People v. Ambrocio-Garcia CA1/3 ( 2023 )

Filed 1/18/23 P. v. Ambrocio-Garcia CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A163906
v. (Solano County
HECTOR AMBROCIO-GARCIA, Super. Ct. No. FCR343767)
Defendant and Appellant.
[REDACTED]
The prosecutor charged defendant Hector Ambrocio-Garcia with
sexually abusing three young girls. The jury acquitted him of the sexual
abuse charges, but it convicted him of misdemeanor battery, assault, and
indecent exposure; the trial court imposed jail time and barred him from
contacting the victims for 10 years. Defendant appeals, raising numerous
claims of error. His principal contention is the admission of a witness’s
conditional examination testimony violated the confrontation clause of the
federal Constitution because the prosecutor did not make a good-faith,
reasonable effort to secure the witness’s presence at trial. We agree, and we
find the error prejudicial. We reverse count 1 — the battery conviction as to
that witness. In all other respects we affirm.
1
BACKGROUND
The prosecutor charged defendant with sexual penetration of Y.L.,
a child under 10 years old (Pen. Code, § 288.7, subd. (b), counts 1 and 2);1
committing a forcible lewd act upon N.R.-L., a child under 14 years old (§ 288,
subd. (b)(1), count 3); committing lewd acts upon R.V.-G., a child under 14
years old (§ 288, subd. (a), counts 4 and 5); and misdemeanor indecent
exposure (§ 314, count 6).
In 2018, Yesenia G.-L. left Central America and entered the United
States illegally. Her six-year-old daughter, R., and her 10-year-old son, L.,
accompanied her. At an immigration appointment, Yesenia met a woman
who lived in defendant’s apartment building. Yesenia needed a place to live,
so the neighbor gave her defendant’s contact information. Thereafter,
Yesenia rented a room in his two-bedroom apartment. She, her two children,
and her brother-in-law lived in one bedroom. Defendant and his two young
children lived in the other bedroom. Later, two other families moved into the
living room — six-year-old Y. and her father, and seven-year-old N. and her
father.
At trial, the prosecutor introduced testimony from several children who
lived in defendant’s apartment. For example, Y. testified defendant hugged
her and touched her genital area once, over her clothes, while N. was
present.2 It made Y. feel badly, but she did not tell her father — who was in
1Undesignated statutory references are to this code. We provide an
overview of the trial testimony here, and more detail in the discussion of
defendant’s specific claims.
2 Y. — who was “out of the country” — did not testify at trial. In
lieu of her testimony, the prosecution played her videotaped conditional
examination for the jury. Y. identified defendant based on a picture; she did
not see him in the courtroom.
2
another room — because he “knew about it already.” Once, she saw
defendant touch N. in the same place he touched her. Y. also witnessed him
showing his genital area to N., but she did not talk with her about it.
[REDACTED]3 [REDACTED]
N. testified that late one evening — while everyone “was sleeping” —
she got up to use the bathroom. Defendant was standing next to the
bathroom. Before she entered the bathroom, he covered N.’s mouth, touched
her “private part” over her underwear, and threatened to “do it again” if she
told her father. N. did not tell her father what happened because she was
afraid defendant “would do that to [her] again.” She did not talk with
Yesenia — or with the other children who lived at the apartment — about the
incident. In a forensic interview, N. said [REDACTED].
R. testified defendant exposed his genitals to her more than once. On
one occasion, her mother, Yesenia, witnessed it and asked her about it, but R.
did not want to talk about it — she was scared “something bad might be
done” to her. Defendant also made R. touch his penis and threatened to “do
things” to her if she told her mother. She told N. — but not her mother —
what happened. In a forensic interview, R. said [REDACTED].
L. testified about an incident when he and his sister, R., saw defendant
come out of the bathroom wearing a towel. Defendant opened the towel,
revealing his boxers.4 When L.’s mother, Yesenia, found out, she “got into
3 The prosecution played video recordings of the children’s February
2019 forensic interviews for the jury, and the trial court admitted interview
transcripts as exhibits. The interviews were conducted in Spanish; the
transcripts were translated into English. Psychologist Anthony Urquiza,
Ph.D., testified regarding child sexual abuse accommodation syndrome
(CSAAS), an educational tool used to dispel misconceptions about how
children respond to sexual abuse.
4 L. was unable to identify defendant at trial.
3
a fight” with defendant. Shortly thereafter, N. told Yesenia about her
experience with defendant. Yesenia, in turn, spoke with N.’s father, and he
and defendant fought. During a forensic interview, L. said [REDACTED].
Yesenia testified defendant exposed himself to her daughter, R.
Yesenia explained that she saw defendant looking at her daughter “in
a different way.” Then her daughter went into her bedroom and defendant
went into his — the bedrooms faced each other. As Yesenia crept toward the
bedrooms, she saw defendant standing near his doorway. The door was open,
and he was playing with his penis while R. watched from her bedroom. When
he saw Yesenia, he pretended like he was going to bed. She planned to
confront him, but her brother-in-law persuaded her not to. Instead, she and
her daughter left the apartment. Although her daughter did not want to
discuss it, she confirmed what happened. Several months later, Yesenia told
R.’s school about the incident, and she asked for help from the immigration
agency. But she received no assistance. Eventually, Yesenia called the
police. After reporting defendant, Yesenia obtained a lawyer and applied for
asylum.
On cross-examination, Yesenia acknowledged coming to the United
States illegally, but she denied wanting to obtain a visa based on her
daughter’s status as a crime victim. She also disclaimed being at risk of
deportation or removal from the United States while living in defendant’s
apartment. Additionally, Yesenia denied both falsely accusing a man in
Central America of sexually assaulting a minor and telling defendant’s
neighbor about it.
The defense offered evidence defendant behaved appropriately with
children. Martha D., the mother of one of defendant’s children, drove Yesenia
to several immigration appointments. During those trips, Yesenia said
4
defendant showed “his part to the girl as he was going to the . . . bedroom,”
yet she continued spending time with him. According to Martha, defendant
acted appropriately when children — including her daughter from another
relationship — were in his care. Another woman, Marisol M., with whom
defendant had a child, lived with defendant for seven years. Marisol’s
children from another relationship, including her six-year-old daughter, also
lived with defendant. He comported himself appropriately around her
children, and he never came out of the bathroom wearing only a towel.
Defendant’s brother testified he behaved respectfully toward his five nieces.
The defense also offered evidence Yesenia had a motive to fabricate the
allegations to obtain asylum. She divulged to defendant’s neighbor that she
and another person falsely accused a man of raping an underage girl in
Central America, and she fled the country because the man wanted to kill
her. In 2019, Yesenia told the neighbor she was going to be deported, and
said she was applying for a U-visa based on the allegations against
defendant. According to another defense witness, Yesenia admitted she
would do “everything . . . to remain in this country.”
Psychologist William O’Donohue testified for the defense as an expert
on child sexual abuse, interviewing alleged child abuse victims, and CSAAS.
He testified perpetrators “usually isolate” their victims during — and after —
the abuse, so a report that other adults were present during the abuse would
be “unusual.” Because victims of sexual abuse have “vivid memories” of the
abuse, it is “unusual” when a child can provide “very few details,” though the
younger the child, the fewer details the child can provide. It is “very rare” for
“children who have actually been sexually abused” to provide inconsistent
“central details” about the abuse. Children are highly suggestible, and
asking them leading questions is a “potent” way to create false memories
5
about an incident. Parents can also influence a child’s answers by implying
there is an incentive for answering a question in a particular way. Over
defense counsel’s objection, Dr. O’Donohue testified his research found most
child sexual abuse allegations are true.
After deliberating for approximately two days, the jury acquitted
defendant of counts 1 through 5, but it convicted him of two counts of battery
(lesser included offenses of counts 1 and 4), assault (a lesser included offense
of count 3), and indecent exposure (count 6). The trial court sentenced
defendant to time served, ordered him to register as a sex offender, and
issued criminal protective orders prohibiting him from contacting Y., N., and
R. for 10 years.
DISCUSSION
Defendant challenges the convictions on several grounds. We address
each argument in turn.
I.
Defendant first argues the admission of Y.’s conditional examination
violated his federal constitutional rights to confront and cross-examine
witnesses. He contends the conditional examination was inadmissible
because the prosecutor failed to establish it exercised due diligence in
securing Y.’s presence at trial, and that the error was prejudicial under
Chapman v. California (1967) 386 U.S. 18, 24. We agree.
As background, the prosecutor moved to conditionally examine Y. (See
§ 1335 et seq.)5 According to the motion — and a declaration submitted on
5Sections 1335 through 1345 govern conditional examinations. In
noncapital cases, the prosecution may move for an order “ ‘compelling
a material witness to submit to a conditional examination if the witness “is
about to leave the state . . . .” ’ ” (People v. Foy (2016) 245 Cal.App.4th 328,
341–342 (Foy); § 1337, subd. (d)(1).) At the conditional examination, the
6
information and belief — Y.’s father had been deported, she was in foster
care, and the dependency court had determined she would be returned to
her mother’s care in Guatemala. The prosecutor argued a conditional
examination was necessary because Y. — a material witness on counts 1
and 2 “and the only percipient witness to those incidents” — was scheduled to
leave the state.
Defense counsel asserted a confrontation clause objection, arguing
a conditional examination would be tantamount to “trial by video.” Counsel
reasoned it would be difficult to assess Y.’s demeanor, her competency to
testify, and her credibility on video; these issues, counsel explained, were
paramount as the prosecutor’s case depended entirely on witness credibility.
In response, the prosecutor insisted a conditional examination was necessary
as she had “no basis to believe” Y.’s parents planned to return to the United
States or that they would be able to do so. And the prosecutor noted the
admissibility of the conditional examination — including the prosecutor’s
diligence in securing Y.’s presence at trial — was an issue for another day.
The trial court agreed; it allowed the conditional examination to proceed,
observing defendant could litigate its admissibility before trial.
Thereafter, Y. — seven years old at the time — was sworn and testified
at a videotaped conditional examination. Defendant attended the conditional
examination, and his counsel cross-examined Y. Before trial, the prosecutor
moved to admit the conditional examination in lieu of live testimony
pursuant to section 1345, arguing Y. was unavailable within the meaning of
Evidence Code section 240 because she had returned to Guatemala, and
defendant has the right to be present with counsel (§ 1340, subd. (a)). The
witness testimony must “be reduced to writing and authenticated in the same
manner as the testimony of a witness taken in support of an information,”
and “may be video-recorded.” (§ 1343.)
7
neither she (nor her mother) had “plans to return to the United States in the
near future, if ever.” Relying on authorities including Evidence Code section
240, subdivision (a)(4), the prosecutor posited she need not show diligence in
securing Y’s presence at trial. The trial court asked the prosecutor, whether
Y., “as far as we know, is now out of the country,” and whether she had “[n]o
plans to return in the near future.” The prosecutor responded, “Yes.”
Defense counsel objected. She maintained the admission of the evidence
violated the confrontation clause of the federal Constitution. The court
granted the motion to admit the conditional examination. It stated, barring
“evidence that [Y.] is now available and can be subpoenaed,” the videotape of
her conditional examination would be played for the jury.
We begin by summarizing the relevant constitutional principles. The
state and federal Constitutions guarantee a criminal defendant the right to
confront the prosecution’s witnesses. (People v. Herrera (2010) 49 Cal.4th
613, 620 (Herrera).) “The right of confrontation ‘seeks “to ensure that the
defendant is able to conduct a ‘personal examination and cross-examination
of the witness, in which [the defendant] has an opportunity, not only of
testing the recollection and sifting the conscience of the witness, but of
compelling him to stand face to face with the jury in order that they may look
at him, and judge by his demeanor upon the stand and the manner in which
he gives his testimony whether he is worthy of belief.’ ” ’ ” (Id. at pp. 620–
621.) Denying or significantly diminishing “ ‘this right deprives a defendant
of the essential means of testing the credibility of the prosecution’s witnesses,
thus calling “into question the ultimate ‘ “integrity of the fact-finding
process.” ’ ” ’ ” (Id. at p. 621.)
The right of confrontation, however, is not absolute — an exception
exists “ ‘when a witness is unavailable and, at a previous court proceeding
8
against the same defendant, has given testimony that was subject to cross-
examination.’ ” (Foy, supra, 245 Cal.App.4th at p. 338.) This exception is
codified in section 1345, which provides that a video-recorded conditional
examination may be shown at “trial if the court finds that the witness is
unavailable as a witness within the meaning” of Evidence Code section 240.
As relevant here, there are two closely related — but slightly different —
ways in which a witness may be deemed unavailable under Evidence Code
section 240. (People v. Smith (2003) 30 Cal.4th 581, 610 (Smith).) Under
subdivision (a)(4), a witness is unavailable when she is absent and the trial
court is unable to compel her attendance by its process. (Evid. Code, § 240,
subd. (a)(4).) Under subdivision (a)(5), a witness is unavailable when she is
absent and the proponent of the evidence “has exercised reasonable diligence
but has been unable to procure . . . her attendance by the court’s process.”
(Id., subd. (a)(5).)
Although Evidence Code section 240, subdivision (a)(4) does not contain
a “ ‘reasonable diligence’ requirement, . . . unavailability in the constitutional
sense nonetheless requires a determination that the prosecution satisfied its
obligation of good faith in attempting to obtain [the witness’s] presence.”
(Herrera, supra, 49 Cal.4th at pp. 622–623.) In this respect, the
“constitutional and statutory requirements are ‘in harmony.’ ” (Smith, supra,30 Cal.4th at p. 609; People v. Valencia (2008) 43 Cal.4th 268, 291–292.) The
proponent of the evidence has the burden of showing — by competent
evidence — the witness is unavailable (Foy, supra, 245 Cal.App.4th at p. 339)
and “that it made a ‘good-faith effort’ . . . or, equivalently, exercised
reasonable or due diligence to obtain the witness’s presence at trial.” (People
v. Sánchez (2016) 63 Cal.4th 411, 440; Herrera, at p. 623.)
9
Reasonable diligence — also called due diligence — has been described
as “ ‘ “untiring efforts in good earnest, efforts of a substantial character.” ’ ”
(People v. Cogswell (2010) 48 Cal.4th 467, 477.) Considerations relevant to
this inquiry “ ‘include the timeliness of the search, the importance of the
proffered testimony, and whether leads of the witness’s possible location were
competently explored.’ ” (Herrera, supra, 49 Cal.4th at p. 622.) In “ ‘cases in
which courts have not found adequate diligence, the efforts of the prosecutor
or defense counsel have been perfunctory or obviously negligent
[Citations.] . . . On the other hand, diligence has been found when the
prosecution’s efforts are timely, reasonably extensive and carried out over
a reasonable period.’ ” (People v. Torres (2020) 48 Cal.App.5th 731, 748.) “On
review we defer to the trial court’s factual findings that are supported by
substantial evidence, but we ‘independently review whether the facts
demonstrate prosecutorial good faith and due diligence.’ ” (Foy, supra,
245 Cal.App.4th at p. 339.)
People v. Sandoval (2001) 87 Cal.App.4th 1425 (Sandoval) is
instructive. There, Elias Zavala — a witness to his brother’s murder —
testified at a preliminary hearing but was deported to Mexico before trial.
(Id. at pp. 1428, 1432.) The prosecution offered evidence he was “willing to
testify if he could get a passport and visa to enter the United States legally,”
but he needed money to travel to Mexico City to apply for a passport and visa,
and to make the trip to California. The prosecution, however, elected not to
help Zavala make the trip to Mexico City, “and apparently did nothing more
to secure his attendance at the trial.” (Id. at p. 1432.) The trial court
impliedly concluded Zavala was unavailable and admitted his preliminary
hearing testimony; a jury convicted defendants of murder and other crimes.
(Id. at pp. 1428, 1432–1433.)
10
Sandoval reversed, holding the prosecution failed to show it made
a reasonable, good-faith effort to obtain Zavala’s attendance at trial.
(Sandoval, supra, 87 Cal.App.4th at p. 1428.) The court acknowledged
Zavala was absent, and the trial court had no power to compel his
appearance. But it declined to conclude the prosecution had no obligation to
make a good-faith effort to obtain his attendance at trial “simply because the
court could not compel his presence” under a mutual legal assistance treaty
between Mexico and the United States. (Id. at p. 1440.) As Sandoval
reasoned, the court’s power to compel a witness’s attendance is not “the sine
qua non of the requirement to make a good faith effort to obtain the
attendance of a witness. Instead, power to compel is merely one factor to
consider in determining whether such effort would be futile and therefore
need not be undertaken.” (Id. at pp. 1440–1441.) Sandoval held there “was
a possibility, not remote, even perhaps a likelihood, that Zavala would attend
if the prosecution assisted him” even “without reference or resort to the
Treaty.” (Id. at pp. 1441–1442.) The court continued, “[c]onsideration of the
options available to the prosecution and the extent to which the prosecution
attempted to use these alternatives to obtain Zavala’s presence establishes
that the prosecution did not make a reasonable, good-faith effort.” (Id. at
p. 1444; compare People v. Martinez (2007) 154 Cal.App.4th 314, 329 [upon
learning the witness was in Canada, the prosecution contacted various
governmental entities, including “immigration authorities in Canada,” and
spoke to the witness and offered to pay his travel expenses].)
We now turn to the parties’ arguments. The Attorney General argues
defendant forfeited his challenge to the admission of Y.’s conditional
examination by neglecting to “specifically object” to the prosecutor’s failure to
use reasonable diligence to secure Y.’s presence at trial. This contention is
11
meritless. Defense counsel objected — twice — on Sixth Amendment
confrontation grounds. It is well settled a witness is not constitutionally
unavailable for purposes of an exception to the confrontation requirement
unless the prosecution has made a good-faith effort to obtain the witness’s
presence at trial. (Crawford v. Washington (2004) 541 U.S. 36, 53–54; Foy,
supra, 245 Cal.App.4th at p. 345.) Thus, counsel’s objection was sufficient to
alert the trial court to the grounds for exclusion. (See People v. Holt (1997)
15 Cal.4th 619, 666–667; People v. Sánchez, supra, 63 Cal.4th at p. 442.)
Additionally, because the prosecutor argued it was “unnecessary to make
a showing of good faith effort” — and the trial court agreed — any “argument
to the contrary would have been futile.” (Sandoval, supra, 87 Cal.App.4th at
p. 1433, fn. 1 [failure to raise due diligence argument “was not a waiver of the
issue”].) But assuming for the sake of argument the claim is forfeited, we
exercise our discretion to reach the merits. (See People v. Tate (2010)
49 Cal.4th 635, 677, fn. 23; People v. Dunley (2016) 247 Cal.App.4th 1438,
1447.)
The Attorney General next contends the prosecutor established Y. was
unavailable by offering “uncontradicted evidence” she was “in Guatemala at
the time of trial without plans to return to the United States.”6 Not so.
There was no evidence before the trial court that Y. wasn’t planning to return
to California for trial. There was only the prosecutor’s conclusory
representation — made before the conditional examination — that she had
“no basis to believe” Y.’s parents planned to return to the United States, and
6 The Attorney General also asserts the conditional examination was
admissible under state law without a showing of due diligence. We need not
decide this issue as defendant contends the admission of the evidence
violated the confrontation clause of the federal Constitution. (Foy, supra,
245 Cal.App.4th at p. 344.)
12
her unsubstantiated claim — made on the eve of trial — that, “as far as we
know,” Y. had no plans to return to California. “[U]nsworn statements of
counsel are not evidence.” (In re Zeth S. (2003) 31 Cal.4th 396, 414, fn. 11.)
Also absent from the record is evidence the prosecutor made any effort to
procure Y.’s attendance at trial, such as impressing upon Y.’s mother that her
daughter was a material witness and seeking her assurance she and Y. would
voluntarily return to California, or by providing Y.’s mother with information
and resources to facilitate Y.’s reentry to testify. (See People v. Roldan (2012)
205 Cal.App.4th 969, 984; Sandoval, supra, 87 Cal.App.4th at p. 1442.)
Moreover, the Attorney General concedes the prosecutor offered no
information as to the existence — or absence — of “agreements or established
procedures for securing a witness’s presence that depend on the voluntary
assistance of another government. [Citation.] Where such options exist, the
extent to which the prosecution had the opportunity to utilize them and
endeavored to do so is relevant in determining whether the obligations to act
in good faith and with due diligence have been met.” (Herrera, supra,49 Cal.4th at p. 628, 617 [prosecution provided evidence “El Salvador and the
United States had no treaty providing for [the witness’s] extradition to this
country to testify”]; People v. Torres, supra, 48 Cal.App.5th at p. 736
[prosecutor alerted court to the absence of a bilateral treaty or mutual
agreement].)
The Attorney General seems to invite us to conclude the prosecutor did
everything she could to secure Y.’s presence at trial based solely on an
unsworn and unsubstantiated representation that Y. had no plans to return
to the United States. “We believe the Sixth Amendment demands a more
particularized showing of due diligence . . . . After all, as we have noted, the
prosecution has the burden of proof when it comes to establishing the
13
unavailability of its witnesses.” (People v. Roldan, supra, 205 Cal.App.4th at
p. 984; People v. Louis (1986) 42 Cal.3d 969, 992 [“failure to take such
minimal action plainly conflicts with the claim that the prosecution exercised
due diligence”].)
The Attorney General’s reliance on Smith, supra, 30 Cal.4th 581 is
unavailing. In Smith, the trial court admitted the preliminary hearing
testimony of a foreign exchange student who returned to Japan before trial.
(Id. at pp. 608–609.) The California Supreme Court affirmed, holding the
prosecution satisfied its burden of showing due diligence by offering evidence
an investigator in the district attorney’s office called the witness’s telephone
number in Japan, asked to speak to the witness, and a “male voice
answered, ‘Yes, this is me.’ ” (Id. at pp. 608, 611.) On questioning by the
court, the investigator testified he believed he could not compel the witness’s
presence “because he was in Japan.” (Id. at p. 609.) This information, Smith
determined, “sufficed to show that the prosecution made reasonable efforts to
locate [the witness] and that further efforts to procure his attendance would
be futile.” (Id. at p. 611.) Smith is distinguishable. Here — and in contrast
to Smith — the prosecutor offered no evidence of its efforts to locate Y. or to
procure her attendance at trial. Additionally, in Smith, the defendant did not
argue “the prosecution was required to do more to procure his attendance,
such as request that he come voluntarily to testify” (id. at p. 611, fn. 6), but
that argument is before us here.
Also distinguishable is Herrera, supra, 49 Cal.4th 613, where the
defendant, a gang member, was charged with murder and gang-related
enhancements. At a preliminary hearing, a prosecution witness (and former
gang member) testified the defendant confessed to the murder. The witness,
however, was deported to El Salvador before trial. (Id. at pp. 617–618.) In
14
connection with its motion to admit the witness’s preliminary hearing
testimony, the prosecution offered evidence it unsuccessfully attempted to
locate the witness in El Salvador, and that even if the witness “could be
located in El Salvador, that country had no treaty with the United States and
would not extradite him.” (Id. at pp. 620, 628–629.)
The California Supreme Court upheld the admission of the witness’s
preliminary hearing testimony, concluding ample evidence demonstrated the
witness was in El Salvador at the time of trial, “and therefore beyond the
court’s own process.” (Herrera, supra, 49 Cal.4th at p. 629.) As Herrera
observed, it was undisputed the prosecution’s efforts to locate the witness
“proved unsuccessful,” and that had the witness been found, there was no
“agreement or treaty providing for an alternative means to compel or
facilitate his attendance” at trial. (Ibid.) Herrera concluded “the prosecution
fulfilled its obligation of good faith and due diligence under the
circumstances, that [the witness] was unavailable . . . , and that therefore
admission of his preliminary hearing testimony at trial was proper.” (Ibid.)
Unlike Herrera, the prosecutor here made no documented effort to locate Y.
in Guatemala, and the record is devoid of evidence regarding the prosecutor’s
ability to compel Y.’s presence or facilitate her attendance at trial.
Applying our independent judgment, we conclude the prosecutor did
not satisfy her burden of showing due diligence in securing Y.’s presence at
trial. (Sandoval, supra, 87 Cal.App.4th at p. 1444.) In reaching this
conclusion, we do not hold the prosecutor must, in every case, attempt to
secure a witness’s voluntary return from a foreign country. We are mindful
the law neither requires futile acts (Herrera, supra, 49 Cal.4th at p. 622) nor
demands “ ‘prescient perfection’ ” in securing a witness’s testimony. (People
15
v. Diaz (2002) 95 Cal.App.4th 695, 706 [appellate court will not reverse due
diligence finding merely “ ‘because the defendant can conceive of some
further step or avenue left unexplored by the prosecution’ ”].) But if there is
a possibility — even a remote one — that prosecutorial actions might produce
the witness, “the obligation of good faith may demand their effectuation.”
(Herrera, at p. 622.) And appellate review would benefit from prosecutors
making a record of what efforts were undertaken to secure the witness’s
presence. On this record, we cannot conclude the prosecutor satisfied her
burden of showing due diligence. (Sandoval, at p. 1442.)
Thus, the trial court’s admission of Y.’s conditional examination
testimony violated defendant’s Sixth Amendment confrontation rights. (Foy,
supra, 245 Cal.App.4th at p. 350.) We now consider whether the error is
prejudicial as to count 1, the conviction for battering Y. The parties agree
reversal is required unless the record shows beyond a reasonable doubt
defendant was not prejudiced. (Chapman v. California, supra, 386 U.S. at
pp. 23–24; Foy, at p. 350.) “To determine whether a confrontation clause
violation is harmless beyond a reasonable doubt, courts consider ‘the
importance of the witness’[s] testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of evidence corroborating
or contradicting the testimony of the witness on material points, the extent of
cross-examination otherwise permitted, and, of course, the overall strength of
the prosecution’s case.’ ” (Foy, at p. 351.)
The Attorney General concedes a violation of the confrontation clause
mandates reversal. We accept the concession. Y.’s conditional examination
was crucial to count 1, as she was the victim and primary witness, and the
16
Attorney General does not point to other evidence supporting the conviction.7
That the conditional examination was videotaped — which permitted the jury
to evaluate Y.’s demeanor and assess her credibility — does not, by itself,
eliminate the harm in admitting the evidence. (Foy, supra, 245 Cal.App.4th
at pp. 351–352.) Finally, defendant offered a plausible defense to the sexual
abuse charges — that he behaved appropriately around children, and Yesenia
had a motive to orchestrate the allegations to obtain asylum. (Id. at p. 351.)
But we disagree with defendant’s cursory contention the error was
prejudicial as to the indecent exposure conviction. During her conditional
examination, Y. testified she saw defendant expose himself to N., but as
discussed in more detail, post, this conduct was not the basis for the indecent
exposure charge. We reject as undeveloped defendant’s assertion that the
conditional examination testimony was “propensity evidence” of “a touching
involving N.” Issues unsupported by substantive argument or citation to
authority are waived. (Upshaw v. Superior Court (2018) 22 Cal.App.5th 489,
504 & fn. 7.)
II.
Defendant next contends the trial court erred by admitting the
children’s forensic interviews (interviews) pursuant to Evidence Code section
1360, which “ ‘creates a limited exception to the hearsay rule in criminal
prosecutions for a child’s statements describing acts of child abuse or neglect,
including statements describing sexual abuse.’ ” (People v. Mitchell (2020)
7Defendant maintains that had Y.’s conditional examination been
excluded, so too would have her forensic interview. The Attorney General
does not disagree.
17
46 Cal.App.5th 919, 927.) We conclude the court properly admitted the
interviews of N., R., and L.8
We provide relevant background to contextualize the claim. Before
trial, the prosecutor moved to admit video recordings of the interviews
conducted in Spanish and transcripts of the interviews translated into
English. (Evid. Code, §§ 1360, 751, 753.) Defense counsel objected; according
to counsel, admitting the interviews would violate defendant’s constitutional
rights to confrontation, due process, and a fair trial. Counsel also suggested
the interviews may be cumulative under Evidence Code Section 352. The
trial court provisionally granted the motion to admit the interviews. With
the caveat it had not “seen these statements,” the court concluded unless
“something else” demonstrated the statements were unreliable, the
interviews were admissible under Evidence Code section 1360. After R.
testified, but before the prosecutor played her interview for the jury, the court
revisited the reliability issue. It recited the relevant factors — spontaneity
and consistent repetition, the declarant’s mental state, use of terminology
unexpected of a child of similar age, and lack of motive to fabricate. Then the
court reminded the parties it had not reviewed the interviews, and it asked
for an offer of proof on reliability.
The prosecutor made a detailed offer of proof regarding each factor. In
response, defense counsel insisted the statements were not spontaneous
because [REDACTED]. The court found R.’s interview sufficiently reliable
and permitted the prosecutor to play the video for the jury. When it came
time to play the videos of the other interviews, defense counsel submitted on
her prior objections.
8We do not address the admissibility of Y.’s interview, as we have
concluded count 1 must be reversed.
18
On appeal, defendant challenges the admission of the interviews on
three grounds. We address each argument, but find none persuasive.
Defendant first argues the trial court erred by failing to review the interviews
before admitting them, but he did not make this request below, and he
concedes a trial court may rely on an offer of proof when deciding whether to
admit evidence. (People v. Holford (2012) 203 Cal.App.4th 155, 174
(Holford).) While the better practice would have been for the court to watch
the videos and read the transcripts before ruling on their admissibility, the
court’s failure to do so was not an abuse of discretion. (People v. Diaz (2014)
227 Cal.App.4th 362, 379; Holford, at p. 174; People v. Pedroza (2007)
147 Cal.App.4th 784, 795 [no error in relying on counsel’s description of
videotape without personally reviewing it].) We have no reason to presume
the court did not understand the nature of the evidence at issue, nor any
reason to suspect the court was unable to make an informed decision as to
Evidence Code section 1360’s foundational requirements. (Holford, at
pp. 174–175.)
In arguing otherwise, defendant relies on People v. Diaz, supra,
227 Cal.App.4th 362, but that case does not assist him. There, in a drunk-
driving case, the prosecution sought to admit videos containing “highly
emotional footage of victims and their families discussing the impact of
alcohol-related crashes, unrelated to the charged offenses.” (Id. at p. 379.)
The prosecution submitted transcripts of the videos in connection with its
offer of proof, but the trial court did not watch the videos before admitting
them. (Ibid., fn. 11.) Diaz faulted the court for failing to do so, but it took
care to note it was not holding “a trial court necessarily commits reversible
error by failing to view a video” before admitting it. (Ibid.) Moreover, the
interviews bear little resemblance to the “large amount of extremely
19
prejudicial material” at issue in Diaz. (Id. at p. 380.) Finally, defendant has
not demonstrated the “court’s decision would have been different had it
reviewed the [interviews] prior to making its ruling.” (Holford, supra,
203 Cal.App.4th at p. 175.)
Defendant next contends the interviews are not reliable within the
meaning of Evidence Code section 1360, which allows a trial court to admit
a child’s hearsay statement describing an act of child abuse upon that child if
the court finds — in a hearing conducted outside the presence of the jury —
the “time, content, and circumstances of the statement provide sufficient
indicia of reliability,” the statement is not otherwise inadmissible, and the
child testifies at the proceedings or is unavailable but other evidence
corroborates the abuse. (Id., subds. (a)(1)–(3).)
The parties agree the following nonexclusive factors are relevant in
determining reliability: spontaneity and consistent repetition; mental state of
the declarant; use of terminology unexpected of a child of similar age; and
lack of motive to fabricate. (People v. Brodit (1998) 61 Cal.App.4th
1312, 1330.) The child’s ability to distinguish between truth and falsehood
and to tell the truth is also a relevant factor (In re Cindy L. (1997) 17 Cal.4th
15, 34–35), but it does “not necessarily render the child’s hearsay statements
unreliable.” (Brodit, at p. 1330.) “Courts have ‘considerable leeway in their
consideration of appropriate factors.’ [Citation.] The ‘unifying principle is
that these factors relate to whether the child declarant was particularly
likely to be telling the truth when the statement was made.’ ” (People v.
Roberto V. (2001) 93 Cal.App.4th 1350, 1374.) We review the admission of
evidence under Evidence Code section 1360 for abuse of discretion (Brodit, at
pp. 1329–1330), and we uphold the trial court’s findings leading to its
20
admissibility determination “if they are supported by substantial evidence.”
(In re Lucero L. (2000) 22 Cal.4th 1227, 1249.)
Here, the time, content, and circumstances of the interviews provide
sufficient indicia the statements are reliable. (Evid. Code, § 1360,
subd. (a)(2).) A police officer interviewed each child shortly after the alleged
abuse was reported, with no family members present. The officer ensured
each child could distinguish between truth and falsehood, and
[REDACTED]. The officer also asked open-ended questions. (People v.
Eccleston (2001) 89 Cal.App.4th 436, 440.) As to the first factor —
spontaneity and consistent repetition — the statements were spontaneous in
the sense [REDACTED] when the interviewer asked [REDACTED]. (Id. at
pp. 442, 446.) Defendant correctly observes [REDACTED] may have been
attributable to their young age — at the time of the interviews, N. was eight
years old, and R. was only six years old. (Id. at p. 446.)
Regarding the second factor, nothing about the children’s mental state
indicates their statements were unreliable. [REDACTED]. The third
factor — use of unexpected terminology — does not undercut the reliability
of the children’s statements. (Eccleston, at p. 447.) Finally — and despite
defendant’s fleeting assertion to the contrary — nothing in the interviews
themselves suggests the children had a motive to fabricate. In sum, we
conclude the trial court did not abuse its discretion in admitting the
interviews, as substantial evidence supports its determination the
statements contained sufficient indicia of reliability. (Brodit, at p. 1330.)
Lastly, defendant contends the interviews were more prejudicial than
probative under Evidence Code section 352. This argument is forfeited.
A party “may not argue on appeal that the court should have excluded the
evidence for a reason different from the one stated at trial.” (Holford, supra,
21
203 Cal.App.4th at p. 169.) In the trial court, defense counsel suggested the
interviews might be cumulative, but she did not argue they were unduly
prejudicial. Thus, the objection did not alert the court to the basis on which
counsel now seeks to exclude the evidence. (Cf. People v. Scott (2015)
61 Cal.4th 363, 402 [argument preserved where trial court addressed undue
prejudice].) Assuming for the sake of argument the claim is preserved, it fails
on the merits. (Holford, at pp. 161, 167, 170–171, 175 [no abuse of discretion
under Evid. Code § 352 in admitting 25-minute video containing “extremely
graphic child pornography”].)
III.
Defendant also asserts the trial court erred by admitting testimony
that most child sexual abuse allegations are true. We conclude any assumed
error is harmless.
By way of background, the prosecutor indicated she intended to call Dr.
Urquiza as an expert witness on CSAAS. As relevant here, defendant urged
the trial court to exclude testimony on the statistical probability child abuse
victims are truthful. Such testimony, defendant argued, would run afoul of
People v. Julian (2019) 34 Cal.App.5th 878, which held evidence regarding
“the statistical percentage of false allegations by child sexual abuse victims”
is inadmissible. (Id. at pp. 883, 886.) The prosecutor disclaimed an intention
to elicit such testimony, and the court prohibited Dr. Urquiza from testifying
as to the “percentage of allegations that appear to be false in child
molestation situations,” and from making statements that false sexual abuse
allegations “don’t happen very often.” Before he testified, the court
instructed the jury his testimony was “not evidence” defendant committed the
charged crimes, and it admonished the jury to consider his testimony “only in
deciding whether or not the conduct of the complaining witnesses was not
22
inconsistent with the conduct of someone who’s been molested and in
evaluating the believability” of the complaining witness’s testimony.
During the defense case, Dr. O’Donohue testified it is “unusual” for
a victim of child sexual abuse to not recall central details about the abuse,
and that it is “very rare” for a victim to provide inconsistent core details
about the abuse. On cross-examination, the prosecutor asked Dr. O’Donohue
whether he had “published in the area of either false allegations or mistaken
allegations,” and he replied, “[c]orrect.” Next, the prosecutor asked about an
article he co-authored concluding “most allegations are true.” Defense
counsel objected. At a sidebar, the prosecutor insisted the question was
appropriate because Dr. O’Donohue testified children make false disclosures,
but defense counsel countered the testimony did not “open the door” to cross-
examination regarding the percentage of truthful child abuse allegations.
The trial court permitted the prosecutor to ask one question about whether
false allegations are “common or uncommon,” but cautioned counsel not to
“get into any numbers.” Thereafter, the prosecutor asked Dr. O’Donohue
whether the article he co-authored concluded false allegations are uncommon.
Over defense counsel’s objection, he answered, “No. Well, what we did
conclude is that most allegations are true.”
On appeal, defendant asserts the trial court erred by permitting the
prosecutor to elicit testimony from Dr. O’Donohue that most child abuse
allegations are true because the testimony invaded the province of the jury.
The Attorney General acknowledges the prosecution may not offer expert
testimony on the statistical likelihood of false child abuse allegations during
its case-in-chief, but asserts such evidence is proper on cross-examination.
We express no opinion on this issue. Several courts have held this type of
evidence is inadmissible because it violates “the general rule that an expert
23
may not give an opinion as to whether another witness is telling the truth or
the defendant is guilty.” (People v. Lapenias (2021) 67 Cal.App.5th 162, 179
(Lapenias); People v. Wilson (2019) 33 Cal.App.5th 559, 570.) In light of this
authority, we assume for the sake of argument the court erred by permitting
the prosecutor to elicit testimony from Dr. O’Donohue that false child abuse
allegations are uncommon.
We nevertheless conclude the assumed error is harmless, for it is not
reasonably probable defendant would have achieved a more favorable
result in the absence of the challenged testimony. (People v. Prieto (2003)
30 Cal.4th 226, 247.) Dr. O’Donohue’s testimony was brief — his response to
the prosecutor’s question comprised two lines of a 50-page cross-examination,
in a trial transcript spanning nearly a thousand pages — and the prosecutor
did not mention the challenged testimony during closing argument.
Moreover, defense counsel reminded the jury “this case is not about
whether . . . people who make accusations of sexual abuse are reliable or
righteous in their claims.” The trial court instructed the jury it was not
bound by an expert’s opinion, it was the sole judge of witness credibility, and
it could not consider testimony on CSAAS as evidence defendant committed
a crime. (See CALCRIM Nos. 332, 226, 1193.) We presume the jurors
understood and followed these instructions. (Lapenias, supra, 67 Cal.App.5th
at p. 180.) Finally, the jury’s acquittal on the sexual abuse charges suggests
it was not swayed by Dr. O’Donohue’s fleeting testimony that most child
abuse allegations are true.
On this record, any error in allowing the prosecutor to elicit the
testimony during Dr. O’Donohue’s cross-examination was not prejudicial.
(Lapenias, supra, 67 Cal.App.5th at p. 180; People v. Wilson, supra,
33 Cal.App.5th at pp. 568, 572; compare People v. Julian, supra,
24
34 Cal.App.5th at pp. 888–889 [jury was “bombarded” with evidence
regarding the low statistical incidence of false allegations of child sexual
abuse and presented with “a mountain of prejudicial statistical data”].)
Defendant’s argument to the contrary does not alter our conclusion — the
length of the jury deliberations, its request to review Y.’s interview
transcript, and its brief deadlock do not establish prejudice. Rather, these
circumstances could suggest the jury carefully reviewed the evidence with
respect to each charge and did not reach a verdict of guilt based upon Dr.
O’Donohue’s testimony. (See People v. Walker (1995) 31 Cal.App.4th 432,
436–439.) Finally, we reject defendant’s contention that the admission of the
challenged testimony violated his due process rights. (Lapenias, at p. 174.)
IV.
Defendant next contends the trial court violated his federal
constitutional rights to due process and a fair trial by failing to give
a unanimity instruction on count 6, indecent exposure. We disagree.
In a criminal case, the jury’s verdict must be unanimous. (Ramos v.
Louisiana (2020) ___ U.S. ___ [140 S.Ct. 1390, 1394–1395]; People v. Russo
(2001) 25 Cal.4th 1124, 1132.) The jury must also unanimously agree the
defendant is guilty of a specific crime. (Russo, at p. 1132.) When “the
evidence suggests more than one discrete crime, either the prosecution must
elect among the crimes or the court must require the jury to agree on the
same criminal act.” (Ibid.) Thus, a unanimity instruction is not required if
prosecution elects the specific act relied upon to prove the charge. (People v.
Jennings (2010) 50 Cal.4th 616, 679.) The prosecution makes an election by
tethering the charge to a specific criminal act elicited from the testimony.
(People v. Brugman (2021) 62 Cal.App.5th 608, 627; People v. Wilson (2020)
56 Cal.App.5th 128, 162.)
25
Here, the prosecutor presented evidence defendant exposed himself to
Y., N., and R. on more than one occasion. But no unanimity instruction was
required because she told the jury during closing argument that count 6
applied to the incident when defendant exposed himself to R. in his bedroom
doorway. After summarizing the elements of indecent exposure, the
prosecutor argued defendant “came out of the shower one day with his towel
wrapped around his waist, nothing on underneath, sees (R.) standing in the
doorway of the bedroom . . . . And he opened up that towel and he showed me
the thing men have, in [her] words. He showed me the thing men have.” On
this record, we have no difficulty concluding the prosecutor elected the
specific act relied upon to prove count 6. (People v. Brugman, supra,
62 Cal.App.5th at pp. 629–630; People v. Jantz (2006) 137 Cal.App.4th 1283,
1292.)
The prosecutor’s election was not — as defendant insists — “unclear.”
True, the prosecutor urged the jury to reject testimony from a defense
witness that defendant always emerged from the bathroom fully clothed. But
the prosecutor’s comment, made in the context of urging the jury to reject the
defense theory of the case — that Yesenia fabricated the charges to obtain
asylum — was unlikely to confuse the jury regarding the election. Likewise,
the prosecutor’s references during closing argument to charges against other
victims did not render the election ambiguous. (See People v. Wilson, supra,
56 Cal.App.5th at p. 162.)
V.
Defendant’s penultimate contention is the trial court abused its
discretion by imposing postconviction protective orders prohibiting him from
contacting Y., N., and R. Not so.
26
Defendant’s indecent exposure conviction obligated him to register
pursuant to section 290, subdivision (c). At sentencing, the prosecutor
requested 10-year protective orders barring defendant from contacting the
three girls pursuant to section 136.2, subdivision (i)(1). As relevant here, the
statute provides that when a defendant has been convicted of an offense
requiring registration pursuant to section 290, subdivision (c), the court
“shall consider issuing an order restraining the defendant from any contact
with a victim of the crime” for “up to 10 years.” The trial court imposed the
protective orders over defense counsel’s objection.
For the first time on appeal, defendant asserts the trial court lacked
authority to issue protective orders as to Y. and N. because they are not
“victims” within the meaning of section 136.2. Though this claim is
cognizable on appeal, it lacks merit.9 For purposes of a protective order
issued under section 136.2, “victim” includes any “person with respect to
whom there is reason to believe that any crime as defined under the laws of
this state . . . has been perpetrated or attempted to be perpetrated.” (§ 136,
subd. (3).) Courts interpret the term victim “broadly to include any
individual against whom there is ‘some evidence’ from which the court could
find the defendant had committed or attempted to commit some harm.”
(People v. Race (2017) 18 Cal.App.5th 211, 219.) Indeed, “the subject of
a protective order pursuant to section 136.2, subdivision (i)(1) need not be
a named victim of one of the offenses for which the defendant [has been]
convicted.” (Ibid.) Furthermore, when considering whether to issue
9 Defendant also contends the protective order is unwarranted because
the harm caused by indecent exposure is minimal, and he is unlikely to
reoffend. This assertion — which was not raised in the trial court — is
forfeited. (People v. Clayburg (2012) 211 Cal.App.4th 86, 93.) We likewise
decline to consider defendant’s cursory claim that defense counsel was
ineffective for failing to raise it below. (Ibid.)
27
a protective order pursuant to this statute, a “court is not limited to
considering the facts underlying the offenses of which the defendant finds
himself convicted.” (Id. at p. 220.) Instead, the “court may consider all
competent evidence before it.” (Ibid.)
The prosecutor offered evidence defendant touched [REDACTED].
Reviewing the record in the light most favorable to the trial court’s order, we
conclude there is “some evidence” defendant harmed, or attempted to harm,
Y. and N. (People v. Race, supra, 18 Cal.App.5th at p. 219; People v. Therman
(2015) 236 Cal.App.4th 1276, 1279.)
People v. Delarosarauda (2014) 227 Cal.App.4th 205 does not compel
a contrary conclusion. Delarosarauda held the victim’s children were not
victims within the meaning of section 136.2, subdivision (i)(1) because there
was no reason to believe any crime “had been perpetrated or attempted to be
perpetrated” against the children — the victim testified the defendant
“ ‘never touched’ the children,” no evidence suggested he attempted to harm
them, and the victim “thought the children were in another room at the time
of the incident.” (Delarosarauda, at p. 211.) Here, by contrast, there was
reason to believe crimes had been committed against Y. and N. Accordingly,
the trial court was authorized to issue a protective order as to them. (See
People v. Beckemeyer (2015) 238 Cal.App.4th 461, 467.)
VI.
Finally, defendant argues the cumulative effect of the claimed errors
requires reversal of all convictions. In some circumstances, a series of errors,
though independently harmless, may — when considered in the aggregate —
rise “to the level of reversible and prejudicial error.” (People v. Hill (1998)
17 Cal.4th 800, 844; Lapenias, supra, 67 Cal.App.5th at p. 180.) A
28
cumulative error claim “is in essence a due process claim . . . . ‘The “litmus
test” for cumulative error “is whether defendant received due process and
a fair trial.” ’ ” (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) We
conclude the prejudicial error necessitating reversal of count 1 and any
assumed error does not, when considered cumulatively, require reversal of all
convictions. (See People v. Robinson (2005) 37 Cal.4th 592, 637.)
DISPOSITION
Count 1 — the conviction for battery against Y. — is reversed, and the
matter is remanded to the trial court for further proceedings not inconsistent
with this opinion. In all other respects, the judgment is affirmed.
29
_________________________
Rodríguez, J.
WE CONCUR:
_________________________
Fujisaki, Acting P. J.
_________________________
Petrou, J.
A163906
30