People v. Zaki CA2/3

Filed 2/17/21 P. v. Zaki CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B300980

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA471176
v.

ROBERT E. ZAKI,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Katherine Mader, Judge. Affirmed.
The Justice Firm and Joseph Virgilio for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Blythe J. Leszkay and Charles S. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
 INTRODUCTION

Defendant Robert E. Zaki was convicted of forcible oral
copulation and assault with intent to commit forcible oral
copulation. On appeal, Zaki contends: (1) the court erred in
admitting evidence of his prior uncharged acts of sexual
misconduct; (2) insufficient evidence supports both convictions;
(3) the prosecutor committed prejudicial misconduct during oral
argument; and (4) a technical defect in the verdict form requires
reversal of his conviction for forcible oral copulation.1 As we
explain, all these arguments lack merit. We therefore affirm.

FACTS AND PROCEDURAL BACKGROUND

1. The Charged Sexual Assault
In November 2017, Monica O. performed in an acting
showcase. After the show, she met Zaki, who gave her a fake
name and claimed he was a financier for a major movie
production company. Zaki told Monica that she would be great in
one of his films. He claimed he was very wealthy and liked to
support artists, and he offered to pay Monica $2,000 a month to
help her pursue her acting career. Zaki and Monica exchanged
phone numbers.
After going to a nearby restaurant, Monica drove Zaki to
his house. Although Monica intended to just drop Zaki off, he
convinced her to come inside his house to “look at the view” and
try a “ginger elixir.” While Monica was looking out the window,

1In his opening brief, Zaki argued his trial counsel rendered ineffective
assistance by not calling an expert witness to rebut the People’s expert.
Zaki expressly withdrew that argument in his reply brief, however. We
therefore don’t address that argument in this opinion.

2
Zaki approached her with a blanket and asked her to let him give
her a massage. Monica reluctantly agreed because she wanted
Zaki to provide the monthly allowance he promised her earlier
that night and she wasn’t “doing well” at the time.
Zaki asked Monica to remove her dress several times before
she agreed to do so. Although she kept her bra and underwear on,
Zaki grabbed her buttocks and put his hands under her
underwear. Zaki then asked her, “Do you like anal?” Monica
“freaked out,” stood up, put on her dress, and ran to the front
door of Zaki’s house. As Monica tried to put on her shoes, Zaki,
who was now completely naked, approached her and began
masturbating.
While Monica was still crouched and trying to put on her
shoes, Zaki grabbed her head, inserted his penis into her mouth,
and started forcing her head back and forth. Monica started
gagging, choking, and crying, but she was too scared to make
Zaki stop. She didn’t know if Zaki had any weapons, and she was
scared that if she tried to escape before Zaki ejaculated, he would
attack her. When Zaki ejaculated into Monica’s mouth, he
repeatedly told her to “drink daddy’s milk.”
According to Monica, everything was a “total blur” once
Zaki assaulted her. Although she texted Zaki to say she made it
home, she has no recollection of sending the message. Monica
didn’t report Zaki to the police immediately after the assault
because she was in shock, wanted to forget what happened, and
was afraid she could be blacklisted in the film industry if she got
Zaki in trouble.
A few days after Zaki assaulted Monica, he texted her to
hang out. Monica wanted to confront Zaki and have him
apologize, but she didn’t feel safe meeting him in private, so she

3
told him to meet her at the bar where she worked. When Zaki
refused to meet Monica at the bar, she questioned him about the
assault through text messages. After she described in detail what
Zaki did to her, he claimed he “never did” any of those things and
acted “surprised” by her accusations. Monica never texted Zaki
again.
For a few months after the assault, Monica tried to forget
what happened. In February 2018, she was reminded of the
incident and began searching for information about Zaki. She
discovered his real name and some “disturbing” information
about him. Later that month, Monica reported the assault to the
police.
When she met with a detective, Monica provided copies of
some of the text messages she exchanged with Zaki. Monica
provided only the messages in which she questioned Zaki about
the assault; she omitted the messages they exchanged on the
night of the attack and some of the messages they sent each other
a few nights later before she confronted him about the incident.
2. Expert Testimony
A forensic psychologist testified. She explained how the
behavior and memory of people who experience traumatic events,
such as sexual assault victims, are affected by the event. While
the perception of danger often causes a person to enter “fight,
flight or freeze response mode,” victims of sexual assault often do
not believe fighting or fleeing are safe options so they will instead
“freeze” during the attack. By freezing, a victim will often
“dissociate,” which makes it more difficult to accurately recall the
details of the assault. Due to the traumatic nature of the assault,
a victim may also consciously or subconsciously avoid thinking
about the event. It is therefore typical for victims of sexual

4
assault to not think about the attack for several months after it
occurs.
Most assaults are committed by people the victim knows.
Thus, it is common for victims of sexual assault not to actively
resist or cry out during the assault. Where the victim knows the
attacker, about only 20 to 25 percent of victims actively resist. It
is also common for sexual assault victims not to report the
assault immediately after it occurs. While some never report the
assault, many victims wait extended periods of time to report
because they often think people won’t believe the assault
occurred. Many victims also delay reporting, or don’t report,
sexual assault because they feel ashamed or humiliated
describing the incident to other people.
When posed with a hypothetical based on the facts of this
case, the expert opined that it is not uncommon for the victim of a
sexual assault to later contact the perpetrator. In 30 to 70
percent of cases where the victim previously knew the
perpetrator, the victim may try to reconnect with the perpetrator
to either repair the relationship or to seek help.
3. Prior Sexual Misconduct
3.1. E.C.
In September 2002, Zaki used a fake name to contact E.C.
through an online chatroom. Zaki convinced E.C. to meet him at
his home later that night. After Zaki gave her a drink, E.C.
realized she felt more intoxicated than usual after having only
one alcoholic beverage.
When E.C. tried to leave, Zaki pulled her back into the
house, closed the door, and said, “Bitch. Do you really think
you’re leaving here.” Zaki then slapped E.C.’s face, pushed her,

5
spit on her, and threw her onto his couch. Zaki removed his
clothes and threatened to rape E.C., telling her he could drown
her in the pool and bury her in the backyard without anyone
knowing.
Zaki then pulled E.C. toward him and told her to “suck his
dick.” When she refused, Zaki took E.C.’s hand and made her
stroke his penis. Zaki fondled E.C.’s breasts and grabbed her
head before ejaculating on her face and chest. Afterwards, Zaki
told E.C. he knew where she lived and that he would harm her
and her family if she reported him to the police.
3.2. M.G.
In October 2002, M.G. met Zaki in an online chat room,
where he was using a fake name. M.G. later picked Zaki up at his
house. After trying to go to a pool hall, they returned to Zaki’s
house. While they sat in M.G.’s car in front of the house, Zaki
started speaking to her in a sexual manner. When M.G. refused
to go inside the house with him, Zaki started masturbating in her
car and tried to grope her chest and genitals. When M.G. reached
for her keys, Zaki slammed her head against the car window and
threw the keys out the window. M.G. then saw a security guard
and screamed for help. Zaki got out of the car and started yelling
at M.G., “get out of my house, you fucking whore. Get the fuck
out of here, you stupid bitch.” M.G. drove away after finding her
keys.
3.3. B.S.
On the same night he contacted M.G., Zaki contacted B.S.
in an online chat room. B.S. met Zaki at his house. After
convincing her to come inside, Zaki offered B.S. a drink. While
B.S. was sitting on the couch, Zaki came from behind her and put

6
his arms around her. B.S. was frightened and tried to leave. Zaki
grabbed her and pushed her onto the couch. He then grabbed her
breasts and reached up her skirt. Zaki got on top of B.S. and tried
to force her to have sex with him. As B.S. was struggling to free
herself, the police knocked on the front door to Zaki’s house. The
officers escorted B.S. out of the house.
3.4. H.D.
In 2015, H.D. received several unsolicited text messages
from Zaki. He offered to pay her money and take her to dinner
and a movie premiere. Zaki sent H.D. a photograph of himself
and asked her to send him “naughty” photographs, but she never
responded. In 2017, Zaki texted H.D. again. He sent her another
photograph of himself and asked to meet her. H.D. responded
that she was married and didn’t know who Zaki was, and she
asked him how he got her number. When Zaki replied that H.D.’s
name “sounds familiar,” H.D. stopped replying. Zaki then sent
her a photograph of his penis.

PROCEDURAL BACKGROUND

The People charged Zaki with forcible oral copulation (Pen.
Code,2 § 287, subd. (c)(2)(A); Count 1)3 and assault with intent to

2 All undesignated statutory references are to the Penal Code.
3 At the time Zaki committed the offense, forcible oral copulation was
codified under section 288a, subdivision (c)(2)(A). By the time the
People charged Zaki in 2019, the offense had been renumbered as
section 287, subdivision (c)(2)(A). The wording of the offense after the
amendment and renumbering remained unchanged, however.
(Compare § 287, subd. (c)(2)(A) with former section 288a, subd.
(c)(2)(A).) The operative amended information lists section 288a,
subdivision (c)(2)(A) as the applicable code section for the offense.

7
commit forcible oral copulation (§ 220, subd. (a)(1); Count 2). A
jury found Zaki guilty of both offenses. The court sentenced Zaki
to 21 years in prison.

DISCUSSION

1. Evidence of Prior Sexual Misconduct
Zaki contends the court abused its discretion when it
admitted evidence of his prior acts of sexual misconduct. We
disagree.
Prior to trial, the People moved to introduce evidence of
seven prior uncharged acts of sexual misconduct Zaki committed
against other women. Those incidents included: (1) Zaki sexually
assaulting E.C. in his home in September 2002; (2) Zaki sexually
assaulting M.G. in his car in front of his home in late October
2002; (3) Zaki sexually assaulting B.S. in his home in late
October 2002; (4) Zaki sending unsolicited sexual text messages
to H.D. in 2015 and 2017; (5) Zaki and several of his friends
forcibly raping a woman in Zaki’s home, including Zaki at one
point holding the victim at knifepoint, in early October 2002; (6)
Zaki sexually assaulting two women at gunpoint in his home in
March 2002; and (7) Zaki drugging, raping, and threatening to
kill a woman in a hotel room in June 2014. Zaki moved to exclude
all evidence of his prior uncharged acts of sexual misconduct.
The court admitted evidence of Zaki sexually assaulting
E.C., M.G., and B.S. and sending unsolicited sexual text
messages to H.D. But the court excluded evidence of the other
assaults, concluding they were either too inflammatory because
Zaki brandished a weapon or made unduly prejudicial statements
or they were too “complicated” and would result in an undue
consumption of time.

8
 The court found the evidence of Zaki’s prior sexual
misconduct against E.C., M.G., B.S., and H.D. was “extremely
relevant” under Evidence Code section 1108 “to show that this is
conduct that has gone on for a long number of years and it’s not
just an aberration in this case.” With respect to evidence of Zaki
sending unsolicited messages to H.D., the court found the
incident was “sufficient to show what was going on sexually
under [Evidence Code section] 1108 in the recent past that he is
still using texting to try to lure women and still acting lewd and
aggressively towards them when they show no interest in him.”
Evidence of prior criminal acts is generally inadmissible to
prove the defendant’s conduct on a specific occasion. (See Evid.
Code, § 1101, subd. (a); see also People v. Cole (2004) 33 Cal.4th
1158, 1194.) Where a defendant is charged with a sexual offense,
however, evidence of the defendant’s commission of other sexual
offenses is admissible to prove the defendant’s propensity to
commit crimes of a sexual nature if such evidence is not
inadmissible under Evidence Code section 352. (See Evid. Code, §
1108, subd. (a); People v. Christensen (2014) 229 Cal.App.4th 781,
756–796.) Evidence of the defendant’s commission of other sexual
offenses should be excluded under Evidence Code section 352 “if
its probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing
the issues, or of misleading the jury.” (Evid. Code, § 352.)
“To determine whether section 1108 evidence is admissible,
trial courts must engage in a ‘careful weighing process’ under
section 352. [Citation.] ‘Rather than admit or exclude every sex
offense a defendant commits, trial judges must consider such
factors as its nature, relevance, and possible remoteness, the

9
degree of certainty of its commission and the likelihood of
confusing, misleading, or distracting the jurors from their main
inquiry, its similarity to the charged offense, its likely prejudicial
impact on the jurors, the burden on the defendant in defending
against the uncharged offense, and the availability of less
prejudicial alternatives to its outright admission, such as
admitting some but not all of the defendant’s other sex offenses,
or excluding irrelevant though inflammatory details surrounding
the offense. [Citations.]’ [Citation.]” (People v. Daveggio and
Michaud (2018) 4 Cal.5th 790, 823–824 (Daveggio).)
The court properly admitted evidence of Zaki’s uncharged
acts of sexual misconduct against E.C., M.G., B.S., and H.D.
While the first three incidents occurred about 15 years before the
assault charged in this case, they are nevertheless highly
probative of Zaki’s propensity to commit sex offenses since they
involve conduct that is very similar to the manner in which Zaki
committed the charged assault. In at least two of the prior
incidents, Zaki used a fake name when he first approached his
victims, like he did with Monica. In all three cases, Zaki lured the
women to his house or his car, where he was able to isolate them,
just as he did with Monica in this case. And, like in this case,
Zaki became violent and physically prevented all three of the
victims from fleeing after he made unprovoked sexual advances.
Finally, in at least two of the prior cases, Zaki exposed himself
without the victims’ consent and forced the victims to touch his
genitals, as he did to Monica in this case.
As for Zaki’s text message conversations with H.D., they
were relevant to show that, around the time of the charged
assault, Zaki continued to engage in predatory sexual conduct
toward women. Specifically, the evidence showed Zaki continued

10
to initiate contact with his victims, expose himself without his
victims’ consent, and make unwanted sexual advances toward his
victims.
The court also properly balanced the remaining factors
under Evidence Code section 352. The court allowed the People to
introduce some, but not all, of Zaki’s prior sexual misconduct,
finding some of the other incidents involved conduct or
statements that, while probative of his propensity to engage in
such conduct, were too inflammatory. (Daveggio, supra, 4 Cal.5th
at pp. 823–824.) The likely prejudicial impact of introducing the
prior incidents was low since none of them involved conduct that
was much more violent or inflammatory than the conduct giving
rise to the charged assault. And the introduction of the prior
instances of misconduct didn’t result in an undue consumption of
time, as each witness’s testimony spans about 30 pages or fewer
of the reporter’s transcript. Nor was it likely that the evidence of
the prior instances confused or misled the jurors since it is clear
from the witnesses’ testimony that the prior incidents were
separate and distinct acts that were not part of the assault
charged in this case.
To the extent Zaki contends the evidence of his prior acts of
sexual misconduct shouldn’t have been admitted because
Evidence Code section 1108 is unconstitutional, the California
Supreme Court has rejected that argument. (See People v.
Falsetta (1999) 21 Cal.4th 903, 907, 922 [upholding Evidence
Code section 1108, which permits a trial court to admit evidence
of prior, uncharged sexual offenses when the defendant is
charged with committing a sexual offense, under a due process
challenge].) We are bound to follow the court’s decision in

11
Falsetta. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.)
2. Sufficiency of the Evidence to Support Zaki’s
Convictions
Zaki next contends insufficient evidence supports his
convictions for forcible oral copulation and assault with intent to
commit forcible oral copulation. Zaki doesn’t address any of the
elements of either offense, nor does he explain why any of the
evidence showing he physically assaulted Monica does not
support his conviction for either offense. Instead, he addresses
only the evidence of Monica’s conduct following the assault. Zaki
argues that because Monica waited to report him to law
enforcement until after she discovered he had been accused of
sexual misconduct in the past and realized he didn’t intend to
make the payments he promised her, she lacked credibility and
fabricated her testimony about the underlying encounter. This
argument lacks merit.
When a defendant claims insufficient evidence supports his
conviction, we review the entire record in the light most favorable
to the judgment to determine whether any rational trier of fact
could have found the evidence proved the elements of the crime
beyond a reasonable doubt. (People v. Manibusan (2013) 58
Cal.4th 40, 87.) We draw all reasonable inferences in favor of the
judgment. (People v. Albillar (2010) 51 Cal.4th 47, 59–60
(Albillar).) “ ‘ “If the circumstances reasonably justify the trier of
fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.” ’
[Citations.]” (People v. Cravens (2012) 53 Cal.4th 500, 508.) Thus,
before we may set aside the judgment, it must be clear that

12
“ ‘ “upon no hypothesis whatever is there sufficient evidence to
support” ’ [it].” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Here, the jury heard Monica’s testimony explaining why
she waited several months before reporting Zaki to law
enforcement. Among other reasons, Monica wanted to forget the
assault happened and was afraid that she could jeopardize her
career and reputation if she reported Zaki. The jury also heard
the forensic psychologist’s testimony that explained why victims
of sexual assault don’t resist the assault as it’s happening and
often wait extended periods of time before reporting the assault.
The court also instructed the jury on how to evaluate the
credibility of witnesses, how to weigh conflicting evidence, and
how to draw conclusions based on the testimony of an expert
witness.
It is a fundamental principle of substantial evidence review
that we do not second guess or engage in our own credibility
determinations. (Albillar, supra, 51 Cal.4th at pp. 59–60.) After
evaluating the evidence under the standards provided by the
court, the jury decided to believe Monica’s testimony that the
underlying sexual encounter was nonconsensual. We will not
second guess that finding on appeal. (People v. Young (2005) 34
Cal.4th 1149, 1181 [“In deciding the sufficiency of the evidence, a
reviewing court resolves neither credibility issues nor evidentiary
conflicts.”].)
3. Prosecutorial Misconduct
Zaki next argues that, on three separate occasions, the
prosecutor made improper “Golden Rule” arguments by asking
the jurors to place themselves in Monica’s position when
determining whether Zaki committed the charged offenses. As we

13
explain, Zaki forfeited his challenge to each alleged instance of
misconduct. In any event, Zaki’s claims lack merit.
3.1. Relevant Background
The prosecutor began her rebuttal argument by addressing
Zaki’s argument that the victim lacks credibility based on her
text message history with Zaki: “I’m just going to address a few of
the things defense counsel touched upon. And obviously, you keep
hearing about these text message as though this entire case is
about these text messages. And I think you know it’s not. I think
you know what the case is about is what happened. And English
language is a very flawed thing and it’s even more flawed in text
messages. You can’t hear a tone, people choose bad words. To be
able to—to try to determine someone’s credibility from a series of
text messages is crazy. Because I know most people would
not want to be judged about their credibility regarding
how they text.”4
The prosecutor then addressed why the victim waited so
long to inform the authorities about Zaki’s assault, including a
summary of the forensic psychologist’s testimony on the behavior
of sexual assault victims: “And the victim testified right after this
incident occurred she was confused, she was traumatized, she
was conflicted about what happened to her, and she still believed
that this man might be able to help her crawl out of a hole that
she had found herself in. [¶] And you heard the testimony of [the
forensic psychologist] when she explained that that whole
judgment thing in the front of your brain is greatly impacted by

4 The language Zaki challenges is highlighted in bold.

14
trauma, you make decisions that you might not otherwise make.
And I know we’ve all experienced that when you look at it
after the fact and go why did I do that. Why did I do that?
Because now you’re looking at it in hindsight and you see it with
clarity something you wouldn’t see at the time because your brain
is in a different mode. And, you know, you make decisions under
stress that you wouldn’t otherwise make.”
Later in her rebuttal, the prosecutor continued to address
why the victim waited several months to contact law enforcement
after Zaki assaulted her: “And she even said that she was—she
guessed that it was rape. The defense counsel asked you if you’re
willing to call it rape then why not call the police, right? Why not
call the police if you’re willing to call it rape in those text
messages. No big deal. Like it’s no big deal. If that’s the case
then why do most women not call?”
Zaki didn’t object to the first two challenged statements.
Although Zaki objected to the third statement, he only did so on
the grounds that there was no evidence to support the
prosecutor’s statement. The court overruled the objection.
3.2. Applicable Law and Standard of Review
A prosecutor commits prejudicial misconduct under the
federal constitution when she engages in conduct that is so
“ ‘ “ ‘ “egregious that it infects the trial with such unfairness as to
make the conviction a denial of due process.” ’ ” [Citations.]’ ”
(People v. Navarette (2003) 30 Cal.4th 458, 506.) Under California
law, a prosecutor commits reversible misconduct if she makes use
of “ ‘deceptive or reprehensible methods’ when attempting to
persuade either the trial court or the jury, and it is reasonably
probable that without such misconduct, an outcome more

15
favorable to the defendant would have resulted.” (People v.
Riggs (2008) 44 Cal.4th 248, 298.)
A prosecutor is afforded “wide latitude” during closing
argument. (People v. Williams (1997) 16 Cal.4th 153, 221
(Williams).) The argument may be vigorous and incorporate
appropriate epithets as long as it amounts to fair comment on the
evidence, and it may include reasonable inferences drawn from
the evidence. (Ibid.) “[W]hen 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 (1997) 15 Cal.4th 795, 841.) “ ‘In conducting
this inquiry, we “do not lightly infer” that the jury drew the most
damaging rather than the least damaging meaning from the
prosecutor’s statements. [Citation.]’ ” (People v. Brown (2003) 31
Cal.4th 518, 553–554.)
3.3. Analysis
As a preliminary matter, Zaki has forfeited his claims of
prosecutorial misconduct. To preserve such a claim for appeal, a
defendant must make a timely and specific objection and request
an admonition. (People v. Clark (2016) 63 Cal.4th 522, 577.)
Otherwise, the argument is reviewable only if an objection would
have been futile or an admonition would not have cured the harm
caused by the misconduct. (Ibid.)
With respect to the first two challenged statements, Zaki
never objected to them. As for the third statement, while Zaki
objected that it lacked evidentiary support, he never argued the
prosecutor improperly asked the jurors to place themselves in
Monica’s shoes before determining guilt. (People v. Lopez (1978)
81 Cal.App.3d 103, 108 [“An objection that specifies the wrong

16
ground is as bad as an insufficient general objection [citation].
Thus, objections to evidence must state specific grounds for
exclusion, and the grounds cannot be changed on appeal
[citation].”].) Zaki makes no effort to explain why it would have
been futile to object to any of the statements on the ground that
the prosecutor improperly asked the jurors to place themselves in
Monica’s position. Nor does he explain why an admonishment
would not have cured any potential harm caused by the
statements. Zaki, therefore, has forfeited his challenges to the
prosecutor’s statements.
In any event, Zaki’s arguments lack merit. A prosecutor
may not make a “Golden Rule” argument by appealing “ ‘to the
sympathy or passions of the jury’ ” and “ ‘urging them to imagine
the suffering of the victim.’ ” (People v. Vance (2010) 188
Cal.App.4th 1182, 1192 (Vance).) “ ‘ “[A]n appeal to the jury to
view the crime through the eyes of the victim is
misconduct… .” ’ ” (Ibid.)
The prosecutor did not make a “Golden Rule” argument in
this case. Rather, her first two statements properly asked the
jurors to apply their own life experiences and common sense
when evaluating Monica’s credibility based on her conduct
following the underlying assault. (See People v. Vigil (2011) 191
Cal.App.4th 1474, 1487 [jurors are allowed to apply “their own
common sense and life experience” when evaluating a witness’s
testimony].) As for the third statement, it merely asks the jurors
to view Monica’s conduct in light of the forensic psychologist’s
testimony explaining why some victims of sexual assault don’t
report the crimes to law enforcement. As we noted above, a
prosecutor enjoys wide latitude when commenting on the
evidence, and she may ask the jurors to draw reasonable

17
inferences based on the evidence. (Williams, supra, 16 Cal.4th at
p. 221.) That’s what the prosecutor did here. Nothing in the
prosecutor’s statements asks the jurors to imagine Monica’s
suffering or to “relive” the assault as she would have experienced
it. (See Vance, supra, 188 Cal.App.4th at p. 1199 [misconduct for
the prosecutor to ask the jury to “literally relive” in their minds’
eyes what the victim felt and experienced during the commission
of the offense].)
4. Defect in the Verdict Form
Lastly, Zaki contends we must reverse his conviction for
forcible oral copulation because the guilty verdict form for Count
1 lists a provision of the Penal Code that does not exist. While it
appears that part of the relevant Penal Code section was
inadvertently omitted from the verdict form, any error was
harmless.
In Count 1 of the information and amended information,
the People charged Zaki with forcible oral copulation under
section 288a, subdivision (c)(2)(A). The instructions provided to
the jury state that Zaki was charged in Count 1 with forcible oral
copulation in violation of “Penal Code section 288a(c)(2).” But the
guilty verdict form for Count 1 provided to the jury states that
Zaki was charged with “FORCIBLE ORAL COPULATION” under
“Penal Code Section 288a((2)(A).” In other words, the verdict form
omitted the letter “c” identifying the subdivision of section 288a
under which Zaki was charged.
We must construe a verdict in light of the issues submitted
to the jury and the instructions of the court. (People v. Camacho
(2009) 171 Cal.App.4th 1269, 1272 (Camacho).) We may
disregard technical defects in a verdict form if the jury’s intent to
convict the defendant of a specified charged offense is

18
unmistakably clear and the defects do not prejudice the
defendant’s substantial rights. (People v. Webster (1991) 54
Cal.3d 411, 447; see also §§ 1258, 1404.) In other words, “ ‘ “the
form of the verdict is immaterial if the intention to convict of the
crime charged is unmistakably expressed. [Citations.]”
[Citations.]’ ” (Camacho, at p. 1273.) If the defect is part of the
recording, rather than the rendering, of the judgment, it is a
clerical error that may be corrected or disregarded. (Ibid.)
It is evident from the circumstances of this case that the
jury intended to convict Zaki of forcible oral copulation. The
guilty verdict form for Count 1 included the correct name of the
offense, even though it omitted part of the Penal Code section
under which Zaki was charged. Further, the court’s instructions
for the charge of forcible oral copulation correctly describe the
offense and its elements. In addition, during her closing
argument, the prosecutor told the jury that Zaki was charged in
Count 1 with forcible oral copulation, she described the elements
of the offense, she discussed what evidence proved the elements
of the offense, and she asked the jury to find defendant guilty of
the offense. And defense counsel acknowledged during closing
argument that Zaki was charged with forcible oral copulation in
Count 1 and argued Zaki wasn’t guilty of the offense because
Monica consented to orally copulating him. Zaki fails to explain
how, in light of these circumstances, he was prejudiced by the
defect in the verdict form.5 That defect, therefore, was harmless.
(Camacho, supra, 171 Cal.App.4th at p. 1272.)

5 Although Zaki points out that the Legislature renumbered the
statute for forcible oral copulation after he committed the offense, he
does not contend he was prejudiced by the People’s decision to charge
him with a violation of former section 288a, subdivision (c)(2)(A), as

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 DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.
WE CONCUR:

EDMON, P. J.

EGERTON, J.

opposed to a violation of section 287, subdivision (c)(2)(A). In any
event, we fail to see how Zaki could have been prejudiced since the
charging documents state that he was charged with forcible oral
copulation and the language of the statute for the offense remained the
same after it was renumbered.

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