People v. Kamson CA2/2 ( 2023 )

Filed 8/18/23 P. v. Kamson CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B319463
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA100507)
v.
ADETOKUNBO OLATUNDE
KAMSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Scott T. Millington, Judge. Affirmed.
Law Offices of Charles O. Agege and Charles O. Agege for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and David A. Voet, Deputy Attorney General,
for Plaintiff and Respondent.
******
Adetokunbo Olatunde Kamson (defendant) is a former
pediatrician who stands convicted of two felonies and a
misdemeanor after he sexually touched two young women—one a
then-current patient and one a former patient—during visits to a
medical clinic. He raises nearly a dozen challenges to his
convictions, some of which rest on fundamental
misunderstandings of the law. All of his arguments are
meritless. We accordingly affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In 2019, defendant was a pediatrician at a community
medical clinic in Inglewood, California, which provided services to
both children and adults.
A. Molestation of Jennifer M.
On April 24, 2019, Jennifer M. went to the clinic to talk to
defendant to see if he would consider hiring her as an extern at
the clinic as part of her medical assistant schooling, as she and
defendant had previously discussed. Jennifer was still a regular
patient of defendant’s, despite having recently turned 18.
Although Jennifer told the front desk her non-medical reason for
visiting, the medical staff still took her vitals and had her wait
for defendant in an exam room.
2
When defendant came into the exam room, Jennifer told
him that she had finished her classes and was ready to start an
externship. After discussing the details of the externship,
defendant asked Jennifer if she was feeling any pain or
discomfort, or experiencing headaches. He checked her eyes, ears
and mouth. He asked her to lay back on the exam table,
unbuttoned her jeans, and proceeded to put pressure on her
stomach and sides on the pretense of “checking [her] liver.”
Defendant then asked if Jennifer had ever performed a breast
exam on herself; when she said she had not, he said, “Let me
show you,” asked her to unclasp her bra, grabbed both of her bare
breasts with both of his hands, and then squeezed her breasts
and her nipples for approximately one minute. He made no
sounds while doing so. Defendant then asked Jennifer to remove
her jeans and pull down her underwear, and asked whether she
was menstruating or was sexually active. When she laid back
down with her legs dangling off the edge of the exam table,
defendant put on gloves and inserted his fingers into her vagina,
touching the sides of her vagina and then moving “in and out” for
approximately one minute; when his fingers started to “hurt”
Jennifer, she asked him to stop, but he persisted for another 10
seconds. Jennifer thought the entire examination was “odd,” but
she was confused because she trusted defendant as her doctor.
B. Molestation of Liset R.
Less than two months later, on June 13, 2019, Liset R.
went to the clinic because she was meeting with a doctor to get a
referral to an OB/GYN specialist and because her five-year-old
daughter needed a check-up. Defendant had been Liset’s doctor
until she turned 18, and had become Liset’s daughter’s doctor.
After clinic staff escorted Liset and her daughter to an exam
3
room, and after defendant spent 15 minutes examining the
daughter, defendant then asked Liset if she was pregnant; when
she said, “yes,” defendant asked if the baby’s father was the same
as her five year old’s father.
Defendant asked if he could see Liset’s stomach. When she
said, “yes,” he touched her stomach through the one-piece,
strapless romper she was wearing. He then asked, “May I?”;
when Liset nodded, defendant pulled the top portion of the
romper down to Liset’s waist, thereby exposing her breasts (as
she was not wearing a bra). Liset thought that defendant “was
trying to . . . examine” her. Defendant then started to touch her
breasts with his bare hands, pushing them up and then down as
well as pinching her nipples between his thumb and index finger.
While doing so, he commented that her nipples were “pointy.”
Defendant also smiled at Liset and made “sexual sound[ing]”
“moaning noises.” Seeing this, Liset’s daughter exclaimed, “Ew,
Mommy, why is he touching your chi-chis? That’s nasty.”
Defendant did not stop, but told the daughter, “It’s okay. I know
your mommy. I take good care of your mommy.” After 10 to 15
seconds of groping Liset’s breasts, defendant asked, “May I?” a
second time, and when she nodded, defendant slid one of his
hands inside her underwear; he was still not wearing gloves. He
touched her labia by moving his fingers in a circular motion, at
one point asking if she shaved her pubic hair. Defendant then
tried to penetrate her vagina with his finger, but she tightened
up her legs to prevent him from doing so. After 10 to 15 seconds,
defendant stopped and then turned to wash his hands. Liset was
“confused” about what had happened but “didn’t know what to
do.”
4
II. Procedural Background
On February 4, 2020, the People charged defendant with
(1) two felony counts of sexual battery by fraud (Pen. Code, §
243.4, subd. (c)),1 one for each victim; and (2) two felony counts of
sexual exploitation of a patient (Bus. & Prof. Code, § 729, subd.
(a)), one for each victim. The People subsequently filed an
amended information that alleged four factors “in aggravation”
that would support a high-term sentence.
The matter proceeded to a two-day jury trial in early March
2022. After the court granted an acquittal on the sexual
exploitation count against Liset (because she was no longer
defendant’s patient) and reduced the sexual exploitation count
against Jennifer to a misdemeanor, the jury returned guilty
verdicts for the remaining counts. Defendant waived his right to
a jury trial on the aggravating factors, and the trial court found
them to be true.
The trial court imposed a sentence of three years in prison,
comprised of a low-end sentence of two years on the sexual
battery by fraud count against Liset, followed by a consecutive
sentence of one year (calculated as one-third of the midterm,
three-year sentence) on the sexual battery by fraud count against
Jennifer. The court stayed the misdemeanor count under section
654.
Defendant filed this timely appeal.
DISCUSSION
Defendant raises nearly a dozen challenges (many with
sub-challenges) to his convictions. Once stripped of hyperbole
and an overuse of adverbs, his arguments fall into five categories.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
5
I. Sufficiency of the Evidence
Defendant argues that the People did not present sufficient
evidence at trial to support the jury’s verdicts, although his
challenge to the misdemeanor count is largely duplicative of the
felony counts insofar as it attacks only the specific intent element
common to all of those counts.
To prove sexual battery by fraud, the People must prove
that (1) the defendant touched an intimate part of the victim’s
body (which includes the groin, any “sexual organ,” or a woman’s
“breast”); (2) the touching was done for the specific “purpose of
sexual arousal, sexual gratification, or sexual abuse”; and (3) the
victim was not “[]conscious of the [sexual] nature of the act”
because of the fraudulent representation “that the touching
served a professional”—here, a medical—“purpose” when, in fact,
it did not. (§ 243.4, subds. (c), (f), (g)(1); CALCRIM No. 937;
People v. Pham (2009) 180 Cal.App.4th 919, 928 (Pham) [“The
unconsciousness requirement . . . simply requires proof the
defendant tricked the victim into submitting to the touching on
the pretext it served a professional purpose”].)
Our review of the sufficiency of the evidence is limited. We
only ask whether the record as a whole “‘“discloses substantial
evidence—that is, evidence which is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.”’” (People v.
Ghobrial (2018) 5 Cal.5th 250, 277.) In undertaking this inquiry,
we view the evidence in the light most favorable to the jury’s
verdict, which includes “‘resolv[ing] conflicting inferences’” and
credibility findings in favor of the verdict. (People v. Casares
(2016) 62 Cal.4th 808, 823, overruled on other grounds in People
6
v. Dalton (2019) 7 Cal.5th 166; see People v. Reed (2018) 4 Cal.5th
989, 1006.)
A. As to Jennifer M.
Sufficient evidence supports the jury’s verdict that
defendant committed sexual battery by fraud on Jennifer.
Jennifer testified that defendant touched her breasts as well as
her sexual organ. Circumstantial evidence also establishes that
defendant touched Jennifer for the specific purpose of sexual
arousal: Jennifer went to the clinic for a non-medical reason;
defendant, who is a pediatrician, had no medical reason to touch
Jennifer’s breasts and vagina; and the manner in which he
touched her is consistent with how consenting adults touch one
another for sexual purposes. (People v. Westerfield (2019) 6
Cal.5th 632, 713 [sufficient evidence standard is “‘the same in
cases in which the prosecution relie[d] mainly on circumstantial
evidence’”].) And Jennifer was not conscious of the sexual nature
of defendant’s touching because he implied—by virtue of the fact
that he was Jennifer’s doctor touching her in an examination
room at the clinic while sprinkling in medical-sounding questions
about breast exams, menstruation, and whether Jennifer was
sexually active—that his touching had a medical purpose when it
did not.
Defendant resists this conclusion with two arguments.
First, he argues that he did not moan as he groped her and that
Jennifer did not testify that his penis was erect while he was
touching Jennifer’s breasts and vagina. But neither audible nor
visual evidence of the defendant’s arousal is a required element
of this crime. (Accord, Pham, supra, 180 Cal.App.4th at p. 927
[upholding conviction when defendant exhibited a “professional
demeanor” while committing the battery and without any
7
evidence of an erection].) Second, he argues that because he put
on gloves before he penetrated Jennifer’s vagina with his fingers,
he is entitled to an acquittal, ignoring that the statute’s
definition of “‘touch[]’” includes touch “through the [perpetrator’s]
clothing.” (§ 243.4, subd. (f).) By defendant’s logic, a doctor
would be entitled to an acquittal of this crime if he wore a
condom when penetrating a patient with his penis. This is an
inane argument, and we reject it.2
Sufficient evidence also supports the jury’s verdict that
defendant committed sexual exploitation of Jennifer, which
occurs when a physician has “sexual contact with a patient”
“outside the scope of medical examination and treatment” “for the
purpose of sexual arousal, gratification, or abuse.” (Bus. & Prof.
Code, § 729, subds. (a), (b), (c)(3).) Jennifer was defendant’s
current patient, breast and pelvic exams are typically outside of
the scope of a pediatrician’s medical examination and treatment,
the touching departed from medical practice standards, and the
jury could reasonably infer that the touching occurred for the
purpose of defendant’s sexual gratification.
B. As to Liset R.
Sufficient evidence supports the jury’s verdict that
defendant committed sexual battery by fraud on Liset. Liset
testified that defendant touched her breasts as well as her groin.
Liset’s testimony that defendant was moaning in a sexual
manner constitutes particularly compelling evidence that he
touched her with the specific purpose of sexual arousal, especially
2 Because there is sufficient evidence that defendant acted
with the purpose of arousing himself, we need not confront
whether section 243.4, subdivision (c), also criminalizes touching
intended to arouse or abuse the victim.
8
when coupled with the evidence that Liset was no longer his
patient and she was in the exam room for defendant to examine
her daughter. And Liset was not conscious of the sexual nature of
defendant’s touching because he implied—by virtue of the fact
that he was asking her medical questions about her pregnancy in
an examination room at the clinic—that his touching had a
medical purpose when it did not.
Defendant resists this conclusion with two arguments.
First, he argues that the parties stipulated that his DNA
was recovered from Liset’s stomach hours after he examined her,
but that none of his DNA was recovered from her breasts or
vaginal area. From this, he argues that the there was no
evidence that he touched Liset’s breasts or vaginal area. But
there was: Liset testified that he touched her breasts and vaginal
area. Because a single witness’s testimony can establish a fact
unless it is “‘physically impossible or inherently improbable’”
(People v. Brown (2014) 59 Cal.4th 86, 106), Liset’s testimony was
sufficient. Defendant urges that we must disregard Liset’s
testimony because it is “inherently improbable” that a person can
touch something and not leave DNA, and because prosecutors
should not be able to do DNA testing (or, by extension,
fingerprint or other forensic testing) and then argue that a
negative result means anything other than an acquittal for the
defendant. Defendant cites no law to support his argument, and
we reject it as inconsistent with common practice and common
sense.
Second, defendant argues that there is insufficient evidence
to show that Liset was unconscious of the true nature of the
touching because (1) he repeatedly asked her, “May I?” before
touching her, he asked if he could “touch” her stomach rather
9
than “examine” it, and Liset did not come into the office with the
intent of having him examine her, which—in defendant’s view—
suggests a non-medical purpose for his touching (and hence no
false representation of a medical purpose); and (2) Liset tried to
clamp her legs together more tightly when defendant sought to
penetrate her vagina after first touching her breasts and labia.
But the fact that defendant asked, “May I?” before taking off the
upper half of Liset’s romper or putting his hands down her
underwear (or the fact that he said “touch” rather than
“examine”) does not negate the fact that he is a doctor, and her
former doctor, touching her after asking about her pregnancy
while in the exam room of a medical clinic. The fact that
defendant did not explicitly say, “I am doing this for a medical
reason,” is of no moment because juries may infer a defendant’s
representation of a medical purpose from the totality of the
surrounding circumstances. (People v. Icke (2017) 9 Cal.App.5th
138, 145, 147, 149 (Icke); Pham, supra, 180 Cal.App.4th at p. 926;
M.N. v. Morgan Hill Unified School Dist. (2018) 20 Cal.App.5th
607, 622 [as to specific intent element of sexual battery claims,
“‘“[i]ntent is rarely susceptible of direct proof”’”].) That Liset did
not walk into the examination room with the intent to get an
exam herself does not somehow preclude defendant from
subsequently and falsely representing that he wanted to examine
her for medical reasons: He asked her about her pregnancy and
touched her stomach, and these acts changed the nature of her
visit. And Liset’s act of preventing a further and more intrusive
battery by clamping her legs shut does not mean she was
unconscious of defendant’s non-medical purpose; a jury could just
as easily infer that she was not comfortable with a medical
examination going so far. Even if it did evince some awareness,
10
“the victim’s unconsciousness of the sexual nature of the act”
need not be “absolute”; it is enough that the victim is “confus[ed]”
(Icke, at p. 149; People v. Sommer (2021) 61 Cal.App.5th 696,
702), and that is precisely what Liset testified to being. Further,
even if Liset were fully aware of the sexual nature of defendant’s
touching at the time she clamped shut her legs, her awareness by
that time did not somehow erase the battery that had occurred
prior to that time when defendant aggressively groped her
breasts and touched her labia.
II. Admissibility of Defendant’s Pre-Arrest Statement
To Impeach
Defendant contends that the trial court erred in ruling that
the statement he made after being pulled over and questioned by
police on April 24, 2019 was still admissible to impeach him.
A. Pertinent facts
While police were interviewing Jennifer in the late
afternoon of April 24, 2019, she identified defendant driving away
from the clinic in his SUV. The officers interviewing her got into
their patrol car, followed defendant for half a block, and effected
a traffic stop using their lights and sirens even though they had
not observed any Vehicle Code violation. The officers asked
defendant to get out of his car, patted him down for weapons, told
him that they had a complaint from a patient and asked if he
would be willing to answer questions; they did not inform him he
was free to leave. Without giving him Miranda warnings, the
officers proceeded to talk to defendant about Jennifer’s
examination while they stood on the public sidewalk for
approximately 15 to 20 minutes, just before sunset. During this
conversation, defendant stated that he “checked [Jennifer] from
top to bottom,” including “check[ing] her skin for rashes,”
11
“conduct[ing] a breast exam,” “check[ing] her spleen,” and
“conduct[ing] a pelvic exam.” Although the officers were in
uniform and armed, they did not touch their guns, place
defendant in handcuffs, or otherwise use any force during this
conversation. After checking with his supervisor, one of the
officers then arrested defendant.
Prior to trial, defendant moved to suppress his statement
under Miranda v. Arizona (1966) 384 U.S. 436 and under due
process. After a suppression hearing at which one of the officers
testified, the court granted the motion, ruling that defendant had
been subjected to “custodial interrogation” without first being
advised of his Miranda rights. The court ruled that the People
could not use defendant’s statement in its case-in-chief, but could
use it to impeach defendant if he took the stand and testified
inconsistently. The court rejected defendant’s further argument
that the statement was involuntary (and hence also not
admissible to impeach), finding that the “totality of the
circumstances” showed defendant’s statement to be “voluntary.”
B. Analysis
Here, neither party is attacking the trial court’s ruling that
the police obtained defendant’s statement on April 24, 2019 in
violation of Miranda. When a statement is obtained in violation
of Miranda, the People may not use that statement in their case-
in-chief but may still use it to impeach the defendant should he
testify inconsistently during the trial. (People v. Nguyen (2015)
61 Cal.4th 1015, 1075 (Nguyen); People v. Peevy (1998) 17 Cal.4th
1184, 1188; Harris v. New York (1971) 401 U.S. 222, 225
(Harris).) Requiring non-Mirandized statements to be excluded
in the People’s case-in-chief but not for impeachment balances
the need to incentivize adherence to Miranda against the danger
12
that “‘police misconduct [will] become a shield for perjury.’”
(Nguyen, at p. 1076.) Of course, a non-Mirandized statement
may not be used to impeach if that statement is “involuntary”
within the meaning of the due process clause because involuntary
statements are inadmissible for all purposes. (People v. Case
(2018) 5 Cal.5th 1, 24; People v. Neal (2003) 31 Cal.4th 63, 85.) A
statement is involuntary under the due process clause “if official
coercion caused the defendant’s will to be overborn, such that the
resulting statement is not the product of ‘“‘“‘a rational intellect
and free will.’”’”’” (People v. Orozco (2019) 32 Cal.App.5th 802,
819; People v. McWhorter (2009) 47 Cal.4th 318, 346-347
(McWhorter).) We independently examine whether the totality of
the circumstances shows the statement to be involuntary.
(People v. Linton (2013) 56 Cal.4th 1146, 1176; People v. McCurdy
(2014) 59 Cal.4th 1063, 1086.)
We independently agree with the trial court that the
circumstances of the roadside interrogation did not overbear
defendant’s will and render his statement “involuntary.”3 He was
questioned on a public street by two or three officers for 15 to 20
minutes; they made no promises, they made no threats, they did
not lie to him or otherwise engage in any subterfuge. (See
McWhorter, supra, 47 Cal.4th at p. 347 [a statement “may be
found involuntary if extracted by threats or violence, obtained by
direct or implied promises, or secured by the exertion of improper
3 We reject the People’s argument that defendant waived this
issue by not taking the stand to testify. There are several cases
directly on point rejecting this exact argument (People v. Brown
(1996) 42 Cal.App.4th 461, 469-471 [collecting cases as well]), but
the People cite inapt precedent and relegate the applicable
precedent to a “but see” cite. This skirts dangerously close to the
line of being a misrepresentation of the law.
13
influence”].) First (and chiefly), defendant argues that his
statement was involuntary because he was subjected to “some
subtle psychological coercion.” This is the rationale Miranda
cites for requiring its warnings and excluding un-warned
statements in the prosecution’s case-in-chief; if subtle
psychological coercion were also enough to render a statement
involuntary under the due process clause, then statements
obtained in violation of Miranda would inevitably be subject to
exclusion for all purposes, including impeachment. Yet, as noted
above, that is not the law. Defendant cites United States v.
Eccles (9th Cir. 1988) 850 F.2d 1357 in support of his argument,
but the confession in that case was the product of police coercion
and manipulation—factors not present here. (Accord, United
States v. Barnett (D.Alaska 1992) 814 F.Supp. 1449, 1456
[distinguishing Eccles because police in Eccles “misled” the
defendant].) Second, defendant argues that his statement was
involuntary because he was “never told that he didn’t have to
answer questions” and was “never told that he was free to leave”;
these factors relate to the test for whether a Miranda warning is
necessary, not the test for whether a statement is involuntary.
(Schneckloth v. Bustamonte (1973) 412 U.S. 218, 246-247;
Berkemer v. McCarty (1984) 468 U.S. 420, 440.) Third, defendant
argues that the potential for his statements to be used for
impeachment had a “chilling effect” on his decision whether to
testify. At most, defendant was dissuaded from testifying
inconsistently with the statements he previously made to police.
(See Harris, supra, 401 U.S. 222 at p. 226 [“The shield provided
by Miranda cannot be perverted into a license to use perjury by
way of a defense, free from the risk of confrontation with prior
inconsistent utterances”].)
14
III. Evidentiary Issues
Defendant challenges two of the trial court’s evidentiary
rulings. We review those rulings for an abuse of discretion.
(People v. Pineda (2022) 13 Cal.5th 186, 222.)
A. Jennifer’s post-battery sexual intercourse with
her boyfriend
Defendant argues that the trial court abused its discretion
in not allowing him to elicit from Jennifer, on cross-examination,
that she had sex with her boyfriend during the six or seven hours
between the time defendant battered her on April 24, 2019 and
the time she called the police. Prior to trial, the trial court ruled
that defendant could elicit from Jennifer that she did not report
defendant’s conduct for many hours, but could not elicit evidence
of her sexual conduct with someone else unless Jennifer “state[d]
something that opens the door” during her testimony. At trial,
defendant’s lawyer told the court at a sidebar that he was “not
going to argue that there was a delay in the reporting [by
Jennifer] and therefore [jurors] shouldn’t believe what Jennifer
has to say.” Jennifer then testified, acknowledging that there
were several hours between the incident with defendant “in the
morning” and her reporting the incident to police in the late
afternoon of that day.
The trial court did not abuse its discretion in excluding
evidence of Jennifer’s sexual conduct with another man in this
sexual battery case. A court has the discretion to exclude
evidence if its “probative value is substantially outweighed by the
probability that its admission will . . . create substantial danger
of undue prejudice, of confusing the issues, or of misleading the
jury.” (Evid. Code, § 352.) Evidence that Jennifer had sex with
her boyfriend during the hours between the time of the crime and
15
the time of reporting the crime is of minimal probative value
because it does not tend to show, contrary to what defendant
suggests, that Jennifer was not battered. This evidence might
suggest to a jury that because Jennifer is sexually active, she
might be more likely to have consented to defendant’s sexual
contact, but this evidence confuses the issues because the crime
of sexual battery by fraud, by definition, reaches situations where
the issue is not consent but rather the defendant’s
misrepresentations to obtain that consent. And this evidence is
indisputably unduly prejudicial because the danger that a jury
may infer that Jennifer consented to the touching by defendant
because she is sexually active is the precise chain of reasoning—
namely, that a person who has consensual sexual contact with
one person is more likely to have consensual sexual contact with
others—our Legislature sought to foreclose by enacting rape
shield statutes. (Accord, Evid. Code, §§ 1103, subd. (c) & 782
[exclusion in criminal actions], 1106 & 783 [exclusion in civil
actions].)
On appeal, defendant argues that Jennifer’s sexual
encounter with her boyfriend is relevant to show that Jennifer
was not traumatized, and therefore was not a victim of sexual
battery by defendant at all, because, according to defendant, a
woman who has suffered a traumatizing event is thereafter
incapable of having consensual sex. Apart from constituting a
superlative example of offensive “mansplaining,” this argument is
also wrong: Whether or not Jennifer specifically identified any
trauma she suffered is not an element of the crime of sexual
battery by fraud (§ 243.4, subd. (c)). More to the point, this
evidence might have been probative for purposes of undermining
Jennifer’s credibility if she had testified she was greatly
16
traumatized by defendant’s battery, but she did not: Instead, the
officer who interviewed Jennifer when she reported the crime
testified that, although “kind of shaken up a little bit,” Jennifer
was otherwise “calm but nervous.” Given the very minimal
probative value of this evidence as compared with its high
potential to confuse the jury and unfairly malign Jennifer, the
trial court acted well within its discretion in excluding it.
B. Liset’s daughter’s statement
Defendant argues that the trial court erred in admitting
the statement by Liset’s daughter, “Ew, Mommy, why is he
touching your chi-chis? That’s nasty.” Specifically, defendant
urges that admission of this statement violates the hearsay rule.
He is wrong.
“Hearsay” is defined as “[(1)] a statement [(2)] made other
than by a witness while testifying at the hearing and [(3)] that is
offered to prove the truth of the matter stated.” (Evid. Code, §
1200, subd. (a).) So-called “multiple hearsay”—that is,
statements within statements—is admissible as long as each
layer “meets the requirements of an exception to the hearsay
rule.” (Id., § 1201.)
The trial court did not abuse its discretion in admitting
Liset’s testimony regarding her daughter’s remark. Her
daughter’s remark is admissible as an excited utterance because
it was the product of “‘the nervous excitement’” caused by
witnessing defendant’s sexual battery of her mother and made
“‘before there [was] time to contrive and misrepresent.’” (People
v. Poggi (1988) 45 Cal.3d 306, 318; Evid. Code, § 1240.) Indeed,
defendant does not dispute that the daughter’s statement is
admissible under the excited utterance exception to the hearsay
rule. Thus, there was no violation of the hearsay rule. On appeal
17
(as he did before the trial court), defendant urges that this is a
situation of “double hearsay” because Liset was relaying what her
daughter said in the examination room. But Liset was a “witness
. . . testifying at the [trial]” when she relayed her daughter’s
statement (cf. Evid. Code, § 1200, subd. (a)); accordingly, Liset’s
statements while testifying are not themselves hearsay and thus
not a “second layer” of hearsay. Indeed, if defendant were
correct, then no witness could ever relay an excited utterance (or,
frankly, any other statements they witnessed out of court); this is
most certainly not the law. (E.g., People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 415-416 [upholding admission of
witness testimony of another person’s out-of-court excited
utterance].)
IV. Prosecutorial Misconduct
Defendant next argues that he is entitled to reversal of his
convictions due to prosecutorial misconduct. Conduct by a
prosecutor may violate a defendant’s right to due process under
either the federal or state Constitutions. Conduct violates federal
due process if it “‘“‘infects the trial with such unfairness as to
make the conviction a denial of due process.’”’” (People v. Adams
(2014) 60 Cal.4th 541, 568.) Conduct violates state due process
“‘“‘only if it involves the use of deceptive or reprehensible
methods to attempt to persuade either the trial court or the
jury.’”’” (Ibid.) Prosecutorial misconduct violating these
standards in way that “irreparably damage[s]” a defendant’s
right to a fair trial warrants the grant of a mistrial, at least if a
mistrial is requested. (People v. Ayala (2000) 23 Cal.4th 225,
283-284 (Ayala); People v. Penunuri (2018) 5 Cal.5th 126, 149.)
We independently review whether a prosecutor’s conduct
constitutes misconduct (People v. Uribe (2011) 199 Cal.App.4th
18836, 860), but review a trial court’s decision whether to declare a
mistrial for an abuse of discretion (Ayala, at p. 283).
A. Questioning of Liset R.
Defendant effectively argues that the prosecutor committed
misconduct by asking questions of Liset that improperly
suggested defendant had sexually battered other patients.4 In an
attempt to show that Liset was not colluding with Jennifer in
falsely reporting sexual battery by defendant, the prosecutor
asked Liset the following question: “At the time that you were
telling [the clinic’s managing physician] what had just happened
to you, were you aware of a prior incident involving the
defendant?” At a sidebar, the prosecutor clarified that her
question was meant to elicit whether Liset knew of “the April
incident” with Jennifer, and the trial court told the prosecutor to
“clarify” her question. The prosecutor then asked Liset if she
“kn[e]w of” Jennifer on June 13, 2019 (the date Liset was
sexually battered), and she replied that she had found out about
Jennifer that day. At a second sidebar, defense counsel remarked
that he was “not claiming misconduct,” and the trial court urged
the prosecutor to rephrase the question again. The prosecutor
then asked, “[W]hen you were in the exam room,” “[d]id you know
of an incident [with] Jennifer M?” and Liset responded that she
did not.
4 Defendant seems to treat this as an evidentiary issue in his
brief. However, because he is attacking the prosecutor’s
questions (rather than the witness’s answers), and because
questions are not evidence, this is more properly examined as a
species of prosecutorial misconduct directed to the prosecutor’s
questioning.
19
This was not prosecutorial misconduct. Although a
prosecutor can commit misconduct by “ask[ing] questions she
knew called for inadmissible evidence” (People v. Seumanu (2015)
61 Cal.4th 1293, 1348), the prosecutor in this case did not do so.
The first question in this line of questioning sought to elicit “a
prior incident” (singular, not plural), and the prosecutor
explained she was trying to elicit whether Liset knew of the prior
incident involving Jennifer. To be sure, there was a second prior
incident—a sexual battery defendant committed in 1997 on a
patient—that the trial court had ruled was admissible only if
proven by the victim’s testimony and not through the resulting
misdemeanor conviction. But at the time the jury heard the
prosecutor’s question, the jury only knew about the April 2019
incident involving Jennifer—which is precisely what the
prosecutor rephrased her question to reference. Despite
defendant’s argument on appeal that the jury “clearly [was] left
to speculate as to what other incidents” involving defendant were
“floating out there,” there was no danger that the jury could have
thought there was some other incident, particularly in light of the
prosecutor’s subsequent, clarifying questions. Thus, there was no
misconduct. In his opening brief, defendant argues that the trial
court “should have declared a mistrial” following the prosecutor’s
question, but defendant forfeited this claim because he did not
move for a mistrial on these grounds. (People v. Carrasco (2014)
59 Cal.4th 924, 965; People v. Chatman (2006) 38 Cal.4th 344,
368 [“Defendant may not argue that the court should have
granted a mistrial he did not request”].) In his reply, defendant
counters that the trial court was required to sua sponte grant a
mistrial once the prosecutor made the argument; even if we
assume a trial court may in some circumstances have a sua
20
sponte duty to declare a mistrial, it need not do so where an
admonition or instruction can cure any prejudice (People v.
Harris (2013) 57 Cal.4th 804, 848), and that was most certainly
the case here.
B. The prosecutor’s opening statement
Defendant also argues that the prosecutor committed
misconduct during her opening statement. Specifically,
defendant cites the prosecutor’s statement describing that Liset
“talks to [the clinic’s supervising physician], explains what
happened. He asks her to fill out a patient complaint form, . . .
[s]he does, and the defendant is fired that day.” (Italics added.)
Defendant did not contemporaneously object. Instead, defendant
objected to the italicized portion only after the prosecutor finished
her opening statement and defendant delivered his. However,
the trial court agreed that the supervising physician’s act of
firing defendant was “irrelevant” to the pending charges and also,
“under [Evidence Code section] 352[,] its probative value is
outweighed by the prejudicial impact” because “it appears that
[the supervising physician] is making a determination that [the
battery] did, in fact, happen.” So the court immediately gave the
jury the following admonition: “If you recall at the beginning
before counsel made their opening statement, I advised you that
[those statements are] not evidence. The comment by [the
prosecutor] about the defendant being fired is irrelevant. You’re
to disregard it and not consider it for any purpose.”
There was no prosecutorial misconduct warranting relief on
appeal. A prosecutor’s remarks to the jury can constitute
prosecutorial misconduct if they create a “‘reasonable likelihood
[that] the jury understood or applied the complained-of comments
in an improper or erroneous manner.’” (People v. Brown (2003)
21
31 Cal.4th 518, 553.) That did not happen here. There had been
no pretrial ruling prohibiting mentioning of defendant’s
termination, so the prosecutor did not transgress a prior ruling of
the court. More to the point, once the trial court subsequently
determined that defendant’s firing was inadmissible, the court
told the jury the firing was “irrelevant,” and thus to be
“disregard[ed]” “and not consider[ed] . . . for any purpose.” When
a trial court gives such an admonition, our Supreme Court ruled
in People v. Bennett (2009) 45 Cal.4th 577, 595, “we assume the
jury followed the admonition and that prejudice was therefore
avoided.” Defendant urges that this assumption was rebutted,
but points to nothing in the record to support his position.
Defendant also urges that Bennett is no longer good law because
one of the cases Bennett cited was later overruled; however, the
proposition for which we cite Bennett remains good law. (Accord,
People v. Ramirez (2022) 13 Cal.5th 997, 1125 [applying this
principle].)
V. Ineffective Assistance of Counsel
Defendant lastly argues that his trial counsel was
constitutionally ineffective for three reasons. An attorney
provides constitutionally ineffective assistance if (1) his
representation was deficient, and (2) prejudice flows from that
deficient representation (because there is a reasonable possibility
that, absent the deficient performance, the outcome of the trial
would have been different). (Strickland v. Washington (1984) 466
U.S. 668, 687; People v. Mickel (2016) 2 Cal.5th 181, 198.) “On
direct appeal, a conviction will be reversed for ineffective
assistance only if (1) the record affirmatively discloses counsel
had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide
22
one, or (3) there simply could be no satisfactory explanation. All
other claims of ineffective assistance are more appropriately
resolved in a habeas corpus proceeding.” (People v. Mai (2013) 57
Cal.4th 986, 1009.) We independently examine whether counsel
was constitutionally ineffective. (People v. Mayfield (1993) 5
Cal.4th 142, 199.)
A. Cross-examination of Jennifer
Defendant argues that his trial counsel was
constitutionally ineffective because counsel’s cross-examination of
Jennifer was deficient in three respects. During her direct and
cross-examinations, Jennifer testified that (1) defendant did not
make any sounds while he groped her breasts, (2) her legs were
spread apart “a little bit” when they hung over the edge of the
examination table immediately before he penetrated her vagina
with his fingers, and (3) she did not discuss with defendant her
immunity to chicken pox or obtain paperwork for “blood work.”
In a recorded interview immediately after the incident, Jennifer
stated that (1) defendant told her, “Oh, you have to find bumps
on the sides,” while he was groping her breasts, (2) her legs were
“kind of spread apart” when they hung over the edge of the
examination table, and (3) she and defendant discussed her
immunity to chicken pox and blood work during the examination.
Defendant asserts that counsel’s failure to elicit these three
inconsistencies in Jennifer’s testimony constituted ineffective
assistance of counsel.
We independently conclude that defense counsel was not
constitutionally ineffective for not cross-examining Jennifer on
these three points because we can conceive of sound tactical
reasons for not doing so. As a threshold matter, “the manner of
cross-examination [is] within counsel’s discretion and rarely
23
implicate[s] ineffective assistance of counsel.” (People v.
McDermott (2002) 28 Cal.4th 946, 993.) Further, none of these
three points—individually or collectively—deals with the specific
sequence or type of touching defendant inflicted upon Jennifer;
on the issues of what defendant did to sexually batter her,
Jennifer’s testimony was internally consistent and showed
remarkable similarities to the sequence and type of touching by
which defendant sexually battered Liset. Counsel may have also
had tactical reasons not to raise each of these individual points.
Having Jennifer focus on what defendant was saying (or not
saying) while he was groping her would necessarily focus the
jury—and thereby take as a given—that defendant was, in fact,
groping her breasts, which was inconsistent with his “it never
happened” defense at trial. Indeed, eliciting that defendant told
Jennifer to “look for bumps on the sides” runs the danger of
reinforcing that defendant was trying to make it seem like this
was a medical examination when, in fact, it was not. The
“discrepancy” regarding how far apart Jennifer’s legs were does
not appear to be much of an inconsistency at all. And declining to
examine Jennifer regarding the discussion about chicken pox and
blood work makes sense because Jennifer’s medical report
memorializing that those topics were discussed was admitted into
evidence—and argued by defense counsel in closing argument;
counsel’s decision to focus on the report rather than have
Jennifer recount the details of the encounter one more time in
front of the jury was a reasonable tactical maneuver. Contrary to
what defendant asserts, these three points were neither “major
discrepancies” nor “material” “lie[s]” in Jennifer’s testimony.
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B. Stipulation
Defendant next argues that defense counsel was
constitutionally ineffective for stipulating that “defendant’s
alleged conduct toward both Jennifer M. and Liset R. are
represented departures from the medical practice standards,
medical conduct, and medical ethics.” Defendant is wrong.
Defense counsel made clear during trial that the theory of
defense was either that defendant did not touch the victims as
they testified or that defendant had a valid medical purpose for
doing so. Given this theory, the stipulation was a reasonable
tactical decision because it eliminated an issue that was
irrelevant to the defense theory and thus encouraged the jury to
focus on the issues that were critical to that theory. (People v.
Farwell (2018) 5 Cal.5th 295, 308 [the decision to stipulate is a
tactical one which “can serve the salutary goals of expediting and
simplifying proceedings, thus reducing the chance for
confusion”].) Defendant’s argument on appeal that defense
counsel should have pursued a wholly different defense theory
impermissibly second guesses trial counsel’s tactical decision and
is not a basis upon which to attack the convictions. (People v.
Scott (1997) 15 Cal.4th 1188, 1212 [hindsight may not be used to
second guess tactical decisions].) What is more, to the extent
defendant argues that counsel may never stipulate to the
existence of the facts underlying an element of an offense as a
tactical matter, he is simply wrong. (See People v. Freeman
(1994) 8 Cal.4th 450, 498.)
C. Recalling Veronica Romero as a defense witness
Defendant contends that defense counsel was
constitutionally ineffective for not recalling Veronica Romero
(Romero), one of the clinic’s medical assistants, as a defense
25
witness. (The prosecution had already called Romero as a
witness to testify on a different point.) In an earlier interview,
Romero indicated that she had “quickly” gone into the “patient
exam room” to hand defendant Jennifer’s “patient file”; that she
“did not notice or observe anything unusual” while in the room;
and that she overheard defendant asking Jennifer about whether
she had been vaccinated for chicken pox. Defendant argues that
calling Romero to testify to these facts would have shown
Jennifer’s testimony about the sexual battery to be false, such
that failing to call Romero as a witness constituted ineffective
assistance.
Defense counsel was not ineffective for not calling Romero
as a defense witness to impeach Jennifer’s testimony. In the
interview, Romero acknowledged that she was in the exam room
for “less than 1 minute,” and had no idea how long Jennifer had
been in the room before or after that “1 minute.” Based on what
Romero observed, the entire battery occurred after Romero left
(because finding defendant with his hands on Jennifer’s breasts
or his fingers inside her vagina would have qualified as
“unusual”), so defense counsel could have reasonably determined
that Romero’s testimony would have little, if any, impeachment
value. And although Romero heard defendant and Jennifer
discuss Jennifer’s chicken pox immunizations, defense counsel
introduced Jennifer’s medical records and, on the basis of those
records, argued to the jury in closing argument that Jennifer was
not being truthful because she could not recall discussing
immunizations when she testified; electing not to call Romero
just so she could repeat a fact that was elsewhere in evidence was
a reasonable tactical decision, particularly because the defense
26
strategy at trial was not to call any witnesses and instead to
point to deficiencies in the People’s case.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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