People v. King (183 Cal. App. 4th 1281, 2010)

Opinion

JOHNSON, J.

Ian M. King, an officer with the Los Angeles School Police Department (LASPD), made a traffic stop late one night in early May 2007. Nicole D., the young woman driving the car King pulled over, had made an illegal U-tum. After ascertaining that Nicole was lost and uninformed about how police patdown searches should be conducted, King proceeded to conduct a full body search of the woman, including reaching inside her bra to “massage” her breasts, and digitally penetrating her vagina with each of his hands. This “search” was conducted on a public sidewalk, while King held both of Nicole’s laced hands behind her back with one of his own. The entire search was conducted under the ruse that King needed to perform a field sobriety test on 21-year-old Nicole, who told him she had had one beer earlier, and that King also had to search Nicole’s clothes and body for drugs and weapons. Nicole never said “no” to King, and did not try to leave or tell him to stop the search; she was afraid and did not know she could.

Marilyn E., a stranger to both King and Nicole, happened to drive by. She looked down a side street, where she saw a police officer arresting a young woman. The officer was using one of his hands to hold the woman’s hands behind her back. His other hand was underneath the woman’s dress. Troubled by what she saw, Marilyn circled back and drove by the scene, where she saw the officer still engaged in the same activity. Shortly thereafter, Marilyn and Nicole made independent 911 calls to report the incident. Each woman identified King as Nicole’s assailant. King was tried and convicted on five counts of sexual assault.

On appeal, King contends (1) he received ineffective assistance of counsel; (2) the trial court denied him the right to cross-examine witnesses, and failed properly to instruct the jury; (3) the evidence was insufficient to justify the guilty verdicts; and (4) the sentence imposed was unconstitutional and illegal. We affirm.

Procedural background

An information charged King with sexual battery by restraint (Pen. Code, § 243.4, subd. (a); count 1), unlawful genital penetration by a public official by threat of arrest or incarceration (§ 289, subd. (g); counts 2 & 4), and unlawful sexual penetration accomplished by force or duress (§ 289, subd. (a)(1); counts 3 & 5). King pleaded not guilty.

A jury convicted King on all five counts. King filed extensive posttrial motions seeking a new trial or acquittal. The motions were opposed, and a lengthy evidentiary hearing was conducted. Ultimately, the motions were denied.

The court denied probation, and sentenced King to 20 years in state prison: the upper term of eight years on count 3, as the base count, plus the upper term of four years on count 1 (to run consecutively to count 3), plus the upper term of eight years on count 5 (to run consecutively to counts 1 and 3). The sentences on counts 2 (upper term of eight years) and 4 (upper term of eight years) were stayed pursuant to section 654. King was ordered to pay certain fines and fees, and to register as a sex offender pursuant to section 290.

Prosecution case

1. The charged offenses

In May 2007, Nicole was 21 years old. She lived with her parents in Orange County, where she attended college full time. On May 2, 2007, Nicole drove her parents’ black Mercedes to Los Angeles about 8:00 p.m., for a date with David Gelb, whom she had been dating for about three months. They went out for dinner, during which Nicole drank one beer. After dinner, Nicole and David went to visit some friends, and stayed until midnight. Nicole drank one more beer during that visit.

Nicole and David went back to his neighborhood. He dropped Nicole off at her car, and she headed home by 1:00 a.m. She drove down La Brea to the Santa Monica (10) Freeway, but the eastbound on-ramp was closed. Nicole turned her car around, “got a little lost,” and made an illegal U-turn. She was unfamiliar with the area, and did not know what street she was on. As she drove, Nicole noticed that a police car had begun to follow her. She became nervous. She drove back onto La Brea intending to take the westbound 10 freeway, then exit and get back on the freeway and head east when she could. As she entered the westbound on-ramp, Nicole saw that all eastbound lanes were closed, and exited at La Brea again. She drove south on La Brea, and turned on Adams. The police car was still following her.

Nicole did not see any open businesses where she could stop to ask for directions. She made an unlawful U-tum into the parking lot of a small grocery store. The police car followed her into the lot. As Nicole exited the lot, she made “direct eye contact” with the driver of the police car. As Nicole drove back onto Adams, the officer turned on the flashing lights on his car, and pulled her over. He directed Nicole to drive forward and turn right at the next street or driveway, as he did not want to block traffic. Nicole made a right-hand turn at the next street, and parked at the curb. The officer, who was working alone, parked his patrol car at a staggered angle behind Nicole’s.

Nicole was nervous. The officer asked Nicole if she was lost, and if she was from the area. She told him she was not. He asked why she was there. Nicole said she had been on a date with her boyfriend. The officer told Nicole she had made an illegal U-turn, and that he had run her plates. He asked Nicole for her I.D. Nicole handed him her driver’s license, which he stuck into his belt. The officer was wearing a police uniform, with a badge and a name tag that said “King.” At trial, Nicole identified appellant Ian King as the officer who had pulled her over early on the morning of May 3, 2007. Nicole believed King was an officer with the Los Angeles Police Department (LAPD).

King asked Nicole if she had been drinking. She said she had had one beer. Nicole had actually had two beers that evening—one at 9:00 p.m. and one at 11:00 p.m. Nicole did not tell King about the beer she had at dinner because she believed that alcohol had since been absorbed into her system. She was a little concerned that she had just turned 21 and had had beer, and that made her nervous about the situation in which she found herself. Nicole did not feel intoxicated.

King told Nicole he would have to perform a field sobriety test (FST). He went back to his patrol car for one or two minutes, leaving Nicole feeling “[s]cared and nervous.” At one point, he pointed a spotlight at her. At trial, Nicole could not recall if the light bar on top of the police car or its headlights were on. She assumed King had a gun, but never saw one.

When King returned, he told Nicole to get out of her car, and had her stand on the sidewalk facing a building, with her back to the street. Nicole was wearing a dress that fell above her knees, a vest and leather jacket. King asked if Nicole had any weapons; she said no. He asked her to open her jacket so he could be sure. She did. He checked the pocket of her jacket and found a cell phone. At that moment, Nicole’s boyfriend called. She silenced the phone and put it back in her pocket.

King told Nicole he was going to “pat [her] down to make sure [she] didn’t have any drugs or weapons.” Before he began, King asked Nicole if she had “ever been searched by the LAPD before.” She told him she had not. Nicole did not remember whether she told King he could pat her down, but she testified she “would have allowed a police officer to check [her] for weapons if that’s what they wanted to do.” She explained that’s “just how [she] was raised, to just listen to authority, especially police officers, given [her] culture and religion.” Nicole is Filipino and Catholic, and attended Catholic school for 13 years.

Nicole is five feet two inches, and weighs 107 pounds. King is five feet 11 inches, and weighs 200 pounds. King told Nicole to put her hands behind her back and interlace her fingers. King stood behind and slightly to the side of Nicole. He held both her hands behind her back with one of his hands as he began to pat her down. He maintained that stance and hold throughout the search. King began patting over the top of Nicole’s clothes. At some point he “hit the wire area. Hit the bra.” Nicole told him it was the underwire in her bra; King asked if he could check her breasts. Nicole did not know whether police officers were allowed to do such things. However, she did not feel as if she had a choice, and was not comfortable challenging or questioning King. She said yes.

King put his hand inside Nicole’s bra. He began using a sort of “cupping massaging type . . . motion” on each breast, using both hands intermittently. Nicole estimated that King touched her breasts for about a minute in total. As King touched her breasts, Nicole “was hop[ing she] didn’t get in trouble . . . [b]ecause [she] had had a beer at eleven o’clock.” Nicole was uncomfortable and concerned that what King was doing “was really not okay,” but she did not feel free to say no.

After he stopped touching her breasts, King reached around behind Nicole, over her clothes, to “check[] [her] panty line,” then reached up inside her dress and began patting the skin in the area of her stomach. King then moved his hand down toward Nicole’s panties and put his hand on top of her pubic bone and vagina, outside of her underwear. Nicole stood still. King then asked Nicole if it was “okay to search and [she] said it was okay.” Nicole was uncomfortable and afraid. King then asked Nicole “if it was okay to search [her] vagina for drugs.” She said “sure.” King inserted a finger or two into Nicole’s vagina, and began what felt like a “patting” or “digging” motion around the inside and entirety of Nicole’s vagina. King used both hands at alternate times. While King was engaged in this activity, Nicole asked him if “people hide drugs in their vagina?” He said, “Yeah, people hide balloons.”

At one point while King had his fingers inside her vagina, some lights passed by, which Nicole assumed belonged to a car. King removed his fingers. Nicole testified that King “kind of looked around. And he looked uneasy. But after the car passed by, he reinserted his fingers in [her] vagina and resumed searching” with his other hand. Nicole estimated that King’s fingers were inside of her for about 30 to 45 seconds before the lights passed by, and then an additional 25 to 30 seconds after he reinserted them, for a total of about “a minute, a minute and a half.”

After King removed his fingers he asked Nicole “if he could look inside of [her] vagina.” Nicole did not know why she did this, but for some reason she began to lift her dress. Just then she saw lights, and another car passed by. For some reason, King decided not to peer inside Nicole’s vagina. Instead, he searched her jacket pocket again, and recovered a mint wrapper.

King then conducted a “Horizontal Gaze Nystagmus” FST. King held a pen and a flashlight in one hand, which he waved from left to right, telling Nicole to follow with her eyes. When that test was done, Nicole asked King to show her to the freeway. He asked her, “How do you know I’m not going to arrest you or give you a ticket?” Nicole “stood there, hoping that he wouldn’t give [her] a ticket with like a kind of a pleading look.” She assumed she would not get a ticket because she was clearly not drunk and had no drugs. King said he would not give Nicole a ticket and agreed to lead her to the freeway. Reading the tag on his uniform, Nicole said, “Thank you, Officer King, for not giving me a ticket.” King returned Nicole’s driver’s license, and drove behind her, directing her to the freeway entrance. At that point, Nicole was no longer afraid and did not think King would attack her or follow her home. King never searched Nicole’s car or purse.

Once Nicole saw that King was not following her, she got off the freeway, and called her boyfriend for help with directions. Nicole was “upset and still scared because . . . [she] was lost.” She told David she had been pulled over and searched, but had not been given a ticket. Nicole did not disclose the details of what had happened with King because it “was kind of awkward,” she “was embarrassed above all,” and she and David had only been dating a short while.

Nicole then called her best friend, Jennifer Pablo, one of the people with whom she and David had spent time earlier that evening, and who was still with their other friends at the apartment they had visited. Nicole told Jennifer she had been pulled over, had been given a sobriety test and “got asked to be searched.” Jennifer asked Nicole to explain what she meant by “searched.” Nicole said: “ ‘Well, actually, I wanted to ask you guys’ . . . ‘this cop put his hands inside my vagina. I don’t know if that was okay.’ ” Concerned, Jennifer immediately put the call on speakerphone so Nicole’s other friends could hear. Another friend told Nicole what had happened to her was inappropriate, and she should report it; Nicole agreed to report the incident. At 1:38 a.m., Nicole called 411 for the LAPD number, and her call was transferred to 911. A tape of that call played at trial reflects Nicole reported that, she had just been “ ‘stopped for a traffic incident and a police officer put his hands in [her] vagina and [she] need[ed] to know if this is okay or not.’ ”

At 1:45 a.m., Nicole was put in touch with LAPD Sergeant Ed Clark, whom she told about the incident with King. Nicole was interviewed by police officers at her home about 3:00 a.m., and taken for a medical examination about 11:00 a.m. Nicole told a nurse she had only had one beer to drink the night before. Nicole identified King in a photographic lineup.

2. The eyewitness

On May 3, 2007, sometime after 1:00 a.m., Marilyn E. was driving west on Adams Boulevard, at a speed of about 20 to 25 miles per hour. Her attention was drawn to a side street where, about 18 feet from the comer, she saw a police officer arresting a young woman. The woman’s legs were spread apart, and her hands were behind her back. The officer was holding the woman’s hands behind her back with one of his hands; his other hand was underneath the woman’s dress. Marilyn did not recall that the top bar light of the police car—which was parked behind a dark Mercedes—was turned on, or just its headlights or a spotlight.

Marilyn knew something was wrong. She had been arrested in the past, and knew male officers were not supposed to search female suspects. At first, Marilyn felt conflicted, “kind of scared” and reluctant to become involved. But, after she thought about it and drove a couple blocks further, she turned and circled back. She turned around on Adams, made a left turn on Redondo, and another left at Westhaven, the first stop. Marilyn did not recall which street she had seen the people on, so she drove down Westhaven, easing up at each comer to look down the block. Once she spotted the lights of the police car on Sycamore, she turned left and headed down that street, toward Adams. Marilyn drove by the police officer and the woman. As she drove by, the officer turned to look, and he and Marilyn made eye contact. At trial, Marilyn identified King as the police officer she had seen that night. As Marilyn drove by, King was still engaged in his search, with his hand under the woman’s dress. However, when he and Marilyn made eye contact, King withdrew his hand and began conducting a normal patdown search. As Marilyn pulled up to the comer of Adams to make a left-hand turn and leave the scene, she got the vehicle and license plate numbers of the patrol car and wrote them on her hand. Marilyn drove a few minutes to find a pay phone, and called 911. According to a transcript of that call, Marilyn told the 911 operator she had been driving “down Adams Boulevard and the street just before Redondo . . . there was an officer that pulled over a female. And she ha[d] on a short skirt and he was feeling all up underneath her dress. [Marilyn] went around the block again and came back. And he was still feeling all underneath her dress.” Marilyn told the operator she “thought another officer female [sic] was supposed to come out and search a female.” Marilyn’s call was connected to LAPD Sergeants Clark and Carl Taylor about 1:30 a.m.

About 2:45 a.m., Marilyn was interviewed at the police station by Sergeant Taylor. She provided Sergeant Taylor with a description of the officer, and the license plate and vehicle numbers. Marilyn thought the patrol car she had seen belonged to the LAPD. Marilyn subsequently identified King in a photographic lineup.

3. The investigation and LASPD policy

After Sergeant Clark spoke with Nicole, he believed she had been assaulted by an LAPD officer. However, after checking the vehicle and license plate numbers Marilyn gave to Sergeant Taylor, Clark realized King was an LASPD officer, and he notified the chain of command in that agency. An LAPD team was assembled. The team included LAPD Detective David Cedeno (rape special section), and other members of the robbery/homicide division, which is responsible for handling high-profile sexual assault investigations, which this case promised to be because of the involvement of a police officer. King was arrested at LASPD headquarters at 6:45 a.m., at the end of his shift.

Stephen Dodson, acting deputy chief of LASPD’s South Division, testified about LASPD policy. The LASPD is responsible for providing police services for the Los Angeles Unified School District (LAUSD). King became an LASPD officer in January 2005. LASPD officers work one of three shifts: day watch (6:30 a.m. to 4:30 p.m.), midday (1:30 p.m. to 10:30 p.m.), or early morning watch (10:30 p.m. to 7:00 a.m.). Officers working “off hours,” that is, when school is not in session, are responsible primarily for property protection, responding to silent alarms, responding to radio calls reporting activity at night on or near campuses, and to provide security for evening maintenance workers on LAUSD campuses. Depending on the day of the week and the shift, six to 12 officers are on duty during evening hours. Officers working after dark generally work in pairs, and are not required to patrol alone. An officer patrolling alone is called an “L-car.”

LASPD officers are empowered to enforce traffic laws if they see a violation. According to LASPD policy, an officer initiating a traffic stop is supposed to notify the dispatch center that he or she is making a traffic stop, which is characterized as “high” or “low” risk. An illegal U-turn is considered a low-risk traffic stop. For such a stop, the officer would be required to identify his or her unit, a description of the stopped vehicle, and the number and a description of the occupants in that car. Once finished, the officer must “clear” the traffic stop: that is, notify dispatch the task is complete. At that point, the officer is to state the disposition, such as whether a traffic citation or warning was issued. “Clearing” the traffic stop, “lets [LASPD] know that the officer’s completed what he was doing and that he’s now available for radio calls.”

According to his daily field roster, King, who was patrolling in an “L-car” during the early morning hours of May 3, 2007, placed himself at Dorsey High School, near Rodeo and Crenshaw Boulevards, at 1:07 a.m. King’s log reflects that call was cleared at 1:25 a.m., and that he was at Emerson Middle School, on the west side, at 1:32 a.m. Witnesses at trial testified that the fastest estimated travel time between those two LAUSD campuses—12 miles apart from one another—was 7 to 12 minutes. King’s log did not reflect that he made any traffic stops between 12:55 a.m. and 3:00 a.m., or that he had run any license plates or driver’s licenses between those times.

Deputy Chief Dodson testified that an LASPD officer may conduct a field search, customarily referred to as a patdown or “cursory search.” Once a suspect had been arrested, the officer would conduct a patdown search to see if die suspect has weapons before transporting him or her in an LASPD vehicle. If a person is detained for an investigation, and the officer believes he or she might be a threat or is armed, the officer may perform a patdown search for purposes of officer safety, but only if the officer has articulable facts that the person may be armed and dangerous. A cursory search involves running one’s hands over a suspect’s outer clothing. It does not involve any grabbing, or entry into the suspect’s pockets. A cursory search of a woman the size of Nicole, wearing a dress and jacket, would take 15 to 20 seconds. If a male officer has a female in custody, or detains a female and needs to search for weapons, LASPD policy dictates that the officer handcuff the suspect and call for a unit with a female officer. A male may search a female suspect in an emergency situation if there is an immediate threat to the officer, and no female officer is available. On May 3, 2007, one of the two LASPD sergeants on duty and available during King’s shift was female.

More invasive “booking” searches are conducted after suspects are arrested and transported to the police station. All such searches must be conducted by an officer of the same sex as the suspect. In addition, LASPD policy requires that “ ‘all strip and visual body cavity searches shall have prior approval by the watch commander who shall evaluate the necessity of conducting each search case.’ ” If an officer believes contraband is secreted in a body cavity, a search warrant must be obtained and the prisoner transported to a medical facility where a body cavity search is performed by licensed medical personnel. All strip, visual and physical body searches are subject to the following requirements: “ ‘(1) All persons present shall be of the same sex of the arrestee. (2) The search shall be conducted in “an area of privacy so that the search cannot be observed by persons not participating in the search.” (3) Persons conducting the search “shall not touch the breasts, buttocks, or genitalia of the person being searched.” ’ ” It is a violation of LASPD policy for a uniformed LASPD officer to touch the breasts or place his fingers inside the vagina of a woman whom he has pulled over for a traffic violation. If an arrestee has a purse, it must be taken and searched immediately, to determine whether it contains deadly weapons or items of evidentiary value.

The Horizontal Gaze Nystagmus FST is one of a number of tests used by police officers to test an individual’s sobriety. It is always used in conjunction with other FST’s, because there are a variety of reasons one may have nystagmus.

LASPD officers are required to attend a police academy program, and to undergo additional postacademy field training. Each officer’s training file should contain a receipt showing his or her receipt of the LASPD Policy and Procedures Manual. The receipt in King’s file reflected he had completed his training in early February 2005.

Guy Holloman was the LAPD criminalist assigned to this matter. He testified his tests revealed that no DNA linking King and Nicole was found on King’s fingers, in his fingernail scrapings or his patrol car, or in Nicole’s sexual assault kit. No epithelial cells from Nicole’s vagina were found on the swabs. Epithelial cells may be found on objects, such as a steering wheel, or on fingers. Holloman would have expected to find epithelial cells under King’s nails if he used a digging motion with his finger in a vagina. However, a thorough washing of one’s hands can remove epithelial cells. Holloman testified that DNA can be transferred by perspiration. An absence of DNA evidence does not mean no crime occurred.

4. Evidence of uncharged act

In 2006, Regina S. was a senior at University High School (UHS). King was the LASPD officer assigned to UHS at the time. In early April 2006, King requested permission from Regina’s ceramics teacher to talk to Regina outside class. Regina, who had recently had an argument with an administrator regarding Regina’s resistance to attending detention as punishment for her inability to arrive at school on time, thought King was there to discuss the tardiness problem. Regina had seen King around the school campus, but did not know him.

Regina walked with King toward his office, discussing the school’s tardy policy. King mentioned that he knew Regina planned to attend the University of Arizona; Regina asked him how he knew that. King’s office was located in a remote area of the basement of the main administration building, an area generally off-limits to students, commonly known as “the dungeon.” They entered the office and King shut the door. Regina sat on a couch; King stood leaning against the desk, facing her.

Regina continued talking about the tardy policy. King cut her off, saying, “ ‘This isn’t about the tardy policy. This is about you and me. I’ve taken a personal interest in you.’ ” He told Regina not to think of him as a police officer, but to look at him as a friend. Regina felt confused and awkward. She responded: “ T don’t think that’s going to work. You’re a police officer. We’re not on that level.’ ” King asked Regina what her reputation at school was like, and whether she was a “slut” or a “whore.” Shocked by the question, Regina told King she did not know or care what people thought of her. King asked her what the boys thought of her. Regina said she did not know; some people liked her, others did not. King told her, “ ‘They’re lying to you. They think you’re hot.’ ” Regina was shocked that a police officer could say such things to her.

King then asked Regina if she gave “blowjobs under the table.” Regina asked King whether it was legal for him to ask her such a question. He said, “ ‘Sure, you’re 18.’ ” Regina had never disclosed her age to King. King continued “on about the blowjob thing.”

King then started, talking to Regina about going to college in Arizona, how he knew her first choice had been the University of California, Santa Barbara, and asked her about her twin brother. Regina had no idea how King had obtained some of this information.

King then asked Regina to “stand closer” to him. She declined. He told her, “I know you have a belly button ring. Most girls would have shown it to me by now.” Again, Regina wondered how King knew about her belly button ring, which she thought only her friends knew. In response, Regina said she was not “ ‘most girls.’ ” King told Regina she was “ ‘not anything like [he] expected.’ ” He “ ‘thought [she was] fun and outgoing.’ ” Regina said she was, but “not in this situation,” and reminded King he was a police officer and she was a student. King asked Regina again to show him her belly button ring; she declined again. When King asked a third time, Regina lifted her sweater “for a second,” and sat back down. Regina never felt free to leave while she was in King’s office.

Afraid of what King might do next, Regina suggested they go outside and said she had to get back to class. As he walked her back, King told Regina he was “just preparing” her for college because she would “get taken advantage of at Arizona.” He asked Regina if she found him attractive. Regina told him it did not seem “ ‘right between [them].’ ” King said it was “okay.” He told Regina he had “ ‘six weeks till [she] graduate[d],’ ” and he was “ ‘going to make [her] like [him],’ ” and that Arizona was only “a short drive away.” Before Regina reentered her class, King advised her not to “say anything to anyone because we don’t want rumors going on about you.” King kept Regina out of class for over 40 minutes. During their conversation, King told Regina he was smarter than her because “he had a lot of degrees in law,” had several businesses and had attended the University of Southern California. Regina reported the incident to the assistant principal of UHS. She never saw King again until she identified him at trial.

About 9:00 p.m. on Memorial Day, someone claiming to be a lieutenant or detective phoned Regina at her parents’ home. The caller asked Regina to describe the incident with King; she did. The caller told Regina that King had only had “good things to say” about her, and that “what [she] was doing was wrong.” He told Regina she could “ ‘forget about going to Arizona . . . because [she was] going to be here every two weeks in trial,’ ” and her “ ‘college plans [would] be ruined.’ ” The caller said he wanted Regina to understand this would be one of the consequences if she went “ ‘through with all this.’ ” Regina, who knew she was not “going through with anything,” realized she was being pressured inappropriately. She told the caller to contact the principal of her school, and hung up.

A search of King’s apartment subsequent to his arrest yielded photographs of Regina and her twin brother, personal information about Regina, including her place of birth, address and phone number, parents’ names, and her UHS class schedule and transcripts.

LASPD officers may be assigned to specific school campuses. According to Deputy Chief Dodson, with respect to such officers’ contact with students, LASPD policy states: “ ‘All officer contacts with students must be prudent and conducted in such manner that precludes any concern of impropriety. Situations should be avoided which would result in an officer becoming isolated in a location (i.e., behind closed doors in an office) ...’[!]... [][] ‘with a student of the opposite sex without another responsible adult . . . present. Conduct with students should be limited to on-duty status or school/district sponsored activities. [][] Officers should be receptive to student problems; however, if the problem does not fall within the scope of officer duties, the students shall be referred to an appropriate counselor/school personnel.’ ”

Defense case

On January 21, 2008, Christopher Nicely took photographs and measurements of the area around Adams and Sycamore. Nicely testified about the distances between various physical locations in the vicinity. His testimony was offered to demonstrate it would have taken Marilyn about two minutes to cover the distance and route she claimed to have traveled.

DISCUSSION

1. Ineffective assistance of counsel

a. Controlling principles

King maintains he was denied effective assistance of counsel. In order to demonstrate ineffective assistance of counsel, King must show counsel’s representation was so deficient as to undermine confidence in the resulting judgment. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 104 S.Ct. 2052] (Strickland); accord, People v. Ledesma (1987) 43 Cal.3d 171, 215 [233 Cal.Rptr. 404, 729 P.2d 839] (Ledesma).) A party claiming ineffective assistance must first demonstrate that his counsel’s performance was deficient. (Strickland, supra, 466 U.S. at p. 687; Ledesma, supra, 43 Cal.3d at p. 216.) In reviewing counsel’s performance, we “exercise deferential scrutiny.” (Ledesma, supra, 43 Cal.3d at p. 216; accord, Strickland, supra, 466 U.S. at p. 691.) To that end, it is up to King to show his counsel’s performance was deficient because his “ ‘representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ ” (People v. Lucas (1995) 12 Cal.4th 415, 436 [48 Cal.Rptr.2d 525, 907 P.2d 373].) Second, even after a party demonstrates ineffective assistance, he must also show he has been prejudiced, i.e., “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694.) If King’s showing as to either component is insufficient, the claim fails. (People v. Holt (1997) 15 Cal.4th 619, 703 [63 Cal.Rptr.2d 782, 937 P.2d 213].) Accordingly, if he cannot show prejudice, we may reject his claim of ineffective assistance, and need not address the adequacy of trial counsel’s performance. (Strickland, supra, 466 U.S. at p. 697; People v. Lawley (2002) 27 Cal.4th 102, 136 [115 Cal.Rptr.2d 614, 38 P.3d 461].)

Two other principles bear mention: First, the reviewing court defers to “ ‘ “counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance.’ ” [Citation.]’ ” (People v. Hinton (2006) 37 Cal.4th 839, 876 [38 Cal.Rptr.3d 149, 126 P.3d 981].) Second, to the extent the record is silent as to defense counsel’s reasons for his actions or inaction, a claim of ineffective assistance must be rejected. We may reverse on grounds of ineffective assistance of counsel only if the record affirmatively discloses no rational purpose for counsel’s act or omission. (People v. Lucas, supra, 12 Cal.4th at p. 437.) Where the record contains no explanation for the challenged representation, we will reject an ineffective assistance claim unless counsel was asked to explain his performance and failed to provide an explanation, or unless there simply could be no satisfactory explanation. (People v. Earp (1999) 20 Cal.4th 826, 871 [85 Cal.Rptr.2d 857, 978 P.2d 15].)

b. King’s contentions of incompetence

King makes multiple claims of ineffective assistance of counsel. He maintains his trial counsel was ineffective in that he failed to (1) file a written motion to exclude Regina’s testimony; (2) introduce significant defense evidence; (3) cross-examine Holloman regarding DNA found on Nicole’s breast; (4) object to prejudicial evidence and misleading assertions of law by the prosecutor; (5) move to dismiss or file a demurrer to certain counts; (6) introduce evidence King was not a sexual predator, and other character and reputation evidence; (7) submit certain pinpoint jury instructions; and (8) object to religious testimony by Nicole. We address each contention in turn.

(1) Failure to seek exclusion of Regina’s testimony

Prior to trial, the prosecution moved, in limine, arguing that evidence of King’s uncharged “prior sexual offense” against Regina at UHS should be admitted either to demonstrate King’s propensity to commit sex crimes, under Evidence Code section 1108 (section 1108), subdivision (a), or to establish motive, intent or the absence of mistake as to the acts currently charged against him, under Evidence Code section 1101 (section 1101), subdivision (b). The trial court rejected the prosecutor’s theory as to section 1108, but accepted the assertion that the evidence was relevant to establish intent.

King acknowledges that his trial counsel orally opposed admission of evidence related to Regina. Nevertheless, King maintains his trial attorney was ineffective for failing to file written opposition to the prosecution’s evidentiary motion, or an affirmative motion to exclude Regina’s testimony at the outset. Specifically, he contends his counsel failed “to clarify when other acts are admissible on intent, ... to distinguish the cases cited by the prosecution and ... to discuss the inherent prejudice of such evidence.” This contention has no merit.

King cannot show he was prejudiced simply because his trial counsel failed to file a written opposition to admission of Regina’s testimony. The issue was litigated vigorously at the hearing. King’s counsel opposed admission of Regina’s testimony under section 1101, subdivision (b), and argued that the other crime evidence involving Regina was too dissimilar to the alleged acts against Nicole. King fails to point to any authorities finding ineffective assistance of counsel for the mere failure to file a written opposition when oral argument—particularly as vigorous as that in which counsel engaged here—occurred.

King contends that the submission of written opposition would have demonstrated that intent was not at issue, pointed out flaws in the prosecution’s arguments, stressed the need for a balancing test under Evidence Code section 352, and shown the evidence in question was actually propensity evidence, prohibited under section 1101, subdivision (a). While we reject the assertion that written opposition was required, we agree the evidence related to Regina was improperly admitted.

The trial court admitted evidence of the uncharged incident with Regina under section 1101, subdivision (b), for the limited purpose of showing King’s “intent.” Under section 1101, evidence that a defendant has committed crimes other than those for which he is being tried is barred “if it is offered to prove [his] criminal disposition, but not if it is offered to prove a material disputed issue such as motive or intent. [Citation.]” (People v. Hayes (1990) 52 Cal.3d 577, 616-617 [276 Cal.Rptr. 874, 802 P.2d 376]; see § 1101, subd. (b).) Evidence of an uncharged offense is admissible to prove identity, common plan or intent only if it is sufficiently similar to the charged offense to support a rational inference of identity, common plan or intent. (People v. Carter (2005) 36 Cal.4th 1114, 1147 [32 Cal.Rptr.3d 759, 117 P.3d 476].) With respect to intent, “ ‘the uncharged crimes need only be “sufficiently similar [to the charged offenses] to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” [Citations.]’ ” [Citation.]’ ” (Id. at p. 1149.) So long as there is a direct relationship between the prior offense and an element of the charged offense, introduction of that evidence is proper. (People v. Daniels (1991) 52 Cal.3d 815, 857 [277 Cal.Rptr. 122, 802 P.2d 906].)

In People v. Ewoldt (1994) 7 Cal.4th 380 [27 Cal.Rptr.2d 646, 867 P.2d 757] (Ewoldt), the California Supreme Court held, “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such act. . . .’ [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (Id. at p. 402.) Moreover, as for admission of evidence of prior uncharged acts, the court explained, “[e]vidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. ‘In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.’ [Citation.]” (Id. at p. 394, fn. 2.) Here, the acts in which King was alleged to have engaged (touching Nicole’s breasts and vagina) were not conceded or assumed; they were contested.

Bowen v. Ryan (2008) 163 Cal.App.4th 916 [78 Cal.Rptr.3d 128], provides a useful illustration of the limitation on the use of evidence of other acts to establish intent. In Bowen, a patient sued a pediatric dentist for assault and battery, claiming the dentist choked and restrained him, shoved him against a wall, and threatened him with harm during a dental visit in 2002, after the child became afraid of a shot the dentist was about to administer. (Id. at pp. 919-920.) The trial court permitted the plaintiff to introduce evidence of other incidents between the dentist and other patients, which it deemed relevant for the purpose of demonstrating a common plan and design, as well as intent. (Id. at pp. 921-922, 923.) On appeal, the court found the evidence of prior uncharged acts inadmissible to prove intent, because intent was not at issue. The court noted that the plaintiff claimed the dentist had choked him and shoved him against a wall. If the defendant had conceded having done so, but had claimed the acts occurred accidently or otherwise, evidence of prior acts might have been admissible to establish intent. However, because the dentist denied having choked or shoved the child, the acts were neither conceded nor assumed. Accordingly, since the defendant’s intent was not at issue, “[e]vidence of uncharged acts could not be admitted to prove an irrelevant matter.” (Id. at p. 926.)

In Ewoldt, the charged and uncharged acts were far more similar than the uncharged and charged acts at issue here. There, the counts charged against the defendant involved his fondling of the victim’s vaginal area, undressing her and trying to force her knees apart; removing her clothes and trying to force her legs apart; entering her bedroom and forcing her to touch his erect penis; and entering her bedroom and touching her breasts, then telling her he was merely covering her with a blanket when she awoke. (Ewoldt, supra, 7 Cal.4th at pp. 388-389.) The uncharged acts involved three occasions on which the defendant fondled the victim’s sister’s breasts and vagina while she was sleeping. On one of those prior occasions the defendant similarly had told the victim’s sister he was “ ‘straightening up the covers.’ ” (id. at p. 389.) These acts were very similar to the charged conduct.

Here, in contrast, in the uncharged incident, Regina was never touched; Nicole’s breasts were fondled and her vagina digitally penetrated. The incident with Regina occurred after King, an officer stationed at her school, who had clearly been focused on her for some period of time and who had obtained a significant amount of information about Regina’s life, some of which she thought only her close friends knew, specifically sought Regina out and extracted her from her class. Nicole, on the other hand, was a complete stranger to King, who happened upon her by chance when she became lost late one night and he made what at least began as a legitimate traffic stop. King engaged in arguably threatening, sexually offensive and boorish behavior in the interaction with Regina. He frightened her, but there was no physical contact. With Nicole, there is no question that King engaged in physically assaultive sexual contact. We agree with the trial court that the events shared other similarities, in that both women were young and relatively close in age, King made a purposeful effort to direct each of them to isolated locations, and used his authority to control them in the first place. Nevertheless, the dissimilarities between King’s conduct toward Regina and Nicole were significant, while commonalities between the incidents were superficial.

However, even where the evidence is relevant under section 1101, subdivision (b), the court in Ewoldt held that “[ejvidence of uncharged offenses ‘is so prejudicial that its admission requires extremely careful analysis. [Citations.]’ [Citations.] ‘Since “substantial prejudicial effect [is] inherent in [such] evidence,” uncharged offenses are admissible only if they have substantial probative value.’ [Citation.]” (Ewoldt, supra, 7 Cal.4th at p. 404.) Such evidence “ ‘must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citations.]’ ” (Id. at p. 404.) The probative value of uncharged prior misconduct found relevant under section 1101, subdivision (b) depends largely on the similarity of the uncharged misconduct to the charged offense. (Ewoldt, supra, 7 Cal.4th at p. 404.) The trial court has broad discretion to admit such evidence. We review the court’s ruling for abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 369 [75 Cal.Rptr.2d 716, 956 P.2d 1169].) The ruling will not be reversed unless the probability that prejudice resulting from admission of the evidence outweighs the probative value of the evidence. (People v. Butler (2005) 127 Cal.App.4th 49, 60 [25 Cal.Rptr.3d 154].) Viewed against this backdrop, we find the trial court erred. The prejudicial evidence of the incident involving Regina is too dissimilar from the charged offenses to be probative of King’s intent on the occasion involving Nicole.

Notwithstanding our finding that the trial court erred in admitting the evidence of prior acts, we also find that error was harmless. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824]; People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) The direct and circumstantial evidence against King in this case was both virtually uncontradicted and overwhelming, and based on testimony independently offered by two eyewitnesses of wholly independent origin and through a wholly independent chain of reporting. On this record, we conclude it was harmless beyond a reasonable doubt that the additional testimony regarding the incident involving King’s predatory conduct with Regina contributed to the verdict. Given the ruinous nature of the other evidence against King, he cannot show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” if his counsel had filed written opposition to exclude this evidence. (Strickland, supra, 466 U.S. at p. 694.)

(2) Failure to introduce significant defense evidence

King contends his defense counsel was ineffective by failing to introduce “significant defense evidence” consisting of the fact that (1) Nicole told the nurse who conducted her medical examination she drank one beer, not two; (2) the existence of a discrepancy as to the exact time the crime occurred, which made it unlikely Marilyn could actually have witnessed the incident, given the amount of time King’s witness said was required to travel the route she described; (3) counsel’s failure to ask Nicole why she did not stop at an open gas station for directions; and (4) counsel’s failure to ask Nicole whether King threatened to arrest her. None of these contentions has merit.

First, and most importantly, King cannot show prejudice. Even if his attorney had introduced the evidence as King claims he should have, its value for purposes of impeachment was minimal.

Second, Nicole’s explanation for having told King she only had one beer when she had two—she believed the first beer was out of her system by the time King stopped her—would also apply to why she told the nurse she had only one beer. Moreover, King’s counsel did elicit the fact that Nicole had not been truthful about the amount of alcohol she had consumed, so additional evidence on this point would have been redundant.

Third, whether the incident occurred at or around 1:25 a.m. is trivial. Minor discrepancies as to timing cannot negate the fact that both Nicole and Marilyn independently identified King as the police officer who sexually assaulted Nicole. Whatever time it took for Marilyn to circle back to the crime scene did not make her ability to witness the incident “impossible.” She saw King with his hand under Nicole’s dress the first time she drove by. When she returned to the scene, Marilyn observed King in the same position, before he removed his hand and pretended to conduct a normal patdown search, a sequence of events corroborated by Nicole. By 1:30 a.m., Marilyn had located a pay phone and contacted the LAPD; within 15 minutes, Nicole had also contacted the LAPD.

Fourth, questions as to whether King threatened to arrest Nicole or why she failed to stop at an open gas station have negligible effect on her credibility. Nicole never claimed King threatened to arrest her if she failed to cooperate with the search. Rather, his actions implied such a threat, which he only verbalized after he conducted the ineffective FST. Similarly, the fact that Nicole failed to notice an open gas station, or to stop to ask for directions, only buttresses her claim that she was lost and disoriented. Indeed, King could tell Nicole was lost before he stopped her. The evidence against King was overwhelming. Had counsel traveled these trivial lanes of inquiry, he would still not have been able to circumvent the roadblock constituted by the independently derived accounts of Nicole and Marilyn.

(3) Failure to cross-examine regarding DNA on Nicole’s breast

King contends his defense counsel was ineffective for failing to cross-examine Holloman about DNA found on Nicole’s breast. King argues that the evidence contradicted Holloman’s testimony about transferability of DNA and that cross-examination on this point was “critical.” We disagree.

Prior to trial, the prosecution moved to exclude any reference to Nicole’s sexual activity, including the DNA of an unknown male found on her breast. At the hearing on that motion, defense counsel opined that the evidence might be germane to Nicole’s recollection of the events. Observing that the DNA was not King’s, that Nicole had a boyfriend at the time of the incident, and that there was no allegation King had licked her breast, the trial court found the evidence irrelevant. The court also found the evidence would be confusing and embarrassing to Nicole, whose memory could be tested in other ways. The court gave King’s counsel leave to renew his objection later.

Holloman testified no DNA was found that linked King to Nicole or vice versa. Holloman testified that King could have transferred his epithelial cells present in his hands during perspiration to Nicole. He stated a successful transfer depended on multiple factors, including the level of perspiration and the duration of skin-to-skin contact between King and Nicole. Holloman also testified that the absence of DNA cells would not prove the offense had not occurred, and said epithelial cells could be removed by a thorough washing.

Holloman’s testimony about the transferability of DNA by perspiration did not open the door for cross-examination regarding the DNA on Nicole’s breast. The presence of an unknown male’s DNA on Nicole’s breast did not contradict Holloman’s testimony. Consistent with that evidence, an unknown male could have transferred his DNA by epithelial cells to Nicole because he perspired more than King or was in contact with Nicole’s breast longer than King was. Or, as observed by the trial court, the unknown male might have transferred his DNA by licking Nicole’s breast, not by touching her with a perspiring hand. Holloman did not testify about this possibility. In either case, the court’s ruling that this evidence was both irrelevant to the material issues and unduly prejudicial was correct. Whether another male touched or licked Nicole’s breast before King assaulted her was irrelevant. Further, we agree that introduction of this irrelevant subject matter would serve only to further embarrass and humiliate Nicole. King’s trial counsel was not ineffective for failing to raise the issue. A defendant has no right to cross-examine “in whatever way, and to whatever extent, the defense might wish.” (Delaware v. Fensterer (1985) 474 U.S. 15, 20 [88 L.Ed.2d 15, 106 S.Ct. 292].) The trial court may restrict cross-examination where prejudice substantially outweighs probative value. (People v. Harris (1989) 47 Cal.3d 1047, 1091 [255 Cal.Rptr. 352, 767 P.2d 619].)

In any event, we return to the pivotal point that, independent of the question of whether King’s counsel performed deficiently, King’s claim of ineffective assistance of counsel may be disposed of on the ground that he has failed to show sufficient prejudice. “If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim [of ineffective assistance] on that ground without determining whether counsel’s performance was deficient.” (People v. Kipp, supra, 18 Cal.4th at p. 366; see In re Resendiz (2001) 25 Cal.4th 230, 239 [105 Cal.Rptr.2d 431, 19 P.3d 1171].) On this record, there is no reason to address whether King’s counsel performed deficiently by failing to cross-examine Holloman regarding the DNA found on Nicole’s breast because the evidence against King was overwhelming. His identity was established by testimony from Nicole and Marilyn, not DNA evidence. King simply cannot show that but for his attorney’s performance, there is a reasonable probability the result would have been different.

(4) Failure to object to evidence and argument

King maintains his trial counsel was ineffective because he failed to object to evidence and to the prosecutor’s argument. King argues that defense counsel should have objected to (1) the prosecutor’s argument the jury had to find that Nicole or Marilyn lied in order to find King not guilty; (2) Deputy Chief Dodson’s testimony that an LASPD officer “can’t arbitrarily walk up and say ‘can I search you,’ ” which King contends is an incorrect statement of law; (3) Sergeant Clark’s purportedly irrelevant and prejudicial testimony that he notified the chains of command in the LAPD and LASPD; (4) Sergeant Clark’s prejudicial testimony that he contacted the robbery/homicide division; and (5) Detective Cedeno’s unnecessary and prejudicial testimony that he was assigned to LASPD’s robbery/homicide division’s rape special squad.

First, the prosecutor did not err by arguing the jury had to find either Nicole or Marilyn lied in order to find King not guilty. “At closing argument a party is entitled both to discuss the evidence and to comment on reasonable inferences that may be drawn therefrom. [Citations.]” (People v. Morales (2001) 25 Cal.4th 34, 44 [104 Cal.Rptr.2d 582, 18 P.3d 11].) A prosecutor has “ ‘wide latitude’ ” in this regard, and whether the inferences he or she “ ‘draws are reasonable is for the jury to decide.’ [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1203 [17 Cal.Rptr.3d 532, 95 P.3d 811].) Nevertheless, “ ‘counsel may not assume or state facts not in evidence [citation] or mischaracterize the evidence [citation].’ [Citation.]” (People v. Harrison (2005) 35 Cal.4th 208, 249 [25 Cal.Rptr.3d 224, 106 P.3d 895].)

In her opening argument, the prosecutor reviewed the relevant factors in assessing witness credibility and Nicole’s testimony. She read from CALJIC No. 2.27 (“Sufficiency of Testimony of One Witness” (some capitalization omitted)) and informed the jury, “In short, if you believe Nicole, then you must find the defendant, Ian King, guilty. And the converse of that, is also true. To find him not guilty, you have to believe that Nicole is lying.” Later, the prosecutor commented, “And as I said earlier, that you have to believe that Nicole is lying to find him not guilty and you also have to find that Marilyn is lying to find him not guilty.” In closing argument, the prosecutor argued that DNA evidence was unnecessary in this case because “either you believe Nicole and Marilyn and all the evidence that goes to corroborate them, the 911 calls, their prior statements or you don’t.” The evidence against King was based almost entirely on Nicole’s and Marilyn’s testimony. As King’s fate rested on whether the jury found them credible, the prosecutor’s comments served only to highlight CALJIC No. 2.27, that “[testimony concerning any fact by one witness, which [the jury] believe[s], is sufficient for the proof of that fact.”

Moreover, contrary to King’s claim, the prosecutor did not “ignor[e] the burden of proof.” The court instructed the jury on the burden of proof, with CALJIC No. 2.90, and the prosecutor referred to that instruction repeatedly in her argument. The prosecutor’s comments were proper, and an objection by defense counsel would have been futile.

We also disagree that defense counsel was ineffective for failing to object to testimony by Deputy Chief Dodson, Sergeant Clark or Detective Cedeno. Dodson’s testimony that an officer required a reasonable suspicion to detain a person was an accurate statement of law. (See Com. to CALJIC No. 9.27 (Fall 2007 ed.), citing Brown v. Texas (1979) 443 U.S. 47 [61 L.Ed.2d 357, 99 S.Ct. 2637] [“An officer may detain a suspect briefly for questioning although no probable cause to believe suspect is involved in criminal activity, but he must have a reasonable suspicion based on objective facts, that the suspect is involved in criminal activity.”].)

As for Sergeant Clark’s testimony that he notified the chain of command, it was relevant to show how the investigation leading to King’s identification and arrest unfolded. Sergeant Clark’s testimony that he contacted the robbery/homicide division because they investigated high-profile sexual assault cases did not imply the crime at issue required special techniques. Rather, it meant simply that the case fell within their jurisdiction due to the nature of the crime and the fact that King was a police officer. Similarly, Detective Cedeno’s testimony regarding his assignment to “Robbery/Homicide Division, Rape Special Section” was foundational, and did not suggest anything “special” about the case apart from the fact that a police officer was involved. Objections to these statements would have been futile. (People v. Cudjo (1993) 6 Cal.4th 585, 616 [25 Cal.Rptr.2d 390, 863 P.2d 635] [“[b]ecause there was no sound legal basis for objection, counsel’s failure to object to the admission of the evidence cannot establish ineffective assistance”]; see also People v. Diaz (1992) 3 Cal.4th 495, 562 [11 Cal.Rptr.2d 353, 834 P.2d 1171] [failure to object to admissible evidence does not constitute ineffective assistance of counsel because objection would have been futile].)

King cannot show prejudice as a result of any of these purported missteps by his trial counsel. The evidence against him was overwhelming. He cannot establish that, but for counsel’s performance, there is a reasonable probability the result would have been different.

(5) Failure to file a motion to dismiss or a demurrer

King contends that his defense counsel was ineffective in failing to move to dismiss (§ 995) or file a demurrer (§ 1004).

King acknowledges that the first attorneys representing him did seek dismissal of counts 2 and 4 at the preliminary hearing. However, he contends trial counsel was compelled to seek dismissal of those counts again once the information was filed, “as there was no direct evidence that Nicole was threatened with arrest.” This assertion lacks support in the record.

First, Nicole’s testimony at trial makes it abundantly clear that throughout the time she was detained, King took full advantage of his position of authority, using it as nothing less than a veiled threat. Even before she got out of her car, King falsely informed Nicole he had called in her license plates, and had taken her driver’s license out of her possession. He then conducted an invasive “search,” after Nicole admitted having consumed a beer several hours earlier, furthering her unwarranted concern that she could be arrested for having done so. Nicole testified that throughout the sexual assault she was worried and “hope[d] [she didn’t] get in trouble” for having had the drinks, even though she was 21 and did not feel intoxicated. Finally, after he finished the sexually assaultive “search” and the ruse that passed for an FST, King verbalized his previously implicit threat by asking Nicole why she thought he would not “arrest” her or give her a ticket. The record contains direct evidence Nicole was threatened with arrest. King’s counsel did not perform ineffectively by failing to move a second time to have counts 2 and 4 dismissed following filing of the information.

As for filing a demurrer, King fails to allege any pleading defects or to state the grounds on which such a motion could have been based. (See Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1090 [40 Cal.Rptr.2d 402, 892 P.2d 1145] [“A demurrer to a criminal complaint lies only to challenge the sufficiency of the pleading and raises onl