People v. Gillard CA2/3

Filed 2/9/22 P. v. Gillard CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B301605
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. PA088987
v.
TERRY TERRELL GILLARD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Hayden Zacky, Judge. Affirmed.
Verna Wefald, 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,
Assistant Attorney General, Scott A. Taryle and Colleen M.
Tiedemann, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________
A jury found Terry Terrell Gillard guilty of committing
numerous sex crimes against minors while he was a youth
wrestling coach. On appeal, Gillard contends the court erred by
finding him competent to stand trial, denying his motion to sever
counts related to one of the victims, and excluding impeachment
evidence. He also argues the court was biased and the prosecutor
engaged in prejudicial misconduct. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The charged crimes
The People charged Gillard with 47 sex crimes involving
nine minors.1 Most of the charges arose out of incidents taking
place between 2014 and 2017, when Gillard was the wrestling
coach at the Boys and Girls Club and Polytechnic High School
(Poly). Eight of the nine victims were members of the Poly
wrestling team. The People also charged Gillard with three
counts related to an incident that occurred in 1991.
2. The prosecution’s case
a. Incident involving Abraham (counts 1–3)
Abraham A. joined a youth wrestling team in 1989, and
Gillard was his coach. In August 1991, right before Abraham’s
1 The specific counts are as follows: three counts of lewd act
upon a child under the age of 14 years (Pen. Code, § 288, subd.
(a); counts 1–3); three counts of lewd act upon a child between
14 and 15 years (Pen. Code, § 288, subd. (c)(1); counts 4, 23–24);
three counts of oral copulation of a person under 18 years
(Pen. Code, § 288a, subd. (b)(1); counts 5, 20, 22); 28 counts
of procuring a child to engage in a lewd act (Pen. Code, § 266j;
counts 6–9, 11, 13–16, 21, 25–42); and 10 counts of child
molesting (Pen. Code, § 647.6, subd. (a)(1); counts 10, 12, 17–19,
43–47).
2
12th birthday, Gillard drove to his house and said he had a
birthday gift for him. Abraham got into the front seat of Gillard’s
Cadillac. A woman, who Abraham believed was the mother of
another boy on the wrestling team, was sitting in the backseat.
Gillard parked his car a few blocks from Abraham’s house.
He handed Abraham a condom and said, “today, you’re going
to get your cherry popped.” Abraham moved to the backseat
of the Cadillac. The woman orally copulated Abraham and
they had sex while Gillard watched from the front seat. After
Abraham ejaculated, Gillard climbed into the backseat. Gillard
started having sex with the woman while she orally copulated
Abraham. Abraham eventually put on his clothes and got into
the front seat, where he waited for Gillard and the woman to
finish.
Abraham was initially proud and felt like he had become
a man. He boasted about what happened to his siblings and
best friends. Over time, however, he felt ashamed and guilty.
Abraham started acting out and his grades suffered.
In 2017, Abraham learned that Gillard had been arrested
for lewd conduct with minors. He decided to report the incident
to the police because he wanted to protect other children.
b. Incidents involving Kayla (counts 4, 5)
Kayla L. joined the Poly wrestling team in 2015, and
Gillard was her coach. Kayla and Gillard often spoke on
the phone. At first, they talked about wrestling and school,
but Gillard eventually started asking her sexual questions.
When Kayla was 14 years old, Gillard invited her to be
the team’s manager and join the “circle,” which was a group
of his most trusted wrestlers. Gillard, however, said he needed
to “vet” her first. Gillard drove to Kayla’s house, took her into
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her bedroom, and locked the door. He undressed Kayla, touched
her breasts and vagina, put his mouth on her vagina, and put
his penis inside her vagina. Kayla cried and told him to stop.
Gillard told Kayla to copulate him orally, but she refused.
Gillard eventually put on his clothes. He told Kayla she
had been “vetted” and was now a member of the circle. After
that day, Gillard frequently groped Kayla’s breasts and vagina,
both over and under her clothing.
When Kayla was around 14 or 15 years old, Gillard drove
her to his house after school. He took her into his bedroom, put
his fingers inside her vagina, and put his mouth on her vagina.
c. Incidents involving Kayla, Ivan, and Tiel (counts 6–8)
Gillard was Ivan S.’s wrestling coach at the Boys and
Girls Club and Poly. When Ivan was 14 years old, Gillard told
him Kayla wanted to perform oral sex on him in the school’s
“mat room.” Ivan was hesitant, but Gillard pressured him.
Ivan went into the mat room with Kayla, but he did not want
to have sex with her. Ivan instead jumped around the room
to make it appear that he was sweaty from having sex.
After Ivan left the mat room, Gillard groped Kayla’s vagina
over her clothes. He then told her to have sex with another
wrestler, Tiel. Gillard warned Kayla that if she did not have
sex with Tiel, he would have sex with her instead.
Tiel came into the room, pulled down Kayla’s underwear,
and inserted his penis into her vagina, which was painful and
caused Kayla to bleed. Kayla tried to clean the blood off the floor
before she left the mat room. She saw Gillard laughing after
he noticed her blood on Tiel’s shirt.
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d. Incidents involving Kayla and David (counts 9–12)
David S. met Gillard when he was 13 years old and
wrestling at the Boys and Girls Club. David later joined the
Poly wrestling team.
When David was 15 years old, Gillard took him to Kayla’s
house and told him to have sex with her, which he did. Another
time, Gillard drove David and Kayla to his house. Gillard left
them in his garage and said he would return when they were
finished having sex. David and Kayla had sex, and then Gillard
drove them home.
e. Incidents involving Kayla and Andy (counts 13, 14)
Andy joined the Poly wrestling team in the ninth grade.
When Andy was 15 years old, Gillard drove him to Kayla’s house
and told him to “vent off some frustration” by “screw[ing]” Kayla.
Andy and Kayla did not have sex; instead, they talked about
how they felt ashamed.
A week or two later, Gillard again dropped Andy off at
Kayla’s house and told him to “let it all out.” Andy was scared
and felt pressured by Gillard. Andy and Kayla eventually
had sex in her bedroom.
f. Incidents involving Kayla, Jaslyn, and Tiel
(counts 15, 16)
In July 2015, Gillard brought Tiel and another Poly
wrestler, Jaslyn A., to Kayla’s house. Gillard told them to have
a threesome, and he became angry when they refused. Jaslyn
was scared, so she hid under the bed and started crying. Gillard
eventually left the house with Jaslyn.
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g. Incidents involving Kayla, Ivan, and Norman
(counts 17–19)
Norman R. joined the Poly wrestling team in the ninth
grade. When Norman was 15 or 16 years old, Gillard drove him
and Ivan home from practice. On the way, Gillard called Kayla
and said he had two “studs” for her. Gillard drove Norman
and Ivan to Kayla’s house and told them to go inside her room
through a window, which they did. Ivan and Norman did
not want to have sex with Kayla, so they made up an excuse
and left after a few minutes.
h. Incidents involving Kayla and Adrian (counts 20–22)
Adrian V. joined the Poly wrestling team his freshman
year. When Adrian was 14 years old, he attended a party with
Gillard and several members of the wrestling team. At the party,
Gillard told Kayla to “vet” Adrian. Kayla understood Gillard
to mean he wanted her to have sex with Adrian. Kayla orally
copulated Adrian and they had sex while Gillard watched.
Gillard told Adrian, “Congratulations. You’re officially part
of the circle.” After Adrian left the room, Gillard put his mouth
on Kayla’s vagina.
i. Incidents involving Jaslyn (counts 23, 24, 43–47)2
Jaslyn joined the Poly wrestling team in 2013, when she
was 14 years old. Gillard was initially kind to Jaslyn, and he
made her the team captain. At some point, he started driving
Jaslyn home after wrestling practices.
Toward the end of her ninth grade year, Gillard told Jaslyn
she had a “fat ass,” which made her uncomfortable. He started
calling her on the phone every day and would ask her sexual
2 The prosecutor charged Gillard in counts 45 and 46 with
an incident related to Jaslyn and Ivan.
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questions. He would also kiss Jaslyn on the cheek, very close
to her mouth.
When Jaslyn was 15 years old, Gillard drove her home
from practice and told her they were going to have sex. He put
his hand inside her pants and touched her vagina. He then took
her hand and put it on his erect penis. Jaslyn was scared and
pulled her hand away.
In April 2016, when Jaslyn was 16 years old, Gillard said
he did not trust her and needed to test her. He kissed her on
the mouth and touched her thigh and vagina.
When Jaslyn when 17 years old, Gillard told her to meet
him alone because she needed to do the ultimate test. Jaslyn
was scared, so she brought Ivan with her. Gillard told Jaslyn
and Ivan to have sex in his car. Jaslyn and Ivan did not want
to have sex, so they faked it. Gillard dropped off Ivan at home.
While driving Jaslyn home, Gillard started touching her
body. Jaslyn used her phone to record three videos of Gillard,
which the prosecutor played for the jury. One of the videos
depicted Gillard touching Jaslyn’s thigh and vaginal area. Jaslyn
said, “Sir, can you please stop, you’re my coach,” to which Gillard
replied, “You better get that fucking damn camera out of my
face.”
The next morning, Jaslyn told her principal what Gillard
had done, and the principal called the police. Jaslyn gave
her principal her phone, which contained the videos of Gillard
touching her.
j. Incidents involving Jaslyn and Andy (counts 25–30)
Gillard made Jaslyn and Andy have sex several times,
often in front of other students. In December 2014, when Jaslyn
was 15 years old and Andy was 14 years old, Gillard drove them
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home from a Christmas party and told them to have sex. Jaslyn
did not want to have sex with Andy, but she was scared. Andy
was hesitant at first, but he and Jaslyn eventually had sex
while Gillard watched through the rear-view mirror. After
they finished, Gillard said “damn, girl,” and he seemed proud.
Another time, Gillard drove Jaslyn and Andy back from
a tournament in La Puente in a van belonging to the Boys and
Girls Club. Gillard told Jaslyn and Andy to have sex in the van,
which they did. On another occasion, Gillard told Jaslyn to
have sex with Andy during a team picnic at El Cariso park.
Jaslyn and Andy had sex in the Boys and Girls Club van
in front of other members of the wrestling team.
k. Incidents involving Jaslyn and Miguel (counts 31–42)
Miguel C. joined the Poly wrestling team in the tenth
grade, and Gillard was his coach. Gillard made Miguel and
Jaslyn have sex 30 or 40 times. The first time, Gillard told
them to have sex while he was driving them home from practice.
They eventually had sex in the backseat of the Boys and Girls
Club van.
Another time, Gillard was driving Jaslyn, Miguel, and
several other students home in his Cadillac. After dropping off
one student, he told Jaslyn and Miguel to have sex, which they
did. Gillard and two students, Brenda and Janet, were in the
front seat.
On another occasion, Gillard was driving Jaslyn, Miguel,
and Ivan to a tournament in the Boys and Girls Club van. Jaslyn
had not made her weight class for the tournament. Gillard told
her to lose weight by having sex with Miguel, which she did.
Another time, Gillard drove Jaslyn, Miguel, and Brenda
home from Gillard’s brother’s house. He asked Jaslyn and
8
Miguel if they would have a threesome with Brenda, but they
refused. Gillard became upset. He dropped off Brenda and
then told Jaslyn and Miguel to have sex while he drove, which
they did.
Gillard also made Jaslyn and Miguel have sex in the back
of his black Mitsubishi. Gillard watched them from the front
seat.
l. DNA evidence
Police recovered sperm from the backseat of Gillard’s car.
The sample contained Miguel’s and Jaslyn’s DNA. Police also
recovered sperm from several locations in Gillard’s garage,
but none of the samples contained DNA from Gillard or any
of the victims.
m. Expert testimony
The People presented expert testimony from Judy Ward
on Child Sexual Abuse Accommodation Syndrome (CSAAS).
Ward testified there are five components to CSAAS: secrecy,
helplessness, accommodation, delayed disclosure, and retraction.
According to Ward, CSAAS can help to explain an abused child’s
reactions, but it is not a diagnostic tool.
3. The defense’s case
Gillard’s theory of the case was that the victims, led
by Jaslyn, devised a plan to accuse him of sexual misconduct
in order to obtain a financial award or settlement. Gillard also
asserted the prosecutor used leading and suggestive questions
during interviews with the victims, which may have implanted
memories in their minds or led them to make false accusations.
In support of these theories, Gillard presented the following
evidence.
9
According to Sedrick Azurdia, Ivan claimed Jaslyn and
her attorneys told everyone to get together because they had
a million dollar case against Gillard. Ivan also said Gillard
did not molest him.
Humberto Parra asked Miguel whether Gillard touched
him, and Miguel replied “no.” Parra said, “you really ruined
a man’s life,” to which Miguel responded, “I know I did.” Miguel
said he “wanted out” because his mother had a serious health
condition.
Jordan C., who wrestled for Gillard at Poly and the Boys
and Girls Club, was in a group text message with Norman and
Ivan in September 2017. Ivan claimed he missed Gillard and
regretted “going along with the whole thing.” Ivan said, “ ‘It’s
all Jaslyn’s fault. We went along with it because she said it.’ ”
Norman agreed.
Pedro S. wrestled for Gillard from 2013 through 2017.
During an interview with the prosecutor and a detective, Pedro
denied that Gillard ever directed him to engage in sexual
activities with another student. The prosecutor told Pedro
she knew he was lying and they found his DNA in semen
samples, which was not true. At one point, the detective told
the prosecutor to calm down while questioning Pedro.
John Paez started a youth wrestling club with Gillard,
and he was one of Abraham’s coaches. Paez was not aware of
any sexual conduct between Gillard and Abraham. Once during
a get-together at Gillard’s house, Paez stopped Abraham and
a group of boys from having sex with a clearly intoxicated girl.
Gillard also presented testimony from numerous coaches,
parents, and students who claimed they never witnessed Gillard
engage in any inappropriate conduct with students. Several
10
witnesses also testified that Jaslyn had access to Gillard’s car,
which would explain how her and Miguel’s DNA ended up
in the backseat.
In addition, Gillard presented expert testimony from
Matthew Gabler, who testified about unexplained metadata
connected to Jaslyn’s videos. Gillard also presented expert
testimony from a psychologist, Mitchell Eisen, about the
limitations of CSAAS and the risks of suggestibility during
witness interviews. Eisen testified that the tone of voice of
the interviewer, the use of leading questions, and calling someone
a liar can impact witness statements. According to Eisen, minors
are particularly vulnerable to influence, and coercive questioning
methods can result in increased suggestion.
4. Verdict and sentencing
The jury deliberated for about a day before convicting
Gillard as charged. The court imposed an aggregate sentence
of 71 years. The court ordered Gillard to pay direct victim
restitution, and it imposed various fines and fees.
Gillard timely appealed.
DISCUSSION
1. Competency issues
Gillard argues he was incompetent to stand trial, and
the trial court erred in finding otherwise. He also contends
the trial court prejudged the competency issue, which violated
his constitutional right to an impartial judge.
a. Background
i. Pre-competency hearing proceedings
On March 18, 2019, the court held a pretrial hearing to
consider the parties’ motions to exclude evidence. At the hearing,
defense counsel declared a doubt as to Gillard’s competency
11
to stand trial. Counsel submitted a report from Dr. Abraham
Argun, in which the doctor concluded—based on a “brief
neurocognitive/neuropsychological screening”—it was highly
probable Gillard was suffering from “cognitive deterioration . . .
raising questions . . . about his competency to stand trial
at this time.” Dr. Argun did not sign the report under penalty
of perjury.
After reviewing Dr. Argun’s report and discussing the
matter with defense counsel in camera, the trial court asked
Gillard a series of questions to gauge his competency. Gillard
successfully answered the court’s questions regarding his name
and birthday, the date, where he was being housed, and how
long he had been in custody. Gillard did not know the particular
counts he was charged with, but he understood the basic
allegations against him. He was able to identify defense counsel
and the judge, as well as their roles in the case. The court
concluded, based on its interactions with Gillard and Dr. Argun’s
report, that Gillard was not mentally incompetent to proceed
with trial.
A few days later, on March 22, defense counsel argued
Dr. Argun’s report constituted substantial evidence sufficient
to compel a full evidentiary hearing on the competency issue.
The court said it would review the relevant law and revisit
the issue in the next few days. The court then began time-
qualifying jurors and considering their hardship claims.
On March 26, defense counsel filed an objection to
the court’s competency finding, along with a declaration from
Dr. Argun. In response, the court appointed Dr. Haig Kojian
to examine Gillard the next morning. Gillard then waived his
right to a jury trial on the competency issue, and defense counsel
12
joined the waiver. Defense counsel asked the court to suspend
proceedings, but the court declined to do so until it heard from
Dr. Kojian.
Dr. Kojian examined Gillard for about an hour the morning
of March 27, after which he informed the court Gillard was
competent to stand trial. The court nevertheless suspended
proceedings pending a competency hearing. The court explained
that, after giving more thought to the issue, it determined it
should have suspended proceedings when it received Dr. Argun’s
declaration the previous day. The court noted it could issue
an order retroactively suspending proceedings to that point,
but it would have little practical effect.
Defense counsel then moved to withdraw the jury waiver
on the competency issue. Counsel said he had serious concerns
that the court had prejudged the issue given its earlier remarks
that it believed Gillard was competent.
The court denied counsel’s request to withdraw the waiver.
The court explained that, until it received Dr. Argun’s
declaration, it had an obligation to make its own threshold
finding of competency. The court also expressed concern that
a jury trial on the competency issue would cause a long delay.
It noted the witnesses had been subpoenaed for the underlying
trial and there had been significant progress in jury selection.
Specifically, the court had already time-qualified almost 250
jurors to serve on a trial that it estimated to last several weeks.
The next day, defense counsel objected to the court
acting as factfinder at the competency hearing. Counsel argued
the court made statements indicating its goal was to “get[ ]
the competency issue out of the way so the jury would
not be inconvenienced.” The court construed the objection
13
to be a motion to disqualify under Code of Civil Procedure
section 170.3, which it struck after finding no legal grounds
for disqualification.
ii. The competency hearing
The court held a competency hearing on March 28, at which
Dr. Argun and Dr. Kojian testified as follows.
Dr. Argun, who is a forensic clinical psychologist,
spent seven hours interviewing Gillard and conducting tests.
Dr. Argun diagnosed Gillard with a cognitive disorder
not otherwise specified (NOS), and he opined that Gillard was
not competent to stand trial. He reached this conclusion after
scoring the various tests, and he would not have come to the
same conclusion had he simply spoken to Gillard.
Although Dr. Argun found Gillard to have an IQ of 85,
which is on the low side of normal, he concluded Gillard’s
ability to think abstractly was at the level of a ten-year-old boy.
Dr. Argun observed that Gillard’s mood, concentration, and
attention varied frequently, he had difficulty with abstract
concepts and problem solving, and he often rambled, which
showed tangential thinking.
Dr. Argun also observed issues with Gillard’s memory.
Gillard, for example, had difficulty remembering a six-line
short story. He also could not explain the roles of the court,
defense counsel, and the prosecutor, despite Dr. Argun explaining
them to him a half hour earlier.
Dr. Argun testified that Gillard’s cognitive impairment was
progressive and the observable symptoms should have appeared
earlier than the last two weeks. The condition would have been
“going on for some time,” at least in the “last five, six, ten years.”
14
Dr. Haig Kojian, who is a forensic psychologist, interviewed
Gillard for about an hour.3 He also reviewed Dr. Argun’s report,
Dr. Argun’s raw notes and testing data, hearing transcripts,
and police reports.
Dr. Kojian opined that Gillard was competent to
stand trial. He found Gillard to be a “pleasant and adult level
individual,” and he saw no signs that Gillard had the mental
capacity of a 10-year-old child. Dr. Kojian noted that Gillard’s
thinking was intact, linear, and on topic. He answered the
doctor’s questions without difficulty, his speech was not impaired,
and he had no memory problems. Gillard, in fact, recalled
detailed information from his past with remarkable accuracy.
Gillard also appreciated the seriousness and gravity of his
situation, and he was able to identify the names and roles
of the judge, defense counsel, and the prosecutor.
Dr. Kojian did not agree with Dr. Argun’s diagnosis of
a cognitive disorder NOS, which he noted was made under an
older version of the Diagnostic and Statistical Manual of Mental
Disorders (DSM). Dr. Kojian did not see any signs that Gillard
suffered from a cognitive disorder found in the current version
of the DSM.
iii. The court’s decision
The court found Gillard was competent to stand trial.
The court explained it was undisputed Gillard did not suffer
from a mental illness and did not have a developmental defect
or disorder. He has an I.Q. within the normal range, held down
regular jobs throughout his life, was a high school wrestling
3 Dr. Kojian submitted a written report that generally
tracked his testimony at the hearing.
15
coach, lived with his spouse for 40 years, and raised a child. He
exhibited no abnormal or bizarre behavior in court, and he was
able to answer the court’s questions regarding the proceedings
against him. Dr. Kojian, moreover, testified that Gillard does
not have any cognitive defects and has an excellent memory.
The court also noted that any impairment should have been
apparent to defense counsel—who had been representing Gillard
for more than a year—well before he raised the issue with the
court. Further, although Dr. Argun testified that Gillard
could not identify the attorneys and judge or their roles, he
subsequently was able to do so in court and during his interview
with Dr. Kojian.
b. Substantial evidence supports the court’s competency
finding
The due process guarantees of both the federal and state
Constitutions forbid the trial of a criminal defendant while he
is mentally incompetent. (People v. Buenrostro (2018) 6 Cal.5th
367, 385.) Under Penal Code section 1367,4 a defendant is
mentally incompetent “ ‘if, as a result of mental disorder or
developmental disability, the defendant is unable to understand
the nature of the criminal proceedings or to assist counsel in
the conduct of a defense in a rational manner.’ ” (Buenrostro,
at p. 385.) “The law presumes a person is competent to stand
trial. ([ ] § 1369, subd. (f).) ‘When the defendant puts his or her
competence to stand trial in issue, the defendant bears the
burden of proving by a preponderance of the evidence that he
or she lacks competence.’ ” (Id. at p. 387.)
4 Undesignated statutory references are to the Penal Code.
16
On appeal, “a finding of competency to stand trial ‘cannot
be disturbed if there is any substantial and credible evidence in
the record to support the finding.’ ” (People v. Hightower (1996)
41 Cal.App.4th 1108, 1111.) “[A]n appellate court must view the
record in the light most favorable to the verdict [that a defendant
is mentally competent] and uphold the verdict if it is supported
by substantial evidence.” (People v. Marshall (1997) 15 Cal.4th 1,
31.) “Evidence is substantial if it is reasonable, credible, and of
solid value.” (Ibid.)
Here, there is substantial evidence supporting the
trial court’s finding that Gillard was competent to stand trial.
Although Dr. Argun diagnosed Gillard with a cognitive disorder,
Dr. Kojian found his thinking was intact, linear, and on topic, he
was able to answer questions without difficulty, and his speech
was not impaired. Dr. Kojian did not observe any problems with
Gillard’s memory, and he noted that Gillard could recall detailed
information about his past. In response to the court’s and
Dr. Kojian’s questioning, Gillard was able to identify the names
and roles of the judge, defense counsel, and the prosecutor. He
also knew the general nature of the charges against him, and,
according to Dr. Kojian, appreciated the seriousness and gravity
of his situation. In light of this evidence, the court could
reasonably conclude Gillard understood the nature of the
criminal proceedings and was capable of assisting his counsel
in a rational manner.
Gillard insists the trial court was required to credit
Dr. Argun’s opinion over Dr. Kojian’s given Dr. Argun spent
more time with Gillard, interviewed him face-to-face, and
performed a variety of tests on him. We disagree. Gillard
overlooks that Dr. Kojian reviewed Dr. Argun’s report—including
17
the results of Dr. Argun’s tests—before he formed his opinion.
Dr. Kojian also briefly reviewed Dr. Argun’s raw notes and data.
Neither changed his opinion that Gillard was competent to stand
trial.
Gillard also overlooks the evidence contradicting many of
Dr. Argun’s observations and test results. Dr. Argun’s opinion
was premised in large part on his observations that Gillard
rambled and had problems with his short-term memory. On
the latter point, Dr. Argun cited Gillard’s failure to memorize
a short story and recall information about the court process
a half hour after Dr. Argun explained it to him. Dr. Kojian,
however, found Gillard’s thinking was intact and linear, and he
did not observe any problems with Gillard’s memory. Moreover,
contrary to Dr. Argun’s claims, Gillard was able to retain
information about the court process, as he correctly answered
Dr. Kojian’s and the court’s questions on the topic several days
after his interview with Dr. Argun.
Further, despite Dr. Argun’s testimony that Gillard’s
cognitive impairment would have been “going on” for at least
five to ten years, the defense presented little evidence showing
he displayed symptoms over that time period. As the court aptly
noted, defense counsel had been representing Gillard for more
than a year, yet raised a doubt about his competency only on
the eve of trial. On this record, the court could reasonably reject
Dr. Argun’s opinion that Gillard was suffering from a cognitive
impairment that rendered him incompetent to stand trial.
In passing, Gillard suggests the trial court improperly
relied on his lack of outbursts in the courtroom and his ability
to answer questions about the proceedings. According to Gillard,
a court’s colloquy with a defendant is not sufficient to find him
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competent to stand trial. The court, however, did not rely solely
on its own observations and interactions with Gillard. And
contrary to Gillard’s suggestions, a trial court may properly
consider its own observations, and weigh them against expert
reports and other available evidence. (People v. Rodas (2018)
6 Cal.5th 219, 234.)
We also reject Gillard’s brief contention that the trial court
ignored his evidence and gave insufficient weight to defense
counsel’s opinion that he was incompetent. Where, as here,
“our review of the record shows that there is substantial evidence
to support the judgment, we must affirm, even if there is also
substantial evidence to support a contrary conclusion and the
[trier of fact] might have reached a different result if it had
believed other evidence.” (People v. Riley (2015) 240 Cal.App.4th
1152, 1165–1166; see People v. Mendoza (2016) 62 Cal.4th 856,
883 [when reviewing a competency finding, the reviewing court
does not substitute its judgment for that of the trier of fact or
reweigh the evidence].)
c. The trial court did not deny Gillard the right
to an impartial judge
A “[d]efendant has a due process right to an impartial
trial judge under the state and federal Constitutions. [Citations.]
The due process clause of the Fourteenth Amendment requires
a fair trial in a fair tribunal before a judge with no actual bias
against the defendant or interest in the outcome of the case.”
(People v. Guerra (2006) 37 Cal.4th 1067, 1111.) “On appeal, we
assess whether any judicial misconduct or bias was so prejudicial
that it deprived defendant of ‘ “a fair, as opposed to a perfect,
trial.” ’ ” (Id. at p. 1112.)
19
Gillard argues the trial court violated his right to due
process by prejudging the competency issue.5 He insists the
trial court’s bias is evident from the fact that it refused to
declare a doubt as to his competency and suspend proceedings
immediately after receiving Dr. Argun’s report. We disagree.
In support of its decision not to suspend proceedings
immediately, the trial court cited People v. Sattiewhite (2014)
59 Cal.4th 446. In that case, the Supreme Court explained that
a court has an obligation to suspend proceedings only if defense
counsel “present[s] expert opinion from a qualified and informed
mental health expert, stating under oath and with particularity
that the defendant is incompetent, or counsel [makes] some other
substantial showing of incompetence that supplements and
supports counsel’s own opinion.” (Id. at p. 465, italics added.)
Because Dr. Argun did not sign his report under oath, the
trial court believed it had an obligation independently to assess
Gillard’s competency. Based on Gillard’s responses to the court’s
questions, it reasonably concluded he was competent and refused
to suspend the proceedings. Shortly after the court received
5 We reject the Attorney General’s contention that Gillard
forfeited this issue by failing to seek writ review of his motion
to disqualify, as required under Code of Civil Procedure section
170.3. Our Supreme Court has explained that, “notwithstanding
the exclusive-remedy provision of Code of Civil Procedure section
170.3, ‘a defendant may assert on appeal a claim of denial of the
due process right to an impartial judge.’ [Citation.]” (People v.
Panah (2005) 35 Cal.4th 395, 445, fn. 16; see People v. Chatman
(2006) 38 Cal.4th 344, 363 [considering the defendant’s
constitutional challenge asserting judicial bias, even though
the defendant did not file a writ petition].) Here, Gillard’s
claim arises out of his constitutional right to due process.
20
a declaration from Dr. Argun, it set a competency hearing,
appointed an expert to interview Gillard, and suspended
proceedings. On this record, we see nothing to suggest the
court was biased or had prejudged the competency issue.
Gillard contends that under People v. Tomas (1977) 74
Cal.App.3d 75, the court was required to suspend proceedings
as soon as it received Dr. Argun’s report. In Tomas, the Court
of Appeal held a trial court should have suspended proceedings
upon receiving a doctor’s report that the defendant was
incompetent, even though the report was not made under oath.
(Id. at p. 91.) Tomas, however, is distinguishable, as the trial
court in that case retained the expert; here, defense counsel
retained Dr. Argun. In any event, the sequence of events
described above clearly shows the court was acting in good faith.
Therefore, even if the court should have suspended proceedings
earlier, its failure to do so does not indicate bias.
We also disagree with Gillard’s suggestion that the trial
court should have granted his request to withdraw his waiver
of a jury trial. “It is well established that a waiver of a jury trial,
voluntarily and regularly made, cannot afterward be withdrawn
except in the discretion of the court. [Citations.] Absent special
circumstances the court may deny a motion to withdraw such
a waiver especially where adverse consequences will flow from
the defendant’s change of mind. In exercising its discretion the
court may consider such matters as the timeliness of the motion
to withdraw the waiver, the reason for the requested withdrawal
and the possibility that undue delay of the trial or inconvenience
to witnesses would result from granting the motion.” (People v.
Chambers (1972) 7 Cal.3d 666, 670–671.)
21
Here, the trial court reasonably refused Gillard’s request
to withdraw the waiver because it would have inconvenienced
the witnesses and prospective jurors in the underlying trial.
Gillard, moreover, failed to provide a compelling reason for
the request; as discussed above, the record does not show the
court had prejudged the competency issue or was otherwise
biased. Gillard suggests the court’s stated reasons were
pretextual because it could have used the pre-existing pool of
prospective jurors to decide the competency issue. Even if that
were true, a jury trial on the competency issue still would have
inconvenienced the witnesses by causing a significant delay
in the underlying trial. Under these circumstances, the court’s
denial of Gillard’s motion to withdraw the waiver was not an
abuse of discretion and does not show bias.
2. The trial court did not deny Gillard his right to
due process by refusing to sever the charges related
to Abraham
a. Background
Before trial, Gillard moved to sever the charges related
to Abraham A. He argued the incident with Abraham was not
sufficiently similar to the incidents with the Poly students, it was
too remote in time, and the evidentiary case was significantly
weaker than the other charges. The court denied Gillard’s
motion, finding he “failed to overcome the statutory preference
for joinder and failed to establish that there is a substantial
danger of prejudice that requires the charges be separately tried.”
b. Analysis
Section 954 authorizes the joinder of charged offenses
connected together in their commission or belonging to the same
class of crimes. “[B]ecause consolidation or joinder of charged
22
offenses ordinarily promotes efficiency, that is the course of
action preferred by the law.” (Alcala v. Superior Court (2008)
43 Cal.4th 1205, 1220 (Alcala); see People v. Manriquez (2005)
37 Cal.4th 547, 574 (Manriquez) [“ ‘The law prefers consolidation
of charges.’ ”].) Offenses may be joined even if they “ ‘ “do not
relate to the same transaction and were committed at different
times and places . . . against different victims.” ’ ” (Alcala, at
p. 1218, italics omitted.)
A trial court must grant a motion to sever joined charges
if the defendant makes a clear showing of potential prejudice.
(People v. Bradford (1997) 15 Cal.4th 1229, 1315.) In deciding
such a motion, a court must consider whether: (1) evidence of
the crimes would be cross-admissible in separate trials; (2) some
of the charges are unusually likely to inflame the jury against
the defendant; and (3) a “ ‘weak’ ” case has been joined with
a “ ‘strong’ ” case so that the “ ‘spillover’ ” effect of aggregate
evidence on several charges might alter the outcome of some
or all of the charges. (Manriquez, supra, 37 Cal.4th at p. 574;
People v. Kraft (2000) 23 Cal.4th 978, 1030 (Kraft).) “Because
of the factors favoring joinder, a party seeking severance must
make a stronger showing of potential prejudice than would be
necessary to exclude other-crimes evidence in a severed trial.”
(People v. Arias (1996) 13 Cal.4th 92, 127; see Alcala, supra,43 Cal.4th at p. 1221 [“ ‘The state’s interest in joinder gives
the court broader discretion in ruling on a motion for severance
than it has in ruling on admissibility of evidence.’ ”].)
We review a trial court’s denial of a motion to sever for an
abuse of discretion. (Kraft, supra, 23 Cal.4th at pp. 1030, 1032.)
In doing so, we consider the record before the trial court when it
made its ruling. (People v. Merriman (2014) 60 Cal.4th 1, 37–38,
23
46–49; People v. Soper (2009) 45 Cal.4th 759, 774.) But even if
a trial court’s severance or joinder ruling is correct at the time
it was made, we must reverse the judgment if the defendant
shows joinder actually resulted in “ ‘gross unfairness’ ”
amounting to a denial of due process. (People v. Ybarra (2016)
245 Cal.App.4th 1420, 1434 (Ybarra); People v. Mendoza (2000)
24 Cal.4th 130, 162.)
As Gillard seems to concede, the statutory requirements
for joinder were satisfied in this case because all the charged
offenses were of the same class. (Kraft, supra, 23 Cal.4th at
p. 1030.) Gillard nevertheless insists the trial court should
have granted his motion to sever the counts related to Abraham
because they were unduly inflammatory and prejudicial. He
contends that in the eyes of jurors, directing an 11-year-old boy
to have sex with an adult is far worse than directing teenagers to
have sex with each other. Once the jurors heard the allegations
related to Abraham, Gillard argues, it was impossible for them
to weigh the credibility of his other accusers fairly.
We are not convinced the jurors would have viewed
the incident involving Abraham as being significantly more
inflammatory than the incidents involving the Poly students.
Initially, the age difference between Abraham and the other
victims was not as substantial as Gillard suggests. Abraham
testified that he was nearly 12 years old when Gillard directed
him to have sex. Many of the other victims, including Kayla,
Ivan, Adrian, and Andy, were 14 years old during some of the
other charged incidents. An age difference of around two years
is not particularly meaningful.
Gillard also overlooks that the incidents involving the
Poly students were themselves quite inflammatory. The jury,
24
for example, heard Kayla testify that Gillard orally copulated
and vaginally penetrated her while she cried and told him
to stop. It also heard testimony that Gillard directed young
teenagers to perform sexual acts while he watched, routinely
groped Jaslyn and Kayla, and laughed when he saw Kayla was
bleeding after having sex with another student at his direction.
We cannot say the incident with Abraham was more
inflammatory than any of these incidents.
We also reject Gillard’s passing suggestion that the
evidentiary case involving Abraham was significantly weaker
than the cases involving the other victims. According to Gillard,
the charges related to Abraham were particularly weak given
the incident occurred nearly 30 years earlier, and Abraham did
not tell anyone about it until very recently. On the latter point,
Gillard is simply wrong; Abraham testified at trial that he told
many people about the incident soon after it occurred. Moreover,
although the incident took place several decades earlier,
Abraham’s testimony was detailed and compelling, and he had
no obvious motivation to lie.6 While there was certainly more
evidence supporting some of the other charges, “[i]n order
to demonstrate the potential for a prejudicial spillover effect,
defendant must show an ‘extreme disparity’ in the strength or
inflammatory character of the evidence.” (Ybarra, supra, 245
Cal.App.4th at p. 1436.) Gillard has not met that burden here.
6 Gillard presented evidence that Abraham’s niece
knew some of the Poly victims. He failed, however, to offer
a compelling reason why that connection would lead Abraham
to fabricate allegations against him.
25
On this record, the trial court did not abuse its discretion
in denying Gillard’s motion to sever. Nor did joinder actually
result in gross unfairness amounting to a denial of due process.
3. The trial court did not violate Gillard’s
constitutional rights by excluding evidence of
Abraham’s robbery conviction
a. Background
Before trial, the prosecutor moved to exclude under
Evidence Code section 352 evidence that Abraham was convicted
of bank robbery in 1999, when he was 18 years old. The
prosecutor represented that Abraham was sentenced to
three years of supervised release, which he successfully
completed.7 She argued the probative value of the evidence
for impeachment was slight and would necessitate the undue
consumption of time, as the People would need to explain the
7 Gillard requests we take judicial notice of documents
showing that, in addition to three years of supervised release,
Abraham was sentenced to 30 months in prison and required
to pay restitution. We deny the request, as there is nothing in
the record indicating either party presented the documents to
the trial court. (People v. Preslie (1977) 70 Cal.App.3d 486, 493
[“as a general rule the court should not take [judicial] notice if,
upon examination of the entire record, it appears that the matter
has not been presented to and considered by the trial court in
the first instance”].) Moreover, to the extent Gillard contends
the prosecutor misrepresented Abraham’s sentence, any error
was harmless. The prosecutor attached to her original motion
a document showing Abraham was sentenced to 30 months in
prison. We presume the court reviewed this document before
making its ruling, and nothing in the record suggests otherwise.
(See Evid. Code, § 664.)
26
circumstances of the offense and introduce evidence of Abraham’s
character for truthfulness. According to the prosecutor, Abraham
became a pastor and completely turned his life around after
the conviction.
Gillard responded that Abraham’s conviction was
admissible because robbery is a crime of moral turpitude and
the conviction was not too remote in time. He argued that
without evidence of the conviction, the jury would be deceived
into believing Abraham is an honest and forthright individual
who has lived a life free from felony conduct.
The trial court granted the prosecutor’s motion and
excluded the evidence. It noted the conviction was 20 years old,
Abraham had since become a pastor, and he had not suffered
any subsequent convictions.
b. Analysis
The California Constitution provides that “[a]ny prior
felony conviction of any person in any criminal proceeding . . .
shall subsequently be used without limitation for purposes
of impeachment.” (Cal. Const., art. I, § 28, subd. (f), par. (4).)
The Supreme Court has interpreted this provision to authorize
“the use of any felony conviction which necessarily involves
moral turpitude,” subject to the trial court’s discretion under
Evidence Code section 352. (People v. Castro (1985) 38 Cal.3d
301, 306.) Robbery is a crime of moral turpitude. (People v.
Stewart (1985) 171 Cal.App.3d 59, 64.)
Evidence Code section 352 grants trial courts discretion
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
27
misleading the jury.” (Evid. Code, § 352.) “[T]he latitude
[Evidence Code] section 352 allows for exclusion of impeachment
evidence in individual cases is broad. The statute empowers
courts to prevent criminal trials from degenerating into
nitpicking wars of attrition over collateral credibility issues.”
(People v. Wheeler (1992) 4 Cal.4th 284, 296.) Our Supreme
Court has explained that, when the witness subject to
impeachment is not the defendant, the trial court should pay
particular attention to two factors: (1) whether the conviction
reflects on honesty, and (2) whether the conviction is near
in time. (People v. Clair (1992) 2 Cal.4th 629, 654 (Clair).)
We review a trial court’s exclusion of impeachment
evidence for an abuse of discretion. (Clair, supra, 2 Cal.4th
at p. 655.) “Because the court’s discretion to admit or exclude
impeachment evidence ‘is as broad as necessary to deal with
the great variety of factual situations in which the issue arises’
[citation] a reviewing court ordinarily will uphold the trial court’s
exercise of discretion.” (People v. Clark (2011) 52 Cal.4th 856,
932.)
The trial court in this case acted within its broad discretion
in excluding evidence of Abraham’s conviction. While the fact
that Abraham committed a robbery might reflect somewhat on
his honesty generally, it said little about whether he specifically
lied at trial about Gillard directing him to have sex with an older
woman. This is especially true given the conviction was 20 years
old and Abraham had not suffered any subsequent convictions.
In contrast to the evidence’s minimal probative value, there
was considerable risk that its introduction would necessitate
an undue consumption of time. The prosecutor represented that
if the jury learned of Abraham’s conviction, she would move to
28
introduce evidence explaining the circumstances of the robbery
and Abraham’s reformation. On this record, the trial court
did not abuse its discretion by excluding the evidence.
Gillard insists the court’s exclusion of the conviction
nevertheless violated his constitutional rights to due process,
a fair trial, and confrontation.8 “ ‘As a general matter, the
“[a]pplication of the ordinary rules of evidence . . . does not
impermissibly infringe on a defendant’s right to present a
defense.” ’ ” (People v. Boyette (2002) 29 Cal.4th 381, 427–428.)
Similarly, “reliance on Evidence Code section 352 to exclude
evidence of marginal impeachment value that would entail
the undue consumption of time generally does not contravene
a defendant’s constitutional rights to confrontation and
cross-examination.” (People v. Brown (2003) 31 Cal.4th 518, 545.)
A trial court’s exercise of discretion under Evidence Code
section 352 amounts to a constitutional violation only if
the prohibited cross-examination would have produced a
“ ‘ “significantly different impression of [the witnesses’]
credibility.” ’ ” (People v. Virgil (2011) 51 Cal.4th 1210, 1251.)
Gillard has not shown the court’s exclusion of the
conviction produced a significantly different impression
of Abraham’s credibility. As discussed above, the fact that
Abraham committed a robbery 20 years earlier said little about
his credibility at trial. The jury, moreover, was not under a
8 We reject the Attorney General’s contention that Gillard
forfeited his constitutional arguments by failing to raise them
below. Gillard merely invites us to draw alternative legal
conclusions from the same information he presented to the trial
court, which he is free to do on appeal. (People v. Partida (2005)
37 Cal.4th 428, 438.)
29
false impression that Abraham had lived an entirely virtuous life.
Abraham acknowledged he had a troubled childhood, and the
jury heard testimony that another wrestling coach prevented
him and a group of boys from having sex with an intoxicated girl.
The exclusion of Abraham’s robbery conviction did not result in a
significantly different impression of his credibility. Accordingly,
Gillard’s constitutional claims fail.
4. The prosecutor’s discovery violations do not
require reversal
a. Background
In June 2017, Detective Victor Ruiz and other police
officers interviewed numerous potential witnesses and victims.
The next day, the prosecutor and Detective Ruiz together
interviewed many of the same individuals. Before trial, the
prosecutor provided Gillard recordings and transcripts of the
police interviews, but she provided little information related
to her subsequent interviews.
At trial, Gillard learned that Ivan, Jaslyn, and Andy
disclosed to the prosecutor incidents they had not mentioned
during their interviews with the police. Specifically, Ivan
disclosed two incidents with Kayla, Jaslyn disclosed an incident
with Miguel, and Andy disclosed two incidents with Kayla.
At the time of trial, Gillard was aware of each incident; he did
not know, however, that Ivan, Jaslyn, and Andy had previously
disclosed them to the prosecutor.
The court instructed the prosecutor to immediately provide
the defense summaries of each interview. It also precluded
her from questioning Andy about the incidents with Kayla
for five days so the defense could review the new material.
30
In addition, the court delayed the trial by a day, and it offered
to give the defense additional time to conduct investigations.
Gillard moved for a mistrial due to the prosecutor’s
discovery violations. He argued the main issue at trial was
witness credibility, and his defense strategy was to impeach
witnesses based on their failure to disclose certain incidents
before trial. Had he known about the additional interviews
with the prosecutor, he would have settled the case or adopted
a different trial strategy. For example, he might have focused
on proving the prosecutor used suggestive questioning and
tampered with the witnesses.
The court found the prosecutor violated section 1054.1
by not turning over witness statements to the defense.
Nevertheless, it denied Gillard’s motion for mistrial because
his chances of receiving a fair trial had not been irreparably
damaged. The court explained that the prosecutor disclosed
the substance of each interview during trial; Gillard had ample
opportunity to cross-examine every witness; the witnesses’
statements during the interviews were inculpatory; and Gillard
knew about each incident before trial. The court said it would
give a jury instruction on the discovery violations if Gillard
requested one. It would also consider granting another
continuance.
At Gillard’s request, the trial court instructed the jury
as follows: “Both the People and the defense must disclose
their evidence to the other side before trial within the time limits
set by law. Failure to follow this rule may deny the other side
the chance to produce all relevant evidence, to counter opposing
evidence, or to receive a fair trial. [¶] An attorney for the People
failed to disclose Ivan, Jaslyn and Andy’s statement[s] made
31
during the interview at the District Attorney’s office the day after
the police interview within the legal time period. In evaluating
the weight and significance of that evidence, you may consider
the effect, if any, of that late disclosure.”
b. Analysis
Under section 1054.1, the prosecutor must disclose to the
defendant “[r]elevant written or recorded statements of witnesses
or reports of the statements of witnesses whom the prosecutor
intends to call at the trial . . . .” (§ 1054.1, subd. (f).) Absent
good cause, the prosecutor must disclose the information at least
30 days before trial or immediately if discovered or obtained
within 30 days of trial. (§ 1054.7.)
A court may make any order necessary to enforce
section 1054.1, including requiring the immediate disclosure of
information, delaying or prohibiting the testimony of a witness or
the presentation of evidence, advising the jurors of an untimely
disclosure, and continuing the case. (§ 1054.5, subd. (b).) A trial
court must grant a mistrial in response to a discovery violation
only if the defendant’s chances of receiving a fair trial have been
irreparably damaged. (People v. Ayala (2000) 23 Cal.4th 225,
282; People v. Hughes (2020) 50 Cal.App.5th 257, 283 (Hughes).)
We review a trial court’s refusal to grant a mistrial
in response to a discovery violation for an abuse of discretion.
(Hughes, supra, 50 Cal.App.5th at p. 283; see People v. Wallace
(2008) 44 Cal.4th 1032, 1068 [“In reviewing rulings on motions
for mistrial, we apply the deferential abuse of discretion
standard.”].) Moreover, a prosecutor’s violation of section 1054.1
is subject “to the harmless error standard set forth in People v.
Watson (1956) 46 Cal.2d 818, 836, and thus is a basis for reversal
only where it is reasonably probable, by state-law standards,
32
that the [violation] affected the trial result.” (People v. Zambrano
(2007) 41 Cal.4th 1082, 1135, fn. 13, disapproved on other
grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Where a prosecutor’s discovery violation implicates a defendant’s
federal constitutional rights, we ask whether the error was
harmless beyond a reasonable doubt. (People v. Gonzalez (2006)
38 Cal.4th 932, 961.)
Here, the prosecutor’s discovery violations were not
prejudicial and the trial court acted within its discretion in
denying Gillard’s motion for mistrial. Before trial, Gillard was
aware of each incident that Ivan, Jaslyn, and Andy testified to
at trial. The only information he lacked was that these specific
individuals disclosed the incidents to the prosecutor during
pretrial interviews. While the revelation of this information
undoubtedly affected Gillard’s planned cross-examinations,
it did not eviscerate his primary defense, which was that the
witnesses fabricated the allegations for monetary gain. Instead,
it opened the door to a new theory: that the witnesses’ trial
testimony was remarkably consistent in part because the
prosecutor used suggestive questioning while interviewing them.
Gillard presented extensive percipient and expert testimony
in support of that theory, and he does not contend he could have
presented more evidence or otherwise developed the defense
further but for the prosecutor’s untimely disclosures.
The trial court also took adequate measures to cure any
potential prejudice. In addition to instructing the jury regarding
the untimely disclosures, the court delayed Andy’s testimony
by several days and granted a short continuance of the trial.
The court also indicated it would consider granting another
continuance if Gillard requested one; tellingly, he did not do so.
33
(See People v. Thompson (2016) 1 Cal.5th 1043, 1103 [a
defendant’s failure to request a continuance upon receiving
untimely discovery was fatal to her claim that the discovery
violation was prejudicial].)
Under these circumstances, Gillard’s chances of receiving
a fair trial were not irreparably damaged by the prosecutor’s
discovery violations. The trial court, therefore, did not abuse
its discretion by denying his motion for mistrial. For the same
reasons, the discovery violations were harmless under both
the state and federal standards.
5. The prosecutor’s misconduct during rebuttal
argument does not require reversal
a. Background
During a break in trial, the prosecutor moved to play
a recording of Kayla’s interview with police in order to show
the officers did not use suggestive interviewing techniques.
Gillard said he did not object to the prosecutor playing
the recording, and he would stipulate that the police did not
use suggestive or leading questions during their interviews.
A few days later, Gillard informed the court he had changed his
mind and would object to the prosecutor playing the recording.
The court said it would rule on the issue at a later time.
Gillard called Detective Ruiz as a witness and asked him
a number of questions about his initial interview with Kayla. At
the start of her cross-examination, and while in front of the jury,
the prosecutor announced she was renewing her motion to play
the recording of Kayla’s interview. Gillard objected and asked
the court to strike the request. The court did not directly rule on
the objection. The prosecutor then began her cross-examination
of Detective Ruiz; she did not play the recording for the jury.
34
During her rebuttal argument, the prosecutor reminded
the jury that she had moved to play Kayla’s recording at trial.
Gillard objected, and the court admonished the prosecutor to
“argue the evidence . . . . Not any sustained objections, for
example, if there was one at that point. I am not sure I recall
that.” The prosecutor remarked, “I wanted you [the jury] to hear
that tape.” Defense counsel again objected. The court responded
that it did not know what the prosecutor planned to say, and it
would strike the record if necessary.
The prosecutor then summarized Detective Ruiz’s
testimony about his interview with Kayla, after which she
remarked, “the interview [with Detective Ruiz] was about—
a little bit over an hour long. It was great. Okay? There was
no suggestive questioning at all. Kayla just—it was like a
book on tape. A sad book on tape.” Gillard objected that the
prosecutor was testifying, which the court overruled. The
prosecutor continued: “And once this trial is done, if anybody
wants to stay behind and listen to the tape, I will be more
than happy to play the tape for you.” The court sustained
Gillard’s objection.
While discussing the issue during a break, Gillard
acknowledged that the prosecutor moved during trial to play
the recording, but said it was “not a big deal” at the time. He
argued the prosecutor’s remarks during rebuttal, however,
essentially signaled to the jury that he “is guilty. I have the
evidence. . . . [Defense counsel] know[s] he is guilty. I can
show you afterwards. Just convict him.”
The court noted it was “disturbed” by the prosecutor’s
comments and it would decide any prosecutorial misconduct
issues at a later time. After the break, the court admonished
35
the jury that the recording was not part of the evidence in the
case and the prosecutor’s invitation to listen to it after trial was
improper. The court told the jury not to speculate or consider
any evidence that was not presented at trial.
In response to Gillard’s subsequent motion for new trial,
the court found the prosecutor committed inexcusable misconduct
by inviting the jurors to listen to a recording of Kayla’s interview
after the trial. Nonetheless, it found the misconduct was
harmless beyond a reasonable doubt. The court noted the
prosecutor’s remarks were brief, the evidence of Gillard’s guilt
was “overwhelming,” and the jury returned guilty verdicts
on 47 counts after deliberating only one day.
b. Analysis
“A prosecutor commits misconduct by referring in
argument to matters outside the record.” (People v. Cunningham
(2001) 25 Cal.4th 926, 1026; see People v. Turner (2004) 34
Cal.4th 406, 433 [a prosecutor is prohibited from “ ‘vouching
for the credibility of witnesses or otherwise bolstering the
veracity of their testimony by referring to evidence outside
the record’ ”].) This is because “such statements ‘tend[ ] to make
the prosecutor his own witness—offering unsworn testimony
not subject to cross-examination. It has been recognized that
such testimony, “although worthless as a matter of law, can
be ‘dynamite’ to the jury because of the special regard the jury
has for the prosecutor, thereby effectively circumventing the
rules of evidence.” [Citations.]’ [Citations.]” (People v. Hill
(1998) 17 Cal.4th 800, 827–828.)
We will reverse a judgment for prosecutorial misconduct
only if the defendant shows prejudice. (People v. Fernandez
(2013) 216 Cal.App.4th 540, 564.) We evaluate prejudice under
36
Chapman v. California (1967) 386 U.S. 18 when federal rights
are implicated, and under People v. Watson (1956) 46 Cal.2d 818when only state law issues are involved. (Fernandez, at p. 564.)
Under Chapman, we ask whether the prosecutor’s conduct
rendered Gillard’s trial so fundamentally unfair that due process
was violated, and under Watson we ask whether the prosecutor
used deceptive or reprehensible methods to persuade the jury,
making it reasonably probable that Gillard would have
obtained a more favorable result without the alleged misconduct.
(Fernandez, at p. 564; accord, People v. Clark (2021) 62
Cal.App.5th 939, 972.)
The Attorney General implicitly concedes, as he must,
that the prosecutor engaged in misconduct by inviting the jurors
to listen, after the trial concluded, to an audio recording of
Kayla’s interview. The prosecutor’s remarks unmistakably
conveyed that the recording, which was not in evidence,
supported her case. As the trial court recognized, the
prosecutor’s conduct was both disturbing and inexcusable.
Nevertheless, reversal is not required because the
misconduct was harmless under both the state and federal
standards. When considered in the context of the entire trial,
the potential prejudice from the prosecutor’s remarks was
minimal. The jury, for example, was already aware that
the prosecutor wanted it to hear the recording, as she moved
for its admission in open court. While the prosecutor should
not have done so in front of the jury, Gillard acknowledged
it was “not a big deal.”
The prosecutor’s remarks also did not convey that the
recording was relevant to a contested issue. Although the
prosecutor did not explicitly state why she wanted the jurors
37
to hear the recording, she implied it would show the police
did not use suggestive questioning while interviewing Kayla.
On that point, the jury heard Detective Ruiz testify that he
did not ask Kayla any leading questions during her interview.
Gillard did not challenge that testimony, nor did he seek
to establish that the police ever used improper questioning.
Instead, his theory was that the prosecutor used suggestive
questioning when she interviewed witnesses the following day.
The prosecutor’s comments during rebuttal did not undercut
that theory in any way. At most, they bolstered Detective Ruiz’s
testimony on what was essentially an uncontested point.
The court also mitigated any potential prejudice by
offering a swift and strongly-worded admonition. After
sustaining Gillard’s objection, the court instructed the jurors
that the prosecutor’s remarks were improper and they should
not speculate about the contents of the recording. We presume
the jurors followed the court’s admonition, which was sufficient
to cure any harm. (See People v. Tate (2010) 49 Cal.4th 635,
688–689 [“given the fleeting nature of the prosecutor’s remark,
the court’s admonition to the jury to disregard it was sufficient
to cure any harm”].)
Under these circumstances, the prosecutor’s misconduct
did not render Gillard’s trial so fundamentally unfair that
due process was violated; nor is it reasonably probable that
Gillard would have obtained a more favorable result without
the misconduct. Accordingly, the misconduct does not require
reversal.9
9 To the extent Gillard contends the prosecutor engaged in
other misconduct during her closing and rebuttal arguments, he
forfeited the claims by failing to support them with meaningful
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6. We reject Gillard’s cumulative error contention
Gillard contends the cumulative effect of all the errors
at trial requires reversal. “In examining a claim of cumulative
error, the critical question is whether defendant received
due process and a fair trial.” (People v. Sedillo (2015) 235
Cal.App.4th 1037, 1068; accord, People v. Rivas (2013) 214
Cal.App.4th 1410, 1436.) We are satisfied that Gillard received
a trial that was fair and comported with due process.
DISPOSITION
We affirm the judgement.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P.J. VIRAMONTES, J.
analysis and citations to relevant authority. (People v. Oates
(2004) 32 Cal.4th 1048, 1068, fn. 10.)

Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
39