People v. Tyler CA3

Filed 12/1/21 P. v. Tyler CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C087798
Plaintiff and Respondent, (Super. Ct. No. CRF172343)
v.
TED WILLIE TYLER,
Defendant and Appellant.
A jury found defendant guilty of oral copulation with a person under 14, four
counts of lewd or lascivious acts upon a child under 14, and contacting or communicating
with a minor with the intent to commit a sexual offense, all based on incidents involving
his stepdaughter, L.T. On appeal, defendant asserts (1) the evidence was legally
insufficient to support the jury’s determinations that he committed offenses against L.T.,
largely because she was not asked to identify him at trial; (2) the trial court abused its
discretion in admitting evidence of a prior sexual offense pursuant to Evidence Code
section 1108 because the incident was remote in time and inflammatory; (3)(a) the
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prosecutor committed misconduct in closing argument because his argument that
defendant lacked sexual boundaries invited the jury to convict him based on character
rather than on the evidence of his guilt, (b) if he forfeited his prosecutorial misconduct
contention, he was denied the effective assistance of trial counsel, and (c) the trial court
erred in denying his new trial motion based on the prosecutor’s closing argument; (4)
cumulative trial error warrants reversal; (5) the trial court erred in adding five-year
enhancement sentences on each count rather than imposing just one such sentence; and
(6) the sentence imposed on count 6 was longer than authorized and execution of that
sentence should have been stayed pursuant to Penal Code section 654 (statutory section
references that follow are to the Penal Code unless otherwise stated).
Defendant’s convictions were supported by substantial evidence. Even if it was
error to admit evidence of a prior sexual offense under Evidence Code section 1108, the
error did not prejudice defendant. Defendant’s trial attorney was not constitutionally
ineffective for failing to object to the prosecutor’s closing argument and the trial court did
not abuse its discretion in denying defendant’s new trial motion based on the prosecutor’s
argument. There was no cumulative trial error. As defendant acknowledges, the trial
court corrected the sentencing errors of which he complains, and, under the
circumstances of this case, it had jurisdiction to do so. Finally, the trial court properly
declined to stay execution of the sentence imposed on count 6 pursuant to Penal Code
section 654.
We affirm the judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
An information charged defendant with oral copulation with a person under 14
(Former § 288a, subd. (c)(1); count 1), four counts of lewd or lascivious act upon a child
under 14 (§ 288, subd. (a); counts 2-5), and contacting or communicating with a minor
with the intent to commit a sexual offense (§ 288.3; count 6). The information further
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alleged defendant had previously been convicted of two or more serious felonies within
the meaning of section 667, subdivision (e)(2), that he had been convicted of a prior
serious felony within the meaning of section 667, subdivision (a)(1), and that he had
served two prior prison terms within the meaning of section 667.5, former subdivision
(b).
The Prosecution Evidence
L.T. was born in October 2003 and was 14 years old at the time of trial. L.T. had
one sister and one brother. Her mother was married to defendant Ted Tyler who was not
L.T.’s biological father.
L.T.’s mother met Ted Tyler when she was living in Southern California. L.T.’s
mother identified defendant in court as Ted Tyler. L.T.’s mother and defendant married,
having two wedding ceremonies, one in September and one in October 2015 and they
moved to West Sacramento in January 2016.
L.T. and her siblings, who, for a time, had been living with their biological father,
came to live with L.T.’s mother and defendant in April 2016. Thus, as of late 2016, after
L.T.’s 13th birthday, L.T., her mother, defendant, and L.T.’s siblings were living together
in a house in West Sacramento.
We note that, as will be addressed in part I of the Discussion, post, L.T. was not
asked to identify defendant in court. However, as illustrated by the following exchange,
L.T. and the attorneys repeatedly referred to defendant as such, as well as by his name
Ted and Mr. Tyler. Defense counsel, beginning her cross-examination of L.T., addressed
allegations L.T. had made “against Mr. Tyler,” whom she acknowledged she was
representing.
“Q Okay. Now, when you first met Mr. Tyler, when you first met the
defendant, did he live with you guys right away?
“A No.
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“Q Okay. How soon after you met him did he start living with you guys?
“A Like a couple months after.
“Q All right. And do you remember when your mom and the defendant got
married?
“A Yes.
“Q When was that?
“A In October.”
L.T. testified that there were times when defendant would give her massages. L.T.
would ask for massages and defendant would give her shoulder massages. Usually, when
no one else was around.
At some point after defendant married L.T.’s mother, L.T. started to feel
uncomfortable around him. Defendant started to look at L.T. “differently than” he looked
at her siblings.
Eventually, defendant touched L.T. in a way that made her feel afraid or
uncomfortable. The first time it happened, L.T. was lying on the couch watching
television and he started rubbing her leg from the bottom to the mid-thigh. No one else
was around.
On another occasion, defendant gave L.T. a massage during which he touched her
breasts. L.T. testified that it made her feel weird and uncomfortable, and “it was, like, the
first time that he actually touched me in an inappropriate way.” L.T. testified: “We were
in my mom’s room, and no one was there. And he just started touching my breasts and
kind of like I was confused, I didn’t know, but I was, like, why are we doing this and
stuff like that. And he kind of just said that it was like a side thing.”
On another occasion, on a night sometime before Thanksgiving, L.T. and
defendant were in defendant’s Mercedes on their way back from the grocery store.
Defendant pulled over by an apartment complex. L.T. testified: “we were sitting there,
and I asked what are we doing there, and he said that you would see. And then he asked
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me if I could put my mouth on his private part, and I said no, and he kind of grabbed me
and kind of made me, but then I was like I’m not doing this. And he kind of just—we
just stopped. And then he pulled me to the front seat and started pulling down my pants,
and that’s when that happened.” L.T. clarified that by “private part,” she meant his penis.
When defendant pulled L.T.’s head towards him, she was scared and confused and did
not know what to do. She was scared that he would hurt her or get really angry. He did
put his penis in L.T.’s mouth for two or three seconds. After L.T. moved her head and
said she was not going to do it, he moved her from the passenger seat to the driver’s seat.
He took her pants down and pulled her onto the driver’s seat facing him. She did not
recall whether defendant had to push his seat back so that she would fit in the seat with
him. He then put his penis inside L.T.’s vagina. L.T. said that it hurt, and he told her that
was because it was her first time. She estimated it lasted for one to two minutes. At
some point, he stopped, L.T. went back to her seat, and she pulled her pants up. L.T.
testified that, when she got home, she did not tell anyone what had happened. She was
scared to tell her mother because she did not want to cause problems and break up the
family.
L.T. testified defendant made her have sex with him on two other occasions. Both
times happened at her house, once in the living room and once in the master bedroom.
With regard to the encounter in the living room, defendant took his clothes off,
and he took L.T.’s clothes off. Defendant indicated that he wanted to have oral sex. He
asked her and she said no. Defendant then put his penis in L.T.’s vagina.
Before defendant made L.T. have sex with him for the third time, he texted L.T.
and told her to tell her mother that L.T. was sick so L.T. would stay home from school
the next day. The following day, L.T.’s mother went to work. L.T. went downstairs to
get breakfast and then went back upstairs. Defendant told L.T. to come into his room.
When L.T. entered the room, defendant closed and locked the door. L.T. testified: “I sat
on the bed, and that’s when I realized that—like why he told me to stay home from
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school, tell my mom that I was sick. I just remember that he kind of, like, implied that he
wanted to have sex, and I didn’t really say anything. I was quiet the whole time, but then
that’s what happened.” L.T. testified that defendant took his clothes off and he took her
clothes off. He then put his penis in her vagina. L.T. asked if he was going to use a
condom, and he told her “he didn’t need one because he didn’t have anything like STDs
or anything like that.” The sex on this occasion lasted a couple of minutes. L.T.
remembered “trying not to—I remember trying not to think about it so that I could like
feel better about it, I guess, and not feel as, like, scared and stuff, so I tried not to think
about it.”
Again, after the encounter, L.T. did not tell anyone. She was embarrassed and
scared, and she did not want to cause trouble or break up the family. Defendant told L.T.
that if she told anyone what had happened, her mother would get mad.
L.T.’s mother testified that, at some point, she and defendant began to experience
difficulties in their marriage, specifically “the intimacy part.” She questioned why she
and defendant would go out on dates and, when they came home, he “wouldn’t have . . .
desire for [her] at all.” She thought he might be having an affair. L.T.’s mother “became
very suspicious a month before it happened, before everything fell out.” She “knew
something was wrong in [the] marriage. [She] just didn’t know what it was.” L.T.’s
mother also knew “there was late night texts going on one night.”
Feeling like she “couldn’t take it anymore,” one morning, L.T.’s mother began to
call numbers appearing on the phone bill. When she went to call one of the numbers, she
“was able to tie that into my daughter’s phone. . . . [A]nd that’s how I found out.” L.T.’s
mother testified L.T. never told her what had been happening.
L.T.’s mother called the police. L.T.’s mother testified: “When I found out, I
called 911. He was just getting out of bed, and it was what’s the nature of the
emergency. I started giving them the address. He had no idea what was going on. And
he just knew it, and I think, finally, he knew I was calling the police, and I might have
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said something, I just can’t remember the exact words that I said to him.” Defendant left
the house and was not there when the police arrived. L.T. also testified that, the day the
police came, defendant was not there, as he had left. When he came back to the house to
retrieve his things later, defendant told L.T. that “it wasn’t [her] fault and that he was
sorry.”
Officer Sean Saylor of the West Sacramento Police Department responded to a
911 hang up call on February 22, 2017. When he arrived, he spoke with L.T.’s mother.
However, she told Saylor that she “needed to do a little bit more investigation on her
own.” Saylor asked if he could speak with the children, and L.T.’s mother declined.
However, Saylor informed her that, based on her calling 911 and the statements made to
dispatch, Saylor was obligated to check on the welfare of the children. Saylor then spoke
with L.T., who seemed scared. Through questions posed by Saylor, L.T. disclosed that
her stepfather had hurt her “emotionally.” Saylor referred the matter to Yolo County
Child Protective Services (CPS).
Laura Nielsen of Yolo County Health and Human Services responded to
investigate a report of child sexual abuse. Nielsen first spoke with L.T.’s mother and
then with L.T. L.T. relayed to Nielsen her description of inappropriate touching by her
stepfather. L.T. described the inappropriate touching as being on her breasts underneath
her clothing, on her shoulders, and “on her frontal area.” She did not indicate touching
had occurred on her vaginal area. L.T. told Nielsen that the inappropriate touching
occurred more than five times, but fewer than 10 times. Nielsen determined it would be
unsafe for the children to remain in the home, and she requested the children be placed in
protective custody.
The same day L.T.’s mother called the police, she texted defendant, accusing him
of having sex with L.T. In response, defendant did not deny it. Instead, he texted, “If
you really would like to talk, we can,” and “[w]hen can I grab my stuff?”
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When “this all blew up,” L.T. and her siblings had to go live with their aunt. L.T.
was sad about that. L.T.’s aunt testified that, when L.T. was 12 and turning 13, she “was
a happy kid. She liked to play . . ., but she was completely different than she is now.”
After L.T. came to live with her aunt, L.T. was “very distraught, sad.” She also became
short-tempered.
Detective Eric Palmer of the West Sacramento Police Department located a cell
phone associated with defendant. Palmer located a sexually explicit text message on the
phone. The text message, sent to a woman named Shya on November 29, 2016, stated:
“Over here thinking about your tight ass pussy right now.” In another text message, sent
on the same day police came and defendant vacated the house, defendant texted a male,
stating, basically, “that he’s single now, and if he knows of any girls that he could hook
up with.” Palmer testified defendant’s date of birth was December 9, 1983.
Upon being assigned to the case, Detective Palmer sent a referral to the Multi-
Disciplinary Interview Center (MDIC) for an interview. An MDIC is conducted by a
child forensic specialist, someone who specializes in interviewing children in child sexual
assault cases. The interview is observed by a detective, a deputy district attorney, another
child forensic specialist, and sometimes a CPS worker.
L.T.’s aunt took L.T. for two different MDIC’s. L.T.’s first MDIC occurred on
February 28, 2017. A recording of the interview was played for the jury. In the
interview, L.T. stated that she had told her mother that her stepfather had sent her
inappropriate messages and given her an inappropriate massage. With regard to the
massage, L.T. said he had been giving her a massage, but he said it probably did not feel
very good through her clothing. He started to massage L.T. under her clothing. Initially,
he massaged her back, but he moved on to “other body parts” including her chest. L.T.
stated that, in a text message, defendant urged her to stay home from school the following
day. He also said in a text message that he wanted to have sex downstairs. Asked who
was sending those text messages, L.T. responded that it was “Ted,” but that she called
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him dad. When L.T. described the day she stayed home from school, she stated that her
mother and siblings had left, and, later, her stepfather went to work. L.T. also told the
interviewer that, after everything happened, when he came back to get his stuff, he
apologized and said, “ ‘This is all my fault.’ ”
L.T.’s second MDIC occurred on March 22, 2017. A recording of this interview
was also played for the jury. L.T. told the interviewer, “last time I came, I didn’t—I told
you the truth, but I didn’t tell you everything that happened, so I thought that I should
come back and say everything.” L.T. said he made her do things other than the massage.
There were times he made her have oral sex with him. He also made her have “regular
sex” with him. L.T. said she did not want to and that it hurt, and he told her that was
“just because that was the first time.” L.T. continued: “there were other times where
he—I don’t want to say necessarily—like he wouldn’t like, um—I’m trying to find the
right words to say this, because it’s not like he—um, there were other times where he
would make me have sex, too, but it wasn’t like he was making me, because I—making
you is like where I don’t—because it wouldn’t seem—because after that—after the first
time I was just scared, and I was just k—I felt like—like I couldn’t even think right
anymore, and I was just scared, so I didn’t know what to say or what to do or anything.
And nobody knew, and I didn’t tell anybody after that time. So it was just me all alone,
so the other times I just didn’t say anything, but he still—he still had sex with me . . . .”
L.T. said the first instance, involving both oral sex and vaginal sex, occurred in his
Mercedes when he parked near some apartments during a trip to the grocery store. The
oral sex happened first, when he “pushed [her] towards him.” L.T. said sex occurred on
two or three other occasions. The last time occurred in the living room. The other time
occurred in L.T.’s mother’s room. L.T. also said she told him to use protection, but that
he said no because he did not have an STD.
Palmer testified no DNA was collected in this case based on the length of time
between the last assault and when the abuse was reported.
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Dr. Blake Carmichael worked as a psychologist and evaluation program manager
in the Child Adolescent Abuse Resource Education Diagnostic and Treatment Center at
the U.C. Davis Hospital. Carmichael testified as an expert in child sexual abuse, Child
Sexual Abuse Accommodation Syndrome (CSAAS), and “the overall psychology of a
child victim.” Carmichael did not review anything about this case and he did not talk to
any witnesses.
Carmichael discussed CSAAS, which was originally written about in the early
1980’s. Dr. Roland Summit and his colleagues “started seeing a pattern of behavior of
kids who they knew had been sexually abused and the way they told about what
happened to them or why they might not tell about what happened to them. So they
coined the” term CSAAS. CSAAS was used “to dispel myths . . . people held about kids
who had been sexually abused to take away some of the misconceptions of what these
kids are like.” CSAAS is used to educate people to help them understand kids who have
been sexually abused.
Carmichael testified there is no diagnostic tool to be used to determine if a child
has been abused. Rather, CSAAS is used to help people better understand why children
do not disclose sexual abuse right away, why there are delays in disclosure, the
difficulties children have in suffering abuse at the hands of someone they know, and why
that makes it difficult for the children to disclose the abuse.
Carmichael testified that “the vast majority of kids are abused by someone they
know, someone they trust, someone who they’ve had an ongoing or existing relationship.
It is rare that kids are sexually abused by someone they don’t know or a stranger.”
CSAAS employs five component concepts: (1) secrecy, (2) helplessness, (3)
entrapment and accommodation, (4) delayed and unconvincing disclosure, and (5)
recanting.
Secrecy refers to the idea that the perpetrator, through a variety of means, relies on
the fact that the sexual abuse is happening in secret so no one else knows about it.
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Carmichael agreed a child may not disclose abuse out of fear of breaking up the family
and causing family members distress. Carmichael testified about the secrecy concept: “it
is important to understand that secrecy is borne out of that relationship. A lot of times
people might tell more quickly about a stranger, but if it is someone you know, someone
you trust, someone you have an ongoing relationship with, close relationship, that secrecy
or those delays can get even greater.”
With regard to helplessness, Carmichael addressed the imbalance between a
bigger, stronger, and more powerful perpetrator and a smaller, weaker, more vulnerable
child victim. The imbalance becomes more pronounced if the perpetrator has
responsibilities for caretaking, finances, or housing.
Carmichael testified that entrapment means something is occurring in secret and
the victim is trapped in the relationship. Accommodation refers to how one copes with
what is happening. Carmichael testified that dovetailing with entrapment and
accommodation is disassociation—cognitively retreating, withdrawing, or tuning things
out. Many children who experience sexual abuse will “stare off into space, numb out,
tune out to try to not deal with the thoughts and the feelings that go along with being
sexually abused.” “That’s a lot of reasons why kids can’t tell you exactly what happened,
because they were not focusing on the touch.”
As for delayed and unconvincing disclosure, research indicated that children
typically do not disclose sexual abuse right away. In fact, it might be weeks, months, or
even years before a child discloses sexual abuse. And when children do disclose,
disclosure is often incremental. They also might tell different people different details.
As for “unconvincing” disclosure, Carmichael testified that “[p]eople want certainty,
people want specific details to be convinced, but we know that kids who have been
abused don’t disclose that way. So because of that, we call that unconvincing even
though we know the events have occurred.”
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Finally, retraction occurs where children known to be abused disclose and then
later recant. According to Carmichael, 17 to 20 percent of children known to have been
sexually abused disclose and then recant.
On the subject of grooming, Carmichael testified that, among other things,
perpetrators “integrate touch or integrate rewards or integrate fun times together so that
the child then normalizes touch in their relationship. They enjoy the time they spend with
that person, video games, extra time on the phone, special attention. So as the touch
progressively becomes more sexual, the child doesn’t recognize that the touch is
becoming more inappropriate because it is really just part of this relationship.” The
prosecutor posed a hypothetical involving a parent giving a child back rubs that started as
shoulder massages but progressively involved touching farther and farther up the leg.
Carmichael opined that was a good example of grooming.
Stipulation
“The parties have agreed that Mr. Tyler plead no contest to a violation of . . .
Section 220(a), assault with [intent] to commit rape in Santa Barbara County on
December 3, 2001.”
Defense Evidence
E.B. was defendant’s former girlfriend and mother of his son. E.B. acknowledged
having an extramarital affair with defendant around the time defendant married L.T.’s
mother. E.B. believed L.T.’s mother was still jealous of E.B. over the affair, and L.T.’s
mother may have believed the affair was ongoing. E.B. never witnessed any concerning
behavior between defendant and E.B.’s 10-year-old daughter. Nor did E.B. ever
experience any “transgressions” by defendant. She characterized defendant as a very
loving, caring father.
Defendant’s brother lived in North Hollywood. He testified that, the week before
Thanksgiving 2017, he went to defendant’s house to pick up defendant’s Mercedes
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because defendant’s brother did not have a car at that time. Defendant’s brother left on
November 19, before Thanksgiving. Defendant’s brother testified that the driver’s seat of
the Mercedes did not adjust properly.
Defendant’s mother testified defendant’s birthday was December 9, 1980.
However, she subsequently testified defendant was born in 1981. Defendant’s mother
testified defendant’s brother took defendant’s Mercedes to Southern California, leaving
on November 18. She and defendant’s brother subsequently traded cars, so defendant’s
mother drove defendant’s Mercedes. She, too, testified the driver’s seat was broken in
that it was “stuck” and she “couldn’t reverse it.” Defendant’s mother also testified L.T.
and L.T.’s mother did not get along well and that they had a confrontational relationship.
With regard to defendant’s relationship with L.T., defendant’s mother testified defendant
was a very good father and a very loving man. She never saw defendant act
inappropriately toward L.T. Defendant’s mother also testified there was a time when
L.T. was posting photographs of herself on Instagram in “Daisy Dukes,” saying she was
21 years old.
Defendant’s stepfather testified that, at one point, he drove defendant’s Mercedes
back up to Northern California. He could not get the driver’s seat to adjust. He “couldn’t
hardly move it.” Defendant’s stepfather testified defendant had a great relationship with
L.T. He testified L.T. would argue with her mother. Defendant’s stepfather testified he
saw L.T.’s Facebook posts where she claimed to be 21 and was wearing “Daisy Dukes.”
Verdict and Sentence
The jury found defendant guilty on all counts. Defendant waived jury trial on the
priors and the trial court found the four enhancement allegations to be true.
On June 28, 2018, the trial court granted defendant’s Romero motion (People v.
Superior Court (Romero) (1996) 13 Cal.4th 497) to the extent of striking one prior strike,
for a violation of section 220. The trial court did not strike defendant’s other strike, a
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burglary conviction in violation of section 459. The court sentenced defendant to an
aggregate determinate term of 72 years, calculated as follows: the upper term of eight
years on count 1, oral copulation with a person under 14, doubled to 16 years based on
his prior strike, plus s for the nickel prior enhancement and one year for the prior prison
term enhancement; for each of counts 2 through 5, lewd or lascivious act upon a child
under 14, one third the midterm of six years, or two years, doubled to four years, plus s
for the nickel prior enhancement and one year for the prior prison term enhancement;1
and one third the midterm of six years, or two years, on count 6, contacting or
communicating with a minor with the intent to commit a sexual offense, doubled to four
years, plus five years for the prior enhancement and one year for the prior prison term
enhancement.
As we will discuss in part VI of the Discussion, post, the term imposed on count 6
was erroneous.
CDCR sent a letter to the trial court, filed August 2, 2018, raising a possible error
in sentencing.
The trial court resentenced defendant on December 14, 2018. The court imposed
an aggregate determinate term of 40 years, calculated as follows: the upper term of eight
years on count 1, oral copulation with a person under 14, doubled to 16 years based on
his prior strike, one third the midterm of six years, or two years, doubled to four years on
counts 2 through 5, lewd or lascivious act upon a child under 14, one third the six-year
midterm on count 6, contacting or communicating with a minor with the intent to commit
a sexual offense, or two years, halved pursuant to sections 288.3 and 664, but then
1 As we will discuss in part V of the Discussion, post, it was error to impose the
“five year prior” enhancement sentences on each count rather than once, and to impose
one-year section 667.5, former subdivision (b) prior prison term enhancements on each
count rather than once for a single prior prison term.
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doubled based on defendant’s prior strike, plus s for the nickel prior enhancement and
one year for one prior prison term enhancement.
DISCUSSION
I
There is Substantial Evidence Defendant Committed the Charged Offenses
Defendant asserts insufficient evidence supports the jury’s verdicts. Specifically,
defendant asserts substantial evidence does not support the identification of him as the
perpetrator of the offenses charged. Defendant emphasizes that L.T. identified “Ted” and
“Ted Tyler” as the perpetrator, but did not identify defendant in court “and thus never
verified that it was, in fact, [defendant] who committed the charged offenses against her.”
Additionally, defendant asserts “it is telling” that Detective Palmer, “who testified he
spoke with ‘the defendant’ was never asked to confirm that, in fact, ‘the defendant’ was
the same person that was on trial even though [defendant] was sitting in court with him.”
Defendant also emphasizes that Palmer’s testimony as to defendant’s birth date was
different than that provided by defendant’s mother.
“In reviewing a claim for sufficiency of the evidence, we must determine whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime or special circumstance
beyond a reasonable doubt. We review the entire record in the light most favorable to the
judgment below to determine whether it discloses sufficient evidence—that is, evidence
that is reasonable, credible, and of solid value—supporting the decision, and not whether
the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the
evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support
of the judgment the existence of every fact the jury reasonably could deduce from the
evidence. [Citation.] If the circumstances reasonably justify the findings made by the
trier of fact, reversal of the judgment is not warranted simply because the circumstances
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might also reasonably be reconciled with a contrary finding.” (People v. Jennings (2010)
50 Cal.4th 616, 638-639 (Jennings).) In other words, “ ‘[a] reversal for insufficient
evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support’ ” the jury’s verdict.’ ” (People v. Penunuri
(2018) 5 Cal.5th 126, 142 (Penunuri), italics added.)
We need not analyze this issue at great length.
Defendant—Ted Willie Tyler—was married to L.T.’s mother but he was not
L.T.’s biological father. Defendant thus was L.T.’s stepfather. L.T. and her siblings
came to live with L.T.’s mother and defendant in April 2016.
L.T.’s mother identified defendant in court as Ted Tyler, whom she had married in
2015.
In her direct and cross-examination exchanges with counsel at trial, and in her
MDIC’s, discussing the relevant matters and incidents in this case, L.T. answered
questions about and discussed “Mr. Tyler,” “Ted Tyler,” “Ted,” “defendant,” her
mother’s husband, and her stepdad. While L.T. was not asked to identify defendant at
trial, it is abundantly clear on this record that L.T.’s testimony was that it was defendant
who committed the alleged acts against her.
L.T. also spoke of not telling anyone about the abuse because she did not want to
break up the family. Defendant was married to L.T.’s mother.
L.T. described one incident occurring in the Mercedes. Defendant drove a
Mercedes.
L.T. testified “Mr. Tyler’s mother” was named Marilyn. Defendant’s mother, who
testified, was Marilyn.
L.T. testified she knew “Mr. Tyler’s stepfather, Adrian.” Defendant’s stepfather,
who testified, was named Adrian.
L.T. testified she knew “Mr. Tyler’s brother, Nico.” Defendant’s brother, who
testified, is named Domenico.
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With regard to defendant’s relationship with L.T., defendant’s mother testified
defendant was a very good father and a very loving man.
In essence, defendant seizes on the fact that L.T., his child victim, was not asked
to, and thus did not, identify him at trial as the perpetrator of the sexual offenses
committed against her (and that Detective Palmer also did not identify him at trial).
However, while an in-court identification is the best practice, defendant cites no authority
to support the proposition that such an identification was required as a matter of law.
As for Palmer and defendant’s mother differing on defendant’s date of birth, this
presented an inconsequential evidentiary conflict. “In deciding the sufficiency of the
evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts.
[Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive
province of the trier of fact.” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Viewing the evidence in the light most favorable to the prosecution (see Jennings,
supra, 50 Cal.4th at p. 638), we conclude substantial evidence supports the jury’s
determinations that defendant was the perpetrator of the charged offenses. We cannot
possibly say, “ ‘ “ ‘that upon no hypothesis whatever is there sufficient substantial
evidence to support’ ” the jury’s verdict.’ ” (Penunuri, supra, 5 Cal.5th at p. 142, italics
added.)
II
Admission of Prior Sexual Offense Evidence
Additional Procedural Background
In his in limine motions, defendant sought to exclude evidence of prior sexual
offenses as well as prior misdemeanor and felony convictions. Defendant asserted his
prior convictions were remote in time and any probative value was substantially
outweighed by the probability that admission would create a substantial danger of undue
prejudice. Defendant further asserted his prior conviction of assault with intent to
17
commit rape was “distinct and dissimilar to the current charges in that it shows no
propensity on the part of Defendant to molest a child, or perpetuate acts of sexual assault
against family members and serves no purpose other than to mislead, confuse and inflame
the jury.”
Days later, the prosecutor filed notice of evidence of other sexual offenses. (Evid.
Code, § 1108.) The prosecutor indicated his intent to introduce evidence of a prior sexual
offense, violation of Penal Code section 220, assault with intent to commit rape, in Santa
Barbara County. Defendant opposed the notice, asserting the evidence was unfairly
prejudicial as set forth in his in limine motions, and the evidence should be excluded
under Evidence Code section 352.
In argument before the trial court, the prosecutor urged that prior sexual acts
evidence “doesn’t have to be an [Evidence Code section] 1101 type offense where it is
motive, intent, opportunity, identification.” Rather, if the prior act was a prior sexual
offense, it should be admissible under Evidence Code section 1108.
Defense counsel in response again asserted the prior sexual act was remote in
time. Defense counsel also emphasized the prior act involved an adult woman, not a
child. Thus, the charged offenses were “sufficiently dissimilar and distinct from any kind
of sexual assault that would involve an adult woman.” Defense counsel asserted that,
under Evidence Code section 352, admission of the prior conviction of assault with intent
to commit rape would be unfairly prejudicial and it would confuse the jury.
The prosecutor responded that Evidence Code section 1108 is not limited to prior
acts that are highly similar to the charged offenses. The prosecutor emphasized that cases
such as this may turn on the victim’s allegations and the defendant’s denials, and the fact
that the defendant has committed prior sex offenses is relevant.
The court opined that the charged offenses were more serious than the prior sexual
offense given the fact that the charged offenses involved defendant’s minor stepdaughter.
The court agreed with defense counsel that “jurors will not like to hear that an individual
18
has an earlier sexual offense, and they may use it as propensity evidence,” but the court
further noted “that’s what the legislature intended for . . . sex cases, and that doesn’t
mean the Court ignores [Evidence Code section] 352.” The court concluded, “I don’t see
that the prejudice . . . substantially outweighs the probative value, but I would like to
have a[n] [Evidence Code section] 402 [hearing], or at least have a more detailed offer of
proof of what exactly she’s going to testify to . . . .” The court stated that the evidence
did not lose its probative value based solely on the fact that the incident occurred 17 years
earlier.
L.D., the victim in the Santa Barbara County incident, testified at an Evidence
Code section 402 hearing. Upon conducting its Evidence Code section 352 analysis, the
court concluded it would allow the evidence to be placed before the jury.
L.D.’s Trial Testimony and Defendant’s Contentions
In her trial testimony, L.D. testified that, in 2001, she was a student at the
University of California, Santa Barbara. She lived on the second floor of a two-story
apartment building that shared a deck with an apartment building next door. On
September 23, 2001, L.D. was 19. L.D. and her roommates watched a movie while the
neighbors across the deck were having a party. L.D. went to bed at approximately 2:30
or 3:00, wearing pajama pants and a tank top. At some point, L.D. woke up when she felt
someone’s hands touching her vagina inside her clothing, trying to penetrate her vagina.
The person then stopped touching her, went “probably” to the foot of her bed, and started
urinating on the floor. The person then tried to crawl in bed with L.D. L.D. turned the
lights on, turned around, and saw defendant. L.D. said, “Who the fuck are you? What is
going on?” Defendant responded, “It is okay. It is okay.” L.D. told defendant, “Get the
fuck away from me,” and she got out of bed and ran towards the door. Defendant
grabbed her arms trying to hold her back. L.D. pulled free, ran to her roommate’s room,
pounded on the door, her roommate came out, and they called Isla Vista Foot Patrol.
19
Meanwhile, defendant ran past L.D., out the door, across the deck, and into the party next
door. Defendant was eventually apprehended and L.D. identified him. Defendant was
convicted, upon his no contest plea, of assault with intent to commit rape.
Defendant asserts the trial court abused its discretion in admitting this evidence.
According to defendant, the prior sex offense was remote in time, and the evidence
concerning that offense was “stronger” and more inflammatory than the charged offenses.
Defendant asserts the error in admitting this evidence was both one of state law and
violated his due process rights under the Fourteenth Amendment to the United States
Constitution.
To the extent defendant alludes to the possibility that admission of prior sex
offenses under Evidence Code section 1108 is unconstitutional, our high court has
rejected such contentions. As our high court has stated recently: “We held in People v.
Falsetta (1999) 21 Cal.4th 903 . . . (Falsetta) that ‘the trial court’s discretion to exclude
propensity evidence under section 352 save[d] [Evidence Code] section 1108 from’ a
‘due process challenge.’ [Citation.] Defendant concedes as much, but asks us to ‘revisit
the issue,’ observing that he must raise his objection now to preserve the issue for federal
review. We see no persuasive reason to revisit Falsetta and reject his claim on the
merits.” (People v. Baker (2021) 10 Cal.5th 1044, 1089-1090 (Baker), fn. omitted.)
Admission of Prior Sexual Offense Evidence
“ ‘[E]vidence of a person’s character’ is generally inadmissible ‘when offered to
prove his or her conduct on a specified occasion.’ ” (Baker, supra, 10 Cal.5th at p. 1088,
quoting Evid. Code, § 1101, subd. (a).) “That general rule does not ‘prohibit[] the
admission of evidence that a person committed a crime . . . or other act’ to prove
something other than a person’s ‘disposition to commit such an act.’ ” (Baker, at p. 1088,
quoting Evid. Code, § 1101, subd. (b).) “For example, other-acts evidence may be
admissible to prove motive, intent, or that ‘a defendant in a prosecution for an unlawful
20
sexual act . . . did not reasonably and in good faith believe that the victim consented.’ ”
(Baker, at pp. 1088-1089, quoting Evid. Code, § 1101, subd. (b).) “The general rule
against admission of ‘so-called “propensity” or “disposition” evidence’ is also subject to
exceptions.” (Baker, at p. 1089, quoting People v. Daveggio and Michaud (2018) 4
Cal.5th 790, 822.) “Evidence Code section 1108 provides an exception to the general
rule and permits evidence that a defendant accused of a sexual offense has committed
another sexual offense, potentially showing a propensity to do so.” (Baker, at p. 1089,
citing Evid. Code, § 1108, subd. (a).) Evidence Code section 1108 applies “only if the
evidence ‘is not inadmissible pursuant to [Evidence Code] Section 352.’ ” (Baker, at
p. 1089; Evid. Code, § 1108, subd. (a).)
“ ‘In enacting Evidence Code section 1108, the Legislature decided evidence of
uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is
presumed admissible without regard to the limitations of Evidence Code section 1101.’ ”
(People v. Loy (2011) 52 Cal.4th 46, 63 (Loy), quoting People v. Yovanov (1999) 69
Cal.App.4th 392, 405.) “Or, as another court put it, ‘[t]he charged and uncharged crimes
need not be sufficiently similar that evidence of the latter would be admissible under
Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no
purpose. It is enough the charged and uncharged offenses are sex offenses as defined in
section 1108.’ ” (Loy, at p. 63, quoting People v. Frazier (2001) 89 Cal.App.4th 30, 40-
41.)
Assault with intent to commit rape in violation of Penal Code section 220 qualifies
as a sexual offense under Evidence Code section 1108. (Evid. Code, § 1108, subd.
(d)(1)(B).) Thus, in this criminal action in which defendant was accused of sexual
offenses, evidence of defendant’s commission of a prior sexual offense, assault with
intent to commit rape (Pen. Code, § 220, subd. (a)), was not made inadmissible by
Evidence Code section 1101 “if the evidence is not inadmissible pursuant to [Evidence
Code] Section 352.” (Evid. Code, § 1108, subd. (a).)
21
Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.” “Trial courts
enjoy ‘ “broad discretion” ’ in deciding whether the probability of a substantial danger of
prejudice substantially outweighs probative value. [Citations.] A trial court’s exercise of
discretion ‘will not be disturbed except on a showing the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.’ ” (People v. Holford (2012) 203 Cal.App.4th 155, 167-
168.)
As the parties note, in considering whether to admit evidence of prior sex offenses
under Evidence Code section 1108 based on a weighing of the Evidence Code section
352 factors, “trial judges must consider such factors as its nature, relevance, and possible
remoteness, the degree of certainty of its commission and the likelihood of confusing,
misleading, or distracting the jurors from their main inquiry, its similarity to the charged
offense, its likely prejudicial impact on the jurors, the burden on the defendant in
defending against the uncharged offense, and the availability of less prejudicial
alternatives to its outright admission, such as admitting some but not all of the
defendant’s other sex offenses, or excluding irrelevant though inflammatory details
surrounding the offense.” (Falsetta, supra, 21 Cal.4th at p. 917.)
Analysis
Defendant’s contentions, essentially, are that the 2001 sexual offense was remote
in time and the evidence relating to it was inflammatory and prejudicial.
The September 2001 sexual offense occurred approximately 15 years prior to the
charged acts and 16 years prior to L.D.’s trial testimony in January 2018. “No specific
time limit exists as to when an uncharged crime is so remote as to be excludable.”
22
(People v. McCurdy (2014) 59 Cal.4th 1063, 1099 (McCurdy).) In McCurdy, the
defendant started to molest his sister around 30 years before committing the charged
offenses, and the molestations of his sister ended around 17 years before the charged
offenses. (Ibid.) Our high court upheld the admission of evidence concerning the
defendant’s molestation of his sister. (Id. at pp. 1094-1100.)
The admission of such evidence has been upheld in other cases despite similar and
greater remoteness in time. In People v. Robertson (2012) 208 Cal.App.4th 965, 992-994
(Robertson), the court upheld the trial court’s admission of evidence of a sexual offense
committed 34 years before the charged crime. Similarly, in People v. Branch (2001) 91
Cal.App.4th 274 (Branch), the court upheld the admission of evidence of a prior sexual
offense where there was a 30-year gap between the prior uncharged offenses and the
charged offense. In People v. Waples (2000) 79 Cal.App.4th 1389 (Waples), the court
upheld the admission of prior sexual offense evidence concerning acts occurring between
18 and 25 years prior to the charged offenses. The foregoing cases all upheld the
admission of prior sexual offense evidence that was more remote in time than that in the
instant case.
Courts have stated, however, that “[r]emoteness of prior offenses relates to ‘the
question of predisposition to commit the charged sexual offenses.’ ” (Branch, supra, 91
Cal.App.5th at p. 285, quoting People v. Harris (1998) 60 Cal.App.4th 727, 739
(Harris).) “In theory, a substantial gap between the prior offenses and the charged
offenses means that it is less likely that the defendant had the propensity to commit the
charged offenses. However, . . . significant similarities between the prior and the charged
offenses may ‘balance[] out the remoteness.’ ” (Branch, at p. 285, quoting Waples,
supra, 79 Cal.App.4th at p. 1395.) “Put differently, if the prior offenses are very similar
in nature to the charged offenses, the prior offenses have greater probative value in
proving propensity to commit the charged offenses.” (Branch, at p. 285.)
23
In his reply brief, defendant relies on People v. Jandres (2014) 226 Cal.App.4th
340 (Jandres). In Jandres, the defendant was found guilty of forcible rape with a
kidnapping enhancement, kidnapping to commit rape, and felony false imprisonment for
offenses committed against an 18-year-old victim. (Id. at pp. 343, 344-345, 347.) At
issue at trial was whether the defendant forcibly raped the victim, as she testified, or had
consensual sex with her, as he maintained. (Id. at p. 356.) As for the prior uncharged
sexual offense at issue, that victim testified the defendant “came into her grandmother’s
house, picked her up, and carried her about eight feet before dropping her and running
out. She testified that, before picking her up, defendant ‘shoved’ his index finger in her
mouth and scratched the inside of her cheek for 15 or 20 seconds.” (Id. at p. 349.) It is
important to note that, with regard to the prior uncharged act in Jandres, the reviewing
court concluded that the question of whether that act was “motivated by an unnatural or
abnormal sexual interest” (§ 647.6, subd. (a)(2)) so as to qualify as a prior sexual offense
under Evidence Code section 1108 was “a close one.” (Jandres, at p. 354.) The
reviewing court determined that, “assuming the court made the preliminary determination
that the jury could have concluded that [this] testimony proved a violation of . . . section
647.6 by a preponderance of the evidence, it did not abuse its discretion.” (Jandres, at
p. 355.) The Jandres court ultimately determined the trial court improperly admitted the
prior act evidence. (Id. at p. 357.) The pertinent inquiry, according to the court, was
“whether evidence that defendant exhibited sexual interest in an 11-year-old girl by
putting his finger in her mouth rationally supports an inference that defendant is
predisposed to rape an 18-year-old woman.” (Id. at p. 356.) The court concluded:
“[g]iven the many differences between the two offenses—including the circumstances
(daytime attempted burglary in one case, possible stalking and attack at night in the
other); the ages of the victims (11 and 18); and the nature of the conduct (inappropriate
touching of the mouth in one case, rape in the other)—we think not.” (Ibid.)
24
Defendant also cites Harris, supra, 60 Cal.App.4th 727, in his reply brief. In
Harris, the defendant, a mental health nurse, worked at a mental health treatment center.
A jury found him guilty of several sex offenses involving women he met through his
work and who were vulnerable due to their mental health conditions. (Id. at p. 730.) The
prior uncharged act evidence consisted of a conviction of first degree burglary with the
infliction of great bodily injury. (Id. at p. 735.) That offense involved a female victim
found in her apartment unconscious or semi-conscious “ ‘naked from the waist down
with a nightgown on her upper body. And there was blood on her vagina and mouth area
along with swelling on the right side of her face.’ ” (Id. at p. 734.) The defendant was
located nearby outside with blood on the lower part of his shirt, on his crotch and
stomach, inside his clothes, and on his penis. (Id. at pp. 734-735.) In closing, the
prosecutor argued the defendant viciously sexually assaulted the victim of the uncharged
offense, and that he picked victims who could not fight back. (Id. at p. 735.)
The Harris court concluded the trial court improperly admitted the evidence of the
prior uncharged act because the “evidence was remote, inflammatory and nearly
irrelevant and likely to confuse the jury and distract it from the consideration of the
charged offenses.” (Id. at p. 741.) Addressing probative value, the court stated the
“evidence that defendant committed a violent rape of a stranger, as the jury was led to
believe, did not bolster [the victims’] credibility nor detract from the evidence
impeaching their stories.” (Id. at p. 740.) The court further stated there was no
meaningful similarity between the charged and uncharged acts. “The prior conduct
evidence is so totally dissimilar to the current allegations that the trial court’s finding that
it was very probative fails to answer the question: Probative of what?” (Ibid., original
italics.) The court further stated: “[t]his altered version of a 23-year-old act of
inexplicable sexual violence while heavy with ‘undue prejudice’ and dangerous in the
hands of a jury was not particularly probative of the defendant’s predisposition to commit
these ‘breach of trust’ sex crimes.” (Id. at pp. 740-741.)
25
Here, the prior sexual offense against L.D. and the charged offenses against L.T.
are rather dissimilar. In the offenses involving L.D., defendant entered the room of a
sleeping 19-year-old adult woman, touched and tried to penetrate her vagina with his
hands, and tried to get in bed with her before she escaped. In the charged offenses,
occurring approximately 15 years later, defendant had oral and vaginal sex with his 13-
year-old minor stepdaughter in his car and in the home he shared with the victim’s
mother and her children. The pertinent inquiry, then, is whether evidence defendant
entered 19-year-old stranger L.D.’s bedroom, touched her vagina, and attempted to get
into bed with her in 2001 is probative of defendant’s propensity to engage in oral and
vaginal sex with his 13-year-old stepdaughter in 2016 and 2017.
This case occupies something of a middle ground between those cases where the
uncharged and charged sexual offenses, even if remote in time, were very similar (see
Robertson, supra, 208 Cal.App.4th at pp. 992-993; Branch, supra, 91 Cal.App.4th at
p. 285), and those cases in which the uncharged and charged sexual offenses were both
remote and dissimilar (Jandres, supra, 226 Cal.App.4th at pp. 355-357; Harris, supra, 60
Cal.App.4th at pp. 740-741). We would caution against the admission of entirely
dissimilar prior sexual offenses as remote in time as at issue here. However, we are also
not persuaded that the evidence concerning defendant’s prior offense against L.D. is
entirely dissimilar to the charged offenses here, such as was the case in Jandres, supra,
226 Cal.App.4th 340. In any event, rather than expounding on the matter further, we
conclude that, even if the trial court abused its discretion in admitting the evidence of
defendant’s prior sexual offense under Evidence Code section 1108, the error was
harmless.
In light of this approach, we are not required to address defendant’s additional
contention that the prior sexual offense evidence was “stronger” and more inflammatory
than the charged offenses. Nonetheless, we will say: that defendant preyed on his 13-
year-old stepdaughter, thus exploiting that relationship, and had vaginal and oral sex with
26
her on more than one occasion is not “weaker” or less inflammatory than the assault on
L.D.
Prejudice
In general, “the application of ordinary rules of evidence like Evidence Code
section 352 does not implicate the federal Constitution, and thus we review allegations of
error under the ‘reasonable probability’ standard of” People v. Watson (1956) 46 Cal.2d
818, 836 (Watson). (People v. Marks (2003) 31 Cal.4th 197, 227.) The Jandres case, on
which defendant relies, applied Watson to assess prejudice based on the improper
admission of the prior sex offense evidence. (Jandres, supra, 226 Cal.App.4th at
pp. 357, 359-361.) In his only discussion of prejudice and the applicable standard,
defendant does not disagree with the Attorney General’s contention that it is the Watson
standard we should apply here, and he applies Watson. We agree Watson is the
appropriate standard.
Under Watson, “ ‘defendant must show it is reasonably probable a more favorable
result would have been obtained absent the error.’ ” (People v. Beltran (2013) 56 Cal.4th
935, 955 (Beltran).) “Further, the Watson test for harmless error ‘focuses not on what a
reasonable jury could do, but what such a jury is likely to have done in the absence of the
error under consideration. In making that evaluation, an appellate court may consider,
among other things, whether the evidence supporting the existing judgment is so
relatively strong, and the evidence supporting a different outcome is so comparatively
weak, that there is no reasonable probability the error of which the defendant complains
affected the result.’ ” (Id. at p. 956.)
L.T. testified concerning several instances of sexual abuse at the hands of
defendant. She testified that, on one occasion, defendant pulled his car over near an
apartment complex, asked L.T. to put her mouth on his penis, and then grabbed her and
27
forced her to do so. When she resisted, he pulled her onto him and had vaginal sex with
her. When L.T. told defendant it hurt, he told her that was because it was her first time.
According to L.T.’s trial testimony, another instance occurred in her living room.
Defendant took his clothes off, took L.T.’s clothes off, and said he wanted to have oral
sex. When L.T. refused, defendant put his penis in L.T.’s vagina.
Prior to the third occasion on which defendant made L.T. have sex with him, he
texted her, telling her to tell her mother she was sick so she could stay home from school
the next day. The following day, after L.T.’s mother had gone to work, defendant had
L.T. come to his bedroom and he closed and locked the door. Defendant took his clothes
off and he took her clothes off. He then put his penis in her vagina. L.T. asked if he was
going to use a condom, and he told her “he didn’t need one because he didn’t have
anything like STDs or anything like that.” During this encounter, L.T. testified she
remembered “trying not to—I remember trying not to think about it so that I could like
feel better about it, I guess, and not feel as, like, scared and stuff, so I tried not to think
about it.” This would appear to be a classic example of disassociation as described by
Dr. Carmichael: cognitively retreating, withdrawing, or tuning things out. Many
children who experience sexual abuse will “stare off into space, numb out, tune out to try
to not deal with the thoughts and the feelings that go along with being sexually abused.”
These instances of oral and vaginal intercourse followed a progression in which
defendant increased his sexual conduct towards L.T., beginning with simple massages,
proceeding to massaging her inappropriately, then touching her upper legs and breasts.
This calls to mind Carmichael’s testimony, in this instance as to grooming: perpetrators
“integrate touch or integrate rewards or integrate fun times together so that the child then
normalizes touch in their relationship. They enjoy the time they spend with that person,
video games, extra time on the phone, or special attention. So as the touch progressively
becomes more sexual, the child doesn’t recognize that the touch is becoming
inappropriate because it is really just part of this relationship.” Indeed, presented with a
28
hypothetical involving a parent giving a child back rubs that started as shoulder massages
but progressively involved touching farther and farther up the leg, Carmichael responded
that was a good example of grooming.
Much of L.T.’s trial testimony was corroborated by her prior consistent statements
in her two MDIC’s. Following her first interview, she returned for another because, she
told the interviewer, “last time I came, I didn’t—I told you the truth, but I didn’t tell you
everything that happened, so I thought that I should come back and say everything.” The
second interview, set forth in detail ante, was more descriptive and included a number of
very specific details also contained in her trial testimony.
When L.T.’s mother became suspicious of defendant because of the difficulties in
their marriage with intimacy and defendant’s late night texting, she searched the phone
bill and discovered defendant was texting L.T. That was what caused her to call the
police.
After he left the house, L.T.’s mother texted defendant, accusing him of having
sex with L.T. In response, defendant did not deny it. Instead, he texted, “If you really
would like to talk, we can,” and “[w]hen can I grab my stuff?” These responses are not
inconsistent with an implied or adoptive admission. (See generally Jennings, supra, 50
Cal.4th at p. 661 [discussing adoptive admissions generally]; see also Evid. Code, § 1221
[adoptive admission].)
Furthermore, when defendant returned to the house to retrieve his things later in
the day after police were called, defendant told L.T. that “it wasn’t [her] fault and that he
was sorry.”
L.T.’s piecemeal disclosure of the details of the abuse was consistent with Dr.
Carmichael’s testimony about CSAAS.
In the face of this overwhelming evidence of defendant’s guilt, the defense
presented evidence from defendant’s mother, stepfather, and brother intended to cast
doubt on whether his Mercedes’s driver’s seat could recline, implying that L.T. could not
29
fit on the seat with him. However, L.T. affirmatively testified she did not recall whether
it was even necessary for defendant to push his seat back so that she would fit there with
him. Moreover, there was no evidence introduced as to when the Mercedes seat became
defective. While defendant asserts elsewhere in his brief that the evidence established the
Mercedes was not even in Northern California at the time L.T. described, her testimony
concerning the timing of the incident in the Mercedes was not so specific as to establish
whether it was before or after defendant’s brother took the Mercedes. Defendant’s
mother and stepfather both testified defendant was a good father and loving man towards
L.T. and had a great relationship with her, and that L.T. had posted photographs of
herself on social media in short shorts and had indicated on the posts that she was 21.
It is not reasonably probable that, had the trial court barred L.D.’s testimony
concerning defendant’s 2001 sexual offense against her, he would have achieved a more
favorable result. (See Watson, supra, 46 Cal.2d at p. 836.) On this record, the evidence
supporting the judgment is so relatively strong, and the evidence supporting a different
outcome is so comparatively weak, there is no reasonable probability the admission of
this evidence affected the result. (Beltran, supra, 56 Cal.4th at p. 956.) Thus, even if it
was error to admit this evidence, any such error did not prejudice defendant.
III
Prosecutorial Misconduct and Denial of Defendant’s New Trial Motion
The Prosecutor’s Closing Arguments
At the commencement of his closing argument, after reviewing the charges, the
prosecutor stated: “What we’ve seen throughout this case is that the defendant has no
sexual boundaries. He is proven time and again that he acts out sexually and acts out
inappropriately sexually.” After summarizing the 2001 incident involving L.D., the
prosecutor stated: “This demonstrates the defendant has no sexual boundaries.” After
referring to his extramarital affair shortly after his marriage to L.T.’s mother, the
30
prosecutor stated: “He, again, demonstrates he has no sexual boundaries.” The
prosecutor reprised this line about sexual boundaries after discussing two of the incidents
involving L.T., after describing the November 29, 2016, text message to Shya, and after
describing the text message to a male, on the day the abuse was reported, asking if the
male knew any women defendant could hook up with. At the end of his initial closing
argument, the prosecutor stated: “The defendant demonstrated throughout this entire case
that he has no sexual boundaries. There is no reasonable doubt in this case. I ask you to
come to the only just verdict that there is. Find the defendant guilty.”
In his rebuttal closing argument, the prosecutor addressed the defense’s emphasis
on the fact that the children were taken from L.T.’s mother due to her inability to protect
them. The prosecutor stated: “Yeah, that’s right. Failure to protect, protect her daughter
from a sexual predator. They weren’t being beaten. They weren’t being malnourished,
but she had brought in this sex offender into their home and did not protect these
children.” Later in his rebuttal argument, the prosecutor stated: “The Defense
completely sweeps under the rug the defendant’s sexual improprieties. Well, sure, he had
an affair after he was married to one woman. He had an affair with [E.B.]. Sure, he had
an affair with this woman [to whom he sent the text message]. Sure, he sexually
assaulted [L.D.], but they’re all adult women, so it’s okay. Because that’s his boundary?
Because sure, he’s sexually inappropriate but he would never go beyond that? There is
simply no evidence to that.”
Prosecutorial Misconduct and Forfeiture
“The standards governing review of misconduct claims are settled. ‘A prosecutor
who uses deceptive or reprehensible methods to persuade the jury commits misconduct,
and such actions require reversal under the federal Constitution when they infect the trial
with such “ ‘unfairness as to make the resulting conviction a denial of due process.’ ”
[Citations.] Under state law, a prosecutor who uses such methods commits misconduct
31
even when those actions do not result in a fundamentally unfair trial.’ ” (People v.
Parson (2008) 44 Cal.4th 332, 359 (Parson); see also People v. Centeno (2014) 60
Cal.4th 659, 674.) “To establish misconduct, defendant need not show that the
prosecutor acted in bad faith.” (People v. Cortez (2016) 63 Cal.4th 101, 130, citing
People v. Hill (1998) 17 Cal.4th 800, 822.)
Defendant asserts the prosecutor committed error in closing argument.
Specifically, defendant asserts: “what the prosecutor did was to argue that the jury
should convict [defendant] because [defendant] had sex, and expressed interest in sex,
outside of his marriage. This, we submit, was an attack on [defendant’s] character and
background and invited the jury to convict [defendant] because, inter alia, he was an
immoral person that had sex with adult women he was not married to, and not because he
committed an illegal act that the evidence showed was proven beyond a reasonable doubt.
Put simply, the fact that [defendant] engaged in, and expressed interest in, having sex
with women other than his spouse at the time was immaterial to the issue presented, i.e.,
whether the evidence adduced at trial proved the elements of the offenses beyond a
reasonable doubt. Such character assassination should have no place in a criminal trial.”
To preserve a claim of prosecutorial misconduct for appeal, “ ‘ “a criminal
defendant must make a timely and specific objection and ask the trial court to admonish
the jury to disregard the impropriety.” ’ ” (People v. Powell (2018) 6 Cal.5th 136, 171,
quoting People v. Clark (2011) 52 Cal.4th 856, 960.) “The lack of a timely objection and
request for admonition will be excused only if either would have been futile or if an
admonition would not have cured the harm.” (Powell, at p. 171.)
Defendant acknowledges his trial counsel did not object or request a curative
instruction. Nor does defendant argue that a timely objection would have been futile or
that an admonition would not have cured the harm. However, defendant points out we
have the discretion to consider unpreserved misconduct claims. In the event that we
decline to do so, defendant asserts he was deprived of the constitutionally effective
32
assistance of trial counsel. Because defendant forfeited his contention, we turn to his
ineffective assistance of counsel claim.
Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, a defendant must show
(1) counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms, and (2) the deficient performance prejudiced defendant.
(Strickland v. Washington (1984) 466 U.S. 668, 691-692 [80 L.Ed.2d 674, 696]
(Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma); People v.
Rogers (2016) 245 Cal.App.4th 1353, 1367 (Rogers).) “ ‘Surmounting Strickland’s high
bar is never an easy task.’ ” (Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d
624, 642] (Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d
284, 297].)
It is improper for the prosecutor to appeal to the passions and prejudices of the
jury in closing argument. (People v. Seumanu (2015) 61 Cal.4th 1293, 1342.) However,
“the prosecutor has a wide-ranging right to discuss the case in closing argument. He [or
she] has the right to fully state his [or her] views as to what the evidence shows and to
urge whatever conclusions he [or she] deems proper.” (People v. Lewis (1990) 50 Cal.3d
262, 283.) “ ‘ “ ‘ “[A] prosecutor is given wide latitude during argument. The argument
may be vigorous as long as it amounts to fair comment on the evidence, which can
include reasonable inferences, or deductions to be drawn therefrom. [Citations.] . . .”
[Citation.] “A prosecutor may ‘vigorously argue his case and is not limited to
“Chesterfieldian politeness” ’ [citation], and he may ‘use appropriate epithets . . . .’ ” ’
[Citation.]” ’ [Citations.] ‘To prevail on a claim of prosecutorial misconduct based on
remarks to the jury, the defendant must show a reasonable likelihood the jury understood
or applied the complained-of comments in an improper or erroneous manner.’ ” (People
v. Gamache (2010) 48 Cal.4th 347, 371.)
33
The prosecutor’s remarks here were fair comment on the admissible evidence and
did not go beyond the wide latitude afforded prosecutors during argument. They did not
invite the jury to convict defendant on grounds other than the evidence addressed to the
charged offenses. Indeed, we cannot say defendant’s willingness to engage in sexual
activity outside of his marriage was irrelevant to the charged offenses. The prosecutor’s
remarks did not infect the trial with such “ ‘ “ ‘unfairness as to make the resulting
conviction a denial of due process.’ ” ’ ” (Parson, supra, 44 Cal.4th at p. 359.) Nor did
they otherwise constitute deceptive or reprehensible methods. Because these remarks did
not constitute misconduct, defendant’s trial attorney was not constitutionally ineffective
for failing to object to the remarks in closing.
Moreover, to establish prejudice, “[i]t is not enough ‘to show that the errors had
some conceivable effect on the outcome of the proceeding.’ ” (Richter, supra, 562 U.S.
at p. 104 [178 L.Ed.2d at p. 642].) To show prejudice, defendant must show a reasonable
probability that he would have received a more favorable result had counsel’s
performance not been deficient. (Strickland, supra, 466 U.S. at pp. 693-694 [80 L.Ed.2d
at p. 697]; Ledesma, supra, 43 Cal.3d at pp. 217-218.) “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” (Strickland, at p. 694 [80
L.Ed.2d at p. 698]; accord, Ledesma, at p. 218.) “The likelihood of a different result must
be substantial, not just conceivable.” (Richter, at p. 112 [178 L.Ed.2d at p. 647], italics
added; Rogers, supra, 245 Cal.App.4th at p. 1367; People v. Jacobs (2013) 220
Cal.App.4th 67, 75; In re M.P. (2013) 217 Cal.App.4th 441, 457, fn. 10.)
In the context of the evidence as addressed in our discussion of prejudice in part II
of the Discussion, ante, we cannot conclude that there is a reasonable probability
defendant would have attained a more favorable result had his trial counsel objected to
the prosecutor’s remarks in closing.
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New Trial Motion
Prior to sentencing, defense counsel moved for a new trial, asserting the
prosecutor committed misconduct in his closing argument to the jury. Defendant
emphasized the prosecutor in closing “elaborated on the prior conviction for sexual
assault on an adult woman that occurred 17 years ago, saying this demonstrated that
Defendant has no sexual boundaries. He then goes further in his rebuttal argument and
describes Defendant as ‘a sexual predator.’ ” According to defendant, the only purpose
of this argument was to inflame the jury and the prosecutor did so by emphasizing highly
prejudicial evidence against defendant.
The trial court denied defendant’s new trial motion. The trial court stated: “There
is actually quite a bit of case law in the Court of Appeal of what can be said in closing in
terms of characterization of the defendant. And the Court of Appeal has given
prosecutors significant latitude. And I’m aware of cases in which prosecutors have made
much more colorful comments than [the prosecutor] made here and the Court of Appeal
has not reversed. I do not find any prosecutorial misconduct.”
Defendant asserts the trial court abused its discretion in denying his new trial
motion. Defendant asserts that, in denying the new trial motion because “other ‘more
colorful’ statements of prosecutors were not found to be misconduct on appeal,” the trial
court employed an incorrect legal standard. According to defendant, the prosecutor’s
language was a blatant appeal to passion and prejudice.
The statutory grounds pursuant to which a trial court is authorized to grant a new
trial are set forth in section 1181. Among other grounds warranting granting a new trial
motion is “when the district attorney or other counsel prosecuting the case has been guilty
of prejudicial misconduct during the trial thereof before a jury.” (§ 1181, subd. (5).)
“ ‘ “ ‘We review a trial court’s ruling on a motion for a new trial under a
deferential abuse-of-discretion standard.’ [Citations.] ‘ “A trial court’s ruling on a
35
motion for new trial is so completely within that court’s discretion that a reviewing court
will not disturb the ruling absent a manifest and unmistakable abuse of that
discretion.” ’ ” ’ ” (McCurdy, supra, 59 Cal.4th at p. 1108; People v. Delgado (1993) 5
Cal.4th 312, 328 (Delgado).)
We determined, ante, that the prosecutor’s remarks in closing were not improper.
Accordingly, we cannot conclude the trial court abused its discretion in denying
defendant’s new trial motion on the basis of those remarks. Moreover, defendant has not
demonstrated the trial court employed an incorrect legal standard. Rather, in denying the
motion, the court merely noted that it was “aware of cases in which prosecutors have
made much more colorful comments than [the prosecutor] made here and the Court of
Appeal has not reversed.” Because the prosecutor’s remarks were not improper and the
court did not employ an incorrect legal standard, the trial court’s denial of defendant’s
new trial motion was not a “ ‘ “ ‘ “manifest and unmistakable abuse of . . .
discretion.” ’ ” ’ ” (McCurdy, supra, 59 Cal.4th at p. 1108; Delgado, supra, 5 Cal.4th at
p. 328.)
IV
Cumulative Trial Error
Defendant asserts the cumulative effect of the errors he alleges violated due
process and prejudiced him, mandating reversal. We reject this contention. The premise
behind the cumulative error doctrine is that, while a number of errors may be harmless
taken individually, their cumulative effect requires reversal. (People v. Bunyard (1988)
45 Cal.3d 1189, 1236-1237.)
We have concluded defendant’s claims of error are without merit, or, at most, raise
a possible harmless error. Thus, there is no cumulative effect of error to consider.
“Defendant was entitled to a fair trial but not a perfect one.” (People v. Cunningham
(2001) 25 Cal.4th 926, 1009.) Defendant was not deprived of a fair trial.
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V
Imposition of Enhancement Sentences on Each Count
Defendant asserts the trial court erred in imposing a five-year enhancement
sentence on each count. Defendant relies on People v. Sasser (2015) 61 Cal.4th 1(Sasser). In Sasser, our high court held that a “prior serious felony enhancement may be
added only once to multiple determinate terms imposed as part of a second strike
sentence.” (Id. at p. 7.) Our high court revisited the distinction drawn in section 1170.1
“between offense-based enhancements, which apply to every relevant count, and status-
based enhancements, which apply only once,” and observed that the structure set forth in
section 1170.1, subdivision (a), “ ‘makes it very clear that enhancements for prior
convictions do not attach to particular counts but instead are added just once as the final
step in computing the total sentence.’ ” (Sasser, at p. 15.)
Defendant acknowledges, however, that “the trial court corrected its initial
sentence to remove the 5 year enhancements on each count,” and that the trial court’s
amended sentence “was the legally correct sentence and, therefore, that sentence should
stand.” The Attorney General agrees that the amended sentence is correct.
Defendant advances this contention “in an abundance of caution to preserve the
issue in the event that this Court should find that the trial court exceeded its jurisdiction
in correcting the sentence given.” The Attorney General asserts that, under the
circumstances of this case, pursuant to section 1170, subdivision (d)(1), the trial court had
the authority to resentence defendant based on the recommendation by CDCR.
Section 1170, subdivision (d)(1) provides, in part: “When a defendant subject to
this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the
state prison or a county jail pursuant to subdivision (h) and has been committed to the
custody of the secretary or the county correctional administrator, the court may, within
120 days of the date of commitment on its own motion, or at any time upon the
37
recommendation of the secretary or the Board of Parole Hearings in the case of state
prison inmates, . . . recall the sentence and commitment previously ordered and
resentence the defendant in the same manner as if they had not previously been
sentenced, provided the new sentence, if any, is no greater than the initial sentence.”
Here, defendant was originally sentenced on June 28, 2018. Thus, the 120 days
applicable were the court to resentence defendant on its own motion would have expired
before the court resentenced defendant on December 14, 2018. However, critically,
CDCR sent a letter to the trial court, filed August 2, 2018, raising a possible error in
sentencing. Defendant filed his notice of appeal on August 20, 2018, prior to the trial
court’s resentencing. However, “[s]ection 1170(d) provides an exception to the general
rule that the filing of a valid notice of appeal vests jurisdiction of the cause in the
appellate court until determination of the appeal and issuance of the remittitur, and
deprives the trial court of jurisdiction to make any order affecting the judgment.”
(People v. Williams (2007) 156 Cal.App.4th 898, 909.) Accordingly, having received the
CDCR letter, under section 1170, subdivision (d)(1), the court was authorized to recall
and resentence defendant “at any time upon the recommendation of the secretary.” The
court did so, and, as the parties agree, the amended sentence is correct.
VI
Sentence Imposed on Count 6
Defendant asserts the trial court erred in imposing sentence on count 6 by (1)
imposing a longer sentence than authorized by statute, and (2) not staying the sentence
imposed pursuant to section 654.
Authorized Sentence
Like his contentions in part V of the Discussion, ante, defendant asserts the
sentence imposed on count 6 at resentencing was correct. He asserts the sentence
originally imposed on count 6 was error, and raises this issue in the interest of
38
preservation in the event we were to determine the trial court lacked jurisdiction to
resentence defendant as it did.
As we concluded in part V of the Discussion, ante, the trial court had authority to
recall and resentence defendant. The sentence imposed upon resentencing defendant on
count 6 was correct.
Section 654
Defendant asserts he had one objective in sending the text message to L.T. telling
her to stay home from school (which text message supported count 6): to have sex with
her. On count 4, he was convicted of having sex with L.T. on that occasion. Therefore,
defendant asserts he may serve but one sentence for these two crimes consisting of the
same objective.
The Attorney General responds that counts 4 and 6 “were sufficiently separated in
time that [defendant] had an adequate opportunity to reflect on his actions and renewed
his criminal intent.” The Attorney General also asserts defendant “may have had
multiple intents when he communicated with L.T. and urged here to stay home from
school,” such as committing a variety of sex offenses in addition to intercourse.
Subdivision (a) of section 654 provides, in part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” “Section 654
precludes multiple punishments for a single act or indivisible course of conduct.”
(People v. Hester (2000) 22 Cal.4th 290, 294.) “ ‘Whether a course of criminal conduct
is divisible and therefore gives rise to more than one act within the meaning of section
654 depends on the intent and objective of the actor. If all of the offenses were incident
to one objective, the defendant may be punished for any one of such offenses but not for
more than one.’ ” (People v. Correa (2012) 54 Cal.4th 331, 336.) “If, on the other hand,
39
defendant harbored ‘multiple criminal objectives,’ which were independent of and not
merely incidental to each other, he may be punished for each statutory violation
committed in pursuit of each objective, ‘even though the violations shared common acts
or were parts of an otherwise indivisible course of conduct.’ ” (People v. Harrison
(1989) 48 Cal.3d 321, 335.) An implicit determination that there was more than one
objective is a factual determination that must be sustained on appeal if it is supported by
substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730.)
“It seems clear that a course of conduct divisible in time, although directed to one
objective, may give rise to multiple violations and punishment.” (People v. Beamon
(1973) 8 Cal.3d 625, 639, fn. 11 (Beamon).) “ ‘This is particularly so where the offenses
are temporally separated in such a way as to afford the defendant opportunity to reflect
and to renew his or her intent before committing the next one, thereby aggravating the
violation of public security or policy already undertaken.’ ” (People v. Andra (2007) 156
Cal.App.4th 638, 640.)
We reject defendant’s argument. As stated ante, section 654 “applies to ‘a course
of conduct deemed to be indivisible in time.’ ” (People v. Kwok (1998) 63 Cal.App.4th
1236, 1253, quoting Beamon, supra, 8 Cal.3d at p. 639, fn. 11, original italics.)
However, “where a course of conduct is divisible in time it may give rise to multiple
punishment even if the acts are directive to one objective.” (People v. Louie (2012) 203
Cal.App.4th 388, 399, citing Beamon, at p. 639, fn. 11.) “If the separation in time
afforded [the] defendants an opportunity to reflect and to renew their intent before
committing the next crime, a new and separate crime is committed.” (Louie, at p. 399.)
Here, defendant texted L.T. and instructed her to tell her mother she was sick so
that she could stay home from school the next day. The following day, after L.T.’s
mother went to work, defendant had sex with L.T. Defendant had ample opportunity to
reflect and to renew his intent to commit the lewd act charged in count 4. His decision to
40
proceed with that act is separately punishable given that the two acts were divisible in
time.
In People v. Medelez (2016) 2 Cal.App.5th 659, the court concluded under section
654 the defendant could not be punished for both attempted oral copulation (§ 664,
former § 288a, subd. (b)(1)) and contacting or communicating with a minor with the
intent to commit a sexual offense (§ 288.3) “because the crimes were based on a single
intent and objective . . . .” (Medelez, at p. 663.) However, first, in Medelez, the Attorney
General conceded the issue. Second, the two events in Medelez—attempted oral
copulation and “luring”—occurred on the same day. (Id. at p. 662.) Third, the Medelez
court did not explicitly appear to consider whether the actions were divisible in time and,
as such, potentially subject to separate punishment. (Id. at pp. 663-664.)
In People v. Latimer (1993) 5 Cal.4th 1203, on which defendant relies in his reply
brief, the defendant pleaded no contest to two counts of forcible rape (§ 261, former subd.
(a)(2)) and one count of kidnapping (§ 207, subd. (a)). (Latimer, at p. 1206.) “[O]n
Christmas Eve 1989, defendant and the victim . . . went on some errands . . . . At one
point, instead of stopping as he was supposed to, defendant drove past the end of the
paved road and into an undeveloped area of nearby desert.” (Ibid.) The defendant raped
the victim, they drove another 50 to 75 yards into the desert, and the defendant raped the
victim again. (Ibid.) Our high court stated: “Although the kidnapping and the rapes
were separate acts, the evidence does not suggest any intent or objective behind the
kidnapping other than to facilitate the rapes.” (Id. at p. 1216.) Thus, “ ‘[s]ince the
kidnapping was for the purpose of committing the sexual offenses and [defendant] has
been punished for each of the sexual offenses,’ section 654 bars execution of sentence on
the kidnapping count.” (Id. at p. 1216.) Latimer is readily distinguishable on the ground
that the kidnapping and rapes occurred contemporaneously.
The trial court properly imposed a consecutive sentence on count 6.
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DISPOSITION
The judgment is affirmed.
HULL, Acting P. J.
We concur:
ROBIE, J.
DUARTE, J.
42