People v. Dare CA1/1 ( 2023 )

Filed 4/28/23 P. v. Dare 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A164002
v. (Humboldt County
MARK ALAN DARE, Super. Ct. No. CR1800523)
Defendant and Appellant.
Defendant appeals from his conviction on several counts of felony child
molestation, raising challenges based on (1) the admission and exclusion of
certain evidence, (2) instructional error, (3) prosecutorial misconduct, (4) the
alleged ineffective assistance of his trial counsel, and (5) cumulative error.
Defendant also contends we must remand for resentencing in light of changes
to Penal Code section 1170, subdivision (b) that became effective after his
sentencing. We reject defendant’s challenges to his convictions, but conclude
that remand for resentencing is required based on the recent statutory
changes affecting the trial court’s imposition of an upper term.
I. BACKGROUND
A. Factual Background
Dennis W. and W.D. were married in 1998. The couple had two
daughters, Jane Doe 2 and Jane Doe 1, who were both born during the
marriage. In 2004, Dennis and W.D. separated, and in 2005, they divorced.
After Dennis and W.D. separated, W.D. began dating defendant. In
2007, W.D. married defendant and moved into his home with her two
daughters. Defendant’s teenage son also lived in the home. Dennis and W.D.
initially shared custody of the girls, but in 2010, Dennis moved to Missouri.
In December 2010, W.D. gave birth to her son; defendant was the baby’s
father.
1. Jane Doe 2
Jane Doe 2’s earliest memory of sexual abuse dates back to when she
was in second grade and was eight or nine years old. On multiple nights—
more than she could count—Doe 2 woke up in her bed1 to being touched and
stimulated. Sometimes defendant would get into Doe 2’s bed with her; more
often he would stand next to her bed and reach through the bars on the side
of the bed. The abuse happened almost every night until it ended when she
was in fourth or fifth grade.
One time, defendant crawled up into Doe 2’s bed and laid down on her
right side; another time he answered the phone while he was in bed with her.
On one occasion, defendant touched her and then told her something about
how glad he was that he could “calm [her] down.”
The touching was mostly the same: while her sister slept on the bottom
bunk, sometime after 8:30 or 9:00 p.m. until 11:00 or 11:30 p.m., defendant
would first rub Doe 2’s back, then rub her clitoris in a stimulating motion.
Sometimes he also touched her breasts and buttocks beneath her clothes.
When the abuse was happening, Doe 2 felt “super confused” and “didn’t
know what was going on.” She had a feeling it was bad because it would
happen at night when no one was around. She posted to a discussion forum
1 Doe 2 shared a bunk bed with her little sister, Doe 1. Doe 2 slept in
the top bunk and Doe 1 slept in the bottom bunk.
2
on a menstrual cycle tracking application called “Pink Pad” about what had
been happening to her and asked whether it was rape. Someone responded
and told her she was being molested and needed to talk to someone about it.
Doe 2 did not feel like she could tell any adults or her school at the time, but
in fifth grade she told her friend she was being molested. Doe 2 also disclosed
the abuse to a friend and the friend’s mother in her sophomore or junior year
of high school.
2. Jane Doe 1
Beginning before her younger brother was born in 2010, defendant
touched Jane Doe 1 sexually approximately two or three times per week at
night when she was in her bed. During one incident she remembered, Doe 1
was barely asleep and was awakened by defendant’s mouth on her bare
vagina. Sometimes he would put his finger in her vagina and grope her legs.
One time, she awakened to defendant placing her hand on his penis. Another
time, he put his mouth on her vagina and put his finger in her vagina.
Doe 1 also recalled a time when defendant touched her in her mother
and defendant’s bedroom. She was lying on the bed with her pants and
underwear off and defendant put his mouth on her vagina.
Another time when Doe 1 was preparing to take a shower, defendant
put her on the countertop next to the sink and “started doing oral.” He put
his mouth on her vagina and put his finger in her vagina.
During most of these touching incidents, defendant would not say
anything, but sometimes he would say, “ ‘Good girl.’ ” Once, he told her it
was a game and she could not tell anyone. After many of the incidents he
would buy her toys—she remembered receiving “a lot of My Little Ponies.”
When she was young, Doe 1 did not realize the sexual abuse was wrong
and did not disclose it at that time. At some point, Doe 1 tried to tell a
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counselor at school about the abuse, but she decided not to disclose when the
counselor informed her they would need to tell her parents if someone was
hurting her. In eighth grade, Doe 1 disclosed to her basketball coach that she
had been physically and sexually abused by her stepfather when she was
younger. Although he was a mandated reporter, her coach did not report the
disclosure because of her demeanor and the nonchalant manner in which she
made the disclosure.2
3. Formal Reports of Abuse
Jane Doe 1 disclosed the abuse to a teacher in her freshman year of
high school. The teacher escorted Doe 1 to the school office, where she
disclosed to school counselors and then the school police officer. The school
informed Dennis W. of Doe 1’s disclosure, and Dennis discussed it with Doe 1.
Jane Doe 2 reported the molestation to law enforcement in early 2018,
after learning about Doe 1’s disclosure.
4. Investigation and Searches
An investigator with the district attorney’s office conducted a search of
defendant’s cell phone and reviewed a timeline of the events of January 22,
2018. He found a text message sent from defendant to W.D. at 7:44 p.m.,
asking if the life insurance was “ ‘paid up.’ ” Also at 7:44 p.m., there were
Google searches for “Suboxone,” “Suboxone, lethal dose,” and “bupe.”
Immediately thereafter was a responsive text from W.D. confirming the life
insurance was paid up, followed by a text from defendant to W.D. stating:
“ ‘Good. If somebody shoots me or whatever.’ ” Thereafter, there was a
search for “ ‘Bupe, . . . ‘Suboxone and Xanax[???] deadly[?] safe[?]’ ” The
2The basketball coach testified at trial that Doe 1 disclosed she was
abused but he did not know whether it was sexual in nature. On further
examination, he conceded he had previously told an investigator it was
“sexual” abuse.
4
investigator knew “ ‘bupe’ ” to be a slang term for Suboxone based on his
training and experience.
Detective Donald Rowberry, who was qualified at trial as an expert in
computer forensics and child pornography, performed searches of defendant’s
computer hard drives. Rowberry located 18 visits to the website
“motherless.com,” 16 of which were associated with the user name “M. Dare”
from October 2011; 34 searches for website links related to “motherless.com”
on the computer’s search history from the deleted or “unallocated” space on
the hard drive from October 2011; and query searches within the
“motherless.com” website for the search terms “ ‘young teen’ ” and “ ‘teen.’ ”
Rowberry testified that in his experience, the only times he had seen
motherless.com show up in a web history is during a child pornography or
child molestation investigation. Rowberry also discovered several Google
searches regarding the statute of limitations for molestation conducted on
September 26, 2013; two video clips which he classified as “child
pornography” on the unallocated space; and a JPEG file in note format
stating, “ ‘Mark, my husband, please make sure you keep yourself in check
while on this computer. I’ve gone through it, and I think I cleared the
disgusting things you had hidden. This reminder is out of love and nothing
more.’ ”
5. Procedural History
On October 25, 2019, the Humboldt County District Attorney filed a
first amended information charging defendant with two counts of oral
copulation or sexual penetration with a child 10 years old or younger as to
Jane Doe 1 for the year 2010 (Pen. Code, § 288.7, subd. (b); counts 1 & 2);
continuous sexual abuse of a child under 14 years old as to Jane Doe 1 for the
years 2010 to 2012 (id., § 288.5, subd. (a); count 3); and continuous sexual
5
abuse of a child under 14 years old as to Jane Doe 2 for the years 2008 to
2010 (id., § 288.5, subd. (a); count 4). Special allegations were included as to
counts 3 and 4 that defendant had substantial sexual conduct with the
victims who were under 14 years old (id., § 1203.066, subd. (a)(8)), and as to
all counts, that defendant committed the offenses against more than one
victim under the age of 14 years within the meaning of Penal Code
section 667.61, subdivisions (j)(2) and (e). The day before trial, the
prosecution dismissed count 3 and orally amended count 1 to specify oral
copulation as the prohibited act, and count 2 to specify sexual penetration as
the prohibited act.
After deliberating less than two hours, a jury found defendant guilty on
counts 1, 2, and 4, and found true the special allegations. On October 29,
2021, the trial court sentenced defendant to an aggregate term of 46 years to
life in prison. The court struck the enhancement under Penal Code
section 667.61, subdivision (j)(2) upon agreement of the parties. Defendant
timely appealed.
II. DISCUSSION
A. Evidence of Prior Sexual Conduct
Defendant first contends the trial court prejudicially erred by striking
Doe 2’s cross-examination testimony that when she was seven or eight years
old, her young friend asked Doe 2 to “kiss or something her pubic area”; that
Doe 2 talked with her parents about it; and that W.D. told Doe 2 it was
wrong. Defendant asserts such evidence was highly relevant to Doe 2’s
credibility and its exclusion violated his federal and state constitutional
rights in a close case which hinged entirely on the credibility of Does 1 and 2.
1. Additional Background
6
On direct examination, Doe 2 testified that her first memory of
defendant’s molestation was when she was in second grade; she was eight or
nine years old. After Doe 2 described the acts of molestation, the prosecutor
asked Doe 2 how she felt when the abuse was happening to her. Doe 2
responded: “I was super confused. I didn’t know what was going on. I had a
feeling that it was, like, bad because it would happen at night and when
nobody was around, so I had a weird inkling about it, so I ended up looking
into it myself.”
Later, on cross-examination, Doe 2 testified that when she was seven or
eight years old she had a playdate with a friend who asked her to “kiss or
something her pubic area or something.” Doe 2 did not remember doing it,
but she did talk to her parents about it. Doe 2 testified: “I just remember
them asking me what had happened, and then I told them and then they told
me like, you don’t do that with your friends, kind of thing, not to touch people
there if I don’t want to.” She also testified the conversation “never went
beyond that one discussion.”
After Doe 2 completed her testimony, the prosecutor moved to strike
the evidence regarding Doe 2’s friend and her subsequent conversation with
her parents. The prosecutor argued that she was never given any discovery
on the issue and allowing the testimony directly contravened the trial court’s
ruling that the defense was not allowed to bring up any prior sexual act of the
complaining witnesses.
Defense counsel argued the testimony did not involve a sexual act, but
only “age-appropriate playful conduct between two 7- or 8-year olds.” In any
event, defense counsel asserted the evidence went “directly to impeachment
and credibility” because Doe 2 had a conversation with her parents about
appropriate and inappropriate touching. He argued the evidence was
7
relevant to “impeach her based on her testimony that she had no idea what
was happening to her.”
The trial court excluded the evidence, explaining: “I don’t know how
you can qualify ‘please kiss my private part,’ . . . as nonsexual. Definitely
falls within that frame. You can qualify it as children not necessarily
knowing the full ramification of what they were doing, but that would
certainly land within the parameters of the Motion in Limine.”
The trial court subsequently instructed the jury: “Ladies and
gentlemen, yesterday you heard testimony involving a young person . . . and
the alleged or the conduct was when Jane Doe was 7 or 8 and then a
subsequent conversation with Dennis and [W.D.]. [¶] Ladies and gentlemen, I
am striking that testimony from the trial. You are not to consider it for any
purpose. I am asking you to set it aside and not use it in your deliberation,
and it will not be referred to during the rest of the trial because it is
irrelevant.”
2. Analysis
Defendant contends the trial court erred because (1) Doe 2’s testimony
was not evidence of sexual conduct, and (2) it was critically important to the
jury’s evaluation of her credibility.
Generally, evidence of a complaining witness’s prior sexual conduct is
inadmissible in a sex crimes case, but a limited exception allows such
evidence to be admitted if it is relevant to the victim’s credibility. (Evid.
Code, §§ 1103, subd. (c) & 782, subds. (a), (c)(1).) In a prosecution under
Penal Code section 288.5, “Evidence Code section 782 provides for a strict
procedure that includes a hearing outside of the presence of the jury prior to
the admission of evidence of the complaining witness’s sexual conduct.
[Citation.] Evidence Code section 782 is designed to protect victims of
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molestation from ‘embarrassing personal disclosures’ unless the defense is
able to show in advance that the victim’s sexual conduct is relevant to the
victim’s credibility. [Citation.] If, after review, ‘the court finds the evidence
relevant and not inadmissible pursuant to Evidence Code section 352, it may
make an order stating what evidence may be introduced and the nature of
the questions permitted.’ ” (People v. Bautista (2008) 163 Cal.App.4th 762,
782; People v. Mestas (2013) 217 Cal.App.4th 1509, 1514 (Mestas).) We
review the trial court’s decision to exclude such evidence for an abuse of
discretion. (Bautista, at p. 782.)
First, we reject defendant’s contention that the trial court’s decision to
exclude Doe 2’s testimony violated his federal due process rights and his right
to present a defense. “[T]he routine application of provisions of the state
Evidence Code law does not implicate a criminal defendant’s constitutional
rights.” (People v. Jones (2013) 57 Cal.4th 899, 957.) “[O]nly evidentiary
error amounting to a complete preclusion of a defense violates a defendant’s
federal constitutional right to present a defense.” (People v. Bacon (2010)
50 Cal.4th 1082, 1104, fn. 4.) At most, the exclusion of Doe 2’s brief
testimony limited defendant’s ability to impeach one vague statement about
whether she understood what defendant was doing to her and whether it was
appropriate. There was no violation of defendant’s constitutional rights.
(Mestas, supra, 217 Cal.App.4th at p. 1517.)
Second, defendant has not shown the trial court abused its discretion in
excluding the evidence under Evidence Code section 782. Although he
contends the conversation between Doe 2 and her friend was not evidence of
“sexual activity,” Doe 2’s memory was vague as to whether she had actually
engaged in any kissing or touching with her friend. In any event, courts have
construed “sexual conduct” within the meaning of Evidence Code section 782
9
broadly. (See People v. Franklin (1994) 25 Cal.App.4th 328, 334, fn. omitted
(Franklin) [“[S]exual conduct . . . encompasses any behavior that reflects the
actor’s or speaker’s willingness to engage in sexual activity. The term should
not be narrowly construed.”]; People v. Casas (1986) 181 Cal.App.3d 889, 895
[verbal communication between sexual assault victim and third party
reflected her willingness to have sex for money].)
Third, regardless of whether the evidence qualifies as prior sexual
conduct, it was irrelevant. (See Franklin, supra, 25 Cal.App.4th at p. 335
[court need not decide whether certain evidence constituted sexual conduct
because it was properly excluded on grounds it was irrelevant and would
require undue consumption of time].) Defendant argues the testimony was
relevant to impeach Doe 2’s testimony that she was confused about
defendant’s acts of molestation and “didn’t know what was going on.” But
evidence that Doe 2’s parents told her when she was seven or eight years old
that she should not let a friend touch or kiss her “private parts” does not tend
to prove that she should have known at age eight or nine that her
stepfather’s acts of abuse fell in the same category.
Defendant’s attempt to draw an analogy between the exclusion of
Doe 2’s testimony and cases such as People v. Adams (1988) 198 Cal.App.3d
10, 16, 18–19 and Franklin, supra, 25 Cal.App.4th 328, in which courts
excluded prior false claims of sexual assault, is unavailing. Evidence that a
victim has previously made a false allegation about similar sexual abuse is
clearly more relevant to a victim’s credibility than the evidence in this case.
“The fact that a witness stated something that is not true as true is relevant
on the witness’s credibility whether she fabricated the incident or fantasized
it.” (Franklin, at p. 335.) Here, however, there was no evidence that Doe 2
made a prior false allegation of sexual abuse. Rather, the evidence defendant
10
sought to introduce concerned her understanding as a very young child about
whether a particular sexual act with a peer was “wrong” or “bad.” As we
have already explained, that conversation had little bearing on the veracity of
her testimony that she was confused about sexual touching and acts of
molestation by her stepfather.
In any event, even if the exclusion was error, it was harmless. Ample
evidence was introduced to the effect that Doe 2 suspected, knew, or learned
that defendant’s acts were wrong before she disclosed the abuse. First, Doe 2
herself stated she “had a feeling that it was . . . bad” and “had a weird inkling
about it” while the abuse was happening. Further, W.D. testified that she
had conversations with her daughters, especially Doe 2, about inappropriate
touching in their “ ‘no-no’ ” areas, including below the belt and their breast
area. W.D. also told the girls that no one could touch these areas except their
mother, father, and doctors. Both of these conversations suggested much
more directly and strongly that the acts of molestation were wrong than the
brief conversation about Doe 2’s friend when she was seven or eight years old.
Moreover, W.D. testified that on multiple occasions, Dennis threatened to kill
defendant if he ever touched the girls, and that Dennis said that in front of
the girls. Finally, when she was in the fifth grade, Doe 2 posted to a
discussion forum about what was happening to her and was told she was
being molested and needed to tell someone. Given the substantial evidence
suggesting Doe 2 knew or had reason to suspect defendant’s behavior was
“wrong” but still delayed reporting the abuse for many years, it is not likely
defendant would have received a different result had the jury been allowed to
consider her conversation with her young friend and her parents when she
was seven or eight years old. (People v. Watson (1956) 46 Cal.2d 818, 836
(Watson).)
11
Finally, the evidence of defendant’s guilt was overwhelming. Both girls
testified about defendant’s abuse; the jury was allowed to consider Doe 1’s
testimony regarding defendant’s molestation as propensity evidence in
deciding the charge involving Doe 2. There was ample corroboration of both
girls’ testimony as they both disclosed the abuse informally to others, and
those individuals testified at trial. Further, the evidence that defendant had
conducted multiple searches of a commercial pornography website using the
terms “ ‘teen’ ” and “ ‘young teen,’ ” and searched for the statute of limitations
related to molestation constitutes strong evidence of guilt. On this record, it
is not reasonably probable the excluded testimony would have changed the
outcome.
B. Character Evidence
Next defendant contends the trial court erred by allowing the jury to
hear inflammatory and inadmissible character evidence that he had an affair,
paid a prostitute for oral sex, “trolled” prostitution websites, and met women
on the Internet for sex. Defendant asserts the evidence served only to
portray him as a sexual deviant and improperly sought to impeach testimony
of his good character with specific instances of conduct.
1. Additional Background
The prosecution filed a motion in limine seeking to introduce, pursuant
to Evidence Code section 1101, subdivision (b), “evidence of the defendant’s
internet search history.” Defendant objected and sought an Evidence Code
section 402 hearing (section 402 hearing) and an offer of proof to show “any
relationship between any of the pornography, or pornographic site search
history, located on the defendant’s computer to pedophilia and the crimes [of
which he was accused].”
12
At the section 402 hearing, Detective Rowberry testified about searches
located on defendant’s computer for the websites motherless.com,
Backpage.com, and Craigslist. Rowberry testified the Backpage.com and
Craigslist searches were for “potential prostitution” and confirmed both sites
were categorized as human trafficking sites. At the conclusion of the hearing,
the trial court excluded evidence of searches on Craigslist, but allowed the
searches on Backpage.com as character evidence in rebuttal.
At trial, W.D. testified on direct examination that she and defendant
had a “[f]un, adventurous, good, satisfying” sex life. She shared specific
information about her sex life with defendant, including details about their
typical sexual routine, use of pornography, communication about sex, and
boundaries they had established in their sexual relationship. On cross-
examination, W.D. confirmed she had a “normal, satisfying sex life” with
defendant.
The prosecutor asked defendant if he had heard W.D.’s testimony “that
the two of you have a fulfilling and satisfying sex life.” Defendant responded
that he had, and he agreed with her. He then admitted he had an affair
outside of his marriage. When asked if he had affairs with more than one
person, he responded he “talked to a lot of people” and “did a lot of e-mailing”
with people through Craigslist, but he did not meet all of them; there was one
person with whom he spent a lot of time and had a sexual affair. He
confirmed W.D. would be telling the truth if she said he was meeting up with
girls on Craigslist and cheating on her. Defense counsel did not object to this
line of questioning. Defendant denied paying any of the women with whom
he had affairs.
The prosecution introduced evidence of defendant’s Backpage.com
searches through defendant’s own testimony. The prosecutor asked
13
defendant whether he had visited Backpage.com, and he responded: “Yeah.
I’d seen a news story on it and I looked through it. I didn’t utilize it for
anything, though. [¶] I was just—you know, like you said, it was a human
trafficking thing. There was a news story on it so I looked to see in different
places what was there, and I couldn’t tell. It looked like a bunch of
advertisements for prostitutes, but I didn’t utilize it.” When asked how many
times he visited Backpage.com looking at prostitutes, defendant said: “I don’t
know. I wasn’t, like, looking at prostitutes through the site. They actually
have a section that’s purported to be like a Craigslist thing. That’s supposed
to be amateur people or whatever, so I looked at it, but I don’t think that it
was actually active. I don’t know. I couldn’t tell.” Defendant denied meeting
anyone off of Backpage.com.
The prosecution sought permission to call Dorothy G. as a rebuttal
witness, who would testify defendant had hired her to orally copulate him on
a number of occasions. Defendant objected under Evidence Code section 352,
arguing the evidence was not proper impeachment, was irrelevant, and was
cumulative to other testimony. The prosecutor argued that defendant had
presented character witnesses and denied during cross-examination that he
ever used a prostitute or paid for sex. The prosecutor further argued that
soliciting a prostitute is a crime of moral turpitude and that character
witnesses may be impeached by such crimes. Finally, the prosecutor
contended, Dorothy G.’s testimony would contradict defendant’s testimony
that his sex life was normal. The trial court allowed her testimony, reasoning
that the defense had asked W.D. questions about their sex life and argued
defendant would not have time for prostitution, the evidence might go to his
impulsive behavior, character witnesses can be impeached by crimes of moral
turpitude, and Dorothy G.’s testimony would contradict defendant’s
14
testimony that he never paid for sex. The trial court suggested it might
exclude evidence as to the nature of the sex act—that it was oral sex—but
defense counsel responded that was not necessary as it would not confer any
additional stigma.
Dorothy G. testified that she worked as a prostitute. Defendant picked
her up more than three times. She would perform oral sex on defendant for
“about” $60. Defendant denied ever seeing Dorothy G. prior to her testimony,
denied paying her for sex, and reiterated his prior testimony that he had
never paid for sex.
2. Analysis
As an initial matter, defendant concedes he has forfeited some of his
challenges to this evidence by failing to object in the trial court. Defendant
did not object to Dorothy G.’s testimony or evidence of his extramarital affairs
on the basis that it was inadmissible character evidence. Defendant urges us
to exercise our discretion to consider these arguments notwithstanding his
failure to object, but does not articulate any sound reason for doing so.
(Evid. Code, § 353, subd. (a); People v. Clark (1992) 3 Cal.4th 41, 125–126
[absent a timely and specific objection on grounds urged on appeal, appellate
court will not review trial court’s admissibility ruling].)
Even if defendant did not forfeit his objections, however, the trial court
did not abuse its discretion in allowing the evidence. When a testifying
defendant in a criminal case offers evidence of specific conduct affecting his
credibility and good moral character, the prosecution is not precluded from
impeaching him with evidence of relevant specific instances of his conduct.
(People v. Lankford (1989) 210 Cal.App.3d 227, 235–240; Evid. Code, § 780
[fact finder may consider matters relevant to truthfulness of witness
testimony].)
15
Here, defense counsel elicited extensive testimony from W.D. about the
nature of her sexual relationship with defendant to prove that she and
defendant had a normal, satisfying sexual relationship, and defendant
confirmed and agreed with her testimony. Evidence that defendant was
looking at Backpage.com for prostitutes, having affairs outside of his
marriage, and paying a prostitute for sex was thus appropriately admitted to
challenge defendant’s credibility, notwithstanding that it also rebutted his
character evidence in the form of specific incidents of conduct. Moreover, the
evidence that defendant engaged in conduct involving moral turpitude (i.e.,
prostitution), was admissible to impeach his credibility as a testifying
witness. (People v. Wheeler (1992) 4 Cal.4th 284, 295–296 [evidence of
misconduct involving moral turpitude may be admissible for impeachment
because it may suggest a willingness to lie]; People v. Clark (2011) 52 Cal.4th
856, 931 [“A witness may be impeached with any prior conduct involving
moral turpitude whether or not it resulted in a felony conviction, subject to
the trial court’s exercise of discretion under Evidence Code section 352.”];
People v. Chandler (1997) 56 Cal.App.4th 703, 709 [prostitution is a crime of
moral turpitude].) In addition, defendant denied paying any of the women
with whom he had an affair. Dorothy G.’s testimony was relevant and
admissible to directly impeach that testimony. (Evid. Code, § 780, subd. (i).)
Regardless, even if the trial court erred in admitting the evidence, we
conclude the error was harmless on this record. First, as we have already
discussed, the evidence against defendant was so strong as to be
overwhelming. Moreover, evidence that he had affairs with adults outside of
his marriage, was looking for prostitutes on a website, and hired an adult
prostitute on a few occasions was of minor significance compared with the
magnitude of the charged offenses. (See People v. Marks (2003) 31 Cal.4th
16197, 229.) On this record, it is not reasonably probable defendant would have
achieved a more favorable outcome had the evidence been excluded and,
accordingly, any error in admitting it was harmless. (Watson, supra,
46 Cal.2d at p. 836.)
C. Instruction on Consciousness of Guilt
Defendant next argues the trial court erred by instructing the jury that
it could consider evidence that he searched the Internet for lethal doses of
medications after hearing of the abuse allegations as consciousness of guilt.
Defendant contends the instructional error requires reversal under state law
because there was no substantial evidence he attempted to commit suicide
and he was prejudiced by the instruction.3
In a motion in limine, the prosecution sought to introduce evidence that
after W.D. told defendant about the accusations, he texted her asking if the
life insurance was “ ‘paid up,’ ” then conducted Internet searches for lethal
doses of Suboxone and Xanax. The prosecution argued the evidence reflected
consciousness of guilt. Defense counsel objected that drawing an inference of
consciousness of guilt from the computer searches was “pure speculation”
and was prejudicial.
After conducting some legal research, the trial court stated its intent to
allow the evidence and added it would read CALCRIM No. 372 if requested.
At trial, the court read the following modified instruction to the jury: “If the
defendant made plans to commit suicide after he was accused of the conduct,
3 Although defendant states cursorily that the trial court erred by
admitting evidence of his searches for lethal doses of the medications, he does
not develop the argument. Accordingly, we address only his claim of
instructional error. (People v. Stanley (1995) 10 Cal.4th 764, 793 [when
appellant fails to support a point with reasoned argument and citations to
authority, we treat the point as waived].)
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that conduct may show that he was aware of his guilt. If you conclude the
defendant made plans to commit suicide, it is up to you to decide the means [4]
and importance of that conduct. However, evidence that the defendant made
plans to commit suicide cannot prove guilt by itself.”
The court has a sua sponte duty to instruct on flight whenever the
prosecution relies on evidence of flight to show consciousness of guilt. (Pen.
Code, § 1127c; People v. Abilez (2007) 41 Cal.4th 472, 521–522.) “ ‘ “ ‘[F]light
requires neither the physical act of running nor the reaching of a far-away
haven. [Citation.] Flight manifestly does require, however, a purpose to
avoid being observed or arrested.’ ” ’ [Citation.] While physical flight to
evade capture or escape from custody are two obvious examples of relevant
conduct, the courts have long held ‘ “[a]ny conduct of a defendant subsequent
to the commission of the crime tending to show consciousness of guilt is
relevant and admissible . . . .” ’ [Citation.] ‘[T]here need only be some
evidence in the record that, if believed by the jury, would sufficiently support
the suggested inference [of consciousness of guilt].’ ” (People v. Pettigrew
(2021) 62 Cal.App.5th 477, 497–498, italics added by Pettigrew (Pettigrew).)
“ ‘The evidentiary basis for the flight instruction requires sufficient, not
uncontradicted evidence.’ ” (Id. at p. 499.)
We review a claim of instructional error de novo. (People v. Mitchell
(2019) 7 Cal.5th 561, 579.) Reversal is required only if the instructional error
resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; Watson, supra,
46 Cal.2d at p. 836.)
In Pettigrew, the court held it was error to instruct on flight, pursuant
to CALCRIM No. 372, where there was no evidence the defendant attempted
The written instruction provided to the jury stated this word was
4
“meaning.”
18
to flee after the crime or escape from custody after his arrest. (Pettigrew,
supra, 62 Cal.App.5th at p. 499.) After his arrest, however, the defendant
twice tried to hang himself with his clothing in his jail cell. (Id. at p. 488.)
Under the circumstances, the Pettigrew court determined it would have been
appropriate for the trial court to draft an instruction based on the pattern
instructions and relevant cases regarding the defendant’s suicide attempts as
evidence of consciousness of guilt. (Id. at pp. 499–500.)
Defendant contends that here, unlike in Pettigrew, there was no
substantial evidence that he attempted to commit suicide, only evidence that
he conducted an Internet search. Defendant fails to acknowledge, however,
that in addition to the evidence that he conducted repeated searches for
lethal doses of medications after asking if his life insurance was paid and
immediately after hearing about the abuse allegations, his own testimony
affirmed that he was considering suicide in response to the disclosures. In
explaining why he conducted the search, defendant testified “it was a
technique [he] used growing up when [his] life was out of control.” He would
“carry a razor blade in [his] wallet, and when [he] didn’t have control over the
situation, [he] would look at that and [he] would say [he] could take control of
[his] life that way.” He knew that he could “stop things” so it “popped into
[his] head” and he became “curious on how much [Suboxone] you would have
to take.” When asked if he was contemplating killing himself when he
conducted the searches, he responded his “life had suddenly gone out of
control,” he had “those same thoughts,” and he “thought, Well, how would I?
And that was a way . . . .” Defendant also testified he had a prescription for
and was taking Suboxone. Although defendant denied trying to kill himself
and stated he had “had three years to follow through, and [is] not interested
in doing it” because it would not be “a good example to [his] kids,” a jury
19
could reasonably infer from defendant’s actions and statements that at the
time of the disclosures, he was making plans to commit suicide by
researching the amount of a drug already in his possession that he would
need to take to kill himself. Given the timing of these thoughts and Internet
searches immediately after he learned Does 1 and 2 had disclosed the abuse
to law enforcement, the jury could reasonably infer from his testimony that
defendant’s contemplations of suicide were motivated, at least in part, by an
effort to evade prosecution or responsibility for the abuse.
Thus, we conclude defendant’s testimony together with the evidence of
his Internet searches could support a reasonable inference defendant was
making plans to commit suicide, reflecting consciousness of guilt. The trial
court instructed the jury with a modified version of CALCRIM No. 372, that
it could use such evidence for the limited purpose of deciding whether
defendant had made plans to commit suicide and if so what importance those
plans had. It further instructed that evidence defendant made such plans
could not prove guilt by itself. On this record, defendant has not shown the
instruction was erroneous as a matter of law or unsupported by substantial
evidence.
In any event, even if the trial court erred in instructing the jury with
CALCRIM No. 372, we conclude the error was harmless. As we have
previously discussed, in light of the overwhelming evidence of defendant’s
guilt, including the extensive testimony by Doe 1 and Doe 2, which the jury
obviously credited, and the substantial corroboration of their testimony, there
is no reasonable probability the jury would have reached a more favorable
result in the absence of the instruction.
D. Prosecutorial Misconduct
20
Defendant next argues the prosecutor repeatedly engaged in
misconduct by referring to the two videos located by Detective Rowberry on
defendant’s computer as “child pornography” during her cross-examination of
W.D. Defendant asserts the characterization was an attempt to “smuggle[] in
inadmissible expert opinion that could not be argued openly and legally.”
1. Additional Background
As discussed above, the trial court conducted a section 402 hearing
with the prosecution’s expert witness, Detective Rowberry, to address the
prosecution’s motion to admit evidence of child pornography found on
defendant’s computer under Evidence Code sections 1108 and 1101,
subdivision (b). At the conclusion of the section 402 hearing, the court ruled
that two videos (and other evidence) were admissible under sections 1108 and
352.
After several trial witnesses had testified, but prior to Rowberry’s
testimony, defense counsel moved to exclude any reference to the two videos
as “child pornography” because the question whether such material was in
fact child pornography was for the jury to determine. Defense counsel argued
that “even in questioning” it would be “conclusionary in [sic] the
determination that should be left in the hands of the jury.” The trial court
ruled the parties should treat the topic as they would the identification of
drugs by an expert at a preliminary hearing. Specifically, the court directed
that the expert could “go into his training and experience . . . and he should
state it. It should be couched that this is his opinion rather than it is a
conclusion. And he does have training in child pornography and the
identification of child pornography so that we can use those words.” The
court agreed that the ultimate issue of whether the evidence constituted child
pornography was up to the jury.
21
During her examination of Rowberry, the prosecutor asked whether
Rowberry would classify the two videos as child pornography based on his
training and experience. He responded: “I would say the first one where you
can see her breasts. And then the second, I would say, is basically called
child pornography if it doesn’t show any genitalia or anything but it’s related:
then we call it child pornography.”
Later, during the defense case, W.D. testified on direct examination
that she had asked defendant not to watch pornography because it was not
appropriate for their relationship. She found and deleted adult pornography
on his computer, but she did not find images of child or teenage pornography.
On cross-examination, the prosecutor asked W.D. a series of questions
based on Rowberry’s testimony regarding the two videos he found on
defendant’s computer. The prosecutor asked W.D. whether she was “aware”
that the expert “found a video that he classified as child pornography” on one
of the computers in her house. Defense counsel objected; the trial court
directed counsel to “ask it a different way.”
The prosecutor then asked whether W.D. had “heard that the People’s
computer forensic expert found a video classified as ‘child pornography’ on a
computer” in her home. Defense counsel again objected, and the trial court
admonished the jury as follows: “Ladies and gentlemen, the objection here,
as you heard in opening statements and as you’ll hear in closing statements,
you are the deciders of the facts. You will decide whether or not it is child
pornography. However, there was testimony provided by an expert and now
this witness is being cross-examined. Please remember your duties in this
case to determine the facts.”
The prosecutor then asked W.D., “[N]ow that you’ve heard that an
expert in this case found a video that that expert classified as child
22
pornography and found it on a computer that’s associated with your husband,
does that change your opinion of [him]?” After W.D. responded she would
have to see the evidence herself, the prosecutor asked her about “another
video” found by the expert, noting “the expert testified that that was child
erotica.”
At a morning recess in chambers after the cross-examination, the court
addressed counsel, stating, “I wanted to make a record because cross-
examining [W.D.] came close to the line that I previously made so I just want
to reemphasize that with counsel.” The court admonished that “when talking
about whether or not that is child pornography or child erotica or something
else, counsel should be careful to couch it in terms as I’ve previously ruled,
treating it much as if it were some other form of contraband that has not yet
been decided. [¶] If you want to argue to the jurors that it’s pornography,
that’s fine, but it should be presented to—by impeaching witnesses. It should
be presented as suspected child pornography, but it should not be referred to
in the conclusionary statements as child pornography. That is why I
instructed the jury as I did. I don’t want to keep doing that.” The trial court
then emphasized, “I think it’s impeachable evidence and you can certainly
ask people about that, just be careful how you refer to it, not as a
conclusionary statement, so I don’t have to reinstruct the jury each time.”
The prosecutor then asked for clarification about how she could
examine witnesses on the issue, and the court further explained its ruling,
emphasizing that “it shouldn’t be in a conclusory statement as if this is
already decided” because the determination whether the videos were child
pornography was for the jury.
2. Analysis
23
“ ‘A prosecutor who uses deceptive or reprehensible methods to
persuade the jury commits misconduct, and such actions require reversal
under the federal Constitution when they infect the trial with such
“ ‘unfairness as to make the resulting conviction a denial of due
process.’ ” [Citations.] Under state law, a prosecutor who uses deceptive or
reprehensible methods commits misconduct even when those actions do not
result in a fundamentally unfair trial.’ ” (People v. Salcido (2008) 44 Cal.4th
93, 152.)
Defendant argues the prosecutor committed misconduct during the
cross-examination of W.D. by repeatedly referencing the expert’s opinion that
the videos found on defendant’s computer were “child pornography,” in
violation of the trial court’s prior rulings. Relying on People v. Villa (1980)
109 Cal.App.3d 360, 365 (Villa), defendant contends the prosecutor’s repeated
references to the videos as child pornography was an attempt to “smuggl[e] in
by inference . . . claims that could not be argued openly and legally.”
Villa, however, is inapposite. In that case, the prosecutor committed
misconduct by making numerous speaking objections, inappropriate
comments, and interrupting defense counsel’s closing argument with
references to undisclosed evidence regarding the defendant’s prior sexual
conduct. (Villa, supra, 109 Cal.App.3d at pp. 363–364.) The court concluded
that the prosecutor’s insinuations that highly relevant and damaging
evidence about the defendant’s prior sexual conduct existed but was not being
presented to the jury was clear misconduct. (Id. at p. 364.) Moreover, the
trial court’s usual instruction that counsel’s statements are not evidence
could not cure the error because the court did not admonish the jury to
24
disregard the prosecutor’s suggestions and in fact sustained the prosecutor’s
objections accompanying his improper statements.5 (Id. at pp. 367–368.)
Here, by contrast, the prosecutor referred to an opinion already offered
by the expert, not undisclosed evidence, and the trial court specifically
instructed the jury, during the prosecutor’s questioning, that the jury would
determine the facts, including whether the evidence is child pornography.6
Moreover, while defendant contends the trial court “cautioned the prosecutor
not to refer to the evidence as ‘child pornography’ ” and “warned the
prosecutor that the questions should be couched in terms as the court had
‘previously ruled,’ ” the colloquy between the court and counsel reveals that
the trial court was clarifying its ruling with respect to how the parties should
characterize the videos when examining witnesses. Indeed, in offering its
explanation, the court began by telling counsel: “I wanted to make a record
because cross-examining [W.D.] came close to the line that I previously made
so I just want to reemphasize that with counsel.” Defendant does not point to
any violations by the prosecutor after the court offered its warning.
In any event, we conclude any error in referencing the expert’s opinion
that the videos were child pornography was harmless. The trial court
explicitly instructed the jury that “you are the deciders of the facts,” “You will
5 Nonetheless, as the Attorney General observes, the Villa court
concluded that despite the clear misconduct which had a significant impact,
the error was harmless based on the “lopsided weight of the evidence,” where
the defendant’s testimony was not convincing and the victim’s testimony was
corroborated by other evidence. (Villa, supra, 109 Cal.App.3d at pp. 367–
368.) As to its harmless error analysis, the Villa case is similar to the
circumstances of this case because the evidence against defendant is so
strong.
6 For this reason, we find unpersuasive defendant’s reliance on the
principle that a prosecutor’s argument to the jury incorporating statements of
fact not in evidence constitutes misconduct.
25
decide whether or not it is child pornography,” and reminded jurors of their
“duties in this case to determine the facts.” We presume the jury followed
this instruction. (People v. Parker (2022) 13 Cal.5th 1, 71.) On this record, to
the extent the prosecutor’s questions constituted misconduct, and given the
overwhelming evidence supporting the verdicts, defendant was not
prejudiced.
E. Ineffective Assistance of Counsel
Defendant argues his trial counsel committed six errors at trial that
violated his federal and state constitutional rights and require reversal.
Alternatively, he asserts, the errors require reversal under state law.
Under the Sixth Amendment and the California Constitution, a
criminal defendant has the right to the assistance of counsel. (U.S. Const.,
6th Amend.; Cal. Const., art. I, § 15.) “ ‘[T]he right to counsel is the right to
the effective assistance of counsel.’ ” (Strickland v. Washington (1984)
466 U.S. 668, 686 (Strickland).)
To establish an ineffective assistance of counsel claim, a defendant
must show counsel’s performance fell below an objective standard of
reasonableness under “prevailing professional norms” and, as a consequence,
the defendant was prejudiced. (Strickland, supra, 466 U.S. at pp. 687–688;
People v. Ledesma (1987) 43 Cal.3d 171, 216–217.) The standard for
prejudice is “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” (Strickland,
at p. 694.) “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” (Ibid.; People v. Jennings (1991) 53 Cal.3d 334,
357.)
1. Failure to Follow Procedures Under Evidence Code
Section 782
26
In his first argument presented in this appeal, defendant contends the
trial court erred by excluding evidence that when Doe 2 was seven or eight
years old, her young friend asked Doe 2 to “kiss or something her pubic area”;
that Doe 2 talked with her parents about it; and that W.D. told Doe 2 it was
wrong. Defendant asserts that to the extent this court concludes such
evidence was subject to the requirements of Evidence Code section 782,
defense counsel rendered ineffective assistance by failing to follow the
procedures required for admission of that evidence under the statute.
As we have explained above, however, regardless of whether Doe 2’s
testimony constituted evidence of prior sexual conduct subject to Evidence
Code section 782 requirements, it had minimal probative value with respect
to her credibility. Because the trial court did not abuse its discretion in
excluding the evidence, defense counsel was not ineffective for failing to
follow the procedures of Evidence Code section 782.
2. Eliciting Prejudicial Expert Testimony Regarding
Infrequency of False Reports of Child Molestation
Defendant next contends his trial counsel was ineffective for eliciting
testimony from the prosecution’s child sexual abuse accommodation
syndrome (CSAAS) expert on the infrequency of false reports of child
molestation.7 During motions in limine, the trial court excluded expert
testimony “regarding statistical percentages of false allegations” of child
molestation. The trial court ruled “it is improper for [the] CSAAS expert or
7 CSAAS evidence is admissible to disabuse jurors of common
misconceptions about how child victims of sexual assault behave. (People v.
McAlpin (1991) 53 Cal.3d 1289, 1300.) Testimony by an expert on CSAAS
allows jurors to understand the reactions of children who have been the
victims of sexual abuse, but it is inadmissible to prove that a victim’s claim of
molestation is true. (People v. Mateo (2016) 243 Cal.App.4th 1063, 1069;
McAlpin, at pp. 1300–1301.)
27
any other expert to rely on statistics as to how often children in these
situations lie.”
When he cross-examined the prosecution’s CSAAS expert, defense
counsel asked the expert whether he had ever worked with children “who
claim to be sexually abused but as far as could be determined were not.” The
expert stated he did not recall that occurring. Defense counsel then asked
whether the expert had any “experience with children who claimed to be
abused but [the claim] was not substantiated.” Again, the expert did not
recall that having occurred. When the expert asked if counsel was asking
about false allegations, defense counsel confirmed he was. The expert said,
“It’s infrequent but it can happen.” Defense counsel then asked the basis for
the statement that false allegations of child sexual abuse are infrequent. At
that point, the prosecutor asked to approach. After a sidebar, the trial court
instructed the jury: “Ladies and gentlemen, you are not to consider the
testimony as to the frequency of reporting, either accurate or inaccurate.”
Relying primarily on People v. Julian (2019) 34 Cal.App.5th 878(Julian), defendant contends his trial counsel rendered ineffective assistance
by soliciting evidence the trial court had excluded about the infrequency of
false child molestation allegations. In Julian, the CSAAS expert repeatedly
testified to specific statistics supporting the rarity of false reports of child
abuse based on various studies and articles. (Id. at pp. 883–884.) The
appellate court concluded defense counsel was ineffective for failing to object
to the expert’s testimony, and the defendant was prejudiced because the case
was close, the evidence in defendant’s favor was strong, and the expert’s
repeated testimony regarding the rarity of false allegations “tipped the scales
in favor of the People based on statistical studies that were irrelevant to the
issue of Julian’s guilt or innocence.” (Id. at p. 888.) Specifically, the court
28
noted, “Such evidence may not be prejudicial where it occurs in a slight
passing reference by the expert. But here the jury was bombarded with it.”
(Ibid.)
In this case, however, unlike in Julian, defendant cannot show he was
prejudiced by counsel’s alleged deficient performance.8 (Strickland, supra,
466 U.S. at p. 697 [court need not assess deficient performance if ineffective
assistance claim can be resolved due to lack of sufficient prejudice].) The
reference to the infrequency of false allegations was exceptionally brief, the
evidence of guilt was overwhelming, and the trial court instructed the jury
immediately after the testimony not to consider the testimony as to the
frequency or infrequency of reporting and properly instructed the jury at the
conclusion of trial on the use of expert CSAAS testimony and evaluation of
witness credibility. On this record, defendant cannot show a reasonable
probability the outcome of the trial would have been different in the absence
of the purported error.
3. Failure to Object to Character Evidence
As discussed above, we have already rejected defendant’s claim that
reversal is compelled because the trial court admitted improper,
8 Defendant also relies on People v. Lapenias (2021) 67 Cal.App.5th 162and People v. Wilson (2019) 33 Cal.App.5th 559, but those cases are likewise
unhelpful to defendant. In Lapenias, the court found the error in allowing
expert testimony that false allegations were “ ‘rare’ ” was harmless because,
like here, the CSAAS expert’s testimony was brief, the victim’s disclosure
provided corroborative evidence of the defendant’s guilt, and the jury was
properly instructed on use of the evidence. (Lapenias, at pp. 179–180.)
Similarly, in Wilson, the appellate court concluded inadmissible statistical
evidence regarding the infrequency of false abuse allegations resulted in no
prejudice to the defendant where, among other things, the testimony on
statistical evidence was brief and the victims testified extensively, allowing
the jurors to assess their credibility. (Wilson, at pp. 571–572.) The same
considerations apply here.
29
inflammatory, and irrelevant character evidence which served only to portray
defendant as a “sexual deviant.” Defendant contends his trial counsel’s
failure to object to evidence that he had an affair, contacted other women for
prostitution, and trolled the Internet for prostitutes constituted ineffective
assistance.
First, defendant’s trial counsel may have had a reasonable, tactical
reason for not objecting to the evidence. (See, e.g., People v. Seumanu (2015)
61 Cal.4th 1293, 1313, italics added by Seumanu [decision whether to object
is a highly tactical decision that depends on “ ‘counsel’s evaluation of the
gravity of the problem and whether objection or other responses would serve
only to highlight the undesirable testimony’ ”].) Counsel’s defense theory
relied in part on an argument that defendant’s sexual conduct with adults
had no tendency to prove he was a pedophile because children were not
involved. Counsel may have refrained from objecting to avoid the impression
that he considered the evidence harmful, in contradiction of the defense.
In any event, as we discussed above with respect to defendant’s
evidentiary claim, we conclude any error in failing to object was harmless
because the evidence against defendant was overwhelming and the evidence
regarding prostitutes and affairs with adults outside of marriage was much
less inflammatory than the charges in the case. Because it is not reasonably
probable defendant would have achieved a more favorable outcome had the
evidence been excluded, his ineffective assistance claim fails. (Strickland,
supra, 466 U.S. at p. 694.)
4. Failure to Object to Prosecutor’s Cross-examination
We have also rejected above defendant’s argument that the prosecutor
committed misconduct by repeatedly asking W.D. about the expert’s opinion
that the videos found on defendant’s computer were child pornography.
30
Defendant contends in the alternative that his counsel’s failure to object to
the improper questions constituted ineffective assistance. Because we
rejected defendant’s claim of prosecutorial misconduct and concluded
defendant suffered no prejudice in light of the court’s instruction to the jury,
we reject the ineffective assistance claim.
5. Failure to Call Custodian of Records for Motherless.com
Defendant contends defense counsel failed to conduct an adequate
investigation on behalf of his client. Specifically, defendant asserts his trial
counsel should have called the custodian of records for motherless.com to
testify the website was a federally regulated, adult pornography site.
During motions in limine when the parties and court were discussing
the admission of search results from defendant’s computer, the trial court
stated that evidence defendant viewed child pornography would be the most
relevant, while evidence he viewed adult pornography would be least
relevant. The court further stated that if the images recovered from
defendant’s computer were found on a commercial website where the images
are presumed to be adults, an expert would be required to identify the age of
the models in order to argue the images were child pornography.
At the section 402 hearing, Rowberry testified he was not familiar with
title 18 United States Code section 2257 (section 2257), as it pertains to child
pornography regulations on commercial Internet sites, and he did not know
whether motherless.com was certified under section 2257 regarding the age
of the models depicted. When Rowberry was cross-examined at trial, defense
counsel moved to exclude Rowberry’s testimony. Counsel argued that during
the section 402 hearing, he had asked Rowberry about section 2257 and
whether the federal regulations require such websites to “keep records and
have a custodian of records indicating that all models used and depicted are
31
. . . 18 years of age or older.” Defense counsel argued that Rowberry had said
he was not familiar, but would look into defense counsel’s question; then at
trial, Rowberry “claim[ed] ignorance” and said he didn’t “understand that
there are any regulations or rules.” Defense counsel told the court
Rowberry’s testimony “puts me in a bind” and he had “been sucker punched
by this witness” because he relied on Rowberry to look into the issue.
Counsel asked the court to exclude “his entire testimony.”
The prosecutor argued that Rowberry had no obligation to investigate
on behalf of the defense, a point conceded by defendant’s trial counsel. The
trial court denied the motion, noting Rowberry was not an expert for the
defense. The court further told defense counsel: “[Y]ou haven’t asked him
whether or not motherless.com is a commercial website. I think that the fact
that he doesn’t know more about the laws, the fact that you asked him to look
at it and he said he didn’t do it, that all goes to his credibility. You can
certainly ask those questions. You can ask him questions about what he
knows about that website, but it does not mean his entire testimony is
excluded.”
Defendant now contends his trial counsel admitted that he knew
Rowberry was not under a duty to investigate on behalf of the defense and
that he knew there was a custodian of records at motherless.com.
Accordingly, defendant argues, his trial counsel should have called the
custodian of records to testify the website was federally regulated and
required models to be 18 years of age or older.
We disagree. First, defendant does not point to any evidence in the
record that a custodian of records exists or could have been secured to testify
at trial. (See, e.g., U.S. v. Harden (9th Cir. 1988) 846 F.2d 1229, 1231–1232
[ineffective assistance of counsel claim failed because there was no evidence
32
in record that witness would testify].) Even assuming defense counsel was
able to secure a custodian of records for motherless.com to testify about the
site’s compliance with legal regulations, however, the evidence would have
had minimal probative value. Rowberry would still have been able to testify
that based on his experience, he had only ever seen motherless.com in child
molestation investigations and that the search results from defendant’s
computer revealed a search for the terms “ ‘teen’ ” and “ ‘young teen’ ” on the
website. Moreover, Rowberry testified the website was a legal, commercial
website. It is unlikely additional testimony from a custodian of records about
its legal compliance would have made a difference in the jury’s assessment of
defendant’s use of the site. Because there is no reasonable probability that
such testimony would have changed the outcome at trial, defense counsel was
not ineffective for failing to conduct the investigation and call the
hypothetical witness.
6. Failure to Object to Restitution Fine
Finally, defendant contends his trial counsel rendered ineffective
assistance by failing to request an ability-to-pay hearing on the imposition of
a cumulative total of $5,070 in fines and fees under People v. Dueñas (2019)
30 Cal.App.5th 1157. Since we must remand this matter for resentencing as
we discuss further below, it is not necessary to address defendant’s claim at
this time. At his resentencing on remand, defendant may make any
appropriate motions. (People v. Buycks (2018) 5 Cal.5th 857, 893 [explaining
full resentencing rule].)
F. Cumulative Error
Defendant contends the cumulative effect of the multiple errors at trial
identified above requires reversal of the judgment. We disagree.
33
Under the cumulative error doctrine, “a series of trial errors, though
independently harmless, may in some circumstances rise by accretion to the
level of reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th
800, 844.) As we have discussed in detail above, we have rejected defendant’s
individual claims of error, and accordingly, there is no prejudice to
accumulate. Any potential errors we have considered separately and found to
be harmless; we reach the same conclusion considering them collectively.
G. Sentencing
Finally, defendant argues he must be remanded for resentencing in
light of recent changes to the law affecting the trial court’s sentencing
discretion. We agree.
The trial court sentenced defendant to the upper term of 16 years for
continuous sexual abuse of Jane Doe 2 (Pen. Code, § 288.5, count 4) based on
the following aggravating factors cited in the probation report: (1) the crime
involved great violence, bodily harm, the threat of great bodily harm or other
acts disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules
of Court,9 rule 4.421(a)(1));10 (2) the victims were particularly vulnerable
(rule 4.421(a)(3)); (3) the manner in which the offenses were carried out
indicated “planning, some degree of sophistication”11 (rule 4.421(a)(8));
(4) defendant took advantage of a position of trust or confidence
(rule 4.421(a)(11)); and (5) defendant engaged in violent conduct indicating a
serious danger to society (rule 4.421(b)(1)). The court acknowledged a single
9 All references to rules are to the California Rules of Court.
10 The court commented, “callousness. I think that’s the operative word
in this particular instance.”
11 The trial court noted it was not making a finding of professionalism.
34
mitigating factor that defendant’s criminal history consisted of one
misdemeanor conviction. (Rule 4.423(b)(1).)
When defendant was sentenced, Penal Code section 1170,
subdivision (b) gave the trial court broad discretion to determine which of
three terms specified for an offense would best serve the interests of justice.
(Pen. Code, former § 1170, subd. (b), as amended by Stats. 2020, ch. 29, § 14.)
While this appeal was pending, Penal Code section 1170 was amended by
Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567; Stats. 2021,
ch. 731, § 1.3, effective Jan. 1, 2022.) As amended, Penal Code section 1170,
subdivision (b) makes the middle term the presumptive sentence and permits
imposition of an upper term sentence “only when there are circumstances in
aggravation of the crime that justify” the upper term and only if “the facts
underlying those circumstances have been stipulated to by the defendant, or
have been found true beyond a reasonable doubt at trial by the jury or by the
judge in a court trial.” (Pen. Code, § 1170, subd. (b)(2).) The parties agree, as
do we, that revisions to Penal Code section 1170 are ameliorative within the
meaning of In re Estrada (1965) 63 Cal.2d 740, and thus apply retroactively
to nonfinal cases like this one. (People v. Zabelle (2022) 80 Cal.App.5th 1098,
1109 (Zabelle) [noting all published cases to have considered the issue have
found the new legislation applies retroactively].)
In this case, the court relied on factors that were not admitted by
defendant, proved through certified records of conviction, or found true
beyond a reasonable doubt by a jury. (Pen. Code, § 1170, subd. (b)(2), (3).) As
such, consideration of the aggravating factors was improper under the newly
amended statute. (See, e.g., Zabelle, supra, 80 Cal.App.5th at p. 1109.)
The parties disagree, however, as to whether we must remand for
resentencing. Defendant contends Senate Bill 567 entitles him to a new
35
sentencing hearing, while the Attorney General argues remand is
unnecessary because any error in sentencing was harmless.
The Courts of Appeal are split regarding the applicable standard of
review in this situation, and the issue is currently pending before our
Supreme Court. (People v. Lynch (May 27, 2022, C094174) [nonpub. opn.],
review granted Aug. 10, 2022, S274942.)
In People v. Flores (2022) 75 Cal.App.5th 495, 500–501 (Flores),
Division Three of this court held a remand for resentencing is unnecessary if
the reviewing court can determine beyond a reasonable doubt that the jury
would have found true at least one aggravating factor. (Accord, People v.
Salazar (2022) 80 Cal.App.5th 453, 465, review granted Oct. 12, 2022,
S275788.)
The court took a different approach in People v. Lopez (2022)
78 Cal.App.5th 459 (Lopez), where the Fourth Appellate District,
Division One concluded that a reviewing court must engage in a two-step
analysis to determine harmlessness. (Id. at p. 467, fn. 11.) In the first step,
the court asks whether it can conclude beyond a reasonable doubt that the
jury would have found true beyond a reasonable doubt all of the aggravating
factors on which the trial court relied. If the answer to that question is yes,
the error was harmless; if the answer is no, the court must proceed to the
second step, where the court considers whether it is reasonably probable that
the trial court would have imposed the upper terms “if it had recognized that
it could permissibly rely on only a single one of the aggravating factors, a few
of the aggravating factors, or none of the aggravating factors, rather than all
of the factors on which it previously relied.”12 (Lopez, at p. 467, fn. 11.)
Other published decisions have agreed generally with the Lopez
12
approach, but stated the test differently. (See People v. Wandrey (2022)
36
In People v. Dunn (2022) 81 Cal.App.5th 394 (Dunn), review granted
October 12, 2022, S275655, the Fifth Appellate District adopted “a version of
the standard articulated in Lopez, modified to incorporate Watson in the first
step.” (Id. at p. 409.) Dunn described the standard for assessing prejudice as
follows: “The reviewing court determines (1)(a) beyond a reasonable doubt
whether the jury would have found one aggravating circumstance true
beyond a reasonable doubt and (1)(b) whether there is [no] reasonable
probability that the jury would [not] have found any remaining aggravating
circumstance(s) true beyond a reasonable doubt.[13] If all aggravating
circumstances relied upon by the trial court would have been proved to the
respective standards, any error was harmless. If not, the reviewing court
80 Cal.App.5th 962, 982, review granted Sept. 28, 2022, S275942 [court asks
whether it is “certain the jury would have found beyond a reasonable doubt
the aggravating circumstances relied on by the court and whether the trial
court would have exercised its discretion in the same way if it had been
aware of the statutory presumption in favor of the middle term”]; Zabelle,
supra, 80 Cal.App.5th at pp. 1111–1113 [court first considers under
Chapman v. California (1967) 386 U.S. 18 (Chapman) whether jury would
have found, applying beyond a reasonable doubt standard, at least one
aggravating factor true; then evaluates whether it is reasonably probable
that the trial court would have chosen a lesser sentence in the absence of the
error].)
13When first stating the test, Dunn describes step “(1)(b)” of the
standard as “whether there is a reasonable probability that the jury would
have found any remaining aggravating circumstance(s) true beyond a
reasonable doubt,” but later describes that step as whether there is “a
reasonable probability the jury would not have found the remaining
aggravating circumstance true beyond a reasonable doubt.” (Dunn, supra,
81 Cal.App.5th at p. 410.) The latter formulation is correct, as the question
under Watson is whether there is a reasonable probability of a result more
favorable to the defendant, not whether there is a reasonable probability that
the same, unfavorable result would be reached again. (Watson, supra,
46 Cal.2d at p. 836.)
37
moves to the second step of Lopez, (2) whether there is a reasonable
probability that the trial court would have imposed a sentence other than the
upper term in light of the aggravating circumstances provable from the
record as determined in the prior steps. If the answer is no, the error was
harmless. If the answer is yes, the reviewing court vacates the sentence and
remands for resentencing consistent with [Penal Code] section 1170,
subdivision (b).” (Dunn, at pp. 409–410, fn. omitted.)14
We need not choose amongst any of these tests, however, because we
conclude under any of them, apart from Flores, remand for resentencing is
required.15
14 In People v. Lewis (2023) 88 Cal.App.5th 1125, a majority opinion
from the Fourth Appellate District, Division Two proposed a two-step
analysis which asks (1) whether a defendant could still be lawfully sentenced
because the jury would have found at least one aggravating circumstance
true beyond a reasonable doubt, and if so, asks (2) whether the record clearly
indicates that the trial court would impose the same sentence under the new
law. (Id. at pp. 1137–1138; but see id. at pp. 1141–1142 (conc. opn. of
Raphael, J.) [expressing agreement with Lopez test and observing the
majority’s discussion of the second step was unnecessary because the
majority had correctly concluded the court was unable to conclude beyond a
reasonable doubt that a jury would find any of the three aggravating
factors].) In People v. Butler (2023) 89 Cal.App.5th 953, a different panel of
the same court agreed with and adopted the two-step method articulated in
Lopez, noting the discussion of the second step in Lewis was dicta. (Butler, at
p. 960, fn. 1.)
15For reasons explained by other courts, we decline to follow Flores.
(See Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11; Dunn, supra,
81 Cal.App.5th at p. 408.) We also note that in People v. Ross (2022)
86 Cal.App.5th 1346, 1354, review granted March 15, 2023, S278266, two of
the panel members who decided Flores concluded “[u]pon reflection” that “the
rationale for adding a state law harmless error component [is] both logical
and compelling.”
38
First, we conclude beyond a reasonable doubt that the jury would have
found, beyond a reasonable doubt, at least one of the aggravating factors
relied on by the trial court: that defendant abused a position of trust.
(Rule 4.421(a)(11).) We cannot, however, conclude the jury would have found
the other aggravating factors true beyond a reasonable doubt, even under the
more lenient Watson standard proposed in step 1(b) of the Dunn test. As our
Supreme Court explained in People v. Sandoval (2007) 41 Cal.4th 825, 840,
“to the extent a potential aggravating circumstance at issue in a particular
case rests on a somewhat vague or subjective standard, it may be difficult for
a reviewing court to conclude with confidence that, had the issue been
submitted to the jury, the jury would have assessed the facts in the same
manner as did the trial court.” Four of the five factors the trial court relied
on in this case—that the victims were “particularly vulnerable”
(rule 4.421(a)(3)); that defendant’s acts disclosed “a high degree of cruelty,
viciousness, or callousness” (rule 4.421(a)(1)); that the offenses involved
“planning” (rule 4.421(a)(8)); and that defendant engaged in “violent conduct
that indicates a serious danger to society” (rule 4.421(b)(1))—require “a
subjective assessment of the circumstances rather than a straightforward
finding of facts.” (Sandoval, at p. 840; see People v. Wandrey, supra,
80 Cal.App.5th at p. 983 [whether child molestation victim was “particularly
vulnerable” or whether the defendant’s offenses involved planning were
subjective factors]; People v. Ross, supra, 86 Cal.App.5th at p. 1355 [whether
victim was “particularly vulnerable” or crime involved acts disclosing “a high
degree of cruelty, viciousness, or callousness” would require court to speculate
that jury would have reached same conclusion as sentencing court].) In other
words, these factors are “not subject to clear standards,” and require “an
imprecise quantitative or comparative evaluation of the facts.” (Sandoval, at
39
p. 840.) In our view, there is a reasonable probability the jury would not have
found these aggravating factors true beyond a reasonable doubt.
It is also difficult to conclude on this record that a jury would have
found such aggravating factors beyond a reasonable doubt, given that
defendant might have employed a different trial strategy or presented
different evidence had he known the aggravating circumstances would be
presented to the trier of fact. (See Sandoval, supra, 41 Cal.4th at p. 840 [“a
reviewing court cannot always be confident that the factual record would
have been the same had aggravating circumstances been charged and tried to
the jury”]; Lopez, supra, 78 Cal.App.5th at p. 466 [court could not assess
whether jury would have found aggravating factors true beyond a reasonable
doubt since prior version of determinate sentencing law did not require
prosecution to present evidence related to those factors at trial].) For
example, at the time of his trial, defendant had no need to present evidence
to the jury regarding his low risk of recidivism or minimal prior criminal
history, but such evidence, reflected in his probation report, may have been
relevant to a determination whether he poses “a serious danger to society.”
(Rule 4.421(b)(1).)
Because we cannot determine with sufficient certainty that some of the
aggravating factors on which the trial court relied would have been found
true if submitted to the jury, we proceed to the second step of the prejudice
analysis. (See Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11; Dunn, supra,
81 Cal.App.5th at p. 410.) When explaining its reasons for imposing the
upper sentence, the trial court relied on the factors cited in the probation
report and acknowledged the mitigating factor of his minimal prior criminal
record. The court did not expressly weigh those factors. Further, the court
commented that a harsher sentence urged by the victims and others was “not
40
within the realm of possibility,” but also that “leniency, which is suggested on
all the letters in support of [defendant], is not contemplated by the statutory
framework in this particular case.” (Italics added.) Given these
circumstances, we believe there is a reasonable probability that the court
would have imposed a different sentence had it realized it could not rely on
some of the aggravating factors. Accordingly, we will remand the matter for
resentencing. We express no opinion as to how the trial court should exercise
its discretion on remand.16
III. DISPOSITION
We reverse the sentences and remand the matter to the trial court so
that it may resentence defendant consistent with Penal Code section 1170,
subdivision (b), as amended by Senate Bill 567. The judgment is otherwise
affirmed.
16 On remand, the trial court should allow the prosecution to elect (1) to
seek to prove aggravating factors beyond a reasonable doubt to a jury (or to
the court, if a jury is waived), or (2) to accept resentencing on the existing
record. (Lopez, supra, 78 Cal.App.5th at p. 469.)
41
MARGULIES, ACTING P. J.
WE CONCUR:
BANKE, J.
SWOPE, J.*
A164002
People v. Dare
 Judge of the San Mateo County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
42