People v. Aguilar CA4/3 ( 2023 )

Filed 6/21/23 P. v. Aguilar CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061323
v. (Super. Ct. No. 18CF1703)
ADRIAN AGUILAR, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Steven
D. Bromberg, Judge. Affirmed.
Thomas Owen, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal and Andrew
Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, Adrian Aguilar was convicted of two counts of
sexual intercourse with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a);
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counts 1 & 2) and two counts of committing a lewd act upon a child under the age of
14 years (§ 288, subd. (a); counts 3 & 4). The trial court imposed concurrent terms of
25 years to life on the two counts of sexual intercourse. As for the two counts of lewd
conduct, the court imposed and stayed six-year terms under section 654.
Aguilar’s convictions arose from incidents on two separate nights in which
19-year-old Aguilar came home after partying with friends, woke up his 10-year-old
stepsister C., sexually molested her, and told her not to tell anyone. More than a year
later, a social worker was investigating an allegation of sexual abuse made by C.’s
younger stepsister N. against their uncle. While this investigation was ongoing,
C. confided in their mother (Mother) what Aguilar had done to her. When Mother
confronted him, Aguilar denied C.’s accusations. However, when the police arrested
him, he confessed.
Aguilar contends the trial court committed prejudicial error by including
the following language in CALCRIM No. 358, an instruction addressing consideration of
a defendant’s out-of-court statements: “Consider with caution any statement made by the
defendant tending to show his[]guilt unless the statement was written or otherwise
recorded.” Because his confession was recorded, Aguilar asserts this language should
have been omitted from CALCRIM No. 358 because it implied the jury need not consider
his recorded statement with caution but should believe it. He asserts instructing the jury
with this language was “highly prejudicial” because he presented defense evidence and
argument his confession was coerced and false. Even assuming the trial court erred, an
issue we do not reach, we conclude any error was harmless.
1
Subsequent statutory references are to the Penal Code unless otherwise stated.
2
Aguilar also asserts the trial court committed prejudicial error by excluding
evidence he sought to present concerning the circumstances surrounding N.’s allegation
of sexual abuse by their uncle. We find no abuse of the court’s discretion as the jury
heard significant portions of the evidence the defense sought to admit on this issue. We
also reject Aguilar’s claim of cumulative error, and we affirm the judgment.
FACTS
I.
PROSECUTION EVIDENCE
A. Background
In 2017, Aguilar lived in a three-bedroom house with his Mother,
grandmother (Grandmother), stepsister C., and an aunt. Mother had shared custody of N.
and another daughter (stepsisters to Aguilar and C.), who lived with Mother part time.
Aguilar and Grandmother slept on a bunkbed in one of the bedrooms. For a
time, C. also slept in their bedroom, sleeping on the bunkbed’s trundle.
B. Aguilar Molests C.
In the spring of 2017, C. was 10 years old. On a Friday night around the
time of her spring break, C. was asleep in her bed when she heard Aguilar come into the
bedroom. Grandmother was away that weekend.
Aguilar had been out partying with friends. C. woke up as Aguilar
struggled to open the door and wobbled when he came into the room. Aguilar went to the
bathroom and changed his clothes. He returned to the bedroom and told C. to take off her
pajama bottoms and underwear. She complied. He pulled down his pants and got into
bed with her. After using his hands to spread her legs, he put his penis against her
vagina. After slight penetration, he thrusted for a few minutes. C. tried to wiggle away
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and asked him to stop. Aguilar responded, “‘Just wait a little more.’” Aguilar withdrew
his penis and masturbated. He told her not to tell anyone.
The next night, a nearly identical incident occurred. C. awoke to find
Aguilar had slid down her pajama bottoms and was on top of her in bed. Aguilar’s pants
were down as well. He put his penis inside her vagina and it hurt. Like the previous
night, C. tried to wiggle away and asked him to stop. Aguilar did not respond. After a
few minutes, he stopped. Again, he asked her not to tell anyone.
C. Disclosures
Sometime later, C. asked N. to tell her a secret. N. disclosed their uncle,
who had been staying at their house, had inappropriately touched her.
In June 2018, a social worker came to their house to investigate N.’s
allegation their uncle had molested her. After the social worker left, C. told Mother and
Grandmother what Aguilar had done to her. Mother confronted Aguilar with C.’s
accusations. He denied them and suggested Mother take C. to a doctor to confirm he had
not done anything to her.
When the social worker returned to their house about a week later, C. and
Mother told the social worker Aguilar had molested C. The social worker called the
police, who interviewed C. later that day. In her police interview, C. described the two
incidents with Aguilar that had occurred on consecutive nights in 2017.
D. Recorded Pretext Phone Call to Aguilar
After talking to C., police officers had Mother make a pretext phone call to
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Aguilar while he was at work. They had Mother use a ruse during the call. Although it
was not true, Mother told Aguilar she had taken C. to the doctor and the doctor said there
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The phone call was recorded, and the recording was played for the jury.
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were injuries to C.’s vaginal area that indicated someone had sex with her. When Mother
asked Aguilar what he had to say about the doctor’s findings, he responded he had
already told her and inquired what else she wanted him to say. Multiple times during the
nearly 20 minute phone call, Mother repeated the ruse and suggested Aguilar was using
drugs when the incidents occurred and may not remember what he did to his sister.
Aguilar repeatedly denied doing anything to C.
Mother urged Aguilar to tell her the truth. He replied she did not love him
and wanted to send him to jail. Twice she asked him if it happened one time or many,
and he responded he did not know and did not know anything about it. When asked a
third time, Aguilar replied, “I said to you I don’t remember.” Aguilar told Mother he did
not want to talk about it anymore and said he knew the police were going to arrest him.
Mother continued questioning Aguilar and tried to get him to confess to molesting C.; he
did not.
E. Aguilar’s Arrest and Statement to the Police
Hours after the pretext phone call, police officers arrested Aguilar when he
came home from work. Shortly after midnight, two officers questioned him in an
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interrogation room at the police station. During the interview, Aguilar was handcuffed
to the wall.
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After advising Aguilar of his Miranda rights, the officers urged him to be
honest with them. Initially, Aguilar told the officers he did not remember what happened
because he used to take Xanax pills, and when he did, he would sometimes blackout and
not remember what happened. He explained that about a year or two prior to his arrest,
he would take three to five Xanax pills at a time.
3
Aguilar’s interview was videotaped, and the video was played for the jury.
4
Miranda v. Arizona (1966) 384 U.S. 436.
5
When the officers questioned Aguilar about the incident with C., he
recounted he came home after taking pills and drinking with friends. He claimed he did
not remember what he said to his sister when he got home and did not know what
happened next. After the officers again urged him to be honest, Aguilar stated he
remembered waking up C. and having her take off her clothes. He admitted he proceeded
to put his penis inside her vagina but said he only put it in halfway because he did not
want her to scream or to cause her pain. He had intercourse with her for about 10
minutes. Aguilar asserted during this time she did not tell him to stop nor try to move
away from him.
Aguilar admitted the same thing occurred the next night when he came
home after drinking with friends and taking pills. He told the officers both nights he
pulled out and ejaculated on his shorts. He said both incidents occurred in the living
room, where C. was sleeping, and both nights he told her not to tell anyone. He
acknowledged he was 19 years old and C. was 10 years old when it happened.
F. C.’s CAST Interview
About five days after Aguilar’s arrest, C. was interviewed by a different
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social worker, who was a member of the child abuse services team (CAST). At the time
of her CAST interview, C. was 11 years old.
During the interview, C. described the two incidents with Aguilar. She said
both occurred about a year prior, around the time of her spring break from school, when
Grandmother was away. The first incident was on a Friday night when C. was sleeping
on the bunkbed’s trundle in the bedroom she shared with Aguilar and Grandmother. She
heard Aguilar come into the bedroom and then go to the bathroom. He woke her up and
told her to take off her pajama bottoms and underwear. She did so because she thought
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C.’s CAST interview was recorded, and the recording was played for the jury.
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he would get mad if she did not. He pulled down his pants and laid down on the bed with
her. C. said Aguilar put his penis in her vagina “a little bit.” She tried moving away
from him because she wanted him to stop. When he stopped, he pulled his pants back up
and went to his own bed. C. told the interviewer Aguilar did not masturbate afterwards
and never told her to keep it a secret.
C. said Aguilar went out with his friends again the next night. When he
came home, he was acting weird and almost tripped. She was in bed. Like the night
before, he told her to pull down her pants and he put his penis inside her “a little bit.”
She moved around and told him to stop. Eventually, he stopped. She pulled up her
pajamas, and he went to his bed. This time he told her not to tell anyone. C. explained
she thought he did it because he was on drugs.
C. said she told Mother what happened because “something similar
happened to [her] sister” with their uncle when he came to visit. C. informed the
interviewer N. had confided in her their uncle inserted his fingers in her vagina, and
C. had encouraged N. to tell Mother. After the social worker got involved because of the
incident involving N. and their uncle, C. decided it was time to tell Mother what Aguilar
had done to her.
G. C.’s Trial Testimony
C.’s testimony at trial was mostly consistent with her prior statements to the
police and to the social worker at her CAST interview. At trial, however, she could not
remember whether the second incident occurred the night after the first incident or
whether it occurred two or three months later. In her CAST interview, C. said Aguilar
did not masturbate after the incidents. But at trial, she testified he did. She explained she
did not tell the complete truth during her CAST interview because she was trying to
protect Aguilar. C. testified she finally disclosed to Mother what Aguilar did after she
saw something on the news, not because of N.’s disclosure about their uncle.
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II.
DEFENSE EVIDENCE
A. Aguilar’s Family
Grandmother testified she shared a bedroom with Aguilar but C. never slept
in their bedroom; C. and her sisters slept in the living room. Grandmother never saw
anything inappropriate between C. and Aguilar. Aguilar and C. had a good relationship
in 2017, and their relationship did not change between 2017 and 2018.
Aguilar’s female cousin moved in with the family sometime in 2017 and
was living there when he was arrested in 2018. During this time, C. slept on the bunk
bed in the living room. The cousin never saw anything inappropriate between Aguilar
and C. and did not notice any change in their relationship between 2017 and Aguilar’s
arrest in 2018. Aguilar had a good relationship with C. and his other stepsisters. She did
not believe the allegations against Aguilar.
B. Aguilar’s Testimony
Aguilar testified in his own defense and denied having any sexual contact
with C. He also denied ever taking Xanax or partying with friends and blacking out.
He testified C. never slept in the bedroom with him and Grandmother;
C. and his stepsisters slept on the bunkbed in the living room. One of his cousins moved
into the house in 2016 or early 2017 and slept in the bedroom he shared with
Grandmother. After that cousin moved out, his other cousin moved into the house in
2017 and slept in the bedroom he shared with Grandmother.
Aguilar felt neglected by Mother, who was not very loving toward him
when he was a child. He believed she did not care about him as she gave all of her
attention to his stepsisters. In the spring of 2017, Aguilar was depressed and had suicidal
thoughts. This continued through the time of his arrest in 2018.
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About two weeks prior to his arrest, Aguilar came home from work and
Mother confronted him with C.’s accusations. He denied doing anything to C. and
suggested Mother take C. to a doctor to confirm he had not.
The day of his arrest, Aguilar went to work at 5:00 a.m. and worked until
9:00 p.m. While he was at work, Mother called him (the pretext call). Although he
denied C.’s allegations, Mother did not believe him and kept repeating the same
questions. After the phone call, he felt frustrated, helpless, and emotional.
After he got home from work, two police officers arrived and arrested him.
They took him to the police station, where he was placed in an interview room and
handcuffed to a wall. He was scared and depressed and thought his life was over. In the
interview, he told the officers what they wanted to hear but what he said was not true.
DISCUSSION
I.
CALCRIM NO. 358
The trial court instructed the jury with CALCRIM No. 358 as follows:
“You have heard evidence that the defendant made oral statements before the trial/while
the court was not in session. You must decide whether the defendant made any of these
statements, in whole or in part. If you decide that the defendant made such statements,
consider the statements, along with all the other evidence, in reaching your verdict. It is
up to you to decide how much importance to give to the statements. [¶] Consider with
caution any statement made by the defendant tending to show his[]guilt unless the
statement was written or otherwise recorded.” (Italics added.)
Aguilar argues the court committed prejudicial error by instructing the jury
with the italicized language. He contends the implication of this language was that the
jury need not consider his recorded confession to the police with caution but should
instead believe it. He asserts this part of the instruction was “highly prejudicial in [his]
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case” because it undercut his defense argument his confession was coerced and false. We
disagree.
The language italicized above in CALCRIM No. 358 is a cautionary
instruction applicable when a witness testifies to an oral out-of-court statement by the
defendant that is used to show guilt. (People v. Diaz (2015) 60 Cal.4th 1176, 1186.) The
instruction “is concerned with the reliability and credibility of the witness who testifies
about the defendant’s statements” (id. at p. 1187) and is designed to aid the jury in
determining whether the statement was in fact made (id. at p. 1186). When the
defendant’s statements are recorded, the cautionary instruction is unnecessary. (People v.
Xiong (2020) 54 Cal.App.5th 1046, 1079-1080 [“cautionary instruction should not be
given ‘“‘if the oral admission was tape-recorded’”’” and the jury heard the recording].)
But the cautionary language may be appropriate if there is evidence the defendant made
oral out-of-court incriminating statements that were not recorded. (Id. at p. 1080.) A
trial judge does not have a duty to instruct with the italicized language sua sponte.
(People v. Diaz, supra, 60 Cal.4th at p. 1190.) Instead, the defense should “make the
strategic decision whether” to request the instruction because a defendant may not want
the instruction given in all situations, i.e., when a defendant’s statements include both
inculpatory and exculpatory elements. (Id. at p. 1193.)
Here, the jury heard evidence Aguilar made recorded and unrecorded
statements. His unrecorded statements included his commands to C. to take off her
pajama bottoms, to wait when she asked him to stop, and not to tell anyone afterwards.
Each of these unrecorded statements was inculpatory. Evidence was also presented
concerning unrecorded exculpatory statements he made to the social worker and Mother
when he denied C.’s allegations. As for his recorded statements, the jury heard the
recording of Aguilar’s confession to the police and the recording of his exculpatory
statements to Mother in the pretext phone call. In total, the jury received evidence of
both inculpatory and exculpatory statements by Aguilar, some of which were recorded
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and some were unrecorded but recounted by witnesses. Thus, the cautionary language
was applicable to some of Aguilar’s statements and it was a defense strategic decision
whether to request the cautionary language. (People v. Diaz, supra, 60 Cal.4th at
p. 1193; see also Bench Notes to CALCRIM No. 358 [“If the jury heard both inculpatory
and exculpatory . . . statements attributed to the defendant, give the [cautionary]
paragraph”].)
The appellate record does not disclose whether the defense requested the
court instruct the jury with this cautionary language in CALCRIM No. 358 or whether
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the court included the language in the absence of a defense objection. Because no
objection appears in the record, the Attorney General argues Aguilar has forfeited his
instructional error claim. Aguilar contends we should reach the merits of his claim under
section 1259, even in the absence of an objection, because the instructional error affected
his substantial rights. Alternatively, he asserts if his trial counsel either requested the
language or failed to object to it, his counsel rendered ineffective assistance, a violation
of his rights under the state and federal constitutions.
We need not resolve the issues of forfeiture, ineffective assistance of
counsel, nor whether the court erred by instructing the jury with the cautionary language
in CALRIM No. 358, as any purported error was harmless. We reject Aguilar’s
contentions the asserted instructional error requires reversal of his convictions without a
determination of prejudice or that prejudice must be assessed under the beyond a
reasonable doubt standard in Chapman v. California (1967) 386 U.S. 18. Contrary to
Aguilar’s assertions, the inclusion of the cautionary language in CALCRIM No. 358 did
not violate his federal constitutional right to due process or lower the prosecution’s
burden of proof. (See People v. Diaz, supra, 60 Cal.4th at p. 1195 [“Failure to give the
6
After multiple discussions between the court and counsel regarding the instructions to
be given the jury, defense counsel indicated he was satisfied with the instructions. There
was no discussion on the record concerning CALCRIM No. 358.
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cautionary instruction is not a violation of federal due process”]; People v. Xiong, supra,
54 Cal.App.5th at p. 1081 [instructing with the cautionary language in CALCRIM No.
358 did not violate due process].)
The California Supreme Court has explained the cautionary language in
CALCRIM No. 358 “does not conflict with the reasonable doubt instruction because the
two instructions serve distinct purposes and aid the jury in different ways. The
reasonable doubt instruction informs the jury that it must find the facts required for
conviction to be proved with the specified level of certainty before it may convict the
defendant. (CALCRIM No. 220.) The cautionary instruction, on the other hand, advises
jurors that in deciding whether to believe a witness’s testimony about the defendant’s
statements, they must exercise particular caution. The two instructions, together, inform
the jury that it must determine whether each of the elements of the crime has been proved
beyond a reasonable doubt, and that in making that determination it must exercise special
caution in considering one particular type of evidence. [¶] Furthermore, nothing in the
wording of the instructions would suggest to a jury that the cautionary instruction [in
CALCRIM No. 358] was meant to apply in lieu of—rather than in addition to—the
reasonable doubt instruction.” (People v. Diaz, supra, 60 Cal.4th at p. 1188.) Aguilar
does not contend the jury was misinstructed on the elements of the charged offenses or on
the prosecution’s burden to prove each element beyond a reasonable doubt. Moreover, it
is well-established, “‘Mere instructional error under state law regarding how the jury
should consider evidence does not violate the United States Constitution.’ [Citations].”
(People v. Xiong, supra, 54 Cal.App.5th at p. 1081.) Thus, the cautionary language in
CALCRIM No. 358, “given under the circumstances of this case and considered in the
context of the instructions as a whole,” did not so infect the trial as to constitute a due
process violation. (People v. Xiong, supra, 54 Cal.App.5th at p. 1081.)
We agree with the Attorney General any purported error in the court’s
instruction with CALCRIM No. 358 is reviewed for prejudice under the standard set forth
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in People v. Watson (1956) 46 Cal.2d 818. We examine whether it is reasonably
probable the jury would have reached a result more favorable to Aguilar if it had not been
instructed with the cautionary language. (Id. at pp. 835-836.) “[W]e ‘“focus[] not on
what a reasonable jury could do, but what such a jury is likely to have done in the absence
of the error under consideration.”’ [Citation.]” (People v. Xiong, supra, 54
Cal.App.5th at p. 1082.) “‘In making that evaluation, an appellate court may consider,
among other things, whether the evidence supporting the existing judgment is so
relatively strong, and the evidence supporting a different outcome is so comparatively
weak, that there is no reasonable probability the error of which the defendant complains
affected the result.’ [Citations.]” (People v. Beltran (2013) 56 Cal.4th 935, 956.)
Aguilar asserts “given the false confession defense [he] mounted here, the
instruction had the potential” to confuse the jury. He contends had the jury been properly
instructed and not received the cautionary language “telling the jury, effectively, that it
should believe the recorded confession, it was reasonably probable the jury would have
found [him] not guilty.” We disagree.
Evaluating the language of CALCRIM No. 358 in its entirety, we conclude
it is unlikely the jury would interpret the cautionary language in the manner suggested by
Aguilar. The cautionary language in CALCRIM No. 358 did not tell the jurors they must
believe his recorded statements were credible and true. The instruction told the jurors it
was up to them “to decide how much importance to give to the statements.” The
instruction, in its entirety, makes clear its purpose is to aid the jury in evaluating whether
Aguilar made a statement attributed to him.
Aguilar’s prejudice argument is premised on the cautionary language
causing the jury to accept his confession as true simply because it was recorded. But by
this logic, the jury would have equally accepted his recorded exculpatory statements to
Mother.
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The jury would have understood it needed to evaluate all of Aguilar’s
statements—his out-of-court recorded and unrecorded statements, as well as his in-court
testimony—and determine what was credible. Considering the instructions as a whole, it
is not reasonably likely the jury interpreted the cautionary language in CALCRIM
No. 358 to mean Aguilar’s recorded out-of-court incriminating statements must be
accepted as true and his exculpatory statements must be rejected. (See People v. Tran
(2022) 13 Cal.5th 1169, 1199 [“‘we consider the instructions as a whole to determine
whether there is a reasonable likelihood the jury was misled’”].) The court gave the jury
other instructions to guide it in its assessment of witness credibility and determining
whether statements, recorded or unrecorded, were credible and accurate. The jurors were
instructed they alone must judge the credibility or believability of the witnesses, the
factors to consider in evaluating the truth or accuracy of the witnesses’ testimonies
(CALCRIM Nos. 105, 200, 226), and how to evaluate conflicting evidence (CALCRIM
No. 302).
Given the overwhelming evidence of Aguilar’s guilt, it is unlikely the jury
would have rejected Aguilar’s confession but for the cautionary language in CALCRIM
No. 358. The descriptions of the incidents Aguilar provided in his confession were
consistent with C.’s testimony and her prior statements describing the two incidents.
Aguilar’s testimony the incidents never occurred and his confession was false had little
credibility as he refused to answer questions about his confession. On the record in this
case, it is not reasonably probable the jury would have reached a result more favorable to
Aguilar had the court omitted the cautionary language in CALCRIM No. 358.
Accordingly, any assumed error was harmless.
II.
EXCLUSION OF DEFENSE EVIDENCE
Aguilar contends the trial court committed prejudicial error by “excluding
evidence of the full allegations against [C.’s] uncle and surrounding circumstances.”
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(Capitalization and boldface omitted.) He asserts this evidence “would have shown how
[C.] could have gotten these ideas of molestation into her head, independent of actual
molestation by” him. We conclude there was no abuse of the trial court’s discretion.
A. Background
Prior to trial, Aguilar moved in limine to admit evidence concerning N.’s
disclosure their uncle molested her while staying at their house. Aguilar argued the
evidence was relevant to show why the social worker was at the home and provided a
potential motive for why C. made up the accusations against him. Defense counsel
explained the evidence was relevant to show C. was aware of N.’s accusation against
their uncle and it “could have planted the seed in her head that [Aguilar] did the same,
even if not true.” Defense counsel attached to his motion and filed under seal
confidential records concerning the social worker’s investigation of N.’s allegation.
The prosecution objected to the admission of this evidence, arguing it
should be excluded under Evidence Code section 352 because it would confuse the
issues, mislead the jury, and would bring in “the whole case” concerning N.’s allegations.
Defense counsel clarified he was not trying to open up the entire case concerning N.’s
allegation and did not plan on calling her as a witness. He explained he was seeking to
introduce evidence concerning C.’s possible state of mind through the social worker’s
testimony and what he was seeking to admit was “extremely limited.”
The trial court ruled the defense could present evidence the social worker
was at the house on an unrelated incident. But under Evidence Code section 352, the
court excluded other evidence relating to the social worker’s investigation of N.’s
accusations, explaining the evidence the defense sought to admit was “too speculative”
and would confuse the jury.
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B. Applicable Law
Under Evidence Code section 352, a trial court has broad discretion to
exclude relevant evidence “if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
“We review the trial court’s evidentiary decision for abuse of discretion, disturbing it
only if we conclude that the trial ‘“‘“‘court exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a manifest miscarriage of
justice.’”’”’ [Citation.]” (People v. Parker (2022) 13 Cal.5th 1, 53.) “[W]e review the
trial court’s ruling, ‘not the court’s reasoning and, if the ruling was correct on any
ground, we affirm.’ [Citations.]” (People v. Camacho (2022) 14 Cal.5th 77, 123.)
C. The Trial Court Did Not Abuse Its Discretion
Aguilar contends the court erred by excluding the evidence he sought to
admit concerning the social worker’s investigation of N.’s allegation against the girls’
uncle. He asserts Evidence Code section 352 was not a bar to admission because the
evidence was relevant and not overly prejudicial to the prosecution. He further argues
the error was prejudicial to him because he was unable to get into the similarities between
N.’s allegations against their uncle and C.’s accusations against him. Aguilar’s argument
is not persuasive as it overlooks the evidence on that subject admitted at trial.
Although the court excluded some evidence of the social worker’s
investigation of N.’s allegation when it ruled on the in limine motion prior to trial,
ultimately, the jury heard the fundamental pieces of evidence the defense sought to admit.
During the trial, Mother testified a social worker came to her house in June 2018 to talk
about an incident concerning N. and Mother’s brother (the girls’ uncle). The jury viewed
the recording of C.’s CAST interview, during which C. stated N. told her their uncle had
inserted his fingers in her vagina and the social worker got involved because of this
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incident. C. said she decided to tell Mother what Aguilar had done to her after the social
worker left their house. At trial, Mother testified at the time of the social worker’s
involvement, she was giving a lot of attention to N. because of N.’s allegations
concerning the girls’ uncle. Thus, contrary to Aguilar’s contention, the jury did hear
evidence suggesting how C. “could have gotten into her head ideas of molestations
without molestation actually occurring.” This evidence also showed C. had a motive for
making the accusations against Aguilar, as she saw N. getting a lot of attention from
Mother. Furthermore, the evidence indicated Mother had a motive in advocating for C.,
given social services involvement in the other investigation. Accordingly, we find no
abuse of the trial court’s discretion.
III.
CUMULATIVE ERROR
Aguilar contends the combination of the instructional and evidentiary errors
in his trial deprived him of his federal constitutional right to due process and the
cumulative prejudice of these errors warrants the reversal of his convictions. We
disagree.
“‘Under the cumulative error doctrine, the reviewing court must “review
each allegation and assess the cumulative effect of any errors to see if it is reasonably
probable the jury would have reached a result more favorable to defendant in their
absence.”’ [Citation.] ‘The “litmus test” for cumulative error “is whether defendant
received due process and a fair trial.”’ [Citation.]” (People v. Mireles (2018)
21 Cal.App.5th 237, 249.)
We have concluded there was no evidentiary error and assumed
instructional error for purposes of our analysis. Thus, there is no cumulative error effect
to assess. Nevertheless, even when considered together, Aguilar’s purported errors do
not rise to the level of prejudicial error. It is not reasonably probable the result of
Aguilar’s trial would have been different in their combined absence given the
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overwhelming evidence of his guilt. We conclude Aguilar received due process and a
fair trial and the cumulative effect of any errors does not rise to the level of prejudice
necessary to reverse Aguilar’s convictions.
DISPOSITION
The judgment is affirmed.
MOTOIKE, J.
WE CONCUR:
O’LEARY, P. J.
SANCHEZ, J.
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