People v. Carrillo CA5 ( 2023 )

Filed 8/31/23 P. v. Carrillo CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082996
Plaintiff and Respondent,
(Super. Ct. No. CRF56188)
v.
ANTHONY VIDAL CARRILLO, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tuolumne County. Donald I.
Segerstrom, Jr., Judge.
Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally
Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Anthony Vidal Carrillo (appellant) molested two young girls in separate incidents.
A jury convicted him of two counts of committing a lewd act upon a child under the age
of 14 years. (Pen. Code, § 288, subd. (a).)1 The trial court sentenced him to eight years
in state prison.
On appeal, appellant claims the trial court erroneously excluded the details of a
prior report of sexual abuse by one of the victims, erred in admitting certain expert
testimony, committed instructional error, and abused its discretion in denying his request
to continue sentencing. We find no error. We affirm.
BACKGROUND
I. Procedural History
The Tuolumne County District Attorney’s Office filed a Second Amended
Information alleging appellant committed offenses involving two different victims: Jane
Doe 1, and Jane Doe 2.
As to Jane Doe 1, the People charged appellant with continuous sexual abuse of a
child under the age of 14 years (§ 288.5, subd. (a); count I); two counts of sexual
penetration of a child under 14 years of age and more than 10 years younger than the
perpetrator (§ 289, subd. (j); counts II and IV); and committing a lewd act upon a child
under the age of 14 years (§ 288, subd. (a); count III). Counts II, III, and IV were alleged
in the alternative to count I.
As to Jane Doe 2, the People charged appellant with committing a lewd act upon a
child under the age of 14 years (§ 288, subd. (a); count V) and sexual penetration of a
child under 14 years of age and more than 10 years younger than the perpetrator (§ 289,
subd. (j); count VI).
1 All further statutory references are to the Penal Code unless otherwise indicated.
2.
The jury found appellant guilty on counts III and V, not guilty on counts I and VI,
and deadlocked on counts II and IV.
II. Trial Testimony of Jane Doe 1
Jane Doe 1’s parents were close family friends with appellant and his wife. They
were members of the same church and socialized regularly. As a child, Jane Doe 1
referred to appellant and his wife as “Uncle” and “Aunt.” Appellant regularly babysat
Jane Doe 1 and her two brothers. Jane Doe 1’s mother estimated appellant babysat Jane
Doe 1 at his home about 30 times.
At the time of trial, Jane Doe 1 was 19 years old. She testified appellant began
sexually abusing her when she was six or seven years old. The molestation occurred
every time he babysat her. She could not recall exactly when the abuse ended, but knows
it stopped before her family moved when she was in fifth grade.
Jane Doe 1 recalled three specific instances of sexual abuse. The first instance
occurred when appellant was living in a cabin. He was babysitting Jane Doe 1 and her
brothers. That day, they walked with appellant to a nearby store to buy candy. When
they returned home, they began to watch television. Appellant was sitting in a chair and
pulled her up onto his lap and put a blanket over her lap. Appellant then pulled up her
skirt and rubbed her vagina, first over her underwear, then underneath. She could not
recall if appellant penetrated her with his fingers.
The second incident occurred after appellant moved to a condo. Jane Doe 1
testified she believed she was in first or second grade but was not certain. As with the
first incident, she was sitting on appellant’s lap covered by a blanket and watching
television with her brothers. Appellant put his fingers inside of her vagina. She told
appellant it hurt, and that she did not want him to do it anymore. Appellant told her he
would give her $10 if he could “go in further,” and she agreed. Appellant continued, but
it still hurt, so she told him to stop, which he did.
3.
The third incident also occurred in the condo. Jane Doe 1 could not remember
how old she was, but believed it happened sometime after the second incident. She
testified she went upstairs with appellant to the master bedroom. Appellant asked her to
help him go to the bathroom. He walked to the toilet, pulled down his pants, and put her
hand on his penis. Afterward, they both sat down on the bed. Appellant’s pants were
still down, and he asked her to rub him. She was nervous, but she trusted appellant, and
he told her that her pastors, parents, his wife, and God all said it was okay. He gave her
some lotion, and she put her hand on his penis and rubbed it.
Jane Doe 1 testified she did not disclose the molestation until she was older
because she was confused and did not want her parents to see her differently. She also
did not understand appellant’s conduct was wrong. She loved appellant and he continued
to do nice things for her, like buy her treats. She still saw him as her uncle.
In 2017, when Jane Doe 1 was 16 years old, a male friend requested they engage
in sexual acts. This gave her anxiety and caused flashbacks. While speaking to her close
female friend about the male friend’s request, she disclosed appellant’s abuse for the first
time.
The next day, while Jane Doe 1 was at church, her pastor called her into her office,
and told her that her friend had reported that she may have been molested. Jane Doe 1
began crying and told the pastor about appellant’s abuse. The pastor spoke with Jane
Doe 1’s parents, who contacted law enforcement the following day. Jane Doe 1 was
interviewed at her house by a sheriff’s deputy. Several months later, she gave a forensic
interview at the Tuolumne County District Attorney’s Office. She also met several times
with the prosecutors assigned to appellant’s case.
Jane Doe 1 testified she grew up around Jane Doe 2, who is a couple of years older
than she. They knew each other through church, and their parents were friends. She
never spoke with Jane Doe 2 about appellant’s sexual abuse. She did not learn of Jane
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Doe 2’s allegations against appellant until she was told by one of the assigned
prosecutors.
On cross-examination, the defense admitted the recording of a pretext phone call
Jane Doe 1 made to appellant with the assistance of law enforcement. During the call,
Jane Doe 1 repeatedly accused appellant of sexually abusing her. Appellant denied the
abuse, but apologized if he “ever did anything that made [her] uncomfortable.”
III. Trial Testimony of Jane Doe 2
Appellant was a close friend of Jane Doe 2’s parents when she was young.
Appellant would regularly come over to her house for “LAN parties,” where appellant,
Jane Doe 2’s father, and others would play video games.
Jane Doe 2 was 22 years old at the time of trial. She testified that during one of
the LAN parties, when she was around six years old, Jane Doe 2’s parents sent appellant
into her room to fix her computer. She was sitting on her bed and was getting ready to go
to sleep. When appellant entered, she started rushing at him to tickle him, and he would
grab her and tickle her, then let her go. Jane Doe 2 testified each time appellant grabbed
her, he would move his hand further under her clothing. She testified that the last time he
grabbed her, he put his hand under her underwear, and penetrated her vagina with his
fingers. Appellant suddenly dropped her when her mother came into the room. Jane
Doe 2 ran across the hall to the bathroom to urinate and felt a burning sensation.
Jane Doe 2 did not disclose appellant’s act of sexual abuse until she was older
because she was confused, did not understand what appellant had done was wrong, and
was worried she would not be believed.
When Jane Doe 2 was 15 years old, she went on a boating trip with her family,
appellant, and appellant’s wife. During the trip, she felt like appellant’s “eyes were on
[her] a lot,” and she overheard appellant or his wife say they thought she was a lesbian
because she had never had a boyfriend. She testified this caused memories of appellant’s
abuse to resurface.
5.
The following year, Jane Doe 2 began having an “emotional breakdown.” She
decided to tell her parents that appellant had sexually abused her. However, she asked
them not to call the police because she did not want to deal with the stress or subject her
family to it.
In 2017, when Jane Doe 2 was 19 years old, she joined the military and moved
across the country. The following year, her father sent her a news article stating
appellant had been arrested for sexual assault. She believed the unnamed victim in the
article was Jane Doe 1 based on an incident that occurred when she was six or seven
years old. Appellant was babysitting her and Jane Doe 1 at his cabin. She was sitting on
the couch watching television next to appellant, who had Jane Doe 1 on his lap
underneath a blanket. She saw appellant’s hand moving underneath the blanket near Jane
Doe 1’s crotch area. Appellant’s conduct made her uncomfortable, so she got up and left
the room. She never spoke to Jane Doe 1 about what she observed or told Jane Doe 1
about what appellant had done to her.
After reading the news article, Jane Doe 2 decided to disclose appellant’s sexual
abuse to law enforcement. She reported the incident to the authorities at her military base
and was interviewed by the Naval Criminal Investigative Service. She was subsequently
interviewed over the phone by members of the Tuolumne County Sherriff’s Office and
District Attorney’s Office.
IV. Expert Witnesses
A. People’s expert
Blake Carmichael, a clinical psychologist called by the People at trial, was
qualified as an expert in the area of child sexual abuse, including disclosure, memory,
and the effects of abuse on children. He testified that there are many misconceptions
about the behavior of victims of child sexual abuse. One misconception is that children
immediately report abuse. Most children delay reporting at least one year, and often
delay until adulthood.
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Another misconception is that sexual abuse is usually perpetrated by strangers.
Rather, most abuse is perpetrated by a person close to the victim. The closer the
relationship to the accuser, the longer the victim generally delays disclosure.
A third misconception is that child sexual abuse victims display a sad or angry
demeanor. Child victims often appear stoic or unaffected when discussing their abuse.
Carmichael testified that disclosure of sexual abuse is often a slow process, and it
is common for the child victim to initially give a brief description, then share more details
over time. Child victims tend to recall more specific details the closer in time the
disclosure is to the abuse. Recalling specific details of abuse that occurred long ago will
be more difficult, even if the abuse occurred multiple times.
Carmichael explained that “grooming” is the process by which a perpetrator gains
repeated access to a child victim then incorporates sexual contact into the relationship.
He testified that he has reviewed research regarding false allegations in the context of
child sexual abuse, and that “[t]ypically what’s reported is in the context of child custody
issues and child contact.”
B. Defense expert
Alex Yufik, a forensic psychologist called by the defense at trial, was qualified as
an expert in the field of memory. He testified that memories can easily be altered
because they are not stored like a video recording or photograph. Rather, memory is a
“reconstructive process,” meaning that when a person recalls an event, their memory is
reconstructed from fragments of previous memories, and is affected by their present
mental and emotional state.
Yufik explained that “memory corruption” is “the process by which an original
memory becomes contaminated.” Memories can be corrupted by exposure to post-
incident information or the passage of time. The corrupted memory will feel accurate
because the individual can no longer differentiate between the genuine memory and the
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corrupted information. A false memory can also be created by repeated exposure to post-
incident information.
V. Defense Case
A. Trial testimony of appellant
Appellant denied sexually abusing Jane Doe 1 or Jane Doe 2. He testified he only
babysat Jane Doe 1 and her siblings one time when his wife was not present. He never
babysat her when her brothers were not there. Jane Doe 1 often sat on his lap, but he
only recalled her sitting on his lap one time while at the condo.
Appellant recalled going into Jane Doe 2’s room once during a LAN party to set
up a computer for her father. While in the room he played with Jane Doe 2, picked her
up, and tickled her. He never touched her near her vagina.
B. Trial testimony of appellant’s wife
Appellant’s wife testified she used to be very close friends with Jane Doe 1’s
mother. Between 2007 and 2010, when they were living in the cabin, she and appellant
used to babysit Jane Doe 1 and her siblings about twice per month. They babysat less
frequently once they moved to the condo in 2010. They never babysat for Jane Doe 1
and Jane Doe 2 at the same time. She only recalled one instance when appellant babysat
Jane Doe 1 while she was not present. She never saw appellant do anything inappropriate
with Jane Doe 1. While it was common for Jane Doe 1 to sit on appellant’s lap, she
never saw appellant put a blanket over them.
C. Conditional examination
The defense introduced the conditional examination of a sheriff’s deputy who was
unavailable to testify at trial. The deputy interviewed Jane Doe 2 over the phone shortly
after she reported appellant’s abuse to law enforcement. During the interview, Jane
Doe 2 stated appellant touched her vagina when she was nine years old while appellant
was in her room fixing a computer. She stated appellant did not penetrate her vagina.
8.
DISCUSSION
I. The Trial Court did not Abuse its Discretion in Excluding the Details of Jane
Doe 1’s Prior Sexual Abuse Allegation Against a School Bus Driver. Any
Presumed Error was Harmless.
In 2007, when Jane Doe 1 was seven years old, she alleged that she was sexually
abused by a school bus driver. The People moved to exclude the allegation, and the issue
was extensively litigated. The trial court allowed the defense to elicit the fact of the
allegation and the circumstances of disclosure but excluded the underlying details of the
alleged abuse under Evidence Code section 352.
Appellant contends this ruling was an abuse of discretion because the evidence
was central to the defense theory that Jane Doe 1’s memory had become corrupted, and
that she conflated the abuse by the bus driver with her allegations against appellant. We
disagree. We conclude that the trial court acted within the scope of its broad discretion to
exclude evidence under Evidence Code section 352, and that any presumed error was
harmless.
A. In ruling on the admissibility of the bus driver allegation, the trial
court fashioned a remedy in accordance with Evidence Code
section 352 that addressed the competing interests of the parties.
The People filed a motion in limine to exclude a 2007 allegation by Jane Doe 1
that a school bus driver sexually abused her. She made the allegation when she was
seven years old and in second grade. The sexual conduct began when she was in
kindergarten. According to the People, the bus driver was terminated from the school
district, but the allegations were deemed “unsubstantiated” by law enforcement and no
charges were filed. Defense counsel represented it obtained a copy of a police report of
the investigation, which stated Jane Doe 1 reported the bus driver had her sit on his lap,
touched her vagina, and asked her to touch his penis.
The People argued the prior allegation should be excluded under Evidence Code
section 352 because it would necessitate additional evidence to determine whether the
9.
allegations were true or false, resulting in a “ ‘trial within a trial.’ ” Defense counsel
responded that the allegation was relevant regardless of its truth, and that the defense was
“willing to live with the answer provided by the witnesses.” Defense counsel argued that
if Jane Doe 1 testified the allegation was false, it would be relevant to her credibility
because it showed she was willing to lie about being sexually abused; if she testified the
allegation was true, it showed she was able to promptly report sexual abuse, negating the
People’s need for an expert to explain delayed reporting; and if she was unable to recall
the allegation, it was relevant to show her memory of events occurring during that time
was faulty.
The issue was repeatedly litigated by the parties, both before and during trial. The
trial court adjusted its ruling several times as additional evidence was presented.
Ultimately, the court ruled the defense was allowed to introduce evidence of when, how,
and where Jane Doe 1 first disclosed the bus driver incident; that she was interviewed by
law enforcement; that the accused was a bus driver; and that she alleged “inappropriate
touching.” However, the underlying facts of the allegation were excluded.
At trial, defense counsel presented Yufik with a hypothetical mirroring Jane
Doe 1’s allegations of sexual abuse. Specifically, defense counsel asked him to consider
a seven year old who promptly reports an incident of sexual abuse, then 10 years later
alleges a different person abused her around the same time as the first allegation of abuse.
Yufik opined that the victim could have conflated details from the two incidents,
combining them into an amalgamated version of what occurred.
Following Yufik’s testimony, the defense renewed its request to introduce the
details of the bus driver allegation, arguing that the details were highly relevant in light of
Yufik’s testimony that Jane Doe 1 may have conflated two different events. The trial
court rejected this request, stating it had “fashioned a remedy to allow” the jury to learn
of the fact of the bus driver allegation and the circumstances under which it was made.
10.
Explaining its reasoning for excluding the underlying details of the bus driver allegation,
the court stated:
“[U]nder [Evidence Code section] 352, the consumption of time
here, and the risk of confusing the jury as to what the issue is in this case—
because the issue in this case is not whether there was an allegation in 2007
or whether—or whether it was true or not.
“You still have the testimony of [] Dr. Yufik. You still have the fact
that—you can still argue to the jury that something happened in 2007 and
she’s confusing it.”
On cross-examination, Jane Doe 1 agreed she made an accusation against the bus
driver that was “similar” to her accusations against appellant. She clarified that the two
accusations were “completely separate” in her memory.
During closing argument, defense counsel argued to the jury: “It doesn’t matter to
the Defense’s case whether … that accusation was true or false. If it’s true, then we have
memory corruption, right? Because now here’s an accusation that you don’t know the
specifics of. If it’s false, you have a girl who made false accusations.”
Appellant now argues the trial court abused its discretion because the details of the
bus driver incident were highly relevant, and their exclusion undermined the core defense
argument that Jane Doe 1’s memory was unreliable.
B. Standard of review
Evidence Code section 352 allows a trial court to “exclude 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.” The trial court’s exercise of
discretion under Evidence Code section 352 will not be disturbed on appeal absent a clear
abuse of discretion. (People v. Karis (1988) 46 Cal.3d 612, 637.)
“The weighing process under [Evidence Code] section 352 depends upon the trial
court’s consideration of the unique facts and issues of each case, rather than upon the
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mechanical application of automatic rules. [Citations.] We will not overturn or disturb a
trial court’s exercise of its discretion under [Evidence Code] section 352 in the absence of
manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and
patently absurd.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
C. Exclusion of the details of the bus driver allegation was not an abuse of
discretion.
The record demonstrates the trial court worked extensively with the parties to
fashion an evidentiary ruling that balanced their competing interests. But the most
significant factor in the trial court’s analysis was its concern that admission of the details
of the bus driver allegation would necessitate the undue consumption of time and might
confuse the jurors and distract them from the ultimate issue of appellant’s guilt. In
explaining its ruling, the trial court reasoned that while some aspects of the bus driver
allegation would be admissible, “[w]e are not going to try … the bus driver, case. We are
here on [appellant’s] case, and we’re going to try [appellant’s] case.”
The trial court’s concerns regarding undue consumption of time and juror
confusion were reasonable. Appellant’s trial involved two victims who independently
reported that appellant sexually abused them. Their testimony included descriptions of
numerous incidents of sexual abuse spanning years. The trial court was justifiably
concerned that the addition of an uncharged, unsubstantiated allegation against a third
party would have required additional witnesses, testimony, and evidence, further
complicating an already lengthy and complex trial.
However, the trial court recognized that the fact of the allegation was relevant to
the defense’s case.2 For this reason, it allowed the jury to hear when, where, and how the
allegation was disclosed, and that it involved some form of sexual contact. While the
2 We need not address respondent’s contention that the bus driver allegation would
have been relevant only if it was shown that the allegation was false. Appellant contends
the prior allegation is relevant because it impacted her memory, not because it reflects on
her capacity for truthfulness.
12.
specific nature of the contact was not revealed, the jury learned that Jane Doe 1’s
allegation against the bus driver was “similar” to her allegations against appellant.
Given the latitude the defense was given to explore the bus driver allegation
during trial, we are unpersuaded that the trial court’s ruling unfairly limited its memory
corruption defense. Defense counsel was allowed to ask Yufik a hypothetical question
mirroring Jane Doe 1’s allegations, and Yufik explained that her memory may have
become corrupted or conflated due to the bus driver incident. Based on this hypothetical
and the evidence admitted a trial, defense counsel was able to argue during closing that
the bus driver allegation resulted in memory corruption.
Appellant also argues that a juror question asking if they would learn the details of
the bus driver allegation shows that said details were highly probative. After Yufik
testified, a juror submitted the following question: “Will we get the details about the
abuse of [Jane Doe 1] w/the bus driver so we can compare that to see if her memory was
corrupt? i.e. see if they are similar.”3 Appellant provides no authority that a juror
question is relevant to a trial court’s Evidence Code section 352 analysis. In any event,
the question highlights the trial court’s concern that admission of the details of the bus
driver allegation would distract the jury from the ultimate question of guilt, causing them
to focus unnecessarily on the details of an uncharged, unsubstantiated allegation.
Evidence Code section 352 vests a trial court with broad discretion, particularly on
the admission of collateral matters pertaining to witness credibility. (People v. Price
(1991) 1 Cal.4th 324, 412 [a “trial court has discretion to exclude impeachment evidence
… if it is collateral, cumulative, confusing, or misleading”]; People v. Mills (2010) 48
Cal.4th 158, 195 [a trial court has “broad power to control the presentation of proposed
impeachment evidence”].) Here, the trial court was faced with a complicated, nuanced
evidentiary issue. After extensive litigation and numerous hearings, the trial court
3 The trial court allowed jurors to submit written questions for witnesses. (See Cal.
Rules of Court, rule 2.1033.)
13.
concluded excluding the details of the bus driver allegation was warranted to avoid the
undue consumption of time and confusing or misleading the jury. On this record, we
cannot conclude that this ruling was “arbitrary, capricious and patently absurd.” (People
v. Jennings, supra, 81 Cal.App.4th at p. 1314.) Accordingly, our review for an abuse of
discretion reveals the trial court did not err, and this claim lacks merit.
D. Harmless error
Even assuming the trial court erred, any presumed error was harmless. Appellant
contends the error is subject to the more stringent “beyond a reasonable doubt” standard
for federal constitutional error set forth in Chapman v. California (1967) 386 U.S. 18, 24
(Chapman). He argues the exclusion of the underlying details of the bus driver allegation
violated his Sixth and Fourteenth Amendment rights to present a complete defense and to
a fair trial. We disagree. As our high court has explained, “As a general matter, the
ordinary rules of evidence do not impermissibly infringe on the accused’s right to present
a defense. Courts retain, moreover, a traditional and intrinsic power to exercise
discretion to control the admission of evidence in the interests of orderly procedure and
the avoidance of prejudice.” (People v. Hall (1986) 41 Cal.3d 826, 834; see also People
v. Jennings (1991) 53 Cal.3d 334, 372.) Where, as here, the alleged error involves the
misapplication of “Evidence Code section 352 to exclude defense evidence … the
applicable standard of prejudice is that for state law error.” (People v. Cudjo (1993) 6
Cal.4th 585, 611.) Accordingly, we apply the standard of review set forth in People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson). Under Watson, reversal is not required
unless it is reasonably probable the appellant would have obtained a more favorable
result had the error not occurred. (Ibid.)
In assessing prejudice under Watson, “an appellate court may consider ‘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.’ ” (People v.
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Rogers (2006) 39 Cal.4th 826, 870.) Here, the evidence establishing appellant’s guilt
was strong and compelling. Two victims testified appellant sexually abused them in
separate, unrelated incidents. Their testimony at trial was clear, coherent, and logical.
Jane Doe 1, who had no motive to fabricate her allegations, reported appellant’s abuse to
law enforcement without any knowledge that appellant had abused Jane Doe 2. Jane
Doe 2, who also had no motive to lie, reported appellant’s abuse to her parents before she
discovered appellant had abused Jane Doe 1. The independent nature of each allegation
serves as corroboration for the other. Moreover, as appellant notes, his primary defense
at trial was that the victims’ memories had become corrupted and were unreliable. The
jury’s verdict shows they rejected this defense.
Appellant suggests the jury’s not guilty verdicts in counts I and VI and deadlock
on counts II and IV shows it found the prosecution’s case “less than overwhelming.” He
characterizes the trial as a “credibility contest,” and noted that the victims provided
inconsistent statements about certain details. We reject this characterization. The verdict
demonstrates the jury may have harbored some doubt as to the nature and extent of the
charged sexual abuse, but it concluded beyond a reasonable doubt that appellant sexually
abused both victims. While there was no physical evidence corroborating the victims’
testimony, they each independently accused appellant of sexual abuse. Moreover, Jane
Doe 2 testified that she saw appellant touch Jane Doe 1’s crotch area while sitting on the
couch, corroborating her allegations of abuse. Finally, while we recognize there were
inconsistencies in the numerous statements given by each victim, these inconsistencies
were thoroughly litigated at trial. The jury nonetheless found the victims credible, and
that finding was supported by the record. Conversely, the verdict demonstrates the jury
rejected appellant’s testimony that he did not abuse the victims.
Considering the strength of the evidence of guilt, and that appellant was still able
to meaningfully raise his defense of memory corruption, we conclude it was not
15.
reasonably probable that admission of the underlying details of the bus driver allegation
would have impacted the verdict, and any presumed error was harmless.
II. The People’s Expert did not Relate Inadmissible Statistical Evidence or
Profile Evidence. Any Presumed Error was Harmless.
Appellant contends Carmichael related improper statistical evidence about delayed
reporting, the demeanor of sexual abuse victims, and false allegations, and that such
testimony prevented the jury from correctly weighing the evidence of guilt. He also
argues Carmichael provided inadmissible profile evidence by describing grooming
behavior in a manner consistent with appellant’s conduct. We conclude Carmichael’s
testimony was proper, and any presumed error was harmless.
A. Standard of review
“The trial court has broad discretion in deciding whether to admit or exclude
expert testimony [citation], and its decision as to whether expert testimony meets the
standard for admissibility is subject to review for abuse of discretion.” (People v.
McDowell (2012) 54 Cal.4th 395, 426.)
B. Statistical evidence
1. Background
Addressing misconceptions regarding delayed reporting, Carmichael testified that
research shows 50 to 75 percent of child sexual abuse victims do not report within the
first year of being abused. He concluded that “it’s just not true that most kids tell right
away or quickly. Some do, but most do not.” He testified the research shows some child
victims never do disclose, although the number is difficult to quantify. Other research
shows “upwards of 60 to 70 percent of kids don’t tell until after they turn 18.” He
explained this might be due to the victim having more independence, or distance from the
abuser.
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Later, addressing the misconception that child sexual abuse victims will appear
sad or angry, Carmichael explained one study shows 70 to 75 percent of kids who talk
about their abuse “may appear stoic and unaffected.”
When asked about false allegations of child sexual abuse, Carmichael testified that
he has reviewed research in the area. He explained that reviewing such research is
necessary because it is “important to understand that people do lie.” When asked if there
are “certain dynamics” present in the research, he explained, “Typically what’s reported
is in the context of child custody issues and child contact. And that research is—shares
that adults are making a greater number of those allegations as opposed to the child. But
that’s a general overview of that body of research.”
2. We decline to find forfeiture.
As a threshold matter, respondent contends appellant forfeited the instant claim by
failing to object. We disagree. At the outset of Carmichael’s testimony, defense counsel
objected to Carmichael relating “percentages of children who don’t disclose or
percentages of accusations that are false.” We conclude this was sufficient to preserve
the issue for appeal. (See People v. Partida (2005) 37 Cal.4th 428, 434.)
3. The People’s expert did not relate improper statistical evidence or opine
the victims’ testimony was truthful.
It is well established in California that expert testimony is admissible to identify
and explain common behaviors and reactions of sexually abused children, such as
delayed disclosure. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300–1301 (McAlpin);
People v. Sedano (2023) 88 Cal.App.5th 474, 479 (Sedano); People v. Lapenias (2021)
67 Cal.App.5th 162, 171 (Lapenias).) This is often referred to as expert testimony on
child sexual abuse accommodation syndrome (CSAAS). (See, e.g., Lapenias, supra, 67
Cal.App.5th at p. 166; Sedano, supra, 88 Cal.App.5th at pp. 477–478.) The purpose of
this testimony is to assist the jury by “dispelling commonly held myths or misconceptions
about child sexual abuse and aiding the jury in ‘evaluating the credibility of an alleged
17.
child victim of sexual abuse.’ ” (Sedano, supra, 88 Cal.App.5th at p. 479.) Such expert
testimony is admissible because it helps “to explain the emotional antecedents of abused
children’s seemingly self-impeaching behavior,” and to “rehabilitate [a complaining]
witness’s credibility when the defendant suggests that the child’s conduct after the
incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming
molestation.” (McAlpin, supra, 53 Cal.3d at pp. 1300–1301.)
However, expert testimony on child sexual abuse “is inadmissible to prove that the
complaining witness has in fact been sexually abused.” (McAlpin, supra, 53 Cal.3d at
p. 1300.) “An expert witness may not give an opinion as to whether another witness is
telling the truth, or whether the defendant is guilty.” (Lapenias, supra, 67 Cal.App.5th at
p. 176.) Ultimately, the expert testimony must not cross the “ ‘ “fine but essential” line
between an “opinion which would be truly helpful to the jury and that which merely
conveys a conclusion concerning [the] defendant’s legal guilt.” ’ ” (People v. Julian
(2019) 34 Cal.App.5th 878, 887 (Julian).)
This line may be crossed where an expert witness is permitted to testify, “either
qualitatively, or with specific statistics or percentages—to the infrequency with which
children make false allegations of sexual abuse.” (Sedano, supra, 88 Cal.App.5th at
p. 480.) For example, in Julian, the court held it was improper for the People’s expert to
opine that false allegations of child sexual abuse “ ‘happen very infrequently or rarely,’ ”
and that studies show a “ ‘one to six percent’ false allegation rate.” (Julian, supra, 34
Cal.App.5th at pp. 883–884, italics omitted.) The court explained that such evidence
“invited jurors to presume [the appellant] was guilty based on statistical probabilities, and
not decide the evidence properly introduced in the case.’ ” (Id. at p. 886.) Similarly, in
Lapenias, the court held it was error to admit expert testimony that it is “ ‘rare’ ” for
children to make false allegations of sexual abuse. (Lapenias, supra, 67 Cal.App.5th at
p. 179.) It reasoned that such testimony “violated the general rule that an expert may not
18.
give an opinion as to whether another witness is telling the truth or the defendant is
guilty.” (Ibid.)
Appellant contends that, as in Julian and Lapenias, the trial court erred in allowing
Carmichael to relate statistical evidence regarding victims of child sexual abuse. We
disagree. As we explained in Sedano, “Statistical probabilities are not inherently suspect
when it comes to explaining CSAAS. Though appropriately broached with caution …
statistics remain admissible if they merely educate the jury to counter ‘a specific “myth”
or “misconception” suggested by the evidence.’ ” (Sedano, supra, 88 Cal.App.5th at
p. 482, fn. omitted.) Carmichael related statistics from various studies regarding delayed
reporting of sexual abuse and the demeanor of child sexual abuse victims when
discussing the abuse. This provided empirical support for his expert opinion regarding
common myths and misconceptions about child sexual abuse. In other words, he used
statistics to explain the basis for his opinions. This “served the permissible purpose of
helping the jury evaluate [the victim’s] credibility, free of preconceived misconceptions,
while not relieving jurors of their ultimate duty to independently determine the
truthfulness of her testimony.” (Sedano, supra, 88 Cal.App.5th at p. 483.)
We are similarly unpersuaded that Carmichael’s discussion of studies involving
false allegations was improper. Carmichael informed the jury he was aware of research
on false allegations, that it is important to understand as an expert in this area that false
allegations do happen, and that false allegations are most prevalent in the context of child
custody disputes. At worst, this testimony was irrelevant to this case, which did not
involve a child custody dispute. But more significantly, Carmichael did not testify to the
frequency of false allegations generally, or opine that false allegations are rare.
To conclude, we reject appellant’s assertion that Carmichael’s use of statistics was
improper. His testimony stayed within the permissible bounds of expert testimony by
assisting the jury in evaluating the credibility of alleged child sexual assault victims
without conveying or implying that their claims are credible. Accordingly, the trial court
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did not abuse its discretion in admitting the challenged portions of Carmichael’s expert
testimony.
C. Profile evidence
1. Background
The prosecutor asked Carmichael to describe grooming in the context of child
sexual abuse. Carmichael testified that the “grooming process” is the manner in which a
perpetrator integrates sexual contact into the relationship with a child and maintains
“continued sexual access.” Grooming can occur in many ways. Sometimes the
perpetrator and the victim have a preexisting relationship, and sexual contact is
introduced through the slow escalation of physical touch. Often the perpetrator makes
overtures to the victim to keep the sexual abuse secret, warning that they may get in
trouble if they tell others. The perpetrator may also offer gifts or treats in exchange for
continued access or silence.
2. The claim is forfeited.
Respondent contends appellant’s claims regarding profile evidence were forfeited
for failure to object at trial. As to this claim, we agree. At trial, defense counsel initially
objected to Carmichael’s testimony regarding grooming, alleging it was outside of the
scope of his proffered expertise. He also argued, without specifying a basis, that
testimony about grooming was “too prejudicial” to go before the jury. However, he
requested the trial court allow him to voir dire Carmichael on the issue outside of the
presence of the jury, which the court granted. Following voir dire, defense counsel
stated, “I’m going to withdraw my objection.”
An appellant’s “ ‘ “failure to make a timely and specific objection” on the ground
asserted on appeal makes that ground not cognizable.’ ” (People v. Partida, supra, 37
Cal.4th at pp. 433–434.) Here, defense counsel did not object below on the ground that
Carmichael’s testimony constituted inadmissible profile evidence. In any event, he
ultimately withdrew his objections to the testimony. Accordingly, this claim is forfeited.
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3. The People’s expert did not relate profile evidence.
Appellant contends Carmichael’s description of grooming impermissibly
suggested he was guilty because he fit a certain profile. We reject this contention.
“A profile ordinarily constitutes a set of circumstances—some innocuous—
characteristic of certain crimes or criminals, said to comprise a typical pattern of
behavior. In profile testimony, the expert compares the behavior of the defendant to the
pattern or profile and concludes the defendant fits the profile.” (People v. Prince (2007)
40 Cal.4th 1179, 1226.) Profile evidence is not per se inadmissible but is “objectionable
when it is insufficiently probative because the conduct or matter that fits the profile is as
consistent with innocence as guilt.” (People v. Smith (2005) 35 Cal.4th 334, 358; People
v. Robbie (2001) 92 Cal.App.4th 1075, 1084–1085 (Robbie).)
For example, in Robbie, which appellant relies upon, a defendant charged with
sexual assault maintained he had consensual sex with the victim. (Robbie, supra, 92
Cal.App.4th at pp. 1079–1080.) A prosecution expert on sexual offenders opined that
many rapists employ minimal force, acting under a “ ‘cognitive distortion’ ” that the
encounter is consensual. (Id. at p. 1082.) In response to a hypothetical question
mirroring the defendant’s conduct, the expert opined it was consistent with “ ‘the most
prevalent type of behavior pattern that I have seen with sex offenders.’ ” (Id. at
pp. 1082–1083.) However, the expert acknowledged the behavior was “equally
consistent with consensual activity.” (Id. at p. 1083.) The appellate court concluded the
expert’s opinion constituted improper profile evidence because it invited the jury to
conclude the defendant was a sex offender if he engaged in conduct “consistent with both
innocent and illegal behavior.” (Id. at p. 1085.)
We conclude Robbie is inapplicable here. Carmichael did not “profile” appellant.
Specifically, he did not evaluate appellant’s conduct against a pattern or profile or opine
that appellant fit said pattern or profile. He did not refer to appellant at all, nor evaluate
any hypotheticals mirroring appellant or his alleged conduct. Carmichael merely
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provided the jurors with general information about the types of behaviors that often
precede sexual abuse and the common responses of victims to that behavior. Moreover,
unlike objectionable profile evidence, this description of grooming, the process by which
a perpetrator gains access to children for purposes of sexual abuse, is not behavior that is
as consistent with innocence as guilt.
Appellant claims that during closing argument the prosecutor urged the jurors to
apply Carmichael’s testimony about grooming as profile evidence. This is not supported
by the record. The prosecutor discussed grooming in the context of explaining why the
victims, children molested by a close adult friend, felt conflicted about appellant’s
conduct and delayed reporting. The prosecutor did not suggest the jury convict appellant
because he or his conduct fit a certain profile. Accordingly, this claim lacks merit.
D. Harmless error
Even assuming Carmichael’s testimony was improper, any presumed error was
harmless. We apply the Watson standard of review to the erroneous admission of expert
testimony. (People v. Prieto (2003) 30 Cal.4th 226, 247; see Lapenias, supra, 67
Cal.App.5th at p. 170; Robbie, supra, 92 Cal.App.4th at p. 1088.) For the reasons
discussed below, we see no basis to conclude the expert testimony at issue rendered
appellant’s trial “fundamentally unfair,” and therefore the Chapman standard for federal
constitutional error is inapplicable. (People v. Partida, supra, 37 Cal.4th at p. 439.)
Carmichael’s discussion of the areas challenged by appellant—statistics, false
reporting, and grooming—was only a small part of his testimony. “The jury was by no
means ‘bombarded’ ” with it. (Sedano, supra, 88 Cal.App.5th at p. 484; see Julian,
supra, 34 Cal.App.5th at p. 888 [“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.”].)
Moreover, the prosecutor did not return to this evidence during closing and argue
appellant was guilty based on statistical probabilities or because he fit a profile. He
merely reminded the jurors in general terms of the patterns of behavior explained by
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Carmichael and asked them not to discredit the victims because their behavior fit these
patterns. Given these considerations and the strong and compelling evidence of guilt, we
conclude there is no reasonable likelihood the challenged expert testimony impacted the
verdict, and any presumed error was harmless.
III. The Consciousness of Guilt Instruction was Supported by Substantial
Evidence. Any Presumed Error was Harmless.
The trial court instructed the jury with CALCRIM No. 362 (Consciousness of
Guilt: False Statements), based on appellant’s statement during a pretext call with Jane
Doe 1 that she asked to watch him urinate. Appellant contends this was error, claiming
he did not suspect he was under criminal investigation, and that the statement did not
relate to the charged crimes. We conclude the instruction was supported by substantial
evidence, and that any presumed error was harmless.
A. Background
During Jane Doe 1’s testimony, the defense admitted a recording of a pretext call
she made to appellant. At one point in the call, appellant stated, “I remember you asked
one time, if you could watch me go to the bathroom, but [my wife] was there.” Jane
Doe 1 testified this statement was not true.
At the jury instructions conference, the court noted that the People had requested
CALCRIM No. 362. The court stated it would give the instruction based on appellant’s
statement during the pretext call that Jane Doe 1 asked to watch him urinate. Defense
counsel argued the instruction should not be given because appellant did not make the
statement for self-protection, and it was not related to a charged crime. The court
responded appellant made the statement “when he was accused of having committed the
crime; so I think it is connected to the crime.”
The court instructed the jury with CALCRIM No. 362 as follows:
“If [appellant] made a false or misleading statement before this trial
relating to the charged crime, knowing the statement was false or intending
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to mislead, that conduct may show he was aware of his guilt of the crime
and you may consider it in determining his guilt.
“If you conclude that [appellant] made the statement, it is up to you
to decide its meaning and importance. However, evidence that [appellant]
made such a statement cannot prove guilt by itself.”
B. Standard of review
A trial court is obligated to instruct a jury on the general principles of law that are
raised by the evidence. (People v. Diaz (2015) 60 Cal.4th 1176, 1189.) Substantial
evidence must exist for a trial court to provide a particular jury instruction. (People v.
Cole (2004) 33 Cal.4th 1158, 1206.) In this context, “[a] trial court properly gives
consciousness of guilt instructions where there is some evidence in the record that, if
believed by the jury, would sufficiently support the inference suggested in the
instructions.” (People v. Bowman (2011) 202 Cal.App.4th 353, 366.)
We review a claim of instructional error de novo. (People v. Cole, supra, 33
Cal.4th at p. 1210.)
C. Instructional error did not occur.
Appellant initially asserts the evidence did not establish his statement that Jane
Doe 1 asked to watch him urinate was false. However, the falsity of the statement need
not be “conclusively established” before the consciousness of guilt instruction may be
given. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102.) Rather, “there need
only be some evidence in the record that, if believed by the jury, would sufficiently
support the suggested inference.” (Ibid.) This may be shown by any prosecution
evidence, including “the testimony of trustworthy witnesses.” (People v. Kimble (1988)
44 Cal.3d 480, 498.) Here, Jane Doe 1 testified appellant’s statement was false. For
purposes of substantial evidence, her testimony was sufficient to support giving the
instruction.
Appellant suggests the consciousness of guilt instruction is only warranted where
the speaker was aware that he or she was under investigation by law enforcement. We
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disagree that the instruction only applies in such limited circumstances. “The inference
of guilt comes from the fact that a falsehood was told in order to mislead the authorities
and avoid suspicion, not the time at which the statement was made.” (People v. White
(1995) 35 Cal.App.4th 758, 772; see In re M.S. (2019) 32 Cal.App.5th 1177, 1186
[inconsistent statements by juvenile to hospital personnel regarding death of her newborn
properly considered by juvenile court in determining guilt].) Here, appellant made the
statement at issue during a pretext call while being accused by Jane Doe 1 of sexual
abuse. He repeatedly told Jane Doe 1 that her accusations could “ruin [his] life,” and
stated the consequences could be “criminal.” A jury could conclude that he was aware a
criminal investigation might be forthcoming, and that Jane Doe 1 was likely to report
anything he said to law enforcement. Under these circumstances, a jury could reasonably
infer he made false statements to Jane Doe 1 to either try to stop her from reporting the
abuse to law enforcement, or to mislead authorities by providing an innocent explanation
for her accusations.
Finally, appellant argues the allegedly false statement was not related to the
charged crimes. However, the statement still involved conduct of a sexual nature, and
was related to her allegation that appellant had her hold his penis while he urinated.
Again, a jury could reasonably conclude the statement was part of his overall effort to
deflect blame for his actions, and suggest the victim remembered the incident incorrectly.
Accordingly, we conclude the consciousness of guilt instruction was supported by
substantial evidence, and the trial court did not err in giving it.
D. Harmless error
Even assuming the trial court erred in giving CALCRIM No. 362, we would not
find the error prejudicial. The parties agree, as do we, that the alleged instructional error
is subject to the Watson standard of review. (See People v. Guiton (1993) 4 Cal.4th
1116, 1129–1130.)
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CALCRIM No. 362 does not direct the jury to draw an adverse inference against
the defendant. (See People v. San Nicolas (2004) 34 Cal.4th 614, 666.) It merely
instructs the jury that if it finds the defendant made a false or misleading statement, it is
up to them “to decide its meaning and importance.” (CALCRIM No. 362.) Thus, if
CALCRIM No. 362 was not supported by substantial evidence, it was at worst irrelevant
or inapplicable, and the prejudicial effect was minimal. (See People v. Cross (2008) 45
Cal.4th 58, 67 [“[G]iving an irrelevant or inapplicable instruction is generally ‘ “only a
technical error which does not constitute ground for reversal.” ’ ”].)
Considering the nature of the alleged error in light of the strong and compelling
evidence of guilt, there is no basis to conclude the trial court giving CALCRIM No. 362
had any outcome on the verdict. Therefore, we conclude any presumed error was
harmless.
IV. The Trial Court did not Abuse its Discretion in Denying Appellant’s Motion
to Continue the Sentencing.
At sentencing, appellant moved for a continuance to investigate newly discovered
evidence in the probation report. In her victim impact statement, Jane Doe 1 stated she
had been receiving eye movement desensitization and reprocessing (EMDR) therapy.
Appellant contends the trial court abused its discretion in denying his motion to continue
sentencing to give him the opportunity to determine whether such therapy may have
impacted her memory. We conclude the trial court did not abuse its discretion.
A. Background
Jane Doe 1 submitted a victim impact statement at sentencing, which was attached
to the probation report. In the statement, she described the years of counseling she has
received to address appellant’s conduct. This description included the following
statement, “I need to continue my EMDR therapy to help me heal from the more
traumatic memories that still haunt me.”
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Appellant filed a motion to continue sentencing based on Jane Doe 1’s reference
to EMDR therapy. In the motion, defense counsel stated he first learned that Jane Doe 1
had been receiving EMDR therapy when he received the probation report five days
before sentencing, and that he could not have known about it earlier because Jane Doe 1
and her family were not cooperative with the defense. He claimed he did “cursory
research of EMDR therapy” and located a research article stating, “Taken as a whole, this
small body of work suggest[s] that eye movements do not reliably affect susceptibility to
misinformation, nor do they appear to enhance memory, but they do seem to increase
spontaneous false memories.” The article is by Dr. Elizabeth Loftus, whose research was
referenced by both experts during trial. Defense counsel did not identify the title of the
article or submit a copy to the court. He claimed he had reached out to Yufik and to
another expert about EMDR therapy but had not received a response. He also stated he
had done “other internet searches for EMDR and they are all similar regarding the danger
of creating false memories.” He requested a continuance to research EMDR therapy and
locate an expert who can provide evidence to make the necessary showing for a motion
for a new trial pursuant to section 1181, subdivision (8).
At the sentencing hearing, appellant’s counsel argued he needed time to consult
with an expert because “obviously false memories was the keystone of the defense in this
case.” The prosecutor stated he had briefly spoken with Jane Doe 1 and her mother, and
that he believes “there hasn’t been much, if any, of this EMDR therapy engaged.”
The trial court denied the motion to continue, stating:
“EMDR is—the Court is at least somewhat familiar—well, it stands
for Eye Movement Desensitization and Reprocessing Therapy. We could
engage in all kinds of speculation about what effect it could or couldn’t
have on memory.
“This trial was—as [defense counsel] points out, the defense all
involved memory. But I have no—I mean, to grant a continuance here
would be to speculate that there might be something there. And I don’t
think that that rises to the level that justifies continuing the sentencing for
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which all parties were given a significant amount of time to prepare and
have prepared quite exhaustively.
“And the Court is going to find that this is not good cause to
continue the sentencing, and the motion to continue will be denied.”
B. Standard of review
A motion for a new trial based on newly discovered evidence is governed by
section 1181, subdivision (8), which states:
“When new evidence is discovered material to the defendant, and which he
could not, with reasonable diligence, have discovered and produced at the
trial. When a motion for a new trial is made upon the ground of newly
discovered evidence, the defendant must produce at the hearing, in support
thereof, the affidavits of the witnesses by whom such evidence is expected
to be given, and if time is required by the defendant to procure such
affidavits, the court may postpone the hearing of the motion for such length
of time as, under all circumstances of the case, may seem reasonable.”
A continuance in a criminal matter “shall be granted only upon a showing of good
cause.” (§ 1050, subd. (e).) In the context of seeking additional time to develop a motion
for a new trial based on newly discovered evidence, the moving party “must show both
the materiality of the evidence necessitating the continuance and that such evidence could
be obtained within a reasonable time.” (People v. Beeler (1995) 9 Cal.4th 953, 1003.)
“The party challenging a ruling on a continuance bears the burden of establishing
an abuse of discretion, and an order denying a continuance is seldom successfully
attacked.” (People v. Beames (2007) 40 Cal.4th 907, 920.) “A reviewing court considers
the circumstances of each case and the reasons presented for the request to determine
whether a trial court’s denial of a continuance was so arbitrary as to deny due process.
[Citation.] Absent a showing of an abuse of discretion and prejudice, the trial court’s
denial does not warrant reversal.” (People v. Doolin (2009) 45 Cal.4th 390, 450.)
C. Denial of the motion to continue sentencing was not error.
We conclude the trial court’s denial of appellant’s motion to continue was not an
abuse of discretion. The defense provided the court with a quotation from a single article
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about EMDR therapy and false memories. On its face, this article indicates the science in
this area has been subjected to limited research, and its conclusions are not well
established. The article’s apparent conclusion, that a “small body of work” suggests this
type of therapy “seem[s] to increase spontaneous false memories,” was vague and
equivocal. Defense counsel claimed he located other materials supporting the conclusion
that EMDR therapy causes false memories, but he did not provide the court with this
material. While we recognize the defense had only a few days to prepare the continuance
motion, its showing that EMDR therapy was potentially significant to the outcome of the
trial was marginal and speculative.
At trial, the defense extensively challenged the accuracy and validity of the
victims’ memories through cross-examination, impeachment, and the testimony of expert
witnesses. The jury ultimately rejected that challenge and found appellant guilty of
sexually abusing both victims. Against this backdrop, the trial court’s conclusion that it
was mere speculation that EMDR therapy would have affected the outcome of the trial
was reasonable. The jurors had already concluded that despite appellant’s challenges, the
victims’ memories were reliable. Given the vague and limited showing that EMDR
therapy may have impacted Jane Doe 1’s memory, appellant failed to establish any
likelihood that this additional avenue of attack would “render a different outcome
probable.” (People v. Farmer (1989) 47 Cal.3d 888, 917, abrogated on another ground
by People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)
Having observed the entire trial, the trial court was in the best position to assess
the potential materiality of EMDR therapy, and the record supports the trial court’s
ruling. Accordingly, we conclude the denial of the motion to continue was not an abuse
of discretion.
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V. Appellant’s Cumulative Error Claim Lacks Merit.
Appellant raises a claim of cumulative error. He contends that, based on the
totality of some of the errors identified above, he suffered a fundamentally unfair trial.
We disagree.
“Under the ‘cumulative error’ doctrine, errors that are individually harmless may
nevertheless have a cumulative effect that is prejudicial.” (In re Avena (1996) 12 Cal.4th
694, 772, fn. 32.) A claim of cumulative error is essentially a due process claim. (People
v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) The test is whether the defendant received
a fair trial. (Ibid.)
We reject Appellant’s claim of cumulative error because we have denied all of his
individual claims. (People v. Bradford (1997) 14 Cal.4th 1005, 1057 [cumulative
prejudice argument rejected because each individual contention lacked merit or did not
result in prejudice].) Taking all of appellant’s claims into account, we are satisfied that
he received a fair adjudication regarding his guilt for the sexual abuse of Jane Doe 1 and
Jane Doe 2.
DISPOSITION
The judgment is affirmed.
LEVY, Acting P. J.
WE CONCUR:
MEEHAN, J.
DE SANTOS, J.
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