Full opinion text
Opinion BROWN, J. This is an automatic appeal (Pen. Code, § 1239, subd. (b)) from a judgment of death under the 1978 death penalty law. Following a jury trial, defendant Alfredo Prieto was convicted of: (1) one count of first degree murder (§ 187, subd. (a); count 12) with a robbery-murder, a kidnapping-murder, and a rape-murder special circumstance (§ 190.2, subd. (a)(17)); (2) two counts of attempted willful, deliberate, and premeditated murder (§ 187, subd. (a); former § 664, subd. (1), as amended by Stats. 1986, ch. 519, § 2, p. 1859; counts 13, 14); (3) two counts of attempted robbery (§§ 211, 664; counts 1, 4); (4) two counts of robbery (§ 211; counts 2, 3); (5) three counts of kidnapping for robbery (§ 209, subd. (b); counts 5, 6, 7); (6) three counts of forcible rape (former § 261, subd. (2), as amended by Stats. 1986, ch. 1299, § 1, p. 4592; counts 8, 9, 10); and (7) one count of possession of a firearm by a felon (§ 12021, subd. (a); count 15). The jury also found true the allegations that: (1) a principal was armed with a firearm as to count 1 (§ 12022, subd. (a)(1)); (2) a principal was armed with a handgun as to counts 2 through 10 and 12 through 14 (§ 12022, subd. (a)); (3) defendant personally used a firearm as to counts 2 through 10 and 12 through 14 (§§ 12022.5, 1203.06, subd. (a)(1)); (4) defendant personally inflicted great bodily injury as to counts 4, 7, and 10 (§ 12022.7); and (5) defendant had been previously convicted of the serious felony of assault with a firearm as to counts 1 through 10 and 12 through 15 (§ 667, subd. (a)). The jury, however, acquitted defendant on the alternative charge of attempted forcible rape (§§ 261, subd. (2), 664; count 11). In the penalty phase, the jury returned a verdict of death. After denying defendant’s motion for a new trial and reduction of the penalty (§ 190.4), the trial court imposed the death penalty for the murder and a sentence of 47 years and four months, followed by two life terms with the possibility of parole and three life terms without the possibility of parole. On review, we strike the serious felony enhancement as to count 15 and amend the abstract of judgment to reflect a sentence of life with the possibility of parole as to counts 5, 6 and 7, but affirm the judgment in all other respects. I. Facts A. Guilt Phase 1. Prosecution On September 1, 1990, Lisa H. and her best friend, Yvette Woodruff, picked up Emily D., Lisa H.’s mother, from her workplace around 11:30 p.m. and took her home. At her home in San Bernardino County, Emily D. saw Anthony “Cookie” Rangel, her nephew and next-door neighbor, and Connie Ramirez, the sister of Emily’s former classmate, and spoke briefly with them. Ramirez invited Emily D. to her place for drinks, and Emily B. accepted the invitation. Emily B. left for Ramirez’s house around 1:30 a.m., but drove around for awhile when she spotted police officers in front of the house. She returned to Ramirez’s house after the officers left, but left again to return home and pick up some beer she had forgotten to bring. On her way home, Emily B. spotted Lisa H. and Woodruff driving and stopped to speak with them. They then decided to go to Ramirez’s house together. At Ramirez’s house, Emily D. parked in the driveway, and Lisa H. and Woodruff parked parallel to the street, blocking the driveway. Unbeknownst to the three women, they had interrupted a robbery. Just before their arrival, some men had grabbed Rangel from a van in the driveway and rifled through his wallet. One man wielded a knife; another had a gun. When the three women arrived, the men left Rangel, who fled. The men then turned their attention to the new arrivals. Upon reaching Emily D.’s car, Vincent Lopez put a knife to her throat and demanded her car keys and money. She complied. Meanwhile, defendant—identified by a large “PNS” tattoo on his neck—and Danny Sorian walked toward Lisa H.’s car. Sorian approached Woodruff, while defendant pointed a gun at Lisa H.’s head, threatened to “blow” her “fucking head off,” and demanded her car keys and money. She complied, and defendant and Sorian herded her and Woodruff into the backseat. Soon after, Lopez forced Emily D. at knifepoint into the backseat with the other women. The three men then got into the front seat. After Lisa H. identified the correct key, defendant started the car and drove away. One of the men turned up the radio, making it difficult for the women to hear their conversation. Lisa H. was hysterical and crying, but managed to lift her head periodically and look around. Emily D. kept her head down and eyes closed. Lopez asked defendant and Sorian to let the women go and told them to let him out if they did not because he did not want to go back to prison. Defendant later stopped and Lopez left. After defendant and Sorian made several stops in an apparent effort to find a replacement for Lopez, Ricardo Estrada joined them. When they stopped for gas, defendant and Estrada got out. Pointing a gun, Sorian reassured the women they would not be hurt if they did what they were told. When defendant and Estrada returned, they drove off again. After getting stuck in the mud once, the three men and their victims reached a dark and isolated field in the City of Ontario. At the field, each man took charge of a victim. Sorian took Emily D. Defendant initially chose Lisa H. But when she pulled away, he pulled Woodruff, struggling and resisting, from the car and dragged her toward some trees. Estrada then took Lisa H. Sorian raped Emily D., while Estrada raped Lisa H. During the rape, Emily D. saw Woodruff on the ground struggling with someone on top of her and heard her scream. She also saw Lisa H. on the ground with someone on top of her and heard Lisa H. cry and scream out for her. Meanwhile, as she was being raped, Lisa H. saw Woodruff’s legs and heard Woodruff say, “Emily, please get him off of me. Emily, he’s hurting me.” After raping Emily D., Sorian told her to put her clothes back on, pulled a knife out and told her not to tell anybody about “what happened out” here or he would “come back and finish” them “off.” He then said he didn’t “like how these guys are acting, and that he’s just going to have to go and take care of them” and walked away. When Estrada finished with Lisa H., Sorian ordered her to put her clothes back on and took her to her mother, where the two women hugged each other. While embracing, they heard a gunshot, and Lisa H. saw a man walk away from Woodruff. She knew the man was not Sorian or Estrada because she could see them standing inside a building. After the gunshot, Emily D. and Lisa H. were separated. Estrada repeatedly stabbed Lisa H. in the neck and hands and broke his knife blade on her knuckle. After being stabbed and kicked, Lisa H. lay on the ground and pretended she was dead. At the same time, Sorian was stabbing Emily D. When Sorian stopped, Emily D. called out to Lisa H. and asked her if she was all right. Sorian then screamed, “I thought I told you to keep your fucking mouth shut” and stabbed her again, causing Emily D. to lose consciousness. When she heard the car drive off, Lisa H. ran to Emily D. and helped her up. Together, they went to help Woodruff, but Woodruff did not respond. Emily D. and Lisa H. then ran for help. During their run for help, Emily D. told Lisa H. they should lie and tell the police they were blindfolded, because their attackers might return to kill them. The two women eventually found a security guard at a Kmart distribution center who called the police. The police arrived around 4:00 a.m., and one of the officers spoke with Lisa H. As instructed by Emily D., Lisa H. lied to the officer. Lisa H. then directed the officers to the site of the attacks. At the site, the officers discovered Woodruffs body propped up against a tree with her legs spread apart. One officer thought she had a faint pulse. The paramedics took over and pronounced Woodruff dead at 4:15 a.m. An autopsy established that Woodruff had died of a gunshot wound to the head. The muzzle of the gun was touching her head, and she probably died within minutes after being shot. The autopsy also revealed abrasions at the entrance to Woodruffs vagina and on her upper back. These abrasions occurred immediately before her death. Woodruff also had some bruising of the hymen, which could have occurred up to one day before her death. Finally, she had numerous postmortem ant bites on the inner side of her thighs. After discovering Woodruffs body, some officers took Lisa H. to a hospital. Other officers took Emily D. to a different hospital, where she was hospitalized for four days. The police then secured the crime scene and searched for evidence. During the search, the police collected shell casings and Woodruffs clothes. Although an initial screen suggested that there was semen on Woodruffs underwear, subsequent testing detected no semen on her clothes or body. The police also discovered a broken knife blade at the crime scene. The blade, however, contained no fingerprints or blood and did not appear dirty. At the hospitals, Emily D. and Lisa H. received treatment. Sexual assault kits were obtained, and the police photographed the women and collected their clothing. Serological testing uncovered semen on Emily D.’s vaginal swabs and underwear. Forensics could not, however, connect the semen to any suspect. Testing also uncovered no semen on Lisa H.’s vaginal swabs. Although an initial screen suggested the presence of semen on Lisa H.’s underwear, subsequent testing could not confirm this finding. A foreign antigen, probably from saliva and linked to Estrada and no other suspect, was discovered on Lisa H.’s sweater jacket. None of the serological evidence, however, connected defendant to the crimes. On the morning after the attack, an officer interviewed Lisa H. at the hospital. Lisa H. lied and told the officer she had been blindfolded and could not recognize any of the assailants because it was too dark. Because Lisa H.’s statements appeared inconsistent, the officer suspected she was lying or withholding information. Later that morning, a detective conducted a videotaped interview of Lisa H. Although the detective told Lisa H. that a bloodbath might occur if the Black Angels found out who killed Woodruff before the police did, Lisa H. continued to lie. She falsely told the detective that she was blindfolded during the rape and that she could not remember the faces of her attackers because “it was too dark.” She also mistakenly told the detective that the driver had jumped into another car at the gas station. At trial, Lisa H. testified that she initially lied because she was scared her attackers would kill her if she told the truth. She, however, decided to tell the truth after her grandparents picked her up from the hospital and she finally realized Woodruff was dead. That afternoon, Lisa H. visited Emily D. at the hospital and told her she was going to tell the truth. On September 5, Lisa H. identified defendant in a photo lineup as the person who sexually assaulted and murdered Woodruff. She also identified Estrada as her rapist in a different photo lineup, but could not identify anyone in the two other photo lineups. After Lisa H. made her identifications, the police showed the same four photo lineups to Emily D. Emily D. also identified defendant, but claimed he left the car before their attackers took them to the field. She also identified Estrada as her daughter’s rapist and thought that Frank Lopez, the brother of Vincent Lopez, looked familiar. A week later, Lisa H., after seeing defendant’s photograph in a newspaper article, identified defendant as Woodruffs killer by sight and by voice at a live lineup. Emily D. also identified defendant by sight and by voice at the live lineup. After recognizing defendant’s voice, Emily D. realized that defendant had not left the car as she had suggested at the photo lineup. At a subsequent live lineup, Emily D. identified Vincent Lopez as the man who robbed her at Ramirez’s house and left the car before they went to the field. Finally, in two other live lineups, the women identified Estrada as Lisa H.’s rapist and Sorian as Emily D.’s rapist. Based on the initial identifications at the photo lineup, the police obtained a warrant to search defendant’s apartment, where he lived with Lillian Gutierrez. During the search, the police discovered a key ring with five keys on top of a wall heater in the bedroom. These keys resembled a set of keys given to the police by Lisa H. or Emily D. One key opened the gas cap of Lisa H.’s car, and another key started the car. When the police showed Lisa H. the keys, she identified four of the five keys. A few days before trial, she remembered that the fifth key opened a security gate at her friend’s building. The police later confirmed that this key opened that security gate. 2. Defense Gutierrez testified that defendant was at home with her and her children on September 1. According to Gutierrez, defendant was in the apartment when she went to sleep between 11:00 p.m. and midnight and when she woke up the next morning. Gutierrez also testified that she saw no scratches on defendant that week. 3. Rebuttal The prosecution presented no rebuttal witnesses. B. Penalty Phase 1. Prosecution Sandra Figueroa, defendant’s former wife, testified that defendant once threw their daughter at her after she asked him to hand the child over. Although Figueroa failed to catch their daughter, the child was not injured. Defendant subsequently threatened Figueroa in connection with this incident and others. Figueroa also testified that defendant hit and slapped her on several occasions and forced her to have sex with him. During some of these incidents, defendant threatened Figueroa. On another occasion, defendant hit Figueroa with an extension cord and forced her to have sex with him. Figueroa also described an incident where defendant pointed a gun at her head. When Figueroa bent down to pick something up, the gun went off and the bullet hit a frame behind her. Finally, Figueroa testified that defendant once twisted her arm and pushed a knife into her back. Elias Vera and Mario Naranjo testified about a 1984 shooting incident involving defendant. According to Naranjo, defendant drove by his house and shot at him, his girlfriend, Mercedes Salazar, and Vera while they were standing in his front yard. Defendant hit Naranjo and Vera in the legs. Stella Quinones testified that defendant drove up to her, her husband, her sister, and her brother-in-law five days after Woodruff’s murder and pointed a gun at her husband. Defendant demanded to know where they were from. When someone called for defendant, he left. Finally, Deputy Sheriff Marvin Morton testified that he discovered two “pieces of metal that [are] refer[ed] to as shanks wrapped with strips of cloth to fashion as a handle” in defendant’s cell while he was awaiting trial. The sharpened metal shanks were hidden in a recessed area on the floor underneath defendant’s bunk. The shanks were six to seven inches long and approximately two inches wide. Only defendant and law enforcement personnel had access to the cell. Defendant later admitted that the shanks were his, but claimed that he possessed them only for protection. 2. Defense Teodora Alvarado, defendant’s mother, testified that she came to the United States in 1975 and left her children, including defendant, with her father in El Salvador. According to Alvarado, El Salvador was “very bad” when defendant was living there. She returned to El Salvador in 1981 after her father was murdered and brought her children to the United States. Alvarado further testified that Sandra Figueroa was a gang member and a liar and introduced defendant to gangs. Before he met Figueroa, defendant had been doing well in school. Finally, Alvarado stated that defendant was always kind to children and was never abusive toward Figueroa. Yolanda Loucel, defendant’s sister, testified that their childhood in El Salvador was marked by constant warfare and killing. Their father used to beat their mother, and guerillas murdered their grandfather in front of defendant. According to Yolanda, defendant joined a gang after he married Figueroa, who was a gang member. She also claimed that defendant was a good father. Guillermo Prieto, defendant’s brother, testified that their father had a drinking problem and abused their mother. According to Guillermo, El Salvador was a violent place, with bullets flying and dead bodies everywhere. He, defendant, and their other siblings left El Salvador with their mother after guerillas murdered their grandfather. Guillermo also testified that he dated Figueroa before she married defendant. Figueroa was a gang member who introduced him and defendant to gangs. He claimed defendant joined a gang to impress Figueroa and that she wanted to get revenge on defendant because he left her. He also believed that Figueroa had been cheating on defendant with Naranjo during their marriage. Finally, Guillermo testified that defendant was not abusive to Figueroa and took good care of their daughter. Hector Loucel, defendant’s brother-in-law, testified that he had known defendant for 10 years and had worked with defendant for six months. According to Hector, defendant was a good and dependable worker. Hector also testified that he trusted defendant with his children and that defendant had always been “a great guy.” James Park, a psychologist and the former Chief of Classification, Administrative Director of Death Row, and Assistant Director of the Department of Corrections for Policy in the California prison system, described the stringent security measures and rigid routines used at a “level four” prison. Based on his review of defendant’s custody records, he opined that defendant would adjust well to prison and “do useful work.” Finally, Richard Hall, a clinical psychologist with a Ph.D. in neuroscience, testified that defendant did not suffer from psychosis or posttraumatic stress disorder and did not have antisocial personality disorder. Defendant did, however, have difficulty making friends because of his reaction to his father’s abuse of his mother and the death of his grandfather. In Hall’s opinion, defendant was not overly aggressive and would adjust well to prison life. 3. Rebuttal In rebuttal, Figueroa testified that she was not a gang member. James Kabler, a Tehachapi State Prison corrections officer assigned to investigate inmate crime, testified that there are serious assaults and murders in level four prisons involving innocent looking items such as combs and toothbrushes. He described one such assault directed at a civilian employee in the prison. Kabler also testified that there had been one escape from the level four facilities at Tehachapi during the past seven years. II. Discussion A. Guilt Phase Issues 1. Insufficiency of the Evidence Defendant contends his conviction on count 10 for raping Woodruff should be reversed because there was insufficient evidence that he and Woodruff were not married. (See § 261 [stating that the rape victim must not be “the spouse of the perpetrator”].) We disagree. “In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-evidence that is reasonable, credible arid of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Kraft (2000) 23 Cal.4th 978, 1053 [99 Cal.Rptr.2d 1, 5 P.3d 68].) Where the marital status of the victim is at issue in a rape case, “[t]he unmarried status of the victim need not be shown by direct evidence [citation], but may be demonstrated by circumstantial evidence where no direct question is asked.” (People v. Smith (1968) 263 Cal.App.2d 631, 636 [69 Cal.Rptr. 670], judg. vacated by In re Smith (1970) 3 Cal.3d 192 [90 Cal.Rptr. 1, 474 P.2d 969].) Although the record contains no direct evidence that defendant and Woodruff were not married to each other, it contains more than enough circumstantial evidence to support such a finding. First, Woodruff was only 15 and had a boyfriend, Angel Marines. Second, Woodruff lived at home with her mother, while defendant lived in an apartment with his girlfriend, Gutierrez. Finally, neither Lisa H., Woodruffs “best friend,” nor Emily D., Lisa H.’s mother, recognized defendant before this incident. Viewed in the light most favorable to the judgment, this evidence supports the jury’s finding that defendant and Woodruff were not married to each other at the time of the alleged rape. 2. Erroneous Admission of Entomological Evidence Defendant contends expert testimony relating to ants and the presence of semen on Woodruff should have been excluded under the Kelly/Frye test for determining the admissibility of scientific evidence. (People v. Kelly (1976) 17 Cal.3d 24 [130 Cal.Rptr. 144, 549 P.2d 1240]; Frye v. United States (D.C. Cir. 1923) 293 Fed. 1013.) According to defendant, the erroneous admission of this testimony warrants reversal of his conviction on count 10 for the rape of Woodruff and the jury’s finding of the rape-murder special circumstance. Even assuming this testimony should have been excluded, we find its admission harmless. a. Facts At trial, the prosecution sought to introduce expert testimony from David Faulkner, an entomologist, who had examined the ants found at the crime scene and photographs of Woodruffs body. In her offer of proof, the prosecutor stated that Faulkner would testify that the ants were probably attracted to a protein source like semen. Claiming that there was no scientific basis for Faulkner’s testimony and that the prejudicial effect of his testimony outweighed its probative value, defendant objected under Evidence Code sections 801 and 352. Defendant also asked the court to conduct a hearing outside the presence of the jury to determine the admissibility of this testimony. The trial court, however, overruled defendant’s objections and refused to conduct a hearing. At the beginning of Faulkner’s testimony, defendant challenged his qualifications. During the ensuing voir dire, Faulkner testified that he was completing a master’s degree in forensic entomology and was the curator of entomology at the San Diego Natural History Museum. Although he had testified as an expert four times in the past and had been involved in 30 or so cases, only two or three of these cases involved ants. He further testified that he had no expertise in “the area of bodily fluids” and had never conducted any experiments with ants and seminal fluid. Faulkner, however, noted that he had once investigated fire ant attacks on baboons. Based on his review of the literature and his discussions with zoo personnel, he had determined that the ants were attracted to seminal fluid from the baboons. Following voir dire, the trial court overruled defendant’s objection to Faulkner’s qualifications. Faulkner then testified that he had investigated ant attacks on zoo animals on several occasions, including one that involved primate seminal fluid. In that case, semen from primates—which is similar to human semen—appeared to attract ants. He then identified the ants from the crime scene as fire ants and, based on photos of Woodruffs body, observed that the ants were concentrated around Woodruffs head and pubic area. Based on these observations, Faulkner opined that the ants in Woodruffs pubic area were likely feeding on semen. Faulkner also stated that the ants could have consumed all the semen in Woodruffs pubic area. b. Discussion The erroneous admission of expert testimony only warrants reversal if “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243] (Watson); see also People v. Venegas (1998) 18 Cal.4th 47, 93 [74 Cal.Rptr.2d 262, 954 P.2d 525] [applying Watson standard to the erroneous admission of expert testimony].) Defendant contends it is reasonably probable the jury would not have convicted him of the rape of Woodruff without Faulkner’s testimony because, without this testimony, the jury would not have found that he had engaged in “an act of sexual intercourse.” (§ 261.) We disagree. Even without Faulkner’s testimony, there was ample evidence of sexual intercourse. This evidence included: (1) fresh abrasions at the entrance of Woodruffs vagina and on her back inflicted just before her death; (2) Woodruffs state of undress from the waist down; (3) Woodruffs physical struggles with defendant as he lay on top of her; (4) Woodruffs statements that defendant was “hurting” her; and (5) bruising of Woodruff s hymen that occurred at most 24 hours before her death. Moreover, the evidence established that defendant and his two cohorts separated the three victims with the intent to rape them, and that his two cohorts did rape their victims. The prosecution also offered alternative explanations for the absence of semen. For example, a forensic pathologist testified that semen rapidly degenerates if the body is not refrigerated. A criminalist also explained that the absence of semen does not necessarily mean that no sexual activity occurred. In light of this evidence, there is no reasonable probability defendant would have obtained a more favorable result absent Faulkner’s testimony. (Watson, supra, 46 Cal.2d at p. 836.) Accordingly, we find no reversible error. 3. Instructional Errors Defendant alleges numerous instructional errors at the guilt phase. The People contend defendant waived these claims because he either failed to object or failed to raise the specific objection presented on appeal before the trial court. These instructional errors, however, are reviewable on appeal to the extent they “affectQ his substantial rights.” (People v. Slaughter (2002) 27 Cal.4th 1187, 1199 [120 Cal.Rptr.2d 477, 47 P.3d 262]; see also § 1259.) Accordingly, we address the merits of defendant’s claims of instructional error below. a. Failure to Limit CALJIC No. 2.15 to Theft Offenses Although the trial court gave the jury the standard version of CALJIC No. 2.15, the court did not limit the instruction to theft-related offenses as suggested by the use note. (See Use Note to CALJIC No. 2.15 (5th ed. 1988) p. 40 [“This instruction will serve to cover the effect of possession of recently stolen property in robbery, burglary, theft and receiving stolen property”].) Instead, the court instructed the jury that: “If you find that a defendant was in conscious possession of recently stolen property, the fact of such possession is not by itself sufficient to permit an inference that the defendant ALFREDO PRIETO is guilty of the crimes charged.” (Italics added.) Defendant contends the application of CALJIC No. 2.15 to defendant’s nontheft offenses-i.e., rape and murder-was improper because it encouraged jurors to draw impermissible inferences favorable to the prosecution and lowered the prosecution’s burden of proof. (See People v. Barker (2001) 91 Cal.App.4th 1166, 1176 [111 Cal.Rptr.2d 403] (Barker).) The People counter that Barker was wrongly decided and that the permissive inference described in CALJIC No. 2.15 may be applied to nontheft offenses. We find Barker persuasive and hold that the trial court’s application of CALJIC No. 2.15 to nontheft offenses like rape or murder was improper. We, however, find this instructional error harmless. Initially, we reject defendant’s contention that the trial court’s instruction mandates reversal because it lowered the prosecution’s burden of proof. CALJIC No. 2.15 did not directly or indirectly address the burden of proof, and nothing in the instruction absolved the prosecution of its burden of establishing guilt beyond a reasonable doubt. Moreover, other instructions properly instructed the jury on its duty to weigh the evidence, what evidence it may consider, how to weigh that evidence, and the burden of proof. In light of these instructions, there is “no possibility” CALJIC No. 2.15 reduced the prosecution’s burden of proof in this case. (Barker, supra, 91 Cal.App.4th at p. 1177.) Nonetheless, we agree with defendant that the trial court’s application of CALJIC No. 2.15 to nontheft offenses like rape or murder was erroneous. We have approved the use of CALJIC No. 2.15 with respect to theft offenses because, “[w]ith the inference from the knowledge and conscious possession of [stolen] property, and slight additional evidence as corroboration, the intent to steal, identity, and the determination a defendant committed the acts necessary to constitute robbery and burglary have been found to naturally and logically flow . . . .” (Barker, supra, 91 Cal.App.4th at p. 1176, fn. 6.) The same is not true for nontheft offenses like rape or murder. As explained in Barker, “[p]roof a defendant was in conscious possession of recently stolen property simply does not lead naturally and logically to the conclusion the defendant committed” a rape or murder. (Id. at p. 1176.) We therefore find the trial court’s inclusion of nontheft offenses like rape and murder in CALJIC No. 2.15 erroneous. This error, however, was not prejudicial because there was no reasonable likelihood the jury would have reached a different result if the court had limited the permissive inference described in CALJIC No. 2.15 to theft offenses. (See Watson, supra, 46 Cal.2d at p. 836.) Both surviving victims identified defendant on numerous occasions as the man who sexually assaulted and murdered Woodruff, and Sorian and Estrada as the men who raped them. Their unrebutted testimony also established that the murder was committed in the course of the robberies, kidnapping, and rapes. Given this overwhelming evidence of defendant’s guilt on the nontheft offenses, no prejudicial error could have occurred. (See Barker, supra, 91 Cal.App.4th at p. 1176.) b. Erroneous Conspiracy Instructions Although the prosecution did not charge defendant with conspiracy, it alleged conspiracy as one of the theories of liability for counts 1 through 14. The trial court therefore gave various conspiracy instructions. In instructing the jury on the vicarious liability of a conspirator for the acts of a coconspirator, the trial court used a number of standard conspiracy instructions, including CALJIC Nos. 6.11, former 6.15, 6.16 and 8.26. The trial court did not, however, include CALJIC No. 6.25—which required the jury to agree unanimously on the crimes defendant conspired to commit—and CALJIC No. 6.26—which contained the verdict form for such a jury finding—presumably because the information did not separately charge defendant with conspiracy. According to defendant, this omission constitutes reversible error because the jury could have convicted defendant under a conspiracy theory even if the crime was not a natural and probable consequence of the conspiracy. Defendant, however, misreads the instructions given by the trial court. Contrary to defendant’s assertions, the instructions correctly informed the jury that a conspirator may be vicariously liable for a crime committed in furtherance of a conspiracy only if that crime was a natural and probable consequence of the conspiracy. CALJIC No. 6.11, as given by the trial court, states in relevant part: “You [the jury] must determine whether the defendant is guilty as a member of a conspiracy to commit the crime originally contemplated, and, if so, whether the crimes alleged were a natural and probable consequence of the originally contemplated criminal objective of the conspiracy.” As defendant concedes, this instruction properly informed the jury that it could not find defendant guilty under a conspiracy theory if the charged crime was not the natural and probable consequence of the conspiracy. Neither CALJIC former No. 6.15 nor CALJIC No. 6.16 contradicts CALJIC No. 6.11 or suggests otherwise. Likewise, CALJIC No. 8.26—which defines a defendant’s liability for killings in furtherance of a conspiracy—correctly states the law and does not suggest that a conspirator may be guilty of a charged crime if that crime was not a natural and probable consequence of the conspiracy. Thus, the instructions did not contain “varying and irreconcilable standards.” Even assuming the instructions were erroneous, defendant shows no prejudice. According to defendant, the alleged instructional error requires reversal because the jury had no way of knowing how to limit his liability if it found that he had left the car before the rapes and murder and had withdrawn from the conspiracy. Defendant, however, does not explain how the alleged error could have confused the jury on that point. Indeed, the court instructed the jury with CALJIC No. 6.20—which correctly defined the limitations on liability for conspirators who withdraw from the conspiracy. Finally, the jury necessarily concluded that defendant did not leave the car before the rapes and murder because it found that defendant personally used a firearm in murdering Woodruff. Accordingly, we find no reversible error. c. Failure to Identify and Require Juror Unanimity as to Specific Overt Acts Defendant contends the trial court erred by failing to instruct the jury that it had to agree unanimously on specific overt acts in order to find him guilty under a conspiracy theory and by failing to identify the alleged overt acts. We recently rejected these contentions in People v. Russo (2001) 25 Cal.4th 1124, 1135 [108 Cal.Rptr.2d 436, 25 P.3d 641]. As we explained, “[disagreement as to who the coconspirators were or who did an overt act, or exactly what that act was, does not invalidate a conspiracy conviction, as long as a unanimous jury is convinced beyond a reasonable doubt that a conspirator did commit some overt act in furtherance of the conspiracy.” (Ibid.) As conceded by defendant, the trial court properly defined overt acts for the jury. Accordingly, defendant’s contention fails. d. Failure to Give CAUIC No. 6.24 During the trial, numerous hearsay statements from defendant’s alleged coconspirators were admitted into evidence without objection. Because the jury could not consider these statements before making some preliminary findings, defendant contends the trial court erred by omitting CALJIC No. 6.24, which describes the criteria for considering a coconspirator’s hearsay statements. “Assuming the court had a sua sponte duty to so instruct the jury under these circumstances,” the error was harmless. (People v. Sully (1991) 53 Cal.3d 1195, 1231 [283 Cal.Rptr. 144, 812 P.2d 163].) Even if the jury had not considered the few hearsay statements defendant identified, it is not reasonably probable the jury would have reached a different result. (See id. at pp. 1231-1232.) In any event, the evidence overwhelmingly established that these hearsay statements were made during and in furtherance of a conspiracy to rob, kidnap, and rape the three victims. Accordingly, no prejudicial error occurred. e. Failure to Instruct on Target Offenses for Natural and Probable Consequences Rule With respect to the “crimes charged,” the trial court instructed the jury that defendant could be found guilty if the charged crime was the natural and probable consequence of another crime that he intentionally aided and abetted. Defendant contends the court erred by failing to identify and define the target offenses that could have led to the charged crimes. We, however, find any such error to be harmless. “In People v. Prettyman (1996) 14 Cal.4th 248 [58 Cal.Rptr.2d 827, 926 P.2d 1013], we held that instructions on the ‘natural and probable consequences’ rule are required only when the prosecution has elected to rely on that theory of accomplice liability, and then, only when substantial evidence supports the theory. When the instruction is given, however, it should identify and define any target offenses allegedly aided and abetted by the defendant. [Citation.]” (People v. Sakarias (2000) 22 Cal.4th 596, 627 [94 Cal.Rptr.2d 17, 995 P.2d 152].) If the court fails to identify and define these target offenses, we must then determine whether there is a “ ‘reasonable likelihood’ that the jury misapplied the trial court’s instructions on the ‘natural and probable consequences’ doctrine . . . .” (Prettyman, at p. 272.) In this case, any failure to identify and define the target offenses was harmless error. The prosecution argued, and the evidence established, that defendant personally robbed Lisa H., kidnapped the three women, and sexually assaulted and murdered Woodruff. In personally committing these offenses, defendant necessarily aided and abetted the crimes committed by Lopez, Sorian, and Estrada. In any event, there was no evidence defendant “aided and abetted any noncriminal behavior which led, as a ‘natural and probable consequence,”’ to the crimes committed by his cohorts, “and neither the prosecution nor the defense mentioned any such behavior in their closing arguments to the jury.” (People v. Prettyman, supra, 14 Cal.4th at p. 273.) Under these circumstances, there is no reasonable likelihood the trial court’s failure to identify the target offenses caused “the jury to misapply the ‘natural and probable consequences’ doctrine” (ibid.), and no reasonable probability defendant would have obtained a more favorable outcome absent the alleged instructional error (see id. at p. 274). f. Erroneous Instruction Regarding Completion of a Robbery The trial court instructed the jury with the fifth edition version (1988) of CALJIC No. 9.44. The instruction stated in relevant part that: “A robbery is still in progress after the original taking of physical possession of the stolen property while the perpetrator is in possession of the stolen property and fleeing in an attempt to escape, [f] A robbery is complete when the perpetrator has eluded any pursuers, has reached a place of temporary safety, and is in unchallenged possession of the stolen property after having effected an escape with such property.” As the People concede, the instruction was erroneous “because it could have misled the jury into believing that commission of a robbery continues during the escape to a place of temporary safety even if the loot is not being carried away contemporaneously.” (People v. Cooper (1991) 53 Cal.3d 1158, 1170 [282 Cal.Rptr. 450, 811 P.2d 742].) Assuming the instructional error affected “an element of the offense” (see id. at p. 1171), it was harmless beyond a reasonable doubt. In this case, defendant, Sorian, and Lopez simultaneously robbed or attempted to rob three separate victims and then drove off with the loot together. Even though Lopez did leave the car at some point and may have left with some of the loot, the initial “act of carrying away the loot to a place of temporary safety did in fact coincide with the escape.” (Ibid.) On these facts, the jury undoubtedly found that defendant formed the intent to facilitate or encourage the commission of the robberies “prior to or during the act of carrying away the loot to a place of temporary safety.” (Ibid.) Accordingly, the instructional error does not warrant the reversal of any of defendant’s convictions. g. Failure to Instruct on Element of Willful, Deliberate and Premeditated Attempted Murder Defendant contends the trial court erred when it failed to instruct the jury that he was guilty of willful, deliberate, and premeditated attempted murder (§§ 664, 187) as an aider and abettor only if he personally acted with willfulness, deliberation, and premeditation. The People counter that an aider and abettor is guilty of willful, deliberate, and premeditated attempted murder even if he did not personally deliberate or premeditate. We, however, need not resolve this question. Even if we assume the trial court erred by failing to so instruct, reversal is not warranted because the error was harmless under both the federal and state standards. In this case, the evidence overwhelmingly established that defendant “weigh[ed] and considered] the question of killing” before deciding to aid and abet the attempted murders. Defendant drove his cohorts and the women to an empty field, where each man raped one of the women. His cohorts carried knives with them, and the jury found that defendant personally used a firearm while sexually assaulting and murdering Woodruff. After defendant shot and killed Woodruff, his two cohorts stabbed Emily D. and Lisa H. During the stabbings, defendant asked Estrada, “Did you stab her in the back of the neck?” In light of this evidence, there is no reasonable doubt the jury would have found that defendant personally acted with willfulness, deliberation, and premeditation once it rejected his claims that he either left the car or was home during the attacks. Accordingly, any omission in the instructions, even if erroneous, was harmless under both Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17 L.Ed.2d 705, 24 A.L.R.3d 1065], and Watson, supra, 46 Cal.2d at page 836. h. CALJIC No. 2.51 The trial court instructed the jury with the fifth edition version of CALJIC No. 2.51, which stated in relevant part that: “Presence of motive may tend to establish guilt. Absence of motive may tend to establish innocence.” Defendant contends this instruction impermissibly shifted the burden of proof even though the court gave CALJIC No. 2.90, because the phrase “tend to establish innocence” implied that defendant had the burden of establishing his innocence. We disagree. “CALJIC No. 2.51 [does] not concern the standard of proof. . . but merely one circumstance in the proof puzzle-motive.” (People v. Estep (1996) 42 Cal.App.4th 733, 738 [49 Cal.Rptr.2d 859].) “[T]he instruction merely uses innocence as a direction signal or compass. It does not tell the jurors they must find innocence, nor does it lighten the prosecution’s burden of proof, upon which the jury received full and complete instructions.” (People v. Wade (1995) 39 Cal.App.4th 1487, 1497 [46 Cal.Rptr.2d 645].) Thus, no reasonable juror would misconstrue CALJIC No. 2.51 as “a standard of proof instruction apart from the reasonable doubt standard set forth clearly in CALJIC No. 2.90.” (Estep, at p. 739.) Accordingly, the instruction did not violate defendant’s right to due process. i. Erroneous Omission of CALJIC No. 17.20.1 In counts 10 and 11—which charged defendant with the forcible rape (§261, subd. (2)) and attempted forcible rape (§§261, subd. (2), 664) of Woodruff—the information alleged that defendant inflicted great bodily injury in the commission of rape (§ 12022.8). To instruct the jury on this enhancement, the trial court gave CALJIC No. 17.20, which stated in relevant part that: “ ‘Great bodily injury’ as used in this instruction means a significant or substantial physical injury. Minor or moderate injuries of a temporary nature do not constitute great bodily injury and are not sufficient.” Citing the Use Note to CALJIC No. 17.20—which calls for the use of CALJIC No. 17.20.1 “in the prosecution of forcible rape” (Use Note to CALJIC No. 17.20 (5th ed. 1988) p. 455)—defendant contends the trial court, by using CALJIC No. 17.20 instead of CALJIC No. 17.20.1, failed to inform the jury that the great bodily injury enhancement requires “ ‘substantial or significant injury “in addition to that which must be present in every case of rape”’” (People v. Escobar (1992) 3 Cal.4th 740, 746 [12 Cal.Rptr.2d 586, 837 P.2d 1100]). According to defendant, this instructional error constitutes federal constitutional error under Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi), and was not harmless beyond a reasonable doubt. Even assuming the trial court erred and Apprendi controls, we find the error harmless. In this case, the jury found that defendant personally used a firearm and murdered Woodruff in the commission of rape. Because death, by definition, constitutes a “ ‘substantial or significant injury’ ” apart from those injuries present in every rape (People v. Escobar, supra, 3 Cal.4th at p. 746), any instructional error was harmless beyond a reasonable doubt. j. Erroneous Murder Instruction When the trial court read CALJIC No. 8.10—which defined murder—to the jury, it misread the instruction. Instead of stating that “[e]very person who unlawfully kills a human being during the commission or attempted commission of a robbery, kidnapping or rape or with malice aforethought is guilty of the crime of murder” the court mistakenly told the jury that a person is guilty of murder if he “unlawfully kills a human being during the commission or attempted commission of a robbery, kidnapping, or rape with malice aforethought.'” Defendant contends the trial court’s misreading of this instruction was prejudicial and warrants reversal of his murder conviction. Defendant is wrong. First, we recently held that the misreading of a jury instruction does not warrant reversal if the jury received the correct written instructions. (People v. Box (2000) 23 Cal.4th 1153, 1212 [99 Cal.Rptr.2d 69, 5 P.3d 130].) Although defendant urges us to reconsider, we see no reason to do so. Second, the court’s misreading could only have benefited defendant because it narrowed the elements of murder. Accordingly, any error was harmless beyond a reasonable doubt. (See Chapman v. California, supra, 386 U.S. at p. 24 [87 S.Ct. at p. 828].) k. Erroneous Felony-murder Special-circumstance Instructions With respect to the felony-murder special-circumstance allegations, the trial court gave a separate instruction based on CALJIC No. 8.81.17 for each allegation. Each instruction was virtually identical and stated in relevant part that: “To find . . . the special circumstance . . . to be true, it must be proved: [If] 1. The murder was committed while the defendant was engaged in the commission or attempted commission of [the specified felony]; or [|] 2. The murder was committed during the immediate flight after the commission or attempted commission of [the specified felony] by the defendant; or [f] 3. The murder was committed in order to carry out or advance the commission of the crime of [the specified felony] or to facilitate the escape therefrom or to avoid detection.” Defendant contends the instruction’s use of the disjunctive “or” (italicized above) rather than the conjunctive “and” was erroneous and is reversible per se. In the alternative, defendant contends the error was not harmless because the jury could have found the special circumstances to be true without finding that defendant committed the murder in furtherance of the robberies, kidnapping, or rapes. (See People v. Green (1980) 27 Cal.3d 1, 61 [164 Cal.Rptr.2d 1, 609 P.2d 468], overruled on other grounds by People v. Hall (1986) 41 Cal.3d 826, 734, fn. 3 [226 Cal.Rptr. 112, 718 P.2d 99] and People v. Martinez (1991) 20 Cal.4th 225, 236-237 [83 Cal.Rptr.2d 533, 973 P.2d 512] [to find true a felony-murder special circumstance, the jury must find that the defendant committed the murder “in order to advance an independent felonious purpose”].) Although we agree that the instruction was defective, we find the error harmless beyond a reasonable doubt. As an initial matter, we reject defendant’s contention that the error is reversible per se, even though a recent United States Supreme Court decision has partially undermined People v. Odle (1988) 45 Cal.3d 386 [247 Cal.Rptr. 137, 754 P.2d 184], In Odle, we held that “there is no right under the Sixth or Eighth Amendments to the United States Constitution to have a jury determine the existence of all of the elements of a special circumstance.” (Id. at p. 411.) This holding is now erroneous after Ring v. Arizona (2002) 536 U.S. 584, 609 [122 S.Ct. 2428, 2443, 153 L.Ed.2d 556], which held that a jury—and not a judge—must find an “aggravating circumstance necessary for imposition of the death penalty.” Ring did not, however, undermine the core holding of Odie—that an erroneous instruction that omits an element of a special circumstance is subject to harmless error analysis pursuant to Chapman v. California, supra, 386 U.S. 18. Because “the omission of an element [of a substantive offense] is an error that is subject to harmless-error analysis” under Chapman (Neder v. United States (1999) 527 U.S. 1, 15 [119 S.Ct. 1827, 1837, 144 L.Ed.2d 35]), by analogy, the erroneous omission of an element of a special circumstance is still subject to that same analysis, notwithstanding Ring. We therefore review this instructional error under a harmless beyond a reasonable doubt standard. In this case, “there was no evidence that reasonably or rationally suggests that” defendant committed the robberies, kidnappings, or rapes in order to carry out or advance the murder. (People v. Williams (1994) 30 Cal.App.4th 1758, 1763 [37 Cal.Rptr.2d 128].) Defendant and his cohorts were in the midst of robbing Rangel when the three women drove up. After seeing the women, they let Rangel go and robbed the women. They then kidnapped the women and took them away in one of the victim’s cars. No evidence suggests that defendant or his cohorts intended to murder Woodruff at the time they formed the intent to rob and kidnap the women or that the robberies and kidnappings were incidental to the murder. Rather, the evidence strongly suggests that defendant committed the murder in order to advance the robberies and kidnappings or “to facilitate the escape therefrom or to avoid detection.” Indeed, Sorian’s promise during the kidnappings that they would not hurt the women arguably suggests that defendant and his cohorts did not have the intent to commit murder before they had the intent to commit robbery and kidnapping. Later, defendant and his cohorts took the women to an empty field where they raped them. Defendant then shot and killed Woodruff. At best, this evidence suggests that defendant developed the intent to kill Woodruff and the intent to rape her at the same time. (People v. Mendoza (2000) 24 Cal.4th 130, 182 [99 Cal.Rptr.2d 485, 6 P.3d 150] [concurrent intent to kill and commit a felony supports a felony-murder special-circumstance finding].) Thus, the evidence shows that defendant committed the murder to advance the rape or to facilitate his escape or to avoid detection—and did not commit the rape to further the murder. Accordingly, “the failure to give CALJIC No. 8.81.17 in the conjunctive was harmless” beyond a reasonable doubt. (Williams, at p. 1764.) 1. Erroneous Kidnapping-murder Special-circumstance Instruction Although the information only charged defendant with kidnapping for robbery (§ 209), the trial court instructed the jury on the lesser included offense of kidnapping (§ 207) and informed the jury that kidnapping was a general intent offense. In its instruction on the elements of the kidnapping-murder special circumstance, the court referred only to “kidnapping,” and not “kidnapping for robbery.” Because kidnapping is a general intent crime and because the kidnapping-murder instruction did not require the jury to find that defendant committed the murder in furtherance of the kidnapping, defendant contends the special circumstance instruction did not require the jury to find that defendant had the specific intent to commit kidnapping. According to defendant, this error warrants reversal because the jury could have found the special circumstance to be true without finding that defendant intended to kidnap the three women. Even assuming error, it was harmless beyond a reasonable doubt. (See ante, at pp. 256-257 [erroneous special-circumstance instruction is subject to Chapman].) The uncontroverted evidence established that defendant forced the three women at gunpoint into the backseat of a car and then drove off with them. The jury convicted defendant of kidnapping for robbery and necessarily found that defendant kidnapped the victims with the specific intent to rob them. In her closing argument, the prosecutor expressly argued that defendant had a “very specific intent to kidnap.” Defendant never challenged this argument in his closing. In light of this evidence, the jury’s findings, and the closing arguments, there is no possibility the jury would have found that defendant lacked the specific intent to commit the kidnappings. Accordingly, any instructional error is harmless beyond a reasonable doubt. m. Erroneous Instruction Regarding Documentary Proof Introduced Under Section 969b At trial, the prosecution introduced a certified copy of defendant’s prison records pursuant to section 969b as evidence of defendant’s prior serious felony conviction. Defendant did not object to the admission of these records, but did object to the trial court’s instruction that: “If you are satisfied with the records, no other evidence or testimony is necessary to prove that a person being tried for a crime has been previously convicted of a felony other than the 969b records or copies of records of any state penitentiary when such records have been certified by the official custodian of those records.” Defendant contends the instruction was defective because it created a mandatory and irrebuttable presumption that defendant had a prior felony conviction. We disagree. “As a practical matter, . . . prior convictions are normally proven by the use of documentary evidence alone.” (People v. Keating (1981) 118 Cal.App.3d 172, 183 [173 Cal.Rptr. 286].) “Once the prosecutor presents this prima facie evidence of conviction, the trial court is allowed to make reasonable inferences from the facts presented. If there is no evidence to the contrary, the trial court may consider the abstract and the facts of the particular case, and utilizing the official duty presumption, find a defendant was convicted of and served the term of imprisonment for the listed felony.” (People v. Haney (1994) 26 Cal.App.4th 472, 475-476 [31 Cal.Rptr.2d 547].) In this case, the instruction given by the trial court correctly stated the law. The instruction properly informed the jury that the section 969b records were sufficient, by themselves, to prove that defendant had been previously convicted of a felony. (See People v. Keating, supra, 118 Cal.App.3d at p. 183.) The instruction also expressly required the jury to be “satisfied with the records” before relying on them. Contrary to defendant’s assertions, nothing in the instruction required the jury to find that defendant had a prior felony conviction. At most, the instruction permitted the jury to infer that defendant had a prior felony conviction if it was satisfied with the contents of the section 969b records. As such, it did not relieve the prosecution of its burden of persuasion (see People v. Mendoza, supra, 24 Cal.4th at p. 180), and we find no error. * 4. Prosecutorial Misconduct Defendant contends his convictions should be reversed because the prosecutor committed misconduct when she implied to the jury that she was precluded from presenting certain evidence in rebuttal. Like the trial court, we reject his contention. a. Facts After the defense rested, the prosecutor informed the court out of the presence of the jury that she intended to recall Detective Hopley. Defendant objected, and the trial court, after hearing the offer of proof, excluded the proffered testimony. The prosecutor then indicated that she had no other rebuttal witnesses. When the jury returned, the trial court informed the jury that there would be no rebuttal and asked the prosecutor, “[d]o you have any other witnesses you wish to present?” The prosecutor replied, “[ojnly Detective Hopley, your honor. I have no other witnesses.” Defendant then moved for a mistrial and argued that the prosecutor’s reference to Detective Hopley constituted reversible misconduct. The prosecutor responded that she was surprised by the court’s question and did not intend to mislead the jury. The trial court denied defendant’s motion for a mistrial and refused to cite the prosecutor for contempt. b. Discussion We begin by finding that defendant has waived the claim. “As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.” (People v. Samayoa (1997) 15 Cal.4th 795, 841 [64 Cal.Rptr.2d 400, 938 P.2d 2].) Although defendant made an assignment of misconduct and suggested that the trial court hold the prosecutor in contempt, he did not request an admonition. Because an admonition would have cured any prejudice from the alleged misconduct, he cannot raise this claim on appeal. (People v. Silva (2001) 25 Cal.4th 345, 373 [106 Cal.Rptr.2d 93, 21 P.3d 769].) Defendant’s claim of prosecutorial misconduct also fails on the merits. “ ‘A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ” (People v. Gionis (1995) 9 Cal.4th 1196, 1214 [40 Cal.Rptr.2d 456, 892 P.2d 1199].) “ ‘Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ”” ” (People v. Ochoa (1998) 19 Cal.4th 353, 427 [79 Cal.Rptr.2d 408, 966 P.2d 442].) Finally, “when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Samayoa, supra, 15 Cal.4th at p. 841.) Here, the prosecutor’s brief reference to an excluded witness in response to an unexpected question did not constitute an egregious pattern of misconduct and did not infect the trial with unfairness. (See People v. Gionis, supra, 9 Cal.4th at p. 1214.) Even assuming the alleged misconduct involved the use of “ ““ “deceptive or reprehensible methods” ”” ” (People v. Ochoa, supra, 19 Cal.4th at p. 427), there appears to be no reasonable likelihood that the jury applied the prosecutor’s inadvertent remark “in an objectionable fashion,” and nothing in the record suggests otherwise (People v. Samayoa, supra, 15 Cal.4th at p. 841). Accordingly, defendant’s claim of prosecutorial misconduct fails. 5. Ineffective Assistance of Counsel Defendant contends his counsel was ineffective, in violation of the Sixth Amendment of the United States Constitution and article I, section 15 of the California Constitution. In support, defendant cites: (1) defense counsel’s refusal to take a position on instructions for lesser included offenses and decision to rely on the trial court’s sua sponte duty to give such instructions; (2) defense counsel’s erroneous contention that rape was not a general intent offense and subsequent acknowledgment of his error; (3) defense counsel’s withdrawal of his objection to CALJIC No. 6.20 because he could not remember the grounds for the objection; and (4) defense counsel’s refusal to elaborate on his objection to CALJIC No. 8.80.1. As explained below, defendant’s contention lacks merit. The standards for ineffective assistance of counsel claims are well established. “We presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions.” (People v. Holt (1997) 15 Cal.4th 619, 703 [63 Cal.Rptr.2d 782, 937 P.2d 213].) To establish a meritorious claim of ineffective assistance, defendant “must establish either: (1) As a result