Filed 5/6/15 P. v. Rankin CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.
SHAWN L. RANKIN,
Defendant and Appellant. B252821
(Los Angeles County Super. Ct. No. BA329452)

APPEAL from a judgment of the Supe rior Court of Los Angeles County. Sam Ohta, Judge. Affirmed.

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

Kamala D. Harris, Attorney General, Ge rald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Susan Sulli van Pithey and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.

________________ __________________ _________________2 A jury convicted defendant Shawn L. Rankin of two counts of forcible rape (Pen. Code, § 261, subd. (a)(2)) 1 (counts 5, 6) and one count of forcible oral copulation (§ 288a, subd. (c)(2)) (count 7). 2 The jury found that in th e commission of the offenses, defendant committed two or more sex offenses against more than one victim in violation of section 667.61, subdivision (e)(4). Pursuant to the one-strike finding, the tr ial court sentenced defendant to 15 years to life in counts 5 and 6, to be served consec utively. The court imposed the high term of eight years in count 7, to be served concurrently. Defendant appeals on the grounds that: (1 ) the trial court’s response to the jury’s notice of deadlock resulted in a coerced verd ict and deprived him of his rights to due process and a jury trial; (2) section 261.6 and CALJIC No. 1.23.1 violate due process by creating a presumption that a victim has not consented unless she positively cooperates in the sexual acts alleged; (3) the trial court co mmitted prejudicial error in failing to provide the jury with optiona l instruction on withdrawal of consent given the testimony of defendant’s former girlfriend; (4) defendant’s conv ictions should be reversed due to the trial court’s admission of prior sexual o ffense evidence under Evidence Code section 1108; (5) defendant’s convic tion should be reversed be cause consideration of the uncharged offenses as propen sity evidence unde r Evidence Code section 1108 deprived him of equal protection and his due process right to a fair trial; (6) defendant was deprived of his due process ri ght to a fair trial as a resu lt of the erroneous admission of other sex offense evidence to show common plan or scheme; (7) the trial court committed prejudicial error in refusing to take judicial notice that defendant had pleaded guilty to sexual battery in one of the uncharged acts; (8) CALJIC No. 2.50. 01 interfered with the presumption of innocence and defe ndant’s right to have the ju ry make a determination of guilt upon proof beyond a reason able doubt; and (9) if the court finds any of the

1 All further references to statutes are to the Penal Code unless stated otherwise.

2 The jury acquitted defendant of the 1997 murder (cou nt 1), rape (count 2), penetration by a foreign object (count 3), and torture (count 4) of Wyesser Ann Cook.3 instructional or evidentiary arguments fo rfeited, trial counsel provided ineffective assistance.
FACTS 3
Prosecution Evidence K. W. (Count 5) On May 6, 2001, at 10:00 p.m., K. W. was standing at a bus stop near the intersection of Crenshaw Boulevard and Vern on Avenue. K. had dr unk a bottle of wine and was carrying a second one. A man began talking to her from his car. He drove a Durango SUV and asked K. if she needed a ri de. K. accepted the ride, since she often accepted rides from strangers. Prior to that date, she had never ha d a bad experience doing that. Defendant began driving K. ho me in the direction that she told him. He then said he had to tell his wife he wa s driving K. home. He continued driving away from the direction of her home. He eventually parked at the curb near an apartment building. K. recalled that she was in the back seat and defendant got in the back seat. K. asked him why he was there. Defendant grabbed her by th e neck and began choking her and pulling her to him. K. almost lost cons ciousness. When she could breathe again, she said, “Please don’t kill me.” Defendant said something that K. did not remember and ripped off her pants. The pants and K.’s shirt were shown to the jury. Defendant told K. to do as he said. He proceeded to have sexual intercourse with her, although she did not want to . She was too afraid to resist. She told him, “no” several times. Defendant told her to act as if she liked it. After defendant finished, K. reached for the door, which was unlocked. She got out of the ca r, leaving behind her purse and alcohol. K. ran screaming toward some nearby apartments. A woman helped her and gave her a blanket to cover up. The police came and took her for an examination. She later received her identification and Social Security car d in the mail.

3 The factual summary omits evidence related to counts 1 through 4, which charged defendant with the crimes ag ainst Wyesser Ann Cook, sinc e defendant was acquitted of all of those counts.4 Angeline Sims heard loud cries coming from the grassy area in front of her condominium. She saw K. running and scream ing. Sims went outside and saw that K. was “half-clothed” and appeared scared. The police arrived and spoke to them. Another neighbor, Gail Oliver, had been driving home when she noticed an SUV parked in a dark area near a closed nursery. She heard a wo man screaming a couple of minutes later. Elizabeth Tighe examined K. at the rape treatment center at Santa Monica hospital. Tighe saw redness to the neck an d a laceration on the le ft breast. Tighe collected swabs from different parts of K.’s body. The swabs and K.’s clothing were turned over to la w enforcement. On April 15, 2002, Stepha nie McLean, a criminalist with the Los Angeles Police Department’s crime lab, analyzed K.’s rape k it. She detected sper matozoa on the vaginal sample and external genital sample. She prepared samples and sent them to a DNA laboratory. The parties stipulated that Matthew Qu artaro was employed as a DNA analyst for Orchid Cellmark. On August 9, 2002, the laboratory receiv ed items from K.’s rape kit that were submitted for DNA typing. On Oct ober 31, 2007, Quartaro received a sample from defendant. It was stipulated that “t he DNA profile from the female fraction of the external genital swab . . . from K.’s rape kit [was] iden tified as originating from [defendant].” N. M. (Counts 6 and 7) In the afternoon of April 29, 2002, N. M. was walking on Jefferson Boulevard with her two daughters, ages four and two, when a man drove up and commented on her shirt. He asked for her name. He then parked and got out. He seemed kind and respectful. He asked for her phone number af ter a short conversation, and she gave it to him. Defendant offered N. a ri de, and she allowed him to drive her and her children home. N. had regularly accepted rides from strangers, but that was the last time. Defendant stayed in N.’s living room for a few minutes and then left.5 Defendant called N. that night. N. told defendant that she wanted cookies, and defendant asked if she wanted him to come ov er. He also asked if she wanted to smoke marijuana. She agreed. Her daughters were asleep when defendant arrived at 10:45 p.m. N. and defendant went into the front bedr oom because the living room had no light. There was a daybed in that bedroom, and N. and defendant watc hed television and smoked. Defendant showed her his tattoos, wh ich included a tattoo of a sun on his arm. Defendant told N. he owned a carpet cleaning business and “never had a record.” At one point, she and defendant drove to get some co okies, leaving the chil dren asleep in the house. When they returned, they continued sm oking. N.’s daughter woke up, and N. told defendant it was time to go. As defendant was leaving, he asked N. if he could have a kiss. At first she said “no” but then she kissed him on the cheek. Sh e led him through the kitchen to the back door because the front door did not work. Defendant’s whole demea nor changed, and he asked N. if she wanted to have sex. When she refused, he offered her $100 for sex. When N. declined again, defendant threatened to kill her with a gun. N. froze, and defendant grabbed her aroun d the neck and led her into the living room. Defendant pushed her onto the couch a nd told her to take off her clothes. When she took too long, defendant started to stra ngle her. N. could not breathe and did not remember if she lost consciou sness. When N. was complete ly naked, defendant removed his pants and pulled her bandana over her eyes . Defendant asked N. to perform oral sex on him. She said, “No,” and he responded, “Yeah. Yeah. You’re right.” He began performing oral sex on her. He stopped and began having sexual intercourse with her. Afterwards, defendant wiped N.’s body w ith baby wipes he fo und in her home. Defendant took the cordless hand receiver fro m N.’s telephone. He moved N. into the room with the daybed and put her in th e closet. Defendant came back to get N. because he could not open the front door. N. told him she could not open it. Defendant put her back in the closet, and she waited un til she saw the lights fro m his car through the closet window. She came out and called 911 by using the speakerphone. She realized that the dirty baby wipes and her bandana were not in the house.6 The police came and took N. to the hospital for examin ation. Nurse Danielle Blum examined her and prepared a rape kit with swabs from N.’s genitals. N. gave a police sketch artist a description of the ma n who raped her. N. told the artist that defendant had a bald spot behi nd his ear and a tattoo of the s un on his left shoulder. The sketch was shown to the jury. On August 22, 2007, N. was shown a p hotographic lineup that included defendant, and she was unable to identify hi m. At trial, N. appeared to identify defendant in court by pointing to him when describing the perpet rator’s haircut. She later stated that although she was referring to the defendant, she could not see the man who raped her in the courtroom. She said she did not recognize the defendan t “the way he looks now.” The man in court looked old to her. N. did not know K. On May 16, 2002, Los Angeles Police Criminalist Meghan Cirivello prepared DNA samples from the vaginal swab taken dur ing N.’s examination and sent them for analysis. The parties stipulated that on Oc tober 31, 2007, Quarta ro examined the DNA samples taken from N. and determined that “the DNA profile from the male fraction of the vaginal swab . . . [was] identified as originating from [defendant].” Keisha H. (Uncharged Act) Keisha H. was defendant’s girlfriend in 1994 and 1995. At that time, defendant lived near the intersection of Avalon Boulevard and Florence Avenue in Los Angeles. They had a sexual relationship, and he never forced her to ha ve sex with him against her will. On one occasion, they were having in tercourse and she asked him to stop, but he continued. This occurred in the middle of their relationship when things were “going downhill.” Yolanda C. (Uncharged Act) On February 6, 2000, at midnight, Yolanda C. was walking on a street near her home in Los Angeles. Yolanda saw defendant, whom she had seen four or five times before in the neighborhood. He was sitting in a parked car. Yolanda and defendant exchanged a greeting, and she told him she needed a ride. Yolanda had smoked cocaine approximately two hours earlier. It had worn off and she was on her way to get more.7 Defendant told Yolanda to get in . She told him where she need ed to go, but he drove to a dead-end street. He parked and told her to get in the back seat, and she did so because she was scared. Defendant th en pulled out a gun. Yoland a testified previously that defendant offered her money for sex and she told him that was entrapment. She also testified previously that she told defend ant she was not interested because she had somewhere she needed to go. At trial, she did not recall her prior testimony very well. After defendant threatened her with a gun, Yolanda said, “Please don’t hurt me, do what you got to do, and let me go.” He told her to remove her clothing. Defendant had sexual intercourse with her and then told her to put her clothes on. He drove a bit and told her to unlock the door at an intersecti on and get out. When she opened the door, he pushed her out of the car. Yolanda saw a police patrol car and flag ged it down. She told the officers to follow defendant’s truck and said , “that man just raped me.” The officers put her in the back seat of the patrol car and followed de fendant. After a chase, the officers pulled defendant over. They showed Yolanda a toy gun they found in the car. The police took her to a hospital where swabs were taken from her body. Yolanda testified against defendant in court in that case. She did no t want to have sex with defendant. She believed the gun he ha d was a real gun. Yolanda acknowledged she had be en convicted of forgery. Investigation Former Los Angeles Police Detectiv e Gregory Stone be gan investigating defendant in connection with th e crimes against K. and N. in September 2007. Detective Stone ascertained that defend ant’s home was a mile and a ha lf from the intersection of Vernon and Crenshaw and the intersection of Jefferson and Crenshaw, which were near the areas where the women were picked up. Defendant drove an SUV at the time of those incidents. Detective Stone met w ith defendant on September 26, 2007, and obtained DNA swabs from inside his cheek. Defense Evidence8 Defendant did not testify. The defense called two witnesses whose testimony was relevant only to counts 1 through 4, of which de fendant was acquitted. Rebuttal Evidence The two witnesses called in rebuttal were al so relevant only to counts 1 through 4. DISCUSSION I. Trial Court’s Action s with Deadlocked Jury A. Defendant’s Argument Defendant contends that, although the tr ial court made no expressly coercive remarks, its comments to th e jurors when rejecting th eir unanimous consensus of deadlock, and its offers of a ssistance to reach a verdict, c onstituted undue coercion of the minority jurors. Defendant argues that his convictions in counts 6 and 7 must therefore be reversed. He also claims he was denied due process because the court’s conduct and
comments resulted in a de facto Allen 4 charge. B. Proceedings Below On the morning of April 29, 2013, the jury began delib erations anew after an alternate juror was selected to replace a juror who was ill. The jurors deliberated for the rest of the day and recessed that evening. Deliberations continue d the following day, during which the jurors’ request for certain e xhibits was granted. Before leaving at 4:00 p.m., the jurors submitted a note saying th at they had reached ve rdicts on all but two counts. Proceedings resumed th e following day, May 1, 2013. On that morning, the third day, the court read a note fro m the jurors stating, “We have come to a verdict on five counts except for two. We are divided on th e other two. What do we do now?” The court brought out the jurors, and th e following exchange occurred: “THE COURT: The record will reflect that the regular jurors , those that are deliberating on this case, have entered the courtroom an d are now seated. So defendant and both counsel are also present. Juror No . 18, you’re the foreperson; correct?

4 Allen v. United States (1896) 164 U.S. 492 ( Allen ).9 “JUROR NO. 18: Yes. “THE COURT: You’ve sent out a note, and I have it here. It indicates, ‘We have come to a verdict on five counts except for two. We are divided on the other two. What do we do now?’ I’m going to talk to you just a little bit here, but in talking to you, the attorneys and I are not permitted to know wh at the jury is discussing or thinking about or is doing in the back; so I don’t want you to offer anything about what’s happening back there except for the question th at I seek clarification on. All right, sir? “JUROR NO. 18: Uh-huh. “THE COURT: Is that a yes? “JUROR NO. 18: Yes. “THE COURT: Okay. So on this case seven counts were alleged against the defendant: count 1, murder; count 2, rape; count 3, pene tration; count 4, tort ure; count 5 and 6, again, rape; and then count 8, forcible oral copulation. Of these counts which has the jury reached verdicts on? “JUROR NO. 18: On those counts. “THE COURT: On every single one of them ? So on which count has the jury—let me ask it in the negative then. Which one have you not been able to reach a verdict on? “JUROR NO. 18: On the last two, forcible rape and oral copulation. “THE COURT: 6 and 7?
“JUROR NO. 18: Yes. “THE COURT: Okay. So th e jury has been able to reach a verdict on counts 1 through 5?
“JUROR NO. 18: Yes. “THE COURT: Is that right? “JUROR NO. 18: Yes. “THE COURT: Okay. Now, again, I don’t want you to offer a nything beyond what I’m asking you so don’t tell me a nything beyond the question I pos e. But are you saying to me in this note that you’ve given here that you have done all that you can on counts 6 and10 7 and that you think that you are no longer able to proceed any further, that you are at an impasse? Is that what you’re saying to me on counts 6 and 7? “JUROR NO. 18: Yes. “THE COURT: Okay. Now, you have aske d for readback of testimony on counts 6 and 7 and you’ve gotten that. Is there anything else the court can do for you, like give you further readback of testimony, clarify any poin ts of law, anything like that to assist you with respect to count 6 and 7? Is there anything else that you think the court could do? “JUROR NO. 18: We would— “THE COURT: Let’s do this then. You’re all kind of looking at each other thinking about it. Let’s do this. Consider what I have just said and see if there is anything else that can be done to assist you and then let me know if you think that there’s something I can do to help you or you th ink now because of what I said there’s something more to talk about, then you ought to continue deliberati ng. If, on the other hand, you think there is something I can do for you to help you, then you may send out another note indicating that there’s something that I can do for you. If, on the othe r hand, you do not think that there’s anything else that can be done, then you may send out another note indicating that you’re at an impasse on count s 6 and 7, and at that point I’ll bring you out and have further additional discussions with you. Okay? “JUROR NO. 18: Okay. “THE COURT: So I’m going to ask you to go back into the deliberating room for now and we will buzz you out to allow you to go to lunc h. Okay? All right.” After lunch, the jurors sent the court another note. The court stated, “They are telling me that they think they are at an impa sse on those two counts. So I need to bring them out and determine whether or not they are deadlocked.” The court addressed the foreperson and, after repeating the contents of the note, it stated, “I need to ask you some questions now.” The court summarized the actions taken to that point, i.e., two readbacks of testimony of the alleged victim in counts 6 and 7. The court stated, “So the trial took awhile . . . it was a month-long trial almost, not quite. But it took a little bit of time. And11 you as a group have been deliber ating since . . . Monday. . . . And let me just say that I don’t know what the numerical breakdowns are, and you may truly be at an impasse. I don’t know. But it isn’t unusual for jurors to come to a point where it appears they are at a place where there may be firmly entrenched differences of opin ion. It is not unusual for jurors to get to that point yet not truly be at an impasse . You all know what human beings are like and what human interactions are like, and that ’s what is going on in the back. You are all talking abou t something. So it’s 12 people attempting to reason things out. And there are instances where jurors th ink that they are at an impasse, but they really are not. And you’ve had arguments with people where you felt that the person was of a particular mind. And then later on, they changed their mind, and things changed. So that’s what I need to ascertain whether or not you are at that point where you are firmly entrenched to a degree that there isn’t going to be a ny further changing of anyone’s minds. Or if this is one where, you know, th ere are instances where people feel like they are at an impasse, but they are really not at an impasse and things change. So I need to make that decision here about this situation. So first of all, Juror No. 18, I’m going to talk to you as the foreperson. So I am not ta lking to you as an indi vidual juror. But I am talking to you as sort of the facilitator of the discussions that have taken place in the back. As that person who served as a facilitator, do you think that if the court was to ask the jury to continue deli berating that there is a reasonable probability that the jury might be able to reach a verdict on coun ts 6 and 7? The question is ‘reasonable probability.’” The foreperson answered, “No.” The court stated, “Okay. All right. So you consider the issue of additional readback testimony. You consider the issu e of explanation on the law. There are additional things that the court could do. For example, the court could allow the attorneys to argue again. So let’s say th at the jury had a que stion, and you pose a question. And if you wanted to hear argument from attorneys, I could then turn to the lawyers and allow them to argue the case to you one more time. There are various different things that the court could do, can do . But in any event, you might not know [] [t]hat so I am just letting y ou know that. Does that change your mind in any way, Juror12 No. 18, or are you still as the f acilitator the person who served as the foreperson still of the mind that there is no reasonable probability that the jury coul d reach a verdict on 6 and 7?” The foreperson answered, “No.” The court stated, “Okay. That’s fine. Now I am going to go through the group individually. And I am not asking you as a group now because e ach juror is duty-bound to make a decision for him or herself. Th is is not a democracy where the group vote wins. This is about individual deliberations. So I am going to ask each of you whether or not you believe there is a reas onable probability that the jury might be able to reach a verdict on counts 6 and 7.” The court then asked each juror individually whether he or she believed that there was “a reasonable pr obability” the jury could reach a verdict on counts 6 and 7. Each one answered in the negative. The court stated, “Okay. All right. Well, that’s not the end of it. There’s more. Okay. Now I am going to ask you . . . how ma ny times you voted. I need to know how many times you voted on counts 6 and 7. And I need to k now when. So when and how many times. Okay. And then I am also going to ask you for the numerical breakdown, but I don’t need to kn ow which way it’s leading. I just want a number. So I want to know when, how many times, and what the numerical breakdown was. You think you can give that to me right now, or do you need to reflect? The foreperson said he needed some time to reflect. The court continued: “Okay. Well, let’s do this. You all can go in the back for just a moment, talk about this, and get thatorganized for me. I am going to, you know, go through each and every single one of th e ballots you took on 6 and 7, not on everything because you may not ha ve taken ballots at the same time on everything. I just want to know about counts[s] 6 and 7. So go into the back and talk about that, and then we’ll buzz you back out.” After the jury returned from the deliberation room , the following exchange occurred: “THE COURT: So did you vote on co unt[s] 6 and 7 on April 29 on Monday?
“JUROR NO. 18: Yes.13 “THE COURT: And when did you do that? What time? “JUROR NO. 18: After lunch. “THE COURT: Okay. Give me a ballpark. “JUROR NO. 18: About 1:30, after 1:30. “THE COURT: Just ate, came back, and voted? “JUROR NO. 18: No. We had be en deliberating and discussing. “THE COURT: You just kind of knew you were going to vote after lunch?
“JUROR No. 18: Yes. “THE COURT: Okay. So let’s say 1:30 p. m. on April 29. Did y ou vote on 6 and 7 at the same time?
“JUROR NO. 18: Yes. “THE COURT: Okay, so first of all, on count6, what was the numerical split? Again, don’t tell me which way it is leaning. Ju st tell me what the numerical split was. “JUROR NO. 18: 9, 3. “THE COURT: 9 to 3. And then count 7? “JUROR NO. 18: 9 to 3. “THE COURT: Did you vote again on Monday on count[s] 6 and 7? “JUROR NO. 18: We voted twice on Monday. “THE COURT: Okay. What time did you vote again? “JUROR NO. 18: Towards the end. “THE COURT: Near 4:00? “JUROR NO. 18: Yes. “THE COURT: I will just say 4:00 p.m. And did you follow the same format of taking a vote on both counts 6 and 7 at the same time? “JUROR NO. 18: Yes. “THE COURT: What was the numerical split on count 6? “JUROR NO. 18: 9, 3. “THE COURT: And what was the numerical split on count 7? “JUROR NO. 18: 9, 3.14 “THE COURT: Okay. Now the readback of testimony, you received that yesterday morning? “JUROR NO. 18: Yes. “THE COURT: Right?
“JUROR NO. 18: Yes. “THE COURT: Okay. You also asked fo r something else, the diagram on the DNA on the gloves. We gave that to you yesterday afternoon.
“JUROR NO. 18: Yes. “THE COURT: On April 29 th en, this is Monday again, you voted twice. And that’s it,
correct? “JUROR NO. 18: Yes. “THE COURT: And then on April 30, did you vote again on counts 6 and 7?
“JUROR NO. 18: No. “THE COURT: You did not vote at all?
“JUROR NO. 18: No. “THE COURT: So no votes yester day on count[s] 6 and 7 at all? “JUROR NO. 18: No. “THE COURT: Did you vote on coun t[s] 6 and 7 at all yesterday?
“JUROR NO. 18: No. “THE COURT: Okay. So no votes on April 30. Today, May 1, Wednesday, you came back to it, I take it?
“JUROR NO. 18: Yes. “THE COURT: And so you voted again today; is that right?
“JUROR NO. 18: No. “THE COURT: You did not vote today?
“JUROR NO. 18: No. “THE COURT: No vote at all? “JUROR NO. 18: Oh, yes, yes. Sorry, sorry. Yes, we did. “THE COURT: Did you formally take a vote on counts 6 and 7?15 “JUROR NO. 18: Yes. “THE COURT: At what time did you ta ke a formal vote on count[s] 6 and 7? “JUROR NO. 18: It was early in the morning. “THE COURT: No, you didn’t ge t here early in the morning. “JUROR NO. 18: 10:00. Sorry. “THE COURT: So first thi ng in the morning wh en you came and on count 6 what was the numerical breakdown? “JUROR NO. 18: Still 9, 3. “THE COURT: And then how about on count 7? “JUROR NO. 18: 9, 3. “THE COURT: 9, 3. Okay. Now did you— you sent out a note around 11:00. We weren’t able to get to you right away beca use I was in trial, and I had to assemble everybody. So that m eant that you took a vo te early in the morning, and then you might have spent time discussing it afterwards a little bit?
“JUROR NO. 18: Yes. “THE COURT: But that maybe you spent anot her hour, hour and a half discussing it this morning after taking the vote?
“JUROR NO. 18: Yes. “THE COURT: Did you take another vote?
“JUROR NO. 18: No. “THE COURT: No. No votes since the early vote. So you have actually voted on it three times; is that correct?
“JUROR NO. 18: Yes. “THE COURT: The bulk of the rest of the ti me you spent talking about the other counts? Because you all started on Monday, Monday mo rning. You had seven counts to deal with, three separate transactional events. So you talked about the other counts for the bulk of the time. Would that be accurate to say? “JUROR NO. 18: Yes. “THE COURT: How much time have you actu ally spent talking ab out these two counts?16 “JUROR NO. 18: When we got our first juror on Monday, we spent— “THE COURT: Okay. So let’s say you star ted on Monday, oh, two hours in the morning and then two and a half hours in the afterno on. So you had about four and a half hours yesterday. I’m sorry. The da y before. And then let’s say about the same period of time yesterday. So four and a half yesterday or thereabouts. And then to day, you have had an additional two or so. So you have been talking about this maybe, oh, 11 hours. Of the 11 hours or so, how much of it ha ve you devoted to talking abou t count[s] 6 and 7? Three hours? “JUROR NO. 18: About th ree hours, yes, around. “THE COURT: Is that a fair, rough estimate? About three hours?
“JUROR NO. 18: Yes. “THE COURT: Okay. You know , it’s my reason to judgment [ sic ] that you need to spend a little more time on this. There are a lo t of counts and a lot of things for you to discuss. There are over 20 witnesses that were presented and scientific evidence as well. And you are talking about three separate transa ctional events that yo u had to talk about. And I am not saying that three hours or so is not , is insubstantial. That is a bit of time. But I think some more time need s to be spent talk ing about it. So I am not going to declare that you are hopelessly deadlocked at this point. And I am going to send you back to talk some more about count[s] 6 and 7. Okay? “JUROR NO. 18: Okay. “THE COURT: Okay. If you have a question, write it out for me. Okay. All right. Thank you.” After the jury left, the cour t informed counsel, “I am not going to take the verdict. I am going to let them talk some more. If they can’t, the ne xt time they tell me, that is probably going to be it. Bu t they need to work a little more.” Defense counsel did not object.17 Approximately an hour later, the jury sent out a note requesting that counsel reargue counts 6 and 7, and that Stev e Renteria’s testim ony be read back. 5 They also requested a latex glove and testimony from N. M. The court again confirmed with Juror No. 18 that the jury had reac hed verdicts on counts 1 thro ugh 5 and asked the jury to deposit the completed verdict fo rms with the court in a sealed envelope. The jury asked to hear reargument before any readback. The court stated it could not guarantee reargument, but that it would consult with counsel and then exercise its discretion. On the following day, May 2, 2013, the court stated for the record that both sides were agreeable to making further argument. After hearing additional argument from both sides, the jury retired to continue delibera tion and listen to readback. Apart from a lunch break, the jury continued with readback and deliberations until the end of the day. On May 3, 2013, a Friday, the jury de liberated all day. They requested and received the verdict forms from the court. The jury met again th e following Monday, May 6, 2013, and spent a further two hours in deliberation before reaching its verdicts. C. Relevant Authority Section 1140 provides that “the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict . . . unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the ju ry can agree.” In the event of a deadlock, “[t]he court may ask jurors to continue deliberating where, in the exercise of its discretion, it finds a ‘reasonable probability’ of agreement.” ( People v. Pride (1992) 3 Cal.4t h 195, 265; see People v. Howard (2008) 42 Cal.4th 1000, 1029-10 30.) Even wher e the jury has deliberated for a substantial amount of time and indicates that it is unable to reach a verdict, the trial court still retains discre tion to require further deliberation. ( People v.

5 Steve Renteria, a forensic scientist with the Los Angele s County Sheriff’s Department, testified regarding the results of testing Wyesser Cook’s sexual assault kit and certain items of evidence. He stated that the DNA profile of the male contributor to Cook’s external genital sample and some of the evidence from th e crime scene matched the DNA profile from defendant. As noted, the jury acquitted defe ndant of all charges regarding the offenses against Cook.18 Sandoval (1992) 4 Cal.4th 155, 194-197; People v. Breaux (1991) 1 Cal.4th 281, 319-320 [jury informed court it had reached an impasse after four days of deliberation, answered in the negative as to whether there was a chance of verdict upon further deliberation, and was properly asked twice to deliberate further]; People v. Rodriguez (1986) 42 Cal.3d 730, 775-776 [after 11 days of deliberation and five expre ssions of impasse, trial court asked jury to resume deliberation].) “‘Although the court must take care to ex ercise its power with out coercing the jury into abdicating its independent judgment in favor of considerations of compromise and expediency [citation], the court may direct further deliberations upon its reasonable conclusion that such direction would be perceived “‘as a mean s of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already di scussed and considered.’”’” ( People v. Bell(2007) 40 Cal.4th 582, 616.) A defendant’s right to due process is viol ated if a trial court coerces jurors into reachi ng a verdict. ( Jiminez v. Myers (9th Cir. 1993) 40 F.3d 976, 978-980.) D. Verdict Not Coerced Defendant appears to argue that simply because the jury stated that it was deadlocked, the trial court was obligated to cease deliberations. We disagree. “‘[Section 1140] clearly commits to the trial judge, no t to the jury, the determination of the question whether or not “there is no reasonable pr obability that the jury can agree.”’” ( People v. Finch (1963) 213 Cal.App.2d 752, 763.) The trial court is required to determine in its “sound discretion” whether there is a reas onable probability of agreement by the jury. ( People v. Miller (1990) 50 Cal.3d 954, 994.) Defendant asserts that the trial court “sub tly coerced the jury to reach a verdict.” In analyzing a claim of coercion, the rele vant inquiry is whether the trial court’s comments imposed such pressure on jurors to reach a verdict that the accuracy and integrity of the jury’s stated conclusion cannot be assured. ( People v. Gainer (1977) 19 Cal.3d 835, 850 ( Gainer ), disapproved on another point in People v. Valdez (2012) 55 Cal.4th 82, 163.) “The ques tion of coercion is necessarily dependent on the facts and circumstances of each case. [Citation.]” ( People v. Sandoval , supra , 4 Cal.4th 155, 196;19 People v. Pride , supra , 3 Cal.4th at p. 265; People v. Breaux , supra , 1 Cal.4th 281, 319.) We find nothing coercive in the trial court’ s actions here. It did not urge the jury to reach an agreement, only to deliberate a bit longer. Far from being coercive, the trial court’s inquiries as to whether it could do anything to aid the jurors in their deliberations was a commendable exercise of discretion unde r Evidence Code section 1140. The trial court realized through its ques tioning of the foreperson that the jury had seemingly given up and had ceased delibera ting on counts 6 and 7. When the jury was asked if the court could do anything, the jury members were a pparently looking at each other, which would indicate to the court that there was some unc ertainty among them. The trial court would have been remiss if it had not sought to as certain whether the jury would benefit from any of the means available to the court. We perceive nothing in the trial cour t’s comments that could be construed as pressuring the minority jurors to give more credence to the majority than to their own opinions. The court emphatically pointed out that it was not a democracy where the majority rules. The court had instructed the jurors with CALJ IC No. 17.40, which provided, “The People and th e defendant are entitled to th e individual opi nion of each juror. Each of you must cons ider the evidence for the pur pose of reaching a verdict if you can do so. Each of you must decide the ca se for yourself, but should do so only after discussing the evidence and instructions with th e other jurors. Do not hesitate to change an opinion if you are convinced it is wrong. However, do not decide any question in a particular way because a majority of the jurors, or any of th em, favor that decision.” The jury indicated specifically that further argum ent and a readback of testimony would assist it in reaching a verdict. The trial court obliged without imposi ng its own opinion or pressuring jurors to reach a verdict. We not e that it is not improper to require continued deliberation even when there is only one holdout juror. ( People v. Pride , supra , 3 Cal.4th 195, 265 [requiring jury divided 11 to 1 to continue deliberating is not necessarily coercive]; People v. Neufer (1994) 30 Cal.App.4th 244, 253-25 4 [not coercive to require jury to resume deliberations wh en verdict is 11 to 1 in favor of guilt].) Here, there were three minority jurors, leading to a reasona ble conclusion they would not be easily20 intimidated by further discussion a nd direction from the trial cour t. As long as the court’s inquiry and instruction are neutral and the hol dout jurors are not singled out, the court properly exercises its discretion in requiring further deliberations. Contrary to defendant’s assertion, the problems identified in Gainer are lacking here. Gainer rejected the so-called “‘ Allen charge,’” which was approved by the United States Supreme Court in Allen , supra , 164 U.S. 492, 501-502, as a means of “‘blasting’ a verdict out of a dead locked jury.” ( Gainer , supra , 19 Cal.3d at p. 844.) Gainer held, “it is error for a trial court to give an instruction which eith er (1) encourages jurors to consider the numerical division or prepondera nce of opinion of the jury in forming or reexamining their views on the issu es before them; or (2) states or implies thatif the jury fails to agree the case will ne cessarily be retried.” ( Id . at p. 852.) Unlike the Allen charge, the trial court’s comment s here did not suggest that the minority jurors should consid er the position of the majority , thereby avoiding any undue pressure on the minority jurors to consider that factor. The trial court stressed to the jury members that each juror was dut y-bound to make his or he r own decision and that the majority vote does not win. The court’s co mments about the length of the trial was not a de facto Allen charge, but merely an observation ma de to encourage the jurors to try again, since they had devoted a substantial am ount of time to the task. The trial court did not advise the jury that it was required to reach a verdict, did not indicate that a retrial would be required if a verdict was not reac hed, and did not suggest that the minority jurors should reconsider their positi ons in light of the majority. Finally, it is proper to permit counsel to reargue a case after the matter has been submitted and delibera tions have commenced. As noted in People v. Young (2007) 156 Cal.App.4th 1165 ( Young ), California Rules of Court, rule 2.1036, provides: “If the trial judge determines that further action might assi st the jury in reachi ng a verdict, the judge may: (1) Give additional instructions; [¶] (2 ) Clarify previous instructions; [¶] (3) Permit attorneys to make additional closing argument s; or [¶] (4) Employ any combination of these measures.” (Cal. Rules of Court, rule 2.1036(b); see Young , at p. 1171, fn. 7.)21 Thus, the trial court was well within its discretion in polling th e jury to determine the extent of the impasse and in asking the ju ry to see if it could agree on some assistance from the trial court. The court mentioned th e option of argument in passing as one of the tools that could be used and by no means ur ged it upon the jury. Defense counsel did not object to this suggestion. Moreover, althoug h a quick verdict following a trial court’s intervention may suggest “the possibility of coercion,” ( Lowenfield v. Phelps (1988) 484 U.S. 231, 240), we have no such circumstance here. The jury deliber ated for a substantial amount of time after hearing reargument. Si gnificantly, the trial court acknowledged to the attorneys the last time he sent the jury back before thei r argument request that if the jury came back announcing dead lock again, “that is probabl y going to be it.” The trial court showed no intention of pressuring the jurors to reach a verd ict but only of doing all it reasonably could do to assist the jurors rather than to “ ‘figuratively throw up its hands and tell the jury it cannot help.’” ( Young , supra , 156 Cal.App.4th at p. 1171.) We conclude the trial court’s actions in managing the jury’s impasse are reasonably perceived as a means of providing the jurors with the means to enhance their understanding of the case and not as a way of pressuring the jury memb ers to arrive at a verdict based on considerations th ey had already discussed. (See People v. Bell (2007) 40 Cal.4th 582, 616.) The court did not abuse its discretion or err in ordering further deliberations. II. Jury Instruction on Consent A. Defendant’s Argument Defendant argues that CALJIC No. 1.23.1 is defective in two ways. First, it relieves the prosecution of its burden of showing that interc ourse was against the will of the alleged victim by establishi ng a presumption that the victim did not consent if there is no “positive cooperation.” 6 The instruction ignores the po ssibility that an alleged victim

6 The trial court read CALJIC No. 1.23.1, which tracks the language of section 261.6, as follows: “In prosecutions for th e sexual offenses in this case, the word ‘consent’ means positive cooperati on in an act or attitude as an exercise of free will. The22 may passively assent. Secondly, it operates as a mandatory presum ption. Defendant adds that the instruction deprived him of his due process right to a tr ial by jury, since it is akin to the failure to instruct on an essential element of an offense, and his convictions therefore should be reversed. B. Relevant Authority Section 261.6 provides: “I n prosecutions under Section 261, 262, 286, 288a, or 289, in which consent is at issue, ‘consent’ shall be defi ned to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. [¶] A current or previous dating or marital relationship shall not be sufficient to constitute consent where consent is at issue in a prosecu tion under Section 261, 262, 286, 288a, or 289. [¶] Nothing in this section shall affect the admissibility of evid ence or the burden of proof on the issue of consent.” “A trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel.” ( People v. Lee (2011) 51 Cal.4th 620, 638 ( Lee ).) “‘[T]he correctness of ju ry instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’” ( People v. Wade (1995) 39 Cal.App.4th 1487, 1491.) C. Consent Adequately Defined At the outset, we note that Lee held that the defendant in that case forfeited his claim that the instructions de fining consent for attempted ra pe were inadequate by failing to object. ( Lee , supra , 51 Cal.4th at p. 638.) The court st ated that a defend ant’s failure to request clarification of an otherwise correct instruction forfeits any claim of error on appeal. ( Ibid .) Since defendant makes a claim of in effective assistance of counsel for any forfeiture, however, we address the merits of his argument.

person must act freely and volun tarily and have knowledge of the nature of the act or transaction involved.”23 We conclude the jury was ad equately instructed on the i ssue of consent. The jury was told at the outset that it mu st consider the instructions as a whole and each instruction in light of all the others. (CALJIC No. 1.01.) Th e jury was instructed in the crime of rape with CALJIC No. 10.00, which stated that rape is committed by every person who engages in an act of sexual intercourse acco mplished against that person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury to that person. The instruction for unlawful oral copulation, CALJIC No. 10.10, contains the same language. In these in structions, the jury was told that “against the will” meant “without consent of the alleged victim.” The jury in defend ant’s case was also given CALJ IC No. 10.65, wh ich instructed the jury that “In the crime of unlawful forcible rape, oral copulation by force and, forcible sexual penetration, criminal intent must exist at the time of the commission of the specified crime. [¶] There is not criminal intent if the defendant had a reasonable and good faith belief that the other person vol untarily consented to engage in sexual intercourse, oral copulation, or sexual pene tration. Therefore, a reasonable and good faith belief that there was vol untary consent is a defense to such a charge, unless the defendant thereafter became aware or reasonabl y should have been aware that the other person no longer consented to the sexual acti vity. [¶] However, a belie f that is based upon ambiguous conduct by an allege d victim that is the product of conduct by the defendant that amounts to force, violence, duress, mena ce, or fear of immediate and unlawful bodily injury on the person of the a lleged victim or another is not a reasonable good faith belief. [¶] If after consideration of all of the evid ence you have a reasonable doubt that the defendant had criminal intent at the time of the accused sexual activity, you must find him not guilty of the crime.” Finally, th e jury was told that the presumption of reasonable doubt places on the prosecution th e burden of proving the defendant guilty beyond a reasonable doubt. (CALJIC No. 2.90.) Given these comprehensive instructions , defendant cannot assert that he was denied the “longstanding and mer itorious defense” of passive a ssent. Juries are presumed to follow instructions, and had the jury belie ved the victims passively consented to have24 sex with defendant, and that it was not against their will, unde r these instruc tions, the jury would have acquitted defendant. (See People v. Morales (2001) 25 Cal.4th 34, 47-48.) As in Lee , where the defendant also argued that an instruction on passive consent was lacking, “[t]hese instructions were sufficient to apprise the jury of the relevant principles of law on the issues of intent and consent.” ( Lee , supra , 51 Cal.4th at pp. 637, 640.) The instructions allowed the jury to consider de fendant’s arguments that although he had sex with the alleged victims, they were not forced, and both vic tims were suffering from something akin to buyer’s remorse. To the extent defend ant attempted to portray that he had a good faith belief that they consented, this defense was specifically addressed in CALJIC No. 10.65. Accordin gly, defendant’s pa ssive consent defense was not vitiated by CALJIC No. 1.23.1 because that instruction, as well as the other instructions, adequately informed the jury th at the offenses had to be ag ainst the alleged victim’s will to be unlawful and had to have been acco mplished “by force, violence, duress, menace, or fear of immediate and unlawful bodily injury.” Under Lee and in this court’s prior opinion in People v. Gonzalez (1995) 33 Cal.App.4th 1440 ( Gonzalez ), we also conclude there was no creation of a mandatory presumption that consent should be presumed absent evidence of positive cooperation in an act or attitude, thus relieving the prosecut ion of its burden of proving an essential element of the offense. ( Lee , supra , 51 Cal.4th at p. 641; Gonzalez , at p. 1443.) That contention was rejected by this court in Gonzalez , and the reasoning of that case applies here. Gonzalez stated, “CALJIC No. 1.23.1 did not shift the burden of proof on consent to the defense or create a presumption of lack of consent. The instruction merely defined consent.” ( Gonzalez , at p. 1443.) Gonzalez concluded that, when read in light of other relevant instructions defining the crime, the instructions “clearly indicated the prosecution had the burden of proving lack of consent.” ( Id . at p. 1443.) Moreover, the fact that the instructions also stated that the act must be accomplished by “force, violence, duress, menace, or fear of immediate and un lawful bodily injury on the alleged victim” indicated that no confusion would be cr eated in the minds of the jurors. ( Id . at p. 1444.)
Lee , citing Gonzalez , also held that that the mandato ry presumption claim lacks merit,25 since the instruction does not “tell a jury th at it must presume lack of consent if the alleged victim has not actively expressed consent.” ( Lee , supra , at p. 641.) In fact, the jury was told that the defe ndant was presumed innocent until the prosecution proved him guilty beyond a reasonable doubt. ( Ibid .) In the instant case, as in Lee and Gonzalez , all of the instructions considered together “clearly indicated the prosecution had the burden of proving lack of consent.” ( Gonzalez , at p. 1443; see also Lee , at p. 642.) III. Lack of Instruction on Withdrawal of Consent A. Defendant’s Argument Defendant contends the trial court erred in failing to give sua sponte an instruction on withdrawal of consent because, in order for the jury to determ ine whether defendant had committed a sexual offense against his ex-gir lfriend, the jurors had to decide if she withdrew consent prior to defendant’s contin ued penetration. Defendant maintains the error was prejudicial in that it is reasonabl y probable there would have been a more favorable outcome in the ab sence of the error. ( People v. Watson (1956) 46 Cal.2d 818, 836 ( Watson ).) B. Proceedings Below The prosecutor filed a motion under Eviden ce Code section 1108 to introduce the testimony of defendant’s ex-gir lfriend, Keisha H. The co urt found under Evidence Code section 352 that the incident with Keisha was probative and not substantially outweighed by prejudice. With respect to the evidence of prior sex cr imes, the trial court instructed the jury with CALJIC Nos. 2.50.01, and 2.50.1. 7

7 CALJIC No. 2.50.01 stated: “Evidence has been introduced for the purpose of showing that the defendant engaged in a sexu al offense on one or more occasions other than that charged in the case. [¶] ‘Sexual offense’ means a cr ime under the laws of a state . . . that involves any of the following: [¶ ] Any conduct made cr iminal by Penal Code section 261, subdivision (a)(2). The elements of this crime are set forth elsewhere in these instructions. [¶] If you find, by a prepondera nce of the evidence, that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offe nses. This evidence, if believed, does26 C. Relevant Authority The trial court has a sua sponte duty to inst ruct the jury “on general principles of law that are commonly or clos ely and openly connected to th e facts before the court and that are necessary for the jury’s understanding of the case.” ( People v. Montoya (1994) 7 Cal.4th 1027, 1047.) On the ot her hand, absent a request by the defense, the court has no duty to give a “‘pinpoint instruction’ relating sp ecific facts to the elem ents of the offense” in support of a defense. ( People v. Barton (1995) 12 Cal.4th 186, 197.) Although the initial focus is on the specific instruction challenged, a reviewing court must review the instructions as a whole to determine if the entire charge to the jury delivered a correct interpretation of the law. ( People v. Fonseca (2003) 105 Cal.App.4th 543, 549.). D. No Sua Sponte Duty to In struct on Withdrawal of Consent

not establish a disposition to commit any other cr ime. If you find that the defendant had a disposition to commit a sexual offense, you may, but are not required to, infer that he was likely to commit and did co mmit the . . . crimes of wh ich he is accused. The uncharged evidence pertaining to Yolanda [] and Keisha [] may be considered by you only for the purpose of deciding whether the defendant is guilty of the crimes charged in counts 5, 6 and 7. . . . [¶ ] However, if you find by a preponderance of the evidence that the defendant committed [a] prior sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed th e charged crimes. If you determine an inference properly can be drawn from this evid ence, this inference is simply one item for you to consider, along with all other evidence , in determining whether the defendant has been proved guilty beyond a reasonable doub t of the charged crime. CALJIC No. 2.50.1 stated: “Within the me aning of the preceding instructions, the prosecution has a burden of proving by a prep onderance of the evid ence that a defendant committed sexual offenses other than those for which he is on trial. [¶] You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that the defendant committed the ot her uncharged sexual offenses. [¶] If you find other uncharged sexual offenses were committed by a preponderance of the evidence, you are nevertheless cautioned and reminded that before a defendant can be found guilty of the crimes charge d for which this evidence may be considered in this trial, the evidence as a whole must persuade you beyond a reasona ble doubt that the defendant is guilty of that crime.27 Defendant points out that CALJIC No . 1.23.1 contains optional language 8 related to withdrawal of consent. Because the juro rs had to decide whether Keisha effectively withdrew consent before defenda nt’s continued penetration, fa ilure to read this optional language to the jurors was prej udicial error. Defendant cites People v. Ellis (1999) 69 Cal.App.4th 1334 for the proposition that the tr ial court has a sua sp onte duty to give clarifying instructions where the terms used in an instruction have a technical meaning peculiar to the law. ( Ellis , at pp. 1338-1339 [trial court had sua sponte duty to define “speeding” when the conviction was based on a vi olation of the “basic speed law” statute, which contained several legal term s, such as “reasonableness”].) We do not believe withdrawal of consen t involves legal terminology peculiar to the law. The jury was instru cted in the meaning of consent with CALJIC No. 1.23.1, and to “withdraw” something (such as consen t) has a common sense meaning that is “‘commonly understood by those familia r with the English language.’” ( People v. Ellis , supra , 69 Cal.App.4th at p. 1338.) The instru ction on consent was sufficient for the jurors to determine from Keisha’s testimony whether she withdrew her consent during the incident to which she testified. Furthermore, the offense against Keisha constituted uncharged conduct. People v.
Cottone (2013) 57 Cal.4th 269 recently stated, “We have long recognized that ‘the trial court ordinarily has no sua spon te duty to instruct the jury as to the admissibility or use of other crimes evidence.’ [Citati ons.] This principle is cons istent with [Evidence Code] section 355, which provides that the trial c ourt, ‘upon request,’ shall instruct the jury

8 The optional language is as follows: “A person who initially consents and participates in the act of ______ has the right to withdraw that consen t. To be effective as a withdrawal of consent, the person must inform the other person by words or conduct that consent no longer exists, and the other pe rson must stop. The words or conduct must be sufficient to cause a reasonable person to be aware that consent has been withdrawn. If the other person knows or reasonably shoul d know that consent has been withdrawn, forcibly continuing the act of ______ despite the objection, is against the will and without the consent of the person.”28 about evidence adm itted for a limited purpose.” ( Cottone , at p. 293.) The same reasoning applies in defendant’s case. The Cottone court noted that a defendant, for tactical reasons, may not want the jury “overloaded” with instruc tions on the elements of alleged other crimes out of fear that such instructions could place undue emphasis on those crimes. ( People v. Cottone , supra , 57 Cal.4th at p. 294.) Th is consideration would appear to be appropriate in the instant case, where there were several charge d sexual offenses with detailed instructions, and the language defendant claims was lacki ng had relevance only to one uncharged, and briefly mentioned, act. Finally, any error in not including the language on withdrawal of consent was harmless under any standard. As noted, ot her instructions adequately covered the concept of what constituted consent. The fact that Keisha asked defendant to stop, if believed by the jury, left no ambiguity that required clarification by means of the omitted optional language. Furthermore, defendant’s conduct with Keisha was not inflammatory, as defendant asserts. The conduct involve d sex that was initially consensual between defendant and his girlfriend—not a stranger to whom he had offered a ride. Nor did Keisha say that defendant used violence or the threat of viol ence. Therefore, the jury’s consideration of what happened with Keis ha would not have ad versely affected the verdicts on the charged sexual offenses. IV. Evidence Admitted Pursuant to Evidence Code Section 1108 A. Defendant’s Argument Defendant contends the evid ence of the alleged prior offenses was inadmissible under Evidence Code section 1108. Its prob ative value on the question of propensity to engage in the charged offens es was substantially outweighe d by the undue confusion and prejudice resulting from testimony regarding the prior incidents, particularly Keisha’s testimony about defendant’s refusal to promptly cease intercourse wh en requested to do so. According to defendant, the prejudicial evidence rendered his trial fundamentally unfair in violation of his due process rights, and reversal is required.29 B. Relevant Authority Evidence Code section 1108, subdivision (a ) provides: “In a criminal action in which the defendant is accused of a sexua l offense, evidence of the defendant’s commission of another sexual offense or offens es is not made inadmissible by Section 1101, if the evidence is not in admissible pursuant to Section 352.” Subdivision (d)(1)(A) of Evidence Code section 1108 provides th at, for purposes of this section, a sexual offense includes “[a]ny conduct pros cribed by Section . . . 261, . . . 288a, . . .289, . . . of the Penal Code.” With the exception of Evid ence Code section 1101, Evid ence Code section 1108 “does not supersede other prov isions of the Evidence Code, such as normal hearsay restrictions and the court’s authority to exclude evidence pres enting an overriding likelihood of prejudice under [Evidence Code] section 352. [Citation.]” ( People v. Soto (1998) 64 Cal.App.4th 966, 984.) Under Evid ence Code section 1108, evidence of prior sexual offenses to show disposition is “‘“no lo nger treated as intrinsically prejudicial or impermissible.”’” ( Soto , at p. 984.) As with other form s of relevant evidence not subject to an exclusionary rule, the presumption is in favor of admitting the evidence. ( Ibid .) The “determination as to whether the probative value of such evidence is substantially outweighed by th e possibility of . . . unfair prej udice or misleading the jury is ‘entrusted to the sound discretion of the tr ial judge who is the be st position to evaluate the evidence.’ [Citation.]” ( People v. Miramontes (2010) 189 Cal.App.4th 1085, 1097.) “‘A trial court’s exercise of its discretion under section 352 ‘“must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’”’” ( People v. Hernandez (2011) 200 Cal.App.4th 953, 966.) C. Evidence Properly Admitted Un der Evidence Code Section 1108 In the instant case, the ch arged and uncharged offenses are all sex offenses, and the uncharged offenses were ther efore presumed admissible. ( People v. Frazier (2001) 89 Cal.App.4th 30, 41 [“It is enough the charged and uncharge d offenses are sex offenses as defined in section 1108.”].) In arguing to the contrary, defendant reviews several30 cases in which the trial court’s admission of evidence under Evidence Code section 1108 was held to be a proper use of disc retion and contrasts these cases with People v. Harris (1998) 60 Cal.App.4th 727 ( Harris ). In that case, the review ing court found reversible error in the trial court’s admission of eviden ce of a prior sex offense under Evidence Code section 1108. Accord ing to defendant, as in Harris , the probative value of the evidence in his case was outweighed by the prejudic ial impact and risk of jury confusion. Harris was a mental health nurse who wa s charged with sexually molesting two female patients. ( Harris , supra , 60 Cal.App.4th at p. 730-732.) His defense to the charges relating to one of the victims was that the victim was halluci nating. With respect to the second victim, his defense was a comb ination of consent, reasonable belief in consent, and the victim’s attempt to excuse her previous adulte ry with Harris. ( Id . at p. 732.) The prosecution introduced other-cri mes evidence of a 23-year-old offense in which Harris had raped, beaten , and mutilated the victim, who was not a patient of his. ( Id . at pp. 733-735) The jury convicted Harris of several offenses against the two female patients. ( Id. at pp. 731-732.) Harris contended on appeal that the admission of the prior offense was unduly prejudicial, and the Court of Appeal agreed. ( Id . at pp. 730, 741.) The Harris court believed the defendant’s defe nse to each count was strong. ( Harris , supra , 60 Cal.App.4th at p. 733.) The court then reviewed the redacted description of the prior offense that was give n to the jury and concluded that it may have caused the jury to specula te about the true nature of the crime. ( Id . at pp. 733-735.) The court stated, “This altered version of a 23-ye ar-old act of inexplicable sexual violence while heavy with ‘undue prejudice’ and da ngerous in the hands of a jury was not particularly probative of the defendant’s predispos ition to commit these ‘breach of trust’ sex crimes.” ( Id . at pp. 740-741.)
Harris is not instructive in the instant cas e. There was no altered or redacted version of defendant’s prior o ffenses presented to the jury such that it would cause the jury members to speculate about what defendant had really do ne. Moreover, as discussed infra , neither of the two uncharged offense descriptions were “heavy with ‘undue prejudice’” so as to be dang erous to defendant’s case. ( Harris , supra , 60 Cal.App.4th at31 pp. 740, 741.) Defendant’s case is clearly unlike Harris , where the defendant had strong defenses to the crimes charge d and the prior offense was far more serious and egregious. People v. Falsetta (1999) 21 Cal.4th 903 ( Falsetta ) established criteria for courts to consider when ruling on the admissibility of evidence of prior sexual offenses. ( Id. at pp. 916-917.) The factors to be consider ed in conducting the analysis depend on the unique facts and issues of each case. ( Ibid .; People v. Nguyen (2010) 184 Cal.App.4th 1096, 1116.) Factors that are particularly si gnificant in an Evidence Code section 1108 case are: “(1) whether the propensity evid ence has probative value, e.g., whether the uncharged conduct is similar enough to the ch arged behavior to tend to show defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant’s charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the prope nsity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whethe r the jury might be tempted to punish the defend ant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue cons umption of time. [Citation.] A trial court balances this first f actor, i.e., the propens ity evidence’s probative value, against the evidence’s prejudicial and time-consuming effects, as measured by the second through fifth factors.” ( Nguyen , at p. 1117.) The evidence given by Keisha was probati ve in that it had a tendency to show defendant’s predilection for forcing sex on a woman who says “no.” Evidence Code section 1108 has no requirement that the offens es be so similar that evidence of the prior acts would be admissible under Evidence Code section 1101. If such strict similarities were required, “Evidence Code sec tion 1108 would serv e no purpose.” ( People v. Frazier , supra , 89 Cal.App.4th at pp. 40-41.) The evidence given by Yolanda was even more probative because it was mo re similar, given that she was a stranger picked up by defendant on the street. The evidence of pr ior misconduct in this case was not likely to confuse the jury, nor was the jury likely to have sought to punish defendant for his conduct with Yolanda. Yoland a informed the jury she had be en to court in the matter, and the jury therefore knew the crime had been reported and adjudicated in some fashion.32 In any event, as discussed infra , defendant had an opportunity to inform the jury that he was convicted only of sexual battery on Yola nda. The prior victims’ testimony did not consume an overly large porti on of the total trial testimon y. Keisha’s testimony in particular was very brief. In addition, the pr ior acts were not more inflammatory than the charged conduct. The prior conduct with Keisha might be viewed by some as significantly less disturbing, since it invol ved someone with whom defendant had a relationship. The prior acts were not remo te, since all of the offenses—charged and uncharged—occurred within a time span of approximately eight years. Moreover, in this case, the court hear d exhaustive argument from both parties and engaged in a lengthy discussion on admission of the uncharged offenses. The court took a great deal of time to weigh the evid ence and explain its rulings. As in People v. Taylor (2001) 26 Cal.4th1155, 1169, th e record as a whole shows the court undertook a careful weighing process in reaching its decision. Th e type of evidence elicited in this case was properly admitted under Eviden ce Code section 1108 and Falsetta , supra , 21 Cal.4th 903. (See People v. Loy (2011) 52 Cal.4t h 46, 60-64.) Finally, we note that “[t]he prejudice wh ich exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative ev idence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the de fendant’s case. The st ronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual a nd which has very little effect on the issues. In applying section 352, “prejudicial” is not synonym ous with “damaging.”’ [Citation.]” ( People v.
Karis (1988) 46 Cal.3d 612, 638.) We conclude that defendant’s prior offenses were highly probative, and the probativeness substan tially outweighed any potential prejudice. Because we perceive no error, we do not addr ess defendant’s argument that the trial court’s error was not harmless.33 V. Evidence Code Section 1108 and Constitutional Violations A. Defendant’s Argument Defendant cites Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769 ( Garceau ) for the proposition that using other crimes eviden ce to infer criminal pr opensity violates the due process clause. He urges that Falsetta , supra , 21 Cal.4th 903, should be reconsidered in light of Garceau . Defendant also asserts that Ev idence Code section 1108 violates equal protection.
B. Falsetta Holdings Unaffected by Garceau Defendant’s additional contention that Evidence Code section 1108 deprived him of equal protection and the right to a fair trial is equally unavailing. In Falsetta , our Supreme Court cited with approval the Court of Appeal’s rejection of due process and equal protection challenges in People v. Fitch (1997) 55 Cal.Ap p.4th 172, 184-185 ( Fitch ). ( Falsetta , supra , 21 Cal.4th at p. 918.) Falsetta concluded that “in light of the substantial protections afforded to defendants in all cases to which section 1108 applies, we see no undue unfairness in its limited ex ception to the historical rule against propensity evidence” and that “the trial court’s discreti on to exclude prop ensity evidence under section 352 saves section 1108 from defendant’s due process challenge.” ( Id . at pp. 915, 917.) With respect to equal protection, Falsetta noted that the Legislature reasonably could create an exception to the propensity rule in sex offense cases “because of their serious nature, and because they are usually committed secretly and result in trials that are largely credibility contests.” ( Falsetta , supra , 21 Cal.4th at p. 918.) Quoting Fitch , supra , 55 Cal.App.4th at pages 184-185, the Su preme Court explained that “‘[t]he Legislature is free to address a problem one step at a time or even to apply the remedy to one area and neglect others. [Citation.]’ [Citations.]” ( Falsetta , at p. 918; see also People v. Waples (2000) 79 Cal.App.4t h 1389, 1394-1395; People v. Jennings (2000) 81 Cal.App.4th 1301, 1310-1311.) We agree with these authorities. Defendant contends, howe ver, that the holding in Falsetta must be reconsidered in light of Garceau , which held that the trial court erred in reading a jury instruction that did34 not limit the jury to a permissible inference based on other crimes evidence, but rather invited the jury to draw the additional inference of criminal propensity. ( Garceau , supra , 275 F.3d at p. 775.) Defendant asserts that under the reasoning of Garceau , other-crimes evidence admitted to infer criminal propens ity violates the due process clause.
Garceau is, of course, not binding on this court. ( People v. Avena (1996) 13 Cal.4th 394, 431) In any event, it is not relevant to the instant case. Garceau did not discuss the admissibility of pr ior sex offenses in a sex o ffense case, but rather, the introduction of evidence that th e defendant had been convicted of murder in a prior case and testimonial evidence that he manufactu red illegal drugs, introdu ced under Evidence Code section 1101. ( Garceau , supra , 275 F.3d at p. 773.) The California Supreme Court held that the admission of pr ior crimes evidence to show Garceau’s propensity to commit murder violated California law, but the error was harmless. ( Id . at p. 774.) The Ninth Circuit disagreed only with the find ing that the error was harmless. ( Id . at p. 775.) Furthermore, in U.S. v. LeMay (9th Cir. 2001) 260 F. 3d 1018, 1031, the Ninth Circuit held that Federal Rules of Eviden ce, rule 414 (28 U.S. C.), which concerns admission of evidence of another offense of child molestation, is constitutional. The court held that rule 414 does not violate due process, equal prot ection, or any other constitutional guarantee in light of Federal Ru les of Evidence, rule 403, which provides that relevant evidence may be excluded if its probative value is s ubstantially outweighed by the danger of unfair prejudice. ( U.S. v. LeMay , at p. 1031.) The reasoning in LeMay thus parallels that of Falsetta , and it contradicts defendant’s interpretation of Garceau

. Finally, it is clearly not our role to reevaluate Falsetta , which upheld the constitutionality of Evidence Code section 1108. (See Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.) Defendant ’s arguments are without merit. VI. Common Plan or Scheme Evidence A. Defendant’s Argument Defendant argues that the common features between the Yolanda C. incident and the charged crimes were insufficient to establish a common plan or scheme, and admission of this evidence was inappropria te under Evidence Code section 1101,35 subdivision (b). The admission of this evidence was a prejudicial abuse of discretion and a violation of his federal right to due proce ss under the Fifth and Fourteenth Amendments to the United States Constitution. B. Proceedings Below The prosecutor moved to present the evid ence of Yolanda C. under Evidence Code section 1101, subdivision (b) because it showed “that the defendant has a common pattern in the way that he commi ts his forcible rape crimes.” 9 He would offer rides to women within a short distance from his reside nce. The women accepted, and they would end up being forcibly raped. The evidence would be offered specifically in relation to the charged crime against N. Th e defense argued that the inci dents bore no “signature,” and defendant’s act of meeting wo men by offering them rides was not sufficiently unique. The court ruled that the eviden ce was not confusing, and th e degree of similarity was sufficient under Evidence Code section 352. The court found there was no undue prejudice in that the evidence would not prompt an emoti onal bias against the defendant. C. Relevant Authority “‘The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done.’ [Citation.] . . . The existence of such a design or plan also may be proved ci rcumstantially by evidence that the defendant has performed acts having ‘such a concurren ce of common features that the various acts

9 Evidence Code section 1101, subdivision (a) provides: “Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the fo rm of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” Subdivision (b) of Evidence Code section 1101, provides: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some f act (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful se xual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”36 are naturally to be explained as caused by a ge neral plan of which they are the individual manifestations.’ [Citation.] Evidence of a co mmon design or plan, ther efore, is not used to prove the defendant’s intent or identity but rather to prove that the defendant engaged in the conduct alleged to cons titute the charged offense.” ( People v. Ewoldt (1994) 7 Cal.4th 380, 393-394.) “To establish the existence of a comm on design or plan, the common features must indicate the existence of a plan rather th an a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. . . . [E]vidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate ci rcumstantially that the defendant committed the charged offense pursuant to the same desi gn or plan he . . . used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove id entity, the plan need not be unusual or distinctive; it need only ex ist to support the infere nce that the defendant employed that plan in committing the charged offense. [Citation.]” ( People v. Ewoldt , supra , 7 Cal.4th at p. 403.) D. Evidence Properly Admitted Un der Evidence Code Section 1101, Subdivision (b) Defendant argues that, although the Yola nda C. incident bore some superficial similarity with the K. rape co unt, there was little si milarity to the N. counts. The alleged rape and forcible oral copulation occurred in N.’s home. She had invited him over, and they smoked marijuana together and watched te levision. Also, the perpetrator used a gun on Yolanda and ordered her to undress, whereas K. did not mention a gun, and she testified that her assailant ripped off her clothes. Despite the differences in the circumstan ces, we conclude there were sufficient similarities in the incidents to justify admission of the Yo landa C. incident as common plan evidence. In the Yolanda C. incident, as well as in the charged crimes, defendant was driving or sitting in his car when he saw the women and offered th em a ride. He then interacted with them in a friendly manner until he ultimately asked them for sex. In N.’s case, it was logical that de fendant would not attempt to have sex with her while her37 children were in the car. In stead, he waited until he was in her home and her children were put to bed. In two of the instance s defendant offered to pay for sex when the woman initially refused. In the uncharged incident, defenda nt used a gun to accomplish the rape. In the case of N., defendant used th e threat of a gun. In all of the instances, defendant attempted to have sex with the wome n consensually, but when they refused, he used force and fear to make them comply with his demands. Thus, the instance of uncharged conduct was highly probative of defe ndant’s scheme of trolling the streets of his neighborhood to pick up women for sex. Moreover, the evidence was not more prejudicial than probative. The uncharged incident was not more inflammatory than either of the charged crimes. K. testified that defendant attempted to choke he r, and N. stated that defendant threatened her with a gun with her two toddlers in the house. In the uncharged incident, Yolanda actually asked for a ride, thereby putting herself at risk, whereas in the charged incidents, defendant offered the ride, and the women accepted. In any event, the admission of the unc harged incident was harmless under any standard. ( Chapman v. California (1967) 386 U.S. 18, 24 ( Chapman ); Watson , supra , 46 Cal.2d at p. 836.) The trial court properl y admitted the evidence of both uncharged incidents under Evidence Code section 1108. Therefore, the jury would have learned about the incidents even if the prosecutor had not sought admission of the Yolanda C. incident as showing a common plan or scheme. Defendant’s argument is without merit, a nd he suffered no viola tion of his federal right to due process. VII. Exclusion of Defendant’s Prior Sexual Battery Plea A. Defendant’s Argument Defendant contends the trial court erred in refusing to take judicial notice of his plea to sexual battery and subsequent probati on in the incident w ith Yolanda C. The court erroneously ruled that the plea was not relevant to whether defendant had raped Yolanda C.38 B. Proceedings Below During the discussion of the admission of Yolanda C.’s evidence as a common scheme, defense counsel suggested to the court that it “would be a lot more fair if, rather than the conduct being introdu ced, that the conviction be intr oduced.” The court stated that it was not what the person was convicted of that made the evidence probative. The court ruled without prejudice that the evidence of the co nviction for sexual battery was not relevant. The court suggest ed that defense counsel resear ch cases that might support his argument that the conviction for the lesse r offense should be introduced. Counsel stated that perhaps he and the prosecu tor could agree to a stipulation. During her testimony, Yolanda stated that she had previously been to court in regard to the incident with de fendant. No evidence was pres ented about the results of any proceedings against defendant. Defense counse l asked the court to take judicial notice that defendant had pleaded gu ilty to sexual battery against Yolanda and was given credit for time served and granted probation. The c ourt stated the evidence was not relevant to the question at hand, which was whether or notdefendant committed a rape of Yolanda. The fact that defendant pleaded guilty so as to avoid jail did not counter the prosecution’s evidence that he committed a rape. Moreov er, the evidence of the nature of the conviction would require instru ction on the elements of se xual battery, since the jury would not know what that was. The trial court told counsel that he coul d introduce the prior conviction to show that defendant committed sexual battery. De fense counsel insisted, however, that he wanted the conviction to come in for a different purpose, i.e ., to inform th e jury that defendant entered the plea to avoid trial. C. Relevant Authority Only relevant evidence is admissible. (Evid. Code, § 350.) All relevant evidence is admissible, except as otherw ise provided by statute. ( Evid. Code, § 351.) Relevant evidence is evidence “h aving any tendency in reason to pr ove or disprove any disputed fact that is of consequence to the determin ation of the action.” (Evid. Code, § 210.) “The test of relevance is whether the ev idence tends ‘logically, naturally, and by39 reasonable inference’ to establish material facts such as identity, intent, or motive. [Citations.]” ( People v. Garceau (1993) 6 Cal.4th 140, 177.) The trial court has wide discretion in determining the relevancy of evidence. ( Ibid .) Evidence is irrelevant if it leads only to speculative inferences. ( People v. Morrison (2004) 34 Cal.4th 698, 711.) Where prior uncharged crimes evidence is admitted, a trial court must allow the defendant to present eviden ce of his acquittal. ( People v. Griffin (1967) 66 Cal.2d 459, 465-466 ( Griffin ) [other crimes evidence admissible because of similarities between the crimes to show victim’s injuries not accidental]; People v. Mullens (2004) 119 Cal.App.4th 648, 667 ( Mullens ) [other crimes evidence admitted under Evidence Code section 1108].) As Griffin explains, it is logical that competent evidence of another crime is not inadmissible by reason of the defendan t’s acquittal, but the proof of the acquittal is also admissible to w eaken or rebut the prosecution’s ev idence of the other crime. ( People v. Jenkins (1970) 3 Cal.App.3d 529, 534.) “A ccordingly, the gist of the holding
in Griffin is that since ‘evidence of other crimes always involves the risk of serious prejudice, and it is therefore always “to be re ceived with ‘extreme caution,’”’ [citation] any competent or otherwise admissible ev idence tending to w eaken and rebut the evidence of the other crime should be admissible.” ( Ibid .) D. No Abuse of Discretion or Error At the outset, we note that the trial cour t stated it would allow defense counsel to present evidence of defendant’s conviction for sexual battery against Yolanda. Counsel, however, insisted on presenting evidence of th e terms of defendant’s plea deal and his purported reason for taking the deal. As the trial court repeatedly stated, this evidence was not relevant to the issue of whethe r or not defendant committed the rape. Defendant argues, however, that the principles pronounced in Griffin and Mullens extend to the situation in his case, i.e., that he pleaded to a lesser included offense of rape. He offers no authority to support his claim that this is so. As noted, Griffin recognized that evidence of other crimes always involves the risk of prejudice, and that evidence of an acquittal should be admissible to rebut the prosecution’ s evidence of the other crime. ( Griffin , supra , 66 Cal.2d at p. 465.) An acquittal is relevant for this purpose because it40 addresses a defendant’s guilt or innocence. In the instant case, however, defendant’s innocence of his conduct with Yolanda was no t shown by the fact that he pleaded to sexual battery in order to avoid being incarcerated. We also conclude that any failure to ad mit evidence of the defendant’s plea was harmless under any standard. ( Chapman , supra , 386 U.S. at p. 24; Watson , supra , 46 Cal.2d at p. 836; see Griffin , supra , 66 Cal.2d at pp. 466-467 [error in excluding evidence of acquittal is reviewed under the standard in Watson ].) As the trial court pointed out, evidence that defendant pleaded guilty to sexual battery could have le d the jury to believe that defendant knew he was guilty and tried to avoid a conviction of the greater offense. Sexual battery is committed when the perpetrator touches an intimate part of an unwilling person “for the specific purpose of sexual arousal , sexual gratification, or sexual abuse.” (§ 243.4, subd. (e)(1).) Therefore, defend ant suffered no prejud ice from the court’s exclusion of the evidence and actually benef ited from its exclusion, since it would have bolstered Yolanda’s credibility. VIII. CALJIC No. 2.50.1 A. Defendant’s Argument Defendant contends that CALJIC No. 2.50.01, quoted in footnote 6 ante , which instructed the jury on the use of prior uncharged offe nses, violates due process. It interferes with the presumption of innocen ce and makes conviction possible without proof beyond a reasonable doubt, calling for re versal of the convictions. He argues that, even under the Watson standard, reversal is called fo r because it is reasonably probable the jury misapplied the instru ction in the instant case. B. No Due Process Violation CALJIC No. 2.50.01 instructs the jury on the use of evidence admitted under Evidence Code section 1108. (See Falsetta , supra , 21 Cal.4th at p. 924.) The instruction states, in part, that the jury may infer th at defendant “was likely to commit and did commit” the charged offenses if they find that he committed the prior offenses and infer that he had a disposition to commit sexual o ffenses. (CALJIC No. 2.50.01 (1999 rev.).) Defendant acknowledges that People v. Reliford (2003) 29 Cal.4th 1007 ( Reliford ) held41 that the instruction correctly states the law and does not violate due process. ( Id . at p. 1009.) He also acknowledges that this court is required to follow Reliford , and he states that he makes this argument for purposes of preserving the matter for federal review. He contends that Reliford is in error.
In Reliford , the prosecution presented evidence indicating the defendant previously had raped a different victim in a manner similar to the charged offense. The defendant claimed that, “having found the unc harged sex offense true by a preponderance of the evidence, jurors would rely on ‘this alone ’ to convict him of the charged offenses.” ( Reliford , supra , 29 Cal.4th at p. 1013.) Reliford rejected the argument because the instruction specifically stated, “‘if you find by a preponderance of th e evidence that the defendant committed a prior sexual offense . . . , that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime.’” ( Ibid .) Reliford concluded, “[n]o reasonable ju ror would believe those requi rements could be satisfied solely by proof of uncharged offenses.” ( Id . at pp. 1013-1014.) “[ W]e will presume here that jurors can grasp their duty—as st ated in the instructions—to apply the preponderance-of-the-evidence standard to the preliminary fact identified in the instruction and to apply the r easonable-doubt standard for a ll other determinations.” ( Id

. at p. 1016.) CALJIC No. 2.50.01 does not deny a defe ndant due process because it does not allow a jury to infer guilt w ithout proof beyond a reasonab le doubt. Moreover, the version of the instruction read to the jury was approved in Schultz v. Tilton (9th Cir. 2011) 659 F.3d 941, 945, as bein g consistent with clearly established federal law. We are satisfied beyond a reasonable doubt that th e jury used the prop ensity evid ence for a proper purpose, and that the verdict was not based on an interpreta tion by which the jury convicted defendant by a mere preponderance of the evidence. IX. Ineffective Assistance Defendant states that if this court shou ld conclude that any of the issues he presents are deemed forfeited, he alterna tively asserts that tr ial counsel provided ineffective assistance by failing to preserve the issue. To successfully assert a claim of42 ineffective assistance of counsel, a defe ndant must demonstrate that counsel’s representations fell below an objective standa rd of reasonableness, and but for counsel’s errors there is a reasonable probability thatthe result of the pr oceeding woul d have been different. ( Strickland v. Washington (1984) 466 U.S. 668, 6 88, 694.) Since we have addressed the merits of all of defendant’s ar guments, no claim of ineffective assistance of counsel lies. DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.
We concur:

CHAVEZ, J.

HOFFSTADT, J.