People v. Dawson CA2/5 ( 2024 )

Filed 10/2/24 P. v. Dawson CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B322254
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA499979)
v.
JERMAINE DAWSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Deborah Brazil, Judge. Affirmed.
Waldemar D. Halka, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and David A. Wildman,
Deputy Attorneys General for Plaintiff and Respondent.
The jury found Jermaine Dawson guilty of two counts of
continuous sexual abuse of a child under the age of 14 against his
stepson, J.S. and stepdaughter, K.B. (Pen. Code,1 § 288.5.)
On appeal, Dawson contends that the trial court erred by
admitting J.S.’s and K.B.’s hearsay statements under Evidence
Code sections 1236 and 791; permitting a facility dog and a
support person to accompany J.S. and K.B. while they testified;
and giving an adoptive admission instruction that was not
supported by the evidence. He further contends that the
prosecutor committed misconduct during closing argument.
FACTS
A. Prosecution Evidence
1. J.S.
Dawson met J.S. and K.B.’s mother Nicole2 at church,
where Dawson played the organ. Nicole married Dawson when
J.S. was five years old and K.B. was a baby. Dawson and Nicole
had a daughter, G., after they married. Later they had twins, a
daughter and a son.
J.S.’s biological father was not in his life. Dawson was a
“father figure” to J.S., who called him “dad”. J.S.’s relationship
with Dawson changed when Dawson began molesting him, which
“did [his] head over.” Dawson first abused J.S. when J.S. was
1 All further statutory references are to the Penal Code.
2 We refer to Nicole by her first name because she shares
Dawson’s last name.
2
nine or ten years old. When no one else was home, Dawson called
J.S. into the living room to “check” his privates and body.
Dawson grabbed J.S.’s hand and moved it up and down on
Dawson’s penis until he ejaculated. Afterwards, Dawson
apologized and made J.S. promise not to say anything. J.S. went
into the bathroom and cried. J.S. did not tell anyone what
happened.
When J.S. was almost 11 years old, Dawson asked him to
orally copulate him. J.S. masturbated Dawson manually until he
ejaculated instead. J.S. felt “effed up in the head” after this
happened and could not sleep. Dawson made J.S. masturbate
him with increasing frequency as J.S. grew older.
When J.S. was almost 12 years old, Dawson forced J.S. to
watch pornography with him while they both masturbated.
Around the same time, Dawson began touching J.S.’s penis
regularly when J.S. was trying to sleep. Dawson would attempt
to masturbate J.S. or orally copulate him in the middle of the
night. This continued regularly. J.S. did not feel there was
anything he could do but comply. J.S. had trouble sleeping
because of the abuse.
Dawson orally copulated J.S. when J.S. was about 12 years
old. This continued until J.S. was 15 or 16 years old. J.S. put
lotion on his hand to make Dawson believe that he ejaculated
because Dawson would check. Dawson always said he was
checking J.S.’s penis for bumps.
When J.S. was between 12 and 14 years old, Dawson took
J.S.’s pants off and tried to put his penis in J.S.’s anus. J.S.
pushed Dawson away so he could not do it. Dawson sexually
abused J.S. until he was 16 or 17 years old.
3
J.S.’s relationship with his mom was “perfect” before
Dawson abused him. After the abuse began, J.S. started arguing
and getting into trouble. J.S. tried to be happy, but he could not
do it. J.S. tried to “maintain with all that crap all these years,
maintaining and . . . trying not to spaz out and just go all crazy.”
J.S. never told his biological father about the abuse because
they “didn’t have a connection” and he did not think his father
would care. J.S.’s mother would not believe him if he told her.
She was in denial.
When he was 16 or 17 years old, J.S. learned that Dawson
was also abusing K.B. He heard K.B. crying one night. They
talked and disclosed the abuse to each other. J.S. did not take
any action after he learned Dawson was abusing K.B. because
“[t]here was no point.”
J.S. had his first son, J., when he was 17 years old.
Dawson helped J.S. take care of J. J.S. let Dawson help because
he had to work and go to school. The only other help he had was
his mother. J.S. checked in with J., and never heard that
Dawson did anything to harm him.
In April of 2020, J.S. told his aunt Latoya that Dawson had
abused him. J.S.’s aunts and cousins were supportive of him.
They went with J.S. and K.B. to report Dawson to the police.
At the time of trial, J.S. was 24, and had two sons who were
seven and three years old. J.S. suffered a felony conviction for
assault in 2019.
4
2. K.B.
K.B. and Dawson had a good relationship when he first
married Nicole. That changed after K.B.’s biological father died.
K.B. was about six years old at the time.
The first time Dawson molested her, K.B. was in second
grade. Dawson showed K.B. how to use her hands to “jack him
off”. Dawson told K.B. not to say anything to anyone about what
happened. He made K.B. masturbate him “a lot” after the first
time.
While K.B. was still in elementary school, Dawson came
into the room she shared with her two younger sisters at night
and licked her vagina. K.B. moved around a lot so that Dawson
would stop. This happened two or three times. Afterwards
Dawson pulled up K.B.’s underwear and pretended that nothing
happened. K.B.’s sisters did not wake up, and K.B. did not tell
anyone that it happened.
At around the same time, Dawson began taking K.B. out of
bed when she was sleeping, bending her over at the waist, and
“dry humping” her. Dawson fondled K.B.’s bare breasts while he
“dry humped” her.
After K.B.’s body began to mature, Dawson started putting
his mouth on her breasts and licking and sucking them. He also
touched her breasts with his hands. Afterwards Dawson told her,
“ ‘Don’t tell anybody, like, you know what’s going to happen.’ ”
K.B. thought that meant that her mother would “whup” her if she
told. Dawson licked K.B.’s breasts “[l]ike every other night” after
the first time. K.B. could not remember if Dawson started licking
5
her breasts when she was less than 14 years old. Dawson told
her he was checking her for breast cancer.
Dawson continued to molest K.B. until she was a senior in
high school.
When K.B. was in second grade, she told her cousin P. that
Dawson was abusing her. P. told her mother Latoya. They were
at her grandmother’s house at the time. Latoya called Nicole and
spoke to her. When Nicole picked K.B. up, she repeatedly asked
K.B. what happened. K.B. could not remember everything she
told Nicole, but she knew that she told Nicole that Dawson made
K.B. masturbate him. Once home, Nicole and K.B. woke Dawson
and talked to him about it.3 After K.B. and Nicole confronted
Dawson, Nicole continued to leave K.B. alone with him. Nicole
isolated K.B. and her siblings from their extended family. K.B.
did not try to talk to her mother about what Dawson was doing
again after that because she was too scared.
In April of 2020, when K.B. was 17, J.S. called K.B. at work
and said he wanted to tell their mother everything that Dawson
had done to them. Soon after, K.B.’s aunt Latoya called her and
asked K.B. if Dawson was touching her. K.B. lied at first but
then admitted Dawson abused her. Latoya started crying and
told K.B. she was going to come get her. K.B. and Latoya went to
K.B.’s grandmother’s house where the family, including J.S.,
gathered to discuss Dawson. J.S. was angry and told everyone
what Dawson had done. K.B. sat there and cried because she did
not know what was going to happen. K.B. wanted to call her
mother before she reported Dawson to the police. When K.B.
3 K.B. did not remember what Dawson said when she
testified at trial. Her memory was fresher when she first
reported the incidents to the police a few years earlier.
6
called, Nicole got angry, told K.B. that she could not come home,
and called her stupid. Afterwards, her mother called J.S. and
said that he could not come home, either. When K.B. was little
her mother was her best friend. That ended when K.B. reported
Dawson to the police.
Between her disclosure in second grade and Dawson’s
arrest in April 2020, K.B. did not tell anyone what happened
except her brothers and sisters. She “tried to suppress that as
best as I can by not talking about it . . . .” K.B. believed she
would “get in trouble for it happening to me.” Dawson had
warned her not to tell anyone every time he molested her. The
family attended church regularly, but K.B. had not known her
pastor very long. K.B. did not tell her pastor that Dawson abused
her because she was embarrassed. K.B. was afraid to talk to her
mother about it. She had already talked to her and “nothing
changed.” “He was still in the house.”
When she was in high school, K.B. told Dawson to stop
many times. She tried to make loud noises so that someone
would see him molesting her. Sometimes when K.B. told Dawson
to stop she was crying. “He would just say he’s sorry and
continuously keep doing the same thing.”
3. Latoya Johnson
When K.B. was in first or second grade, K.B. disclosed to
Latoya that Dawson was abusing her. Latoya immediately
discussed the situation with Nicole. Nicole told her that K.B.
said Dawson made her masturbate him until he ejaculated.
Nicole denied the accusation and said that J.S. was the one who
was masturbating. Latoya said J.S. was too young to be
7
masturbating—someone must have taught him. Nicole
responded that Dawson caught J.S. masturbating. Dawson told
J.S. not to do it in front of K.B., and to go to the bathroom.
Latoya said that she thought Nicole should investigate because
J.S. must have learned to masturbate from someone else. Soon
afterwards, Nicole isolated herself and the children from Latoya
and they moved away.
On a Friday night in April 2020, J.S. called the family
together because he was going to talk to Nicole and he needed
support. J.S. told the family what Dawson did to him and said
that Dawson had also abused K.B. Latoya called K.B. to confirm
that it was true and then went to pick K.B. up from work. Latoya
and K.B. called Nicole. When she answered, Nicole asked,
“ ‘What the F is going on? What the F are you guys doing?’ ”
K.B. asked her mother to come to her grandmother’s house, but
Nicole did not come. K.B. went home with Latoya. K.B. called
Nicole again from Latoya’s house and Nicole said, “You’re a F’ing
traitor. You’re with Toy. You’re dead to me.” K.B. cried and
kept saying that she knew her mother would be angry. K.B. tried
to call Nicole again, but could not reach her.
That Sunday, J.S. called and told K.B. he was going to the
police. K.B. agreed to go, too, and Latoya drove them there.
Latoya also drove K.B. to Stuart House, where K.B. and J.S. were
interviewed by a professional trained to interview children in
these circumstances.
When K.B. disclosed in second grade, Latoya did not report
Dawson’s abuse of K.B. to the authorities. She felt that it was
her responsibility to tell Nicole, and she believed Nicole would
handle the situation.
8
B. Defense Evidence
1. Paul Grimes
Pastor Paul Grimes met Dawson when he chose Dawson to
be the minister of music at his church. At the time of trial, they
had known one another for approximately four years. The
Dawson family joined the church as “a package deal.” Dawson
had been a great friend to the pastor. They grew closer over time
and would talk on the phone. Pastor Grimes knew J.S. and K.B.
The pastor served as a mentor to J.S. He interacted less
frequently with K.B., but had a high opinion of her. When Pastor
Grimes observed Dawson and J.S. they appeared to have a
harmonious father/son relationship. Dawson and K.B. also
appeared to have a good relationship. Pastor Grimes watched
Dawson interact with children under the age of 14 years old, and
they all loved him. He did not believe Dawson was the kind of
person who would abuse children.
Pastor Grimes had only known the family for about 18
months when J.S. and K.B. reported that Dawson abused them.
He had no interaction with the family between 2007 and 2017.
Pastor Grimes had not spoken to Dawson following his arrest.
He had not called Dawson on the phone. The pastor had never
been to Dawson’s home and Dawson had never come to the
pastor’s home.
2. Nicole Dawson
Nicole and K.B. were best friends when K.B. was a child
and they talked about everything. Neither J.S. nor K.B. ever told
9
Nicole that Dawson molested them. If they had, “it would have
been dealt with.” She would not allow anyone to hurt her
children. If Nicole found out that Dawson touched J.S. or K.B.,
she would kick Dawson out of the house if she did not kill him
first.
Nicole did not recall Latoya ever telling her that Dawson
touched J.S. or K.B. If she had, Nicole would have investigated
and protected them.
No one told Nicole what was happening on the Friday night
in April 2020 when the family met at her parents’ house to talk
about Dawson’s abuse of J.S. and K.B. Nicole denied telling K.B.
that K.B. was “dead to [her].” Nicole never called J.S. or K.B. a
“traitor.”
When the children were growing up, Nicole worked during
the day from Monday through Friday. Dawson would pick all of
the kids up from school and take care of them until Nicole get
back from work. Dawson did not have a lot of one-on-one time
with the children at the house. They were always in school or at
aftercare.
Nicole never saw Dawson inappropriately touch any of her
children. It was not in Dawson’s character. In Nicole’s opinion,
children loved Dawson. There were always children at their
house—both family and neighbors.
3. Dawson
Dawson denied ever sexually touching J.S. or K.B., and
denied that either J.S. or K.B. touched him. Dawson would
“never harm a child ever” because he is “a god-fearing man.”
Nicole never confronted Dawson about molesting J.S. or K.B.
10
J.S. and K.B. lied about the molestation. Dawson stayed home
and took care of the house when he was between jobs several
times, but he was never alone in the house with J.S., and never
went into the children’s rooms at night.
When Dawson and Nicole first married, J.S. and K.B.
called him “dad.” Dawson played the organ at church, and J.S.
and K.B. accompanied him on the drums. Later, J.S. did not like
Dawson being his father. J.S. frequently broke rules that Nicole
and Dawson set for him. J.S. was defiant and would curse at
Dawson. J.S. was living with Dawson and Nicole when J.S.’s first
son J. was born. When J.S. moved out of the house at age 17, J.
stayed. J. lived with Dawson and Nicole during the week and
lived with his mother on weekends. Dawson drove J. to and from
school every day for approximately two years.
Dawson had worked at approximately five schools. He was
a teacher’s assistant in the Los Angeles School District for two
different periods of approximately two years each. He worked
with children in elementary school, watching them and helping
with their studies. Dawson worked with the children both inside
and outside of the classroom. Dawson also worked as a campus
aide for the Los Angeles School District at multiple elementary
schools. As a campus aide he monitored the children to make
sure they played fairly. Dawson was not aware of any children
registering complaints about him while he worked for the Los
Angeles School District.
Nicole’s family, and Latoya in particular, did not want
Nicole to marry Dawson. Dawson did not feel welcomed at family
gatherings.
11
DISCUSSION
A. Admission of Prior Consistent Statements
1. Proceedings
J.S. was the first witness to testify for the prosecution.
During the lunch recess, the trial court held a hearing to resolve
issues related to J.S.’s testimony. The hearing was held outside
the presence of the jury and was not reported. Following J.S.’s
continued testimony, the trial court asked the attorneys whether
there were similar issues to resolve related to K.B.’s testimony.
Defense counsel did not bring any additional issues to the trial
court’s attention.
Throughout his examination of J.S., defense counsel asked
questions that implied J.S. had several motives to fabricate
testimony, including his poor relationship with Dawson, his
history of lying, and the feud between his mother and his Aunt
Latoya. Defense counsel also asked J.S. if he received financial
assistance “with regard to your participation in this case,”
whether there was anything J.S. would “care to share along the
lines of any type of benefit or compensation or any special
treatment you’re receiving from a governmental entity or the
prosecutor’s office or the deputy district attorney’s office or any
other office that might be assisting you,” and whether J.S. was
“receiving any type of financial aid or benefit from the
prosecutor’s office with regard to your involvement or
participation in this case?”
12
When questioning K.B. the next day, defense counsel
implied several potential reasons for K.B. to fabricate testimony,
including the influence of her Aunt Latoya and possible pressure
from the prosecutor and the investigating detective.4
On the third day of testimony, investigating officer Los
Angeles Police Department Detective Jason Kim testified that he
worked at Stuart House as part of a team of individuals from
multiple disciplines who provided services to victims of child
sexual abuse. Immediately after J.S. and K.B. reported Dawson
4 Defense counsel’s line of questioning included the
following:
“[Defense Counsel]: On the subject of whether anyone has
instructed you on what to say in court as your testimony, your
answer is that no one has instructed you how to testify; is that
correct?
“[K.B.]: Yes.
“[Defense Counsel]: Have you had any private meetings in
the presence of [the prosecutor]? Yes or no?
“[K.B.]: Private meetings? What do you mean?
“[Defense Counsel]: Meeting with the two of you together,
talking.
“[K.B.]: No.
“[Defense Counsel]: Have you talked with [the prosecutor]
privately, the two of you, or in the company of a third person,
such as this gentleman here that I’m pointing to?
“[K.B.]: [Detective] Kim?
***
“[Defense Counsel]: Yeah, Detective Kim. That’s right.
“[K.B.]: Yes. Every conversation we’ve had has always
been with me, Abby, and Detective Kim.
“[Defense Counsel]: Okay. And how many of those
conversations have you had?
“[K.B.]: I don’t remember.”
13
to the police, a child advocate from Stuart House conducted
forensic interviews of both victims, which Detective Kim observed
in an adjacent room through a one-way mirror. The detective
summarized the crimes that J.S. suffered, and authenticated the
video recording of J.S.’s forensic interview. A video recording of
J.S.’s interview was marked for identification and the transcript
of the interview was published to the jury. The prosecutor noted
that defense counsel had previously been provided copies of the
transcript. Defense counsel then interjected: “Your honor, just
for the record, there is an objection to the interview as being
hearsay.” The trial court overruled the objection. The video
recording was played for the jury.
The court recessed for lunch and the jurors left the
courtroom. The trial court then said, “[Defense counsel], I want
to make a complete record regarding your objection to the playing
of the audio as hearsay. The objection is overruled pursuant to
Evidence Code section 1236, prior consistent statement as the
evidence is in compliance with Evidence Code section 791. So on
that basis, the court is overruling your hearsay objection as to the
audio that the court is listening to and the jury is listening.”
Defense counsel then objected that “the audio recording is more
inclusive than simply prior consistent statements or inconsistent
statements.” The trial court concluded, “Very well. Your
objection is noted for the record.” Defense counsel thanked the
court and confirmed that he had nothing further he wished to
discuss.
Detective Kim’s testimony resumed following the lunch
recess. The detective testified that he viewed K.B.’s forensic
interview through the one-way mirror. The detective
summarized the crimes that K.B. had suffered, and
14
authenticated a video recording of her Stuart House interview.
The video recording of K.B.’s interview was marked for
identification and played for the jury.
Defense counsel cross-examined Detective Kim. The
detective testified that he did not personally interview either J.S.
or K.B., and had not talked to them about the case.
At sidebar, the court inquired whether defense counsel
objected to J.S. and K.B.’s recorded interviews being admitted
into evidence. Defense counsel stated that he had previously
objected to admission of J.S.’s interview and added: “I now object
to [admission of the transcript of K.B.’s interview], based on the
fact that the entire transcript is hearsay. However, I keep in
mind Evidence Code [section] 1235, but I still feel it’s
inadmissible hearsay.” The court admitted the recordings of J.S.
and K.B.’s Stuart House interviews into evidence.
2. Legal Principles
“Hearsay is ‘evidence of a statement that was made other
than by a witness while testifying at the hearing and that is
offered to prove the truth of the matter stated.’ (Evid. Code,
§ 1200, subd. (a).) Hearsay is not admissible unless it meets the
requirements of one of the exceptions set forth in Evidence Code
sections 1220 to1390. (Evid. Code, § 1200, subd. (b); see also
People v. DeHoyos (2013) 57 Cal.4th 79, 132.)” (People v.
Selivanov (2016) 5 Cal.App.5th 726, 774.)
Evidence Code section 1236 provides: “Evidence of a
statement previously made by a witness is not made inadmissible
by the hearsay rule if the statement is consistent with his
15
testimony at the hearing and is offered in compliance with
[s]ection 791.”
Evidence Code section 791 in turn provides: “Evidence of a
statement previously made by a witness that is consistent with
his testimony at the hearing is inadmissible to support his
credibility unless it is offered after: [¶] (a) Evidence of a
statement made by him that is inconsistent with any part of his
testimony at the hearing has been admitted for the purpose of
attacking his credibility, and the statement was made before the
alleged inconsistent statement; or [¶] (b) An express or implied
charge has been made that his testimony at the hearing is
recently fabricated or is influenced by bias or other improper
motive, and the statement was made before the bias, motive for
fabrication, or other improper motive is alleged to have arisen.”
“Evidence Code section 791 does not require a witness to be
free from all possible bias at the time of her prior consistent
statement. Rather, ‘a prior consistent statement is admissible if
it was made before the existence of any one or more of the biases
or motives that, according to the opposing party’s express or
implied charge, may have influenced the witness’s testimony.’
[Citations.]” (People v. Dalton (2019) 7 Cal.5th 166, 234.) “That
there may always have been present a motive to fabricate does
not deprive a party of his right to show that another motive,
suggested by the evidence, did not also affect his testimony.”
(People v. Ainsworth (1988) 45 Cal.3d 984, 1014; see also People v.
Dalton, at p. 234.) “ ‘[T]he mere asking of questions may raise an
implied charge of an improper motive . . .,’ and thus invoke
Evidence Code section 791.” (People v. Noguera (1992) 4 Cal.4th
599, 630.)
16
“A trial court’s ultimate ruling on admissibility ‘implies
whatever finding of fact is prerequisite thereto; a separate or
formal finding is unnecessary unless required by statute.’ (Evid.
Code, § 402, subd. (c).)” (People v. Selivanov, supra, 5
Cal.App.5th at p. 774.) “[A] trial court has broad discretion to
determine whether a party has established the foundational
requirements for a hearsay exception[.]” (People v. DeHoyos,
supra, 57 Cal.4th at p. 132.) “We review the trial court’s
conclusions regarding foundational facts for substantial evidence
and its decision to admit or exclude a hearsay statement for
abuse of discretion. (Ibid.) We review the ruling, not the
rationale; ‘[t]he ruling must be upheld if the evidence was
admissible under any hearsay exception.’ (People v. Karis (1988)
46 Cal.3d 612, 635.)” (People v. Selivanov, at p. 774.)
The trial court’s erroneous admission of hearsay as
substantive evidence is harmless if it is not reasonably probable
that the result would have been more favorable to the defendant
had the evidence not been admitted. (People v. Kopatz (2015) 61
Cal.4th 62, 86–87 [admission of hearsay evidence evaluated
under the standard articulated in People v. Watson (1956) 46
Cal.2d 818, 836.) “ ‘[T]he admission of evidence, even if
erroneous under state law, results in a due process violation only
if it makes the trial fundamentally unfair.’ ” (People v. Partida
(2005) 37 Cal.4th 428, 439.)” (People v. Tran (2022) 13 Cal.5th
1169, 1209.)
3. Analysis
On appeal, Dawson contends that the trial court acted as
an advocate for J.S. and K.B. by: (1) proffering Evidence Code
17
section 1236 as a hearsay exception justifying admission of J.S.
and K.B.’s Stuart House interviews, (2) failing to require the
prosecution to identify how the interviews were admissible under
Evidence Code section 791, and (3) “deciding the statute’s
foundational requirements had been met without knowledge of
the parties.” Dawson further contends that neither of the
foundational requirements of Evidence Code section 791 was met.
Alternatively, Dawson argues that the trial court erred by
admitting the interviews in their entirety because not all of the
statements J.S. and K.B. made qualify as consistent statements
pursuant to Evidence Code sections 1236 and 791. Dawson
argues that these errors violated both state law and his
constitutional right to due process. We conclude that the
majority of J.S. and K.B.’s statements in the Stuart House
interviews were admissible under the prior consistent statement
exception to the hearsay rule. We further conclude that Dawson
suffered no prejudice through the admission of the statements
that the opening brief identifies as inadmissible under the
exception.
There is no basis in the record for Dawson’s assertions that
the trial court erred by proffering a basis for admission of the
interviews, failing to require the prosecution to prove the
foundational requirements for admission pursuant to Evidence
Code section 791, or deciding that the foundational requirements
for admission were met without comment. The hearing on the
admissibility of J.S.’s interview was not reported, and the
discussion of the admissibility of K.B.’s interview was limited to
defense counsel’s statement that he objected to it on the same
grounds and because “the entire transcript is hearsay.” After the
transcript of J.S.’s interview was published to the jury, defense
18
counsel made a cursory hearsay objection “just for the record”,
and, to ensure that the record was complete, the court
subsequently reiterated that it had made its ruling pursuant to
Evidence Code sections 1236 and 791. There is simply no way to
discern what transpired at the evidentiary hearing on the Stuart
House interviews in light of the fact that they were not reported.
Regardless, none of these contentions would have an impact on
our resolution of the issue. With exceptions that do not apply
here, the trial court’s ruling on admissibility “implies whatever
finding of fact is prerequisite thereto; a separate or formal finding
is unnecessary. . . .” (Evid. Code, § 402, subd. (c).) Moreover,
whatever the trial court’s basis for admitting hearsay evidence,
we will not overturn the court’s ruling if the evidence is
admissible under a hearsay exception. (People v. Karis (1988) 46
Cal.3d 612, 635.) We conclude that the evidence is admissible
pursuant to Evidence Code sections 1236 and 791, as the trial
court stated.
The Stuart House interviews meet the temporal
requirements of section 791, subdivision (b). By questioning J.S.
regarding whether he was receiving monetary or other benefits
from the District Attorney’s Office or some other government
agency for participating in the trial, defense counsel implied that
J.S. had fabricated his trial testimony in order to receive a
benefit. The District Attorney did not become involved in the
case until after J.S. made his statements in his Stuart House
interview. Thus, J.S.’s consistent statements were made before
the alleged bias or motivation arose. Similarly, defense counsel’s
questioning of K.B. implied that the prosecutor was pressuring
her to fabricate testimony. The prosecutor did not meet with
K.B. until after K.B. was interviewed at Stuart House.
19
Accordingly, K.B. made her consistent statements before the
prosecutor would have had an opportunity to pressure her.
Although Dawson complains broadly about the content of
the Stuart House interviews, he does not expressly contest that
the vast majority of statements J.S. and K.B. made in their
interviews were consistent with their trial testimony. We
address below the specific objections Dawson raised in the
opening brief.5
5 We decline to address the opening brief’s recitation of
statements that Dawson has not supported with argument.
These statements include, but are not limited to, J.S.’s statement
that he told the interviewer and police “what they needed to
know,” J.S. and K.B.’s opinions and feelings regarding their
mother and Dawson, and J.S.’s references to Dawson by
derogatory terms.
20
a. Stuart House Interviewer’s “Approval”
Language
Dawson argues that the Stewart House interviewer’s
responses to J.S. and K.B.’s statements affirmed the truth of
their statements and constituted “impermissible coaching.” As
examples, Dawson catalogs the numerous times that the
interviewer responded “okay,” “uh huh,” “yeah,” “hmm,” “I see,”
“right,” “all right,” and “got it” in each interview. We are not
persuaded that the jury would view the interviewer’s responses
as confirming the truth of what J.S. and K.B. said. It is hard to
conceive of more neutral language. The words and sounds the
interviewer employed were the sort of brief acknowledgements
that people routinely use to confirm to another person that they
are listening. Dawson was not prejudiced by their admission.
b. Stuart House Interviewer’s Opinions
Dawson further contends that some of the interviewer’s
statements to J.S. during his Stuart House interview could be
construed by the jury as expert opinions—specifically that in her
experience it was common for child molesters to have a positive
connection to the children they molest that makes the children
want to be around them and that child molesters “do special
favors or give kids stuff so that they’ll keep them from saying
something.”
Even if we assume that the interviewer’s statements were
beyond the scope of the average layperson’s knowledge and that
the jury considered them to be the opinions of an expert, we
21
cannot say that they were prejudicial, as the statements were
largely inconsistent with J.S. and K.B.’s statements and
testimony. Although both victims initially had a positive
experience with Dawson, the connection changed when the
molestation began. Neither J.S. nor K.B. wanted to be around
Dawson after he started abusing them. J.S. and K.B. did not try
to disclose what was happening after their first early attempts
because when they did “nothing changed . . . [h]e was still in the
house”—not because they wanted to be close to Dawson. K.B. did
not state or testify that Dawson gave her things or did anything
special for her. He kept her silent by saying “ ‘don’t tell anybody,
look, you know what’s going to happen[.]’ ” K.B. thought she
would get into trouble if she told, and that her mother would
“whup” her. J.S. said Dawson never did anything special for
him—J.S. had only gone to the movies once in his life. J.S. stated
that he was not sure if Dawson was trying to do something
special when he came to J.S.’s school when J.S. misbehaved, or if
Dawson simply did not want J.S.’s mother to go because J.S.
might feel greater pressure to tell her about the abuse under the
circumstances. Given that J.S. and K.B.’s testimony was only
minimally corroborated by the interviewer’s opinions, it is not
reasonably probable that the outcome of the trial would have
been more favorable to Dawson if the interviewer’s statements
had been redacted from J.S.’s interview.
c. Stuart House Statements Used as a Blueprint
for Testimony
Dawson contends that J.S.’s Stuart House statements
corroborated J.S.’s testimony because the prosecutor used the
22
Stuart House interview as a blueprint for questioning J.S. at
trial. Dawson fails to explain why the prosecutor should be
prohibited from asking the same questions that the interviewer
did to elicit relevant, admissible responses. The jury heard both
the Stuart House interviewer and the prosecutor question J.S.,
and could determine for themselves whether the questions were
similar and decide independently what weight to afford J.S.’s
testimony in light of any perceived similarities.
d. Other Potential Child Victims
Dawson argues that J.S. and K.B.’s Stuart House
interviews raised the specter of other potential child victims to
whom Dawson had ongoing access, either through family or work.
However, the issue was raised much earlier in the trial by
defense counsel, as a means of undermining J.S.’s credibility. In
his opening statement, counsel commented: “[J.S.], the older of
the stepkids, has two of his own children. [¶] Having two of his
own children, he would regularly allow Mr. Dawson to take care
of those kids. Particularly, one of them that was age 4, Mr.
Dawson would drive that child to and from school and other
places. Think about that. Someone who has been sexually
abused, allowing his child to be in the company of a sexual
abuser.”
At trial, both attorneys questioned J.S. regarding Dawson’s
care of J.S.’s elder son. J.S. testified that Dawson participated in
J.’s care, and that despite his concerns J.S. had no reason to
believe that Dawson had harmed either of his children.
When the Stuart House interviewer questioned J.S.
regarding his son’s safety in his Stuart House interview, J.S.
23
responded, consistent with his trial testimony, that he worried
about Dawson molesting J., but had nevertheless permitted
Dawson to pick his son up from school and take him to get food.
J.S. indicated that, to his knowledge, Dawson had not harmed his
son. The Stuart House interviewer also questioned J.S.
regarding whether Dawson had contact with children through
work and if so, whether J.S. was concerned that Dawson had
abused those children. J.S. said that Dawson had worked with
children. J.S. was suspicious of Dawson and tried to check to see
if anything had happened, but ultimately J.S. did not know of
anyone that Dawson molested other than himself and K.B. J.S.
told the interviewer: “No, I didn’t hear of problems. I kept
hearing, you know, he’s a good teacher, . . . he loves the kids and
he plays music . . . .” When the interviewer questioned K.B.
regarding whether she believed Dawson had molested her
brothers and sisters other than J.S., K.B. unequivocally answered
“No.”6
6 The opening brief misconstrues the statements K.B. made
in her Stuart House interview regarding her sister G. K.B. did
not state that she prayed Dawson had not molested G. K.B.
stated that G. interrupted Dawson when he was in K.B.’s room
touching K.B.’s breasts, but that G. did not understand what
Dawson was doing because Dawson quickly pulled down K.B.’s
bra and told G. he was “just praying for” K.B. K.B. stated that
she felt good telling her brothers and sisters what happened,
because if it happened again she would not be the only one who
knew what had happened to her. She did not say she felt good
telling her brothers and sisters that Dawson was a child
molester. Nor did K.B. state that she believed Dawson was
molesting G. because he was in G.’s bedroom too often. K.B. told
the Stuart House interviewer that she thought her brother and
sisters believed her when she told them Dawson had molested
24
In closing argument, defense counsel used Dawson’s access
to children through work to bring both J.S. and K.B.’s credibility
into question: “[Dawson]’s had jobs where he is around children
for many years particularly in the schools that he worked at.
Hear of any inappropriate sexual touching or conduct with regard
to any—anyone uh—of the kids he supervised while he was in
that position? I imagine if the prosecution had that type of proof
or evidence you would have heard about it but you didn’t hear
about that.”7
In light of the fact that both J.S. and K.B. denied
knowledge of any other child who Dawson molested, we cannot
say that introduction of their statements was prejudicial. To the
contrary, to demonstrate Dawson’s trustworthiness with children
and undermine J.S. and K.B.’s claims, counsel argued that
Dawson had frequent contact with children, yet J.S. and K.B.
were the only alleged victims.
e. No Limiting Instruction
We reject Dawson’s contention that the trial court gave
CALCRIM No. 318 regarding prior consistent statements without
giving a limiting instruction. Dawson forfeited the argument by
her because “it will be too many times where he’ll be in my room
by hi[mself] . . . .”
7 Dawson argues that the prosecutor intimated that
Dawson had other victims in her closing argument. The
prosecutor did not broach the subject in her argument to the jury;
she briefly responded to defense counsel’s argument in her
rebuttal, stating that the issue at trial was not whether Dawson
abused other children, but whether he abused J.S. and K.B.
25
failing to request a limiting instruction at trial. (See People v.
Garcia (2010) 185 Cal.App.4th 1203, 1218 [failure to timely raise
an issue in the trial court forfeits the issue for appellate review].)
f. Use of Stuart House Statements in Closing
Argument
Dawson argues that the prosecutor used J.S. and K.B.’s
Stuart House interviews to argue that they had been consistent
in their statements. This was a proper use of their prior
statements after Dawson brought their credibility into question
pursuant to Evidence Code sections 1236 and 791.
Dawson asserts that by referring to the interviews as
“forensic,” the prosecutor misled the jury into believing that the
interviews were scientific and accurate. As Dawson
acknowledges, “forensic” means relating to or being used in a
court of law. This is an accurate description of the Stuart House
interviews.
Dawson states that the prosecutor used K.B.’s Stuart
House statement that she would be traumatized by what Dawson
did to her to argue that J.S. and K.B. would suffer for the rest of
their lives because of Dawson’s breach of their trust. We find no
prejudice. In his trial testimony, J.S. stated that his connection
with Dawson had been “great”—so much so that J.S. called
Dawson “dad.” When Dawson asked J.S. to masturbate him, J.S.
was “shocked” and it “did [his] head over.” K.B. also testified that
she had a good relationship with Dawson before he began
regularly abusing her over a period of approximately 10 years.
The prosecutor had ample independent evidence supporting her
26
argument. Dawson was not prejudiced by admission of K.B.’s
Stuart House statements.
Dawson complains that the prosecutor asked the jury to
focus on J.S. and K.B. and not to consider any other victims who
might or might not exist. The prosecutor’s comment was made in
direct response to defense counsel’s statement that Dawson had
worked with other children without incident, and that if there
had been other victims the prosecution would have presented
that evidence. The prosecutor’s brief response to the argument
did not prejudice Dawson.
Finally, in closing argument the prosecutor did not quote
K.B.’s Stuart House statements when she argued that if a person
consistently recounts the same facts it is likely that the facts are
true; she simply stated a commonly-held belief. Dawson was not
prejudiced by the prosecutor’s reliance on a general statement
that the jurors were free to accept or reject depending on their
own experiences.
In sum, the majority of J.S. and K.B.’s Stuart House
statements were admissible, but admission of those statements
that did not fall under the prior consistent statement exception to
the hearsay rule was harmless. Whether viewed individually or
in total, it is not reasonably probable that the outcome of the trial
would have been more favorable to Dawson if those statements
had been redacted, let alone that their admission made the trial
fundamentally unfair. (See People v. Tran, supra, 13 Cal.5th at
p. 1209 [“ ‘[t]he admission of evidence, even if erroneous under
state law, results in a due process violation only if it makes the
trial fundamentally unfair’ ”].)
27
B. Presence of Support Dog and Victim Advocate
1. Proceedings
In a hearing prior to trial, the prosecutor informed the
court and defense counsel that J.S. and K.B. requested a support
dog pursuant to section 868.4, subdivision (a)(2). Defense counsel
stated that he had no objection as long as the dog was qualified
under the statute. The court granted the motion.
The prosecutor stated that she also intended to have the
victim advocate from Stuart House sit with J.S. and K.B. during
the trial, pursuant to section 868.5. The victim advocate
previously sat with J.S. and K.B. at the preliminary hearing.
Defense counsel objected on three bases: (1) J.S. and K.B. were
adults; (2) at the preliminary hearing the court had to admonish
the particular victim advocate not to touch J.S. or K.B.; and (3)
because they knew the victim advocate, J.S. and K.B. might be
afraid to disappoint her at trial and their testimony could be
influenced. Defense counsel was not present at the preliminary
hearing, but recalled the admonishment from the transcript. The
prosecutor explained that J.S. was on the verge of a panic attack
and the victim advocate, who was sitting behind him, touched his
back to calm him. The trial court admonished the victim
advocate not to touch J.S. or K.B. The victim advocate stated
that she understood, and she acted appropriately for the
remainder of the hearing. The prosecutor preferred to have the
same victim advocate sit with J.S. and K.B. during testimony
because they knew her.
28
The court stated that there was no requirement that a
victim be a minor to be entitled to the presence of a support
person. The court would admonish the advocate regarding her
role prior to any testimony, including that she should refrain
from touching J.S. and K.B. or coaching the witnesses in any
way. The court instructed defense counsel to bring any concerns
to the court’s attention so that the court could address them.
Prior to testimony, the trial court orally instructed the jury
under CALCRIM No. 377 as follows: “ ‘Presence of support
person, dog, dog handler during testimony of a witness in this
case, or witnesses, there may be a support animal present for the
witness and a handler for the support dog. [¶] Do not consider
the presence of the dog or the dog handler with the witness for
any purpose, and do not allow it to distract you. The law allows a
person testifying to have an advocate in the courtroom and also
have an emotional support animal.’ ”8
2. Legal Principles
Section 868.4, subdivision (a)(2) provides, in pertinent part,
that either party in a criminal proceeding may request that a
witness who is entitled to support persons pursuant to section
868.5 be accompanied by a therapy or facility dog while the
person testifies, subject to the court’s approval. The party must
“make[] a showing that the therapy or facility dog and handler
8 The written instructions included CALCRIM No. 377 as
follows: “A witness had an emotional support dog present during
his testimony. Do not consider the presence of the dog or the dog
handler who was with the witness for any purpose or allow it to
distract you.”
29
are suitably qualified and will reasonably assist the testifying
witness” (§ 868.4, subd. (c)), “[by] reduc[ing] anxiety or otherwise
be[ing] helpful to the witness while testifying” (§ 868.4, subd.
(b)(3)). If the party meets the statutory requirements, “the court
may grant the motion, unless the court finds the use of a therapy
or facility dog would cause undue prejudice to the defendant or
would be unduly disruptive to the court proceeding.” (§ 868.4,
subd. (c).) The court is required to take measures to ensure the
therapy or facility dog is “as unobtrusive and nondisruptive as
possible,” (§ 868.4, subd. (d)) and “issue an appropriate jury
instruction designed to prevent prejudice for or against any
party” upon request (§ 868.4, subd. (e)). A “facility dog” is defined
in part as “a dog that has successfully completed a training
program in providing emotional comfort in a high-stress
environment for the purpose of enhancing the ability of a witness
to speak in a judicial proceeding and reducing his or her stress
level[.]” (§ 868.4, subd. (h)(2).) A therapy dog is an otherwise
qualified dog “that has successfully completed training,
certification, or evaluation in providing emotional support
therapy.” (§ 868.4, subd. (h)(4).)
As relevant here, section 868.5, subdivision (a) provides:
“[a] prosecuting witness in a case involving a violation or
attempted violation of [s]ection . . . 288.5 . . . shall be entitled, for
support, to the attendance of up to two persons of the prosecuting
witness’ own choosing, [subject to certain exceptions,] one of
whom may be a witness, at the preliminary hearing and at the
trial, . . . during the testimony of the prosecuting witness.” “If
the person or persons so chosen are also witnesses, the
prosecution shall present evidence that the person’s attendance is
both desired by the prosecuting witness for support and will be
30
helpful to the prosecuting witness. Upon that showing, the court
shall grant the request unless information presented by the
defendant or noticed by the court establishes that the support
person’s attendance during the testimony of the prosecuting
witness would pose a substantial risk of influencing or affecting
the content of that testimony.” (§ 868.5, subd. (b).) Section 868.5
“does not preclude a court from exercising its discretion to remove
a person from the courtroom whom it believes is prompting,
swaying, or influencing the witness.” (§ 868.5, subd. (b).)
3. Analysis
a. Section 848.4 Does Not Violate the Right to
Confrontation, Cross-Examination, Jury Trial,
or Due Process Either Facially or As Applied in
This Case.
Dawson contends that reversal is required because his
state and federal constitutional rights to confrontation, cross-
examination, jury trial, and due process were violated by the
presence of a facility dog during J.S.’s and K.B.’s testimony. He
argues that section 868.4 is unconstitutional because it enables a
witness’s credibility to be falsely bolstered through use of a
facility dog. Dawson asserts that, despite the fact that defense
counsel agreed to the presence of a facility dog, he did not forfeit
his claims by failing to object below. Regardless of whether
Dawson’s claims have been forfeited, we conclude that they fail
on the merits.
We “apply[] the substantial evidence test to pure questions
of fact and de novo review to questions of law. [Citation.]
31
‘[W]hen the application of law to fact is predominantly legal, such
as when it implicates constitutional rights and the exercise of
judgment about the values underlying legal principles, [the
appellate] court’s review is de novo.’ ” (In re Taylor (2015) 60
Cal.4th 1019, 1035; In re Collins (2001) 86 Cal.App.4th 1176,
1181.)
Dawson contends that section 868.4 is unconstitutional on
its face because a witness’s “internal reliance” on a facility dog
bolsters their testimony and gives the witness a “false aura of
veracity.” As we understand it, Dawson’s argument is that a jury
is more likely to credit a witness’s testimony if the witness
appears calm. Dawson points to no direct correlation between
anxiety and veracity, however. The state has a compelling
interest in safeguarding the physical and psychological well-being
of minors and victims of sexual offenses. (People v. Patten (1992)
9 Cal.App.4th 1718, 1726.) Both the Legislature and courts
recognize that children and victims of sexual offenses are likely to
be nervous or frightened when facing an attacker in court, and
can be aided in giving “complete and truthful testimony” through
the use of a facility dog to control their anxiety. (See People v.
Chenault (2014) 227 Cal.App.4th 1503, 1517 [use of a facility dog
may assist the witness in avoiding “undue harassment or
embarrassment and provid[ing] complete and truthful
testimony”].)
Although it has not yet had occasion to evaluate section
868.4 in this context, our Supreme Court recently held that
California’s similar procedure for providing support persons
under section 868.5 “does not require the same constitutional
scrutiny” as procedures that hamper face-to-face confrontation or
limit defense counsel’s cross-examination of witnesses. (People v.
32
Chhoun (2021) 11 Cal.5th 1, 37.) Moreover, “[a] support person’s
mere presence in the courtroom or at the witness stand does not
infringe the defendant’s due process or confrontation rights
unless there is evidence of improper interference by the support
person.” (Id. at p. 38.) If the presence of a human to ease a
witness’s anxiety does not require constitutional scrutiny, the
presence of a dog creates even less cause for concern.
Additionally, section 868.4, subdivision (c) protects
defendants by requiring the court to consider whether use of a
facility dog would be unduly prejudicial to the defendant or
unduly disruptive to proceedings. A court may disallow use of a
facility dog in such instances despite the fact that the prosecution
has made a showing that the presence of a facility dog would
assist the witness in giving testimony. (Ibid.) The statute
requires the trial court to “take appropriate measures to make
the presence of the therapy or facility dog as unobtrusive and
nondisruptive as possible[.]” (Id., subd. (d).) The court must,
upon request, “issue an appropriate jury instruction designed to
prevent prejudice for or against any party.” (Id., subd. (e).)
Section 868.4 also preserves the court’s ability to “remov[e] or
exclude[e] a therapy or facility dog from the courtroom to
maintain order or to ensure the fair presentation of evidence[.]”
(Id., subd. (f), italics added.) This last provision in particular
would provide for removal of a facility dog if the court found there
was a significant risk that the presence of a facility dog would
falsely bolster the witness’s credibility. In light of the interests
implicated and the statute’s many protections, we conclude that
section 868.4 is not unconstitutional on its face.
With respect to his argument that section 868.4 infringed
his constitutional rights as applied, Dawson makes no arguments
33
that are specific to J.S. and K.B., and because he consented to use
of a facility dog the record is sparse. “ ‘A judgment or order of the
lower court is presumed correct. All intendments and
presumptions are indulged to support it on matters as to which
the record is silent, and error must be affirmatively shown. This
is not only a general principle of appellate practice but an
ingredient of the constitutional doctrine of reversible
error.’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d
557, 564.) Here, we presume that the trial court made the
appropriate findings to support its ruling, and there is nothing in
the record that suggests the facility dog impacted the fairness of
the proceedings. We find no constitutional violation or error.
b. The Trial Court Did Not Err by Instructing the
Jury Under CALCRIM No. 337.
Dawson further contends that the trial court erred in
instructing the jury regarding the facility dog under a modified
version of CALCRIM No. 377 because the instruction referred to
the “facility dog” or “therapy dog” as an “emotional support dog.”
Dawson failed to challenge the wording of the instruction in the
trial court, but the claim is cognizable on appeal pursuant to
section 1259, which permits this court to review “ ‘any instruction
given, refused or modified, even though no objection was made
thereto in the lower court, if the substantial rights of the
defendant were affected thereby.’ ”
Section 868.4 defines a “facility dog” as a dog trained to
provide “emotional comfort” and a “therapy dog” as a dog trained
to provide “emotional support therapy.” These statutory
definitions make clear that any dog that accompanies a witness
34
pursuant to section 868.4 accompanies the witness for the
purpose of emotional support. The instruction is correct in law
and relates to the circumstances of the dog’s presence. Dawson’s
substantial rights were not implicated.
c. Section 848.5 Does Not Violate the Right to
Confrontation, Cross-Examination, Jury Trial,
and Due Process.
Dawson contends that section 868.5’s procedure for
providing support persons violates his constitutional rights to
confrontation, cross-examination, jury trial, and due process, for
the same reasons that he alleges section 868.4 does.
Dawson attempts to distinguish his arguments from those
made in People v. Chhoun, supra, 11 Cal.5th 1, wherein the
Supreme Court held that “[a] support person’s mere presence in
the courtroom or at the witness stand does not infringe the
defendant’s due process or confrontation rights unless there is
evidence of improper interference by the support
person. [Citation.]” (Id. at p. 38.) In Chhoun, the defendant
argued that his Sixth Amendment right to confront witnesses
was infringed because a support person was permitted to
accompany a testifying witness although there was no case-
specific, evidence-based showing of need. (Id. at p. 37.) The
Supreme Court rejected the argument, stating “Concerns about
improper vouching are . . . unfounded because the mere
‘ “presence of a second person at the stand does not require the
jury to infer that the support person believes and endorses the
witness’s testimony, so it does not necessarily bolster the
witness’s testimony.” ’ ” (Ibid.) As we previously stated with
35
respect to facility dogs, Dawson has offered no evidence that
there is a direct correlation between anxiety and veracity. The
presence of a support person will not “ ‘ “necessarily bolster the
witness’s testimony.” ’ ” (Ibid; see also Chenault, supra, 227
Cal.App.4th at p. 1515 [“[a]lthough it is possible in certain
circumstances that a support dog might cause a jury to consider
impermissible factors in deciding a defendant’s guilt, we conclude
that scenario will not necessarily, and likely will only rarely,
result when a support dog is used to comfort a testifying
witness”].) Chhoun controls. The defendant’s rights to due
process and confrontation are not implicated “unless the support
person improperly interferes with the witness’s testimony, so as
to adversely influence the jury’s ability to assess the testimony[.]”
(People v. Spence (2012) 212 Cal.App.4th 478, 514.)
With respect to the specific circumstances of this case,
Dawson has offered no evidence that the Stuart House advocate
improperly interfered with J.S. or K.B.’s testimony. He is
therefore unable to establish that section 868.5 is
unconstitutional as applied.
d. Section 848.5 Does Not Violate the Separation
of Powers.
Dawson contends that section 868.5 violates the separation
of powers doctrine because it impinges on the judiciary’s control
over criminal trials and the prosecutor’s ability to call witnesses
and conduct trials. He argues that once the prosecuting witness
invokes the right to have a support person, the trial court has no
power to deny the request other than when the support person is
also a witness. The prosecutor, in turn, has no ability to refuse
36
the witness’s request to have a support person, even if the
prosecutor determines that it is not in the best interests of the
prosecution for the witness to have a support person. The
contentions lack merit.
We review separation of powers claims de novo. (In re Ilasa
(2016) 3 Cal.App.5th 489, 498.) “ ‘The powers of state
government are legislative, executive, and judicial. Persons
charged with the exercise of one power may not exercise either of
the others except as permitted by this Constitution.’ (Cal. Const.,
art. III, § 3.) Although the separation of powers doctrine ‘does
not prohibit one branch from taking action that might affect
another, the doctrine is violated when the actions of one branch
defeat or materially impair the inherent functions of another.’
(Steen v. Appellate Division of Superior Court (2014) 59 Cal.4th
1045, 1053.) ‘Separation of powers does not mean an entire or
complete separation of powers or functions, which would be
impracticable, if not impossible.’ [Citation.]” (In re D.N. (2022)
14 Cal.5th 202, 212.) “ ‘When one department or agency thereof
exercises the complete power that has been by the Constitution
expressly limited to another, then such action violates the
implied mandate of the Constitution.’ [Citation.]” (In re Danielle
W. (1989) 207 Cal.App.3d 1227, 1236.)
“ ‘Our Constitution vests “[t]he legislative power of this
State . . . in the California Legislature which consists of the
Senate and Assembly . . . .” (Cal. Const. art. IV, § 1.) It is in the
nature of state constitutions that they, unlike the federal
Constitution, generally do not grant only limited powers.
(Marine Forests Society v. California Coastal Com. (2005) 36
Cal.4th 1, 29.) Consequently, “unlike the United States
Congress, which possesses only those specific powers delegated to
37
it by the federal Constitution, it is well established that the
California Legislature possesses plenary legislative authority
except as specifically limited by the California Constitution.” (Id.
at p. 31.) Lying at the core of that plenary authority is the power
to enact laws. (California Redevelopment Assn. v. Matosantos
(2011) 53 Cal.4th 231, 254.) It has been said that pursuant to
that authority, “[t]he Legislature has the actual power to pass
any act it pleases,” subject only to those limits that may arise
elsewhere in the state or federal Constitutions.’ (Howard Jarvis
Taxpayers Assn. v. Padilla (2016) 62 Cal.4th 486, 497–498.)”
(People v. Nash (2020) 52 Cal.App.5th 1041, 1074.) “This
essential function embraces the far-reaching power to weigh
competing interests and determine social policy. [Citations.]”
(People v. Bunn (2002) 27 Cal.4th 1, 14–15.)
In promulgating section 868.5, the Legislature acted within
its power to enact legislation to protect the interests of children
and victims of sexual offenses. Whether a support person will
accompany a witness at trial lies predominantly with those
witnesses and not with any branch of government. Moreover, the
respective purviews of the executive and the judiciary are only
minimally impacted. Although Dawson reads section 868.5 to
strip courts of the power to control whether support persons are
present where the support person is not a witness, the statute is
not so narrow. Section 868.5, subdivision (b) provides that “[t]his
section does not preclude a court from exercising its discretion to
remove a person from the courtroom whom it believes is
prompting, swaying, or influencing the witness.” By the plain
meaning of the words, “this section” refers to section 868.5 in its
38
entirety, and thus to all support persons authorized therein.9
(See People v. Valencia (2017) 3 Cal.5th 347, 357 [if language is
clear courts do not look beyond its plain meaning].) In light of
defense counsel’s objection to the Stuart House victim advocate
based on her previous behavior and the trial court’s ruling
thereon, it appears that the court and the parties understood that
the court had discretion to exclude the Stuart House victim
advocate if her presence would improperly interfere with the
testimony. Section 868.5, subdivision (b) also provides a basis for
the prosecution to move the court to remove a support person
from the courtroom if the prosecutor believes the witness is
“prompting, swaying, or influencing the witness.” The separation
of powers doctrine is not implicated.
C. Adoptive Admission Instruction
1. Legal Principles
Pursuant to Evidence Code section 1221, “[e]vidence of a
statement offered against a party is not made inadmissible by the
hearsay rule if the statement is one of which the party, with
knowledge of the content thereof, has by words or other conduct
manifested his adoption or his belief in its truth.” Our Supreme
Court has explained, “ ‘[i]f a person is accused of having
committed a crime, under circumstances which fairly afford him
9 To the extent that Dawson disagrees, he offers no
argument or authority to support a contrary interpretation, and
has waived any challenge he may have raised on appeal. (See
People v. Duff (2014) 58 Cal.4th 527, 550 fn. 9, [issues not raised
in appellant’s opening brief are waived].)
39
[or her] an opportunity to hear, understand, and to reply, and
which do not lend themselves to an inference that he [or she] was
relying on the right of silence guaranteed by the Fifth
Amendment to the United States Constitution, and he [or she]
fails to speak, or he [or she] makes an evasive or equivocal reply,
both the accusatory statement and the fact of silence or
equivocation may be offered as an implied or adoptive admission
of guilt.’ ” (People v. Cruz (2008) 44 Cal.4th 636, 672, quoting
People v. Preston (1973) 9 Cal.3d 308, 313–314.) “ ‘For the
adoptive admission exception to apply, however, a direct
accusation in so many words is not essential.’ [Citation.] ‘ “When
a person makes a statement in the presence of a party to an
action under circumstances that would normally call for a
response if the statement were untrue, the statement is
admissible for the limited purpose of showing the party’s reaction
to it. [Citations.] His silence, evasion, or equivocation may be
considered as a tacit admission of the statements made in his
presence.” [Citation.]’ [Citation].” (People v. Jennings (2010) 50
Cal.4th 616, 661.)
“A trial court must instruct the jury on every theory that is
supported by substantial evidence, that is, evidence that would
allow a reasonable jury to make a determination in accordance
with the theory presented under the proper standard of proof.”
(People v. Cole (2004) 33 Cal.4th 1158, 1206.) Conversely, a trial
court commits error by instructing the jury on adoptive
admissions when there is insufficient evidence of any element of
an adoptive admission. (People v. Chism (2014) 58 Cal.4th 1266,
1297–1298.) We review de novo whether a jury instruction was
supported by substantial evidence. (People v. Parker (2022) 13
Cal.5th 1, 68.) “To warrant admissibility, it is sufficient that the
40
evidence supports a reasonable inference that an accusatory
statement was made under circumstances affording a fair
opportunity to deny the accusation; whether defendant’s conduct
actually constituted an adoptive admission becomes a question
for the jury to decide.” (People v. Edelbacher (1989) 47 Cal.3d
983, 1011.)
2. Analysis
Dawson contends that the trial court erred in instructing
the jury pursuant to CALCRIM No. 357 regarding adoptive
admissions because the instruction was not supported by the
evidence. Dawson admits that he did not object to the adopted
omission or CALCRIM No. 357 at trial, but argues that this court
must review the alleged instructional error because it affected a
substantial right. The People respond the claimed instructional
error was forfeited, but that regardless, substantial evidence
supports the instruction. We conclude that the trial court did not
err because the evidence was sufficient to support the inference
that Dawson tacitly admitted that he made K.B. masturbate him.
Dawson’s substantial rights are not implicated and the claim has
been forfeited.
In her Stuart House interview, K.B. stated that she and
Nicole confronted Dawson about Dawson making K.B.
masturbate him. Dawson did not deny that K.B.’s accusation was
true. K.B. described the incident as follows:
“[K.B.:] And that’s when—I just remember we was going
back—I was telling her what I remember. I don’t remember what
I said because I was kind of younger. But all I know is that she
knew. And we were going to approach him. He was asleep. We
41
were going into the room and woke him up. We was talking and
talking and talking. And all I remember is crying saying that I
wanted him to stay in the house, but I didn’t know any better. I
wanted him to stay in the house. He’s sorry. You know?
[Unintelligible] never do it again. And that was just that.
“[Interviewer:] Was he saying he was sorry?
“[K.B.:] Yeah. I, I think he—I’m not sure.
“[Interviewer:] Okay.
“[K.B.:] I can’t really give you a sure answer. But I know
she ended up forgiving him.”
K.B.’s statements support the conclusion that K.B. accused
Dawson of a crime, that he was able to hear, understand, and to
reply, and that he was not relying on his Fifth Amendment right
to remain silent. K.B. was unequivocal that she told her mother
about Dawson making her masturbate him and that she was
present when her mother told Dawson that K.B. claimed he had
abused her. Dawson was awake and they “talked and talked,”
which afforded him ample opportunity to reply.
K.B.’s statements also provide substantial evidence that
Dawson adopted her accusation as true. K.B. was in
approximately second grade when she and her mother confronted
Dawson about the abuse. Although she could not remember his
exact words upon hearing her accusation, she remembered their
import and paraphrased his response: “He’s sorry. . . . [N]ever
do it again.” She also stated that her mother responded by
“forgiving him.” The jury could reasonably infer that Dawson’s
response was not a denial that the abuse occurred, but rather an
admission that K.B.’s accusation was true.
We reject Dawson’s suggestion that because he and Nicole
testified that the conversation never occurred, K.B.’s statements
42
provide insufficient evidence to support the instruction. All that
is necessary is that the jury is presented with some evidence that
would sufficiently support the conclusion that Dawson made an
adoptive admission. (See People v. Alexander (2010) 49 Cal.4th
846, 921.) How much weight to give that evidence with respect to
conflicting evidence was for the jury to decide.
D. Prosecutorial Misconduct in Closing Statements
1. Legal Principles
“ ‘Under California law, a prosecutor commits reversible
misconduct if he or she makes use of “deceptive or reprehensible
methods” when attempting to persuade either the trial court or
the jury, and it is reasonably probable that without such
misconduct, an outcome more favorable to the defendant would
have resulted. [Citation.] Under the federal Constitution,
conduct by a prosecutor that does not result in the denial of the
defendant’s specific constitutional rights—such as a comment
upon the defendant’s invocation of the right to remain silent—but
is otherwise worthy of condemnation, is not a constitutional
violation unless the challenged action “ ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.’ ” (People v. Spector (2011) 194 Cal.App.4th 1335, 1402–
1403.) “[W]hen the claim focuses upon comments made by the
prosecutor before the jury, the question is whether there is a
reasonable likelihood that the jury construed or applied any of
the complained-of remarks in an objectionable fashion.” (People
v. Morales (2001) 25 Cal.4th 34, 44.)
43
“ ‘[A] “prosecuting attorney has a wide range in which to
state his views as to what the evidence shows and the conclusions
to be drawn therefrom[.]” ’ ” (People v. Rivera (2019) 7 Cal.5th
306, 336.) “ ‘A prosecutor is allowed to make vigorous arguments
and may even use such epithets as are warranted by the
evidence, as long as these arguments are not inflammatory and
principally aimed at arousing the passion or prejudice of the
jury.’ [Citation.]” (Id. at p. 337.) Prosecutors are “ ‘prohibited
from vouching for the credibility of witnesses or otherwise
bolstering the veracity of their testimony by referring to evidence
outside the record. [Citations.] Nor is a prosecutor permitted to
place the prestige of [his or her] office behind a witness by
offering the impression that [he or she] has taken steps to assure
a witness’s truthfulness at trial.’ ” (People v. Caldwell (2013) 212
Cal.App.4th 1262, 1269–1270, disapproved of on another ground
by People v. Rodriguez (2020) 9 Cal.5th 474, 485.) “[A]ny
allegedly improper statements by the prosecutor must be
considered in light of the entire argument. [Citation.] ‘ “In
conducting [our] inquiry, we ‘do not lightly infer’ that the jury
drew the most damaging rather than the least damaging
meaning from the prosecutor’s statements.” ’ [Citation.]” (People
v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 789
(Holmes).)
2. Analysis
Dawson contends that the prosecutor engaged in repeated
misconduct when making her closing statement to the jury.
Dawson did not object to any of the prosecutor’s alleged
misconduct at trial. To avoid forfeiture, a defendant must timely
44
and specifically object to any perceived misconduct. (People v.
Rivera, supra, 7 Cal.5th at p. 334.) Dawson has forfeited his
claims by failing to raise the issues below. Regardless, none of
his contentions have merit.
a. Propensity Evidence
Dawson first contends that the prosecutor introduced
uncharged offense evidence in closing argument despite agreeing
that she would not do so. He asserts that the prosecutor misled
the jury into believing that they should consider uncharged
offenses in conjunction with CALCRIM No. 1191B, which
instructed the jury that if it found the defendant guilty of one
charged offense beyond a reasonable doubt it could consider the
commission of that offense as evidence that the defendant had
the propensity to commit sexual abuse, and based on that
decision decide that the defendant was likely to commit the other
charged offense. Dawson’s argument has no merit. The
prosecutor properly explained how the jury could use the charged
crimes as propensity evidence and did not mention uncharged
crimes evidence.
Prior to trial, the court held a hearing at which the parties
discussed whether J.G., a third alleged victim, would be able to
appear as a complaining witness. The prosecutor represented
that if J.G. was unable to appear, the prosecutor would drop the
charges relating to J.G. and refrain from arguing that the facts of
the offenses against J.G. were evidence of Dawson’s propensity to
commit sexual abuse. J.G. was unable to appear at trial, and the
charges related to her were dismissed.
45
In closing argument the prosecutor made the following
remarks, to which Dawson objects: “There is a special way in the
law and you received a jury instruction on it—to consider
propensity to commit a crime. You can consider it when you find
somebody has committed a sex act that is other than the crime
you are looking at, you can use that to decide whether or not they
committed another sex act because they have a propensity to do
that kind of thing.” Immediately following the remarks Dawson
complains of, the prosecutor explained that the jury must
consider the two charged offenses separately, but that if “you
analyze count 1 first, and you agree that that’s been proven
beyond a reasonable doubt, you may then conclude that you can
use that evidence that the defendant was likely to commit and
did commit the other charged sex act.”
We find no misconduct. The prosecutor properly explained
how charged crimes may be used as propensity evidence. She
only discussed Dawson’s acts relating to J.S. and K.B. She did
not reference J.G., and J.G. was never mentioned at trial.10
10 Dawson states, without further argument, that the
prosecutor told the jury that it could use uncharged crimes as
circumstantial evidence of charged crimes. This is inaccurate.
The prosecutor stated that it was only necessary for the jury to
find three sexual acts against each victim within the alleged time
period. The prosecutor stated that, because both witnesses
testified to more than three incidents, the jurors could consider
their testimony regarding additional sex acts as circumstantial
evidence that the conduct was ongoing.
46
b. Adoptive Admission Evidence
Dawson also argues that the prosecutor improperly filled in
gaps in K.B.’s Stuart House interview statements and testimony
when she argued that the jury could consider as an adoptive
admission Dawson’s response to Nicole’s accusations that he
abused K.B. Dawson asserts that the prosecutor impermissibly
acted as her own witness.
Specifically, Dawson objects to the prosecutor’s statement
that: “[K.B.] told us mom came in and said did these things
happen with you and [Dawson] and [K.B.] started crying and said
yea.” “She woke [Dawson] up and she said, ‘Hey, what the hell?
What are you doing to my daughter? She says you are touching
her.” “[Dawson] didn’t say absolutely not. I did not touch her, I
never would. He said, ‘I’m sorry, I’m sorry, I’m sorry.’ ”
A criminal prosecutor has “much latitude” in closing
argument, and may make a “strongly worded and vigorous”
argument as long as it “fairly comments on the evidence” or “asks
the jury to draw reasonable inferences” from that evidence.
(People v. Seumanu (2015) 61 Cal.4th 1293, 1330.) “Counsel is
not permitted to ‘assume or state facts not in evidence [citation]
or mischaracterize the evidence [citation]’; however, the
reasonableness of inferences counsel draws from matters in
evidence ‘ “ ‘is for the jury to decide.’ ” ’ ” (Holmes, supra, 12
Cal.5th at p.787.)
As we discussed in Section C above, K.B. did not remember
the exact words that Dawson used in response to Nicole’s
accusations. She also did not directly quote what her mother said
during the conversation. Before making the remarks Dawson
47
complains of, the prosecutor reminded the jury that K.B. did not
“give us all the verbatim description of the conversation.” The
prosecutor did not represent that she was quoting testimony.
Using inferences from the facts, the prosecutor summarized the
confrontation in the form of a conversation to convey the events
as she viewed them in an accessible manner.
One could reasonably infer that after hearing Dawson
sexually abused her daughter, Nicole would question Dawson
vigorously and even use profanity when doing so. K.B. testified
and stated in her interview that she told her mother Dawson
made her masturbate him. When asked what she would do if
K.B. told her that Dawson had abused her, Nicole testified, “I
would not allow it. I will take it in my own hands. I’m sorry, but
if I can speak my own truth, no, I wouldn’t let anyone hurt my
babies.” Nicole further testified that if she found out that the
accusations were true, she would kick Dawson out of the house “if
he was still alive.”
The prosecutor’s description of Dawson’s response was also
based on reasonable inferences from the evidence. Although K.B.
could not recall Dawson’s exact words, she knew their import—
Dawson was sorry and would not abuse her again. The evidence
supported the conclusion that rather than denying the accusation
Dawson asked for forgiveness, even if he did not use the word
“sorry.”
Additionally, the trial court instructed the jury that “You
must decide what the facts are. It is up to all of you, and you
alone to decide what happened, based only on the evidence that
has been presented to you in this trial.” The court further
explained that “ ‘[e]vidence’ is the sworn testimony of witnesses,
the exhibits admitted into evidence, and anything else I told you
48
to consider as evidence. [¶] Nothing that the attorneys say is
evidence. In their opening statements and closing arguments,
the attorneys discuss the case, but their remarks are not
evidence. Their questions are not evidence. Only the witnesses’
answers are evidence.” The court further instructed the jury
that: “The court reporter has made a record of everything that
was said during the trial. If you decide that it is necessary, you
may ask that the court reporter’s record be read to you. You
must accept the court reporter’s record as accurate.” “[W]e
presume a jury understands and follows the court’s instructions,
and ‘ “treat[s] the court’s instructions as a statement of the law
by a judge, and the prosecutor’s comments as words spoken by an
advocate. . . .” [Citation.]’ ” (People v. Cortes (2022) 75
Cal.App.5th 198, 205.)
In light of the circumstances, we cannot conclude that
“there is a reasonable likelihood that the jury construed or
applied any of the complained-of remarks in an objectionable
fashion.” (People v. Morales, supra, 25 Cal.4th at p. 44.)
c. Adoptive Admission Instruction
At trial, the court instructed the jury regarding adoptive
admissions under CALCRIM No. 357:
“If you conclude that someone made a statement outside of
court that accused the defendant of the crime, and the defendant
did not deny it, you must decide each of the following is true:
“1. The statement was made to the defendant or made in
his presence;
“2. The defendant heard and understood the statement;
49
“3. The defendant would, under all the circumstances,
naturally have denied the statement if he thought it was not
true;
“AND
“4. The defendant could have denied it but did not.
“If you decide that all of these requirements have been met,
you may conclude that the defendant admitted the statement was
true.
“If you decide that any of these requirements has not been
met, you must not consider either the statement or the
defendant’s response for any purpose.”
Dawson contends that the prosecutor inaccurately
described the instruction on adoptive admissions. Dawson
argues that the prosecutor misstated the law when she stated:
“Adoptive admission. That you would shout, don’t accuse me of
that. Absolutely not. That if it didn’t happen and you believe the
accusation was made that you can take that into consideration as
an admission.”
Dawson does not explain what he believes is inaccurate
about the prosecutor’s statement, and he omits the remainder of
the prosecutor’s explanation of adoptive admissions. The
prosecutor continued, “So in this case what [K.B.] told us was
that Nicole confronted [Dawson] and she said, why are you
molesting my daughter? In so many words. And I would put to
you that statement was made to [Dawson] in his presence of
course because he was asleep and they woke him up to make that
accusation, that he heard and understood that statement, and
that he would under all circumstances that are—that a
reasonable person would consider naturally have denied that if
he thought it wasn’t true, and he could have. Meaning he had a
50
voice to do so or a pen and paper to write it down or a way to
communicate that denial, but he didn’t. He apologized. [¶] If you
decide these points of this particular jury instruction are met,
that these things are true based on the testimony you’ve heard
and the videos, you can conclude he admitted that statement,
that accusation was true that he was admitting he molested
[K.B.] by not denying.”
When viewed as a whole the prosecutor’s remarks
accurately reflect the law of adoptive admissions and the
instruction given. To the extent that it was an exaggeration to
state that a person must “shout” that the accusation is untrue, it
was an exaggeration that could only benefit Dawson. The law of
adoptive admissions requires only that an accusation be made
under circumstances in which a person would normally deny the
accusation was true. The prosecutor’s formulation contemplated
a more extreme scenario that would not apply to all adoptive
admissions.
d. Date Range Instruction
In closing argument, the prosecutor remarked, “The judge
instructed you about because of the nature of these crimes it is
very difficult for the victims of these crimes to look back and
remember an exact date. That’s why you get a large range
because they are telling you from the stand and testimony if you
believe them this is when these things happened in this range.”
(Italics added.) In fact, the court’s instruction did not include the
rationale behind the rule. It simply stated that it was not
51
necessary for the jury to find that the crimes took place on a
specific date.11
Dawson contends that the prosecutor improperly relied
upon the prestige of the court by stating that the court instructed
the jury that it is difficult for child abuse victims to remember
exact dates. We think it more likely that the prosecutor
mistakenly merged the instruction given with the rationale
behind the rule, which is not included in the standard
instruction. The reason given by the prosecutor was a correct
statement of the Legislature’s purpose in promulgating section
288.5. As one Court of Appeal long ago explained, “When a minor
is subjected to repeated acts of sexual molestation over an
extended period, that minor’s memory of events can tend to blur
and the minor can have difficulty remembering and testifying to
specific events in sufficient detail to support a conviction. To
remedy that problem, the Legislature created the new crime set
forth in section 288.5: ‘continuous sexual abuse of a child.’ This
new crime lightens the prosecution’s burden by dispensing with
the need to prove specific events.” (People v. Gohdes (1997) 58
Cal.App.4th 1520, 1528 disapproved on another ground by People
v. Rodriguez (2002) 28 Cal.4th 543.) Because the prosecutor’s
comment correctly described the reason that juries are permitted
to convict a defendant of continuous sexual abuse of a child based
11 The court instructed the jury under CALCRIM No. 207
as follows: “It is alleged that the crime in Count 1 occurred on or
between the dates of November 28, 2007, and November 27, 2017.
“It is alleged that the crime in Count 2 occurred on or
between the dates of January 20, 2007, and January 19, 2013.
“The People are not required to prove that the crimes took
place exactly on a certain day but only that they happened within
the above stated date ranges.”
52
on acts that occurred within a date range, the jury could not have
applied the prosecutor’s misstatement that the rationale was
included in the instruction to Dawson’s detriment. Finally, the
jury was provided with written instructions, and was told that it
must follow the instructions as given. Dawson’s substantial
rights were not impacted.12
e. “Expert” Opinion
Dawson complains that the prosecutor testified as an
expert witness on delayed reporting by stating that, “It became
such a mental trauma over the years [J.S. and K.B.] couldn’t keep
it inside anymore and they had to tell somebody. [¶] That’s why
we’re here. That’s why sometimes victims of these crimes report
so late because they have to try to deal with the trauma and they
realize they can’t and they have to tell and that’s exactly what
you heard from the witness stand.”
We disagree with Dawson’s characterization of the
prosecutor’s comments. The prosecutor’s statement—that
victims of childhood abuse “sometimes” disclose their abuse later
because they are processing trauma—was a common sense
explanation for J.S. and K.B.’s behavior that had a basis in the
record.
12 In the same paragraph of the opening brief, Dawson
mentions that the prosecutor “vouched by twice offering personal
opinions.” Dawson does not explain how the prosecutor’s
statements constituted improper vouching or prejudiced him and
he did not include the content of the prosecutor’s opinions, so we
will not address the issue.
53
Defense counsel responded by suggesting that the
prosecutor’s explanation represented her own opinion. He
suggested that the behavior would be better explained by an
expert, but then went on to offer his own view: “Why would
someone wait so long to report horrific conduct? That’s a defect
in this case.”
We cannot conclude that the jury would have accepted the
prosecutor’s statement as truth and disregarded defense counsel’s
argument. As we have discussed, the jury was instructed that
counsels’ arguments were advocacy, and that the jury alone was
charged with determining facts. We presume that the jurors
followed the trial court’s instructions, weighed the evidence
independently, and came to their own conclusions.
f. Forensic Evidence
We reject Dawson’s argument that the prosecutor misled
the jury into believing that the Stuart House interviews were
“scientifically reliable” by referring to them as “forensic”
interviews. As we stated in Section A of this opinion, “forensic” is
an accurate description of the interviews, which were created to
preserve evidence for prosecution in court.
g. Pastor’s Relationship
We also reject Dawson’s argument that the prosecutor
inaccurately stated that Pastor Grimes “didn’t know the family
during the time period these alleged crimes were occurring”
because K.B. had testified that Dawson abused her until she was
17 years old. Dawson argues that the prosecutor should have
54
stated Pastor Grimes did not know the family at the time that
the charged crimes were occurring—i.e., when J.S. and K.B. were
less than fourteen years old. In context, it is clear that the
prosecutor was referring to the time periods during which the
charged crimes occurred:
“Pastor Grimes . . . didn’t know the family during the time
period these alleged crimes were occurring. He knew them in the
18 months before the report which is after the substantial
conduct ended. And it’s not the time period that’s alleged.”
We find no misconduct.13
h. Other Uncharged Offenses
Dawson contends that the prosecutor improperly
introduced evidence of uncharged offenses against other victims.
He asserts that the prosecutor inserted J.S. and K.B.’s Stuart
House statements about other children who had contact with
Dawson, and resurrected the specter of J.G., the alleged victim in
charges that were dismissed prior to trial.
The prosecutor made no mention of other crimes in her
closing statement. As we discussed in Section A, in his closing
statement defense counsel argued that there was no evidence
that complaints had been filed against Dawson although he
worked with elementary school children for many years. In
rebuttal, the prosecutor briefly addressed defense counsel’s
13 Dawson also complains that, because he was arrested
during the pandemic, the prosecutor unfairly argued that Pastor
Grimes “hadn’t spoken to the defendant since he was arrested.
Did not see him nor talked to him on the phone”. The argument
lacks merit.
55
argument: “It is not in front of you to consider whether or not all
of the victims of Mr. Dawson are here. They may be. They may
not be. You are to consider the case that is in front of you and not
what else might be happening in a court system. You are not
allowed to speculate outside of the evidence that you have.”
It was not inappropriate for the prosecutor to re-focus the
jury’s attention on the case before them. She correctly pointed
out that the question at trial was whether Dawson had sexually
abused J.S. and K.B. on the evidence presented.14
i. Exploiting Fear and Emotion
Finally, Dawson contends that the prosecutor exploited the
jury’s fears and emotions by suggesting that J.S. and K.B. would
be impacted by Dawson’s abuse for life. Specifically, Dawson
complains the prosecutor argued that neither J.S. nor K.B. “think
they are going to be able to get over the trauma put onto them
when they were so young by Mr. Dawson because he broke that
level of trust[,]” and “He did this to them and they will live with
this for the rest of their [lives].”
Even if Dawson’s argument had not been forfeited for
failure to object at trial, any error was harmless, as the
14 As Dawson concedes, the jury was never told that J.G.
was an alleged victim. J.G.’s initials were mentioned once in voir
dire when the trial court read aloud “a large list of witnesses” in
the matter, some of whom “definitely . . . will not be called.”
Dawson’s contention that the jury would have pieced together
that J.G. had been an alleged victim in charges that were
dismissed before trial and then convicted Dawson to spare J.G.
from the ordeal of testifying in a different court case is highly
speculative.
56
prosecutor’s arguments were brief and not inflammatory. It is
common knowledge that the victims of child sexual abuse live
with the consequences throughout their lives. Additionally, the
trial court instructed the jurors that they could “not let bias,
sympathy, prejudice, or public opinion influence [their]
assessment of the evidence or [their] decision.” (CALCRIM
No. 200) The jury is presumed to have followed the trial court’s
instructions.
DISPOSITION
We affirm the trial court’s judgment.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.
57