People v. Ruether CA5 ( 2022 )

Filed 2/18/22 P. v. Ruether CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080021
Plaintiff and Respondent,
(Super. Ct. No. F18906059)
v.
JEFFREY WAYNE RUETHER, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Brian F.
Alvarez, Judge.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda M.
Cary and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Jeffrey Wayne Ruether was convicted of crimes arising from the sexual
abuse of his daughter, Jane Doe. On appeal, he contends (1) the trial court erred in
instructing the jury with CALCRIM No. 1190, (2) the trial court erred in instructing the jury
with CALCRIM No. 225 rather than CALCRIM No. 224, and (3) the trial court’s errors
were cumulatively prejudicial. We affirm.
PROCEDURAL SUMMARY
On September 25, 2018, the Fresno County District Attorney charged defendant with
two counts of oral copulation of a person under 14 years of age and more than 10 years
younger than defendant (Pen. Code, former § 288a, subd. (c)(1); counts 1 & 2) and two
counts of a lewd act upon a child (§ 288, subd. (a); counts 3 & 4). The information alleged
that all counts occurred between June 14 and June 23, 2016. Defendant pleaded not guilty
to all counts.
The jury found defendant guilty on all counts. The trial court sentenced defendant to
a determinate aggregate term of 12 years, comprised of six years on count 1, and two
consecutive years each on counts 2, 3, and 4.
On September 17, 2019, defendant filed a notice of appeal.
FACTS
The four offenses charged in this case occurred in a hotel room in Fresno between
June 14 and June 23, 2016, when Jane was 13 years old. Defendant, however, began
sexually abusing Jane when she was seven or eight years old. Thus, the prosecution
presented not only evidence of the charged offenses, but also evidence of defendant’s prior
uncharged acts against Jane. Additionally, the prosecution presented evidence of
defendant’s prior uncharged acts against another girl named A.Q.
Jane’s Trial Testimony
Defendant had custody of Jane from the time she was three years old. Over the
course of Jane’s childhood, defendant and Jane lived together in multiple states, including
Tennessee, Texas, Washington, and California.
Jane, who was 16 years old at the time of trial, testified that defendant would “touch
on my private areas and make me do things … in his private areas” for “all [her] life.” Jane
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testified that the first incidents of abuse occurred when she and defendant were living in
Tennessee. During these incidents, defendant touched Jane’s vagina with his fingers,
touched her breasts, put his penis on Jane’s mouth and made her “go up and down,” and put
his tongue and mouth on Jane’s breasts and vagina. The touching occurred often, at least
once a week and possibly every day. Defendant would say, “Don’t tell nobody.” While in
Tennessee, Jane told her friend’s mother about defendant’s touching, but later told the
friend’s mother she was not telling the truth. Jane recanted her story because she was afraid
she would not have a place to live if she told the truth about defendant.
On cross-examination, Jane testified that when she was eight years old and living in
Tennessee, she was raped by a teenager named J.T. When she was interviewed about the
rape by the police, she did not tell the police about the abuse by defendant. J.T. pled guilty
to the rape. After the rape, Jane saw a counselor for two years and did not tell the counselor
about the abuse by defendant because she was afraid she would no longer have anyone to
take care of her.
Defendant and Jane then moved to Washington. In Washington, defendant would
touch Jane’s vagina, put his mouth on her vagina, and have her put her mouth on his penis.
Defendant and Jane moved back to Tennessee and the same touching continued there, but
on fewer occasions.
When Jane was 13 years old, she and defendant briefly stayed in a hotel in Fresno
with Jane’s mother. When defendant would ask Jane to “make him tingle,” this meant to
put her mouth on his penis. When defendant would ask Jane if he could make her tingle,
this meant to put his mouth on her private area. While they were alone at the hotel,
defendant repeatedly asked Jane to put her mouth on his penis, to which Jane responded
“no.” Defendant then put his hand on his penis and “went up and down” in front of Jane.
While Jane’s mother was present in the hotel room, defendant called Jane into the
bathroom when he was taking a shower. He put Jane’s hand on his penis, told her to
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squeeze, and Jane complied. Later, defendant touched Jane’s thigh and armpit while they
were on the bed.
Jane’s mother went to the hospital because she was in pain. While in the hospital, the
mother asked Jane whether defendant touched her and Jane said “yes.” The mother told a
nurse, who told a social worker, and then the police were called. Jane was interviewed by
two police officers. Jane did not tell anyone else about the touching sooner because she was
afraid she would lose her home, food, and love from defendant.
Jane’s Forensic Interview
A forensic interview was scheduled for August 17, 2016, by Fresno Police Officer
Veronica Salinas-Cardinale, a detective on the sexual assault unit. A video recording of the
interview was played for the jury and each juror was given a copy of the transcript of the
interview.
In the interview, Jane said defendant did bad “stuff” to her and made her do “stuff” to
him more than 10 times. Jane said she was in the fourth through sixth grades when she and
defendant lived in Tennessee, and she was seven or eight years old the first time the abuse
happened. At that time, defendant pulled down Jane’s pants and underwear, held onto her
knees so she could not move, and performed oral sex on her. Defendant then attempted to
put his penis into Jane’s vagina and “white stuff” came out of his penis. Defendant would
also suck on Jane’s breasts with his mouth and rub his fingers on her private area.
Defendant would force Jane to perform oral sex on him. This continued to happen once or
twice a week and sometimes every day.
When Jane was in the sixth grade, she and defendant moved to Washington.
Defendant performed oral sex on her, forced her to perform oral sex on him, and touched
and sucked on her breasts once or twice a week while they lived in Washington.
Defendant and Jane moved to Auberry, California when Jane was still in the sixth
grade. Defendant would squeeze Jane’s breasts during this time. Defendant would also
squeeze Jane’s bottom regularly.
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Jane explained that in 2016, when she was 13 years old, she was staying in a hotel
room with her mother and defendant in Fresno. In the hotel room, defendant asked Jane if
he would make her “tingle,” to which Jane said “no.” Defendant asked Jane if she wanted
to make him tingle, to which Jane again said “no.” Defendant then took off Jane’s shorts
and underwear and licked her private area. Defendant took his pants off and exposed
himself and asked Jane if she wanted to make him tingle. Defendant pushed Jane’s head
toward his penis and his penis touched the inside of Jane’s lips. After defendant took a bath,
he asked Jane to play with his penis, to which Jane replied “no.” Defendant made Jane
squeeze his penis with her hand and move her hand up and down on his penis. Defendant
had an erection. Later, defendant rubbed his hand on Jane’s private area and breasts under
her clothes when they were on the bed. While Jane was with her mother at the hospital, she
told her mother what had happened with defendant.
Officer Salinas-Cardinale testified she observed Jane’s forensic interview as part of
the forensic team. Salinas-Cardinale testified Jane stated in the interview that in the hotel
room in Fresno, defendant performed oral sex on her, forced her head and lips to his penis,
made her touch his penis with her hand, and touched her breasts and vagina under her
clothes.
Child Sexual Abuse Accommodation Syndrome (CSAAS)
David Love, the executive director of a counseling services organization, testified
that CSAAS provides information on how abused children typically react to abuse and why
they are often not believed about the abuse. Love did not receive any information about
defendant’s case at any time prior to testifying or during his testimony and he did not meet
Jane at any time.
Love explained that CSAAS has five classifications: secrecy, helplessness,
entrapment and accommodation, delayed reporting, conflicting and/or unconvincing
disclosure, and retraction. Regarding secrecy, children are afraid to tell adults about abuse
due to a number of reasons, such as coercion or manipulation on the part of the abuser.
5.
Helplessness describes the child’s inability to tell an adult about the abuse due to their
relationship with the abuser. For example, in the case of a single parent abuser, the child
may have no one else to tell about the abuse and the parent may be their sole provider.
Entrapment and accommodation means that when the abuse happens repeatedly, the child
may accept the situation and find a way to cope. It is common for children to delay
disclosure, unconvincingly disclose the abuse, or forget the details of the abuse. Love
testified that a child abuse victim may testify to different aspects of the abuse during
different interviews and may provide conflicting information. It is common for children to
retract part of their testimony during different interviews, often stating that they cannot
remember certain details of their previous testimony. CSAAS is not a diagnostic tool;
rather, it assumes that the child in question has been abused.
Defendant’s Prior Uncharged Acts against A.Q.
A.Q., a 22-year-old former neighbor of defendant’s, lived at an apartment complex in
Clovis, California. Defendant was a family friend and would spend time with A.Q. and her
family when A.Q. was a girl. When A.Q. was 12 years old, defendant put his hands down
her pants and swimsuit and touched the top of her vulva. The police came to the apartment
complex to investigate another matter and A.Q. told them about the touching.
Defense Case
Shannon Griffith
Shannon Griffith, a corporal with the Clovis Police Department, interviewed A.Q.
about the incident involving defendant when she was 12 years old. A.Q. told Griffith that
defendant did not touch her inappropriately. A.Q. told her that if defendant had touched her
bathing suit, it was for the purpose of telling her to cover herself and that defendant pulled
on her shorts as part of a “pantsing” game. A.Q. told her that defendant rubbed her belly
when she was complaining of menstrual cramps and that once defendant put his hand inside
the waistband of her shorts. Defendant would sometimes tickle her and a picture was taken
where defendant was giving her a “bear hug.”
6.
Lloyd Flores
Fresno Police Officer Lloyd Flores interviewed Jane at the hospital. Jane freely and
calmly gave information to Flores and showed him the places on her body that defendant
touched her. Jane told Flores that while in the hotel room, defendant made her stimulate his
penis with her mouth, laid her on the bed, rubbed his penis up and down on her vagina, but
did not ejaculate. On cross-examination, Flores testified that Jane said defendant used the
word “tingle” before he put his penis in her mouth.
Defendant
Defendant testified on his own behalf. Defendant stated that he and Jane lived in
various states and lived with different people in each state. Defendant would regularly
supervise the children who lived in the Clovis apartment complex while they were
swimming, but he never touched A.Q. inappropriately. While in the pool with A.Q., he
commented to her that she had shaved her legs.
Defendant denied doing any of the acts of which Jane accused him and he stated he
did not inappropriately touch her. Jane brought defendant his underwear after he took a
shower in the Fresno hotel room, but the shower curtain was drawn. After Jane accused
defendant of abusing her, CPS became involved and parental rights hearings were held.
Defendant voluntarily terminated his parental rights, reasoning that Jane would be safer
elsewhere because he was homeless.
DISCUSSION
I. CALCRIM No. 1190
Defendant contends the trial court erred when it instructed the jury with CALCRIM
No. 1190—which states that “[c]onviction of a sexual assault crime may be based on the
testimony of a complaining witness alone”—because it impermissibly allowed the jury to
give Jane’s testimony special weight. Defendant argues that the jury would have understood
that no corroboration was needed for Jane’s testimony even without the instruction. He
asserts that CALCRIM No. 1190 improperly lightened the prosecution’s burden of proof,
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violating his Fourteenth Amendment rights. The People counter that defendant’s contention
has been squarely rejected by relevant California Supreme Court law in People v. Gammage
(1992) 2 Cal.4th 693 (Gammage). We agree with the People.
A. Background
At trial, the court instructed the jury with both CALCRIM Nos. 301 and 1190.
CALCRIM No. 301 instructs: “The testimony of only one witness can prove any fact.
Before you conclude that the testimony of one witness proves a fact, you should carefully
review all the evidence.” And, as noted above, CALCRIM No. 1190 instructs: “Conviction
of a sexual assault crime may be based on the testimony of a complaining witness alone.”
In closing argument, the prosecutor stated:
“I also want you to keep in mind that the conviction of a sexual assault
crime may be based on the testimony of the complaining witness alone. So,
what this means, is that a conviction can be based on [Jane’s] testimony alone.
You do not need any physical corroborating evidence. You don’t need a
witness who saw it occur. If you believe beyond a reasonable doubt what
[Jane] told you on that witness stand, that is all you need.”
In response, defense counsel argued:
“The [prosecutor] had mentioned that there is a law that says the
[testimony] of only one witness can prove the crime of a sexual assault. And
that is true. But when that is the case, that testimony better be rock solid. It
doesn’t change the burden at all. The burden is still proof beyond a
reasonable doubt.”
B. Standard of Review
“Errors in jury instructions are questions of law, which we review de novo.” (People
v. Russell (2006) 144 Cal.App.4th 1415, 1424; People v. Guiuan (1998) 18 Cal.4th 558,
569.) “ ‘When an appellate court addresses a claim of jury misinstruction, it must assess the
instructions as a whole, viewing the challenged instruction in context with other
instructions, in order to determine if there was a reasonable likelihood the jury applied the
challenged instruction in an impermissible manner.’ ” (People v. Jennings (2010) 50
Cal.4th 616, 677; People v. Paysinger (2009) 174 Cal.App.4th 26, 30 [“On review, we
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examine the jury instructions as a whole, in light of the trial record, to determine whether it
is reasonably likely the jury understood the challenged instruction in a way that undermined
the presumption of innocence or tended to relieve the prosecution of the burden to
prove defendant’s guilt beyond a reasonable doubt.”].) We presume the jury understood and
followed the instructions. (See People v. Silveria and Travis (2020) 10 Cal.5th 195, 245; In
re Loza (2018) 27 Cal.App.5th 797, 800 [We “presume jurors are intelligent people capable
of understanding and correlating all of the instructions they were given.”].) And, if possible,
we interpret the instructions “so as to support the judgment rather than defeat it if they are
reasonably susceptible to such interpretation.” (People v. Laskiewicz (1986) 176
Cal.App.3d 1254, 1258.)
C. Law
“The proof of the elements of [a sexual assault] often turns on a credibility contest
between the accused and the accuser alone, since the act is most often committed in private.
[Citation.] Permitting a jury to operate under the misconception corroboration is required
would put the value of the victim’s testimony on a level below that of the defendant’s
testimony, credibility aside, and that is not the law.” (Gammage, supra, 2 Cal.4th at p. 697.)
In Gammage, the jury was instructed with CALJIC No. 10.601 (the predecessor of
CALCRIM No. 1190) and CALJIC No. 2.272 (the predecessor of CALCRIM No. 301).3
(Gammage, supra, 2 Cal.4th at pp. 696–697.) The defendant argued that the two
1 “ ‘It is not essential to a conviction of a charge of rape that the testimony of the
witness with whom sexual intercourse is alleged to have been committed be corroborated by
other evidence.’ ” (Gammage, supra, 2 Cal.4th at pp. 696–697.)
2 “ ‘Testimony as to any particular fact which you believe given by one witness is
sufficient for the proof of that fact. However, before finding any fact required to be
established by the prosecution to be proved solely by the testimony of such a single witness,
you should carefully review all the testimony upon which the proof of such fact depends.’ ”
(Gammage, supra, 2 Cal.4th at p. 696.)
3 Cases addressing the CALJIC instructions are generally applicable to the CALCRIM
instructions. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1171 & fn. 12.)
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instructions, when given together, “unconstitutionally ‘create[] a preferential credibility
standard for the complaining witnesses.’ ” (Id. at p. 700.)
The Supreme Court rejected this contention, explaining that “[a]lthough the two
instructions overlap to some extent, each has a different focus.” (Gammage, supra, 2
Cal.4th at p. 700.) The court concluded that CALJIC No. 2.27 “focuses on how the jury
should evaluate a fact (or at least a fact required to be established by the prosecution) proved
solely by the testimony of a single witness.” (Gammage, supra, at p. 700.) On the other
hand, CALJIC No. 10.60 “declares a substantive rule of law, that the testimony of the
complaining witness need not be corroborated. It is given with other instructions on the
legal elements of the charged crimes.” (Gammage, supra, at pp. 700–701.) “The one
instruction merely suggests careful review when a fact depends on the testimony of one
witness. The other tells the jury there is no legal corroboration requirement. Neither
eviscerates or modifies the other.” (Id. at p. 701.) The instructions do not give the victim’s
testimony undue prominence and neither do they “ ‘dilute[] the “beyond a reasonable doubt”
standard.’ ” (Ibid.) The court concluded: “[T]here remains a continuing vitality in
instructing juries that there is no legal requirement of corroboration. Further, even if we
were to assume, which we do not, that all juries are aware of the no-corroboration
requirement, or would glean it from CALJIC No. 2.27 itself, no harm is done in reminding
juries of the rule.” (Ibid.) Moreover, juries are also instructed that the prosecution must
prove its case beyond a reasonable doubt. “This places a heavy burden of persuasion on a
complaining witness whose testimony is uncorroborated. CALJIC No. 10.60 does not affect
this instruction but, in the words of People v. Hollis [(1991)] 235 Cal.App.3d [1521,] 1526,
when all the instructions are given, ‘a balance is struck which protects the rights of both the
defendant and the complaining witness.’ ” (Ibid.; see People v. Adames (1997) 54
Cal.App.4th 198, 210 [“[W]hen viewed in context, [CALJIC Nos. 2.27 and 10.60] do not
elevate the credibility of the victim witness or that of other witnesses. It is settled that the
giving of both instructions is appropriate.”].)
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D. Analysis
The People correctly rely on Gammage in refuting defendant’s contentions.
Gammage clearly stated that each CALJIC Nos. 2.27 and 10.60, which are analogous to
CALCRIM Nos. 301 and 1190 given in this case, each has a different focus—factual and
legal—and therefore both can be given without danger of placing undue weight on a
complaining witness’ testimony. (Gammage, supra, 2 Cal.4th at p. 700–701.) And even
when the jury is already aware of the “no-corroboration requirement,” there is no harm in
“reminding [the jury] of the rule.” (Id. at p. 701.) Further, the prosecution still carries the
heavy burden of proving its case beyond a reasonable doubt and CALCRIM No. 1190 does
not lighten this burden. (Gammage, supra, at p. 701.)
Defendant argues that the jury in this case would have already known not to adhere
to a “long-since-discarded legal concept[]” that corroboration of a sexual assault victim’s
testimony is necessary for a conviction. Thus, he urges us to follow the concurrences in
Gammage, which concluded CALJIC No. 10.60 was outdated and unnecessary, and
overrule Gammage. We, however, are bound to follow the majority in Gammage and have
no authority to overrule the Supreme Court’s decisions. (See Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455 [“Courts exercising inferior jurisdiction must
accept the law declared by courts of superior jurisdiction. It is not their function to attempt
to overrule decisions of a higher court.”].) Accordingly, we conclude the trial court did not
err in instructing the jury with both CALCRIM Nos. 301 and 1190.
II. CALCRIM Nos. 224 and 225
Defendant contends the trial court erred when it gave CALCRIM No. 225 rather than
CALCRIM No. 224. Specifically, defendant first contends CALCRIM No. 225 was not
proper in this case because his intent was not at issue. Secondly, he contends CALCRIM
No. 224 should have been given instead because the prosecution’s case relied “substantially
on circumstantial evidence” to prove defendant committed the acts, in the form of Love’s
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testimony about CSAAS, and Jane’s and A.Q.’s testimony about defendant’s prior
uncharged acts.
We conclude the trial court did not err. And, if it did, any error was harmless.
A. Background
During discussion of jury instructions, the defense requested CALCRIM No. 224,
which provides:
“Before you may rely on circumstantial evidence to conclude that a fact
necessary to find the defendant guilty has been proved, you must be convinced
that the People have proved each fact essential to that conclusion beyond a
reasonable doubt.
“Also, before you may rely on circumstantial evidence to find the
defendant guilty, you must be convinced that the only reasonable conclusion
supported by the circumstantial evidence is that the defendant is guilty. If you
can draw two or more reasonable conclusions from the circumstantial
evidence, and one of those reasonable conclusions points to innocence and
another to guilt, you must accept the one that points to innocence. However,
when considering circumstantial evidence, you must accept only reasonable
conclusions and reject any that are unreasonable.”
The prosecution, on the other hand, requested CALCRIM No. 225, which provides:
“The People must prove not only that the defendant did the acts
charged, but also that he acted with a particular intent. The instruction for
each crime explains the intent required.
“A defendant’s intent may be proved by circumstantial evidence.
“Before you may rely on circumstantial evidence to conclude that a fact
necessary to find the defendant guilty has been proved, you must be convinced
that the People have proved each fact essential to that conclusion beyond a
reasonable doubt.
“Also, before you may rely on circumstantial evidence to conclude that
the defendant had the required intent, you must be convinced that the only
reasonable conclusion supported by the circumstantial evidence is that the
defendant had the required intent and mental state. If you can draw two or
more reasonable conclusions from the circumstantial evidence, and one of
those reasonable conclusions supports a finding that the defendant did have
the required intent and another reasonable conclusion supports a finding that
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the defendant did not, you must conclude that the required intent was not
proved by the circumstantial evidence. However, when considering
circumstantial evidence, you must accept only reasonable conclusions and
reject any that are unreasonable.”
In considering whether to instruct with CALCRIM No. 224 or No. 225, the trial court
stated that “direct testimony with regards to the actus reus … came in through [Jane].”
Defense counsel argued that Love’s testimony constituted circumstantial evidence that
defendant committed the crimes. The court stated that Love’s testimony served to “disabuse
[the jury] of any misconceptions they may have with regards to how an abuse victim might
… act.” The prosecutor argued that Love’s testimony was not evidence of defendant’s guilt,
but rather was evidence to assist the jury in accessing Jane’s credibility and her actions in
reporting the abuse.
The court denied the defense motion to instruct with CALCRIM No. 224, stating that
“the specific instruction with Mr. Love tells them that they’re not to consider evidence that
the charge is true.” The court stated it would give CALCRIM No. 225 because it dealt with
“the mental state required [of defendant].”
The trial court did ultimately instruct the jury with CALCRIM No. 225, and then also
explained how the jury could use Love’s testimony:
“David Love’s testimony about Child Sexual Abuse Accommodation
Syndrome is not evidence that the Defendant committed any of the crimes
charged against him. You may consider this evidence only in deciding
whether or not [Jane’s] conduct was not inconsistent with the conduct of
someone who has been molested.”
In closing argument, the prosecutor argued that circumstantial evidence, such as the
circumstances surrounding the acts, established defendant’s intent for the lewd and
lascivious acts in counts 3 and 4. As to count 3—which the prosecutor elected as occurring
when defendant called Jane into the bathroom at the hotel and made her touch his penis—
the prosecutor argued:
“The Defendant committed the act with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of himself or the child’s. So,
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how do we know what the defendant’s intent was when he made his 13-year-
old daughter masturbate him? I think commonsense tells you what his intent
was. The surrounding circumstances tell you what his intent was. He tells her
he wants her to play with his penis. He then puts her hand on his penis and
makes her masturbate him. Why does any person want to have themselves
stimulated manually? It’s not for a medical purpose. It’s not to help him with
any health issues. It is for him to get some sexual gratification, some sexual
release. And to him, it doesn’t matter that it’s his biological daughter doing it.
He just wants that sexual desire fulfilled. That is the only reason to have a
child touch his penis. There’s no other explanation. And I think anybody
would be hard pressed to come up with a legitimate explanation for that
conduct.”
As to count 4—which the prosecutor elected as occurring when defendant touched
Jane’s vagina while on the bed in the hotel—the prosecutor argued:
“You have to have the intent, what is the intent when he did that act [touching
Jane’s vagina]? He needs to have the intent of arousing, appealing to, or
gratifying the lusts, passions, or sexual desires of himself or the child …. This
isn’t an accidental touching. This isn’t a touching where they’re maybe
playing—playing around rough, wrestling and he accidentally touches her
vagina. If you accidentally touch her vagina, you’re not going to go inside her
clothing. You’re not going to go inside her shorts. And you’re not going to
go inside her underwear. You’re not going to rub her vagina up and down if
this is an accidental touching or a nonsexual touching. He had not had enough
that day. He still wanted more sexual acts from his daughter. So, he took the
next opportunity he had and while they were playing on the bed, he puts his
hand in her vagina and tries to stimulate her vagina for his own sexual desires.
He was not trying to check her vagina because she had a rash and she was a
small baby. He wasn’t trying to check her out because she’s complaining of
pain or she needs some kind of assistance. He touched her vagina because he
treated his daughter like a sexual object.”
Regarding defendant’s prior uncharged acts, the prosecutor argued:
“[Y]ou may consider this evidence [of prior uncharged acts] first, only if the
People have proved by a preponderance of the evidence that the Defendant, in
fact, committed the uncharged offenses. Now, a fact is proved beyond a
preponderance of the evidence if you conclude that it’s more likely than not
that the fact is true. So, this is a different standard than beyond a reasonable
doubt. If you decide that Defendant committed the uncharged acts, you may,
but are not required to conclude from that evidence that the Defendant was
disposed of or inclined to commit sexual offenses. And based on that
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decision, conclude that he likely committed the charged crimes. [¶] … [¶] …
[Y]ou can use the fact the defendant touched [A.Q.], that the defendant abused
[Jane] for years and years in all of these various states to determine that
defendant is disposed to commit sexual acts and that he committed these acts
that are charged.”
Finally, regarding Love’s testimony, and how the jury could use that evidence, the
prosecutor argued:
“You heard testimony about the Child Sexual Abuse Accommodation
Syndrome or CSAAS. And you were told yesterday that David Love’s
testimony about CSAAS is not evidence that the Defendant committed any of
the charged offenses against him. You can only consider the evidence in
deciding whether or not [Jane’s] conduct was not inconsistent with the
conduct of someone who had been molested…. In plain terms, you can’t use
David Love’s testimony to say that, well, [Jane] reported late, and there were
some inconsistencies about timelines or what happened first, so therefore, the
Defendant must be guilty. You cannot use it that way. It is no evidence
whatsoever that the Defendant is guilty. Instead, this is about evaluating
[Jane’s] conduct, [Jane’s] credibility and did she act consistent with what is
typically seen.”
In response, defense counsel argued:
“I want to talk a second about circumstantial evidence. It’s, um, an
instruction [you got]. And what circumstantial evidence says is basically that
there’s a piece of evidence and it can have two reasonable conclusions,
meaning you can reach two different directions with that piece of evidence
and they’re both reasonable, you have to go in the direction of finding
[defendant] innocent. Not guilty. It doesn’t matter if—if the evidence is
much stronger towards guilt than innocence, the standard, the test is—are both
of them reasonable? If both are reasonable, you have to go with the one that
points towards innocence.”
In rebuttal, the prosecution argued:
“This isn’t a case about circumstantial evidence. [Jane] told you what
happened to her. That is direct evidence. That is not circumstantial evidence.
The only circumstantial evidence you have goes to Defendant’s intent. What
was his intent when he did what he did? What was his intent when he touched
[Jane]? What was his intent when [Jane] touched him? That’s the
circumstantial evidence, because we don’t know, you can’t get into
somebody’s mind and know what they’re thinking at the time. It’s impossible.
So, you look at the circumstances surrounding it. That’s where the
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circumstantial evidence comes into play. And with circumstantial evidence,
you only accept reasonable conclusions and you disregard any conclusions
that are unreasonable. And there’s only one reasonable conclusion in regards
to the Defendant’s intent when he touched his daughter.”
B. Standard of Review
As we have explained above, “[e]rrors in jury instructions are questions of law,
which we review de novo.” (People v. Russell, supra, 144 Cal.App.4th at p. 1424.)
C. Law
“[T]he trial court must instruct on the general principles of law relevant to the issues
raised by the evidence. [Citations.] The general principles of law governing the case are
those principles closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.” (People v. St. Martin (1970) 1 Cal.3d
524, 531.)
“ ‘[D]irect evidence’ means evidence that directly proves a fact, without an inference
or presumption, and which in itself, if true, conclusively establishes that fact.” (Evid. Code,
§ 410.) Direct evidence “stands on its own.” (People v. Ibarra (2007) 156 Cal.App.4th
1174, 1187.) Circumstantial evidence, on the other hand, “involves a two-step process—
first, the parties present evidence and, second, the jury decides which reasonable inference
or inferences, if any, to draw from the evidence.” (Ibid.)
“CALCRIM Nos. 224 and 225 provide essentially the same information on how the
jury should consider circumstantial evidence, but CALCRIM No. 224 is more inclusive.”
(People v. Samaniego, supra, 172 Cal.App.4th at p. 1172.) “The only difference between
the two instructions is that [CALCRIM No. 225] focuses the jury’s attention on the
sufficiency of the circumstantial evidence to prove specific intent or a mental state, while
[CALCRIM No. 224] broadly covers all circumstantial evidence.” (People v. Burch (2007)
148 Cal.App.4th 862, 872 [discussing CALJIC Nos. 2.01 and 2.02, predecessors to
CALCRIM Nos. 224 and 225].) CALCRIM No. 225 is to be used in place of CALCRIM
No. 224 “when the defendant’s specific intent or mental state is the only element of the
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offense that rests substantially or entirely on circumstantial evidence.” (People v. Honig
(1996) 48 Cal.App.4th 289, 341 [discussing CALJIC Nos. 2.01 and 2.02].) Likewise, the
use notes to CALCRIM No. 225 state that “[i]f other elements of the offense also rest
substantially or entirely on circumstantial evidence, do not give this instruction. Give
CALCRIM No. 224.” (Use Note to CALCRIM No. 225 (2011); see People v. Marshall
(1996) 13 Cal.4th 799, 849; People v. Hughes (2002) 27 Cal.4th 287, 347.)
D. Analysis
1. Intent Evidence
Defendant’s contention that his intent was not at issue is plainly erroneous because to
prove the lewd and lascivious acts alleged in counts 3 and 4, the prosecutor was required to
prove beyond a reasonable doubt that defendant harbored a specific intent—that is, that he
“willfully and lewdly commit[ed] any lewd or lascivious act … upon or with the body, or
any part or member thereof, of a child who is under the age of 14 years, with the intent of
arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the
child ….”4 (§ 288, subd. (a).) The prosecution used direct evidence to prove that defendant
willfully and lewdly committed lewd or lascivious acts through the direct evidence of Jane’s
testimony and her forensic interview. The prosecution also proved that Jane was under the
age of 14 years and at least 10 years younger than defendant through the direct evidence of
Jane’s testimony of her date of birth and a police officer’s testimony of defendant’s date of
birth. Accordingly, the remaining element that needed to be proven by the prosecution was
defendant’s intent of arousing, appealing to, or gratifying the lust, passions, or sexual
desires of himself or Jane. (§ 288, subd. (a).)
4 Only general intent was required for counts 1 and 2. “A violation of [former 288a,
subd. (c)(1)] is not a crime requiring a specific intent. To render a person guilty [of oral
copulation] it is not essential to a conviction that the proof should show such person to have
entertained any intent to violate the law. [Citation.] It is sufficient that he intentionally
committed the forbidden act.” (People v. Brocklehurst (1971) 14 Cal.App.3d 473, 476.)
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The prosecutor argued in closing that the circumstances surrounding the acts
demonstrated that defendant had the specific intent to commit lewd and lascivious acts. For
example, the prosecutor argued that the circumstances did not suggest an innocent
explanation for the touchings, such as an accident, or a medical purpose, such as checking
for a rash or pain. Rather, the prosecutor argued that the circumstances suggested only that
defendant engaged in the touchings for sexual gratification. The circumstances that day in
the hotel constituted circumstantial evidence of defendant’s specific intent, warranting the
CALCRIM No. 225 instruction.
2. CSAAS Evidence
We also reject defendant’s contention that Love’s testimony constituted
circumstantial evidence of his guilt. Before Love testified, the trial court admonished the
jury that Love’s testimony about CSAAS was not evidence that defendant committed the
crimes charged, stating that “[y]ou may consider this evidence only in deciding whether or
not [Jane’s] conduct was not inconsistent with the conduct of someone who has been
molested.”
Further, the trial court specifically instructed the jury that Love’s testimony was not
to be considered as evidence of defendant’s guilt, but rather was to be considered only in
determining Jane’s credibility as it related to her behavior after the abuse occurred, i.e.,
waiting to report the abuse and providing varying details between her forensic interview and
trial testimony.
Testimony regarding CSAAS “may be used to negate the inference (i.e., to dispel the
‘misconceptions’ discussed in [People v. Bledsoe (1984) 36 Cal.3d 2365]) that an individual
who acts in conformity with the syndrome has not been raped or molested, while such
5 In Bledsoe, the Supreme Court concluded that evidence of rape trauma syndrome,
similar to CSAAS, cannot be admitted to prove that a defendant committed the crime, but
can only be admitted to rebut misconceptions about the presumed behavior of rape victims.
(People v. Bledsoe, supra, 36 Cal.3d at p. 251.)
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evidence may not be used to prove the person was raped or molested.” (People v. Wells
(2004) 118 Cal.App.4th 179, 193.) A court “handle[s] [CSAAS testimony] carefully and
correctly” where it instructs a jury that CSAAS evidence may not be used to determine guilt,
but rather may only be used to dispel misconceptions about the way an abuse victim is
presumed to act. (People v. Patino (1994) 26 Cal.App.4th 1737, 1745.)
Here, the court instructed the jury properly on how to consider the CSAAS evidence,
stating that the testimony was not to be used as evidence of defendant’s guilt. Defendant
has presented no evidence that the jury misinterpreted the court’s instructions and
considered Love’s testimony as circumstantial evidence of his guilt. We presume that the
jury followed the instructions as given. (People v. Silveria and Travis, supra, 10 Cal.5th at
p. 245.) Accordingly, defendant’s contention that Love’s testimony was circumstantial
evidence of his guilt fails. The admission of the CSAAS evidence did not dictate that
CALCRIM No. 224 be given.
3. Prior Uncharged Acts Evidence
Lastly, we reject defendant’s contention that evidence of his prior uncharged acts—
A.Q.’s testimony of the pool incident and Jane’s testimony of abuse prior to the hotel room
incidents—required instruction with CALCRIM No. 224. Although evidence of the prior
uncharged acts was indeed presented as circumstantial evidence that defendant committed
the current charged crimes, the prosecution did not substantially rely on this evidence to
prove these crimes.
“[E]vidence that [a defendant] committed other sex offenses is … circumstantially
relevant to the issue of his disposition or propensity to commit these offenses.” (People v.
Falsetta (1999) 21 Cal.4th 903, 915.) Here, the bulk of the prosecution’s evidence of the
acts underlying defendant’s current charges relied on the direct evidence of Jane’s trial
testimony and forensic interview. Evidence of defendant’s uncharged acts served to bolster
the prosecution’s case but was not relied upon substantially to prove the prosecution’s case,
especially considering that the charged acts were limited to the 2016 Fresno hotel room
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incidents. Accordingly, because defendant’s specific intent was the only element of the
lewd and lascivious charge that rested substantially on circumstantial evidence, the court did
not err when it instructed with CALCRIM No. 225. (People v. Honig, supra, 48
Cal.App.4th at p. 341.)
E. Harmless Error
Even if the court erred in instructing with CALCRIM No. 225 rather than 224, any
error was harmless. Ordinarily, instructional error is assessed under the Watson reasonable
probability standard. (People v. Watson (1956) 46 Cal.2d 818; People v. Flood (1998) 18
Cal.4th 470, 490.) Only where jury instructions relieve “the prosecution of the burden of
proving beyond a reasonable doubt each element of the charged offense violate the
defendant’s due process rights under the federal Constitution” does the harmless error
standard of Chapman v. California (1967) 386 U.S. 18 apply. (Flood, at p. 491.) Here, the
alleged instructional error did not relieve the prosecution of proving every element of the
charged crimes beyond a reasonable doubt. On the contrary, CALCRIM No. 225 plainly
states that the prosecution must prove each element of the charged crimes beyond a
reasonable doubt. Therefore, the Watson harmless error standard, not the more stringent
Chapman standard, applies. Under the Watson standard, an error was harmless unless
defendant can show that it is “reasonably probable that a result more favorable to [him]
would have been reached in the absence of the error.” (Watson, supra, 46 Cal.2d at p. 836.)
Although CALCRIM No. 225 is less inclusive than CALCRIM No. 224 because it
instructs the jury specifically on the use of circumstantial evidence to prove a mental state, it
also contains the more general language that “[b]efore you may rely on circumstantial
evidence to conclude that a fact necessary to find defendant guilty has been proved, you
must be convinced that the People have proved each fact essential to that conclusion beyond
a reasonable doubt.” This general instruction in CALCRIM No. 225 regarding
circumstantial evidence reminded the jury that all elements of the charged offenses must
have been proven beyond a reasonable doubt.
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Moreover, the jury heard argument from defense counsel regarding circumstantial
evidence that tracked with the language of CALCRIM No. 224. Defense counsel stated that
where circumstantial evidence leads to two reasonable conclusions, the jury must follow the
explanation most favorable to the defendant. The prosecution did not object to this
argument.
Further, as stated previously, the jury was specifically instructed not to consider
Love’s testimony as proof of his guilt. Accordingly, neither CALCRIM No. 224 nor 225,
both of which relate to circumstantial evidence of guilt, correlated to Love’s testimony.
Therefore, the giving of CALCRIM No. 225 rather than 224 would not have impacted the
way the jury analyzed Love’s testimony.
Finally, the jury was instructed to consider the uncharged acts evidence under the
specific instruction of CALCRIM No. 1191A. CALCRIM No. 1191A explicitly instructed
the jury: “If you conclude that the defendant committed the uncharged offenses, that
conclusion is only one factor to consider along with all the other evidence. It is not
sufficient by itself to prove that the defendant is guilty of lewd and lascivious acts and oral
copulation on a child under 14 years.” The scope of CALCRIM No. 1191A is narrower
than CALCRIM No. 225. Accordingly, it is not likely that the jury applied the more general
instruction of CALCRIM No. 225 rather than the specific instruction of CALCRIM
No. 1191A regarding the uncharged acts.
Defendant has failed to demonstrate that a result more favorable to him would have
been reached had the court instructed with CALCRIM No. 224. Therefore, any error in
instructing with CALCRIM No. 225 rather than CALCRIM No. 224 was harmless.
III. CUMULATIVE PREJUDICE
Defendant argues that he is entitled to reversal because of cumulative errors in the
jury instructions. Under the cumulative error doctrine, the cumulative effect of several trial
errors may be prejudicial even if they would not be prejudicial when considered
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individually. (People v. Lua (2017) 10 Cal.App.5th 1004, 1019.) Because we have found
either no error or harmless error, we can find no cumulative error.
DISPOSITION
The judgment is affirmed.
FRANSON, J.
WE CONCUR:
HILL, P. J.
DETJEN, J.
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