People v. Silva CA1/1 ( 2022 )

Filed 9/20/22 P. v. Silva CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A163801
v. (Solano County
JOE ALBERT SILVA, Super. Ct. Nos. VCR232726 &
VCR233601)
Defendant and Appellant.
A jury found defendant guilty of 11 acts of lewd conduct by force, fear,
or duress on a minor under age 14. Defendant contends we must reverse the
judgment due to insufficiency of the evidence and because the trial court
abused its discretion in allowing overwhelming inadmissible and prejudicial
evidence to be heard by the jury. For reasons we will explain, we disagree
and affirm.
I. BACKGROUND
A. Factual Background
As we note briefly below, defendant appeals from two cases tried to
different juries in the superior court, one involving criminal threats and
annoying phone calls, and the other involving lewd acts on a child. We
summarize only the facts pertaining to the lewd acts case, as defendant
raises no issues on appeal relating to the criminal threats case.
1. G.S.’s Testimony
G.S. was 14 years old at the time of trial. Defendant was her mother’s
ex-boyfriend. He lived with B.S. (G.S.’s mother), G.S., and her sisters in
Vallejo when G.S. was 10 years old. When defendant first moved in, G.S.’s
older sister lived with them, as did her younger sister.
G.S. had a good relationship with defendant at first, but after her older
sister moved out, “[t]hings in the house started getting more violent” and
defendant started touching G.S. G.S. heard defendant throwing her mother
in the closet and sometimes they would argue and “he would hit her really
bad.” G.S. did not see defendant hit her mother, but she heard them yelling
and arguing with each other.
Defendant started touching G.S. after her older sister moved out, but
she did not remember when that was or if it was “close in time to a birthday.”
Describing her first memory of when defendant touched her, G.S. explained
that defendant opened the door to her room, came into the room, and closed
the door. He grabbed her waist and pulled her “in” because she was pulling
away. G.S. felt scared because “I knew what my mom had been through, and
I knew that things like this could happen and I knew who he was.”
Defendant put his hand in his pants and made up-and-down motions.
It appeared he was masturbating. While he was masturbating, he was
grabbing G.S. by the waist. G.S. tried to resist defendant by hitting him, but
he did not stop. Defendant had his hands in his pants about a minute. After
he took his hand out of his pants, he used his hand to open G.S.’s mouth and
stuck his fingers in her mouth “until [her] throat.” G.S. felt something slimy
on his fingers.
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After he put his fingers in her mouth, defendant touched G.S.’s breasts
over her clothes. She was not yet wearing a bra at the time. He applied a lot
of pressure to her breasts, which caused her discomfort but not pain.
Defendant stopped touching G.S. when her mother walked down the
hallway. G.S. did not say anything to defendant while he was touching her
because she was scared.
G.S. did not remember the first time defendant touched her and could
not remember how many times defendant touched her, but it was more than
a few—“[t]here were so many occasions.” When asked how many months the
touching lasted, G.S. testified it was “until my sister moved out, until . . . the
first time he went to jail.” He touched her only on weekends, once every
weekend day, Saturday and Sunday. All of the incidents were similar in
nature—they all lasted about a minute or longer and always happened in her
room. Defendant would “switch off”—sometimes he would grab her breasts
first and then put his fingers in her mouth; other times he would put his
fingers in her mouth first. She would try to resist by hitting him but that
would not stop him. Many times her mother approached her room while
defendant was touching her, and he would look at the door, open it, and
leave. She did not tell anyone about the touching while it was happening.
One time, defendant and G.S.’s mother, B.S., were arguing at the table,
because defendant was hitting B.S. G.S. went to see if her mother was okay
and they all talked at the table. G.S. kept asking her mother to leave
defendant and her mother kept asking why. G.S. screamed at her and said
that defendant was “taking [her] childhood away.” G.S. was referring to what
defendant was doing to her sexually. G.S. did not explain what she meant,
and her mother got mad and told her to go to her room. While they were
having this conversation, defendant looked at her from a side angle and gave
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her a “smile that was very scary.” G.S. understood the look to mean that she
should stop talking and she did.
G.S. also testified about the fighting she heard between her mother and
defendant. G.S. saw bruises on her mother’s legs and arms after she heard
her mother arguing with defendant. She tried to talk to her mother about
what she saw, but her mother denied defendant was hitting her and would
not talk about it. G.S. did not believe her mother’s denials. She heard
defendant threaten to kill her mother “[m]ultiple times,” which made her
afraid of him. Defendant also said to G.S. that if she ever told, he would kill
her mother.
G.S. had two dogs that she was close to—she would talk to the dogs
about what was happening to her. She did not talk to anyone else other than
the dogs. Defendant took her dogs and placed them “somewhere else”—she
did not know where. G.S.’s mother also participated in the dogs being taken.
She felt angry and sad when the dogs were taken away.
The touching stopped happening when defendant was no longer living
with them. G.S. did not tell her mother immediately.
In December 2018, G.S. was seeing a counselor at her school because
she was showing signs of depression. At that time, G.S. was feeling “so numb
and exhausted.” She tried to hurt herself by cutting herself with a knife,
pencil, or ruler, and took a lot of melatonin in an attempt to kill herself. On
December 4, she told the counselor that she wanted to kill herself. The
counselor was shocked and called her mother. G.S. did not tell her counselor
about defendant’s abuse, nor had she told her mother at that point.
G.S.’s mother took her to Kaiser hospital’s emergency department. She
met with a doctor there she had not seen before. She talked with the doctor
about stressors in her life, but she did not tell the doctor what had been
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happening with defendant. G.S. was referred for mental health therapy, and
about a week later, started seeing a therapist. G.S. did not tell the therapist
immediately about defendant’s touching because she was scared.
On December 11, 2018, G.S. finally told her mother about what
defendant had been doing. G.S. told her mother about the abuse “[b]ecause I
was afraid that I was really going to kill myself if I didn’t tell anyone.” At the
time, G.S. knew defendant was in jail, which made her feel safer from him,
and was part of the reason she disclosed the abuse when she did. After
defendant moved out, G.S. also told her friend about the abuse though she
was not always open with her about what happened.
G.S. testified she was still seeing a therapist and taking medication to
manage her depression and anxiety. When asked how the sexual assaults
have affected her personally, G.S. testified, “I began to look at myself
different and I was very suicidal and I felt like I didn’t have any worth
anymore, that everyone was going to look at me in a different way.” She used
to be involved in gymnastics and swimming, but she did not want to
participate in gymnastics anymore because she “didn’t want to be around
men anymore” and “one of the coaches was a man.” G.S. also stopped eating
to the point where she stopped getting her period and her hair was falling
out.
On cross-examination, G.S. testified that defendant lived with them for
about seven months from September 2017 to March 2018. She affirmed that
defendant started touching her when her older sister moved out of the house.
G.S. heard a lot of yelling and arguing between her mother and
defendant that made her scared and angry. She felt angry at defendant
because she loved her mother and wanted to protect her from defendant. She
also affirmed that when defendant touched her waist and pulled her toward
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him that she was scared because she thought he was going to hurt her like he
was hurting her mother. She told the police that she had told her mother, “ ‘I
knew he was throwing you against the wall.’ ” She told the police that
because it really upset her and brought back a lot of bad memories, even as
she testified. G.S. affirmed that it was hard to hear her mother deny the
abuse when G.S. was trying to help her, and that she felt “[s]ad and
annoyed.” She grew to hate defendant because of what he did to her mother.
She wanted him to suffer for what he did to her mother, and she was happy
and relieved when he moved out.
2. B.S.’s Testimony
At trial, B.S., testified that she and defendant began dating around the
end of 2016 and dated for two and a half years. Defendant moved in to her
home in August 2017, and lived there until March 2018, when her
relationship with him ended and he moved out. He moved out because of
domestic violence.
When defendant moved in with B.S. and her daughters, G.S.’s older
sister lived there, but she moved out around her birthday on October 10.
After the sister moved out, B.S. noticed a change in G.S.’s demeanor. She
“shut down,” and was sad, crying, and stopped participating in gymnastics
and swimming. B.S. asked G.S. why, but G.S. responded, “ ‘I don’t know
mom.’ ” G.S. stopped participating in gymnastics and swimming at the end of
February, before defendant moved out in March.
In June 2018, an incident occurred between B.S. and defendant that
resulted in a criminal case. B.S. reported the incident to the police, the
district attorney filed charges, and B.S. was required to come to court to
testify. The jury convicted defendant on December 5, 2018. While the jury
was deliberating, G.S. was “panicked,” “scared,” and “suicidal,” but B.S. did
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not know why. B.S. asked, but G.S. would not tell her. When defendant was
convicted, G.S. was relieved.
On December 3, on the second day of trial, B.S. received a call from
G.S.’s school, reporting that she had suicidal ideations. The school had called
“the authorities,” and law enforcement accompanied G.S. and her mother to
the emergency room at Kaiser Permanente hospital. They met with a doctor.
When the doctor asked G.S. about how long she had been feeling this way
and why she believed she felt that way, she would just cry and “had a blank
stare.” But G.S. did not report that defendant had been molesting her.
On December 11, G.S. approached her mother and told her she needed
to speak with her. G.S. told B.S. that “she hated herself because this man
had molested her and had been fondling his penis, touching it until it was
slimy and he would force his fingers in her mouth. He would grab her from
the back and grab her breast and she didn’t even have breasts, and just rub
her and he would pull her into him and he would tell her to be quiet.” B.S.
testified G.S. was “throwing up,” “crying,” and “couldn’t hold herself up.” She
said she would “never forget that.”
When B.S. asked G.S. why she did not tell her sooner about the abuse,
G.S. responded: “ ‘Because he was going to kill you, he said.’ ” G.S. told her
mother she was scared for both of their lives, and for the life of her younger
sister. B.S. also asked G.S. why she would stay in her room if that was where
he would touch her, and she told B.S., “ ‘I didn’t want him to touch [my
younger sister].’ ”
When G.S. disclosed the abuse to B.S. on December 11, defendant had
already been convicted. It was B.S.’s understanding that he would be doing
some substantial time in jail. B.S. conveyed that information to G.S.
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3. Multidisciplinary Interview
On December 27, 2018, G.S. was interviewed at the Courage Center in
Fairfield by a specially trained interviewer with the district attorney’s office,
Vicky Rister, in what was termed a multidisciplinary interview (MDI). The
MDI was recorded. A redacted version of the MDI was played for the jury at
trial, over defense objection.
When Rister asked G.S. in the MDI about the first thing she could
remember happening to her, G.S. told her defendant would come into her
room when her mother was “cooking, or doing laundry, or, um, even using the
bathroom.” He told her to shut up, then he touched his penis and then put
his fingers in her mouth. When asked how he touched his penis, G.S. said,
“He would put his hands in his pants and go like that”; she gestured to show
a back-and-forth motion. Asked what his fingers felt or tasted like when he
put them in her mouth, she said: “I wouldn’t be able to taste it because . . . it
was all the way down. It wasn’t down my throat, but he wouldn’t put it on
my tongue. He would put it, like, sort of down my throat basically. Um, and
they were slimy.” G.S. would cry, try to scream, and try to hit him and push
him away to get him to take his fingers out, but he would tell her to shut up
and pull her hips so she was not able to move.
G.S. would always try to hit or punch him because she knew it was
wrong. She tried to scream but he would put his index finger to his mouth or
cover her mouth so she would not say anything. It would last for “like, five
minutes.” When her mother came close to the door of her room, he would
stop, wipe his fingers on his pants, and leave.
The touching always happened on the weekends, never on the
weekdays. She did not know how many times it happened. When asked if
she remembered how long he lived there before the first incident happened,
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she responded: “Probably, um, three to five months. I—I really don’t know.”1
After the first time, it was “exactly two weeks” before he did it again. Then
“he did start to do it every weekend after those two weeks.” He would do it
for five minutes on Saturday and five minutes on Sunday, every weekend,
but never twice a day, and he did the same thing every time. After probably
three weeks, when she got her first bra, he would try to squeeze her “breasts
that were nonexistent at that time.” The last time it happened was the “last
weekend he was living there.” She did not remember what month that was,
but remembered it was at “the beginning of this year.” 2
When asked what caused defendant not to live with them anymore,
G.S. gave a lengthy, narrative response covering many subjects and
incidents, as follows:
G.S. said she knew her mother did online dating and that was how she
met defendant. B.S. would tell G.S. and her sisters, and G.S. “would always
hear,” that defendant broke four of his ex-wife’s ribs.3 G.S. asked her mother
1 Later in the interview, Rister asked, “[Y]ou said it started a few
months after he moved in?” G.S. said that it started “after my two older
sisters moved out.” She said her sisters moved out because G.S. told them
that she felt uncomfortable with defendant.
2Later in the interview, G.S. said he moved out in October, around
October 4, but corrected herself to say he moved out in the beginning of 2018.
3 On cross-examination at trial, defense counsel asked G.S. if she
remembered “telling the police that [B.S.] told you something that Mr. Silva
did to his previous wife?” G.S. responded, “Yes.” Defense counsel then asked
her when that happened, and G.S. said she “overheard” that “[a]fter they had
broken up.” During redirect questioning, the prosecution asked her, “[Y]ou
had heard about an incident involving the defendant and his ex-wife,
correct?,” to which G.S. responded, “Yes.” The prosecutor then asked: “This
incident that I’m talking about that we have not yet talked about it in detail
you only learn brain damage that [sic] after the molest ended?” G.S.
responded, “Yes.”
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why she would want to be “ ‘with this man?’ ” and her mother would “always”
tell her it was not her business. She also saw bruises on her mother, and
when she would ask her mother who hit her, her mother would say she hit
herself by accident. But G.S. knew defendant was hitting her because every
night she would hear “like, a big smash on the wall” and would hear her
mother crying.
G.S. said that the “time before” the last time, defendant and her mother
were fighting and G.S. said, “ ‘I’m gonna call the cops.’ ” Her mother said
“no,” and then they talked at the table. Defendant took away her dogs, which
were a big part of her life. G.S. said: “My dogs were, um, a big part of my life
because, this sounds really dumb, but I would talk to my dogs and I would
tell ‘em everything. And, um, he took those away and I wasn’t able to see my
sisters, because at that time—because, um, they didn’t like him. Because
they knew that he was hitting her. And, um, so we weren’t able to see them
at that time. And, um, I wasn’t able to see half of my family because of him.
And he took away two of my best dogs that I’ve ever had.”4 That day, G.S.
told them, “ ‘You took away everything from me. You—you took away half of
my childhood.’ ” When her mother asked her how, defendant gave her a look 5
and G.S. said, “ ‘Nothing mom. He didn’t take away half of my childhood
mom.’ ”
G.S. then explained that “the last time” when defendant was hitting
her mother, her mother had been sleeping in her little sister’s room and
defendant had been sleeping in her mother’s bed. Defendant came out and
started banging on the door. Her mother came out and then G.S. heard
4 G.S. later said the dogs went to her mother’s friend’s house and she is
not able to see them now.
5 G.S. understood the look he gave her to mean “Don’t tell anyone.”
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defendant hitting her mother. She covered her little sister’s ears. Her
mother told her to call the cops, but she could not because defendant had
taken her cell phone away.6 Her body froze, she couldn’t move her legs, and
she couldn’t get up at all. Then G.S. heard defendant “punch[] [B.S.] so hard
on the ground.” G.S. said she started to cry and B.S.’s “head started bleeding
from the ground and he kicked her car.” After that, her mother said, “[H]e is
never gonna live here no more.” G.S. did not believe her mother because they
had fought so many times before and she still did not leave him. G.S. said: “I
felt like it was never gonna be over. So, um, the last time that he did it . . . . I
would just stay there because I was over . . . trying to fight.” She stopped
trying to hit defendant because she was “over it.” She said: “And I just let
him to do it. And, basically I was his sex doll. And, um, I would just stand
there and let him do it until my mom came, because I was tired of trying to
move.” G.S. said she hated defendant, and she told him, “ ‘I hate you.’ ” She
apologized for “talking a lot,” but Rister told her it was okay.
G.S. then explained that talking to the therapists at Kaiser does not
help her, and that she would just tell her mother she was fine, but after that
would feel “an overwhelming sadness,” and though she tried to act happy, she
was “really just like, not okay inside.”
G.S. did not tell anyone while the touching was happening. She was
really depressed about defendant, not telling anyone, and always keeping
things to herself. She tried to talk to her friends, but she could not talk to
them about what was happening and drifted apart from her best friend
because she could not tell her. She started cutting herself but not “fully” and
6Later in the interview, G.S. said defendant took her phone because
“he didn’t want us to call the cops.”
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she “didn’t end up bleeding.” She “just wanted to die at that time” and “didn’t
wanna deal with it.”
She finally talked to her mother about what had happened on the 11th
of December. She told her mother because she was tired of not telling
anyone. G.S. also told Rister she waited a year to tell her mother because she
was scared defendant was going to do something to her family. Further, she
said that “[w]hat he did to me sort of caused me to be afraid.” She was
“thinking that he was gonna do something. And I told my mom at this time
because I knew that he was in jail for five to six years, and I knew that he
wasn’t gonna be able to do anything.” G.S. told Rister defendant was in jail
because “he hit my mom.”
When she told her mother, G.S. told her she needed to tell her
something, then started crying. She said: “And I didn’t wanna tell her at all.
And I told her everything that I just told you. And, um, she started to cry.
And she told me, ‘I’m so sorry and I hope you forgive me because I let this
happen, and I didn’t listen to you when you said to leave him.’ ‘Cause I would
always tell her why—you need to leave him mom He’s not right in the head.
And the last time they fought, um, and he hit her a lot. He screamed at my
mom and I heard this too, ‘I should have just raped your daughters.’ And um,
that really, like, hurt me a lot too, because, um, he—he didn’t rape me, but he
touched me sexually, and, um, and, um, I just feel like if he did rape me then
I probably wouldn’t be alive right now because I was so hurt at that time.
And being raped would hurt me even more.”7
Rister asked G.S. to tell her more about “wanting to die.” G.S.
explained that she “didn’t wanna feel the feelings that I feel and felt.” She
At trial, G.S. denied ever hearing defendant saying anything to her
7
mother about rape.
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couldn’t tell anyone because she thought defendant would “kill me and my
family if I tell anyone. . . . if I tell anyone he’s gonna kill me. So I’d rather
just kill myself.” When asked why she thought he would kill her, G.S. said,
“Because he was really sick in the head. He would always tell my mom, ‘I’m
gonna kill you. I’m gonna kill you.’ And he said—he told my mom that he
was gonna kill us.”
Toward the end of the interview, Rister asked G.S. how long she had
been seeing a counselor. G.S. responded that there was “this boy” and “they”
kept telling G.S. that she liked him and he liked her “and stuff.” And G.S.
said, “[N]o, he looks like a fish out of water. And then he said, um, your
vagina looks like a pepperoni pizza and stuff like that.” After that, she began
talking with a counselor at school, and then she started seeing a therapist.
Rister asked G.S. about her statement earlier in the interview that
defendant took “everything away” from her, and asked what she meant by
“everything.” G.S. said, “my happiness, . . . my dog and my sisters.”
When Rister asked G.S. further clarifying questions about the timing of
the abuse, G.S. told her that defendant went to jail on October 4, got out of
jail and moved back into their house, then left their house at the beginning
of 2018, and was now back in jail. G.S. mentioned that she thought her
mother had bailed defendant out of jail. She also told Rister that defendant’s
brother “just went to jail for his whole entire life” because he had “raped the
10 year old.”
Rister then asked G.S. what grade she was in when defendant moved
out for the last time. She responded, “It was summer. I was going into sixth
grade, but I wasn’t in sixth grade yet. It was summer.” Rister asked, “So the
last time . . . he touched you was at the beginning of the year?” and G.S.
responded, “Mm-hm.” She told Rister “what caused him to stop touching me,
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was him not living there no more.” Rister then asked, “[B]etween . . . the
beginning of the year and the summer time, did he not live there part of the
time?” and G.S. responded, “No. He lived there all the time.” She then
affirmed that the last time he touched her was right before he moved out for
the very last time. Rister asked G.S. whether her mother would know “the
dates and months” of “when he lived there, when he left, when he got
arrested, when he moved out, when he moved back in,” to which G.S.
responded, “I don’t know.”
B. Procedural Background
On October 30, 2018, the Solano County District Attorney filed an
information charging defendant with one count of felony criminal threats
(Pen. Code,8 § 422; count 1) and one count of misdemeanor annoying phone
calls (§ 653m, subd. (a); count 2). A jury trial commenced on December 3,
2018, and defendant was found guilty on both counts.
Before defendant could be sentenced, on January 9, 2019, a felony
complaint was filed against defendant charging defendant with multiple
counts of forcible lewd acts on a child, pursuant to section 288,
subdivision (b)(1) and one count of continuous sexual abuse of a child
pursuant to section 288.5, subdivision (a). Defendant was held to answer as
to all counts and an information was filed on June 19, 2019. A jury trial
began on July 6, 2021. On the first day of trial, an amended information was
filed, alleging 11 counts of forcible lewd act on a child at the following times:
October 14–31, 2017 (count 1); November 1–15, 2017 (count 2); November 16–
30, 2017 (count 3); December 1–15, 2017 (count 4); December 16–31, 2017
(count 5); January 1–15, 2018 (count 6); January 16–31, 2018 (count 7);
8 All statutory references are to the Penal Code unless otherwise
indicated.
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February 1–15, 2018 (count 8); February 16–28, 2018 (count 9); March 1–15,
2018 (count 10); and March 16–31, 2018 (count 11). On July 7, 2021, the
jury found defendant guilty of all 11 counts.
The trial court sentenced defendant to eight years, representing the
midterm, as to count 1 in the sex case, plus 10 full-term consecutive eight-
year terms for counts 2 through 11, for a total sentence of 88 years in state
prison. For the criminal threats case, the court imposed the midterm of two
years for the violation of section 422, and six months for the violation of
section 653m, to run concurrently with the sentence imposed in the sex case.
Defendant timely appealed from both cases.
II. DISCUSSION
Defendant raises several challenges to the judgment. First, he
contends the evidence was insufficient to support all but two of the lewd acts
convictions because the evidence does not permit a rational inference that
defendant touched G.S. on the dates alleged. Second, he argues the trial
court abused its discretion in admitting the MDI recording and allowing it to
be played to the jury. Finally, defendant contends the trial court abused its
discretion in allowing the jury to hear a substantial amount of evidence that
was more prejudicial than probative, inadmissible hearsay, or constituted
improper appeals to the jury’s sympathy, and that the cumulative effect of all
such evidence amounted to a violation of his due process right to a fair trial.
A. Substantial Evidence
Defendant was charged with 11 counts of violating section 288,
subdivision (b)(1), with the first act allegedly occurring “[o]n or about and
between October 14, 2017 and October 31, 2017” (count 1) and the remaining
10 acts occurring twice a month thereafter, through the end of March 2018;
once between the first and 15th day of each month, and once during the 16th
15
day and the last day of the month (counts 2–11). Defendant contends the
evidence is insufficient to prove that the molestations began in October 2017,
as alleged in count 1, or even November, December, or January, as alleged in
counts 2 through 7. He also contends the evidence is insufficient to show that
they continued through the end of March 2018, as alleged in counts 10 and
11.
“ ‘When considering a challenge to the sufficiency of the evidence to
support a conviction, 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 in support of the judgment the existence of
every fact the trier of fact reasonably could infer 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 no reevaluates a witness’s
credibility.’ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 890 (Covarrubias).)
Defendant first contends the evidence is insufficient to support his
convictions for counts 1 through 7 because it does not show that the alleged
molestations began as early as October 2017 or any time before February
2018. Defendant relies on (1) G.S.’s trial testimony that defendant began
touching her “after” her sister moved out; (2) G.S.’s MDI statements that the
molestations began “[p]robably” three to five months after he moved in but
she really did not know; and (3) B.S.’s trial testimony that defendant moved
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in with them in August 2017.9 Defendant argues that G.S.’s statement that
defendant started molesting her at some unspecified time “after” her sister
moved out does not establish that he began when (or even right after) her
sister moved out. Further, assuming that defendant moved in in August
2017 as B.S. testified, G.S.’s MDI statement that the abuse “probably” began
“three or five months” after defendant moved in would place the beginning of
the molestation sometime between November and February, but the jury
cannot speculate about when it began.
Defendant further contends that the evidence the molestation began as
early as three months after defendant moved in is not substantial because
G.S. only said it was “[p]robably” between three to five months after he
moved in, but she did not know. Defendant emphasizes there was no other
evidence about when the molestations began except that it was some
unspecified length of time after the sister moved out on October 10. Finally,
defendant argues there was no solid evidence about how many months the
molestation lasted because G.S. said only that it was exactly two weeks
between the first and second time that defendant touched her, and after that
it was once every Saturday and Sunday until he moved out. G.S. did not
recall how many times it happened, but it was multiple times—more than a
few times. Defendant notes that at trial, when asked how long the touching
lasted, G.S. “cryptically” testified, “Um, until my sister moved out, until . . .
the first time he went to jail.”
Accordingly, defendant asserts, even viewing the evidence in the light
most favorable to the prosecution, the “only reasonable and solid evidence
9 Defendant notes that G.S. testified defendant moved in with them in
September 2017 but concedes it is appropriate to use mother’s date (i.e.,
August 2017) because we must view the evidence in the light most favorable
to the prosecution.
17
regarding the time period of the alleged molest[ations] is that they started at
some unspecified time after October 10, 2017, there were multiple incidents,
and they occurred every Saturday and Sunday, starting two weeks from the
first time. The most that can be reasonably inferred from this is that the
molest[ations] began in February, 2018 since that date is after October 10,
2017, and since there would have been multiple incidents in February and
March, assuming they occurred every Saturday and Sunday, and assuming
they lasted until March.”
We disagree. Count 1 charged that defendant committed the first lewd
act between October 14 and 31, 2017. Contrary to defendant’s argument that
there was no substantial evidence as to when the molestation began, G.S.
testified that her relationship with defendant changed after her older sister
moved out because “[t]hings in the house started getting more violent and he
started touching me.” On cross-examination, G.S. agreed that her older
sister moved out sometime after defendant moved in. Defense counsel
specifically asked G.S., “And you said that this all started when [your older
sister] moved out?” (Italics added.) G.S. responded, “Yes.” B.S. testified that
G.S.’s sister moved out on October 10, 2017. At the MDI, G.S. said defendant
touched her for the second time exactly two weeks after the first time, and
every weekend after those two weeks, on Saturday and Sunday, until the last
weekend he was living there. At trial, G.S. confirmed defendant touched her
“[o]nce every day” on the weekends, on Saturday and then again on Sunday.
B.S. also testified that G.S.’s demeanor changed after her older sister moved
out: that G.S. “shut down,” that she was “sad” and “crying,” and that she
stopped participating in gymnastics and swimming.
18
October 10, 2017 was a Tuesday, the first weekend day after that day
was Saturday, October 14; two weeks later was Saturday, October 28. 10 In
light of G.S.’s affirmation that the abuse started when her older sister moved
out and her testimony that defendant always touched her on weekends and
never on weekdays, the evidence supports a reasonable inference that her
older sister moved out on October 10, that defendant first molested G.S. on
October 14 (the first Saturday after her older sister moved out), and again
two weeks later on October 28. Accordingly, the evidence was sufficient to
prove that defendant molested G.S. at least once between October 14 and
October 31, 2017, as alleged in count 1.
Further, as discussed above, G.S.’s testimony at trial and statements in
the MDI show that defendant touched her for the second time exactly two
weeks after the first time, and every weekend after those two weeks, on
Saturdays and Sundays, until the last weekend he was living there. B.S.
testified that defendant lived with them from August 2017 to March 2018.
Taken together and construed in the light most favorable to the prosecution,
G.S.’s and B.S.’s testimony amply supports the jury’s findings of guilt on
counts 2 through 9, reflecting that defendant molested G.S. at least once
during the first half and at least once during the second half of every month
between November 2017 and February 2018. (See, e.g., People v. Jones
(1990) 51 Cal.3d 294, 316 [in child molestation cases, generic testimony
describing the kind of act or acts committed, number of acts “(e.g., ‘twice a
month’ or ‘every time we went camping’),” and general time period within
which they occurred is sufficient to sustain conviction].)
10 We take judicial notice of the 2017 and 2018 calendars. (Evid. Code,
§§ 452, subd. (h), 459, subd. (a).)
19
Defendant also challenges his convictions on counts 10 and 11, arguing
the evidence is insufficient to show the molestations continued through
March 2018. Count 10 alleged that defendant committed a lewd act between
March 1 and 15, 2018, while count 11 alleged defendant committed a lewd act
between March 16 and 31, 2018. G.S. testified at trial that defendant’s
touching stopped when he did not live with them anymore. She also
affirmed, in response to a question from defense counsel, that defendant lived
with them from September 2017 to March 2018. In her MDI, she affirmed
that defendant touched her for the last time in the “beginning” of 2018, but
she also said that the last time he touched her was the last weekend he was
living there, which she said was in the summer before she went into sixth
grade. B.S. testified defendant lived with them until March 2018. Defendant
contends that regardless of G.S.’s conflicting statements, and even crediting
B.S.’s testimony he moved out in March, the jury could only speculate about
when in March defendant moved out and, thus, when he last molested G.S.
As the Attorney General points out, however, at the MDI, G.S. stated
that defendant moved out in the summer before she entered sixth grade. At
trial, G.S. testified she was in sixth grade in December 2018. At the MDI,
she also stated that the last time defendant molested her was “[t]he last
weekend he was living there,” and she confirmed that “[h]e lived there all the
time” from the beginning of the year until the summer. It is well established
that “[t]he testimony of a single witness can be sufficient to uphold a
conviction—even when there is significant countervailing evidence, or the
testimony is subject to justifiable suspicion.” (People v. Valenti (2016)
243 Cal.App.4th 1140, 1158 (Valenti); People v. Shirley (1982) 31 Cal.3d 18,
70 [even vague and self-contradictory evidence can be substantial evidence
sufficient to support a guilty verdict].) Because we must presume the jury
20
resolved any conflicts in the evidence in support of the verdict, the jury could
have concluded that defendant moved out in the summer of 2018, that the
molestations continued until the weekend before he moved out, and thus
could have found that he molested G.S. twice in March 2018.
Defendant argues this case is like People v Mejia (2007)
155 Cal.App.4th 86 (Mejia) and Valenti, supra, 243 Cal.App.4th 1140, but
those cases, which involved convictions for continuous sexual abuse of a child,
are distinguishable. In Mejia, the defendant was charged with committing
sexual abuse of a child “ ‘on or between June 1, 2004 and September 17,
2004,’ ” but the evidence showed only that the abuse began at some point in
June and continued to some point in September. (Mejia, at pp. 93–95.)
Under section 288.5, subdivision (a), the prosecution had to prove there were
three or more incidents of abuse and that at least three months elapsed
between the first and third incidents. (§ 288.5, subd. (a); Mejia, at p. 94.)
Because “the only reasonable inference permitted by the evidence was that
defendant’s abuse began sometime in June and continued to some date in
September—but the jury could only speculate that the first incident occurred
early enough in June to satisfy the 90-day requirement expiring on
September 17, 2004,” the evidence was insufficient to support the conviction.
(Mejia at p. 95.) Similarly, in Valenti, the appellate court reversed the
defendant’s conviction under section 288.5, because the evidence of when the
abuse started was not specific enough to support an inference it began at
least 90 days before the final incident, and in fact, “the court’s careful
questioning of [the victim] elicited unequivocal testimony that the abuse did
not last for more than one month.” (Valenti, at pp. 1158–1160.) Thus, in
both Mejia and Valenti there was no evidence that the minimum three-month
21
time period element of the continuous sexual abuse of a child offense was
satisfied.
Here, by contrast, there is evidence from which a jury could conclude
defendant lived with G.S. and her mother until the summer of 2018, that he
last touched her on the weekend before he moved out, and that he therefore
touched her at least once in the beginning of March and once in the second
half of March. Defendant essentially asks us to credit trial testimony that
defendant moved out in March 2018 over G.S.’s MDI statements, but we
cannot resolve questions of credibility or conflicts in the evidence on appeal.11
(See, e.g., People v. Farnam (2002) 28 Cal.4th 107, 143 [judgment may not be
reversed simply because circumstances might be reconciled with contrary
finding]; People v. Ennis (2010) 190 Cal.App.4th 721, 725 [“ ‘inherently
improbable’ ” standard for rejecting testimony on appeal “means that the
challenged evidence is ‘unbelievable per se’ (italics omitted), such that ‘the
things testified to would not seem possible’ ”; such a determination cannot be
made by comparing challenged testimony to other evidence in the case].)
Defendant also relies on a principle articulated in People v. Brown
(1989) 216 Cal.App.3d 596, 600, and People v. Allen (1985) 165 Cal.App.3d
11 Indeed, a different portion of the Mejia opinion, not discussed by
defendant, supports the judgment here. In Mejia, the defendant was also
convicted of two acts of molestation that occurred in the month of October
2004. The victim, who provided the only evidence in support of the charges,
contradicted herself about whether the defendant had abused her once or
twice in October, and when asked directly to state the number of times
defendant had molested her in October she said: “ ‘I don’t really remember
much of October.’ ” (Mejia, supra, 155 Cal.App.4th at p. 98.) The defendant
argued the victim’s testimony was “so self-contradictory that it cannot be
deemed sufficient evidence under the federal Constitution’s due process
standard.” (Ibid.) The appellate court disagreed, however, concluding
sufficient evidence supported both convictions, because “the contradictions in
her testimony merely raised a credibility issue for the jury to resolve.” (Ibid.)
22
616, 626, that when proven facts give equal support to two competing
inferences, neither inference is established. But those cases are
distinguishable because, like Mejia and Valenti, they concern lack of evidence
of an element of the crime resulting in speculation, not, as here, a conflict in
reasonable inferences drawn from the evidence. In Brown, the defendant’s
conviction for evading police pursuit under Vehicle Code section 2800.1
required proof the police officer had activated the red lights on her vehicle.
The officer’s testimony that she “ ‘activated [her] overhead signals’ ” but did
not recall if they were in the position to activate her red lights was deemed
insufficient evidence to prove she had activated the red lights. (Brown, at
pp. 599–600.) Because there was no evidence about the color of her lights,
there was a lack of evidence about an essential element of the crime. (Id. at
p. 600.) Similarly, in Allen, evidence that either the defendant or his
accomplice had fired a gun was insufficient to prove that the defendant had
personally used a weapon because who used the gun was purely a matter of
conjecture. (Allen, at p. 626.) Here, the problem is not that there was no
evidence about when defendant moved out such that the jury would have to
speculate, but the evidence was in conflict as to whether he moved out in the
“beginning” of 2018, in March 2018, or in the summer of 2018. Because G.S.’s
statements during the MDI allowed the jury to draw a reasonable inference
that defendant moved out in summer and continued his abuse throughout
March 2018, we conclude his convictions on counts 10 and 11 are supported
by substantial evidence.
B. Admission of the MDI Recording
Defendant next argues that the trial court erred in admitting the MDI
recording as evidence at trial because G.S.’s statements in the interview were
23
rambling, nonresponsive, inconsistent on key points, and accordingly, not
reliable.
Under Evidence Code section 1360, “[i]n a criminal prosecution where
the victim is a minor, a statement made by the victim when under the age of
12 describing any act of child abuse . . . is not made inadmissible by the
hearsay rule” if the court finds in a hearing conducted outside the presence of
the jury that the “time, content, and circumstances of the statement provide
sufficient indicia of reliability,” the statement is not otherwise inadmissible
by statute or court rule, and the child testifies at the proceedings or is
unavailable but other evidence corroborates the abuse. (Id., subd. (a).) We
review the admission of evidence under section 1360 for abuse of discretion.
(People v. Mitchell (2020) 46 Cal.App.5th 919, 927; People v. Brodit (1998)
61 Cal.App.4th 1312, 1329–1330 (Brodit).)
As an initial matter, by failing to assert a specific objection that the
MDI recording was inadmissible because G.S.’s statements were unreliable,
defendant has forfeited that contention on appeal. (Evid. Code, § 353,
subd. (a) [no reversal on appeal absent timely and specific objection to
erroneous admission of evidence in trial court]; People v. Landry (2016)
2 Cal.5th 52, 86 [failure to object in trial court to erroneous admission of
evidence based on grounds raised on appeal forfeits claim of error].) Though
defense counsel objected multiple times to the MDI recording, he objected on
the grounds that statements in the MDI were more prejudicial than probative
under Evidence Code section 352 and that the interview unfairly bolstered
G.S.’s credibility.12 At one point, defense counsel asserted an objection that
12 Indeed, when the judge asked why he would allow the prosecution to
play the video if the victim were also testifying, the prosecution told the court
it was “standard fare” for sexual assault cases where the victim is under 12
24
there was “[n]o legal basis” for admitting the interview, but made no
argument that the recording was inadmissible because G.S.’s statements
were unreliable. Accordingly, the argument is forfeited.
In any event, we reject on the merits defendant’s claim that the trial
court abused its discretion. In assessing the reliability of hearsay statements
by child witnesses in sexual abuse cases, courts consider a nonexhaustive list
of factors, including (1) spontaneity and consistent repetition, (2) mental
state of the declarant, (3) use of terminology unexpected of a child of a similar
age, and (4) lack of motive to fabricate. (Brodit, supra, 61 Cal.App.4th at
p. 1330; see In re Cindy L. (1997) 17 Cal.4th 15, 29–30 [adopting same
nonexclusive factors in connection with analogous child dependency hearsay
exception].) Courts may also consider the ability of the child to understand
the duty to tell the truth and distinguish between truth and falsity.
(Cindy L., at p. 30.)
The trial court did not abuse its discretion by finding that G.S.’s
statements in the MDI recording had sufficient indicia of reliability and
admitting the interview into evidence. As to spontaneity and repetition, G.S.
was interviewed shortly after first reporting the abuse in a noncoercive
environment by an investigator specializing in interviewing child witnesses,
who used nonleading, open-ended questions. During the entire interview,
“as long as the Court doesn’t find anything unreliable or untrustworthy about
her statement,” and reiterated that the court “needs to find that the
statement has some sort of indicia of reliability.” Defense counsel did not
argue that G.S.’s statements were unreliable, but only that the context of the
MDI takes place in “a special room where . . . it’s somehow more reliable than
what they’re going to hear and see at trial because it’s . . . special” and that
“there’s some aura of special credibility that an MDIC interview gets out that
they won’t be hearing themselves . . . .”
25
Rister only discussed matters of a sexual nature after G.S. had already raised
them, and asked follow-up questions to draw out additional details from G.S.
G.S.’s descriptions of defendant’s molestations repeated throughout the
interview were internally consistent and consistent with what she reported to
her mother. G.S. explained that defendant would grab her by the hips, pull
her to him so she could not move, touch her breasts, and touch his penis
using an up-and-down motion and then put his fingers in her mouth. She
said the molestations were basically the same every time with small
variations, happened every Saturday and Sunday in her room, and were
interrupted when her mother approached the room. While some statements
in the interview were inconsistent or confusing, viewed as a whole they were
sufficiently clear and consistent that the court could reasonably find them
reliable. Nor was there anything in the interview tape to suggest that G.S.’s
mental state was compromised or rendered her statements unreliable.
Defendant argues that G.S. “clearly had a motive to fabricate” because
she hated defendant for his abuse of her mother and wanted him out of her
life. But at the time of the interview, defendant was already out of G.S.’s life
because he had been convicted, was in custody, and G.S. understood he was
going to jail for “five to six years,” which, she explained, was the reason she
felt she could finally report the abuse. Moreover, at the beginning of the
MDI, G.S. demonstrated that she understood the difference between the
truth and a lie, and was instructed by Rister that the “most important thing
in this room is that we only tell the truth.” (See, e.g. People v. Eccleston
(2001) 89 Cal.App.4th 436, 446–447 [videotape of interview with child abuse
victim had indicia of reliability where, among other things, victim understood
difference between truth and falsehood].)
26
Defendant also complains that the trial court failed to hold a hearing to
determine G.S.’s competency to testify, her cognitive abilities, or her tendency
to tell the truth. But again, defendant did not object on these grounds in the
trial court. In any event, the trial court expressly stated on the record
several times that it would “bone up” on Evidence Code section 1360,
reflecting that the trial court reviewed and understood the requirement that
it find the “time, content, and circumstances of the statement provide
sufficient indicia of reliability.” (Evid. Code, § 1360, subd. (a)(2).) The judge
also promised to view the entire MDI recording, which he did. After watching
the whole video, he explained on the record that he found G.S. a “compelling,
sympathetic witness,” and discussed at length and in great detail with
counsel for the parties the arguments for admitting or excluding many
particular statements to which defense counsel objected. Although the court
expressed concerns about some of the statements in the video,13 his
comments after watching the video and hearing G.S. testify indicate that he
gained a nuanced understanding of the reliability of her statements and the
relevance and probative value of the video. Accordingly, we presume the trial
court was aware of the relevant indicia of reliability under Evidence Code
13 Defendant points specifically to comments from the trial court
indicating that the court acknowledged about “a half dozen different things in
this child’s life that are detailed in this recording that all have to do with the
manipulation of the situation in regards to physical things the child wants,”
some “really weird thing” like someone “describing her vagina as looking like
a pizza,” and “substantial portions” of her testimony reflecting inconsistency
as to whether fear was a motivation for her delayed reporting. First, the
court was making the first two comments in the context of discussing
whether to allow Dr. Anika Butterfly to testify for the defense, a decision not
challenged on appeal. Second, the judge also indicated that the defense could
use the inconsistencies in the MDI to cross-examine G.S., and that he found
her a compelling witness after watching the interview in its entirety.
27
section 1360 and concluded the MDI recording was sufficiently reliable.
(Evidence Code, § 664.) Based on the totality of the circumstances, for all of
the reasons discussed above, that determination was not an abuse of
discretion.
C. Evidentiary Challenges
Defendant raises many specific challenges to statements by G.S. and
B.S. in their testimony at trial and by G.S. in the MDI recording, contending
they were erroneously admitted because they were more prejudicial than
probative, inadmissible hearsay, or constituted improper appeals to the jury’s
sympathy. Defendant argues the evidence is basically divided into four
categories: (1) evidence that defendant had been convicted by a jury of hitting
B.S. in a prior case and had been sentenced to a lengthy jail term,
(2) evidence of other bad acts by defendant, (3) hearsay statements, and
(4) evidence and argument that improperly appealed to the jury’s passion by
eliciting sympathy for G.S. or painting defendant in a bad light. Defendant
contends all of this improperly admitted evidence should have been excluded
under Evidence Code sections 352 and 1101.
1. Standard of Review
On appeal, we review the trial court’s decision to admit prior uncharged
acts under Evidence Code section 1101 or evidence subject to an Evidence
Code section 352 analysis for abuse of discretion. (People v. Prince (2007)
40 Cal.4th 1179, 1271, 1237.) “We review a trial court’s decision to admit or
exclude evidence ‘for abuse of discretion, and [the ruling] will not be
disturbed unless there is a showing that the trial court acted in an arbitrary,
capricious, or absurd manner resulting in a miscarriage of justice.’ [Citation.]
When evidence is erroneously admitted, we do not reverse a conviction unless
it is reasonably probable that a result more favorable to the defendant would
28
have occurred absent the error.” (People v. Powell (2018) 5 Cal.5th 921, 951,
citing People v. Watson (1956) 46 Cal.2d 818, 836.)
2. Domestic Violence, Conviction, and Jail Term Evidence
Defendant first argues that the trial court erred in allowing the jury to
hear that defendant was convicted by a jury of hitting B.S. and had been
sentenced to a lengthy jail term.
Before trial, the prosecution brought a motion in limine to introduce
evidence of defendant’s custodial status at the time G.S. disclosed the abuse,
while defense counsel argued such evidence should be excluded. The
prosecutor argued the evidence was relevant to explain why G.S. disclosed
the molestations when she did—because she felt safe knowing defendant was
in jail. The trial court observed it “corroborates her explanation as to her
reason why she delayed” and should be admitted because to exclude it would
be unfair to the prosecution and might allow the jury to “speculate whether
or not she’s fantasizing all this up.” Nonetheless, the court remarked the
evidence should be sanitized, suggested the parties might stipulate to the
relevant dates, and said it was “inclined to give some sort of limiting
instruction, if need be.”
When defense counsel later brought a motion to exclude “any mention”
of defendant’s trial in the criminal threats case and the fact of his conviction,
the trial court again noted defendant’s custody status was relevant to the
delayed disclosure. Although the court concluded defendant’s conviction was
admissible, the court suggested the language might be sanitized to avoid
references to the idea of jury deliberations or a verdict because that was “just
not necessary or relevant.” The prosecutor then argued that he did not “even
care about the actual conviction part because that’s just saying he was
convicted of a crime,” but the important fact was “when the jury came back,”
29
i.e., shortly before G.S. reported the molestations. The court suggested the
parties “work out a stipulation” and told them if they could not, he would
revisit the issue.
With respect to the MDI recording, the court held a discussion with the
parties regarding the admissibility of G.S.’s statements that defendant was
going to jail for five or six years and that he was in jail for hitting her mother.
The court reiterated that the statements were relevant to G.S.’s state of
mind. Noting she was “technically incorrect” about why he was in custody,
the court suggested that was a “little issue[ ] that that I guess we would have
to address somehow.”
The parties subsequently stipulated that defendant was arrested on
October 4, 2018, and convicted on December 5, 2018. The court said it would
not use the word “verdict” but rather “ ‘convicted’ ” or possibly “ ‘found
guilty.’ ” The court instructed the jury before deliberations that the parties
had stipulated to the following: “That on October 4th of 2018, that Mr. Silva
was arrested on an arrest warrant and taken to jail. And then on December
5th of 2018, he was convicted of an offense. So those two dates are relevant
when you think about the witness and what they said as to what happened
when.”
As detailed in the factual background above, B.S. testified at trial that
an incident between her and defendant in June 2018 resulted in a criminal
case, that she testified at his trial, and that a jury convicted defendant in
December 2018. B.S then explained that while the jury was deliberating,
G.S. was “panicked,” “scared,” and “suicidal,” but B.S. did not know why;
after defendant was convicted on December 5, 2018, G.S. was relieved. B.S.
testified she understood defendant would do “substantial time” in jail and
30
conveyed that to G.S. G.S. told her mother about the abuse less than a week
after defendant was convicted.
G.S. reported to Rister in the MDI that she told her mother about the
abuse when she did “because I knew that he was in jail for five to six years,
and I knew that he wasn’t gonna be able to do anything.” When Rister asked
G.S. why defendant was in jail, she said, “Because . . . he hit my mom.” G.S.
also said that at one point, B.S. bailed defendant out of jail but he “then he
was still hitting” her.
At trial, the prosecutor asked G.S. why she finally told her mother
about the abuse “after all those months.” G.S. responded, “Because I was
afraid that I was really going to kill myself if I didn’t tell anyone.” In
response to leading questions, G.S. affirmed that when she told her mother,
she understood defendant was in jail, that made her feel safer, and it was
part of her reason for disclosing the abuse at that time.
Defendant argues the trial court abused its discretion in admitting this
evidence because the fact that defendant had been convicted and was in
custody had “minimal probative value.” Defendant emphasizes that G.S.
offered a different reason at trial for making her disclosures in December—
namely, that she was afraid she was going to kill herself if she did not tell
someone. Her testimony that she also felt safer with defendant in jail was
offered only in response to leading questions by the prosecutor and was
cumulative. Moreover, defendant contends the additional evidence that he
was subject to a five- to six-year jail term, was in jail for hitting B.S., that
B.S. bailed him out of jail and he continued to hit her, that B.S. reported him
to the police resulting in a criminal case, that B.S. testified, that a jury had
convicted him, and that B.S. understood he was subject to “substantial time
31
in jail” served only to convey defendant was a bad person who had been
convicted of a serious crime against B.S.
We disagree. As our Supreme Court has explained, “when the victim of
an alleged sexual offense did not make a prompt complaint but instead
disclosed the alleged incident only some time later, evidence of the fact and
circumstances surrounding the delayed complaint . . . may be relevant to the
jury’s evaluation of the likelihood that the offense did or did not occur.”
(People v. Brown (1994) 8 Cal.4th 746, 761.) Here, the evidence showed that
defendant’s abuse of G.S. stopped when he moved out, months before she
disclosed his abuse for the first time in December 2018. B.S.’s testimony that
G.S. was “panicked,” “scared,” and “suicidal” during the jury deliberations,
was relieved after the verdict, and finally disclosed the abuse after B.S. told
her defendant would be in jail for a substantial amount of time, helps explain
why G.S. made the disclosure when she did and lends support to the
prosecution theory that she failed to disclose earlier because she was scared
of defendant. That G.S. also disclosed the abuse to her mother because she
was afraid she would kill herself does not render cumulative the testimony
that she felt safer disclosing because defendant was in jail. It is not difficult
to conceive that both factors would motivate G.S. to disclose the abuse when
she did.
Although defendant is correct that G.S.’s MDI statement that
defendant was in jail because he “hit my mom” was not true, the statement
was relevant and admissible not for its truth, but as evidence of G.S.’s state
of mind. Moreover, the trial court acknowledged G.S. was “technically
incorrect about why he’s in jail” and suggested the inaccuracy might have to
32
be addressed, but we do not see any indication in the record that defense
counsel pursued such an instruction or advisement to that effect.14
In any event, the court instructed the jury that G.S.’s testimony about
defendant’s acts of violence against B.S. could not be used as propensity or
character evidence as follows: “Now, during this trial, I allowed certain
evidence to be admitted for a limited purpose. You can consider that
evidence only for that purpose and for no other. [¶] Now, specifically you
heard [G.S.] testify regarding allegations that Mr. Silva had committed acts
of domestic violence against [B.S] or others. Now that evidence was allowed
in order for you to understand [G.S.’s] state of mind and/or her fear. You
cannot consider it as character evidence against Mr. Silva or evidence that
Mr. Silva had a propensity to commit the crimes that he’s accused of
committing here.” We presume the jury followed this instruction.15
(Covarrubias, supra, 1 Cal.5th at p. 887.)
14 Indeed, defense counsel appears to have tried to use the inaccuracy to
his advantage during his closing argument. Noting that G.S. “testified to
witnessing some very intense domestic violence inflicted on her mother,”
counsel argued, “We heard from her mother who confirmed that was
happening. In fact, Mr. Silva was convicted in a separate case for what
happened in that case.” (Italics added.) Counsel then argued that G.S.’s
desire to protect her mother from defendant’s abusive behavior motivated her
to fabricate the molestations.
15 Defendant argues the instruction only applied to G.S.’s testimony but
not her MDI statements. While the language of the instruction does use the
word “ ‘testimony,’ ” defense counsel was invited to draft this admonition to
the jury and approved the language eventually adopted by the court. (See,
e.g., Covarubbias, supra, 1 Cal.5th at p. 901 [party may not complain on
appeal that instruction is too general or incomplete unless party requested
appropriate clarifying or amplifying language].) Moreover, counsel had
requested the instruction to cure the prejudice from G.S.’s statement at the
MDI that she heard defendant broke his ex-wife’s ribs and the court
recognized on the record the instruction would be about “limiting some of the
33
In sum, we agree with the trial court that the evidence from G.S.’s MDI
and G.S.’s and B.S.’s trial testimony about defendant’s conviction and custody
status was highly probative with regard to the circumstances and timing of
G.S.’s disclosure of the molestations. The trial court did not abuse its
discretion in admitting the evidence.
Defendant also challenges evidence that defendant committed acts of
domestic violence against B.S., and that he “vandalized her car.” At trial,
G.S. testified that she heard defendant “throwing my mom in the closet and
sometimes they would argue and he would hit her really bad,” but she did not
see the hitting. She also testified that her mother would deny the abuse but
G.S. did not believe her denials. In the MDI, G.S. said she knew defendant
was hitting B.S. because she would hear “a big smash on the wall” and hear
her mother crying. G.S. said one time when she was in her room with her
little sister, “he punched her [(B.S.)] so hard on the ground and I heard that.
And I started to cry and . . . her head started bleeding from the ground and
he kicked her car.” Defendant argues the admission of this evidence was
unnecessary and cumulative because other evidence, including defendant’s
evidence that came in through her statement about Mr. Silva’s alleged bad
conduct.” (Italics added.) It thus appears that both counsel and the court
viewed the instruction as applying to the MDI recording, and it is unlikely
the jury would have distinguished between her in-court testimony and the
recorded MDI statement in this regard. (See, e.g., Boyde v. California (1990)
494 U.S. 370, 380–381 [“Jurors do not sit in solitary isolation booths parsing
instructions for subtle shades of meaning in the same way that lawyers
might.”].) While defendant appears to suggest that the court’s statement to
the jury that it could rewatch the MDI statement during the deliberations
further prejudiced him, defense counsel had already urged the jury (in his
closing argument) to watch the MDI statement again during deliberations to
observe G.S.’s demeanor when discussing the domestic violence against her
mother.
34
threats to kill her mother if G.S. disclosed the abuse, were sufficient to prove
force, fear, or duress for purposes of the section 288, subdivision (b) offenses.
We reject defendant’s argument that the trial court abused its
discretion in allowing the evidence. The trial court held extensive discussions
with the parties regarding the admissibility of domestic violence evidence.
The court expressed concern about the admissibility of such evidence and its
potential impact on the jury, particularly to the extent G.S. was speculating
about what she heard rather than saw with regard to defendant hitting B.S.
At the same time, the court acknowledged that evidence about what G.S.
observed, heard, and thought about what she perceived was all relevant to
her state of mind. The court also established that the prosecution would not
seek irrelevant and prejudicial testimony from B.S. describing the acts of
domestic violence. Though defendant argues G.S.’s testimony that she was
scared of defendant because she “knew what my mom had been through,”
knew things like this could happen, and knew “who he was” was sufficient to
prove her fear of defendant, that testimony was given meaning because G.S.
explained that she heard defendant hitting her mother and its effect on her.
In light of the trial court’s careful weighing of the probative value of the
evidence compared with its potential for prejudice and the constraints it
imposed regarding the extent of the domestic violence that would be
admitted, the trial court did not abuse its discretion. (See, e.g., People v. Bell
(2019) 7 Cal.5th 70, 105 [trial court’s exercise of discretion under Evid. Code,
§ 352 will not be disturbed “ ‘unless it was arbitrary, capricious, or patently
absurd and the ruling resulted in a miscarriage of justice’ ”].)
Finally, we conclude any error in admitting evidence that G.S. heard
defendant’s acts of violence against her mother or that her mother denied the
abuse but G.S. did not believe her was harmless. As noted above, the court
35
instructed the jury not to use the evidence of defendant’s acts of violence
against B.S. as evidence of his propensity to commit the crimes alleged or
evidence of his bad character. Further, defendant’s theory of the case relied
heavily on this evidence. When cross-examining G.S., defense counsel’s
questioning emphasized that G.S. was scared of defendant because of what
he had done to her mother, that she was scared and angry because she
thought defendant was hurting her mother, that she wanted to protect her
mother from defendant, and that she was scared he was going to hurt her like
she thought he was hurting her mother. In his closing argument to the jury,
counsel emphasized G.S. had “testified to witnessing some very intense
domestic violence inflicted on her mother.” Counsel reminded the jury G.S.
felt scared when defendant was hurting her mother, suggested her mother’s
denials must have made her feel “frustrated and sad and incredibly
despondent,” and theorized she “hated Mr. Silva for what he did to her
mother,” and wanted to be sure he would stay out of their lives forever. In
light of the instructions to the jury and the centrality of the domestic violence
evidence to the defense theory of the case, we conclude any error in admission
of this evidence was harmless.
3. Other Bad Acts Evidence
Defendant raises several challenges to evidence regarding uncharged
criminal conduct or other “bad acts” which he contends had little or no
probative value, but were highly inflammatory and should have been
excluded under Evidence Code section 352. Although evidence of uncharged
crimes or conduct may be relevant for a noncharacter purpose to prove some
fact other than the defendant’s criminal disposition, such evidence may be
excluded if its probative value is substantially outweighed by the probability
that its admission would create substantial danger of undue prejudice, of
36
confusing the issues, or of misleading the jury. (People v. Mungia (2008)
44 Cal.4th 1101, 1130; People v. Williams (2018) 23 Cal.App.5th 396, 417;
Evid. Code, §§ 1101, 352.)
Defendant argues the trial court should have excluded G.S.’s MDI
statement that she “would always hear” that defendant had broken four of
his ex-wife’s ribs. During pretrial discussions, the court indicated it was
important to know when G.S. heard the statement to determine whether it
was relevant, particularly as to the force or fear element of section 288,
subdivision (b). The prosecutor agreed, though he also argued that even if
she heard the statement after the incidents, it would be relevant to her
delayed disclosure. After an extended discussion, the trial court indicated it
would defer a decision on the admission of the statement until it could be
determined when G.S. heard it.
When the parties again revisited the admissibility of the ribs
statement, the trial court said: “[L]et me indicate having watched this video,
it does seem to me it is all so intertwined with what is going on with this
child, with the issue about when you are doing things and why, that I’m
struggling more to exclude it.” (Italics added.) The court also commented,
“When you think about what she’s saying, one could raise any number of
issues that may actually be beneficial to the defense. But I’m struggling with
excluding it. I just think, when you look at the gumbo of what is going on
with this young girl and you stir it all in a pot, I’m struggling with the idea of
how I remove those spices.” Defense counsel again asserted the statement
was “incredibly inflammatory” and noted the “key question” is “when” she
made the statement. The trial court agreed it “would help” to know when the
statement was heard, and the prosecutor agreed there was “[n]o question
that it would be a relevant factor.” Defense counsel reiterated his argument
37
that the evidence was too prejudicial and irrelevant to whether G.S.
submitted to defendant’s acts because she feared him.
The trial court then stated it thought there were “multiple
interpretations of this evidence. Some of them that are not prejudicial to the
defendant.” The court asked the parties whether there was any basis to
believe the statement was true. After the parties confirmed there was not,
the court said: “I’m going to order it’s admissible but I am bar[r]ing any other
evidence of the topic offered by the prosecution. I’m not going to allow you to
ask the mom why she said it. I’m not going to ask let [sic] you offer any
evidence if you now discover evidence that, in fact, is true, that would be late
discovery. And so, I think this is so inextricably intertwined I’m a little
concerned about the fact that it’s relevant, may vary depending on when she
learned this thing. But, maybe we have to address that with the jury, maybe
I have to revisit it with some special or limiting instruction. But for now I’m
going to allow it with that caveat. We’re not going to litigate the underlying
truth of the statement.” The court added it that it would not prevent defense
counsel from arguing to the jury that if it were true, they would have heard
proof it had happened.
At trial, G.S. testified she “overheard” her mother talking about
“something that [defendant] did to his previous wife,” but it was after
defendant and B.S. had broken up, and was not something in her mind at the
time of the molestations.
When the parties were discussing jury instructions with the court, the
court asked if the defense still wanted a limiting instruction with respect to
the ribs statement. Defense counsel affirmed he did, and the parties and
court then discussed defendant’s proposed language. The prosecutor flagged
the issue that “she said she only learned about this after the molest had
38
ended” and suggested the language might “go into her late reporting portion.”
The court then suggested the language ultimately adopted, to which both
parties agreed.
On this record, we conclude the trial court did not abuse its discretion
in allowing the evidence. As the record reflects, the court engaged in an
extended colloquy with the parties about the probative value of the evidence
and its relevance to G.S.’s state of mind of fear. The court considered the
prejudicial potential of the evidence, but concluded it was so “inextricably
intertwined” with G.S.’s state of mind and “with what is going on with this
child, with the issue about when are you doing things and why, that I’m
struggling more to exclude it.” These statements suggest the trial court
found the evidence relevant to G.S.’s fear of defendant as a reason for her
delayed reporting of the abuse. The trial court also observed that the
evidence could be helpful to the defense, that it would not allow the
prosecution to present any evidence that it was true, and that it would not
prevent the defense from arguing it was untrue.16 Moreover, as noted above,
the court instructed the jury that it could not use evidence about defendant’s
acts of violence against B.S. and others as character or propensity evidence
but only as to G.S.’s “state of mind and/or her fear.”
Even if the court erred in admitting the statement, it is not reasonably
probable defendant would have obtained a more favorable verdict had the
16In closing argument, defense counsel expressly asked the jury to
“[r]emember the statement . . . that [G.S.] said in the interview about what
she said Mr. Silva did to his ex-wife.” He reminded the jury the statement
was something B.S. told G.S. “after the fact,” that there was no evidence it
was true, and that G.S. “thr[e]w [it] in there just to make extra sure, just to
incriminate Mr. Silva a little bit more, to tell the police why he’s such a bad
guy. Why he should be away and out of their lives forever. So that’s what
she did. She talked to them and she made sure that that would happen.”
39
court excluded the evidence. (People v. Carter (2005) 36 Cal.4th 1114, 1152
[error in admitting evidence of uncharged misconduct does not require
reversal unless it is reasonably probable outcome would have been more
favorable had the evidence been excluded].) Given the much more relevant
and damaging evidence about defendant’s acts toward her mother, the fear
that generated in G.S., and the defense argument that she was motivated to
fabricate the molestations because she was scared of defendant, it is unlikely
the exclusion of the statement that G.S. heard he had broken four of his ex-
wife’s ribs would have altered the jury’s verdict.
Defendant also challenges the trial court’s admission of evidence that
defendant took away G.S.’s dogs and that, at one point, B.S. had asked G.S.
to call the police but defendant had taken away her phone. Defendant
contends the evidence defendant took away her dogs and her cell phone had
no probative value, was highly inflammatory, and improperly appealed to the
jury’s sympathies.
We disagree this evidence had no probative value. It tended to show
not only that defendant had control over G.S. and the things that were
important to her, but that she believed he exercised such control. The
evidence that G.S. feared defendant because he took away some of the things
that were most important to her was probative as to why she submitted to
the abuse. It was also relevant and probative as to her credibility because it
demonstrated to the jury her state of mind while the abuse was happening
and may have contributed to her delayed disclosure of the molestations. (See,
e.g., People v. Rodriguez (1999) 20 Cal.4th 1, 9 [“A matter collateral to an
issue in the action may nevertheless be relevant to the credibility of a witness
who presents evidence on an issue”].)
40
Regardless, any error in admitting the evidence was harmless. The
evidence that defendant took away G.S.’s dogs and phone was substantially
less inflammatory than the evidence regarding the charged molestation
offenses. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405 [fact that evidence
regarding uncharged conduct was no stronger and no more inflammatory
than charged crimes decreased potential for prejudice]; People v. Foster
(2010) 50 Cal.4th 1301, 1332 [same].) The fact that G.S.’s mother also
participated in taking away the dogs further mitigated the prejudice of that
evidence.
Defendant also contends the trial court erred in admitting the following
highly prejudicial, minimally probative evidence that improperly appealed to
the jury’s sympathies: that G.S.’s sisters did not like defendant because he
was hitting their mother and that they moved out because G.S. told them she
felt uncomfortable with him;17 that it really hurt when her sisters moved out
because they were the only people she could talk to and she was unable to see
half of her family because of defendant; that defendant “took away half of her
childhood”; that G.S.’s little sister did not want to sleep in her own room
alone; that G.S. and her little sister could hear defendant hitting their
mother from their room; that she would cover her little sister’s ears; that G.S.
told her mother she stayed in her room because she wanted to protect her
little sister; that she was afraid for her own and her little sister’s life; and
that G.S. said she was defendant’s “sex doll.”
Defendant presents all of this evidence together in an attempt to show
the trial court allowed excessive evidence aimed at painting defendant as a
17 Defendant contends the evidence the sisters moved out because they
did not like defendant was hearsay, but we disagree because the statement
was not offered for the truth of the matter asserted, but to show G.S.’s state
of mind.
41
bad man and playing on the jury’s sympathy rather than proving any issue
relevant to the charges. But considered properly in context, all of this
evidence was highly relevant to G.S.’s state of mind during the abuse and her
reasons for not disclosing it. The statement about defendant taking away
half of her childhood, for example, happened at the dining room table when
G.S. screamed in apparent frustration about the abuse, but stopped when
defendant gave her a mean look that she understood meant to be quiet. The
circumstances surrounding that interaction are highly relevant to the fear
she felt, defendant’s control over her, and her delayed disclosure. The
statement that she was defendant’s “sex doll” was made in explaining why
she eventually gave up physically resisting the molestations—because her
mother still would not leave defendant despite their fights and his hitting
her; G.S. “felt like it was never gonna be over” and “because . . . [G.S.] was
over trying to fight.” Further, all of the evidence about G.S.’s sadness at the
loss of her older sisters and fear for herself and her little sister was highly
relevant to her explanation for submission to the abuse, her delayed
disclosure, and her credibility as a witness. In any event, the trial court
expressly instructed the jury to not let sympathy influence its decision.
Defendant challenges statements in the MDI suggesting he had been in
jail multiple times and his brother “just went to jail for his whole entire life”
because he had raped a 10 year old. While we agree with defendant that
these statements are prejudicial and appear to have no relevance to the
issues at trial, defendant did not raise a specific challenge to those
statements in the trial court and has therefore forfeited the argument on
42
appeal.18 In any event, it is unlikely exclusion of those statements would
have made a difference in the outcome of the trial in light of all the other
properly admitted evidence. Accordingly, any error in admitting the
statements was harmless.
Finally, defendant challenges the statement that G.S. overheard
defendant say, “ ‘I should have just raped your daughters’ ” to B.S. when they
were fighting. As with some of the other Evidence Code section 352
challenges defendant raised, the trial court and counsel had several
discussions on the record about the admissibility of and risk of prejudice from
this statement. Defense counsel argued it was not really a threat of future
harm and was unnecessarily prejudicial. The prosecutor argued it was not
only relevant to G.S.’s state of mind of fear, but also defendant’s motive
because defendant was saying “ ‘I should have just raped your daughters’ ” in
a sex case. While recognizing the statement was “dynamite, maybe” and
“maybe harmful to Mr. Silva,” the court concluded it was “so inextricably
intertwined with the idea of what is going on in this child’s head that I don’t
see how I can exclude it.” Ultimately the trial court allowed the statement
for its effect on G.S., as relevant to her state of mind, but again indicated
limiting instructions may be appropriate and told the prosecutor he would
likely not be able to seek to corroborate the statement.
18 We recognize the statement about defendant’s brother and the
statement that B.S. bailed defendant out of jail and he “is in jail now” were
both made in the MDI. Defendant objected generally to the MDI as more
prejudicial than probative, but as we have discussed at length above, he also
raised many specific challenges to statements in the MDI. Defendant did not,
however, specifically challenge these statements, nor did he object to G.S.’s
statement at trial “the first time he went to jail.” (See Evid. Code, § 353,
subd. (a) [party must have made a timely, specific objection at trial to argue
evidentiary error on appeal].)
43
While it is indeed inflammatory, G.S. said in the MDI that she
overheard defendant utter these words when he was fighting with her
mother. Accordingly, the evidence was highly relevant to G.S.’s fear of
defendant and explanation for her submission to the molestations and
delayed disclosure. (See, e.g., People v. Nguyen (2015) 61 Cal.4th 1015, 1035
[prejudice that Evid. Code, § 352 is designed to avoid is not the prejudice that
flows naturally from relevant evidence, but that which tends to evoke an
emotional bias against the party with very little effect on the issues;
“ ‘ “ ‘prejudicial’ is not synonymous with ‘damaging’ ” ’ ”].) In any event, the
evidence was arguably beneficial to the defense, because at trial G.S. testified
she did not remember saying anything to her mother about rape, an issue
defense counsel highlighted in his closing statement to challenge her
credibility. Thus, any error in admitting the statement was harmless.
4. Hearsay Statements
Defendant argues the trial court erred by admitting irrelevant and
prejudicial hearsay, including G.S.’s statement in the MDI that when she told
B.S. about the abuse, there was a lot of crying and apologies, and G.S.’s
testimony at trial that when she disclosed the abuse, B.S. believed her.
Defendant also challenges B.S.’s testimony at trial regarding what G.S. told
her about what defendant did to her, i.e., her description of the molestations.
At trial, B.S. testified G.S. told her defendant had fondled his penis, touched
it until it was slimy, and then forced his fingers into G.S.’s mouth. He would
grab G.S. from the back and grab her breasts, rub her, and pull her into him
and tell her to be quiet. B.S. also testified that G.S. said she did not disclose
the abuse earlier because defendant told her he was going to kill B.S.
As to G.S.’s testimony at trial that her mother believed her when she
disclosed the abuse, defendant forfeited his argument on appeal by failing to
44
object at trial. (Evid. Code, § 353, subd. (a).) As to G.S.’s MDI statement that
both she and her mother cried when she disclosed the abuse and B.S.
apologized for letting it happen, defendant likewise failed to object to that
particular statement in the MDI. In any event, even if we were to consider
defendant’s argument on the merits, we would reject it.
Defendant contends G.S.’s statement that her mother believed her
when she disclosed the abuse prejudiced defendant by allowing inadmissible
hearsay regarding an improper lay opinion that bolstered G.S.’s credibility.19
(See, e.g., People v. Melton (1988) 44 Cal.3d 713, 744 [“Lay opinion about the
veracity of particular statements by others is inadmissible on that issue.”].)
However, under the circumstances here, any error in admitting G.S.’s
testimony at trial and MDI statement was harmless. First, the statements
were very brief. Second, reasonable jurors would expect a parent to have
sympathy for a child disclosing abuse, and it is not surprising that a parent
would believe their child. Although defendant attempts to analogize to
People v. Sergill (1982) 138 Cal.App.3d 34, 40, that case is entirely
distinguishable. In Sergill, the admission of two police officers’ testimony
that an alleged child victim in a molestation case was telling the truth,
combined with the court’s comment that one of the officers was specially
qualified to render an opinion about whether a person reporting a crime was
telling the truth, was prejudicial error. (Id. at pp. 40–41.) That situation, in
which two presumptively neutral, nonrelative witnesses testified the child
was telling the truth, and a judge confirmed one of them was specially
19 We do note the trial court ruled before trial that witnesses, including
B.S., would not be allowed to offer an opinion that the complaining witness
was telling the truth.
45
qualified to render such an opinion, would clearly carry greater weight with a
jury than a parent’s belief that their own child is telling the truth.
For the same reasons, G.S.’s statement that she and her mother cried
when she reported the abuse and her mother apologized is likewise
harmless.20 The statement that her mother apologized to her, like the
statement that she believed her, was brief and not a surprising reaction by a
mother to a child’s report of abuse. Any error in admitting the statements
from G.S. about her mother’s reaction when she reported the abuse was
harmless.
As to B.S.’s testimony about what G.S. reported defendant did to her,
we again conclude the issue is forfeited because defendant failed to object to
the testimony at trial. Although it its true defendant asked the court in
pretrial discussions that B.S.’s testimony be limited to the conditions and
circumstances under which the disclosure was made in accordance with the
“fresh complaint” doctrine, he did not object at trial when the prosecution
asked B.S. what G.S. told her. In any event, B.S.’s testimony about what
defendant did was brief and was consistent with what G.S. stated at trial and
in her MDI statement. Because the evidence was brief and cumulative, its
exclusion would not have changed the verdict.
5. Improper Appeals to Sympathy
Defendant argues there was substantial evidence and argument at trial
about how the alleged incidents affected G.S. over time. In response to
numerous questions from the prosecutor, G.S. testified about her suicidal
ideation and suicide attempts, her lengthy course of therapy, her depression
20 We note G.S.’s statement that she and her mother cried when she
disclosed the abuse is not hearsay. It is also relevant and admissible as to
the circumstances surrounding the disclosure, and is not particularly
inflammatory.
46
and anxiety, her loss of self-esteem, her medications, her giving up
gymnastics and swimming, and her hair loss and amenorrhea from lost body
weight. She affirmed, in response to a leading question from the prosecutor,
that all of this was “related to him his [sic] fingers in your mouth?” At the
MDI she said she was depressed, had drifted away from her best friend,
started cutting herself, did not want to be around anyone, found talking to
therapists did not help, and felt overwhelming sadness. B.S. also testified
about the effect defendant’s acts had on G.S., stating she was sad, would cry,
stopped participating in gymnastics and swimming, and was seeing a
therapist regularly.
Defendant contends all of this evidence was cumulative and constituted
improper appeals to the jury for sympathy for G.S. We disagree. As
defendant repeatedly argues throughout his briefing, one of the most
important contested issues at trial was G.S.’s credibility. The evidence of
G.S.’s mental and physical state during, following, and up to the disclosure of
the abuse was highly relevant to her credibility as a witness and whether or
not the molestations happened, which as defendant argued, was the key issue
at trial. The trial court did not abuse its discretion in allowing this evidence.
D. Due Process
Finally, defendant contends the multiple errors at trial violated his
federal due process rights. We disagree.
The “ ‘ “routine application of state evidentiary law does not implicate
[a] defendant’s constitutional rights.” ’ ” (People v. Henriquez (2017)
4 Cal.5th 1, 29.) “ ‘The admission of evidence results in a due process
violation only if it makes the trial fundamentally unfair. [Citation.] “Only if
there are no permissible inferences the jury may draw from the evidence can
its admission violate due process. Even then, the evidence must ‘be of such
47
quality as necessarily prevents a fair trial.’ [Citation.] Only under such
circumstances can it be inferred that the jury must have used the evidence
for an improper purpose.” ’ ” (People v. Coneal (2019) 41 Cal.App.5th 951,
972.)
Defendant asserts the cumulative effect of the trial court’s many
evidentiary errors requires reversal. As we have discussed in detail above,
defendant has demonstrated very few potential errors by the trial court and
any potentially erroneous admissions we have considered separately and
found to be harmless. “ ‘Considering them together, we likewise conclude
that their cumulative effect does not warrant reversal of the judgment.’ ”
(People v. Panah (2005) 35 Cal.4th 395, 479–480.)
III. DISPOSITION
The judgment is affirmed.
48
MARGULIES, ACTING P. J.
WE CONCUR:
BANKE, J.
WISS, J.
A163801
People v. Silva
 Judge of the San Francisco Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
49