2011) 52 Cal.4th 368, 399.)
       But there is no requirement that a criminal statute must state a negligence standard
using this precise language. In Williams v. Garcetti, supra, 5 Cal.4th at p. 573, our
Supreme Court held that a statute requiring a parent to exercise “reasonable supervision
and control” over his or her minor children required proof of criminal negligence. The
court stated: “The duty to act ‘reasonably’ reflects the applicability of the negligence
doctrine—here, criminal, not civil, negligence.” (Ibid.) The court in Linwood similarly
interpreted the reasonableness language in section 261, subdivision (a)(3) as applying “a
criminal negligence standard rather than a civil negligence standard on the accused’s
knowledge of the victim’s disabling intoxication.” (Linwood, supra, 105 Cal.App.4th at
p. 71.) We decline to hold that either section 20 or due process principles required the
Legislature to describe the constructive knowledge standard in section 261,
subdivision (a)(3) differently than it did.
D.     Prosecutorial Misconduct
       Johnson contends several acts of prosecutorial misconduct require reversal of his
conviction. We disagree.
       “ ‘ “ ‘A prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the conviction a
denial of due process. 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 trial court or
the jury.’ . . . To preserve a claim of prosecutorial misconduct for appeal, a defendant
must make a timely and specific objection and ask the trial court to admonish the jury to
disregard the improper argument.” ’ ” (People v. Charles (2015) 61 Cal.4th 308, 327.)
       1.     The Reference to an Excluded Prior Conviction
       Johnson first argues the prosecutor committed misconduct by referring to
Johnson’s having been convicted of selling crack, in violation of an in limine ruling. The
court ruled in limine that the prosecution could introduce, for impeachment, evidence of


                                              18
Johnson’s three most recent felony convictions, which included a 2010 conviction for
sale of marijuana (Health & Saf. Code, § 11360, subd. (a)). In an earlier colloquy with
counsel, the court had discussed the possibility of admitting Johnson’s four most recent
convictions, a ruling that would have permitted evidence of a 2006 conviction for
possession of cocaine base for sale (Health & Saf. Code, § 11351.5).
       During cross-examination of Johnson’s sister Felecia, the prosecutor asked if
Johnson had “a felony conviction for selling crack,” and Felecia stated he did. Defense
counsel objected, stating the conviction should have been referred to more generically, as
a “sale of narcotics, sale of controlled substance.” The court directed the prosecutor to
rephrase the question; the prosecutor asked if Johnson had “a conviction for selling
narcotics”; and Felecia responded that he did. Defense counsel later argued the question
was misconduct and asked the court to give a curative instruction. Counsel also filed a
motion for a mistrial based on this issue and on certain questions the prosecutor asked
while cross-examining Johnson. The court denied the mistrial motion but gave a curative
instruction as part of its final set of instructions, telling the jury it was “not to consider
anything about” the “specific narcotic” that had been mentioned during the discussion of
Johnson’s prior convictions, and should consider “just merely the conviction for sale of a
narcotic.”
       The Attorney General acknowledges that, under the in limine ruling, the
prosecutor should have referred only to a conviction for sale of narcotics (or sale of
marijuana). He argues, however, and we agree, that the prosecutor’s error does not
require reversal. The single question on this point was not a pattern of egregious conduct
establishing a federal due process violation. (See People v. Samayoa (1997) 15 Cal.4th
795, 841.) And while California courts have held it is misconduct for a prosecutor to
“ ‘ “ ‘intentionally elicit inadmissible testimony’ ” ’ ” (People v. Kovacich (2011) 201
Cal.App.4th 863, 902), the record here does not establish intentional misconduct. Since
the court initially considered admitting Johnson’s four most recent convictions (one of
which was for possession for sale of cocaine base), the prosecutor may have mistakenly



                                               19
believed that was one of the admitted convictions or may have conflated it with the
marijuana conviction.
       Finally, in our view, the court’s prompt correction of the prosecutor, followed by a
curative instruction on the issue, rendered any error harmless. The single improper
question here contrasts with the “repeated insinuations” of prior drug dealing that the
court found prejudicial in People v. Wagner (1975) 13 Cal.3d 612, 621 (the case on
which Johnson principally relies).
       2.     Cross-Examination of Johnson
       During his cross-examination of Johnson, the prosecutor asked several questions
that Johnson claims amount to reversible misconduct. We disagree.
       The first set of challenged questions occurred at the outset of cross-examination.
The prosecutor asked, “What does it feel like exactly when a woman can’t really fight
back, and you’re raping her?” Defense counsel objected to the question as
argumentative, and the court sustained the objection and instructed the jury to disregard
the question. The prosecutor then asked, “Have you ever had sex with an unconscious
woman before this night?” Johnson answered, “Not in my life.” The prosecutor asked,
“Just this night?” Johnson replied, “No nights.” Defense counsel objected; the court held
a sidebar conference; and the prosecutor ceased this line of questioning.
       The court correctly ruled these questions were argumentative and redirected the
prosecutor. (See generally People v. Chatman (2006) 38 Cal.4th 344, 384.) Because the
court “sustained objections to the argumentative element of the prosecutor’s questioning,
we assume any prejudice was abated.” (People v. Dykes (2009) 46 Cal.4th 731, 764.)
The brief exchange described above, promptly curtailed by the trial court, does not rise to
the level of reversible misconduct.
       The prosecutor later asked questions about whether Johnson had found Annie
attractive, a line of inquiry that was relevant to establish Johnson had a motive to kidnap
or rape Annie. During this questioning, the prosecutor referred to Johnson’s testimony
that Annie sat on his lap at a bus stop and asked, “Do you like pretty girls sitting on your
lap?” Johnson expressed confusion, and defense counsel objected to the question as


                                             20
argumentative and on relevance grounds. The court held a sidebar conference and
directed the prosecutor to rephrase the question, after which he asked more general
questions about whether Johnson had found Annie attractive and cool, and Johnson
agreed he had. Although the court did not expressly rule that the challenged question was
argumentative, the court’s redirection of the prosecutor ameliorated any prejudice from
the question.
       Finally, at a later point in his cross-examination, the prosecutor asked Johnson,
“[D]o you feel as if it would be okay if someone picked up one of your daughters or one
of your sisters when they were drunk, took them to the Henry Hotel and had sex with
them?” The court initially sustained a defense objection to the question as argumentative,
but the prosecutor stated the question was designed to impeach Johnson based on his
police interview, and the court stated it would give the prosecutor some “leeway.” When
Johnson stated he was unable to answer the question, the prosecutor played a segment of
an audiotape of Johnson’s police interview in which he stated it would not be okay for
that to happen to one of his daughters or one of his sisters.
       The prosecutor’s question on this point was not misconduct. Johnson’s admission
to the police that he would find his conduct inappropriate if others had done the same
thing was relevant, as it supported a conclusion he did not hold an actual mistaken belief
that Annie had consented. Questioning on this subject also was relevant to impeach his
credibility. (See People v. Dykes, supra, 46 Cal.4th at p. 764 [“When a defendant
chooses to testify concerning the charged crimes, the prosecutor can probe the testimony
in detail and the scope of cross-examination is very broad.”].)
       3.       Closing Argument
       In closing argument, after reminding the jurors they had agreed during jury
selection that they would not place responsibility for rape on the raped woman, the
prosecutor stated about Johnson, “And he bears a whole hell of a lot of responsibility for
his disgusting and deplorable conduct.” Defense counsel objected, and the court
overruled the objection. The prosecutor then stated, “Rape is disgusting. And I’m going
to keep calling it disgusting. He is disgusting for what he did.” The prosecutor later


                                             21
concluded his discussion of the consent element of kidnapping by calling Johnson’s act
“disgusting conduct.”
       Johnson contends the prosecutor, by making these comments, improperly sought
to “demoniz[e]” him. Johnson forfeited this claim by failing to ask the trial court to
admonish the jury to disregard the argument. (People v. Charles, supra, 61 Cal.4th at
pp. 327–328.)
       In any event, there was no misconduct. “Prosecutorial argument ‘may include
opprobrious epithets warranted by the evidence. [Citation.] Where they are so
supported, we have condoned a wide range of epithets to describe the egregious nature of
the defendant’s conduct.’ ” (People v. Garcia (2011) 52 Cal.4th 706, 759.) The
prosecutor here focused on Johnson’s conduct as shown by the evidence, saying that
conduct was “disgusting and deplorable,” and saying once that Johnson was “disgusting”
because of his conduct (“He is disgusting for what he did.”). This was permissible
commentary based on the evidence and does not compare to the comments criticized in
People v. Herring (1993) 20 Cal.App.4th 1066, 1073–1075 (the case on which Johnson
principally relies), where the prosecutor referred to the defendant as “ ‘primal man in his
most basic level,’ ” a “ ‘dog in heat,’ ” and a “ ‘parasite.’ ”
       Johnson also contends that the prosecutor, during argument, improperly denigrated
defense counsel. The prosecutor, noting the evidence as to Annie’s level of intoxication,
argued she did not have the mental capacity to consent to go with Johnson (for purposes
of the kidnapping charge), and characterized the defense argument to the contrary as
“laughable.” The prosecutor stated, “She may have been the most intoxicated person in
San Francisco that night, and they’re actually trying to say with a straight face that this
woman consented.” The court overruled defense objections to both statements.
       The prosecutor later argued that there was overwhelming evidence of guilt and
that, as a result, the defense strategy was to “attack the victim.” “They say she’s
mistaken. She’s dumb. She’s lying. She’s drunk. She texted him. She didn’t report this
quick enough. When you have no evidence in a case specifically like this, you attack this



                                               22
poor woman.” Defense counsel objected that this argument was improper “burden
shifting,” and the court overruled the objection.
       Johnson forfeited any claim of misconduct based on the cited portions of closing
argument by failing to ask the court to admonish the jury. (People v. Charles, supra, 61
Cal.4th at pp. 327–328.) In any event, the challenged statements did not constitute
misconduct. The prosecutor criticized the persuasive force of the defense’s arguments;
he did not denigrate defense counsel personally. (See id. at pp. 328–329.)
E.     Instruction on Failure to Explain or Deny Adverse Evidence
       The trial court, over a defense objection, instructed the jury with CALCRIM
No. 361, as follows: “If the defendant failed in his testimony to explain or deny evidence
against him, and if he could reasonably be expected to have done so based on what he
knew, you may consider his failure to explain or deny in evaluating that evidence. Any
such failure is not enough by itself to prove guilt. The People must still prove the
defendant guilty beyond a reasonable doubt. [¶] If the defendant failed to explain or
deny, it is up to you to decide the meaning and importance of that failure.”
       Johnson contends the court erred by giving this instruction. We review claims of
instructional error de novo. (People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1066.)
CALCRIM No. 361 “applies only when a [testifying] defendant completely fails to
explain or deny incriminating evidence, or claims to lack knowledge and it appears from
the evidence that the defendant could reasonably be expected to have that knowledge.”
(People v. Cortez (2016) 63 Cal.4th 101, 117.) It is not sufficient that the defendant’s
testimony “conflicts with other evidence or may be characterized as improbable,
incredible, unbelievable, or bizarre”; such testimony is not “ ‘the functional equivalent of
no explanation at all.’ ” (Ibid.)
       Here, the trial court concluded it was appropriate to give the instruction because
“[t]here [were] a lot of questions that I think would be deemed adverse testimony that
was raised in cross-examination, that there were answers of—there was either no answer
or I don’t remember or I don’t want to answer that[.]” The issue is close, but we




                                             23
conclude there were at least two exchanges during Johnson’s cross-examination that
warranted giving the instruction, either of which was sufficient to support its use.
       First, it was abundantly clear Annie was nearly totally debilitated when she and
Johnson arrived at the Henry Hotel, since he testified that, with Big Chuck’s help, he had
to use a walker to get her there and she was still in the walker when they reached the
room. The prosecutor asked Johnson if he had intercourse with Annie very soon, or
within “minutes,” after they entered the room at the Henry Hotel. Johnson replied, “It
wasn’t minutes. It was maybe 15, 20 minutes. It could have been an hour, half hour.
I’m not for sure, but I calculated it the best way I could that I know.” The prosecutor
played portions of the audiotape of Johnson’s statement to Sergeant Yuen, in which he
stated he had sex “ ‘maybe ten, maybe fifteen’ ” minutes after arriving in the hotel room.
Johnson then repeated that he did not know for sure. The prosecutor asked whether
Johnson’s memory was more fresh at the time of the interview or several months later at
the time at trial. Johnson stated, “I can’t say that. I don’t know.”
       By giving these answers (and by declining to acknowledge his memory was
fresher shortly after the incident than at trial), Johnson failed to provide an explanation of
the evidence that he told Sergeant Yuen he had sex shortly after entering the hotel room.
Johnson “could reasonably be expected to have” knowledge of how long he was in the
room before having sex and why he told Sergeant Yuen what he did about that issue.
(See People v. Cortez, supra, 63 Cal.4th at p. 117.)
       Second, the prosecutor asked Johnson if he had left Annie a voicemail, and
Johnson stated he had. The prosecutor then asked: “And when you left that voice mail
you said, ‘Maybe I shouldn’t have did what I did.’ Do you remember saying that?”
Johnson replied no. When the prosecutor asked whether playing the voicemail would
refresh his memory, Johnson replied, “You can play it and play it over and over. I just
don’t remember.” When the prosecutor asked, “So you may have said it,” Johnson
replied, “I may have said it. I may have not.” The prosecutor added, “If you said maybe
I shouldn’t have did what I did, what is it that you did that you shouldn’t have done?”
Johnson replied, “I don’t know.” Johnson’s failure to deny or explain an incriminating


                                             24
statement that he agreed he might have made provided a basis for giving the adverse
inference instruction. Johnson “could reasonably be expected to have” knowledge of
what he meant when he told Annie that maybe he should not have done what he did.
(See People v. Cortez, supra, 63 Cal.4th at p. 117.)
F.      Admission of Prior Convictions for Impeachment
        The court ruled the prosecution could introduce, for impeachment, evidence of
Johnson’s three most recent felony convictions, which included (1) a 2012 conviction for
grand theft (§ 487, subd. (c)), (2) a 2010 conviction for sale of marijuana (Health & Saf.
Code, § 11360, subd. (a)), and (3) a 2010 conviction for battery of a cohabitant (§ 273.5,
subd. (a)). For each charge, the court permitted the prosecution to use “the fact of the
conviction, the date of the conviction, the county and court where the conviction occurred
and the actual charge.” After discussion with counsel, the court ruled the battery
conviction was to be described as battery of a “cohabitant,” the term suggested by
defense counsel. Johnson and his sisters testified Johnson had been convicted of these
offenses.
        “A witness may be impeached with any prior conduct involving moral turpitude
whether or not it resulted in a felony conviction, subject to the trial court’s exercise of
discretion under Evidence Code section 352.” (People v. Clark (2011) 52 Cal.4th 856,
931 (Clark).) “When determining whether to admit a prior conviction for impeachment
purposes, the court should consider, among other factors, [(1)] whether it reflects on the
witness’s honesty or veracity, [(2)] whether it is near or remote in time, [(3)] whether it is
for the same or similar conduct as the charged offense, and [(4)] what effect its admission
would have on the defendant’s decision to testify.” (Ibid.) The court did not abuse its
discretion under Evidence Code section 352 in admitting the three convictions at issue
here.
        Addressing the above factors in his appellate brief, Johnson acknowledges the
three convictions are for crimes involving moral turpitude and are not remote in time.
Their admission did not deter Johnson from testifying. As to the third factor, Johnson
agrees the drug and theft offenses are not similar to the charges in the present case. He


                                              25
contends, however, the conviction for battery of a cohabitant was similar to the current
charges and therefore prejudicial, because each case “involved a crime of violence
perpetrated against a woman.”
       The court did not abuse its discretion on this point. While the similarity between a
prior conviction and the charged offenses “is a factor for the court to consider when
balancing probative value against prejudice, it is not dispositive.” (Clark, supra, 52
Cal.4th at p. 932.) And the court explained its conclusion that the prior battery and the
current case were not as similar as Johnson contended, because the present matter was “a
consent case,” in which there “may have been some force, but no violence.” The court
elaborated: “Had the allegations been he had forced her off the street, you know, battered
her in some way and then sexually assaulted her, that would be one thing,” but the
evidence here suggested he was “sort of taking care of her” and “putting a jacket on her.”
The court reasonably concluded this dissimilarity “diminishes any potential prejudice.”
G.     The Failure to Instruct on the Prosecution’s Failure to Disclose Evidence
       1.     Background
       Annie testified on cross-examination that, on September 15, at Sergeant Yuen’s
direction, she resumed sending text messages to Johnson in an effort to obtain more
information from him. When Sergeant Yuen testified, he confirmed he asked Annie to
attempt a pretextual phone call (which Johnson did not answer) and to send pretextual
text messages to Johnson. Sergeant Yuen stated this is a common investigatory technique
that he uses in almost every sexual assault case. He also stated that, although he recorded
his interview with Annie, he did not record his explanation to her of the investigative
technique of conducting pretextual communications.
       In hearings outside the jury’s presence, defense counsel argued the prosecution
violated its discovery obligations by failing to disclose prior to trial that some of Annie’s
text messages to Johnson (i.e., those sent on and after September 15) were pretextual.
The prosecution did produce prior to trial the texts themselves, as well as documents
showing that Annie met with Sergeant Yuen on September 15 and that the pretextual
phone call was made on that date. Sergeant Yuen’s written chronology of his


                                             26
investigation referred to the pretextual phone call but did not mention that pretextual text
messages were sent. The prosecutor stated he did not know prior to the testimony on this
issue that the texts beginning on September 15 were pretextual, although he assumed they
were since they began on the same date as the sergeant’s interview of Annie and the
pretextual phone call.
       Defense counsel asked the court to give a late discovery instruction (CALCRIM
No. 306) based on the alleged discovery violation. CALCRIM No. 306 states in relevant
part: “Both the People and the defense must disclose their evidence to the other side
before trial, within the time limits set by law. Failure to follow this rule may deny the
other side the chance to produce all relevant evidence, to counter opposing evidence, or
to receive a fair trial. [¶] An attorney for the (People/defense) failed to disclose:
_________________ <describe evidence that was not disclosed> [within the legal time
period]. [¶] In evaluating the weight and significance of that evidence, you may consider
the effect, if any, of that late disclosure.”
       During several discussions with counsel, the court offered to allow defense
counsel to recall Annie or Sergeant Yuen to testify further about the pretextual nature of
the text messages. The court ultimately declined, however, to give the late discovery
instruction. The court emphasized that its ruling did not preclude defense counsel from
“arguing anything with regard to [the discovery issue] if you wish.”
       2.      Analysis
       Johnson contends the court prejudicially erred by declining to instruct the jury
with CALCRIM No. 306. We disagree.
       “Section 1054.1 (the reciprocal-discovery statute) ‘. . . requires the prosecution to
disclose to the defense . . . certain categories of evidence “in the possession of the
prosecuting attorney or [known by] the prosecuting attorney . . . to be in the possession of
the investigating agencies.” ’ ” (People v. Verdugo (2010) 50 Cal.4th 263, 279–280
(Verdugo).) Evidence subject to disclosure includes “[a]ny exculpatory evidence.”
(§ 1054.1, subd. (e).) “ ‘Absent good cause, such evidence must be disclosed at least 30




                                                27
days before trial, or immediately if discovered or obtained within 30 days of trial.
(§ 1054.7.)’ ” (Verdugo, supra, 50 Cal.4th at p. 280.)
       “Upon a showing both that the defense complied with the informal discovery
procedures provided by the statute, and that the prosecutor has not complied with section
1054.1, a trial court ‘may make any order necessary to enforce the provisions’ of the
statute, ‘including, but not limited to, immediate disclosure, . . . continuance of the
matter, or any other lawful order.’ [Citation.] The court may also ‘advise the jury of any
failure or refusal to disclose and of any untimely disclosure.’ ” (Verdugo, supra, 50
Cal.4th at p. 280.) The court’s ruling on discovery sanctions is reviewed under an abuse
of discretion standard. (People v. Ayala (2000) 23 Cal.4th 225, 299.) “A violation of
section 1054.1 is subject to the harmless-error standard set forth in People v. Watson
(1956) 46 Cal.2d 818, 836 . . . .” (Verdugo, supra, 50 Cal.4th at p. 280.)
       Even assuming Johnson is correct that a section 1054.1 violation occurred, he has
not met his burden of showing he was prejudiced by the court’s refusal to give the
CALCRIM No. 306 instruction. The jury knew from the testimony of Annie and
Sergeant Yuen that the text messages beginning on September 15 (and the phone call on
that date) were pretextual. To the extent this fact was relevant to the jurors’ assessment
of Annie’s credibility or the prosecution’s case more generally, defense counsel was free
to, and did, explore it in questioning both Annie and Sergeant Yuen. As noted, the court
also offered to allow counsel to recall either or both of the witnesses to address the issue
more fully. Johnson does not explain what his counsel would have done differently if the
pretextual nature of the texts had been disclosed earlier.
       In these circumstances, we conclude it is not reasonably probable that telling the
jurors the additional fact that the prosecution did not disclose the pretextual nature of the
text messages prior to trial would have significantly affected their assessment of the
evidence or led to Johnson’s obtaining a more favorable outcome at trial. Significantly,
as noted, the pretextual nature of the September 15 phone call was disclosed prior to trial,
so even if the court had given the requested instruction about the text messages, it is not
likely the jury would have inferred the prosecution was deliberately attempting to hide


                                              28
from the defense the fact it had used routine pretextual techniques in its investigation.
There was no prejudicial abuse of discretion in declining to give the instruction. The
circumstances here are not similar to those presented in People v. Zamora (1980) 28
Cal.3d 88, 93–94, cited by Johnson, in which the court held an instruction adverse to the
prosecution was a necessary sanction in light of the wholesale destruction of potentially
relevant excessive-force complaints against police officers.
H.     Ineffective Assistance of Counsel
       Johnson states that, if this court finds he forfeited certain of his claims (those
asserting prosecutorial misconduct, instructional error, and vagueness of the rape statute),
then his “alternate position” is that his trial counsel provided ineffective assistance by
failing to make the necessary objections in the trial court. In our discussion above, we
have not resolved any of the specified appellate claims solely on the ground of forfeiture.
(As to some of the prosecutorial misconduct claims, we noted they were forfeited and
rejected them on the merits.) We therefore need not address Johnson’s backup claim of
ineffective assistance.
I.     Imposition of Restitution Fine and Court Fees
       At sentencing, the court imposed a $300 restitution fine (§ 1202.4, subd. (b)), a
$40 court security fee (§ 1465.8), and a $30 criminal conviction assessment (Gov. Code,
§ 70373). In supplemental briefing, Johnson contends we should reverse imposition of
the court security fee and criminal conviction assessment and impose a stay of the
restitution fine until the People prove he has the ability to pay such assessments. Relying
on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Johnson argues the court did
not make a finding as to his ability to pay and that the statutes requiring imposition of the
assessments without such a finding are fundamentally unfair and violate due process.
The People argue that Johnson forfeited any challenge to the imposition of the two fees
and the restitution fine by failing to object on this ground in the trial court. (See People
v. Avila (2009) 46 Cal.4th 680, 729 [finding forfeiture where the defendant failed to
object to imposition of restitution fine under former § 1202.4 based on inability to pay].)
We do not agree. There is a well-established exception to the forfeiture doctrine where a


                                              29
change in the law—warranting the assertion of a particular objection, where it would
have been futile to object before—was not reasonably foreseeable. (People v. Black
(2007) 41 Cal.4th 799, 810 [“We long have applied the rule that although challenges to
procedures . . . normally are forfeited unless timely raised in the trial court, ‘this is not so
when the pertinent law later changed so unforeseeably that it is unreasonable to expect
trial counsel to have anticipated the change.’ ”].)
       Can it be said that Dueñas was reasonably foreseeable? We think not. Granted,
Dueñas is grounded in longstanding due process principles and precedent (see Dueñas,
supra, 30 Cal.App.5th at pp. 1168–1169, 1171 [relying on Griffin v. Illinois (1956) 351
U.S. 12, In re Antazo (1970) 3 Cal.3d 100, and Bearden v. Georgia (1983) 461 U.S.
660]), but the statutes at issue here stood and were routinely applied for so many years
without successful challenge (see Dueñas, supra, 30 Cal.App.5th at p. 1172, fn. 10), that
we are hard-pressed to say its holding was predictable and should have been anticipated.5
(People v. Castellano (2019) 33 Cal.App.5th 485, 488–489; but see People v. Frandsen
(2019) 33 Cal.App.5th 1126, 1153–1155.)
       On the merits, however, we think Dueñas is distinguishable. That case involved a
homeless probationer, Velia Dueñas, who suffered from cerebral palsy and was unable to
work. (Dueñas, supra, 30 Cal.App.5th at p. 1160.) Ms. Dueñas’s driver’s license was
suspended when she could not pay some juvenile citations as a teenager. (Id. at p. 1161.)

       5
            We stop short of categorically rejecting forfeiture as a basis for resolving
Dueñas-based challenges to fines and fees. Here, as in Dueñas, the restitution fine
imposed on Johnson was the statutory minimum (it was $150 there, which is the
misdemeanor minimum, while it is $300 here, which is the felony minimum). (See
§ 1202.4, subd. (b)(1).) For restitution fines above the statutory minimum, the statutory
scheme expressly permits sentencing courts to take the defendant’s ability to pay into
account in setting the fine. (See §1202.4, subd. (c) [“[i]nability to pay may be considered
. . . in increasing the amount of the restitution fine in excess of the minimum fine
pursuant to paragraph (1) of subdivision (b)”].) The distinction between minimum and
above minimum restitution fines has consequences for the applicability of forfeiture
doctrine. Had the court imposed a restitution fine on Johnson above the statutory
minimum, we would have come to the opposite conclusion on the issue of forfeiture, at
least for purposes of that fine, since, there, it could be said that he passed on the
opportunity to object for lack of ability to pay.

                                               30
She was then convicted of a series of misdemeanor offenses for driving with a suspended
license, and in each case was given the impossible choice whether to “pay[]” mandatory
fees and fines—which she could not do, because of her poverty—or go to jail. (Id. at
p. 1161.) After serving jail time in the first three of these cases, she still faced
outstanding debt, which mounted with each conviction. (Ibid.)
        Upon her fourth conviction for driving with a suspended license, Ms. Dueñas was
placed on probation and again ordered to pay mandatory fees and fines. (Dueñas, supra,
30 Cal.App.5th at pp. 1161–1162.) In an effort to put a stop to these spiraling fees and
fines, Ms. Dueñas brought a due process challenge to Penal Code section 1465.8,
Government Code section 70373, and Penal Code section 1202.4, the statutes under
which the fees and fines were imposed. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) She
argued that “[t]hese statutes . . . are fundamentally unfair because they use the criminal
law, which is centrally concerned with identifying and punishing only blameworthy
decisions, to punish the blameless failure to pay by a person who cannot pay because of
her poverty. The laws, moreover, are irrational: They raise no money because people
who cannot pay do not pay.” (Ibid.)
       A Second District, Division Seven panel agreed, concluding that due process
“requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s
present ability to pay before it imposes court facilities and court operations assessments
under Penal Code section 1465.8 and Government Code section 70373.” (Dueñas, supra,
30 Cal.App.5th at p. 1164.) The panel also held that “although Penal Code section
1202.4 bars consideration of a defendant’s ability to pay unless the judge is considering
increasing the fee over the statutory minimum, the execution of any restitution fine
imposed under this statute must be stayed unless and until the trial court holds an ability
to pay hearing and concludes that the defendant has the present ability to pay the
restitution fine.” (Ibid.)
       Johnson, as a felon sentenced to prison for a lengthy term, is not similarly situated
to the misdemeanor probationer in Dueñas. He was ordered to pay mandatory fees and a
fine under the same constellation of statutes that were at issue in Dueñas, but there the


                                              31
similarity ends. At trial, he testified that he worked off and on as a painter and a
municipal cleaner. He owned and used a cell phone for texting, and quite clearly could
afford the ongoing expense associated with that. And on the night of the offense for
which he was convicted, he was able to afford the unplanned expense of a hotel room.
These are hardly indications of wealth, but there is enough evidence in the trial record to
conclude that the total amount involved here did not saddle Johnson with a financial
burden anything like the inescapable, government-imposed debt-trap Velia Dueñas faced.
       Not only does the record show Johnson had some past income-earning capacity,
but going forward we know he will have the ability to earn prison wages over a sustained
period. (See People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay
includes a defendant’s ability to obtain prison wages].) The idea that he cannot afford to
pay $370 while serving an eight-year prison sentence is unsustainable. Thus, even if we
were to assume Johnson is correct that he suffered a due process violation when the court
imposed this rather modest financial burden on him without taking his ability to pay into
account, we conclude that, on this record, because he has ample time to pay it from a
readily available source of income while incarcerated, the error is harmless beyond a
reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
                                   III. DISPOSITION
       The judgment is affirmed.




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                                 _________________________
                                 STREETER, J.


WE CONCUR:


_________________________
POLLAK, P.J.


_________________________
TUCHER, J.




                            33
A149394/People v. Johnson




                            34
A149394/People v. Johnson

Trial Court:                     City and County of San Francisco Superior Court

Trial Judge:                     Hon. Loretta M. Giorgi

Counsel:

       Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant
            and Appellant.

       Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
             General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine
             A. Rivlin, Supervising Deputy Attorney General for Plaintiff and
             Respondent.




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