People v. Moreno CA2/2 ( 2021 )

Filed 11/1/21 P. v. Moreno CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B304632
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA100878)
v.
NOE MORENO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Judith L. Meyer, Judge. Affirmed.
Barbara A. Smith, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Rama R. Maline,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Noe Moreno (defendant) appeals
from his conviction of sex crimes committed against children
under the age of 14 years. He contends that the trial court erred
in denying his motion for mistrial or in the alternative to
discharge jurors who shared and laughed at a comic strip.
Defendant also contends that it was an abuse of discretion to
exclude evidence of one child’s false accusation offered to prove
that another child’s accusation was false. Finally defendant asks
that a life sentence on count 5 be set aside and the matter
remanded for resentencing to a determinate term. We find no
merit to defendant’s contentions and no need for resentencing on
count 5, as it was a determinate term of 12 years. We thus affirm
the judgment.
Defendant was charged by amended information with six
counts of lewd act upon a child in violation of Penal Code section
288, subdivision (a),1 as follows: count 1, against Erika M.; count
3, against S.A.; and counts 4, 8, 9, and 10, against Rosa P.
Defendant was also charged with one count of continuous sexual
abuse of a child (count 5), in violation of section 288.5,
subdivision (a), and one count of aggravated sexual assault—
sodomy of a child (count 6), in violation of section 269, subdivision
(a)(3). In addition, it was alleged as to counts 1, 3, 4, 5, 8, 9, and
10 that the crimes were committed against more than one victim,
within the meaning of section 667.61, subdivisions (b) and (e).
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2
Defendant was found not guilty of counts 1, 4, 6, and 10,
and guilty of counts 3, 5, 8, and 9, as charged.2 The jury found
true the multiple victims allegation as to counts 3, 5, 8, and 9.
On January 31, 2020, the trial court sentenced defendant to three
consecutive terms of 15 years to life in prison as to counts 3, 8,
and 9, for a total of 45 years to life. The court struck the section
667.61 multiple-victim allegation as to count 53 and sentenced
defendant to a concurrent middle term of 12 years on that count.
The court imposed fines and fees and calculated the combined
presentence custody credits as 2,164 days.
Defendant filed a timely notice of appeal from the
judgment.
Prosecution evidence
Rosa P. (Counts 4, 5, 8, 9, 10)
Rosa testified that she was born in 1994, her mother was
Yadira P., and that defendant was her mother’s ex-husband.
Rosa described the earliest incident she remembered, which
occurred when she was four or five years old. She had grabbed
defendant’s stomach in order to climb over him to go to the
bathroom. Defendant claimed that she had touched his penis,
and from that he knew that she was curious. Rosa testified that
she does not know whether she touched his penis.
After that there were many incidents. She recalled one
time, when she was around seven years old, her mother was not
home. Rosa was on her bunk bed not wearing clothing.
2 The amended information was filed after count 2 was
dismissed under section 1118.1 and did not contain a count 2 or
7.
3 Section 288.5, subdivision (a) was not subject to the
multiple-victim provision at the time of the offense.
3
Defendant rubbed his penis on the outside of her vagina. He did
not penetrate her, explaining that if she had a medical
examination, doctors would be able to tell. Another time when
she was about seven or eight, she and defendant were in her
room, and her cousins were outside the bedroom. Defendant sat
on the floor leaning against the door so it could not be opened.
He wanted her to perform oral sex so he could ejaculate and
would not let her leave. She complied and placed her mouth on
his penis. When she was nine or 10 years old, Rosa was in the
car while defendant was driving. He took down her pants and
underwear, put his finger in her vagina, and was happy and
excited that he was able to put his finger all the way in. Rosa
testified that another time when she was around 10 years old and
was not wearing pants or underwear, defendant grabbed some
lotion and put his penis in her butt. From the time that Rosa
was six or seven years old until she was about 12 or 13,
defendant would have her orally copulate him or he would orally
copulate her. It happened often and seemed to Rosa that it
happened all the time.
When Rosa was about nine, she thought she was pregnant
because her stomach was hurting and felt sick. Defendant
purchased a pregnancy test, which she used in a McDonald’s
restroom while her brother was in the restroom, and defendant
waited outside. The test was negative.
When Rosa was 10 or 11 years old, defendant and Yadira
separated and defendant was in a relationship with Erica C., who
had two daughters, S.A. and Ebony. Rosa remembered being at
Erica’s house when Erica called her into the room where she and
defendant were having sex, told Rosa to sit on the bed next to
him, tried to kiss her, and told her to remove her clothes.
Defendant told Rosa to go to the bathroom and clean herself
4
because she smelled bad. When she returned, Erica put Rosa’s
hands on her breasts. Erica then became upset and told Rosa to
get dressed. When Rosa was about 12 or 13 years old and she
was at defendant and Erica’s apartment, defendant and Erica
were having sex. Defendant told Rosa to put her finger in Erica’s
vagina while his penis was there. Rosa complied but could not
remember anything else.
When Rosa was nine or 10 years old, defendant found out
that social workers had been called and came to the house.
Defendant said he thought that he was going to have go away, so
he told her to remove her clothes. He then rubbed his penis on
her vagina, pushing it partially inside Rosa. When she was
around 13 years old, defendant picked up Rosa from her mother’s
house in his Tahoe truck, which he parked near some trees, and
took her into the third row seat with the middle seat pushed
down. He penetrated her vagina with his penis and told her to
call him “baby.” Around Christmastime 2008, when Rosa was at
defendant and Erica’s apartment, defendant woke her up, took
her to another room, and while she was feeling foggy, he
penetrated her vagina with his penis. It was all a blur, so later
she asked him if he had done anything, and he smiled and
winked at her.
Rosa testified that defendant is uncircumcised and has only
one testicle. He told Rosa that he had warts on his penis, which
he had burnt off, and there were little round burn marks over the
top part of his penis.4 Defendant told Rosa to have sex with
4 Photographs of defendant’s genitals were taken while he
was in custody. They show that he was uncircumcised and had
just one testicle, but did not show warts or scars.
5
someone her age so that she could get checked for warts and tell
her mom that she had sex with a boy, not him.
Rosa did not tell anyone about the abuse because she was
afraid. Defendant had told her that her mother would be taken
away, that the children would be taken away, and she would
never see them. Defendant would also fight with her mother and
tell Rosa it was her fault that they fought. On several occasions,
when she told detectives or social workers that there had been no
sexual incidents with defendant, it was not true. Rosa
remembered that a social worker came to their house in January
2003 when she was about eight years old. Rosa told her that
everything was okay, she felt safe, liked living with her parents
and playing with her dad, and that no one had ever touched her
inappropriately in her private parts. She said that if anyone
tried to do so she would kick them in the face or shove a sharp
pencil in their mouth, and would tell her mother or father. About
a month later a police officer came to talk to her. Rosa told the
officer that no one had ever hurt her or touched her
inappropriately, and defendant had never touched her in her
private area. In April 2007 when she was 12 years old, another
social worker talked to her, and again Rosa did not report
anything. In February 2013 she did not report the abuse because
she did not want her brother and sisters to be angry with her.
Rosa also denied to her mother that anything had
happened. She lied because she was afraid her mom and siblings
would be taken away and did not know what would happen.
Once, sometime after the incidents involving Erica, she asked
Erica to help her, but Erica told her not to let defendant continue
to do things to her. When Rosa was about 12 or 13, she was
having dinner with the family at defendant and Erica’s home
when Erica said, “Don’t grab that food because he will make you
6
have sex with him for it.” Rosa thought Erica was a little bit
crazy.
It was in early 2013 when Rosa, then about 18, first told
anyone about these incidents. Police officers stopped her
boyfriend’s car while she was with him, and she felt comfortable
with them. She walked away a bit with one of them and asked
how to make a report. He explained it to her and told her it was
never too late.
Rosa testified that she suffered a lot of anxiety, and it was
difficult seeing defendant and talking about what happened. She
felt emotional testifying, called him a “terrorizer” and blamed
him for her mother’s attempted suicide.
S.A. (Count 3)
S.A. testified that defendant was her father, although she
did not know that he was her biological father until she was 10
years old and they obtained a DNA test. Prior to that she
thought her older sister’s father was her father. S.A. was born in
2000, her older sister is Ebony, her mother is Erica C., and she
has two younger siblings.
S.A. testified that defendant touched her in an
inappropriate manner one night in 2008, when she was about
seven or eight years old. Her mother was at work and S.A. was
asleep in her room on the top bunk without a blanket. In the
middle of the night defendant entered, climbed up to the top
bunk, sat at the top of the bunkbed stairs, pulled down her
underwear, and touched her. Ebony was on the bottom bunk and
her younger siblings were sleeping in the living room. He pulled
her underwear down slowly, then put his hand on the outside of
her vagina. She felt his bare hand stroking her skin upward,
downward, and around. It seemed to last about 10 minutes.
During the entire time, she pretended to be asleep.
7
A couple weeks later, S.A. told her counselor at school what
had happened. After that, she told her mother about the
touching, and Erica was upset. A few months later, she told the
social workers that nothing had happened, because she was
afraid that her family would be broken apart if she told the truth.
S.A. is close to her sister Ebony. They share secrets, but she did
not tell Ebony that defendant had done something to her.
The family was followed by the Department of Children
and Family Services (DCFS) for about a year and a half around
2007 and 2008, and they went to court several times. The
children had court-appointed counsel. Erica and defendant
argued quite a bit, and S.A. saw her mother throw or break
things during arguments, which scared her. She would hear her
mother say, “You can’t tell me what to do, you’re a molester.”
Erica often called defendant a molester when they were arguing.
S.A. met regularly with caseworkers and social workers, and
defendant moved out of the house for a while. S.A. did not miss
him when he moved out and did not want him back. S.A. recalled
telling a caseworker that nothing had happened between her and
defendant, but she did not recall talking to other social workers
in 2008. She testified that she lied to them because she was
afraid she would be taken away from her parents.
As she got older S.A. and defendant argued a lot. He did
not allow her to have boyfriends, which she did anyway. Erica
was more lenient and knew about the boyfriend. After defendant
installed a monitor on her phone in or around 2014, he discovered
that she had sex with a boy and was “sexting” him. She was
angry at being caught, because she liked the boy. Defendant was
upset, took her phone away, and did not allow her to go outside.
After defendant was arrested in December 2014, S.A. spoke
to one of the officers and talked about what happened in 2008.
8
Erika M. (Count 1)
Erika testified that she was born in 2004, that her mother
is Erica C. and that defendant is her father. She recounted a
2014 incident when she was about 10 years old. She was on her
parents’ bed with her brother and parents watching a movie. She
was between her parents, defendant was on her right, her mother
on her left, and her brother was left of her mother. She fell
asleep and was awakened when she felt a hand on her lower
abdomen near her pelvis moving downward. When she woke up
and moved a bit, defendant, who was awake, moved his hand.
Then she felt it again. It felt weird and she was confused so she
left and went to the living room to sleep. Erika told her mother
about it a few days later when they were in the car with S.A.,
Ebony, and her brother. Her mother called the police and
defendant was arrested that day.
Testimony of Erica C.
Erica testified that defendant was the father of her
daughters S.A. and Erika as well as a younger boy. She and
defendant were together six or seven years, off and on. They
argued a lot and separated a few times. After some arguments
they would not speak to each other for up to a week. Sometimes
she threw things during their arguments, and sometimes she
would physically hit and punch herself when angry or upset. She
sometimes called defendant a child molester but did not think the
children heard her. Erica and the children moved out of the
home for two years when DCFS came to investigate after
receiving anonymous calls regarding inappropriate touching. She
and defendant went to counseling, and she moved back in
gradually over a two-year period. Erica did not remember what
year it was that she learned from social workers that S.A. had
reported inappropriate touching at school. She asked S.A. and
9
Ebony about it, but S.A. did not want to disclose exactly what
defendant had done, and then she denied it.
Three telephone calls, which defendant placed from the jail
to Erica, were recorded and played during her testimony. In the
first call, defendant said to Erica, “I just wanted to apologize for
putting you through so much and, uh, I got a, I don’t know, I got,
I got a lot of stuff that I can’t understand about myself and, and,
uh, I don’t know, I just, I just wanted to let it out and clear it up
and, uh, just face it, you know, face everything.”
After defendant spoke some more, Erica said, “I just don’t
understand why would you, that’s our little girl, Noe, I don’t
understand that.” Defendant explained that he fell asleep while
watching the movie and “whether it’s subconsciously or
purposely . . . I realize at the end, you know, that there’s . . . this
has been an ongoing, uh, I don’t know, just ongoing stuff . . . . I
didn’t intentionally, uh, look for anything to, to, uh, to do that to
the little girl for purposes of, you know, uh, you know, like what I
was telling the cop, uh, getting off or anything like that, but, uh,
if I hurt, uh, anybody, the little kids or anybody, uh, with
anything that I consciously did or not, uh, it’s, that’s what’s
important, that I, you know, face it.” Erica told defendant that
“even though what . . . occurred with [S.A.], . . . you were saying
that it wasn’t true and all this stuff, and then we went through
the court and we went through the counseling . . . and you seen
that it was still affecting [S.A.].” Defendant replied, “Yes, I know,
because, uh, you know, uh, I know all that, this is something
that, uh, you know, has been with me for the person that I have
been for years and years and years and stuff like that too, you
know, and this is something, like I said, that I don’t understand.”
Defendant then explained to Erica “that there’s a difference
between, you know, doing something for the intention of getting
10
off, and, and, and, you know, doing something innocently and
stuff like that, and we fell asleep and, uh, you know, uh, I’m not
going to say that I didn’t do that. I cannot say that, because
obviously I’m not going to say that she was lying or anything like
that. I am going to figure and accept whatever comes about it,
because if I, if I hurt her, or she felt like, you know, she was
violated, uh, then that’s what has to be, because, uh, it is, you do
have the right, that is my little girl, uh, I’m just afraid that, you
know, what’s going to happen in the future when all this is over
and I can’t . . . may or may not see my kids and stuff like that,
and, uh, you know, I feel like, uh, I don’t know, at the end what’s
really going to, I don’t know, uh, you know, how much time I’m
going to be here.”
In the second call, defendant again apologized and said he
had to accept responsibility. He said, “I’m not going to contest
my little girl,” and “I’m not going to make excuses.” In the third
phone call, defendant said, “I’m sorry if I, if I, if I ruined, uh, you
know, a lot. These are my actions, I, I ruined a lot, you know.”
Defendant explained, “I didn’t do it with the intentions of
anything. You know, we were watching TV and you know I
always like to hold her, and stuff like that, and I might have been
asleep, uh, during that time, but it was for no reason, no purpose,
for, for, you know, getting up, but I’m not going to say that I
didn’t do it, and that’s it, you know.”
Defense evidence
Erica testified for the defense that she had a good
relationship with Rosa and became aware of her allegations
against her after defendant was arrested. Erica denied Rosa’s
claim about watching her and defendant have sex and including
her in sexual activity ever happened. She denied that she and
Rosa had any discussion about sexual encounters between
11
defendant and Rosa, although Erica asked Rosa more than once if
there had been such encounters, which Rosa always denied.
Erica also asked Yadira a couple times, and Yadira claimed that
Rosa said nothing had happened. Erica did think it was odd that
Rosa and defendant were on the computer late at night two or
three times when Rosa was around 13 years old.
Erica described a hostile relationship with Yadira, adding
that Yadira had alleged so many things against her that the
accusations against her did not come as a surprise. Erica claimed
that she tried to be friends or at least civil, but Yadira resisted.
Over the years Yadira had made all kinds of accusations against
Erica and her children.
The defense called Ebony, who identified defendant as her
stepfather, Erica as her mother, and S.A. and Erika as her
younger sisters. Ebony described her relationship with S.A. as
close, like best friends. Although she did not dislike defendant at
first, she has come to dislike him because of things he has done,
choices he has made, including his way of disciplining. Ebony
was asked to recount the incident that occurred when defendant
took Ebony and S.A. to a drugstore when he suspected that they
were using drugs. They had not used drugs, but Ebony was not
upset about the accusation. She was upset that defendant was
accusing them in public, which embarrassed her and made her
feel bad. Ebony told him it was embarrassing, that he was going
to make her hate him, which she did not want. S.A. also seemed
to be upset and embarrassed. Defense counsel asked whether
Ebony said, “If you test [S.A.] I’ll call the police and you will see
what I do.” Ebony did not recall saying that and did not think
she would have used that against defendant for something so
little.
12
The defense called several social workers who had contact
with the families. Victor Blackwell, who investigates child abuse
and neglect, spoke to S.A. and thought she seemed sincere in her
denials, though he acknowledged that some children falsely deny
abuse. Olivier Padilla testified that she spoke to four children, a
boy, Erika, S.A., and Ebony; and S.A. denied being abused by her
father or sexually abused. Padilla saw no indication that she was
being evasive or untruthful. Armando Carrasco met with Erica
and her children monthly for about a year in 2008 and 2009,
during which time he spoke to each child and Erica individually.
S.A. did not disclose sexual abuse by her father. Lizette Carmona
was called to Rosa’s home in January 2003, to investigate
allegations of sexual abuse, which Rosa denied. Carmona
observed no cues that Rosa was not forthcoming or honest. When
Maria Parra interviewed Rosa in April 2007, Rosa did not
disclose any allegations of sexual abuse. Rosa claimed that she
and defendant were close and that she was still in contact with
him although she did not live with him. Rosa said that Erica
disliked that she and defendant were close, and she expressed
concern about how Erica treated her own children. The parties
stipulated that other social workers and a detective would give
similar testimony about the children’s denials.
Bradley McAuliff, a psychology professor and adjunct law
professor testified as an expert in the suggestibility of children
and forensic interviewing. He explained that a suggestible
witness was not the same as a witness who lies. A suggestible
child might have a memory about an event that never happened.
Defendant testified that Rosa was about six months old
when he first met Yadira, and during their 10-year relationship
they had three children together.
13
Rosa was a beautiful, smart and funny child who always
had a smile. Defendant claimed they had a great relationship as
she grew, until around the age of 13, when Rosa changed her
attitude, stopped calling him dad, and started calling him fool
and dog. She then began to dress differently, talk back, and
rebel; and he could no longer discipline her. She was blunt about
things, would steal, and throw a tantrum if he told her what to
do. This was after his separation from Yadira. Before that she
was fine while they were together.
Defendant and Yadira argued frequently. She was
unfaithful, stole from his wallet, and would leave with the
children, sometimes for weeks at a time. Defendant stayed with
her because he was terrified to be alone and suffered from
anxiety and depression for which he took medication and saw a
therapist. Defendant was happy when Erica came into his life.
He and Yadira reconciled at some point and had a son.
Eventually defendant “wasn’t having it anymore” and moved in
with Erica. Erica had reconciled with her husband, Ebony’s
father, until he went to prison. She then came back into
defendant’s life when S.A. was about four years old. Erika was
born in 2004 and later their son.
Defendant and Erica lived separately for about two years
when DCFS was involved. Otherwise their separations after
arguments were short—a week at the most. Eventually their
arguing caused defendant to think he was at the point of a
mental breakdown, having thoughts of hurting people who hurt
him and about suicide. He did not feel in command of his
household. He felt he was being bullied by the three “women”
who were “running” his home. In addition to Erica, the women
were S.A., who was then nine or 10 years old, and Ebony, who
was about 16. Erica was physically and verbally abusive and the
14
girls were disobedient when he tried to implement rules. Erica
punched herself when he confronted her about cheating, and he
would end up apologizing to make her stop. When he was alone
he would replay in his mind their attacks on him. It was
traumatic and brought on strong feelings of fear and anger, as
well as thoughts about hurting them. This abuse at home
continued for years and years.
Defendant put a monitoring application on Ebony’s and
S.A.’s phones so he could see their texts, online searches, and who
they were calling. He also put the application on Erica’s phone
because of “[o]ur history of infidelity, trust. And you know, just
the bad relationship.” When defendant saw that S.A. was sexting
a boy and looking at marijuana Web sites, he monitored her more
and implemented rules that caused her to further resent him.
Defendant was a nervous wreck wondering what S.A. was
capable of doing if he were not monitoring her.
As to Erika’s allegations against him, defendant said they
were “ridiculous” and, “That’s all I have to say.”
Defendant claimed that his apologies in the telephone calls
from jail were about his relationship with Erica and his intention
to work on it, to try to change, and to work on his insecurities and
trust issues. He knew she was accusing him of misconduct with
Erika and did not deny it because he had learned that it was
never a good idea to contest her. He had learned de-escalation
tools in therapy and that was what he was trying to do in the
telephone calls. Defendant claimed that he did not
inappropriately touch any of his children.
The divorce from Yadira was pending when Rosa went to
the police. They were fighting about money, child support,
custody, and visitation. Defendant described the incident at the
drug store three weeks before his arrest, and claimed that Ebony
15
screamed, “If you test [S.A.], I will call the police and you will see
what I will say.” Defendant again claimed that he was being
bullied by the women.
Defendant claimed that everyone in the family knew that
he had one testicle due to a surgery in his 20’s, and it was
common knowledge that his family did not circumcise. He never
spoke to Rosa about it and did not know how she knew.
Defendant claimed that nothing of a sexual nature ever happened
with S.A. or Rosa.
DISCUSSION
I. The cartoon
Defendant contends that the trial court erred in denying
his motion for mistrial or, in the alternative, to discharge jurors
who shared and laughed at a comic strip that one of them cut
from the Los Angeles Times.5 It depicts a courtroom with a jury,
judge, defense counsel, and a defendant who is depicted as a
large grinning clown. The jury foreman is standing, reading from
a paper, “We find the defendant really creepy and don’t care if
he’s crying on the inside.” The caption reads, “Easiest jury
service ever.”
Defendant asserts that sharing and laughing at the comic
strip was misconduct and that it was serious enough that
prejudice must be presumed.
We agree with the People that the sharing of the cartoon
was not misconduct. “[I]n the absence of misconduct, the burden
remains with the defendant to demonstrate prejudice under the
5 The “Non Sequitur” comic strip, published in December
2018, was not in the appellate record, but we have taken judicial
notice of a copy of it at defendant’s request.
16
usual standard for ordinary trial error.” (People v. Gamache
(2010) 48 Cal.4th 347, 397.) Prejudice is presumed only from
actual misconduct or “‘true jury misconduct.’” (People v. Cooper
(1991) 53 Cal.3d 771, 835; People v. Chavez (1991) 231
Cal.App.3d 1471, 1484-1485.) Juror misconduct occurs when an
“overt event is a direct violation of the oaths, duties, and
admonitions imposed on actual or prospective jurors, such as
when a juror conceals bias on voir dire, consciously receives
outside information, discusses the case with nonjurors, or shares
improper information with other jurors.” (In re Hamilton (1999)
20 Cal.4th 273, 294.) The receipt of outside information is
misconduct when it relates to the pending case. (In re Carpenter
(1995) 9 Cal.4th 634, 675.) It is not misconduct when it is
unrelated to any issue in the case, even when it concerns the jury
process. (Cf. People v. Page (2008) 44 Cal.4th 1, 58-59 [jurors
shared cartoon lampooning the length of jury service].)
Here, the cartoon was related to the trial process, but not to
defendant’s case or any issue in the case. The burden thus
remains with defendant to establish prejudice under the usual
standard for ordinary trial error. The decision whether to grant a
mistrial or motion to discharge a juror due to alleged misconduct
is committed to the sound discretion of the trial court. (People v.
Peterson (2020) 10 Cal.5th 409, 476.) A ruling on a motion for
mistrial is reviewed for an abuse of discretion, and such a motion
should be granted only when a party’s chances of receiving a fair
trial have been irreparably damaged. (People v. Ayala (2000) 23
Cal.4th 225, 283.) We defer to the trial court’s factual findings if
they are supported by substantial evidence. (Id. at pp. 283, 299.)
“‘Under this standard, a trial court’s ruling will not be disturbed,
and reversal of the judgment is not required, unless the trial
court exercised its discretion in an arbitrary, capricious, or
17
patently absurd manner that resulted in a manifest miscarriage
of justice.’” (People v. Dunn (2012) 205 Cal.App.4th 1086, 1094.)
The trial court took a poll of the jury, found that every juror
had read the cartoon, and then questioned each one individually.
All jurors said they did not consider defendant a clown and
understood that defendant was still entitled to the presumption
of innocence. The trial court heard argument of counsel and
denied the motion. The court found no misconduct, as the
cartoon was not about the case.
Defendant argues that only Juror No. 11 was “honest with
the court that the comic was related to [defendant’s] case.” We
disagree with defendant’s characterization. Juror No. 11
speculated that the cartoon was passed around with the intent to
compare it with this case and thought it was inappropriate but
told the court that there was no such discussion among the
jurors, and Juror No. 11 did not equate it with this case.
We reject defendant’s suggestion that the jurors lied to the
court about how the cartoon affected them. When defendant
renewed the issue in his motion for new trial, the trial court
stated:
“The court was satisfied that we still had an
independent and objective jury based on their
demeanor, which is not often reflected in the court
record. I adjudged their demeanor [and] their
character. I looked at each juror. . . . I’m making this
record very specific because I don’t want the
appellate court to second-guess me on my judgment
as to whether I think jurors were telling the truth to
me on their opinion or feelings or how much credence
they gave to this cartoon. So when . . . I interviewed
all the jurors, I felt that [they] were being truthful
with me and honest with me, . . . [¶] . . . and that
18
this cartoon was going to have zero effect on the
verdict.”
We defer to the trial court’s determination of the jurors’
credibility and reject defendant’s speculation that the jurors lied.
Defendant also argues that an unnamed juror’s frustration with
the length of the trial demonstrated a negative attitude of all the
jurors caused by the cartoon (rather than simply the length of the
trial, apparently). Speculation cannot establish prejudice.
(People v. Williams (1988) 44 Cal.3d 883, 933.)
Relying upon his claim that prejudice is presumed,
defendant fails to demonstrate that absent the sharing of the
cartoon, a different result was reasonably probable. To establish
an abuse of discretion, a defendant must show that the ruling
“resulted in a manifest miscarriage of justice.” (People v. Jordan
(1986) 42 Cal.3d 308, 316.) A miscarriage of justice occurs when
it appears that a result more favorable to the appealing party
would have been reached in the absence of the alleged errors.
(People v. Watson (1956) 46 Cal.2d 818, 836; see Cal. Const., art.
VI, § 13.) It is the defendant’s burden to establish “a reasonable
probability that error affected the trial’s result.” (People v.
Hernandez (2011) 51 Cal.4th 733, 746.)
No such probability appears here. Defendant argues that
prejudice is shown by the not guilty verdicts on some counts and
guilty verdicts on others, which, he asserts, indicate compromise
verdicts. Without other evidence of compromise we must
presume that the jury faithfully performed its duty. Acquittal on
one count is not evidence that the guilty verdict on another was a
compromise. (People v. Root (1952) 112 Cal.App.2d 122, 126; see
People v. Taylor (1948) 88 Cal.App.2d 983, 987.)
Furthermore we agree with the People that the evidence
against defendant was overwhelming. Rosa described in detail
19
nine specific sexual offenses that defendant committed against
her, including rape, over a period of approximately six years.
Rosa also testified that during that same period it seemed that he
imposed separate incidents of oral copulation on her “all the
time.” S.A. described how defendant stroked her vagina for 10
minutes when she was six or seven years old.
Defendant acknowledged in the three phone calls with
Erica that he committed the acts against S.A. Defendant
apologized to Erica for what he did to their daughters and
admitted that he committed the acts “whether it’s subconsciously
or purposely.” Defendant knew how it had affected S.A, “because,
uh, you know, uh, I know all that, this is something that, uh, you
know, has been with me for the person that I have been for years
and years and years and stuff like that too, you know, and this is
something, like I said, that I don’t understand.” Defendant
explained that “there’s a difference between, you know, doing
something for the intention of getting off, and, and, and, you
know, doing something innocently and stuff like that, and we fell
asleep and, uh, you know, uh, I’m not going to say that I didn’t do
that. I cannot say that, because obviously I’m not going to say
that she was lying or anything like that.”
In light of defendant’s admissions and the testimony of his
victims, if we found the alleged misconduct in error, it would be
harmless under any standard.
II. Exclusion of impeachment evidence
Defendant contends that the trial court erred by excluding
“crucial
testimony impeaching a witness, deeming it irrelevant that the
witness admitted to multiple investigators that she invented
allegations to get [defendant] in trouble.” (Capitalization and
boldface omitted.)
20
Defendant brought up the issue twice. First, defendant
sought to have the court admit evidence of an interview in which
Ebony admitted that she had lied about defendant having
inappropriately touched her because she wanted to get him into
trouble, and added that her description of the touching was
identical to that given by S.A. Defendant claimed that Ebony
said to him, “You are going to see what I am going to do to you.”
Although the initial wording of defendant’s contention on
appeal suggests that the purpose of the evidence was to impeach
Ebony, defendant then makes clear that he wanted to impeach
S.A.’s testimony, which is how the trial court construed the
request. Defendant explains that the purpose of the evidence
was to show that the children were willing to invent false
accusations against defendant. The court ruled that without
evidence that S.A. and Ebony conspired or even discussed the
details of S.A.’s experience, the evidence would be hearsay and
irrelevant to S.A.’s state of mind.
Defendant brought up the issue a second time just before
Ebony testified for the defense. Before court that day defense
counsel interviewed Ebony and informed the court that she
denied that S.A. described the touching to her or that she and
S.A. ever had had a conversation about concocting a story in
order to get defendant into trouble. Ebony claimed that she
overheard S.A. describing the abuse to a police officer. Counsel
explained that the closeness of the sisters suggested a willingness
to make these allegations against defendant just because they
were angry with him. The court found that the defense had not
shown how Ebony’s state of mind would be probative of S.A.’s
state of mind, and the court again excluded the testimony.
“We review a trial court’s ruling excluding evidence on
grounds of irrelevance (Evid. Code, § 350) for abuse of discretion.
21
‘“‘The trial court has broad discretion in determining the
relevance of evidence [citations] but lacks discretion to admit
irrelevant evidence.’”’” (People v. Thornton (2007) 41 Cal.4th 391,
444.) We may not disturb the trial court’s ruling on the
admissibility of evidence “‘except on a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of
justice.’” (People v. Goldsmith (2014) 59 Cal.4th 258, 266.)
“‘Relevant evidence’ means evidence, including evidence relevant
to the credibility of a witness or hearsay declarant, having any
tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action.” (Evid. Code,
§ 210.) “‘The test of relevance is whether the evidence tends
“‘logically, naturally, and by reasonable inference’ to establish
material facts such as identity, intent, or motive.”’” (People v.
Heard (2003) 31 Cal.4th 946, 973.)
Defendant argues that Ebony’s testimony that she had
invented her story was central to the defense theory that S.A.
had lied about her allegations, and Ebony’s testimony would thus
impeach portions of S.A’s testimony. He asserts that the
similarity of their allegations and Ebony’s willingness to lie lent
significant support to the inference that S.A. was also willing to
lie and had also invented her allegations.
Defendant was unable to produce evidence of any
communication between the sisters regarding what defendant did
to S.A., or any statement by S.A. suggesting that she falsely
accused defendant. We construe defendant’s reasoning
essentially as follows: Ebony lied by claiming that defendant did
the exact same thing to her as he did to S.A.; Ebony loves her
sister S.A., S.A. loves her sister Ebony, and the sisters are close;
ergo, S.A. lied. Defendant’s reasoning is faulty. In general,
22
“speculation regarding the state of mind of another person [is]
both incompetent and irrelevant.” (Gherman v. Colburn (1977)
72 Cal.App.3d 544, 582.) Testimony regarding the state of mind
of another person is speculative unless it is supported by “‘proper
evidence of such state of mind such as declarations or conduct.’”
(People v. Lamer (2003) 110 Cal.App.4th 1463, 1470, quoting
Gherman v. Colburn, supra, at p. 582.) Thus it cannot be said
here that “‘the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner . . . .’” (People v.
Goldsmith, supra, 59 Cal.4th at p. 266.)
Nor has defendant shown that the ruling “‘resulted in a
manifest miscarriage of justice.’” (People v. Goldsmith, supra, 59
Cal.4th at p. 266; see Evid. Code, § 354.) Defendant merely
argues that the ruling violated his constitutional right to due
process, and thus review is required under the standard of
Chapman v. California (1967) 386 U.S. 18, which requires the
People to demonstrate that the error was harmless beyond a
reasonable doubt. As defendant did not make a due process
argument below and we find no error, there has been no
constitutional error that must be reviewed under the Chapman
standard. (People v. Thornton, supra, 41 Cal.4th at p. 443.)
Nevertheless, as explained in relation to defendant’s
argument concerning jury misconduct, we find the court’s ruling,
if error, harmless under any standard. In a telephone call from
the jail defendant apologized to Erica for committing the acts
against their daughters, and admitted that he committed the acts
“whether it’s subconsciously or purposely.” When Erica
responded, “I just don’t understand why would you, that’s our
little girl,” she was clearly speaking of S.A. Erica named S.A.
when she told defendant that even though going through
counseling, he saw “that it was still affecting [S.A.].” Defendant
23
replied, “Yes, I know, because, . . . this is something that . . . has
been with me for the person that I have been for years and years
and years and stuff like that too, you know, and this is
something, like I said, that I don’t understand.” Defendant
offered that he fell asleep while watching the movie and “whether
it’s subconsciously or purposely . . . I realize at the end, you know,
that . . . this has been . . . ongoing . . . .”
Not only did defendant admit his abuse of S.A., the abuse
took place when S.A. was about seven years old and defendant
believed she was his stepdaughter. Defendant began abusing
Rosa when she was seven years old. Rosa’s testimony regarding
defendant’s abuse was detailed and compelling. Evidence of
other sexual offenses can be highly probative of defendant’s
propensity to commit such acts, particularly where the crimes or
victims are similar, such as “unsolicited sexual advances against
young female children with whom he has a close familial
connection while they are entrusted to his care” (People v.
Hernandez (2011) 200 Cal.App.4th 953, 967), or “molest[ing] a 12-
year-old stepdaughter, then a 12-year-old step-great-
granddaughter” (People v. Branch (2001) 91 Cal.App.4th 274,
285; see Evid. Code, § 1108).
In sum, if the court had erred, we would find it harmless
beyond a reasonable doubt.
III. Count 5 sentence
Defendant contends that a life term under section 667.61,
the “One Strike Law,” was unauthorized for count 5 because a
violation of section 288.5 was not added as qualifying offense
until 2006, whereas the count 5 offense spanned a period ending
in 2003. Defendant asks that sentence on count 5 be set aside
and the matter remanded for resentencing to a determinate term.
24
Remand is unnecessary. The trial court struck the section
667.61 multiple-victim allegation as to count 5 and sentenced
defendant to a concurrent middle term of 12 years on that count.
DISPOSITION
The judgment is affirmed.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
HOFFSTADT, J.
25