Filed 4/22/15 P. v. Jackson CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE,
Plaintiff and Respondent,

v.
GREGORY JACKSON,
Defendant and Appellant. B256282
(Los Angeles County Super. Ct. No. MA057531)

APPEAL from a judgment of the Supe rior Court of Los Angeles County. Kathleen Blanchard, Judge. Affirmed in part, reversed in part, and remanded with
directions. Richard A. Levy, under ap pointment 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney Ge neral, Daniel C. Chang, De puty Attorney General, for Plaintiff and Respondent.

_____________ ____________2 The jury found defendant and appellant Gregory Jackson guilty of forcible rape (Pen. Code, § 261, subd. (a)(2) [count 1]), 1 two counts of forcible oral copulation (§ 288a, subd. (c)(2) [counts 2-3]), two counts of criminal threats (§ 422, subd. (a) [counts 4 and 6]), and assault with intent to commit rape or oral co pulation (§ 220, subd. (a)(1) [count 5]). The jury found true the allegati ons that defendant personally used a deadly and dangerous weapon in commission of the crimes charged in counts 5 and 6. (§ 12022, subd. (b)(1).) In a bifurcated proceeding, the trial c ourt found true as to counts 1-3 that defendant suffered a prior sexual offense convic tion for purposes of the one strike law. (§ 667.61, subds. (a) & (d).) As to all c ounts, the court found that defendant suffered three prior serious and/or violent felony co nvictions within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and three prior serious felony convictions within the meaning of section 667, subdivision (a)(1). Defendant was sentenced to an aggregate te rm of 392-years-to-life. As to counts 1-3, the trial court imposed consecutive term s of 25-years-to-life pursuant to the one strike law, tripled to 75-years-to-life under the three strikes law. In counts 4-6, defendant was sentenced to consecutive terms of 25-years-to -life. The sentences in counts 1-6 were each enhanced by 15 years based on the thre e serious felony prio r convictions. The
sentences in counts 5 and 6 were each also enhanced by one y ear for use of a deadly or dangerous weapon. Defendant contends: (1) the trial court abused its discretion in excluding evidence of prior misdemeanor prostitution convictions of a complaining witness; (2) the trial court abused its discretion by excl uding evidence of other prior misdemeanor convictions and an arrest suffered by complaining witnesses; (3) the trial court abused its discretion by requiring that defendant present evidence of conduct evidencing mo ral turpitude rather
than the misdemeanor convicti on of a witness; (4) the pros ecutor improperly questioned

1 All further statutory references are to the Penal Code, unless stated otherwise.3 defendant on cross-examination and committed prosecutorial misconduct in her closing argument; (5) the errors identif ied in defendant’s first four contentions prejudiced defendant in the aggregate; (6 ) the evidence was insu fficient to support one of three prior serious felony enhancements; (7) the trial cour t erred when it failed to stay the sentences
on the criminal threats convicti ons in counts 4 and 6 pursua nt to section 654; (8) the
evidence was insuffi cient to support defend ant’s conviction for criminal threats in count 6; and (9) the evidence was insufficient to support the d eadly or dangerous weapon findings in counts 5 and 6. The Attorney General concedes, and we ag ree, that there is insufficient evidence to support one of the prio r serious felony enhancements. We further agree with defendant that the sentence impos ed in count 6 must be stayed pursuant to section 654. Additionally, our review of the record disclosed that the ab stract of judgment did not conform to the oral pronouncement of judgment as to the sentences in counts 1-3. After reviewing the parties’ supplemental briefing on this issue, we conclude that the abstract of judgment must be corrected as to counts 1- 3 to reflect that the sentences were imposed
under the one strike law as well as the three strikes law, and that the indeterminate term imposed on those counts is 75-years-to-life. In all other respec ts the judgment is
affirmed.

FACTS

Prosecution

Counts 5 & 6: Victim Tammy J.

Tammy J. was driving her truck alone on Sierra Highway during the evening on September 16, 2012. She pulled over b ecause the truck stopped running. Tammy checked the engine and noticed that it was hot, so she stood on the side of the road to wait
for it to cool down.4 A van drove past her and made a U-turn . The driver, who Ta mmy later identified as defendant, pulled up behind her truck. Defendant got out of the van and approached her. Tammy was apprehensive about defend ant because it was dark and the area was “not that great.” Defendant was pleasant and offered assi stance. Tammy did not have her phone with her, so she asked to borrow defendant’s p hone. He said that the battery had died, and quickly put his cell phone in his pocket. Tammy suspected that she had run out of gas, though she could not be sure because the gauge was broken. Defendant said that he would get her mo re gas if she had a gas can. Tammy retrieved a red plastic tw o-gallon gas can with a black mark on it from
the back of her truck and handed it to defenda nt. Defendant said th at he would go get the gas, but that he needed to stop at the bank first. Defendant put the gas can in his van. He told Tammy that he was worried about leaving her there because it was dark and the area was not safe. He told her that he was a good guy and just wanted to get her truck ru nning again. Nervous about the area and the darkness, Tammy got into the van with defendant. Defendant drove to a parki ng lot in an industrial area and parked. The area was dimly lit and many of the businesses were cl osed. There were no other people around. Defendant got out of the driver’s seat, put his leg between Tammy’s legs, and placed his left hand around Tammy’s throat . He held “what [Tammy] thought was a knife to [her] neck, something sh arp . . . .” It was dark in the van and she could not see. Defendant said, “Bitch, get in the back and get naked.” Tammy asked if he was joking. He responded, “Bitch, get in the back and get naked; otherwise, I’ll kill you.” Tammy
was “scared to death.” She tried to think of ways to escape, and reached for the door handle. Defendant had put th e knife down behind him, but when she reached for the door he picked it up again and held it to her neck. He threatened, “Bitch, get in the back and get naked; otherwise I’m going to stab you. ” Defendant put the knife down a second time. Tammy got out of the van and ran, screaming for help. Tammy had been wearing flip flops, but they came off as she ran for help . She left her gas can in defendant’s van.5 Tammy ran to a street and tried to flag down help, but no one stopped. She ran a little over half a mile to a Panda Express. Sh e did not look back as she was running. The restaurant was closed, but there were two wo men inside cleaning. Tammy banged on the
door and asked them to call 911. The women called the police but did not let her inside the restaurant. Tammy sat outside at a ta ble for approximately 45 minutes until police
arrived. When Los Angeles County Sheriff’s Deput y Carl Forbes arrived at the Panda Express, Tammy was out of breath, crying, an d hysterical. Her hair was “messed up,” and she was not wearing shoes. Deputy Forb es spoke with Tammy for about 30 minutes,
and then drove her to where he r truck was parked on the side of Sierra Highway. It was near a closed car dealership. There were no open businesses in the area. Deputy Forbes had Tammy retrace the route that defendant took to drive them to the industrial area. She took Deputy Forbes to the spot where defenda nt parked the van and assaulted her. The
industrial area was deserted and not as well-li t as Sierra Highway. They found Tammy’s flip flops nearby. At trial, Tammy was shown photographs of a gas can recovered from defendant’s van. She testified that it was “definitely” hers. Tammy did not take $50 from defendant, nor did she run out of defendant’s van with the money.

Counts 1-4: Diedra M.

Diedra M. was drinking beer in a bar parking lot while watching live music during the evening of September 26, 20 12. Diedra had parked her Fo rd Taurus at Village Grill,
across the street from the bar. After drinki ng for about an hour, Di edra decided to go home, but realized she was too drunk to driv e. She did not call her husband because she did not have a cell phone or money to make a call. Diedra did not want to walk home
because it was about a mile and a half away, so she decided to hitchhike. She made eye6 contact with defendant, who was driving a va n on Sierra Highway. Defendant stopped to pick her up. Diedra got into the van and told defendant where sh e was going. He said he would give her a ride, but that he needed to stop somewhere first. Defendant drove the van to a house, where he parked. There were no streetlights in the area. Cars occasionally drove past, but ther e was no one else around. It was dark inside the van. Defendant said, “Bitch, get in the back an d take your clothes o ff.” Defendant told Diedra, “I don’t play games.” His hand was pos itioned on the side of his seat as if he was holding a weapon. Diedra was afraid that de fendant would become violent. It was too
dark for her to tell for certain if he had a weapon. Diedra took off all her clothes.
Defendant told Diedra he wanted to look at her. He used a lighter to see her, and asked her how old she was. When she responded he seemed disappointed. Diedra complied
with defendant’s direction to get into the back of the van. Diedra was afraid that
defendant would hurt her if sh e did not obey him. She told him she did not want any problems, and that he did not have to do what he was doing. Defendant took off his pants
and demanded that Diedra “suc k his dick.” She complied beca use she did not want to get hurt. Defendant repositioned hi mself and demanded more oral se x. This continued for “a long time.” Defendant repositi oned himself multiple times dur ing the oral copulation. Diedra began crying. She asked defendant to let her go. He replied that “he would let [her] go when [he] was finished and that he didn’t know [why she] was crying because he was going to pay [her].” She said she did not wa nt to be paid, she just wanted him to let her go. Defendant said he wanted to perf orm oral sex on her. She refused to lie down because she “was scared [she] w ouldn’t get back up.” She to ld defendant she was afraid. She then sat with her legs open and defendant touched her vagina once with his mouth.
She told him that she was scared repeatedly. She plea ded for him to stop and told him that she had children. Defendant replied, “Shut that shit up.” He said he would let her go, but she had to finish first.
Defendant demanded sexual intercourse. Diedra told him she was married, and asked him to use a condom. Defendant pu lled out a condom from somewhere beside7 him. Diedra continued to cry. Defendant di d not seem to care and kept telling her to stop talking. Diedra could not see a way to es cape. Defendant was big, and he was in
between her and the door. Defe ndant put on the condom. He in serted the tip of his penis into her vagina. Diedra refuse d to lie down. He was unable to fully insert his penis into her because she kept moving her body.
Defendant lost his erection. He sat down next to Diedra a nd demanded oral sex again. She was crying so hyst erically that she could not perform oral sex because her
nose was filled with mucus. De fendant gave her his shirt to blow her nose in. He asked her to talk to him, and sat down next to her. He told her “that he ha d to finish what he was doing because it mess[ed ] with him physically if he [did n’t] complete it.” He said he would let her go. Diedra responded that if he was going to let her go he should give her bra to her. Defendant gave Diedra her bra. She then asked for her shirt. Defendant gave it to her and said, “See, I’m going to let you go.” Diedra then said that if he was going to let her go he should give her pa nts back, and defendant got very angry. He said, “Bitch, you going to suck my dick till I come or I’m going to cut your throat and slash your face and watch you bleed.” He told her he liked to “watch[] b itches bleed.” Diedra thought she was never going to see her children agai n. She thought she was going to die.
When defendant leaned back to receive more oral copulation, Diedra escaped through the driver’s side door. Defendant came to the front of the va n and told her to get in. She said that she was not getting in. He threw her clothes out of the van. Diedra went to the road quickly and flagged down a man in a car. She was terrified. Defendant
started the van and left. Diedra told the ma n she had been raped an d asked if he could take her back to her car. He called the poli ce, but did not let her into his vehicle. Los Angeles County Sheriff’s Deputy Me lissa Navarro responded to the call and spoke with Diedra. Diedra was upset and crying, and had difficulty speaking. It took
about 20 minutes for her to calm down enough to talk to Deputy Navarro. After she calmed down, Diedra relayed the events to Deputy Navarro. Depu ty Navarro smelled
alcohol on Diedra’s breat h and believed that she had been drinking. The deputy searched8 Diedra and found loose change and her Califor nia identification card. The deputy did not find a $20 bill in Diedra’s possession. Deputy Navarro drove Diedra home, and then drove to the Village Grill parking lot to try to find Diedra’s car. She observed a single car parked in the lot, which was later
determined to be a 1999 Ford Taurus. Diedra testified she was not working as a prostitute on the night of the incident. She did not discuss performing or al copulation on defendant in exchange for $20, and she
did not smoke crack cocaine w ith defendant in his van.

Defendant’s Arrest, Search of th e Van, and Scientific Evidence

At approximately 3:00 a.m. on the day after Diedra was sexually assaulted, Deputy Forbes saw defendant driving a vehicle matching the description that Tammy had given of defendant’s van. Deputy Forbes initiated a traffic stop, spoke with defendant, placed him under arrest, and impounded the van. Los Angeles County Sheriff’s Depart ment Sergeant Troy Bowser searched defendant’s van. Sergeant Bowser recovered a box of condoms from the center seat row, a used condom from the rear map pocket of the front passenger seat , and a red two-gallon gas can that Tammy later iden tified as belonging to her. Los Angeles County Sheriff’s Department criminalist Leslie Thompson inspected
the used condom and collected cellular material . She collected semen in an exterior swab
of the condom and seminal fluid on an inte rior swab. Ms. Thom pson determined there was a major contributor and a minor contribut or to the sample obtained from the condom. Defendant’s DNA profile matched the profile of the major contributor. The profile of the
minor contributor matche d Diedra’s DNA profile.9 Testimony of Maria H.

On February 22, 1991, Maria H. was 16 years old. 2 She was walking with her friend, Jacqueline, when defendant stopped th em. Defendant asked if they wanted “a ride.” They wanted a ride home, so they sa id yes and got into his vehicle. Defendant drove the girls to the desert. He told th em he had a gun, and pressed something metal that felt like a gun to the back of Maria’s head. He orde red Jacqueline to get out, and
then drove Maria further into the desert. Defendant stop ped the vehicle, put his arm across Maria’s throat, and thre atened to kill her. He put his mouth on he r vagina and inserted his penis into her vagina. When he was done he let her go. He said something like, “I’ll give you a head start.” Maria ra n to a road for help. A passerby called the police.

Defense

Defendant testified on his own behalf. Early one evening in September 2012, he was driving his father’s van on Sierra Highway, intending to get high with a prostitute.
He had crack cocaine in a toolbox inside th e van. Defendant saw Tammy walking on the
side of the road toward a mote l. She waved at him, so he thought she was a prostitute. Defendant pulled up next to Tammy and she immediately got into the van. He said he was “looking to party” and asked he r what she was “into.” Tammy said she was into “speed.” Defendant told her he did not have speed, and offered her money. She agreed. Defendant gave he r two $20 bills and one $10 bill for a total of $50. Tammy told him where they could go to get speed, but it was far away, so defendant parked in a factory parking lot inst ead. He said, “[C]ome on baby. Let’s get in the back.” Tammy agr eed. Defendant went to the back of the van and sat down. He

2 Maria testified at trial under the name “Maria A.”10 heard the front passenger door slam, so he we nt to the front of the van to see what was going on. He saw Tammy running away. On another evening in September 2012, defendant drank alcohol and used crack
cocaine at the Shadow Park Motel with a group of men. He was driving out of the parking lot when he saw Diedra in front of th e motel. She was standing with some other girls, one of whom he knew as “Black.” Several months earlier, defendant had given Black drugs in exchange for sex. Defendant wa ved for Diedra to get in his van. He told her he wanted to “party.” She said she did, too, and asked, “[W]ha t you got?” Defendant told her he had crack cocaine. Diedra said, “[A]ll you have to do is give me a hit and I
turn into a free mama.” Di edra then indicated she was skilled at oral copulation.
Diedra told defendant where to drive. After defendant parked the van, they sat on its floor, smoking cocaine, for ab out an hour and a half. Died ra orally copulated him, but defendant did not ejaculate. He never inserted his penis into her vagina.
Defendant and Diedra cons umed all of defendant’s $100 worth of cocaine. Defendant refused to get more cocaine. Died ra swore at him and said, “I’m going to get you.” Defendant said he would give her mo ney to buy more drugs. She became very agitated and paced back and fort h in the van. Diedra got out of the van, but continued swearing at defendant. He threw $20 at her, but she threw it back at him. Defendant drove away.
Defendant did not believe there were any condoms in the van. If there were condoms, they might belong to his father. Defendant knew a used condom was found in the van, but denied using a condom with Diedra. When questioned whether it would surprise him to learn that the used condom was found to include bo th his and Diedra’s DNA, he responded, “It would surprise me because it’s impossible.” Although Diedra performed oral sex on defendan t, he never performed oral sex on her, never penetrated her vaginally, and he did not achieve orgasm. He did not have sexu al intercourse with prostitutes because he did not want to catch any diseases. Defendant did not threaten Diedra, or become physically vi olent with her. He did not ha ve any weapons in the van.11 Defendant testified that he was convicted of forcible rape while acting in concert in 1991. The victim was a prostitute named Cy nthia J. He was convicted for the forcible rape of Maria, a 16-year-old prostitute, also in 1991. Defendant de nied having sex with Maria, but admitted that he pleade d guilty to raping her by force.

DISCUSSION

Exclusion of Diedra’s Prior Misd emeanor Convictions for Prostitution

Defendant contends that the trial court erred in ex cluding Diedra’s two 1997 misdemeanor convictions for prostitution. Defe ndant further contends that the trial court erred when it “appeared” to excl ude evidence that Diedra ha d worked as a prostitute in the recent past, and specifically on any day other than the night the crimes took place. He argues the evidence was admissible to impeach Diedra’s credibility. We agree with the Attorney General that these contentions ar e both forfeited and fail on the merits.

Relevant Proceedings

Before the jury was empanelled, the pr osecutor moved to exclude evidence of
Diedra’s two misdemeanor convictions fo r prostitution (§ 647, subd. (b)), which she suffered in September and October of 1997. The prosecutor argued the misdemeanor
convictions should be excluded because they were too remote in time. The trial court
asked defense counsel whether he intended to impeach Diedra with the two convictions: “[Defense counsel]: Yes, your honor. The defense in this case essentially is that Diedra was acting as a prostitute on the night in question, that the business transaction went bad. Consequently, she made up lies a bout [defendant], about what he had done. [¶] And I think that even though they’re old, . . . she will be asked on the night in question was she working as a prostitute. I believe from her previo us statements and testimony she will say no. [¶] I would like to ask her, have you ever worked as a12 prostitute. I don’t know what she’ll say to th at question. If she says no, she hasn’t, I
would like to use those convictio ns to impeach her. If she says yes, she has, then I don’t need to get into thos e specific convictions. “The Court: So you are not actually seek ing to introduce them as crimes of moral turpitude; you’re actually talki ng about [Evidence Code secti on] 1101 type of evidence as to the victim that you’re talking about her actions in conformity with prior actions,
correct? “[Defense counsel]: Yes. I would agr ee with that, Your Honor, but having said already if she denies having worked as a pros titute, I would then want to use those priors for impeachment purposes.” The trial court then gave the pros ecutor the opportun ity to respond. “[Prosecutor]: I would just add, your h onor, that this statemen t that the defendant makes, he declares that both of the victims were prostitutes at the time of the assaults on two separate occasions. [¶] I believe that counsel asking Diedra if she was working on the evening of the assau lt as a prostitute is appropriate, but anything beyond that I believe is [subject to Evidence Code se ction] 1101 and inappropriate. “[Defense counsel]: Your Honor, factually , so you know, my understanding of the discovery is that Diedra essentially waived down [defendant]. She flagged him down, asked him for a ride. [¶] . . . She claimed she drank too much alcohol that night at a bar
and did not want to drive her car home. She was hitchhiking and flagging down motorists. [¶] I would think that her know ledge about that, things that can happen and do happen, is related to her prior experien ce working as a prostitu te, and I would think that it could go to state of mind on her part as to what she was doing and what concerns, if any, she had while doing it. “The Court: Okay. I honestly don’t follo w you there. I do think that in analyzing whether or not she was working as a prostitute that night is certainly relevant. [¶] You
can cross-examine her in terms of her acti ons to support or undermine whatever her statement is, but the fact that someone su ffered . . . two misdemeanor convictions for prostitution 17 years ago, I think that the prob ative value is very minimal. [¶] In13 addition, even trying to get there by asking her, well, isn’t it true that you have been a prostitute in the past, I don’t see wh at the relevance of that that [ sic ] is as to what happened on that night. So the probative valu e seems very minimal to me. [¶] On the other hand, the prejudicial effect of confusin g the issues for the ju ry, and we are talking about something that is quite remote 17 years ago, the prejudicial effect in terms of the undue consumption of time and c onfusion of the issues does app ear to me to substantially outweigh any minimal probative value. [¶] Th erefore, under Evidence Code section 352, I will grant the People’s motion to exclude any reference to those prior misdemeanor
convictions from 1997.” Later, the court reiterated its ruling: “The Court: Well, again, counsel, I said your questioning as to what [Diedra] was doing that night and what she said that night, that’s all admissible. It’s 17 years ago that ... [¶] —we’re not getting into.

Legal Principles

Evidence the victim particip ated in a form of prostitu tion is evidence of conduct involving moral turpitude, which is admissible for impeachment purposes. ( People v.
Chandler (1997) 56 Cal.App.4th 703, 708-709 ( Chandler ).) Court records of
misdemeanor convictions are also admissible to prove both “the fact of conviction, [and]
... that the offense reflected in the record occurred” under an exception to the hearsay rule. ( People v. Duran (2002) 97 Cal.Ap p.4th 1448, 1461 ( Duran ); see Evid. Code, § 452.5.) However, Evidence Code sections 78 2 and 1103, subdivision (c), place limits on
how and under what circumstances a victim’s prior sexual behavior can be admitted in a trial of sexual assault charges. ( Chandler
, supra , at p. 707.) “[Evidence Code] [s]ection 1103, subdivis ion (c), provides that a defendant cannot introduce opinion evidence, reput ation evidence, and evidence of specific instances of the alleged victim’s previous sexual conduct with persons other than the defendant to prove the victim consented to the sexual acts allege d. In adopting this section the Legislature14 recognized that eviden ce of the alleged victim’s consen sual sexual activities with others has little relevance to whether consent was give n in a particular instance. [Citation.]” ( Chandler
, supra , 56 Cal.App.4th at p. 707, fn. omitted.) Although admission of the victim’s past sexual conduct for purposes of proving consent is strictly precluded, Evidence Code section 1103, subdivision (c )(4), allows the admi ssion of evidence of prior sexual conduct relevant to the credibility of the victim. ( Ibid .) “Evidence Code section 782 specifies a pr ocedure requiring an in camera review of the proffered evidence to diminish the potential abuse of section 1103, subdivision (c)(4).” ( Chandler
, supra , 56 Cal.App.4th at pp. 707-70 8.) “[Evidence Code] [s]ection 782 requires that the testimony be pre ceded by a written motion by the defendant accompanied by an affidavit cont aining an offer of proof. If the trial court finds that the offer of proof is ‘sufficient,’ it must conduct a hearing out of the presence of the jury and allow the alleged victim to be questioned ‘“ regarding the offer of proof . . . . At the conclusion of the hearing, if the court finds th at evidence proposed to be offered by the defendant regarding the sexual conduct of the co mplaining witness is relevant . . . and is not inadmissible pursuant to Section 352 of [t he Evidence Code], the court may make an order stating what evidence may be introdu ced by the defendant, and the nature of questions to be permitted. The defendant may then offer ev idence pursuant to the order of the court.”’ (See People v. Blackburn [(1976)] 56 Cal.App.3d 685, 691.)” ( People v.
Sims (1976) 64 Cal.App.3d 544, 553-554 ( Sims ).)
Evidence Code section 782 vests broad di scretion in the trial court to weigh the defendant’s proffered evidence prior to its submission to th e jury and to resolve the conflicting interests of the vi ctim and the defendant. ( People v. Rioz (1984) 161 Cal.App.3d 905, 916 ( Rioz ).) In addition, the statute reaffi rms the role of Evidence Code section 352 in authorizing the trial court to exclude relevant evidence that is more prejudicial than probative. ( Ibid .; People v. Casas (1986) 181 Cal.A pp.3d 889, 896.) The statutes do not permit the trial judge to make a credibility determination at the in camera hearing. Instead, the trial judge must evaluate the proffere d evidence under the admissibility guidelines set fo rth in Evidence Code section 352, weighing prejudicial15 effect versus probative valu e and additional evidentiary cr iteria. Credibility of the proffered witness is not incl uded under these guidelines. ( Chandler
, supra , 56 Cal.App.4th at p. 711.) “[T]he latitude [Evide nce Code] section 352 allows for exclusion of impeachment
evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attriti on over collateral credibility issues.” ( People v. Wheeler (1992) 4 Cal.4th 284, 296 ( Wheeler ).) “When exercising its
discretion under Evidence Code se ction 352, a court must alwa ys take into account, as applicable, those factors traditionally de emed pertinent in this area.” ( Ibid .) “[C]ourts may and should consider with particular car e whether the admission of such evidence might involve undue time, confusion, or prej udice which outweighs its probative value.” ( Id . at pp. 296-297, fn. omitted .) We review a trial court’ s ruling under Evidence Code section 352 for abuse of discretion. ( People v. Cudjo (1993) 6 Cal.4th 585, 609 ( Cudjo ).)

Analysis

We conclude defendant has forfeited hi s challenge to exclusion of the 1997 misdemeanor prostitution convictions and to the alleged exclusion of evidence that Diedra worked as a pros titute in the recent past on several grounds. First, the trial court did not rule on the i ssue of evidence that Diedra worked as a prostitute in the recent past. Defendant’s ar guments do not persuade us that the court
intended to rule on this issue. The trial court stated: “[T]he fact that someone suffered . . . two misdemeanor convictions for prostitution 17 years ago, I think that the probative value is very minimal. [¶] In addition, even trying to get there by asking her, well, isn’t it true that you have been a prostitute in th e past, I don’t see what the relevance of that that [ sic ] is as to what happened on that night.” (emphasis added.) The trial court made no mention of the “recent past” in its ruling. It was specifically addressing the issue of the 17-year-old misdemeanor prostitution convictions as ra ised by the prosecution, and clarifying that it did not matter how defendant intended to introduc e the evidence. It16 determined that the misdemea nor prostitution convictions simp ly did not have sufficient relevance to be admitted in light of other considerations. Even if defense counsel believed evidence of Diedra’s recent past pr ostitution was excluded by the court’s ruling, he failed to preserve the issue for appeal b ecause he did not press for a definitive ruling from the trial court. ( People v. Morris (1991) 53 Cal.3d 152, 195, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) Second, defendant forfeited his argument because he made no offer of proof as to
whether Diedra had worked as a prostitute in the recent pa st, up to the day before the
incident. “‘It is the burden of the proponent of evidence to establish its relevance through an offer of proof or otherwise,’ and a specif ic offer of proof is necessary in order to preserve an evidentiary ruling for appeal. [C itation.] ‘An offer of proof should give the trial court an opportunity to change or clarif y its ruling and in the event of appeal would provide the reviewing court with the means of determining error and assessing prejudice. [Citation.] To accomplish these pur poses an offer of proof must be specific. It must set forth the actual evidence to be produced an d not merely the facts or issues to be addressed and argued.’ [Citation.]” ( People v. Brady (2005) 129 Cal.App.4th 1314, 1332.) Defense counsel gave no explanation of what proof he intende d to offer other the 1997 misdemeanor prostitution convictions, le t alone a specific explanation of the
evidence. Third, defense counsel did not file a wr itten motion or otherwis e comply with the procedures of Evidence Code section 782 with respect to either the 1997 prostitution convictions or any evidence of recent pr ostitution Diedra may have engaged in. Defendant is therefore precluded from complain ing of error in the trial court’s exclusion of such evidence. (See Sims , supra , 64 Cal.App.3d at p. 554 [d efendant failed to file an affidavit or written motion as required by Evidence Code section 782 and therefore cannot complain of error on appeal].) To avoid forfeiture, defendant argues th at counsel’s inacti on denied him the effective assistance of counsel. We disagree.17 “To establish a violation of the constitutional right to effective assistance of counsel, a defendant must show both that hi s counsel’s performance was deficient when measured against the standard of a reasonably competent attorn ey and that this deficient performance caused prejudice in the sense th at it ‘so undermined the proper functioning of the adversarial process that the trial ca nnot be relied on as having produced a just result.’ [Citations.] If a de fendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel’s performan ce was deficient. [Citation.]” ( People v. Kipp (2001) 26 Cal.4th 1100, 1122-1123.) “‘If the record on appeal shed s no light on why counsel acted or failed to act in the manner challenged, an appellate claim of in effective assistance of counsel must be rejected unless counsel was asked for an expl anation and failed to provide one, or there simply could be no satisf actory explanation. ( People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Otherwise, the claim is more a ppropriately raised in a petition for writ of habeas corpus.’ ( People v. Carter (2003) 30 Cal.4th 1166, 1211.)” ( People v. Gray (2005) 37 Cal.4th 168, 207.) Here, the record is silent regarding the r eason for counsel’s failure to object more explicitly or follow the procedur e required in Evidence Code section 782. Accordingly, the issue is more appropriately raised in a petition for writ of habeas corpus. Moreover, defendant has not carried his burden of establishing prejudice. (Cal. Const., art. VI, § 13.) The probative valu e of the 1997 prostitu tion convictions was
minimal. As the trial court st ated, the convictions were very remote in time. It would be pure speculation to infer that because Di edra had prostituted herself then, she was necessarily prostituting herself 17 years later on th e night of the crimes, or that her crimes of moral turpitude in 1997 were relevant to her veracity in 2012. This case is not analogous to People v. Varona (1983) 143 Cal.App.3d 566 ( Varona ), and People v.
Randle (1982) 130 Cal.App.3d 286 ( Randle ), as defendant urges. Both Verona and
Randle involved conduct that was close in time to the char ged crimes and similar in
nature. In Varona , the defendants were found guilty of rape, oral copulation, and false18 imprisonment. The defendants claimed the victim solicited them and ag reed to engage in sex acts for money, but became angry when de fendants did not pay her. The appellate
court held that the trial court erred in exclud ing evidence that the victim had pled guilty to prostitution, was on proba tion for that conviction at the time of the crimes, had frequented the area where the crimes occu rred while working as a prostitute, and specialized in oral copulation in addition to sexual intercourse. ( Varona , supra , at pp. 569-570.) In Randle , the defendant was accused of forci ng the victim to orally copulate
him in a bar restroom after the two danced and the victim had several drinks. ( Randle
, supra , at pp. 289-290.) A new trial was ordere d after discovery of voluminous evidence of the victim’s habit of soliciting public sex acts in exchange for money and drinks. ( Id

. at pp. 293-294.) The circumstances in Varona and Randle are in no way comparable to
the instant case. Here, there is no evidence of similarity or connection between the misdemeanor prostitution convictions and the crimes. The slight probative value of the prior convictions is substantially out weighed by the prejudicial risk of evoking “an emotional bias against [the victim].” ( People v. Yu (1983) 143 Cal.App.3d , 358, 377.) Questioning Diedra broadly about her prostitution activities in the “recent past” w ith no evidence that she had engaged in prostitution in the 15 years before trial would have the effect of impermissibly placing Diedra on trial. (See Rioz , supra , 161 Cal.App.3d at p. 916.) The trial court could reasonably conclude this line of questio ning would unduly consume time at trial and confuse the jury by causing it to focus on coll ateral issues. Because the relevance for impeachment was slight and its potential for prejudice, undue consumption of time, and confusion of the jury was si gnificant, the trial court did not abuse its discretion in refusing to ad mit the 1997 misdemeanor pr ostitution convictions or any unspecified evidence regarding the possi bility of more recent prostitution. Defendant argues that the exclusion of evidence deni ed him his constitutional Sixth and Fourteenth Amendment rights to pres ent a defense and to c onfrontation. These arguments were not raised below and are forfeited. Even if th e issues are properly before us on appeal, we conclude defenda nt’s arguments are without merit.19 The trial court properly applied state ev identiary law, which did not impinge on defendant’s due process rights. (See People v. Riccardi (2012) 54 Cal.4th 758, 809.) Moreover, defendant was not denied his righ t to confrontation. Defendant was not prevented from presenting relevant evidence. He was permitted to ask Diedra if she was working as a prostitute on the night of the crime. He presented evidence in support of his theory that Diedra was workin g as a prostitute that night. Defendant testified to his version of events, and eviden ce of Diedra’s conduct on th e night of the crimes was admitted. The jury wa s told that Diedra was very drun k and in an area where defendant had solicited prostitutes in the past. She claime d to have decided to hitchhike despite the fact that her car was parked across the street from the bar, and despit e the fact that she lived only a mile and a half away. She flagged defendan t down on the highway. She voluntarily entered his van at ni ght, although he was a complete stranger to her. The jury
heard from both defendant and Diedra that defe ndant tried to pay her for the sexual acts that occurred. In sum, th ere was no evidence with more than minimal probative value that defendant was prevented from introducing in support of his defense. Defendant’s constitutional rights were not violated. (See People v. Cunningham (2001) 25 Cal.4th 926, 999 [“Although the comp lete exclusion of evidence intended to establish an accused’s defense may impair his or her right to due process of law, the exclusion of
defense evidence on a minor or subsidiary point does not inte rfere with that constitutional right”].)
Even if the trial court had erred in ex cluding the 1997 pros titution misdemeanors, there has been no miscarriage of justice. “Although defendant asse rts the standard of review is the ‘harmless beyond a reas onable doubt’ standard prescribed in Chapman v. California (1967) 386 U.S. 18, 24 [( Chapman )], we have held the application of ordinary
rules of evidence lik e Evidence Code section 352 do es not implicate the federal Constitution, and thus we revi ew allegations of error und er the ‘reasonable probability’ standard of [ People v .] Watson [(1956)] 46 Cal.2d [818,] 836 [( Watson )]. [Citations.] Although we apply Watson , we note that the result would be the same under Chapman .” ( People v. Marks (2003) 31 Cal.4th 197, 226-227.)20 The evidence in support of defendant’s convictions was overwhelming. Diedra’s testimony was corroborated by the police investig ation. She testified that defendant used a condom when he inserted his penis into her vagina. A box of condoms was discovered
in the center console of the van. A used cond om was also discovered inside the vehicle. Testing revealed that it had both parties’ DNA on the interior and the exterior, as would
have been the case if Diedra ’s story was true. Defendant ’s veracity was seriously undermined by the condom and DNA evidence, as he had testified th at he did not have any condoms in the van, had not used a co ndom with Diedra, a nd had not had sexual
intercourse with Diedra. Defendant was ad amant that it was “impossible” for his and
Diedra’s DNA would be found on the used condo m. His protestations that such evidence
would not be found in his van brought the rest of his testimony into serious question. Additionally, Deputy Navarro testified that Diedra was so emotionally distraught when she tried to question her that she had difficu lty speaking. It took Diedra 20 minutes to calm down enough for the deputy to interview her, consistent with the trauma Diedra
claimed to have suffered. Tammy’s testimony was also corroborated. When Deputy Forbes arrived she was hysterical, out of breath, and crying. Her hair was messed up and she was shoeless,
consistent with her account of events. Tamm y took the deputy back to her truck, which was parked on the side of the road on Sierra Highway, as she had told him it was when defendant picked her up. She retraced the route defendant to ok her with the deputy, and when they arrived at the location where defenda nt had parked the van, they found her flip flops, which she had told the deputy came off as she fled. A search of defendant’s van revealed a gas can inside, wh ich was identical to the one Tammy had described leaving there. At trial she identified a photogra ph of the gas can as “definitely” hers.
The circumstances of the attacks descri bed by the women were very similar. Defendant picked up both Tammy and Diedra in a van on Sie rra Highway in the evening, when they were alone, weeks apart. Both women were obviously vulnerable. Tammy had car trouble, while Diedra was inebriated. Defendant told both women that he would give them a ride home, but that he had to st op somewhere first. He drove both women to21 dark, secluded areas. He threatened them si milarly, saying, “Bitch, get in the back and get naked” to Tammy, and “Bitch, get in the back and take your clothes off” to Diedra. In light of the overwhelmi ng evidence against him, it is not “reasonably probable
that a result more favorable to [defendant] would have been reached in the absence of the error.” ( Watson , supra , 46 Cal.2d at p. 836.) Any error was also “harmless beyond a reasonable doubt.” ( Chapman
, supra , 386 U.S. at p. 24.) We conclude that the exclusion of the prior prostitution evidence , and defense counsel’s failure to preserve the issues for appeal, were not prejudicial and did not violate defendant’s constitutional rights.

Exclusion of Diedra’s Other Convictio ns and Tammy’s Misdemeanor Arrest

Defendant also challenges the trial court’ s exclusion of Diedra’s other convictions and Tammy’s misdemeanor arrest. We concl ude the contentions are not meritorious, and any error was harmless.

Relevant Proceedings

Prior to trial, the prosecu tor also moved to exclude Diedra’s 1992 conviction for burglary (§ 459), 1997 conviction for hit and run (Veh. Code, § 20001), and 2003
misdemeanor conviction for assault with a deadly weapon (§ 245), arguing that the
convictions were too remote in time to have significant probative value. Defense counsel sought to use the prior conv ictions for impeachment.
The trial court ruled: “I will allow the defense to impeach with the [Penal Code section] 245 [conviction] from 2003, although that also is remote in time. [¶] I do believe the victim shouldn’t be given an enhanced aura of vera city or having a clean record just because it has been so long, so I’ll let you impeach with that last misdemeanor if you choose to do so. [¶] As far as the cases from the 1990’s, they are simply too remote and any probative value as the years go on and as she remains crime free or conviction free becomes less22 and less probative, so I’ll allow you to impeach with the most recent one. The others are
excluded.” 3 The prosecutor then moved to exclude evidence of Tammy’s 2006 arrest for grand theft (§ 487, subd. (a)), which the defense so ught to admit as impeachment evidence.
The trial court excl uded the evidence: “It’s only an arrest. It’s not a conviction. Again, in terms of all of the analysis under [Evidence Code section] 352, any minimal probative value is substantially outweighed by the undue consumption of time a nd confusion of issues, especially when we’re talking about a 2006 a rrest and that’s the only in formation that we have.”

Analysis

A misdemeanor conviction for a crime of moral turpitude is admissible for impeachment purposes where its probative value is not outw eighed by prejudice, undue consumption of time, or the possi bility of confusing the jury. ( Duran , supra , 97 Cal.App.4th at p. 1461; see Ev id. Code, § 452.5.) We review the trial court’s exclusion of evidence for abuse of discretion. ( Cudjo
, supra , 6 Cal.4th at p. 609.)
We conclude the trial court did not abus e its discretion with respect to Diedra’s
misdemeanor convictions. Diedra’s convictions for burglary and hit and run were remote
in time. Just as the 1997 misdemeanor prostitution convic tions had little relevance in 2012, her other convictions for crimes of moral turpitude in 1992 and 1997 had limited relevance to her credibility 15 or more years later. Even c onsidered together with the
conviction in 2003 for assau lt with a deadly weapon, the trial court could reasonably
conclude there is not a con tinued pattern of dishonesty, given the large gap in years
between the crimes. Intro ducing evidence of misdemeanors with little relevance to

3 The trial court also excluded Diedra’s 2003 arrest for unlawful possession of a controlled substance (Health & Saf. Code, § 1 1350). Defendant does not challenge that ruling.23 Diedra’s veracity so many years later would necessarily confuse the issues for the jury and unduly consume time at trial. With respect to Tammy’s 2006 arrest for grand theft, ev idence of prior arrests is inadmissible to imp each a witness. ( People v. Anderson (1978) 20 Cal.3d 647, 650; People v. Lopez (2005) 129 Cal.App.4th 1508, 1523 [“ it is established that evidence of
mere arrests is inadmissible because it is mo re prejudicial than probative”].) Defendant argues for the first time on appeal that the c onduct underlying the arrest is admissible. Having not raised the issue with the trial court, he has failed to preserve it for appeal. (Evid. Code, § 354.) The trial c ourt did not abuse its discretion. Finally, any error in excluding this evidence was harmless, for the reasons
discussed above.

Exclusion of Maria’s Misdemeanor Conviction

Defendant contends that the trial court erred in requiring him to present evidence of the conduct underlying Maria’s 2008 misdem eanor conviction for theft (§ 484), rather than admitting her conviction. Without addressing the merits of the contention, we hold that any error was harmless.

Relevant Proceedings

Outside the presence of the jury, defense counsel raised the issue of admission of Maria’s prior conviction. Defense counsel st ated that the prosecutor indicated Maria may have had a 2008 conviction, which he intended to use fo r impeachment. The prosecutor verified that Maria did, in fact, have a conviction for theft (§ 484) in 2008. The prosecutor argued that the conviction was re mote and irrelevant. The court ruled:
“I don’t think it is remote and it is relevant insofar as it is a theft-related offense. It goes to credibility so I will allow the impeachment. Obviously because it’s a24 misdemeanor you have to ask about the conduct as opposed to the conviction, [defense counsel].”
Defendant did not cross-examine Maria regarding the facts underlying her prior
theft conviction.

Analysis

Theft is a crime of moral turpitude, re levant to a witness’s credibility. ( People v. Mendoza (2000) 78 Cal.App.4th 918, 925.) Prio r to 1996, moral turpitude relating to misdemeanors had to be prov en through evidence of th e underlying conduct, as the conviction itself was inadmissible hearsay. ( Wheeler
, supra , 4 Cal.4th at pp. 298-299.) As noted above, after the decision in Wheeler , the legislature has made misdemeanor convictions admissible to prove both “the f act of conviction, [and] ... that the offense
reflected in the record o ccurred” under an exception to the hearsay rule. ( Duran , supra , 97 Cal.App.4th at p. 1461; s ee Evid. Code, § 452.5.) Defendant argues the trial c ourt’s ruling demonstrates that the court failed to take into account the change in the law permitting admission of the misdemeanor conviction, rather than limiting proof to the underlying conduct. While the court’s comments are arguably susceptible to defendant’s interpre tation, the point is not entirely clear, as
defense counsel did not cite Ev idence Code section 452.5 or Duran , supra , 97 Cal.App.4th 1448, at the he aring on admissibility of the theft prior conviction. In any event, error, if any, was harmle ss. Defendant did not even cross-examine Maria about the conduct leading to the prior co nviction. As set fort h in detail earlier, the evidence of defendant’s guilt was overwhelming. Given th e state of the record, we cannot envision any circumstance in which admi ssion of the relatively trivial fact of Maria’s prior conviction could reasonably ha ve lead to a result more favorable to
defendant.25 Prosecutorial Misconduct

Defendant contends that the prosecu tor committed misconduct in closing argument, by characterizing documents that de fendant referred to while testifying as a “script,” and by questioning defendant regardin g the names of his drug dealers and fellow drug users on cross-examination. He further asserts that, as to the prosecutor’s comments in summation, the court committ ed trial error by overruling hi s objections. The Attorney General argues that defendant forfeited the cl aims by failing to obje ct to the alleged acts of misconduct on the same grounds or to reques t that the jury be admonished to disregard the alleged improprieties, and that the cont entions lack merit. We agree with the Attorney General. “The standards governing review of miscond uct claims are settled. ‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the fe deral Constitution when they infect the trial
with such “‘unfairness as to make the resulting conviction a denial of due process.’” [Citations.] Under state law, a prosecutor wh o uses such methods commits misconduct
even when those actions do not result in a funda mentally unfair trial. [Citation.] In order to preserve a claim of misconduct, a defenda nt must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review. [Citation.]’ [Citation.]” ( People v. Parson (2008) 44 Cal.4th 332, 359.)

Prosecutor’s Rebuttal Argument

Relevant Proceedings

The record shows th at twice during his testimony, defendant looked at documents
that he had with him on the witness stand. This first instance oc curred during direct26 examination, when defendant was giving the location where a conversation he had with Diedra took place: “[Defense counsel:] Now, after she said, you know, take care of me and I’ll take care of you, what happened next? “[Defendant:] Got to the – J – is that 4 – J-4. “[Prosecutor:] Your Honor, I’m so rry, is he referring to something? “[The Court:] He is. He does appear to have some sort of booklet up here, counsel, that he’s referring to. [¶] Sir, if you are going to refresh your recollection with anything, you need to let me know that you are refreshing your recollection and, counsel, you are both entitled to look at whatever it is th at he is refreshing his recollection with, if you care to do so. “[Prosecutor:] I would like to. Thank you. “[Defense counsel:] Yeah. (Brief pause in the proceedings.) “[Prosecutor:] I would just ask that we place this out of his view. If he needs it – “[Defense counsel:] That’s fine. If he needs something, he can ask.” Later, on cross-examination, the prosecutor asked defendant if he needed to refer to the papers to refresh his reco llection of his father’s address: “[Prosecutor:] What is his address? “[Defendant:] I got it in my book. “[Prosecutor:] Would you like to look at your book? “[Defendant:] Yes. “[Prosecutor:] Would it refresh your recollection? “[Defendant:] You said what’s my pop’s address? “[Prosecutor:] Yes. “[Defendant:] I have it in my folder. “[Prosecutor:] With the Court’s permission. “[The Court:] Sure. (Brief pause in the proceedings.)27 “[Defendant:] You want the phone number too? “[The Court:] She just asked for the address. “[Defendant provides address.]” In her rebuttal summation, the prosecuto r referred to the papers defendant had
consulted: “[Prosecutor:] Again, the defendant [was] willfully false when he testified. In
fact he had to have his st ory written down in his little book that he brought up to the witness stand and would have kept looking at the book had I not noticed him looking down every time he needed to confirm his statement or an swer, and the judge actually
saw that he had his book out and he was referring to it wher e he had his little script for his testimony. “[Defense counsel:] Your Honor, obj ection; misstates; not in evidence. “[The Court:] Overruled.”

Analysis

Defendant forfeited his argument that the prosecutor committed misconduct by characterizing the papers he consulted as a “script.” Defense counsel objected on the basis that the argument “misstat es; not in evidence.” He di d not object on the basis that the prosecutor’s argument rose to the leve l of misconduct, nor did he request an admonition. The issue was not preserved for review. (See People v. Alfaro (2007) 41 Cal.4th 1277, 1328 ( Alfaro ).) This is not a case where the prosecutor’s actions rendered th e trial fundamentally
unfair or where an admonition would not ha ve cured the alleged harm. “[W]hen the claim focuses upon comments made by the pros ecutor before the jury, the question is
whether there is a reasonable likelihood that the jury cons trued or applied any of the complained-of remarks in an objectionable fashion.” ( People v. Morales (2001) 25 Cal.4th 34, 44 ( Morales ).) “Prosecutors have wide latitude to discuss and draw
inferences from the ev idence at trial. ( People v. Lucas (1995) 12 Cal.4th 415, 473.)28 Whether the inferences the prosecutor draws ar e reasonable is for the jury to decide. ( Id

. at p. 474.) Harsh and vivid attacks on the cr edibility of opposing wi tnesses are permitted, and counsel can argue from the evidence that a witn ess’s testimony is unsound, unbelievable, or even a patent lie. ( People v. Arias (1996) 13 Cal.4th 92, 162.) . . . [W]e must view the [prosecutor’s] statements in the context of the argument as a whole. ( People v. Lucas
, supra , 12 Cal.4th at p. 475.)” ( People v. Dennis (1998) 17 Cal.4th 468, 522.)
We cannot conclude there is a reasonable likelihood th at the jury would have “construed or applied any of the complained-o f remarks in an objectionable fashion.” ( Morales, supra, 25 Cal.4th at p. 44.) The record shows that defendant consulted the
documents twice to refresh his memory as to specific locati ons. Although the prosecutor
reviewed the documents after the first instan ce, her reaction before the jury was mild. The court, prosecutor, and defense counsel agre ed that the documents would be set aside, but that defendant could use them again if necessary to refresh hi s recollection. The
documents were removed from defendant’s view, and he c ontinued to testify to the
details of the incidents unaided until he had trouble recalling an address on crossexamination. At that point, the prosecutor vo lunteered that defendant could refer to the documents to help him recall the address, and the court allowed defendant to do so. It is
not unusual for witnesses to re fresh their recollections of matters like times, dates, and addresses, as did other witnesses in this case , including Deputy Navarro . It was clear that
the trial court sanctioned the use of the docu ments for this purpose, as it specifically
stated that defendant was free to view the documents to re fresh his recollection. The logical inference for the jury to draw from these facts is that the documents served a proper purpose in the trial as a means of a ssisting a witness in remembering relatively
innocuous facts. The prosecutor’s remarks were a fleeti ng passage in the context of her entire closing argument. Prosecutors are permitted and expected to atta ck the credibility of witnesses for the defense, including the de fendant. A reasonable juror would have recognized that the pr osecutor’s single reference to a “s cript,” was a platitude used to29 support her position. The jurors were instructed that they must “determine what facts have been proved from the evidence received in the trial and not from any other source,” (CALJIC No. 1.00), and that “[s]tatements made by the attorneys during the trial are not evidence” (CALJIC No. 1.02). Jurors are presumed to be intelligent and capable of correctly understanding the court’s instructions. ( People v. Lewis (2001) 26 Cal.4th 334, 390; People v. Sanchez (2001) 26 Cal.4th 834, 852.) We presume the jury followed its instructions here, and there is not a reas onable likelihood that the jury would have “construed or applied any of the complained-o f remarks in an objectionable fashion.” ( Morales
, supra , 25 Cal.4th at p. 44.) There was no prosecutorial misconduct with respect to the prosecutor’s closing argument. Defendant asserts that the prosecutor’s comments regarding the court’s knowledge
of the substance of the documents lent cred ence to the prosecutor’s characterization of the documents as a “script.” He contends that the c ourt committed trial error by overruling his objections and allowing the jury to believe that the court agreed with the prosecutor’s assessment. This contention fails for the same reasons. The court allowed
defendant to consult the documents to refre sh his memory of dates. Had the court believed defendant was reading a “script,” it would not have perm itted defendant to consult them. The logical inference is that the court did not believe that the documents were improper or a “script.”

Cross-Examination Regardin g Drug Dealers and Users

Relevant Proceedings

On cross-examination, the prosecutor que stioned defendant about the names of the people who sold him the crack cocaine he cl aimed to have been using in September of 2012, when the incidents with Tammy and Diedra occurred: “[Prosecutor:] Where did yo u get the crack [cocaine]? “[Defendant:] I bought it.30 “[Prosecutor:] From who? “[Defendant:] Certain individuals. “[Defense counsel:] Objection; relevance. “[The Court:] I’m sorry? “[Defense counsel:] Objection; relevance. “[The Court:] Overruled. “[Prosecutor:] You can answer. “[Defendant:] A certain individual. “[Prosecutor:] Who? “[Defendant:] Whoever. “[Defense counsel:] Objection; relevance. “[The Court:] Overruled. “[Defendant:] I don’t know his name.” Later, the prosecutor questioned defenda nt about the names of the people he claimed to have been using drugs with prior to picking up Diedra: “[Prosecutor:] Who were they? “[Defendant:] Some people I knew. “[Prosecutor:] Who were they? “[Defendant:] Someone I knew. “[Prosecutor:] What are their names? “[Defendant:] I don’t know their real names. “[Prosecutor:] How did you know them? “[Defendant:] I know them by street names. “[Prosecutor:] What names? “[Defendant:] I’m not giving any names up. “[The Court:] Sir, I’m going to order you to answer the question. “[Prosecutor:] I don’t know the names. I don’t know the names. “[The Court:] She asked you what names you knew them by. “[Defendant:] One name Rock.31 “[Prosecutor:] Who else? “[Defendant:] The other one named Eight. “[Prosecutor:] Eight? “[Defendant:] Eight. “[Prosecutor:] As in the number? “[Defendant:] Yes. “[Prosecutor:] What is the female’s name? “[Defendant:] I never knew her name. “[Prosecutor:] And you we re doing crack with them? “[Defendant:] Right.”

Analysis

Again, defendant forfeited his claim by failing to object on the ground of prosecutorial misconduct at trial, and by failing to requ est an admonition. (See Alfaro,

supra, 41 Cal.4th at p. 1328.) The only objec tions he made were related to the questioning about his drug dealers, and thos e objections were based on relevance.
Defendant’s contention would fail even if it had been preserve d, however, as the prosecutor did nothing improper. “‘[W]hen a defendant voluntarily testif ies in his own defense the People may “fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cr oss-examination which explains or
refutes his statements or th e inferences which may necessarily be drawn from them.” [Citation.]’ [Citation.]” ( People v. Reynolds (1984) 152 Cal.App.3d 42, 46 ( Reynolds ).) “[T]he right of cross-examination takes on added significance where the witness’s credibility is of special signifi cance to the proceedings.” ( People v. Seminoff (2008) 159 Cal.App.4th 518, 526-527.) “A [d]efendant’s re fusal to answer relevant questions . . . . deprive[s] the prosecution its right to subject th at claim to ‘the greatest legal engine ever32 invented for the discovery of truth,’ cross-examination. [Citation.]” ( Reynolds
, supra , at p. 46.) In this case, Tammy and Di edra both testified that they encounter ed defendant
because he offered assistance when they were alone and in need of help. Neither woman testified to being with defendant for any ot her purpose, or to voluntarily engaging in
illicit activities while in defend ant’s company. Neither cons ented to any sexual activity with defendant. In contrast, defendant tes tified that both women got into his van because they were prostitutes who want ed to use drugs with him, and exchange sex for drugs. According to defendant, any sexual activ ities that occurred were consensual. Defendant’s testimony that he was in possessi on of drugs offered an alternate explanation as to why Tammy and Diedra would get into a van with a strange man at night. His testimony that Diedra became furious with him when they ran out of drugs provided a possible motive for her to lie about being rape d. Credibility was a central issue in the case, and defendant brought his own credibility into question by choosi ng to testify to his
version of events. Who he obtained the drugs from and who he used them with were relevant questions that defenda nt should have been readily able to answer if he was testifying truthfully. Although defendant may have legitimat ely feared retaliation from the “drug underworld” as he claims, he is not exempt ed from cross-examinati on on that basis. (See, e.g., Reynolds
, supra , 152 Cal.App.3d at p. 46 [“ no legal exemption from crossexamination” due to fear that other inmate s would label defendant a snitch if he named them].) The prosecutor properly questioned de fendant on the circum stances surrounding the two rapes. There was no misconduct.

Cumulative Prejudicial Error

Defendant contends the cumulative prejudici al effect of the alleged errors raised above requires the reversal of his conviction. We have rejected defendant’s claims of error, except one in which the re cord is ambiguous and the pu rported error was so trivial33 as to not warrant a discussion of the merits . Defendant’s trial was not fundamentally unfair. (See People v. Jenkins (2000) 22 Cal. 4th 900, 1056.)

Evidence Supporting One of Defendant’s Reci divist Prior Convictions Enhancements

Defendant contends that one of the fi ve-year enhancements for prior serious felony convictions must be stricken. He ar gues that two of the prior charges—rape (§ 261, subd. (a)(2)) and rape in concert (§ 26 4.1)—were not brought and tried separately. The Attorney General concedes the issue, and we agree. 4 Section 667, subdivision (a)(1) provides: “[A]ny person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction wh ich includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.” “Brought and trie d separately” means that “the underlying proceedings must have been formally distinct, from filing to adjudication of guilt.” ( In re
Harris (1989) 49 Cal. 3d 131, 136; People v. Wagner (1994) 21 Cal.App.4th 729, 737). “[A] court may look to the record of conv iction to determine whether the defendant’s prior serious felony convictions were sustaine d ‘on charges brought and tried separately . . . .’ [Citation.]” ( People v. Wilson (2013) 219 Cal.App.4th 500, 510.) In this case, the prosecutor introduced in to evidence two section 969, subdivision (b) packets from the Department of Corre ctions and Rehabilitation. The evidence relating to defendant’s prior convictions for rape and rape in concert consisted of an abstract of judgment and an information. Th e abstract of judgment shows that defendant was convicted of one count of rape and one co unt of rape in concert on May 8, 1991, in

4 Defendant does not challenge the secti on 667, subdivision (a)(1) enhancement imposed on the basis of his prior robbery co nviction (§ 211) in case number A765883.34 case number MA002638. Further proof that th e two rape charges were not brought and tried separately is found in the felony in formation in case No. MA002638. Defendant was charged in that information in count 1 wi th forcible rape while acting in concert and
in count 2 with fo rcible rape. Based on this evidence, defendant was co nvicted and sentenced for rape and rape in concert in the same proceed ing. Because these prior felonies were not brought and tried separately, the trial court upon issuance of the remittitur must dismiss one of the five-year enhancements stemming from ca se No. MA002638 and issue an amended abstract of judgment reflecting the change.

Imposition of Consecutive Sent ences for Criminal Threats

Defendant contends the sent ences imposed on the charge s of criminal threats in counts 4 and 6 must be stayed because the thre ats were part of the force and fear used for the underlying sexual assaults against Tammy and Diedra. We agree that the sentence imposed in count 6 must be st ayed pursuant to section 654. Section 654 does not require that the sentence imposed in count 4 be stayed , however, as substantial evidence supports the trial court’s implied finding that defenda nt’s course of conduct was divisible. Section 654, subdivision (a) provides, in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest pote ntial term of imprisonm ent, but in no case shall the act or omission be punished under more than one provision.” In Neal v. State of California (1960) 55 Cal.2d 11 ( Neal ), our Supreme Court “expanded the meaning of section 654 to apply to more than one criminal act when there is a course of conduct that
violates more than one statute but neverthele ss constitutes an indivisible transaction.” ( People v. Hairston (2009) 174 Cal.App.4th 231, 240.) In determining whether a course of conduct consisting of multiple acts is indivisible, we look to the “defendant’s intent and objective.” ( People v. Harrison (1989) 48 Cal.3d 321, 335.) “[I]f all of the offenses were merely incidental to, or were th e means of accomplishing or facilitating one35 objective, defendant may be found to have ha rbored a single intent and therefore may be punished only once.” ( Ibid .) On the other hand, “[i]f [the defendant] entertained multiple criminal objectives which were independe nt of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the viola tions shared common acts or were parts of an otherwise indivisible course of conduct.” ( People v. Beamon (1973) 8 Cal.3d 625, 639.) “[S]ection 654 serves to match a defendant’s culp ability with punishment.” ( People v. Yang Vang (2010) 184 Cal.App.4th 912, 915.) “[D]ecisions . . . have refined and limited application of the ‘one intent and objective’ test, in part because of concerns that the test often defeats its own purpose because it does not necessarily ensure that a defendant’s punishment will be comme nsurate with his culpability.” ( People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.) As our Supreme Court noted in People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212, the cases following Neal have “limited the rule’s application in various ways,” including, in so me cases, by “narrowly interpret[ing] the length of time the defendant had a specific objective, and thereby [concluding] similar
but consecutive objectives permit[ed] multiple punishme nt.” Under such circumstances, “[i]f the separation in time affo rded [the] defendant[] an o pportunity to reflect and to renew [his] intent before committing the ne xt crime, a new and separate crime [wa]s committed.” ( People v. Louie (2012) 203 Cal.App.4th 388, 399.) “The question whether secti on 654 is factually applicable to a given series of
offenses is for the trial cour t, and the law gives the trial court broad latitude in making this determination. Its findings on this ques tion must be upheld on a ppeal if there is any substantial evidence to sup port them. [Citations.]” ( People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312 ( Hutchins ).) “When a trial court sentences a defendant to separate terms without making an express finding the defe ndant entertained separate objectives, the trial court is deemed to have made an implied finding each offense had a separate objective.” ( People v. Islas (2012) 210 Cal.App.4th 116, 129.) “‘“We must ‘view the evidence in a light mo st favorable to the respondent and presume in support of the [sentencing] order the existence of ever y fact the trier could reasonably deduce from36 the evidence. [Citation.]’ [Citation.]” [Citation.]’ ( Hutchins
, supra , 90 Cal.App.4th at pp. 1312-1313.)” ( People v. Tarris (2009) 180 Cal.App.4th 612, 627.)

Criminal Threats Against Tammy (Count 6)

With respect to Tammy, th e jury convicted defendant in count 5 of assault with intent to commit rape or oral copulation and in count 6 of crim inal threats. The trial court imposed separate, consecutive sentences, stating: “In terms of the vi ctim in count 5 and count 6, again between the assault with th e knife and the threat being made for the [section] 422 and also the actual assault and kidnaping type behavior, there is enough time and space that separates each of those things to just [ sic ] the consecutive term.” Making criminal threats is a specific in tent crime that occurs when the defendant “willfully threatens to commit a crime which will result in de ath or great bodily injury to another person, with the specific intent that th e statement . . . is to be taken as a threat, even if there is no intent of actually carryin g it out . . . .” (§ 422.) Section 422 was enacted to punish those who try to instill fear in others. ( People v. Felix (2001) 92 Cal.App.4th 905, 913.) The intent required by section 422 is not the intent to actually carry out the threatened crime, but the intent that the victim receive and understand the threat. ( People v. Wilson (2010) 186 Cal.App.4th 789, 806.)
Assault with intent to co mmit rape or oral copulation is an “unlawful attempt, coupled with a presen t ability, to commit a vi olent injury on the person of another” (§ 240) with the intent to commit either rape or orally copulation the victim (§ 220, subd. (a)(1)). “Ordinarily, ‘[a]n assau lt occurs whenever “‘[t]he next movement would, at least to all appearance, complete the battery.’” [Citation.]’ [Citation.] But there can also be an assault when the battery is only threatened. [Citation.] ‘“Where a party puts in a condition which must be at once performed , and which condition he has no right to impose, and his intent is immediately to en force performance by violence, and he places himself in a position to do so, a nd proceeds as far as it is th en necessary fo r him to go in order to carry out his intention, then it is as much an assau lt as if he actually struck, or37 shot, at the other party, and missed him.”’ [Citation.]” ( People v. Page (2004) 123 Cal.App.4th 1466, 1473 ( Page ).) In this case, the prosecutor relied on a c onditional threat theory of assault, and the jury was accordingly instructed under CALJIC 9.00.1, which applies to cases in which a
conditional threat c onstitutes the assault. 5 In convicting defendant pursuant to section 240, the jury necessarily found that defe ndant intended to threaten Tammy for the purpose of committing oral copulation or rape. No evidence was presented that defendant had an objective in committing criminal threats th at was not also his objective in committing assault with inte nt to commit rape or oral copulation, so we cannot conclude that the crimes were not part of a single course of conduct on this basis. Additionally, there was no temporal separation betwee n the two crimes. Tammy
testified that the entire incide nt occurred very quickly: Defe ndant got out of the driver’s seat, put his leg between her le gs, and put his hand around he r throat. He held something sharp to her neck and said, “B itch, get in the back and get naked.” Tammy asked if he was joking, and he immediatel y responded, “Bitch, get in the back and get naked; otherwise, I’ll kill you.” Defendant set the sh arp object down behind the seat, but picked it up and held it to her neck again when Ta mmy reached for the door. He again said, “Bitch, get in the back and ge t naked; otherwise I’m going to stab you.” When defendant put the sharp object down a second time, Tammy was able to escape and get help. On these facts, there is in sufficient evidence to support the trial court’s finding that the crimes were divisible for purposes of se ction 654, as there doe s not appear to be a

5 The jury was instructed th at: “An assault includes a conditional threat to apply physical force upon another, providing that: [¶] 1. The threat commands the immediate performance of some act which the threatening party has no legal right to demand; [¶] 2. The threat is made with the intention of compelling performance of that act by the application of physical force; [¶] 3. Th e person making the threat has placed himself physically in a position to in flict such physical force; and [¶] 4. That person has proceeded as far as it is necessary to go in order to carry out his intention.”38 separation between the threats and the assault. Defendant’s sentence in count 6 must therefore be stayed.

Criminal Threats Against Diedra (Count 4)

With respect to Diedra, the jury convicted defendant in co unt 1 of forcible rape, in counts 2 and 3 of forcible oral copulation, a nd in count 4 of criminal threats. The trial court imposed separate, consecutive sentence s without discussing why the sentence in count 4 was not stayed pursuant to section 654. Forcible rape “is an act of sexual inte rcourse . . . accomplished against a person’s will by means of force, violence, duress, me nace, or fear of immediate and unlawful bodily injury on the person or another.” (§ 261, subd. (a)(2).) “Oral copulation is the act of copulating the mouth of one person with th e sexual organ or anus of another person” (§ 288a, subd. (a)), “accomplished against the vi ctim’s will by means of force, violence, duress, menace, or fear of immediate and unla wful bodily injury on the victim or another person . . . .” (§ 288a, subd. (c)(2)). Within the context of sexual offenses, “‘duress’ means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of or dinary susceptibilities to perfo rm an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted.” (§ 261, subd. (b).) “‘[M]ena ce’ means any threat, declaration, or act which shows an intention to inflict an inju ry upon another.” (§ 261, subd. (c).)
Defendant threatened Diedra before he committed the sexual offenses and again
afterwards. His initial use of threats to acc omplish the rape and oral copulations was necessary to the jury’s findi ng that those crimes were forcible, and no evidence was presented that he had an objective in making those threats that was not also his objective in committing the sexual offenses. However, defendant’s final threat—that he would cut
Diedra’s throat and watch her bleed if she di d not orally copulate him again because he liked watching “bitches bleed”—was made afte r the sexual offenses were completed, and necessarily could not have been for the same objective. Defendant’s stated intention was39 to commit another sexual offense or to cause Diedra bodily harm, which increased his culpability. There was substan tial evidence to support impositi on of a separate sentence. Additionally, the crimes defendant comm itted against Diedra occurred over a significant period of time, with numerous brea ks: After Diedra complied with his initial threats and undressed, defendant stopped and told her he wanted to look at her. He took the time to light a lighter to see her, and asked her how old sh e was before making her get
into the back of the van. Defendant then made Diedra or ally copulate him for “a long time,” during which he repositioned himself multiple times. He stopped and talked to Diedra when she began crying and asked to be let go. When defendant demanded to orally copulate Diedra, she did not imme diately comply, saying she was scared and refusing to lie down. While defendant orally copulated Diedra, he again talked to her, telling her that he would let her go when she was finished. After demanding sexual intercourse, defendant stop ped to obtain and put on a condom. When defendant demanded oral sex again, and Diedra was crying too much to orally copulate him, defendant again stopped. He gave her his shir t to blow her nose, and asked her to sit next
to him and talk to him. He said he would let her go after she finished. Defendant gave Diedra her bra and shirt, and allowed her tim e to put her bra on. He did not threaten Diedra again until she asked for her pants. These facts support the finding that ther e were periods of time between the crimes in which defendant stopped and was able to reflect and form a new criminal intent. Instead of taking the opportun ity to cease his prolonged a ttack, defendant proceeded to
make an additional threat instead. We conc lude the trial court’s implicit determination that defendant had a separate objective in coun t 4 is supported by su bstantial evidence. Accordingly, the imposition of separate puni shment for criminal threats against Diedra was appropriate.40 Evidence Supporting Crimin al Threats in Count 6

Defendant contends the evidence was in sufficient to suppor t his conviction for criminal threats in count 6 because Tammy wa s not in reasonable sustained fear for her own safety. There is no me rit to this contention.
The Fifth and Sixth Amendmen ts, which apply to the stat es through the Fourteenth Amendment, require the prosecution to prove a ll elements of a crime beyond a reasonable doubt. ( Sullivan v. Louisiana (1993) 508 U.S. 2 75, 277-278.) A conv iction supported by
insufficient evidence violates the Due Process Clause of th e Fourteenth Amendment and must be reversed. ( Jackson v. Virginia (1979) 443 U.S. 307, 317-319.) The same is true of enhancements. ( People v. Albillar (2010) 51 Cal.4th 47, 59-60 ( Albillar ).) “‘When considering a challenge to the sufficiency of the evidence to support a conviction, we
review the entire record in th e light most favorable to the judgment to determine whether it contains substantial evidence—that is, evid ence that is reasonable, credible, and of
solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” ( People v. Avila (2009) 46 Cal.4th 680, 701.) Pursuant to section 422, a person is guilty of criminal threats if he “willfully
threatens to commit a crime whic h will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and ther eby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety.”
To establish the “sustained fear” elemen t, “the statute . . . requires proof of a mental element in the victim.” ( People v. Allen (1995) 33 Cal.App.4th 1149, 1156 ( Allen ).) “Sustained fear” is fear that is more than “momentary , fleeting, or transitory.” ( Ibid .) The fear must also be reasonable. (§ 422; People v. Toledo (2001) 26 Cal.4th 221, 227-228.)41 Defendant argues that Tammy was not in su stained fear because she left the scene quickly, and did not look back to see if defenda nt was pursuing her. He asserts that she was no longer in danger after running a few blocks because there was no evidence that defendant had a long-range weapon or that he could find her in the future. We disagree. Defendant assaulted Tammy with the intent of raping her or subjecting her to oral copulation. Even defendant does not appe ar to contest that from the moment Tammy understood what was happe ning until she was able to escape the van she was terrified.
She testified she was “scared to death” as she thought of a way to escape the van. Tammy was so afraid that she did not retrieve her gas can, lost her sandals while running,
and continued to run barefoot in an industria l area. She tried desperately to flag down anyone she could, but could not get anyone to st op, so she ran barefoot for over a half of a mile past closed businesses to reach the Panda Express, wh ere she banged on the door for the women inside to call 911. Although th ey called the police fo r her, they would not let her inside, so she waited outside, in the da rk, for 45 minutes for the police to arrive. When Deputy Forbes arrived, Tammy was out of breath, crying, and hysterical. Her hair was “messed up,” and she didn’t have any shoes on. There was ample evidence that Tammy was subjectively afraid the entire time , which was close to an hour. The jury could reasonably co nclude that an hour spent in fear of being sexually assaulted or killed is more than “momentary, fleeting, or transito ry.” Our courts have upheld convictions for
criminal threats where the duratio n of the sustained fear was substantially less. (See, e.g., People v. Fierro (2010) 180 Cal.App.4th 1342, 1349 [victim in sustained fear for approximately 15 minutes]; Allen, supra, 33 Cal.App.4th at p. 1156 [same].) This same evidence amply supports the jury’s finding that Tammy’s fear was reasonable. Substantial evidence supports de fendant’s conviction for criminal threats in
count 6.42 Evidence Supporting We apon Enhancements

Defendant contends there was insuffi cient evidence to support the weapon enhancements (§ 12022 , subd. (b)(1)) appended to th e charges relating to Tammy in counts 5 and 6. We apply the traditional s ubstantial evidence standard of review in determining the sufficiency of the ev idence to support enhancements. ( Albillar, supra, 51 Cal.4th at pp. 59-60.) Section 12022, subdivision (b)(1) provides that: “A person wh o personally uses a deadly or dangerous weapon in the commissi on of a felony or attemp ted felony shall be punished by an additional a nd consecutive term of impris onment in the state prison for one year, unless use of a deadly or dangerous weapon is an el ement of that offense.” To find a deadly weapon allegation true, the trier of fact must conclude that “the defendant himself intentionally displayed an instrument capable of inflicting great bodily injury or death in a menacing manner during the crime.” ( In re Bartholomew D. (2005) 131 Cal.App.4th 317, 322.) Defendant does not dispute using an object during the commission of the offenses against Tammy, but argues there was insu fficient evidence to establish the object was a dead ly or dangerous weapon. Deadly weapons can include objects which “may be used as weapons but which have nondangerous uses, such as hammers and pocket knives.” ( People v. Burton (2006) 143 Cal.App.4th 447, 457.) Circumstantial evid ence alone is sufficient to establish the deadly nature of an object. ( People v. Monjaras (2008) 164 Cal.App.4th 1432, 1436 ( Monjaras ).) This includes a defendant’s own word s and conduct in the course of the offense. ( Id . at pp. 1436-1437.) It is not necessary that the victim see the weapon, but only that “by sensory perception, the victim is made aware of its presence.” ( People v.
Jacobs (1987) 193 Cal.App.3d 375 , 381 [holding that a firearm was displayed when victim was made aware of its presence by a the sound of the hammer being cocked].) Tammy testified that defendant held “wha t [she] thought was a knife to [her] neck, something sharp . . . . [¶ ] [¶] [¶] [¶ ] right behind her earline” It was dark in the van so Tammy could not see what defendant was holdi ng. Defendant threatened, “Bitch, get in43 the back and get naked; otherwise, I’ll k ill you.” Defendant put what Tammy thought was a knife down behind him, but when she reached for the door he picked it up again
and held it to her neck. He threatened, “Bitch, get in the back and get naked; otherwise I’m going to stab you.” When questioned further about the objec t defendant used, Tammy described the sensation she felt as “a point, something that was pointy or sharp pushing into the back of my neck.” She could not tell what it was made of, but when defendant put the object down the second time, she th ought “it might not be a knife because it wasn’t shiny or something like that.” She could no t see the object to know for certain.
Defendant’s actions and words indicated th at the sharp object he held to Tammy’s neck could cause great bodily in jury, specifically that he coul d kill or stab her with it. “There can be no doubt that a pointed object aimed at the victim’s neck is capable of producing death or great bodily injury.” ( In re Brandon T . (2011) 191 Cal.App.4th 1491, 1497; see also Page, supra, 123 Cal.App.4th at pp. 1469, 14 72 [“‘sharp[,] pointy’” pencil held a deadly weapon].) “The jury was not required to give defendant the benefit of [Tammy’s] inability to say conc lusively [what the object was] . . . because ‘defendant’s
own words and conduct in the course of an offense may support a rational fact finder’s
determination that he used a [deadly weapon].’” ( Monjaras , supra , 164 Cal.App.4th at pp. 1436-1437, quoting People v. Rodriguez (1999) 20 Cal.4th 1, 13.) “[T]he jury was entitled to take defendant at his word, so to speak, and infer from his conduct that the [object was a dangerous weapon] and that he wa s prepared to [use it] if [Tammy] did not comply with his demand.” ( Monjaras , supra , at p. 1437.) Substantial evidence supports the jury’s finding that defendant used a dang erous or deadly weap on in commission of
counts 5 and 6.

Errors in the Abstract of Judgment

Our review of the record disclosed that the abstract of judgment did not conform to the oral pronouncement of judgment as to counts 1-3. At the sentencing hearing on44 March 21, 2014, the trial court orally imposed consecutive terms in counts 1-3 of 25- years-to-life pursuant to the on e strike law, tripled to 75- years-to-life under the three strikes law, plus an enhancement of 15 year s for three prior serious felony convictions. The abstract of judgment omits any referenc e to section 667.61—the one strike law—and incorrectly reflects the indeterminate terms im posed by the trial cour t as 25-years-to-life for counts 1-3. We invited the parties to submit further briefi ng on this issue.
Defendant contends that the abstract of judgment “appear s” to properly reflect the trial court’s oral pronouncement of judgme nt on these points, albeit in a round-about fashion through cross-reference. The Attorney General cont ends that the abstract of judgment does not conform to the court’s or al pronouncement and must be corrected. We agree with the Attorn ey General that the abstr act of judgment does not accurately reflect the trial court’s oral prono uncement, but even if we were to accept defendant’s interpretation, it is clear from our review and from the resp onses that, at best, the meaning of the abstract of judgment on these points is unclear and confusing. The abstract of judgment must be modified to clearly reflect the oral pronouncement of judgment. (See People v. Scott (2012) 203 Cal.App.4th 1303, 1324 [“it is the oral pronouncement of sentence that constitutes the judgment”].) There is no dispute that the trial court’s ruling was clear, a nd that any discrepancies in th e abstract of judgment were clerical in nature and may be corrected on appeal. ( Ibid . [“discrepancies between an abstract and the actual judgment as orally pronounced are subject to correction at any time, and should be corrected by a review ing court when detected on appeal”].) Accordingly, we order the trial court to co rrect the abstract of judgment to reflect that the sentences in counts 1-3 were imposed under the one strike law (§ 667.61, subds. (a) and (d)), as well as the three strikes la w (§§ 667, subds. (b)-(i), 1170.12, subds. (a)- (d)), and that the indeterminate term on those counts is 75-years-to-life.45 DISPOSITION

The trial court is directed to modify the judgment as to counts 1-6 to reflect that defendant has suffered two prior serious fe lony convictions pursuant to section 667, subdivision (a), and impose two five-year enhanc ements on these counts. The abstract of judgment is ordered modified to reflect th at the sentences imposed in counts 1-3 are consecutive terms of 25-years-to-life pursuant to the one strike law (§ 667.61, subds. (a) and (d)), tripled to 75-years-to-life under th e three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), plus two five-year se rious felony prior conviction enhancements (§667, subd. (a)(1)), for an aggregate of 85-year s-to-life. Additionally, the trial court is instructed to modify the judgm ent to stay the sentence im posed in count 6 pursuant to section 654. The clerk of the superior court shall send a copy of the corrected abstract of judgment to the Department of Correcti ons and Rehabilitation. As modified, the judgment is affirmed.

KRIEGLER, J.

We concur:

TURNER, P. J.

GOODMAN, J. *

* Judge of the Los Angeles County Superi or Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.