People v. Polanco CA2/2 ( 2016 )

Filed 5/17/16 P. v. Polanco CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B256581
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA098378)
v.
JUAN MARTIN POLANCO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Mike Camacho, Judge. Affirmed.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer, Alene M.
Games and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
An amended information filed by the District Attorney of Los Angeles County
charged appellant Juan Martin Polanco with committing continuous sexual abuse on a
child between July 30, 2009, and September 28, 2011 (count 1; Pen. Code, § 288.5,
subd. (a));1 committing a lewd act on a child under 14 years old on September 29, 2011
(count 2; § 288, subd. (a)); and committing oral copulation/penetration with a child 10
years old or younger on September 29, 2011 (count 4; § 288.7, subd. (b)).2
Appellant was tried by a jury. The jury found appellant guilty on counts 1, 2 and 4
as charged. The trial court sentenced appellant to state prison for 12 years on count 1, 2
years on count 2, and 15 years to life on count 4. It ordered the sentences on counts 1 and
2 to run consecutive to the sentence on count 4, and to be served before the indeterminate
sentence in count 4. Appellant received presentence custody credit for 224 days of actual
custody, plus 33 days of conduct credits, for a total credit of 257 days.
On appeal, appellant argues: the CALCRIM No. 318 instruction impermissibly
expanded the purpose for which the jury could consider fresh complaint evidence offered
by the prosecutor; the prosecutor failed to adduce sufficient evidence to support count 4;
the trial court should have instructed on attempted oral copulation as a lesser included
crime; the trial court improperly vouched for the victim witness’s credibility; CALCRIM
No. 330 improperly supported the victim witness’s credibility; and the trial court
deprived appellant of his due process right to a fair trial as a result of cumulative error.
We find no error and affirm.
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
Count 3 alleged that appellant committed oral copulation of a person under
14 years of age in violation of section 288a, subdivision (c)(1) on September 29, 2011.
That count was dismissed because counts 3 and 4 overlapped, and the prosecutor elected
to proceed on count 4. For purposes of trial, the trial court renumbered count 4 so that it
would be referred to as count 3. For purposes of sentencing, the trial court once again
referred to it as count 4.
2
FACTS
Pretrial Motion to Dismiss
When the prosecutor filed an amended information, defense counsel moved to
dismiss counts 2, 3 and 4 based on section 288.5.3 He argued that “the prosecution is
precluded from charging my client with multiple counts when that conduct allegedly took
place within the same period. Additionally, it will require the prosecution to charge
[appellant] in the alternative.”
The trial court concluded that the period of continuous conduct alleged in count 1
did not overlap with the September 29, 2011, conduct alleged in counts 2, 3 and 4. On
that basis, the trial court denied the motion to dismiss.
To clarify, defense counsel stated that “[if] . . . the evidence is such that the
conduct that took place overlapped, then at that point we will be able to make a motion to
dismiss or the jury . . . will be instructed at the end that they will have to find my client
guilty on the alternative or not guilty on all[.]”
3
Section 288.5 provides: “(a) Any person who either resides in the same home
with the minor child or has recurring access to the child, who over a period of time, not
less than three months in duration, engages in three or more acts of substantial sexual
conduct with a child under the age of 14 years at the time of the commission of the
offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd
or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at
the time of the commission of the offense is guilty of the offense of continuous sexual
abuse of a child and shall be punished by imprisonment in the state prison for a term of 6,
12, or 16 years.
“(b) To convict under this section the trier of fact, if a jury, need unanimously
agree only that the requisite number of acts occurred not on which acts constitute the
requisite number.
“(c) No other act of substantial sexual conduct, as defined in subdivision (b) of
Section 1203.066, with a child under 14 years of age at the time of the commission of the
offenses, or lewd and lascivious acts, as defined in Section 288, involving the same
victim may be charged in the same proceeding with a charge under this section unless the
other charged offense occurred outside the time period charged under this section or the
other offense is charged in the alternative. A defendant may be charged with only one
count under this section unless more than one victim is involved in which case a separate
count may be charged for each victim.” (§ 288.5, subds. (a)-(c).)
3
The trial court replied, “Absolutely. We will talk about that at the appropriate
time. But, again, you’re reserving your right to readdress these issues at the end of the
People’s case, and I will certainly give you that opportunity. . . . [¶] Again, going off the
People’s charging document, they have charged in a way that would make that issue a
nonissue, in other words, no overlap. But, nonetheless, if the evidence somehow goes
contrary to the People’s understanding and it makes this issue an issue, then we will
certainly address it then.”
Prosecution Evidence
M.G. (mother)
On direct examination, Mother testified that on September 29, 2011, she was
living in a house with J.P. (father) and their two children, the victim, D.P. (minor) and his
sister. At the time, minor was seven years old. Father’s brother, appellant, was living in
a small room in the back of the house.
The prosecutor asked: “On September 29, 2011, did you learn about something
involving [appellant]?”
Mother replied: “Yes.”
While mother was at church, father called her phone and requested that she come
outside. She did. He gave her information that made her sad, and made her believe that
he was sad. He told her to question the minor about “what was going on.” Mother and
minor went inside the family car, and she questioned him. He was crying and said he
was embarrassed. He did not answer her questions. Father drove them home, and mother
continued to question minor. Minor finally said that he and appellant touched either
other’s “wee-wee,” which she understood to be a reference to their “private parts.” He
also said he put his mouth on appellant’s private part, and something white came out.4
4
The trial court overruled defense objections to mother testifying as to statements
made by minor. In doing so, it relied on the fresh complaint doctrine set forth in People
v. Brown (1994) 8 Cal.4th 746, 749–750 (Brown). During mother’s testimony, the trial
court stated: “I wanted to address the issue that [defense counsel] has brought to the [trial
court’s] attention with respect to some hearsay statements that have been permitted by the
[trial court] to be introduced at this point through the testimony of [mother] regarding
4
About a week later, mother and father went to the police.
On cross-examination, the following colloquy transpired:
“[DEFENSE COUNSEL]: And isn’t it true that the incident where [minor] told
you about the first time coming from church was on September 2nd?
“[MOTHER]: I don’t remember the date.
“[DEFENSE COUNSEL]: Perhaps it’s September 8th because it’s a Thursday
and [appellant’s] last day had been on the Friday?
“[MOTHER]: I don’t remember the date.
“[DEFENSE COUNSEL]: Okay. So you don’t remember for sure if, in fact, the
incident took place on September 29th compared to some other day earlier in September
2011?
“[MOTHER]: Wherein my husband found—
“[DEFENSE COUNSEL]: Yes.
“[MOTHER]: I don’t remember the date, but it was in September. [¶] . . . [¶]
“[DEFENSE COUNSEL]: So you learned about the incident sometime in
September—
“[MOTHER]: Uh-huh.
“[DEFENSE COUNSEL]: —of the touching?
“[MOTHER]: Yes.
statements attributed to [minor]. There is basically two vehicles in which this type of
evidence is permitted, one of which is what I think [defense counsel] referred to
. . . under [Evidence Code section] 1360, which specifically is a statute created to address
this type of information provided certain protocol is met and established before the
introduction of the evidence. The other, which is, quite frankly, the reason I probably
overruled certain hearsay objections [defense counsel] may have made or perhaps [will]
continue to make [is because] . . . this type of evidence is more of a fresh complaint that I
feel that has been established given the circumstances as to when this declaration was
made to the witness, [mother], and the circumstances surrounding the reliability of that
information for purposes of the jury’s consideration, so it’s not really—I did not intend to
permit that introduction of evidence under [Evidence Code section] 1360. It’s more of a
judicial created exception of fresh complaint.”
5
“[DEFENSE COUNSEL]: Right. And then two weeks later or so that’s when you
questioned your son again and that’s when the allegation came out with regards to oral
copulation?
“[MOTHER]: I didn’t question him. He told me he had something to tell me.
“[DEFENSE COUNSEL]: And that’s when you had the discussion with your
husband about what you had learned from your son.
“[MOTHER]: Yes.
“[DEFENSE COUNSEL]: But at that point it was not reported to the police; in
fact, you waited another two or three weeks before you called the police, isn’t that
correct?
“[MOTHER]: No.
“[DEFENSE COUNSEL]: The same day that you called the police?
“[MOTHER]: Probably the day after.
“[DEFENSE COUNSEL]: Okay. And the police came to your house?
“[MOTHER]: No. I went to the station.
“[DEFENSE COUNSEL]: And you made the report?
“[MOTHER]: Yes.
“[DEFENSE COUNSEL]: And the police interviewed your son?
“[MOTHER]: Yes.”
On redirect, mother testified that she did not remember the exact date on which
she talked to minor about what happened in appellant’s room. She said their
conversation took place on a Thursday, a day she went to church.
The redirect examination proceeded as follows:
“[THE PROSECUTOR]: You told [defense counsel] that you—regarding the
conversation with your son about his disclosure to you about what happened between him
and [appellant], that you didn’t question him, but he told you he had something to tell
you?
“[MOTHER]: He did.
“[THE PROSECUTOR]: Is that what he said to you, I have something to tell you?
6
“[MOTHER]: He told me—I don’t remember if he told me I have something to
tell you or he said I want to tell you something else. I don’t remember.
“[THE PROSECUTOR]: Now, this was on a different day from when you had
this conversation with your husband outside of the church; correct?
“[MOTHER]: Yes. [¶] . . . [¶]
“[THE PROSECUTOR]: And did he just—is that when he told you about the
licking of the private part?
“[MOTHER]: No. I don’t know how to explain it. He wanted to tell me
something. . . but he couldn’t say it until I told him you have to tell me.
“[THE PROSECUTOR]: Okay. And then what happened?
“[MOTHER]: Then he told me that he licked his private part.”
Father
After father took the witness stand, the prosecutor said she wanted to talk to him
about September 29, 2011. He preemptively said he did not remember anything because
it had “been such a long time.”
The prosecutor asked: “Back in September when your son was approximately
seven years old, was there a date where you were looking for him and you found him
inside that room with [appellant]?” Father said yes.
Moments later, father began accusing the prosecutor and trial court of not letting
him talk. Father said, “I just better leave[.]” The trial court sent the jury to the jury room
and admonished father that he had been subpoenaed as a witness and testifying was not
optional. Father remained belligerent until the trial court repeated a threat to incarcerate
father for the duration of the trial if he did not cooperate. Father agreed to testify.
The prosecutor asked if father went to the police station with mother and minor to
make a report. Father indicated that he did, but only because mother said that he was
“forced” to go. He thought that if he did not go, he could end up in jail. The prosecutor
asked: “So[,] you didn’t want to go to the police; correct?” Father answered in the
affirmative.
7
According to father, he yelled for minor outside the “storage room” where
appellant stayed. There was no response. Father knocked on the door. Because it was
not level and could not close all the way, it opened on its own. He “didn’t see
anything[.]” He asked minor “what he was doing there” and he walked out. Mother
showed up a few seconds later and invited appellant to church. Appellant said he was
tired.
The only reason father asked minor what he was doing in appellant’s room was
because father had stored three shotguns “back there.” Minor never told father what he
was doing in the room.
On cross-examination, defense counsel asked if father and his family went to the
police department on October 17, 2011. He said yes.
Father admitted that in 2008 or 2009, he had pornography on his phone. Further,
he admitted that while he lived with his in-laws in 2009, he was questioned about a bill
on the family’s account for pornography.
Officer Rene Flores
On October 17, 2011, mother, father, minor and his sister went to the police
Department and gave statements to El Monte Police Officer Rene Flores.
Minor said “white stuff” came out of appellant’s “wee wee” and that “the
touching” began when he was three.
Father appeared upset and bothered. He said he was looking for his son and
noticed that appellant’s bedroom door was locked. Father knocked. Approximately 10
seconds later, appellant opened the door and father notice minor inside. Appellant and
minor appeared to be nervous. Father questioned minor about what “they” were doing
and minor refused to answer. Instead, he cried. At some later date, mother spoke to
father and said minor had disclosed an incident during which appellant performed oral
sex on minor.
Deborah Davies
Deborah Davies (Davies) worked as a licensed clinical social worker who
conducted forensic interviews for the Children’s Advocacy Center in Pomona. On
8
February 29, 2012, she interviewed minor. The interview was video recorded and burned
to a DVD.
The DVD of Minor’s Interview
The DVD of minor’s interview was played for the jury.
Minor told Davies that appellant kissed him on the lips and his “private part.”
Also, minor “licked” appellant’s private part, at which point some “white thing” came
out. It went on the floor and in his mouth. Minor said he “spit it out” and that “[i]t was
nasty.” Next, he said appellant touched his private part “in the back” he uses “[t]o go to
the restroom.” It felt like the touching was on the “inside.” Davies asked if the kissing
had happened on more than one occasion. Minor said it started when he was three.5 She
asked whether minor licked appellant’s private part one time or more than one time.
Minor stated, “More, more, more, more, more, more.”
Davies asked “what room would you be in?” Minor said “all the stuff” happened
“in the back where we put all the stuff.” He went “back there” because appellant would
say, “Come, [minor].” Appellant kept his clothes on; his private part stuck out through
his zipper.
Minor licked other parts of appellant. While minor was doing that, appellant
would watch “nasty stuff” on the television. The nasty stuff involved a girl and boy who
kissed and wore no clothes.
Appellant told minor not to tell mother, father or sister. He said he would hit
minor if he told.
Minor
At the time of trial, minor was in fourth grade. He testified that when he lived in
the same house as appellant, appellant had his own room. Minor went there more than
once, and they did “[a] lot of stuff.”
5
In the interview, minor indicated that some type of act involving appellant’s
private part also started when minor was three. The record is not clear as to the nature of
that act, and we decline to speculate.
9
The prosecutor asked if minor remembered a day when father came looking for
him. Minor said he did, and that father found minor in appellant’s room. When asked if
appellant ever did anything minor did not like, minor said “[y]es,” and that they touched
each other’s bodies.
He remembered telling mother that “white stuff” came out of appellant’s “wee
wee,” and telling Davies that he licked appellant’s “wee wee.” The licking happened on
more than one occasion.
The prosecutor played the DVD of minor’s interview in his presence. That helped
him remember certain things. Minor said he told the truth, and that those “things”
happened on different days.
On cross-examination, minor was asked about the day father went looking for him.
After minor watched father work on a car, he went to appellant’s room. About 10
minutes later, minor heard father calling for him. Defense counsel asked: “But at the
time your [father] . . . called your name in those ten minutes, [appellant] wasn’t touching
you; isn’t that correct?” Minor said, “He was touching me.” He was asked if he
remembered white stuff coming out. He said yes. Defense counsel said, “It did come
out?” Minor replied, “Not that day.” Though minor remembered that appellant was
touching him that day, minor did not remember where. It was “bad touching.” The trial
court asked, “If someone were to touch you in a way that you thought was bad, what part
of your body would be touched[?]” Minor said, “Private part.” On that day, minor
touched appellant. That was “bad touching” as well.
Defense Evidence
Bradley McAuliff
The defense called Bradley McAuliff (McAuliff) as an expert in the areas of child
suggestability and forensic interviewing. He explained that outside factors, such as
questions imbued with assumptions, can influence the accuracy of a person’s memory,
especially if the person is young. He was concerned that minor’s memory might have
been affected because mother or others might have asked minor leading questions. Also,
10
McAuliff was concerned that Davies’s use of diagrams might have led to false allegations
from minor.
Appellant
Appellant testified that on Thursday, September 1, 2011, mother sent him a text
telling him to leave the house. She did not give a reason. When he saw her later, she
confronted him with the allegation that he touched minor. Appellant told her “she was
crazy[.]” Defense counsel asked appellant if he touched minor while staying at mother
and father’s house, or at any time prior, and appellant said no. He denied ever ejaculating
in front of minor.
Other Defense Witnesses
Appellant’s brother, M.P., testified that on one occasion when minor’s family was
visiting his grandparents, M.P. saw minor watching pornography on father’s phone. It
depicted a man masturbating and ejaculating into the mouth of a woman.
Father’s niece, J.N., visited father for extended periods of time when he lived with
mother’s parents in 2009. On one particular day, J.N. heard minor and mother’s brother
telling each other the other had a small “weenie.” At the same time, and in the same
room, J.N. saw a naked girl and naked guy having sex on the television.
Rebuttal Evidence
Detective Eric Johnston, an officer with the El Monte Police Department,
interviewed appellant after his arrest. Appellant said he was not comfortable talking
about the case. When asked if he was ever alone with minor, appellant said no.
Detective Johnston queried whether father ever found minor in a room alone with
appellant. Appellant said something similar to “not really.” After being asked if he ever
touched minor, appellant said, “There is nothing at all, just what she thinks.”
11
DISCUSSION
I. The Challenge to CALCRIM No. 318 Was Forfeited.
Appellant contends that the trial court should not have given CALCRIM No. 318
because the fresh complaint evidence of minor’s out-of-court statements was introduced
for a limited purpose. In appellant’s view, the instruction impermissibly expanded the
purpose for which the jurors could use the evidence. Alternatively, if we conclude that
the objection was forfeited due to the lack of an objection or request for a limiting
instruction, appellant contends he received ineffective assistance of counsel. We
conclude that the objection was forfeited, and that appellant was not prejudiced by
defense counsel’s decision not to object.
A. The Fresh Complaint Doctrine.
The fresh complaint doctrine was set forth in Brown. (People v. Loy (2011) 52
Cal.4th 46, 65.) In Brown, our Supreme Court explained that “proof of an extrajudicial
complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be
admissible for a limited, nonhearsay purpose—namely, to establish the fact of, and the
circumstances surrounding, the victim’s disclosure of the assault to others—whenever the
fact that the disclosure was made and the circumstances under which it was made are
relevant to the trier of fact’s determination as to whether the offense occurred.” (Brown,
supra, 8 Cal.4th at pp. 749–750.)
B. CALCRIM No. 318.
Pursuant to CALCRIM No. 318, the trial court instructed the jury: “You have
heard evidence of statements that a witness made before this trial. If you decide that the
witness made those statements, you may consider those statements in two ways. [¶]
1. To evaluate whether the witness’s testimony in court is believable. [¶] 2. As evidence
that the information in those earlier statements is true.”
C. Forfeiture.
To preserve a challenge to a jury instruction, a defendant must object at trial.
(People v. Virgil (2011) 51 Cal.4th 1210, 1260.) A trial court has no duty to limit the use
of fresh complaint evidence unless the defense requests a limiting instruction. (Brown,
12
supra, 8 Cal.4th at p. 757 [“Because of the limited purpose for which the out-of-court
statements of victims may be admitted as fresh complaints, past cases have held that the
trial court upon request must instruct the jury to consider such evidence only for the
purpose of establishing that a complaint was made, so as to dispel any erroneous
inference that the victim was silent, but not as proof of the truth of the content of the
victim’s statement”].) Here, because defense counsel did not request a limiting
instruction regarding the use of the fresh complaint evidence of minor’s out-of-court
statements, and because he did not object to CALCRIM No. 318, appellant forfeited his
challenges, at least insofar as it did not impact his substantial rights. (People v. Manning
(2008) 165 Cal.App.4th 870, 880; People v. Daya (1994) 29 Cal.App.4th 697, 714 [a
“defendant is not entitled to remain mute at trial and scream foul on appeal for the court’s
failure to expand, modify, and refine standardized jury instructions”]; People v.
Cleveland (2004) 32 Cal.4th 704, 749; § 1259.)
Appellant contends that the trial court’s use of CALCRIM No. 318 is reviewable
because it impacted his substantial rights. As applied here, he contends that it violated
his right to due process and a fair trial under the Fifth, Sixth and Fourteenth Amendments
to the United States Constitution.
In our view, the instruction rested on sound constitutional footing. The
instruction allowed the jury to use minor’s out-of-court statements for the truth of the
matter asserted, which was permissible.
More than four decades ago, the United States Supreme Court held that “the
Confrontation Clause is not violated by admitting a declarant’s out-of-court statements,
as long as the declarant is testifying as a witness and subject to full and effective cross-
examination.” (California v. Green (1970) 399 U.S. 149, 158.) Our own Supreme Court
instructs that prior consistent and inconsistent statements can be admitted as substantive
evidence as long as the declarant testifies at trial. (People v. Cannady (1972) 8 Cal.3d
379, 385; People v. Fierro (1991) 1 Cal.4th 173, 222.)
When minor testified that he and appellant touched each other on the day that
father found him in appellant’s room, that touching either did or did not involve mouth to
13
genital contact.6 If he was indicating the former, it was a prior consistent statement. If he
was indicating the latter, then it was a prior inconsistent statement. Either way, because
he testified, his out-of-court statements were admissible.
In light of the admissibility of the evidence, we conclude that any error did not
impact appellant’s substantial rights.7
D. The Ineffective Assistance of Counsel Argument.
To establish a claim for ineffective assistance of counsel, a defendant must show
that counsel’s representation fell below an objective standard of reasonableness, and that
defendant was prejudiced, i.e., there was a reasonable probability of a better result with
adequate representation. (People v. Williams (2013) 56 Cal.4th 630, 690.) Here, even if
defense counsel should have requested a limiting instruction regarding the fresh
complaint evidence, or if he should have objected to CALCRIM No. 318, we perceive no
prejudice. Because minor testified, the prosecutor could have sought to have the out-of-
court statements admitted as prior consistent or inconsistent statements. Consequently,
there is no probability that appellant would have obtained a better result had a limiting
instruction been requested, or if the trial court had chosen not to instruct the jury pursuant
to CALCRIM No. 318.
II. Evidence Sufficient as to Count 4.
Appellant contends the conviction on count 4 must be reversed because the
prosecutor failed to adduce sufficient evidence of mouth to sexual organ contact on
6
“The elements of oral copulation with a child 10 years of age or younger [citation]
are (1) The defendant engaged in an act of oral copulation with the victim; (2) when the
defendant did so, the victim was 10 years of age or younger; and (3) at the time of the act,
the defendant was at least 18 years old. [Citation.] Oral copulation is defined as any
contact, no matter how slight, between the mouth of one person and the sexual organ of
another. Penetration is not required. [Citation.]” (People v. Mendoza (2015) 240
Cal.App.4th 72, 79–80 (Mendoza).)
7
We recognize that minor should have testified first, and only then should mother
have been allowed to testify as to the content of minor’s out-of-court statements as either
consistent or inconsistent. But, for constitutional purposes, the timing of mother’s
testimony did not adversely impact appellant’s rights.
14
September 29, 2011. This contention lacks merit because minor’s out-of-court
statements supported the jury’s finding of guilt.
A. Standard of Review.
“In considering a challenge to the sufficiency of the evidence to support [a
judgment], we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in
support of the judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.’ [Citation.]” (People v.
Albillar (2010) 51 Cal.4th 47, 59–60.)
B. Analysis.
Appellant argues that “the only specific testimony about what occurred and what
did not occur inside [appellant’s room] on the day [minor] was found with appellant was
elicited from [minor] on cross-examination. [Minor] testified that he and appellant
touched each other and it was ‘bad touching.’ [Citation.] To [minor], a ‘bad touching’
would be touching a ‘private part.’ [Citation.] [Minor] agreed that ‘nothing else
happened.’ [Citation.] In addition, [minor] specifically recalled that ‘the white stuff,’ did
not come out that day, but did ‘before.’” (Underlying omitted.) Appellant acknowledges
that the evidence showed that minor told mother about mouth to genital contact but
contends that this occurred two weeks after father found minor in appellant’s room.
Next, appellant avers that mother “never testified, nor told police[,] that the oral
copulation happened on the day [minor] was found in appellant’s room[.]”
This argument does not persuade us.
Mother testified that she learned about “something” involving appellant on
September 29, 2011. After speaking to father, she spoke to minor, first in the car and
15
then at home. While at home, minor indicated that he and appellant touched each other’s
private parts.
At that point in the trial, the trial court took a lunch break. When the parties
reconvened, mother returned to the witness stand and the following exchange occurred
between her and the prosecutor:
“[THE PROSECUTOR]: [Mother], you were telling us . . . the moment where
you got back to the house and you had a further conversation with your son about what
happened between him and [appellant] in the room; correct?
“[MOTHER]: Yes.
“[THE PROSECUTOR]: And at that time, what did he tell you?
“[MOTHER]: Um, that they were touching each other’s private parts.
“[THE PROSECUTOR]: And did he say that anything else happened other than
touching each other’s private parts?
“[MOTHER]: Yes. Oral sex.
“[THE PROSECUTOR]: Oral sex?
“[MOTHER]: Yes.
“[THE PROSECUTOR]: Tell us. Were those your son’s words[,] oral sex?
“[MOTHER]: No. He told me he put his mouth on [appellant’s] private part.”
At a subsequent point during mother’s testimony, the trial court sought
clarification. It asked mother how minor described the act. She stated: “He told me that
he put his mouth on the private part and I asked him what else happened. He said that
something white came out.”
Mother’s testimony permitted the jury to find beyond a reasonable doubt that
appellant committed the crime alleged in count 4.
We acknowledge that mother either confused or contradicted her story on cross-
examination and redirect examination by saying she did not remember the date father
found minor in appellant’s room, and by stating that on a different day than the day father
found minor in appellant’s room that minor told her about licking appellant’s private part.
But this does not change our conclusion. A jury has the power to resolve contradictions
16
and inconsistencies in a witness’s testimony, and it may accept one of two incompatible
stories as true. If supported by substantial evidence, we must give due deference to a
jury’s finding. (People v. Scaggs (1957) 153 Cal.App.2d 339, 353; People v. Mooney
(1918) 177 Cal. 642, 650; see People v. Manibusan (2013) 58 Cal.4th 40, 101; People v.
Ochoa (1993) 6 Cal.4th 1199, 1206.)
We also acknowledge that minor testified that appellant did not ejaculate on the
day father found him in appellant’s room. But it is of no moment. The jury could have
determined that oral copulation occurred on September 29, 2011, without appellant
ejaculating. Or, the jury could have chosen to believe minor’s September 29, 2011,
hearsay statement to mother indicating that he put his mouth on appellant’s private part
on that date and white stuff came out.
III. No Sua Sponte Duty to Instruct on Attempted Oral Copulation.
Appellant argues that the trial court violated his right to a fair trial when it failed to
give a sua sponte instruction on attempted oral copulation. In our view, the evidence did
not support an attempted oral copulation instruction.
A. Standard of Review.
An appellate court independently reviews whether a trial court erred by failing to
instruct on a lesser included offense (People v. Licas (2007) 41 Cal.4th 362, 366), and
whether the error, if any, resulted in a constitutional violation (Vo v. City of Garden
Grove (2004) 115 Cal.App.4th 425, 433).
B. Constitutional and State Law Principles.
The United States Constitution “‘guarantees a fair trial through the Due Process
Clauses, but it defines the basic elements of a fair trial largely through several provisions
of the Sixth Amendment[.]’” (United States v. Gonzalez-Lopez (2006) 548 U.S. 140,
146.) For example, a defendant has a right to a trial in front of an impartial jury, and a
right to confront witnesses. (U.S. Const., 6th Amend.) Broadly speaking, state courts
have an obligation under the Due Process Clause of the Fourteenth Amendment “to
ensure ‘that “justice shall be done”’ in all criminal prosecutions. [Citation.]” (Cone v.
Bell (2009) 556 U.S. 449, 451.) In this way, defendants are protected “against
17
fundamentally unfair treatment by the government in criminal proceedings. [Citation.]”
(Doggett v. United States (1992) 505 U.S. 647, 666 (dis. opn. of O’Connor, J.).)
“‘[A] defendant has a constitutional right to have the jury determine every material
issue presented by the evidence [and] . . . an erroneous failure to instruct on a lesser
included offense constitutes a denial of that right . . . .’ [Citation.]” (People v. Lewis
(2001) 25 Cal.4th 610, 645.)
“‘[A] lesser offense is necessarily included in a greater offense if either the
statutory elements of the greater offense, or the facts actually alleged in the accusatory
pleading, include all the elements of the lesser offense, such that the greater cannot be
committed without also committing the lesser. [Citations.]’ [Citations.]” (People v.
Smith (2013) 57 Cal.4th 232, 240.)
“[T]he trial court normally must, even in the absence of a request, instruct on
general principles of law that are closely and openly connected to the facts and that are
necessary for the jury’s understanding of the case. [Citation.]” (People v. Carter (2003)
30 Cal.4th 1166, 1219.) “‘[It] must instruct on lesser included offenses, even in the
absence of a request, whenever there is substantial evidence raising a question as to
whether all of the elements of the charged offense are present.’ [Citation.] Conversely,
even on request, [the] trial [court] has no duty to instruct on any lesser offense unless
there is substantial evidence to support such instruction. [Citation.] ‘“Substantial
evidence is evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence
that a reasonable jury could find persuasive.” [Citation.]’ [Citation.]” (People v.
Cunningham (2001) 25 Cal.4th 926, 1008.)
C. Analysis.
Appellant argues that the prosecutor failed to adduce evidence of oral copulation
on the day father found minor in appellant’s room. Further, appellant argues that because
minor’s description of events indicated that oral copulation had occurred on many prior
occasions, the jury could have concluded that oral copulation was about to happen before
father interrupted appellant and minor. Based on these two points, appellant would have
18
us apply the elements test and conclude that the trial court should have instructed the jury
on attempted oral copulation as a lesser included offense.
This argument lacks merit.
In People v. Bailey (2012) 54 Cal.4th 740 (Bailey), our Supreme Court held that
attempted escape from prison is not a lesser included offense of escape from prison
because the former requires specific intent to commit the crime and the latter does not.
(Id. at pp. 749–750.) It explained that “the general principle that attempt is a lesser
included offense of any completed crime[] . . . is not applicable . . . where the attempted
offense includes a particularized intent that goes beyond what is required by the
completed offense.” (Id. at p. 753.) As summarized in People v. Braslaw (2015) 233
Cal.App.4th 1239, 1248 (Braslaw), “Bailey thus highlights a nonintuitive aspect of the
relationship between attempts and completed crimes: while it might seem an attempt
would naturally be a lesser included offense, this is not necessarily so. Attempts are only
lesser included offenses if the sole distinction between the attempt and the completed
offense is completion of the act constituting the crime. [Citation.] If the attempt requires
a heightened mental state, as is the case with attempts of many general intent crimes, the
attempt requires proof of an additional element and is therefore not a lesser included
offense. [Citations.]”
Applying Bailey, the court in Mendoza, supra, 240 Cal.App.4th at p. 83
(Mendoza) held that “[a]ttempted sexual intercourse, attempted sodomy and attempted
oral copulation with a child 10 years of age or younger are all specific intent crimes.
[Citation.] Thus, under the elements test, they are not lesser included offenses of the
charged general intent crimes,” i.e., sexual intercourse or sodomy with a child 10 years of
age or younger, oral copulation with a child 10 years of age or younger, and lewd act
upon a child. (Id. at pp. 75, 83.)8
8
While the defendant was charged with oral copulation or sexual penetration with a
child 10 years of age or younger, the defendant claimed only that the trial court should
have given a lesser included offense instruction with respect to attempted oral copulation
with a child 10 years of age or younger. (Mendoza, supra, 240 Cal.App.4th at pp. 75–
19
Appellant contends that the Mendoza court misapplied Bailey and should not be
followed. In his estimation, the only distinction between the charged offense under
section 288.7, subdivision (b) and an attempt is the completion of the crime, and
therefore an attempt would be a lesser included offense under the reasoning of Bailey and
Braslaw. This argument falters. A violation of section 288.7, subdivision (b) requires a
person 18 years of age or older who engages in oral copulation or sexual penetration with
a child who is 10 years of age or younger. An attempted violation of section 288.7,
subdivision (b) occurs when a person 18 years of age of older specifically intends to
orally copulate a child who is 10 years of age or younger and commits a direct but
ineffectual act toward its commission. (§§ 21, subd. (a), 664.)9 There is a distinction
because an attempt requires specific intent, and therefore completion of the act is not the
only fact that separates the offenses.
Regardless, even if attempted oral copulation with a child 10 years of age or
younger was a lesser included offense, it would not benefit appellant. While the record
contains substantial evidence of oral copulation, it does not contain substantial evidence
of attempted oral copulation, i.e., there is no evidence of a direct but ineffectual act
toward the commission of the crime. Thus, regardless of whether we follow Mendoza,
the trial court did not transgress a sua sponte duty.
IV. The Vouching Challenge Was Forfeited.
Appellant argues that the trial court improperly vouched for the minor’s veracity
via the comments it made to the jury and minor before and during his testimony. If his
76.) The Mendoza court noted that in People v. Ngo (2014) 225 Cal.App.4th 126, 157,
the court held that because sexual penetration of a child 10 years of age or younger is a
specific intent crime requiring that the act be done for the purpose of sexual arousal,
gratification or abuse, attempted sexual penetration of a child 10 years of age or younger
is a lesser included offense.
9
Appellant suggests a defendant is guilty of an attempt if he or she attempts oral
copulation regardless of his or her knowledge of the minor’s age. His position fails due
to a lack of supporting authority. In any event, the issue is moot. Whether or not a
defendant must know a child’s age with respect to an attempt, a defendant still must
specifically intend to commit oral copulation.
20
challenge was forfeited, he contends he was prejudiced by ineffective assistance of
counsel. The record establishes that appellant forfeited his challenge, and he was not
prejudiced by defense counsel’s performance.
A. Relevant Proceedings.
Prior to minor’s testimony, the trial court prefaced it by stating: “Now, ladies and
gentlemen, [minor] is the minor witness in this case. We previously referred to him in
the record as John Doe. But the first name has been disclosed in the record so we’ll refer
to the witness by his true first name only and maintain for privacy reasons the last name
as confidential. [¶] [Minor] is entitled, as any witness, in this type of case who is an
alleged victim entitled to have a support person to sit alongside him or her in order to
make the witness, especially a child, feel a little more comfortable in talking in a roomful
of strangers. And [minor] has chosen his sister. His sister is here. She’s sitting
alongside [minor] near the witness stand as I speak. But [his] sister is a support person
only. She is not a witness. She’s not allowed to say anything or assist the witness in
offering any testimony. She’s already been instructed by the court just to be there but
remain silent and she acknowledges that she will do that.”
Next, the trial court conversed with minor. That conversation transpired thusly:
“[THE COURT]: Now, [minor], we’re going to ask you some questions because
we need to hear your story. But before we can ask you any questions, I need to make
certain that you know how to tell the truth. You need to know the difference between a
truth and a lie because the only thing that I’m permitted to allow any witness like you to
say is the absolute truth. You cannot lie. You cannot make up stories. You cannot say
anything other than the truth. Do you understand this?
“[THE WITNESS]: Yes.
“[THE COURT]: Okay. I know you do [minor]. [Minor], just tell me how old
are you today?
“[THE WITNESS]: Nine.
“[THE COURT]: You’re nine years old. Okay, [minor], now I’m going to put
you to the test to see if you really know how to tell the truth. [¶] If I were to tell
21
everyone in this courtroom that I’m wearing a red robe would that be the truth or would it
be a lie?
“[THE WITNESS]: A lie.
“[THE COURT]: It would be a lie because my robe is black in color; is that right?
“[THE WITNESS]: Yes.
“[THE COURT]: So I’m confident that you know how to tell the truth and you
certainly know what a lie is. Lies are bad thing[s] to do. You cannot lie to anyone in this
courtroom, specifically these good people that are sitting in this jury box. They need to
hear your story. They need to hear the truth. You have to tell us the truth. Do you
promise that you’ll do that for us?
“[THE WITNESS]: Yes.
“[THE COURT]: Okay. No matter how difficult it may be, you need to tell us the
truth.”
Immediately, the trial court stated: “Minor has been examined by the court and he
qualifies as a witness to offer testimony. We need not swear in [minor] as a formal
witness since he has been qualified to testify.”
Minor went on to testify.
When minor’s testimony resumed after a lunch break, the trial court advised minor
in open court as follows:
“[THE COURT]: [Minor], I need to remind you that you remain a witness which
means that you still have to tell us the truth no matter how difficult that may be for you.
“[THE WITNESS]: Yes.
“[THE COURT]: Do you understand that?
“[THE WITNESS]: Yes.
“[THE COURT]: I know you can do that. All right.”
After an afternoon break, the following colloquy transpired:
“[THE COURT]: We’re in the presence once again of all sworn jurors including
alternates to resume trial and the examination of witnesses on behalf of the people. [¶]
Witness [minor] has returned to the witness stand alongside his support person his sister.
22
[¶] Minor, you’re still required to tell us the truth. You’re almost done. You will be
finished today so don’t worry about being here any longer than today. Do you
acknowledge that you still need to tell us the truth?
“[THE WITNESS]: Yes.
“[THE COURT]: I know you do.”
B. Considerations Related To A Child Witness’s Qualification To Testify.
There is no distinction between a child witness and any other witness. (People v.
Thomas (1978) 20 Cal.3d 457, 471.) “A witness is presumed competent absent a
showing to the contrary. [Citation.]” (People v. Willard (1983) 155 Cal.App.3d 237,
239.) That presumption can be rebutted. A person is disqualified to be a witness if he or
she is either (1) “[i]ncapable of expressing himself or herself concerning the matter so as
to be understood, either directly or through interpretation by one who can understand
him,” or (2) “[i]ncapable of understanding the duty of a witness to tell the truth.” (Evid.
Code, § 701, subd. (a).)
“Questions in competency examinations should not range widely across areas that
do not bear directly on competency as defined by [Evidence Code section 701] but should
focus on the witness’s ability to express himself or herself [citation] and his or her
understanding of the duty to tell the truth [citation]. To ascertain the former, the judge
should have a conversation with the child using short, simple sentences to determine if
the child’s speech is intelligible and if the child appears to understand simple
questions. . . . To ascertain children’s understanding of their duty to tell the truth, the
judge should assess children’s understanding of what it means to them to lie and tell the
truth and the consequences of promising to tell the truth.” (Couzens & Bigelow, Sex
Crimes: Cal. Law & Procedure (The Rutter Group 2015) § 8.3, p. 8-63.)
C. Due Process and Judicial Misconduct Law.
A defendant “has a due process right to an impartial trial judge under the state and
federal Constitutions. [Citations.] The due process clause of the Fourteenth Amendment
requires a fair trial in a fair tribunal before a judge with no actual bias against the
defendant or interest in the outcome of the case. [Citation.]” (People v. Guerra (2006)
23
37 Cal.4th 1067, 1111.) “A trial [court] may not vouch for the credibility of a witness.”
(People v. Banks (2014) 59 Cal.4th 1113, 1206, disapproved on other grounds in People
v. Scott (2015) 61 Cal.4th 363, 391.)
“[J]udicial misconduct claims are not preserved for appellate review if no
objections were made on those grounds at trial. [Citations.] However, a defendant’s
failure to object does not preclude review ‘when an objection and an admonition could
not cure the prejudice caused by’ such misconduct, or when objecting would be futile.
[Citations.]” (People v. Sturm (2006) 37 Cal.4th 1218, 1237.)
D. Forfeiture.
The People argue that appellant forfeited his challenge to judicial misconduct
because he did not object below. In counterpoint, appellant contends that he did not
forfeit his challenge because objecting would have been futile, and that an admonition
would not have cured the alleged prejudice.
Even if the trial court’s comments amounted to misconduct (which we are not
concluding), there is no indication in the record that the trial court would have refused to
qualify minor outside the presence of the jury or otherwise ensure that it did not in any
way vouch for minor’s veracity. We reach this conclusion because the trial court did not
express any hostility toward defendant or defense counsel, nor did it otherwise indicate a
refusal to consider defense counsel’s objections relative to other matters. Indeed, the trial
court treated defense counsel with the utmost respect.
Our no futility conclusion remains solidly moored even when, as urged by
defendant, we consider the facts and holding in People v. Hefner (1981) 127 Cal.App.3d
88 (Hefner). In that case, the defendant was charged with and convicted of various sex
offenses against multiple children. On appeal, inter alia, he argued that he was
prejudiced by the trial court’s misconduct. As explained by the Hefner court, “The
record here is replete with blunt, caustic and cynical remarks by the trial judge smacking
of proprosecution bias. Those made in the presence of the jury unmistakably denigrated
the credibility of defense counsel, his client, his witnesses and his case.” (Id. at p. 92)
For example, the trial court made remarks implying that defense counsel was trying to
24
trick the jury; accused defense counsel of misstating the evidence to circumvent the trial
court’s evidentiary rulings; made various remarks that conveyed the trial court’s apparent
impression that defense counsel was being unfair to the witnesses when he read
testimony from a prior trial, but then suggested that the prosecutor, or even his
investigator, could be relied on to be fair; and made remarks suggesting that the jury
should not concern itself with contradictions or lack of specifics in the testimony of
minor witnesses. (Id. at pp. 93–95.) While the court noted that “[j]udicial statements
tending to show bias do not require reversal for a conviction based on overwhelming
evidence of guilt,” it concluded that the evidence against the defendant, while substantial,
was not overwhelming due to testimonial contradictions and dubious statements made by
some of the witnesses. (Id. at p. 95.) As a result, the court concluded that the possibility
of prejudice was too strong to be ignored. (Ibid.) Based on judicial misconduct and other
factors, the judgment was reversed. (Id. at pp. 95–97.)
There is no comparison between the even tempered, neutral conduct of the trial
court here and the biased conduct of the trial court in Hefner. The trial court in this case
in no way denigrated defense counsel, his client or witnesses. Nor did the trial court
suggest that the prosecutor or minor were more reliable than defense counsel, his client or
his witnesses. All the trial court did was qualify minor as a witness and remind minor
after breaks that he had an obligation to tell the truth.
Moreover, even if the trial court’s comments amounted to improper vouching
(which we are not concluding), the trial court could have effectively admonished the jury
that it was the sole factfinder, and that it should disregard any comment by the trial court
implying that minor was credible.
On this topic, we again find Hefner distinguishable.
The Hefner court concluded that it was “unlikely that the cumulative prejudicial
effect of the judge’s remarks interspersed throughout the trial, indicating the prosecutor
and his witnesses were more trustworthy than Hefner’s, could have been negated merely
by judicial admonitions to the jury.” (Hefner, supra, 127 Cal.App.3d at p. 95.) This was
all the more true, the court added, given that the case involved allegations of child
25
molestation. It noted that, per our Supreme Court: “‘As frequently has been said
regarding cases of the instant character, “No charge can be more easily made, and none
more difficult to disprove.” . . . Errors committed either by the prosecution or by the
court in the course of the trial, which ordinarily might be considered trivial and as of no
material consequence from a standpoint of adverse effect upon the rights of a defendant,
may become of great importance when committed in a case of the character of that here
involved.’ [Citations.]” (Id. at p. 96.)
This case did not involve improper judicial commentary interspersed throughout
the case. It involved the qualification of minor as a witness, and a few comments and
questions designed to remind minor of his obligation to tell the truth. Any potential
prejudice could have been overcome with an admonition informing the jury that the trial
court made a competency finding, not a credibility finding, and that the jury was the sole
arbiter of credibility.
E. The Ineffective Assistance of Counsel Claim.
Even if defense counsel fell below a reasonable standard by failing to object to the
trial court’s examination of minor in front of the jury, and to the trial court’s various
comments, appellant did not suffer prejudice.
Appellant complains about the following comments by the trial court: “[T]he only
thing that I’m permitted to allow any witness like you to say is the absolute truth;” “We
need not swear in [minor] as a formal witness since he has been qualified to testify;” and
“[Minor] has been examined by the court and he qualifies as a witness to offer
testimony.” Appellant faults the trial court for these additional comments: after a lunch
break, the trial court reminded minor of his duty to tell the truth and added, “no matter
how difficult that may be for you;” after minor agreed he understood he had to tell the
truth, the trial court said, “I know you can do that;” after another break, the trial court
stated to minor, “You’re almost done” and “You will be finished today so don’t worry
about being here any longer than today,” then stated “I know you do” after minor again
acknowledged he needed to tell the truth.
26
We are urged by appellant to conclude that these comments suggested that the trial
court was duty bound to prevent lying in the courtroom, which absolved the jury of its
duty to independently assess minor’s credibility; and the comments implied that the trial
court was vouching for minor’s credibility and testimony. Appellant also suggests that
the trial court improperly displayed sympathy for minor.
The first question is whether there was a reasonable likelihood that a jury might
infer from the trial court’s comments that it had vouched for minor’s credibility and
invited it to give that testimony special credence. (People v. Coddington (2000) 23
Cal.4th 529, 616 [overruled on other grounds in Price v. Superior Court (2001) 25
Cal.4th 1046, 1069].) There was no such reasonable likelihood here. The trial court
merely qualified minor to testify and then encouraged him to tell the truth. Because of
minor’s age, and the nature of the case, the jury would have understood the reason why
the trial court engaged in such a colloquy with minor. It would not have inferred that
minor’s testimony was more likely to be truthful.
The second question is whether there was a reasonable likelihood the jury
perceived that the trial court was expressing sympathy for minor, and was thereby
expressing an interest in the outcome of the trial. Once again, we find no reasonable
likelihood. The record establishes that the trial court did no more than manage minor as a
witness by qualifying him, making sure he understood his obligation to the truth, and
trying to protect him from undue anxiety.
Regardless, it is not reasonably probable that appellant would have obtained a
different result in the absence of the trial court’s comments. The implied vouching,
lessening of the jury’s duty and judicial sympathy, if any, that could have been inferred
by the jury was indirect and limited at best, and it was countermanded by the jury
instructions. For example, the trial court instructed: “Now, you alone must . . . judge the
credibility or believability of the witnesses. In deciding whether testimony is true and
accurate, use your common sense and experience. You must judge the testimony of each
witness by the same standards setting aside any bias or prejudice you may have. You
may believe all, part, or none of a witness’s testimony. Consider the testimony of each
27
witness and simply decide how much of it you believe. In evaluating witnesses’
testimony, you may consider anything that reasonably tends to prove or disprove the truth
or accuracy of that testimony.” Later, the trial court told the jury: “Do not let bias,
sympathy, prejudice or public opinion influence your decision. . . . You must follow the
law as I explain it to you even if you disagree with it.” We presume that the jurors
understood and followed the trial court’s instructions. (People v. Wilson (2008) 44
Cal.4th 758, 803.)
V. CALCRIM No. 330 Properly Given.
Appellant argues that CALCRIM No. 330 is unconstitutional.
After trial, and pursuant to CALCRIM No. 330, the trial court instructed the jury
as follows: “You have heard testimony from a child who is age ten or younger. As with
any other witness, you must decide whether the child gave truthful and accurate
testimony. In evaluating the child’s testimony, you should consider all of the factors
surrounding that testimony, including the child’s age [and] level of cognitive
development. When you evaluate the child’s cognitive development, consider the child’s
ability to perceive, understand, remember, and communicate. While a child and an adult
witness may behave differently, that difference does not mean one is more or less
believable . . . than the other. You should not discount or distrust the testimony of a
witness just because he’s a child.”
Appellant argues that this instruction improperly precludes consideration of a child
witness’s demeanor and difficulty in perceiving, understanding, remembering or
communicating as indications that their testimony lacks credibility. He recognizes that
appellate courts have rejected the same or similar arguments, but argues that those cases
were wrongly decided.
The backdrop of the cases to which appellate alludes is section 1127f, which the
Legislature enacted in 1986. It provides: “In any criminal trial or proceeding in which a
child 10 years of age or younger testifies as a witness, upon the request of a party, the
court shall instruct the jury, as follows: [¶] In evaluating the testimony of a child you
should consider all of the factors surrounding the child’s testimony, including the age of
28
the child and any evidence regarding the child’s level of cognitive development.
Although, because of age and level of cognitive development, a child may perform
differently as a witness from an adult, that does not mean that a child is any more or less
credible a witness than an adult. You should not discount or distrust the testimony of a
child solely because he or she is a child.” (§ 1127f.)
This statute has been implemented first through CALJIC No. 2.20.1, and then
through CALCRIM No. 330.
Our Supreme Court explained that based on section 1127f and studies rejecting
traditional notions that children are unreliable witnesses, “we must focus on factors other
than the youth of the victim/witness” when determining the sufficiency of a child’s
testimony. (People v. Jones (1990) 51 Cal.3d 294, 315 (Jones).)
In People v. Harlan (1990) 222 Cal.App.3d 439 (Harlan), the Fourth District
rejected an argument submitted by amici curiae that CALJIC 2.20.110 unduly inflated the
testimony of children, invaded the province of juries as the determiners of credibility,
precluded jurors from discounting the testimony of children due to their age, and
precluded jurors from discounting children’s testimony based on their cognitive
development and immature performance as witnesses. (Harlan, supra, at p. 455.) The
court concluded that the instruction passed constitutional muster. It did not require juries
to draw any particular inferences; rather, it advised jurors to consider the testimony of a
child witness in light of his or her cognitive development and other factors, and to
understand that any portion of the performance of a child witness attributable to his or her
10
CALJIC No. 2.20.1 states: “In evaluating the testimony of a child [ten years of
age or younger] you should consider all of the factors surrounding the child’s testimony,
including the age of the child and any evidence regarding the child’s level of cognitive
development. A child, because of age and level of cognitive development, may perform
differently than an adult as a witness, but that does not mean that a child is any more or
less believable than an adult. You should not discount or distrust the testimony of a child
solely because he or she is a child. [¶] ‘Cognitive’ means the child’s ability to perceive,
to understand, to remember, and to communicate any matter about which the child has
knowledge.”
29
age or cognitive ability does not mean he or she is any more or less credible than an
adult. (Id. at p. 456.)
In People v. Gilbert (1992) 5 Cal.App.4th 1372, 1392–1393 (Gilbert), the Sixth
District rejected a challenge to CALJIC No. 2.20.1 and followed Harlan. The court
explained that the instruction “tells the jury not to make its credibility determinations
solely on the basis of the child’s ‘age and level of cognitive development,’ but at the
same time invites the jury to take these and all other factors surrounding the child’s
testimony into account. The instruction provides sound and rational guidance to the jury
in assessing the credibility of a class of witnesses as to whom ‘“traditional assumptions”’
may previously have biased the factfinding process. Obviously a criminal defendant is
entitled to fairness, but just as obviously he or she cannot complain of an instruction the
necessary effect of which is to increase the likelihood of a fair result. There was no
denial of due process.” (Gilbert, supra, at p. 1393.)
Subsequently, the Fifth District published People v. McCoy (2005) 133
Cal.App.4th 974 (McCoy). In that case, the court rejected the argument that CALJIC
No. 2.20.1 improperly bolstered a child’s testimony in violation of the defendant’s state
and federal constitutional rights. (McCoy, supra, at p. 978.) In dicta, the court stated that
CALCRIM No. 330 did not infringe on any constitutional rights. (McCoy, at p. 980.)
This brings us to People v. Fernandez (2013) 216 Cal.App.4th 540 (Fernandez),
an opinion from Division One of this district. It rejected state and federal constitutional
challenges to CALCRIM No. 330, stating that the holdings in Harlan, Jones, Gilbert and
McCoy should be applied, and adding: “CALCRIM No. 300 simply instructs the jury to
take into account a child’s ability to perceive, understand, remember and communicate
when making a credibility determination. It does not instruct the jury to subject a child’s
testimony to a less rigorous credibility determination, nor does it excessively inflate a
child witness’s credibility.” (Fernandez , supra, at p. 560.)
30
We decline to part ways with precedent. These prior opinions are supported by
sound reasoning. Moreover, we independently conclude that CALCRIM No. 330 does
not prevent a jury from considering a child witness’s demeanor and difficulty in
perceiving, understanding, remembering or communicating when determining whether
the child is a credible witness. Rather, CALCRIM No. 330 instructs a jury to consider a
child’s testimony, and factors bearing on his or her credibility, in the context of the
child’s nature and ability.
VI. No Cumulative Error.
Appellant has not demonstrated that the trial court erred. Consequently, we need
not consider his cumulative error argument.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, J.
ASHMANN-GERST
We concur:
_____________________________, P. J.
BOREN
____________________________, J.
HOFFSTADT
31