PEOPLE v. DAYE

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Frederick Rene DAYE, Defendant and Appellant.

D002073.

Decided: February 26, 1986

Jeffrey J. Stuetz, San Diego, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Jay M. Bloom, Supervising Deputy Atty. Gen. and Roberta L. Woodrick, Deputy Atty. Gen., for plaintiff and respondent.

Frederick Daye appeals his jury-tried convictions of kidnapping to commit robbery (Pen.Code 1, § 209, subd. (b)), robbery (§ 211), two rapes in concert (§§ 261, subd. (2) and 264.1) and unlawfully taking a motor vehicle (Veh.Code, § 10851).

I

About 7 p.m. on January 10, 1984, cosmetologist Desiree Coleman was abducted by Daye and David Pringle when she returned to her car in a shopping center parking lot.   Daye opened the car door, pushed Coleman to the passenger side and entered.   Pringle entered the back seat.   Darren Wells saw Daye and Pringle abduct Coleman and called the police.

Daye drove Coleman's car out of the parking lot.   Pringle took Coleman's purse, wallet and two rings.   Daye told Pringle to look for credit cards, bank cards and money hidden between photos in Coleman's wallet.   Daye parked the car in a residential area.   Daye took Coleman's earrings and necklace and checked her bra, pants pockets and boots for money.   Daye then raped Coleman on the car's front seats.   While Daye raped Coleman, Pringle held her left leg on top of the driver's seat and with his hand moved her buttocks up and down.   After raping Coleman, Daye said it was Pringle's turn.   Pringle raped Coleman while Daye took the car keys and searched the car trunk.   From outside the passenger window Daye told Pringle not to ejaculate inside Coleman because the police could get evidence.   After the rapes, Daye began driving again with Coleman in the front seat and Pringle in the back.   Daye let Coleman out of the car about two to three minutes from his residence.   Pringle threw Coleman's wallet at her and the men drove away in her car.   Coleman's abduction lasted for about 30 minutes.

After her release, Coleman went to a nearby house for help.   The police were called.   Coleman told police the driver was a 25 year old black male about 5′ 6″ or 5′7″ wearing dark clothing and shorter than the other man.   Coleman went to a hospital where sperm samples were taken from her clothing.

Meanwhile, about 7:20 p.m. Wells told a police officer at the shopping center parking lot he saw a young white woman abducted by two black men, one of whom had a silver tooth.   The officer then received a radio call a woman was raped by two men generally matching the description given by Wells.   While the officer answered the call, Wells disappeared.

On January 13, 1984, Coleman helped a police artist draw composite pictures of her attackers.

On January 18, 1984, Daye was a passenger in a car stopped by police officer Stevens for a mechanical violation.   At Stevens' request the driver showed identification.   Stevens saw Daye had an open alcohol container and asked him for identification.   Daye said he did not have identification.   Stevens told Daye he would be cited.   When the driver became belligerent, Stevens took the driver's identification to write a citation and called for backup assistance.   The backup officers arrived, talked to Daye and gave Stevens some information.

After talking to the backup officers, Stevens again approached Daye.   Daye told Stevens his name was Charles Donaldson.   Stevens told Daye he was going to be cited and asked if he could verify his identity.   Daye said no.   The driver said Daye's first name was Charles but did not know his last name or address.   The two other passengers did not know who Daye was.   Stevens said if Daye could not verify his identity, he would be taken to the police station to determine his identity.   Stevens took Daye to the police station and made a computer search.   Stevens found Charles Donaldson was another name used by Daye.   Stevens also looked at Daye's arrest record with booking photographs.   Stevens returned to the car and told Daye he knew who he really was.   Daye identified himself as Daye.   Stevens told Daye he wanted to take a couple of pictures of him because Daye had given false information and a picture would help officers in the future to identify him more quickly.   Daye was photographed, cited for giving false information to an officer and possessing an open alcohol container in a vehicle, and released.   Daye was at the police station for an hour to an hour and a half.

On January 23, 1984, Coleman identified Daye's picture in a photographic lineup.

On January 25, 1984, police arrested Daye and read him his rights.   Daye denied raping Coleman.   Daye said he was not at the shopping center parking lot on January 10, 1984, and spent that evening with others elsewhere.

On February 10, 1984, Coleman identified Daye at the preliminary hearing.

On March 20, 1984, Wells resurfaced when arrested on a traffic warrant.   While in custody, Wells identified Pringle, whom he knew since junior high school, as the abductor entering Coleman's car's back seat.   Wells said Coleman's other attacker was a black male about 24 years old, 5′4″, 120 pounds with facial hair and a silver or gold tooth.   Wells identified a composite picture of Pringle.

II

On March 29, 1984, the superior court held an evidentiary hearing on Daye's motion to suppress the photographs taken by officer Stevens on January 18, 1984, as the direct product of an unlawful detention.   Stevens testified after talking to the backup officers on January 18, 1984, he understood he should get Daye's photograph to help in some other police investigation.   Stevens testified Daye was photographed for purposes of the ongoing rape investigation.   The court suppressed the photographs.

On May 21, 1984, the first day of trial, Daye asked the court to suppress Coleman's identification of his photograph and her subsequent in-court identification of him as the product of the illegally obtained photographs.   After an evidentiary hearing where Coleman testified, the court denied Daye's motion to suppress Coleman's in-court identification.   The court found Coleman's “testimony is plain and unequivocal.   She recognized the defendant, and he looked like the rapist, and I think that establishes prima facie that the courtroom identification at the prelim on February 10th was not tainted by the viewing of the photograph.”

At trial Coleman and Wells identified Daye.   Daye's blood type was consistent with that of the sperm found on Coleman's clothing.   Daye did not testify.   He presented an alibi defense.   Daye showed the jury his upper right silver tooth.

The jury convicted Daye as charged.   The court sentenced him to life imprisonment for kidnapping to rob plus a consecutive 14 years 8 months for the two rapes and auto theft.   Sentence for robbery was stayed under section 654.

III

In denying Daye's motion to suppress Coleman's in-court identification testimony, the court applied the test adopted in United States v. Crews (1980) 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 and followed in People v. Teresinski (1982) 30 Cal.3d 822, 180 Cal.Rptr. 617, 640 P.2d 753.   After an evidentiary hearing, the court found the source of Coleman's identification testimony was independent of her viewing the illegally obtained photograph of Daye.   Daye contends the court should not have applied the independent source test here because the police obtained his photograph by purposefully and deliberately violating his Fourth Amendment rights.   Citing Gilbert v. California (1967) 388 U.S. 263, 272, 87 S.Ct. 1951, 1956, 18 L.Ed.2d 1178, and footnotes in United States v. Crews, supra, 445 U.S. at page 468, footnote 5, 100 S.Ct. at page 1248, footnote 5, and People v. Teresinski, supra, 30 Cal.3d at page 839, footnote 14, 180 Cal.Rptr. 617, 640 P.2d 753,2 Daye asserts the court instead should have applied a per se exclusionary rule to Coleman's identification testimony to assure police compliance with the Fourth Amendment.   Daye contends “[w]hen police officers deliberately violate the Fourth Amendment in order to obtain a photograph to construct a photographic display and present it to a victim, all identification testimony from the victim should be construed a direct result of the illegal conduct․   Only a per se exclusionary rule can be an effective sanction to deter deliberate unlawful police conduct.”   Unfortunately for Daye, the analysis most closely approaching his is found in the District of Columbia Court of Appeals' opinion in Crews v. United States (D.C.1978) 389 A.2d 277, reversed by the United States Supreme Court in United States v. Crews, supra, 445 U.S. 463, 100 S.Ct. 1244.   However, even in Crews v. United States, the Court of Appeals did not apply a per se exclusionary rule but rather used the traditional Fourth Amendment analytical language of Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, in suppressing a victim's in-court identification testimony.

United States v. Crews, supra, 445 U.S. 463, 100 S.Ct. 1244 is controlling here.   Lacking probable cause to arrest Crews for robbery, the police “intentionally subjected [him] to an investigatory arrest for the very purpose of obtaining identification evidence.”  (Crews v. United States, supra, 389 A.2d at p. 301.)   In reversing the Court of Appeals' ruling suppressing the victim's in-court identification, the Supreme Court applied the Wong Sun analysis and found such identification had an independent source.   The Supreme Court said:

“A victim's in-court identification of the accused has three distinct elements.   First, the victim is present at trial to testify as to what transpired between her and the offender, and to identify the defendant as the culprit.   Second, the victim possesses knowledge of and the ability to reconstruct the prior criminal occurrence and to identify the defendant from her observations of him at the time of the crime.   And third, the defendant is also physically present in the courtroom, so that the victim can observe him and compare his appearance to that of the offender.   In the present case, it is our conclusion that none of these three elements ‘has been come at by exploitation’ of the violation of the defendant's Fourth Amendment rights.   Wong Sun, supra, [371 U.S.] at 488 [83 S.Ct. at 417].”  (United States v. Crews, supra, 445 U.S. at p. 471, 100 S.Ct. at p. 1250.)

The Supreme Court found the robbery victim's presence in the courtroom at Crews' trial was not the product of any police misconduct;  the victim's identity was known long before any police misconduct and her presence in court was not traceable to any Fourth Amendment violation.  (Id., 445 U.S. at pp. 471–472, 100 S.Ct. at 1249–1250.)   Further, the illegal arrest did not affect the victim's ability to give accurate identification testimony.   The victim's courtroom identification rested upon an independent recollection of her initial encounter with Crews;  her capacity to identify her assailant in court did not result from and was not biased by police misconduct occurring long after she developed such capacity.  (Id. at pp. 472–473, 100 S.Ct. at 1250–1251.)   Finally, Crews could not claim immunity from prosecution merely because an unlawful arrest precipitated his appearance in court;  Crews himself was not a suppressible “fruit” and his detention's illegality could not deprive the government of the opportunity to prove his guilt through introducing evidence wholly untainted by the police misconduct.  (Id. at p. 474, 100 S.Ct. at 1251.)

 The facts here are similar to United States v. Crews, supra, 445 U.S. 463, 100 S.Ct. 1244.   Lacking probable cause to arrest Daye for the crimes against Coleman, the police intentionally prolonged a fortuitous and originally justified traffic stop in order to take his picture for the ongoing investigation of the crimes against Coleman.   However, Coleman's presence in the courtroom was not the product of the police misconduct.   Coleman notified the police immediately after the crimes and described her attackers;  a few days later she helped a police artist draw composite pictures of them.   Coleman's identity was known long before any police misconduct.   Further, the police misconduct did not affect Coleman's ability to give accurate identification testimony.   After an evidentiary hearing, the superior court found from substantial evidence Coleman's courtroom identification was based upon her independent recollection of Daye from the time of the crimes and not tainted by her viewing the illegally obtained photograph.   Finally, Daye was not immune from prosecution simply because his appearance in court was precipitated by police misconduct.   The illegality in the police detention of Daye could not deprive the People of the opportunity to prove his guilt through evidence untainted by the police misconduct.   The admissibility of Coleman's in-court identification of Daye was properly determined under the independent source test applied in United States v. Crews.

 Contrary to footnote 14 in People v. Teresinski, we do not read footnote 5 in United States v. Crews as suggesting in-court identification testimony arising from an independent source is subject to a per se exclusionary rule in cases involving a sham or pretext arrest 3 or any other intentional violation of Fourth Amendment rights for investigatory purposes.   Footnote 5 in United States v. Crews merely states the case's factual and procedural background.

We are aware of no case applying a per se exclusionary rule where an arrest was a sham or pretext.   In Crews v. United States, supra, 389 A.2d at page 299, footnote 32, the District of Columbia Court of Appeals deemed it inappropriate to classify the case under a line of authority “said to comprise a ‘sham’ or ‘pretext’ arrest subspecies under the Fourth Amendment.”   However, even the five sham or pretext arrest cases cited by the Court of Appeals did not apply a per se exclusionary rule.  (United States v. Lefkowitz, supra, 285 U.S. 452, 52 S.Ct. 420;  United States v. Edmons (2d Cir.1970) 432 F.2d 577;  Amador-Gonzales v. United States, supra, 391 F.2d 308;  Taglavore v. United States, supra, 291 F.2d 262;  McKnight v. United States (D.C.Cir.1950) 183 F.2d 977.)   Instead, the courts in these cases applied a traditional Fourth Amendment exclusionary rule analysis.   The Court in the “extreme case” of United States v. Edmons used the traditional analytical language of Wong Sun v. United States, supra, 371 U.S. 471, 83 S.Ct. 407.   Moreover, in Amador-Gonzalez v. United States, the court used the Wong Sun analysis to find a taint was not removed and said:  “Proof that a traffic arrest was only a pretext to search for evidence of another offense is significant legally only because it bears on the reasonableness of the search.”  (391 F.2d at p. 315.)   An in-court identification following a sham arrest is not subject to a per se exclusionary rule.4

IV

In denying Daye's motion to suppress Coleman's in-court identification testimony, the court said Coleman's “testimony is plain and unequivocal.   She recognized the defendant, and he looked like the rapist, and I think that establishes prima facie that the courtroom identification at the prelim on February 10th was not tainted by the viewing of the photograph.”   Daye contends the court's using the words “prima facie” shows the court erroneously applied a preponderance of the evidence standard of proof instead of the constitutionally required clear and convincing evidence standard in determining whether Coleman's in-court identification testimony was based on a source independent of the suppressed photograph.   Daye alternatively contends the record is silent as to the standard of proof the court applied.   Daye's contentions are without merit.

 Daye concedes to the extent the record may be silent as to the standard of proof the court applied, it must be presumed the court followed controlling precedent pertaining to suppression hearings.   At time of trial, several cases involving instances of illegal police activity had required the court to exclude in-court identification testimony unless the court found the People proved by clear and convincing evidence the identification had a source independent of the initial illegality.  (People v. Martin (1970) 2 Cal.3d 822, 833, 87 Cal.Rptr. 709, 471 P.2d 29, citing United States v. Wade (1967) 388 U.S. 218, 239–242, 87 S.Ct. 1926, 1938–1940, 18 L.Ed.2d 1149;  People v. Bisogni (1971) 4 Cal.3d 582, 587, 94 Cal.Rptr. 164, 483 P.2d 780;  People v. Farley (1979) 90 Cal.App.3d 851, 866, 153 Cal.Rptr. 695.)   At the hearing on Daye's motion to suppress Coleman's in-court identification testimony, Daye's counsel cited United States v. Wade to the court:  “I believe that under the rules established for dealing with tainted identifications, in U.S. v. Wade and Gilbert v. California back in 1967, that it becomes the burden of the People to establish that the testimony offered in court is in fact independent of that tainted evidence.”   Further, the language of the court's findings does not reflect application of a preponderance of the evidence standard;  the court did not frame its findings in terms of the “reasonable probability” of truth.  (Spolter v. Four-Wheel Brake Serv. Co. (1950) 99 Cal.App.2d 690, 693, 222 P.2d 307.)   Instead, the court said:  “The witness's testimony is plain and unequivocal.   She recognized the defendant, and he looked like the rapist, and I think that establishes prima facie that the courtroom identification at the prelim on February 10th was not tainted by the viewing of the photograph.”  “Clear and convincing evidence” means “clear, explicit and unequivocal,” “so clear as to leave no substantial doubt” and “sufficiently strong to demand the unhesitating assent of every reasonable mind.”  (People v. Martin, supra, 2 Cal.3d at p. 833, fn. 14, 87 Cal.Rptr. 709, 471 P.2d 29.)   The words “prima facie” suggest absent contrary evidence the evidence presented would necessarily establish the court's finding.  (Evid.Code, § 600 et seq.)   The language of the court's findings is consistent with the clear and convincing evidence standard of proof.

V

 Daye contends based upon the clear and convincing evidence standard of proof the evidence was insufficient to prove Coleman's in-court identification was not tainted by her viewing the illegally obtained photograph.   However, substantial evidence supports the court's finding Coleman's in-court identification of Daye rested upon her independent recollection of Daye from the time of the crimes.   At the hearing on Daye's motion to suppress Coleman's in-court identification testimony, Coleman testified:  she identified Daye at the preliminary hearing “because he was the man who attacked me that night” and not as a result of looking at Daye's photograph;  her viewing Daye's photograph had nothing to do with her identifying Daye as her attacker;  on January 10 Daye wore dark clothing;  she had the opportunity to see Daye's face while he was sitting in her car's driver's seat next to her;  she did not avoid making eye contact with her abductors or otherwise avoid looking at them;  she “tried to get as good a look of them as I could”;  three times Daye told her not to look at him so she could not identify him;  as a result of her efforts to observe Daye, the facial characteristics sticking out in her mind were “his eyes,” “his hair” and “something gold”;  she can “just remember people's eyes”;  Daye's hair was “combed back, as if it had been chemically relaxed, or hot combed”;  Daye's hair “wasn't in an afro or anything like that” or kinky or nappy like an untreated black person's hair frequently appears;  a few days after the incident she helped a police artist make composite drawings of her attackers;  before the preliminary hearing she told a police investigator she recalled something gold.   Coleman's testimony about her specific observations at the time of the crime showed her in-court identification of Daye was not infected with the taint of the illegally obtained photograph.  (People v. Martin, supra, 2 Cal.3d at p. 833, 87 Cal.Rptr. 709, 471 P.2d 29.)

VI

During the People's case at trial, Wells identified Daye without defense objection.   Wells also testified he identified Pringle's picture on March 21 from five photographs shown to him by prosecution investigator Hernacki.   Wells said Hernacki showed him one group of five photographs.

Daye called Hernacki as a witness.   Hernacki testified Wells on March 20 named Pringle as one of Coleman's abductors, identified a composite picture of Pringle and described in detail the other man.   Hernacki also said on March 21 she showed Wells five photographs, none of which was Pringle's;  Wells pointed to one picture and wrote, “This guy looks like the short guy.”   The five photographs were the same pictures shown to Coleman.   Hernacki further testified she showed Wells a photograph of Pringle at a later date.

 Daye contends he was denied effective assistance of counsel because his attorney did not ask the court to suppress Wells' in-court identification testimony upon learning Wells had earlier identified the suppressed photograph of Daye.   Daye asserts no reasonable tactic justified his attorney's not objecting to Wells' in-court identification testimony.

A defendant may prove ineffective assistance of counsel by establishing his attorney “failed to perform with reasonable competence and that it is reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsel's failings.”  (People v. Fosselman (1983) 33 Cal.3d 572, 584, 189 Cal.Rptr. 855, 659 P.2d 1144.)   A conviction will be reversed “on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.”  (Id. at p. 581, 189 Cal.Rptr. 855, 659 P.2d 1144.)  “ ‘Counsel is not required to make futile objections or motions merely to create a record impregnable to assault for claimed inadequacy of counsel.’ ”  (People v. Harpool, supra, 155 Cal. App.3d at p. 886, 202 Cal.Rptr. 467.)

It is not reasonably probable a determination more favorable to Daye would have resulted if his attorney had asked the court to suppress Wells' in-court identification testimony.   The record clearly and convincingly shows Wells' in-court identification of Daye was not based on any pretrial photographic identification but rather resulted from his observations at the time Coleman was abducted.  (United States v. Crews, supra, 445 U.S. 463, 100 S. Ct. 1244;  People v. Teresinski, supra, 30 Cal.3d 822, 180 Cal.Rptr. 617, 640 P.2d 743.)   On this record it appears a motion to suppress Wells' in-court identification testimony would most likely have been futile.  (People v. Harpool, supra, 155 Cal.App.3d at p. 885, 202 Cal.Rptr. 467.)

Wells gave detailed descriptions of Daye to police and investigators before seeing any photographic lineup.   Such descriptions consistently mentioned Daye's metallic tooth.   Wells testified:  On January 10 he watched two men cross the shopping center parking lot toward a young blond white woman and abduct her in a car;  one of the men was his acquaintance Pringle, whom he had greeted at the shopping center a few minutes earlier;  he immediately called police and described the two men to the police, mentioning one had a silver tooth;  on March 20 he told investigator Hernacki the man entering Coleman's car's back seat was Pringle and described the other abductor as a 5′4″ black man about 24 years old weighing about 120 pounds with a mustache and silver or gold tooth;  he told Hernacki he would recognize such other abductor if he saw him.   Wells' testimony about the independent source of his in-court identification of Daye was buttressed by Hernacki's testimony.   Hernacki testified Wells on March 20 identified a composite picture of Pringle as one of Coleman's abductors and described the other man as a “black male, 24 years old, five foot four, 120 pounds, moustache, beard, silver or gold tooth on the upper left side, pigeon-toed and dressed in dark blue.”   Daye's attorney's not seeking to suppress Wells' in-court identification testimony did not constitute ineffective assistance of counsel.

VII

Before trial Daye asked the court under Evidence Code section 352 to exclude evidence of his 1977 Minnesota robbery conviction if he testified.   Daye asserted the prior conviction's prejudicial effect outweighed its probative value because the prior conviction was too remote in time and identical to the robbery charge here.   The court denied Daye's motion.   The court said “the plain language of Proposition Eight provides that the prior felony conviction may be used for impeachment purposes.”

Daye did not testify.   Daye's fiancee and friends testified in support of his alibi defense.

Daye contends the court erred in not exercising its discretion to exclude evidence of his prior conviction.   He asserts the court's error prejudiced him by preventing his giving testimony crucial to his defense.

 A witness' prior felony conviction is “admissible for impeachment if the least adjudicated elements of the conviction necessarily involve moral turpitude.”  (People v. Castro (1985) 38 Cal.3d 301, 317, 211 Cal.Rptr. 719, 696 P.2d 111.)   However, such admissibility is subject to the trial court's discretion under Evidence Code section 352.  (Ibid.)  Article 1, section 28, subdivision (f) of the California Constitution, enacted as Proposition 8 in June 1982, did not abolish the trial court's discretion under Evidence Code section 352 with respect to admitting evidence of prior felony convictions for impeachment.  (People v. Castro, supra, 38 Cal.3d at pp. 312–313, 211 Cal.Rptr. 719, 696 P.2d 111.)

Under the authorities cited in Castro, robbery clearly involves moral turpitude.5  Section 10(c) of the annotation cited in Castro says:  “Robbery is so clearly within the category of crimes involving moral turpitude ․ that the courts have seldom felt called upon to discuss at any length the turpitude of this offense.”  (Annot. 23 A.L.R.Fed. at p. 531.)   Witkin cites In re Rothrock (1940) 16 Cal.2d 449, 454, 106 P.2d 907:  “ ‘In cases such as those involving convictions of murder, forgery, extortion, bribery, perjury, robbery, embezzlement and other forms of theft, no difficulty would attend the determination of the question of moral turpitude from a consideration of the record of conviction alone.’ ”  (Witkin, supra, § 195, at p. 202.)

 Daye's robbery conviction involved moral turpitude and was prima facie admissible subject to the trial court's discretion under Evidence Code section 352.  (People v. Castro, supra, 38 Cal.3d at p. 316, 211 Cal.Rptr. 719, 696 P.2d 111.)   The trial court erred in effectively stating it had no discretion under section 352 with respect to Daye's prior felony conviction.  (Id. at p. 317, 211 Cal.Rptr. 719, 696 P.2d 111.)   However, contrary to Daye's contention, the court's error did not prejudice him.   Whether the error was prejudicial must be determined under the standard of People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.  (People v. Barrick (1982) 33 Cal.3d 115, 130, 187 Cal.Rptr. 716, 654 P.2d 1243;  People v. Spearman (1979) 25 Cal.3d 107, 118–119, 157 Cal.Rptr. 883, 599 P.2d 74;  People v. Fries (1979) 24 Cal.3d 222, 233–234, 155 Cal.Rptr. 194, 594 P.2d 19, disapproved on another point in Castro;  People v. Parrish (1985) 170 Cal.App.3d 336, 351–353, 217 Cal.Rptr. 700;  People v. Fisher (1984) 153 Cal.App.3d 826, 833–836, 200 Cal.Rptr. 683;  People v. Anjell (1979) 100 Cal.App.3d 189, 197–199, 160 Cal.Rptr. 669.)   Reversal is required only if after reviewing the entire record it appears reasonably probable a result more favorable to Daye would have occurred absent the error.  (People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.) 6  “Such an evaluation must necessarily depend in large part on the totality of other evidence bearing on the question of the defendant's guilt in the unique circumstances of the particular case.”  (People v. Rist, supra, 16 Cal.3d at p. 222, 127 Cal.Rptr. 457, 545 P.2d 833, disapproved on another point in Castro.)

 The People's case against Daye was strong.   There was overwhelming direct evidence of his guilt.   Victim Coleman identified Daye as one of the men who stole her car and kidnapped, robbed and raped her.   Eyewitness Wells identified Daye as one of Coleman's abductors.   Daye contends he probably would have testified in support of an alibi defense.   However, without personally testifying, Daye presented his alibi defense to the jury through testimony by his fiancee and friends.   On this record Daye's own testimony was not essential to his defense;  any detrimental effect of his not testifying was insignificant.  (People v. Anjell, supra, 100 Cal.App.3d at p. 199, 160 Cal.Rptr. 669.)   It is not reasonably likely a result more favorable to Daye would have occurred if he had testified.

Since we find the court's error in ruling on the admissibility of Daye's prior conviction not to be prejudicial under People v. Watson, supra, 46 Cal.2d 818, 299 P.2d 243, we do not reach the issue raised by the People that Daye does not have standing to claim error because he did not testify at trial (see Luce v. United States (1984) 469 U.S. 38 [105 S.Ct. 460, 83 L.Ed.2d 443] ).

VIII

The court told the jury:  “It is not essential to a conviction to a charge of rape that the testimony of the witness with whom sexual intercourse is alleged to have been committed should be corroborated or supported by any other evidence.”  (See CALJIC No. 10.21.)   The court did not read the jury CALJIC No. 2.27:  “Testimony which you believe given by one witness is sufficient for the proof of any fact.   However, before finding any fact [required to be established by the prosecution] to be proved solely by the testimony of such a single witness, you should carefully review all the testimony upon which the proof of such fact depends.”

Daye contends the court prejudicially erred in not reading the jury CALJIC No. 2.27 sua sponte.   He asserts by omitting CALJIC No. 2.27 the court denied him jury instruction about the need for careful review of testimony before finding any fact to be proved solely by one witness' testimony.   He also asserts the court's omitting CALJIC No. 2.27 while giving CALJIC No. 10.21 prejudiced him by unduly focusing attention on Coleman's testimony and incorrectly implying defense testimony required corroboration.

 The court should give an instruction equivalent to CALJIC No. 2.27 in every criminal case where no corroborating evidence is required.  (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884–885, 123 Cal.Rptr. 119, 538 P.2d 247.)   This mandate is confusingly expressed in the Use Note to CALJIC No. 2.27:  “This instruction should be given sua sponte in every criminal case in which no corroborating evidence is required and the proof of any fact depends on the testimony of a single witness.”  (CALJIC (4th ed. 1979) at p. 48, italics added.)   Apparently, the drafter of the inaccurate Use Note mistakenly combined Rincon-Pineda's mandate to give the instruction in every criminal case where no corroborating evidence is required and CALJIC No. 2.27's introductory sentence declaring credible testimony by one witness to be sufficient for the proof of any fact.  (People v. Pringle (1986) 177 Cal.App.3d 785, 223 Cal.Rptr. 214.)   Following CALJIC's lead, the court in People v. Haslouer (1978) 79 Cal.App.3d 818, 832–833, 145 Cal.Rptr. 234, decided the trial court's failing to give CALJIC No. 2.27 was not error where other evidence, if believed, corroborated the statements of each prosecution witness.  (Accord People v. Alvarado (1982) 133 Cal.App.3d 1003, 1023, 184 Cal.Rptr. 483.)

 We could reach the same conclusion here because Coleman's testimony was corroborated by Wells' testimony and consistent with the blood test results.   However, the jury could disbelieve the corroborating evidence and be confronted with deciding whether Coleman's testimony alone was sufficient for conviction.   That is precisely Daye's argument:  the jury could disbelieve Wells' testimony and disregard the equivocal blood test results, leaving the People's case dependent solely on Coleman's testimony and thus within the ambit of CALJIC No. 2.27.   This dilemma is not addressed in the Use Note to CALJIC No. 2.27 or in Haslouer, supra, or Alvarado, supra.   However, inferentially this matter was resolved in defendant's favor in Rincon-Pineda, supra, where the Supreme Court flatly required giving CALJIC No. 2.27 in every criminal case where no corroborating evidence was required to sustain a conviction.   Accordingly, the trial court here erred in not giving CALJIC No. 2.27 sua sponte.

 Further, the court here compounded its error by giving CALJIC No. 10.21 without an admonition akin to CALJIC No. 2.27.   Giving CALJIC No. 10.21 without such admonition unduly focuses the jury's attention on the victim's testimony, implies the victim's testimony has been singled out because it is to be treated differently than other witnesses', and implies other witnesses' testimony may require corroboration.

In People v. McIntyre (1981) 115 Cal.App.3d 899, 906–907, 176 Cal.Rptr. 3, the court approved giving CALJIC No. 10.21 in combination with CALJIC No. 2.27, finding it correctly states the law and is not so repetitious on the subject of a witness' testimony as to emphasize unduly the victim's testimony.  (Accord People v. Jamison (1984) 150 Cal.App.3d 1167, 1172–1174, 198 Cal.Rptr. 407.)   However, the issue here is different from that addressed in People v. McIntyre.   McIntyre is inapposite because there CALJIC No. 2.27 was properly given.   Here the court read the jury CALJIC No. 10.21 but did not give CALJIC No. 2.27.   Giving CALJIC No. 10.21 in the absence of CALJIC No. 2.27 incorrectly implies to lay jurors a rape victim's testimony has a special status and is to be evaluated differently than other witnesses' testimony;  it further incorrectly implies other witnesses' testimony requires corroboration.   Consequently, we believe it was error to give only CALJIC No. 10.21 unmodified, because even prosecution witnesses in rape cases are included within the general category of witnesses covered by CALJIC No. 2.27's cautionary admonition.

 We must now determine whether the instructional error here constitutes prejudicial error requiring reversal.   In People v. Rincon-Pineda, supra, 14 Cal.3d at page 872, 123 Cal.Rptr. 119, 538 P.2d 247, the Supreme Court summarized the governing law:

“It is well established that the error in failing to give the cautionary instruction is not prejudicial per se.  ‘The circumstances of each case’ must be reviewed on appeal to ‘determine whether failure to give the instruction was prejudicial.’  [Citation.]  Such failure ‘does not constitute prejudicial error if “the evidence clearly points to the defendant's guilt, or ․ the testimony of the prosecuting witness is amply corroborated, or there are other factors in the case which show that the defendant has been given a fair trial.” ’  [Citation.]   Under this standard, a finding that failure to give the instruction was harmless error has been far more the rule than the exception.  [Citations.]”

Guided by the foregoing, we conclude it is not reasonably probable a result more favorable to Daye would have occurred absent the instructional error.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243;  People v. McIntyre, supra, 115 Cal.App.3d at p. 907, 176 Cal.Rptr. 3.)   Coleman's testimony was corroborated by Wells' testimony and consistent with the blood test results.   Moreover, Coleman's testimony was consistent with evidence she was dropped off two to three minutes from Daye's residence, promptly reported the attack, and appeared to police to be physically upset, distraught, shaken and crying.   Further, the court told the jury at length witnesses' testimony should be carefully reviewed, Daye was presumed innocent until the People proved him guilty beyond a reasonable doubt and Daye need not present any evidence in his defense.   On this record the court's error in omitting CALJIC No. 2.27 while giving CALJIC No. 10.21 was harmless.  (Cal.Const., art. VI, § 13.)

IX

Section 264.1 reads:

“The provisions of Section 264 notwithstanding, in any case in which the defendant, voluntarily acting in concert with another person, by force or violence and against the will of the victim, committed an act described in Section 261 or 289, either personally or by aiding and abetting the other person, that fact shall be charged in the indictment or information and if found to be true by the jury, upon a jury trial, or if found to be true by the court, upon a court trial, or if admitted by the defendant, the defendant shall suffer confinement in the state prison for five, seven, or nine years.”

The People charged Daye in counts three and four with forcible rape in concert.  (§§ 261, subd. (2);  264.1.)

The court told the jury:

“In the crimes charged in Counts Three and Four of the Information, namely, forcible rape by acting in concert ․ there must exist a union, or joint operation of act or conduct on the one hand, and a general criminal intent.

“To constitute general criminal intent it is not necessary that there should exist any intent to violate the law.   For when a person intentionally does that which the law declares to be a crime, he is acting with a general criminal intent, even though he may not know his act or conduct is unlawful.

“․

“In order to prove the commission of the crime of rape each of these elements must ․ be proved:  First, that the defendant engaged in an act of intercourse with a person;  second, that she was not the spouse of the perpetrator;  third, that the act of intercourse was against her will;  fourth, that the act was accomplished by means of force or by means of the fear of immediate and unlawful bodily injury.

“The defendant is charged with committing rape on two separate occasions, which have been labelled the first occasion, in Count Three, and the second occasion, in Count Four, while acting voluntarily, in concert with another person, either personally or by aiding or abetting the other person, by force or violence, and against the will of the victim.

“․ the first occasion charges that the defendant was the perpetrator himself of such rape in concert, in Count Three;  whereas, Count Four charges that he was an aider and abettor of a rape perpetrated by another person.

“In order to prove this crime the following elements must be proved:  All the elements of rape that I have already defined for you a moment ago, plus the two additional factors:  That the defendant violated the Penal Code section of rape while voluntarily acting in concert with another person, either personally or by aiding and abetting such other person;  and that the crime was committed by force or violence, and against the victim's will.

“The phrase ‘acted in concert’ means that two or more people, acted together in a group sexual attack, and includes not only those who personally engaged in the act constituting the crime, but also those present who aid and abet a person in accomplishing it.

“To establish that a defendant voluntarily acted in concert with another person, it is not necessary to prove that there was any advance arrangement, planning, or scheme.”

The court also told the jury:

“A person aids and abets the commission of a crime when he, acting with knowledge of the unlawful purpose of the perpetrator, and with the intent of or purpose of committing, encouraging, or facilitating the commission of the offense, by act or advice aids, promotes, encourages, or instigates the commission of the crime.”

 Asserting rape in concert is a specific intent crime because section 264.1 contains the word “voluntarily,” Daye contends the court prejudicially erred in telling the jury rape in concert was a general intent crime.   Daye contends an essential element under section 264.1 is a defendant's voluntarily acting in concert with another person with the specific purpose to commit an act of gang rape.   He also asserts the word “voluntarily” in section 264.1 may mean “intentionally” and include an element of “deliberation.”   Daye is wrong.   Rape in concert is not a specific intent crime.

“When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act.   This intention is deemed to be a general criminal intent.   When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.”  (People v. Hood (1969) 1 Cal.3d 444, 456–457, 82 Cal.Rptr. 618, 462 P.2d 370.)

 Section 264.1 does not refer to an intent to do a further act or achieve any additional consequence.   Section 264.1 refers only to doing an act of gang rape.   The word “voluntarily” in section 264.1 means a defendant acted intentionally of his own free will, and not accidentally, unintentionally or out of fear or coercion, in committing a rape in concert.  (See People v. Caldwell (1984) 153 Cal.App.3d 947, 951–952, 200 Cal.Rptr. 508.)   The word “voluntarily” is nothing more than an example of general mens rea.   Further, the words “voluntarily acting in concert” do not require proof of prearrangement, planning or scheme.  (People v. Calimee (1975) 49 Cal.App.3d 337, 341–342, 122 Cal.Rptr. 658.)

 Daye contends the evidence was insufficient for conviction of rape in concert on the count where he directly perpetrated the rape.   Daye contends there was no evidence he either asked Pringle to help him rape Coleman or was aware of Pringle's manipulating Coleman's buttocks or holding her leg.   Daye asserts he should not be deemed to have “voluntarily” acted in concert with Pringle merely because Pringle on his own volition decided to participate.   However, Daye improperly seeks reweighing on appeal of the evidence at trial.   Further, his contention approaches frivolity.   While Daye raped Coleman, Pringle held Coleman's leg on top of the driver's seat and with his hand moved Coleman's buttocks up and down.   These facts amply justify a finding while raping Coleman, Daye was aware of Pringle's actions.   Substantial evidence and reasonable inferences support the jury's verdict Daye was guilty of rape in concert on the count where he directly raped Coleman.

X

During voir dire Daye's counsel sought to ask prospective jurors about their attitudes toward the doctrine of proof beyond a reasonable doubt, their understanding of the doctrine and their ability to define it.   The court sustained the People's objections to these proposed questions.   The court said:  “I just am unable to imagine a person on the street that has some subtle preconception of the meaning of the words ‘beyond a reasonable doubt,’ that wouldn't have come to light in the course of the questions that the Court asked them at the beginning of the jury selection․   By and large, questions to elicit the juror's attitude toward well-known rules of law are not really productive․  [A]ttitudes toward verbal statements of legal principles, I do not think that the jurors are likely to understand the question or to have a real bias that they are capable of expressing.”

Daye contends the court prejudicially erred in prohibiting his counsel from conducting any jury voir dire about the doctrine of proof beyond a reasonable doubt.   Daye asserts the prime issue at trial was whether the People could prove identity beyond a reasonable doubt and his whole defense was based on this doctrine.

 The court must allow counsel “to ask questions reasonably designed to assist in the intelligent exercise of peremptory challenges whether or not such questions are also likely to uncover grounds sufficient to sustain a challenge for cause.”  (People v. Williams (1981) 29 Cal.3d 392, 407, 174 Cal.Rptr. 317, 628 P.2d 869.)   However, the court has considerable discretion to contain voir dire within reasonable limits.  (Id. at p. 408, 174 Cal.Rptr. 317, 628 P.2d 869.)

 To the extent Daye's counsel sought to ask prospective jurors about their understanding of the doctrine of proof beyond a reasonable doubt and their ability to define it, the court properly excluded such questions.   A prospective juror's knowledge or ignorance of the law is generally not a proper subject of inquiry on voir dire.  (People v. Love (1960) 53 Cal.2d 843, 852, 3 Cal.Rptr. 665, 350 P.2d 705.)   Further, the court acted within its discretion in limiting inquiry into prospective jurors' attitudes toward the doctrine of proof beyond a reasonable doubt.  “[I]n general a reasonable question about the potential juror's willingness to apply a particular doctrine of law should be permitted when from the nature of the case the judge is satisfied that the doctrine is likely to be relevant at trial.   Reversal will be required, however, only if the doctrine is actually relevant, and the excluded question is found substantially likely to expose strong attitudes antithetical to defendant's cause.”  (People v. Williams, supra, 29 Cal.3d at p. 410, 174 Cal.Rptr. 317, 628 P.2d 869.)   The court may properly exclude a question about a legal doctrine where, as here, there is little, if any, reason to suspect prospective jurors would quarrel with the doctrine.  (Id. at p. 411, 174 Cal.Rptr. 317, 628 P.2d 869.)

XI

The court sentenced Daye to life imprisonment for kidnapping to rob plus two consecutive full seven-year middle terms for the rapes and a consecutive eight-month term for auto theft.   Sentence for robbery was stayed under section 654.

Daye contends the court prejudicially erred in not stating reasons for the consecutive sentence for auto theft.   The record belies Daye's contention.   The court gave reasons for imposing consecutive sentences:  “let me say first that it is my intention to sentence consecutively because of the very serious nature of the crimes;  because of the prior criminal record in Minnesota which is not otherwise taken into account in sentencing, in view of the acquittal on that serious prior felony charge, and in view of the fact that each of the crimes had its own independent identity in the case.”

XII

Section 654 reads in part:  “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one;  ․”   Section 654 applies “where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction.   Whether a course of conduct is indivisible depends upon the intent and objective of the actor.   If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one․  [¶] On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct.”  (People v. Perez (1979) 23 Cal.3d 545, 551, 153 Cal.Rptr. 40, 591 P.2d 63, citations omitted.)

 Daye contends section 654 bars punishment for auto theft.   He asserts as to auto theft the court's finding each crime had its own independent identity is unsupported by the record;  instead, the “facts conclusively demonstrate” auto theft “was incidental to the primary offense of kidnaping for the purpose of robbery and was committed to escape after commission of the kidnaping, robbery and sex offenses.”  “However, the question of whether the acts of which a defendant has been convicted constituted an indivisible course of conduct is primarily a factual determination, made by the trial court, on the basis of its findings concerning the defendant's intent and objective in committing the acts.   This determination will not be reversed on appeal unless unsupported by the evidence presented at trial.”  (People v. Ferguson (1969) 1 Cal.App.3d 68, 74–75, 81 Cal.Rptr. 418.)   Here the record supports the court's finding auto theft had its own identity independent from the other crimes against Coleman.   In stealing Coleman's car, Daye had a separate and independent intent and objective.

After robbing and raping Coleman, Daye and Pringle dressed, returned to their original positions in the car, allowed Coleman to dress and started the car.   Daye and Pringle discussed what to do next.   They decided not to return Coleman to the shopping center because it was too far away.   They also decided not to drive Coleman to the ghetto and not to kill her.   Daye asked Coleman whether she wanted to get out or stay and drive with them.   Coleman got out of the car.   Pringle moved to the front seat and threw Coleman's wallet at her.   The men drove away in Coleman's car.   These facts do not “conclusively demonstrate” auto theft was incidental to the primary purpose of kidnapping to rob or committed to escape from the crime scene.   The facts do not show as a matter of law an intent to escape from the crime scene using Coleman's car as an escape vehicle.   Instead, the facts show after robbing and raping Coleman, Daye then decided to steal her car.   Daye's intent and objective in stealing Coleman's car were independent of the earlier kidnapping, robbery and rapes.   The separate offenses, each with an independent intent and objective, support the consecutive sentencing as not violating section 654.  (People v. Flores (1982) 128 Cal.App.3d 512, 527, 180 Cal.Rptr. 368.)

XIII

The court imposed full consecutive sentences under section 667.6, subdivision (c) for the rapes in concert.

In choosing to sentence consecutively, the court said “each of the crimes had its own independent identity in the case․   Here they were two separate and distinct rapes by two separate and distinct individuals.   Two separate and distinct outrages suffered by the victim.   The defendant is the principal—he is a principal in both.   He is the perpetrator in one of the counts.   He is an aider and abettor in the other.”

Later in choosing to impose full consecutive sentences, the court said:  “It is my view that this is a proper case for full-strength consecutive sentencing because of the distinct nature of the crimes that I have already mentioned.   And further, because of the aggravating factors of special vulnerability of the victim, a young woman out at night by herself in a shopping center, in no position to defend herself.   And if I can find this—also rule 414(b), the fact that the nature of this crime and the prior crime suggests that the defendant would be a danger to the community whenever released.”

 Daye contends the court's statement of reasons for imposing full consecutive sentences was insufficient.   He asserts the court's finding victim Coleman was particularly vulnerable was arbitrary and unsupported by the record;  the court's finding he would be dangerous in the future was without evidentiary support;  and the court's reference to the “nature of the crimes” did not constitute a sufficient reason to impose consecutive sentences.   However, the court gave adequate reasons supported by the record to justify imposing full consecutive sentences.

 The court's mentioning the “distinct nature of the crimes” was a specific reference to its earlier statement “there were two separate and distinct rapes by two separate and distinct individuals.”  (Rule 425(a)(1).)  Daye's criminal behavior including his prior criminal record showed a pattern of violent conduct indicating a serious danger to society.  (Rule 421(b)(1).)  Further, the record supports the court's finding Coleman was particularly vulnerable.  (Rule 421(a)(3).)  “Particularly, as used here, means in a special or unusual degree, to an extent greater than in other cases.   Vulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act.”  (People v. Smith (1979) 94 Cal.App.3d 433, 436, 156 Cal.Rptr. 502.)   In assessing vulnerability, the court may consider the victim's personal characteristics and the setting of the crime.  (People v. Price (1984) 151 Cal.App.3d 803, 814, 199 Cal.Rptr. 99.)   Coleman was small, standing 5′ 3″ and weighing 115 to 120 pounds.  She was alone at night in a shopping center parking lot away from other customers.   Daye and Pringle attacked her suddenly as she entered her car.

The court properly imposed full consecutive sentences under section 667.6, subdivision (c).

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   United States v. Crews, supra, 445 U.S. at page 468, footnote 5, 100 S.Ct. at page 1248, footnote 5 reads:  “The suppression hearing produced conflicting testimony as to the reasons for the attempt to photograph respondent.   Officer Rayfield asserted that respondent was processed as a routine juvenile truant, a procedure that involves photographing the suspect and then calling his school and home to determine whether he is in fact truant.   Tr. 53–54.   Rayfield did acknowledge, however, that he had some suspicion that respondent was the robber described in the police description.  Id., at 55, 57.   Similarly, Detective Ore, while maintaining that respondent was apprehended and taken down to Park Police headquarters as a suspected truant, id., at 61, 63, admitted that his intent in trying to photograph him was to obtain a picture that could be shown to the complaining witnesses.  Id., at 59.“The Government does not now attempt to justify respondent's detention on the truancy charge, nor did it raise that argument in the court below.   The Court of Appeals found that the procedures followed in respondent's case did not conform to the typical truancy practices described by the police and that the officers never even superficially pursued the truancy matter.   By the same token, the court expressly disavowed the existence of a ‘sham’ or ‘pretext’ arrest, and it analyzed respondent's apprehension as a traditional arrest for armed robbery and assault without probable cause.  [Crews v. U.S.] 389 A.2d 277, 299–300, n. 32 (D.C.1978).”People v. Teresinski, supra, 30 Cal.3d at page 839, footnote 14, 180 Cal.Rptr. 617, 640 P.2d 753, reads:  “The Crews decision, in noting that the arrest in that case was not a sham or pretext (see 445 U.S. 464, 468, fn. 5 [100 S.Ct. 1246, 1248, fn. 5, 63 L.Ed.2d 537, 543–544] ), implied a limit to the admissibility of evidence under that decision.   If an arrest were a sham or pretext, employed merely as a device to secure a defendant's person or photograph for identification, the deterrant [sic] purpose of the exclusionary rule might require the suppression of in-court identification testimony.”

3.   The court may find an otherwise lawful arrest to be a sham or pretext where the arrest is made for a secret illegitimate purpose.  “An arrest may not be used as a pretext to search for evidence.”  (United States v. Lefkowitz (1932) 285 U.S. 452, 467, 52 S.Ct. 420, 76 L.Ed. 877)  “[A]n arrest must not be a mere pretext for an otherwise illegitimate search.”  (Amador-Gonzalez v. United States (5th Cir.1968) 391 F.2d 308, 313.)  “Where the arrest is only a sham or a front being used as an excuse for making a search, the arrest itself and the ensuing search are illegal.”  (Taglavore v. United States (9th Cir.1961) 291 F.2d 262, 265.)

4.   Since we find the trial court did not err in failing to apply a per se rule of exclusion, we reject Daye's contention his attorney deprived him of effective assistance of counsel by failing to argue for one.   Any such contention would have been futile.  (People v. Harpool (1984) 155 Cal.App.3d 877, 886, 202 Cal.Rptr. 467.)

5.   In referring to the “considerable bodies of law concerning the characterization of felonies as involving or not involving moral turpitude”, the court in Castro cited two examples:  (1) 1 Witkin, Cal. Procedure (2d ed. 1970) Attorneys, § 195;  and (2) Annot., What Constitutes “Crime Involving Moral Turpitude” Within Meaning of §§ 212(a)(9) and 241(a)(4) of Immigration and Nationality Act (8 USCS §§ 1182(a)(9), 1251(a)(4)), and Similar Predecessor Statutes Providing for Exclusion Or Deportation of Aliens Convicted of Such Crime (1975) 23 A.L.R.Fed. 480.  (People v. Castro, supra, 38 Cal.3d at p. 316, fn. 11, 211 Cal.Rptr. 719, 696 P.2d 111.)

6.   We disagree with the holding in People v. Almarez (1985) 168 Cal.App.3d 262, 268, 214 Cal.Rptr. 105, the trial court's failure to exercise its discretion under Evidence Code section 352 is reversible error per se where the defendant does not testify.   In Almarez (ibid.), the court said People v. Rist (1976) 16 Cal.3d 211, 223, 127 Cal.Rptr. 457, 545 P.2d 833 “prescribed the standard of reversible error per se.”   However, Rist did not prescribe such standard.   Rather, where nothing in the record suggested what the defendant's testimony might have been, the court in Rist declined to speculate.   Where, as here, the record shows what the defendant likely would have said, we may properly determine any error was harmless under the Watson standard because the defendant's testimony would not have affected the outcome of the case.  (People v. Fisher, supra, 153 Cal.App.3d at pp. 833–836, 200 Cal.Rptr. 683;  People v. Anjell, supra, 100 Cal.App.3d at pp. 197–199, 160 Cal.Rptr. 669.)

KREMER, Presiding Justice.

STANIFORTH and WIENER, JJ., concur.