The People v. Fernandez

Filed 5/20/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B236009
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA091346)
v.
JORGE RAMIREZ FERNANDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Douglas W.
Sortino, Judge. Affirmed.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson,
Supervising Deputy Attorney General, and Erika D. Jackson, Deputy Attorney General, for
Plaintiff and Respondent.
——————————
Jorge Fernandez appeals from his convictions for sexual abuse of his granddaughters.
He contends (1) he was denied due process when the trial court permitted the prosecution to
amend the information during trial; (2) instructional errors deprived him of a fair trial;
(3) prosecutorial misconduct deprived him of a fair trial; and (4) he received ineffective
assistance of counsel. We affirm.
PROCEDURAL BACKGROUND
An information charged appellant with the five felony offenses: lewd act on a child
under the age of 14 (Pen. Code, § 288, subd. (a)1; counts 1 [victim, Jane Doe No. 1], 3 and 4
[victim, Jane Doe No, 2]); continuous sexual abuse (§ 288.5, subd. (a); count 2 [victim Jane
Doe No. 1]); and oral copulation or sexual penetration with a child under 10 (§ 288.7,
subd. (b); count 5 [victim Jane Doe No. 2]).) As to all counts, the information also alleged
that the crimes involved more than one victim, within the meaning of section 667.61,
subdivision (b).
A 10-day jury trial was conducted from April 12–25, 2011. Following the
presentation of the prosecution‘s case in chief, the trial court granted the prosecutor‘s motion
to dismiss count 1 (§ 1385), and permitted the prosecution to amend the information to
change the time periods specified for counts 2 through 5, to conform to proof.
The jury found appellant guilty on all counts, and found true the allegation that the
crimes involved more than one victim.
Appellant obtained new counsel and, unsuccessfully, sought a new trial. He was
sentenced to state prison for 45 years to life.
FACTUAL BACKGROUND
Prosecution Evidence
1. Counts 1 and 2: Accusations by Jane Doe No. 1
Jane Doe No. 1 was born in December 1999, and was 11 years old when she testified
at trial. Martha D. (Martha) is her mother and Ricardo F. is her father. Martha and Ricardo2
1 Statutory references are to the Penal Code unless otherwise indicated.
2
never married. Jane Doe No. 1 lived with her mother and had visits with her father.
Appellant is Jane Doe No. 1‘s paternal grandfather.
Ricardo got married when Jane Doe No. 1 was very young, and Jane Doe No. 1
frequently visited her father and stepmother‘s home while they were married. Ricardo
divorced in October 2006, when Jane Doe No. 1 was six years old. He moved to Diamond
Bar where he lived in his brother Juan‘s house alone for a time, until Juan and his family and,
later, appellant and his wife, Carmen Fernandez, moved in. Jane Doe No. 1 rarely visited
Ricardo after his divorce. Ricardo had no one to watch his daughter, and worked long hours
and weekends. He also liked to party and stay out at night. Ricardo only picked Jane Doe
No. 1 up for visits every two or three months.
In January 2009 Ricardo moved into an apartment in Pomona with appellant and
Carmen. Jane Doe No. 1 said that when she visited her father, he often left her alone with
her grandparents because he was working or out partying. Ricardo denied having left his
daughter alone with appellant.
Jane Doe No. 1 testified that on numerous occasions when she visited Ricardo,
appellant touched her breast and her vagina. Sometimes he touched her outside of her
clothes, but most of the time he touched her skin under her clothes. Appellant moved his
hand around when he touched her breast. Appellant began touching Jane Doe No. 1 when
she was in prekindergarten, and it continued while she was in kindergarten, first, second and
third grade. He touched her vagina more than 10 times when she was in the second and third
grades. The touching occurred when Ricardo lived at the Diamond Bar home and at the
apartment in Pomona.
Once, in the house in Diamond Bar when Jane Doe No. 1 was in second or third
grade, she was lying on appellant‘s bed in his bedroom. Appellant was lying down on his
side next to her; both of them were clothed. Appellant started touching Jane Doe No. 1‘s
2 Appellant and several witnesses share the surname ―Fernandez.‖ We will refer
to those witnesses by their first names.
3
vagina under her pants. He moved his finger up and down, and inside her vagina. Appellant
turned on the television to the Playboy Channel where people were ―together naked.‖ He
continued to touch Jane Doe No. 1‘s vagina while he watched TV. Neither he nor Jane Doe
No. 1 said anything. Jane Doe No. 1 could not recall how long the touching lasted, but said
appellant ―usually‖ stopped if someone came into the room or the house.
On another occasion at the Diamond Bar house, Jane Doe No. 1 was lying on a
reclining chair. She was in third grade. Appellant sat on the chair next to her and, using one
finger, reached into her pants and moved his finger inside her body, making Jane Doe No. 1
feel ―uncomfortable and weird;‖ she did not like it. She stayed quiet. In the past she had told
appellant to stop when he touched her, but he never did. Appellant touched Jane Doe No. 1‘s
vagina ― a lot of times‖ when she was in third grade.
On other occasions, appellant came into the kids‘ bedroom, put his hands under her
shirt and squeezed her breasts with both hands. Jane Doe No. 1 was probably in
kindergarten or first grade when appellant began to touch her breasts.
On more than one occasion, appellant showed Jane Doe No. 1 his ―privates‖ and told
her to touch it, but she refused. Once when she was eight years old and lying dressed on the
bed, appellant took his penis out and showed it to Jane Doe No. 1. It was hairy and wrinkled.
Jane Doe No. 1 touched appellant‘s penis at least once at his insistence.
On several occasions, appellant told Jane Doe 1 to put his penis in her mouth. Once
she was sitting on the edge of the bed facing the door and appellant was lying behind her.
Appellant told her to look and she saw his ―privates.‖ He told her to put it in her mouth.
This occurred on several occasions.
Once, appellant held Jane Doe No. 1‘s hand, forcing her to touch his penis and
demonstrating how to move her hand up and down. She kept pulling her hand away. The
penis was very hairy.
Someone else was almost always home when appellant touched Jane Doe No. 1.
Carmen, in particular, would be in the living room or elsewhere in the house.
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It took a long time for Jane Doe No. 1 to disclose to her mother what appellant was
doing. Jane Doe No. 1 was afraid her mother would get upset or mad, and appellant told her,
―‗Don‘t tell nobody. It‘s a secret.‘‖
Jane Doe No. 1 was in the third grade when she finally told her mother about the
sexual abuse. She first told a school friend who told a school psychologist. The psychologist
spoke with Jane Doe No. 1, who said she had lied to her friend. Jane Doe No. 1 did not want
people at school to know about what had happened. The counselor contacted Martha on
May 29, 2009 and told her about the sexual abuse. Martha and Jane Doe No. 1 went to the
police on June 17, 2009. Martha also told Ricardo about the abuse. He went over that day
and spoke with Jane Doe No. 1, who started to cry and ran inside the house. Martha obtained
a change for Jane Doe No. 1‘s visitation order to discontinue Ricardo‘s overnight visits.
Jane Doe No. 1 did not want her mother to tell the police about the abuse because she
did not want to hurt appellant. She just wanted Martha to talk to appellant and to make him
stop touching her. Jane Doe No. 1 believed he would stop if he knew her mother knew about
the touching.
Jane Doe No. 1‘s health began deteriorating after the disclosure. She developed a
cough and asthma, and had trouble sleeping. She underwent counseling and was
hospitalized for pneumonia and bronchitis. Her outgoing personality changed, and she
became less involved with activities.
On June 29, 2009, Martha met with Carlos, Ricardo‘s twin brother and the father of
Jane Doe No. 2. Carlos asked Martha why Jane Doe No. 1 did not visit the family anymore.
Martha told him that appellant had been molesting her daughter. Carlos asked Martha if she
was sure. Carlos said he had taken psychology classes and knew that children Jane Doe
No. 1‘s age do not lie. Carlos then made a phone call to find out where his own daughter
was. Martha told Carlos he should tell his wife, Paula, about what happened and that he
needed to protect Jane Doe No. 2. She told him about the change to Jane Doe No. 1‘s
visitation schedule with Ricardo.
Martha received a call from Paula sometime in May 2010. Martha thought the call
was unusual because she and Paula had only spoken three times in 12 years. Paula was
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getting a divorce from Carlos, and thought Martha might have some advice for her. When
the two women met, Paula asked why Jane Doe No. 1 had stopped spending time with the
family. Martha told her appellant had been molesting Jane Doe No. 1. Paula began to cry
and said the same thing had happened to Jane Doe No. 2, who had told Paula about the abuse
months or a year before.
Ricardo watched from the audience as his daughter testified at appellant‘s preliminary
hearing. Jane Doe No. 1 had difficulty testifying and spoke softly. Ricardo was
disappointed, which may have shown on his face. Martha sat next to her daughter while Jane
Doe No. 1 testified at the preliminary hearing. Martha noticed that Jane Doe No. 1 was
having trouble testifying, and also noticed Ricardo in the audience. He looked upset and
maintained an angry posture while Jane Doe No. 1 testified. Ricardo had not seen his
daughter since April 2010. He believed she did not need him and it was best if he was not in
her life.
2. Counts 3, 4 and 5: Accusations by Jane Doe No. 2
Jane Doe No. 2 was born in September 2001 and was nine years old when she
testified at trial. Paula and Carlos are Jane Doe No. 2‘s parents, and appellant is her paternal
grandfather. Jane Doe No. 2 lived out of state with her parents until they separated. She and
her mother moved to California in October 2008. The ―off and on‖ relationship between
Paula and Carlos remained tumultuous from October 2008 to June 2010. From November
2008 to November 2009, Jane Doe No. 2 lived, variously, with her mother, both of her
parents, and her maternal or paternal grandparents. In November 2009, Paula and her
daughters (Jane Doe No. 2 has a younger sister) rented an apartment in the same Pomona
complex in which appellant and Carmen lived.
While they were living in the same apartment complex, appellant began touching
Jane Doe No. 2 when she would visit and sat on the bed in his room to watch TV. Once,
appellant came into the room, sat next to Jane Doe No. 2 and touched her skin under her
pants and underwear, moving his hand in a circular motion. He also touched her breasts
twice with one hand using the same circular motion.
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Jane Doe No. 2 did not tell anyone about the touching at first because she did not
think anyone would believe her. The touching happened most times Jane Doe No. 2 visited
appellant‘s apartment. Other people were in the apartment when it happened, but they did
not see it.
Once, when Jane Doe No. 2 spent the night at appellant‘s house, she was lying on a
blanket on the floor and appellant lay down next to her. He touched her ―bottom‖ on her
skin. Another time, appellant kissed Jane Doe No. 2 on her ―bottom‖ when she was on his
bed. He pulled down her pants and kissed her vagina about six times. She told him to stop
three times and tried to push his head away, but he would not stop.
Jane Doe No. 2 waited a while before she told anyone about the abuse. But, after
appellant failed to stop, Jane Doe No. 2 finally told her mother in May 2009. Jane Doe No. 2
was in third grade at the time. Paula told Carlos. Outside of Jane Doe No. 2‘s hearing, her
parents agreed they did not believe her accusations, and decided not to confront appellant
without proof. Instead, they planned to watch appellant‘s behavior to see if any abuse
occurred and, if it did, to report it. Carlos and Paula told Jane Doe No. 2 they would talk to
appellant so she would know that the touching would not happen again, but they did not talk
to him.
Paula and Carlos continued to allow Jane Doe No. 2 to spend time at appellant‘s
home, although they made sure someone else was there too. Within two weeks of the time
Jane Doe No. 2 told her parents about the molestation, appellant began touching her again. It
happened twice during almost every visit. Jane Doe No. 2 did not tell anyone right away that
the touching was still happening. Eventually, Paula asked her daughter if appellant was still
touching her. When Jane Doe No. 2 confirmed that he was, they went to the police in mid-
May 2010.
Mostly, appellant touched Jane Doe No. 2‘s backside using a circular motion. Once,
Jane Doe No. 2 had been sleeping in the same bed as appellant and Carmen, in Ricardo‘s
bedroom. When Carmen left the bed for a time, appellant touched Jane Doe No. 2‘s bottom
under her clothes. The last time he touched her was about two months before Jane Doe
No. 2 revealed to her mother that appellant was touching her again.
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Carlos testified that he met with Martha on May 29, 2009 because he wanted to know
why Jane Doe No. 1 had stopped spending time with the family. Martha said she did not
want her daughter around the family because there was too much fighting. She did not tell
Carlos about any sexual abuse.
When Paula met with Martha in May 2010, she asked why Jane Doe No. 1 no longer
visited the family, and learned that she had been molested by appellant. Paula told Martha
that Jane Doe No. 2 had made the same accusations against appellant the year before, and
asked Martha why she had not told Paula or Carlos about the sexual abuse. Martha
explained that she told Carlos, and assumed that he shared the information with Paula.
Carlos denied having spoken with Martha about Jane Doe No. 1‘s accusations. He said there
had been one or two weekends in April 2009 when both Jane Doe No. 1 and Jane Doe No. 2
had overnight visits at the Pomona apartment, and that the girls had a good relationship with
one another. He said that when he and Paula first spoke to Jane Doe No. 2 about her
accusations against appellant, she told them the same thing had happened to her cousin. He
believed his daughter made up the accusations against her grandfather because her cousin
had also done so. Carlos said his daughter spent time alone watching television in
appellant‘s bedroom, but he never saw, heard or suspected any improper behavior.
Jane Doe No. 2 did not know appellant had also been touching her cousin, Jane Doe
No. 1. The cousins never discussed the allegations and had only seen one another very
occasionally for several years before this case went to court. When Jane Doe No. 2, Paula
and Carlos had been interviewed by the police in mid-May 2010, Carlos told the interviewer
he knew about the allegation because his daughter told him about the touching in July 2009.
He did not accuse Jane Doe No. 2 of lying, nor did he claim that she had accused appellant
only because her cousin had done so. Carlos thought Paula might be mad at him because of
an incident at a party involving another woman.
Defense Evidence
1. Appellant
Appellant testified on his own behalf. He had been married to Carmen for 33 years,
and they had three sons, Ricardo, Carlos and Juan. He never touched his granddaughters
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Jane Doe No. 1 or Jane Doe No. 2 in a sexual manner, and was never alone in a bedroom
with either one. Ricardo told appellant about Jane Doe No. 1‘s allegations in May 2009.
Appellant found out about Jane Doe No. 2‘s allegations in May 2010 when the police came
to his home.
Appellant did not see Jane Doe No. 1 often, but he did sometimes pick her up for her
visits with Ricardo. He saw Jane Doe No. 2 regularly after she was seven years old. Once
during 2009 the girls visited at the same time.
On one visit in January 2008, appellant walked into a room when Jane Doe No. 1 was
using a computer, and she quickly shut down the screen as he came in. He found a piece of
paper with the website www.sexboyandgirl.com written on it under the mouse after she left
the room. Appellant made Jane Doe No. 1 pull up the site for him and saw that it was sexual
in nature. He told Martha about it. Appellant asked Jane Doe No. 1 about the site, and she
was afraid to tell him who had given her the information, but said her mother knew about it.
She asked appellant not to tell Ricardo. Later that month, appellant was at Martha‘s house
waiting to pick up Jane Doe No. 1 for a visit. Martha‘s nephew, a bald man in his early 20‘s,
wearing baggy clothing, arrived. Jane Doe No. 1 ran to him, called him ―uncle‖ and gave
him a hug. Martha became upset and forcibly separated them. She told Jane Doe No. 1 the
man was not her uncle, and the man and Jane Doe No. 1 looked at one another and laughed.
Later in the car with appellant, Jane Doe No. 1 told him the man was the one who had given
her the website address, and that Martha knew about it but appellant could not say anything
because the man was dangerous. Appellant agreed to remain quiet about Jane Doe No. 1‘s
relationship and interactions with the man. On another visit during a party, appellant left an
unwanted beer by his bed. Jane Doe No. 1 drank some beer, and told appellant she had been
given beer and offered cigarettes at home by the man who gave her the website address.
One day, during a visit to his home in Diamond Bar, Jane Doe No. 2 whispered in
appellant‘s ear, ―Do whatever you want to me.‖ He asked her what she meant. She told him
she had seen her mom and her father‘s best friend having sex in her parents‘ bedroom, and
heard her mother say that to the man.
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2. Carmen Fernandez
Carmen testified that appellant was an excellent husband, father and grandfather, and
she had no doubts about his character.
Carmen had got along well with Paula when she and Carlos were first married, but
later found Paula to be a bad, dishonest person. Carmen described Jane Doe No. 2 as smart,
vivacious and very affectionate with both Carmen and appellant. After Carlos and his family
moved to California, Jane Doe No. 2 visited regularly. Jane Doe No. 2 was affectionate with
appellant, and spent lots of time playing with him. But the two of them were never alone
together. Paula always asked Carmen to take care of her children, but Carmen refused. The
last time Paula asked Carmen to watch her kids was two weeks before Paula filed the police
report against appellant.
Carmen said that Jane Doe No. 1 and Jane Doe No. 2 were together at their
grandparents‘ apartment three or four times. Appellant was never alone with either girl. One
of Jane Doe No. 2‘s parents was always there when she visited her grandparents. Neither
girl ever slept in a bed with Carmen and appellant. The girls only watched TV in the living
room.
Carmen did not see Jane Doe No. 1 as often as she saw Jane Doe No. 2, but
sometimes she and appellant picked her up for visits with Ricardo. They took her places and
spent time with her until Ricardo arrived. After Martha and Ricardo divorced, Carmen spoke
only a few times to Martha. Martha said ―ugly things‖ about Ricardo.
Sarah M. was married to Juan. Sarah described appellant as a good grandfather who
spent time and played with all his grandkids, including Jane Doe No. 1 and Jane Doe No. 2.
Sarah often saw Paula at the Pomona apartment with Jane Doe No. 2, even after she and
Carlos separated. Sarah never saw anyone go into the master bedroom; everyone was always
together at the home.
Sarah testified that appellant and Carmen went everywhere together and relied
heavily on one another. Carmen did not drive, and relied on appellant to take her places.
Beginning in February 2008 until April 2011, Carmen regularly spent her daytime hours at
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Sarah‘s home in Burbank, where she helped care for Sarah‘s children. Appellant dropped
her off on his way to work.
During the preliminary hearing, Sarah confronted Paula and Jane Doe No. 2 in the
court hallway. She yelled at Paula, calling her a ―fucking liar,‖ and told Jane Doe No. 2 her
mother was a liar. That incident resulted in a misdemeanor conviction for Sarah.
3. Monica Hosozawa
Monica Hosozawa worked with Ricardo and Carlos. Paula had thought Hosozawa
and Carlos were having an affair, and frequently called Hosozawa and sent her text
messages. Hosozawa hung up. Paula told Hosozawa that she had a plan to retaliate against
Carlos. In late April and early May 2010, Paula called Hosozawa repeatedly. Paula was
upset that Carlos took his daughters to parties at which there were women with whom Paula
believed Carlos had had affairs. Paula told Hosozawa she and Martha had met and discussed
Jane Doe No. 1‘s accusations of sexual abuse by appellant, and Paula said he had also
molested Jane Doe No. 2. Paula asked Hosozawa for advice about what to do.
DISCUSSION
1. Appellant forfeited his right to complain that the trial court erred when it permitted
the prosecution to amend the information.
After the prosecutor rested, she made an oral request to amend the information to
conform to the testimony at trial. The prosecutor said she initially charged counts 1 and 2
based on the acts occurring at specific times when Jane Doe No. 1 was in the second and
third grades, as she had testified at the preliminary hearing. But at trial Jane Doe No. 1
testified she could not recall specific dates and said the acts had generally occurred when she
was in those grades and after appellant lived in the Diamond Bar home with Ricardo.
Based on this testimony, the prosecution requested that count 1 be dismissed and that
the date range therein be included in an extended date range for count 2 (continuous sexual
11
abuse). Defense counsel did not object, and the trial court granted the proposed amendment,
dismissing count 1 and interlineating count 2.3
With respect to counts 3 and 4, the prosecutor requested that the dates be amended to
distinguish an act committed from the time Jane Doe No. 2 moved to California in
November 2008, through her first disclosure of the sexual abuse to her parents around July
2009, and an act committed after that disclosure until the disclosure to the police in May
2010. In other words, the prosecution requested: (1) to extend the date range alleged in
count 3 by seven months (changing the ending date from December 24, 2008 to July 31,
2009), and (2) to push the start date for count 4 back five months (from January 1, 2010 to
August 1, 2009; again, appellant‘s counsel did not object. The court agreed and made the
requested amendments.
After the verdict, appellant retained new counsel who filed a motion for a new trial,
arguing that the court erred in allowing the belated amendments. The motion was denied.
3 The court stated: ―Having heard the evidence in this case and having reviewed
the case law which indicates I have very broad discretion, I don‘t think it‘s unfair to the
defense to make the change [the prosecutor] is requesting. One count disappeared, so
that‘s a benefit to [appellant].‖
Appellant‘s counsel agreed.
Additionally, the court observed: ―the defense, in this case, is not an alibi or lack
of opportunity. The testimony throughout this trial has been that [appellant] had access
to the children. He‘s not denying it in his testimony. None of the . . . witnesses have
indicated there was not reoccurring access to the children. It‘s not an alibi or lack of
opportunity defense. It‘s simply the children are making this up and it did not happen. I
don‘t think there‘s any unfair prejudice . . . because it doesn‘t change the defense. I don‘t
believe it would change your cross-examination of any witness and seems to conform to
proof at this point. It is merely bringing the information in line with the evidence that‘s
actually been presented at trial without any prejudice or down side to [appellant], that‘s
my general feeling on this. Do you [defense] wish to be heard?‖
Appellant‘s counsel had no comment.
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Appellant maintains he was denied due process when the court permitted the
prosecution to amend the information to conform to proof during trial because he was denied
notice and an opportunity to prepare a defense.
Due process requires that a criminal defendant be advised of the charges against him
so that he has a reasonable opportunity to prepare and present a defense and not be taken by
surprise by evidence offered against him at trial. (People v. Jones (1990) 51 Cal. 3d 294, 317
(Jones); accord, People v. Seaton (2001) 26 Cal. 4th 598, 640–641.) But a defendant‘s due
process rights are not prejudiced by amendment of the information, and the trial court may
permit amendment of the accusatory pleading ―at any stage of the proceeding, up to and
including the close of trial,‖ so long as defendant‘s substantial rights are not prejudiced.
(People v. Graff (2009) 170 Cal. App. 4th 345, 361.) An indictment, however, ―cannot be
amended so as to change the offense charged, nor an information so as to charge an offense
not shown by the evidence taken at the preliminary examination.‖ (§ 1009; People v.
Winters (1990) 221 Cal. App. 3d 997, 1003.)
Numerous procedures afford criminal defendants the means to obtain notice of the
charges against them. They include, among others, the information, the preliminary
examination and pretrial discovery. (Jones, supra, 51 Cal.3d at pp. 317–318.) Because of
the availability of these procedures, the California Supreme Court has found that
―prosecution of child molestation charges based on generic testimony does not, of itself,
result in a denial of a defendant‘s due process right to fair notice of the charges against him.‖
(Id. at p. 318.) In cases involving sexual molestation of children, the function of the
accusatory pleading is to give notice to the defendant of the nature of the offense charged and
whether it occurred within the applicable limitations period. ―‗[A]t a minimum, a defendant
must be prepared to defend against all offenses of the kind alleged in the information as are
shown by evidence at the preliminary hearing to have occurred within the timeframe pleaded
in the information.‘‖ (Id. at p. 317.)
Appellant appropriately concedes that he failed to object at trial to the proposed
amendment of the information at trial. Accordingly, he forfeited his right to complain about
the amendment of the information. (People v. Scott (1994) 9 Cal. 4th 331, 354 [generally,
13
―only those claims properly raised and preserved by the parties are reviewable on appeal‖].)
This claim has not been preserved for appellate review.
2. There was no instructional error.
a. CALCRIM No. 3501
After discussing the standard and modified unanimity instructions with counsel, the
trial court instructed the jury with the modified instruction, CALCRIM No. 3501, rather than
CALCRIM No. 3500. Appellant‘s counsel took no position as to which instruction should
be given, and acquiesced without objection. On appeal, however, as he did in his posttrial
motion, appellant contends the court erred when it gave CALCRIM No. 3501, rather than the
standard unanimity instruction. Although appellant failed to object during trial to the
instruction given, we address the merits of his contention.
―In a criminal case, a jury verdict must be unanimous. [Citations.]‖ (People v. Russo
(2001) 25 Cal. 4th 1124, 1132.) ―Additionally, the jury must agree unanimously the
defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when
the evidence suggests more than one discrete crime, either the prosecution must elect among
the crimes or the court must require the jury to agree on the same criminal act. [Citations.]‖
(Ibid., italics omitted)
―In a case in which the evidence indicates the jurors might disagree as to the
particular act defendant committed, the standard unanimity instruction [e.g. CALCRIM No.
3500] should be given. [Citation.] But when there is no reasonable likelihood of juror
disagreement as to particular acts, and the only question is whether or not the defendant in
fact committed all of them, the jury should be given a modified unanimity instruction [e.g.
CALCRIM 3501] which, in addition to allowing a conviction if the jurors unanimously agree
on specific acts, also allows a conviction if the jury unanimously agrees the defendant
committed all the acts described by the victim.‖ (Jones, supra, 51 Cal.3d at pp. 321–322.)
Here, the trial court instructed the jury pursuant to CALCRIM No. 3501 as follows:
―The defendant is charged with lewd and lascivious act upon a child under the age of
14 in Counts 3 and 4, Count 3 alleges that the act occurred sometime during the period of
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November 1, 2008 to July 31, 2009. Count 4 alleges that the act occurred sometime during
the period of August 1, 2009 to May 15, 2010.
―The People have presented evidence of more than one act to prove that the defendant
committed these offenses. You must not find the defendant guilty unless:
―1. You all agree that the People have proved that the defendant committed at least
one of these acts during the relevant time period and you all agree on which act he
committed for each offense;
―OR
―2. You all agree that the People have proved that the defendant committed all the
acts alleged to have occurred during the relevant time period and have proved that the
defendant committed at least the number of offenses charged.‖
CALCRIM No. 3501 is an alternative instruction to, CALCRIM No. 3500.
CALCRIM No. 3501 affords two different approaches for the jury to reach the required
unanimity. The first is the same as that set forth in CALCRIM No. 3500: agreement as to
the acts constituting each offense. But unanimity may also be found under CALCRIM No.
3501 if the jury agrees ―that the People have proved that the defendant committed all the acts
alleged to have occurred during this time period [and have proved the defendant committed
at least the number of offenses charged].‖
The unanimity rule has been refined in cases involving sexual molestation of children
and repeated identical offenses. ―In such cases, although the jury may not be able to readily
distinguish between the various acts, it is certainly capable of unanimously agreeing that they
took place in the number and manner described. ―[E]ven generic testimony describes a
repeated series of specific, though indistinguishable, acts of molestation. [Citation.] The
unanimity instruction assists infocusing the jury‘s attention on each such act related by the
victim and charged by the People. We see no constitutional impediment to allowing a jury,
so instructed, to find a defendant guilty of more than one indistinguishable act,
providing . . . three minimum prerequisites . . . are satisfied.‖ (Jones, supra, 51 Cal.3d at
p. 321.) Those prerequisites include generic evidence describing (1) the kind of acts
committed, (2) the number of acts committed with sufficient certainty to support the alleged
15
counts, and (3) the general time period in which the acts occurred. (Id. at p. 316; People v.
Matute (2002) 103 Cal. App. 4th 1437, 1448.)
Jane Doe No. 2 testified about both specific and generic instances of molestation.
Specific instances of touching by appellant included one occasion while Carmen was
cooking dinner. Another took place on an evening when Jane Doe No. 2 and Paula spent the
night at appellant‘s home. Paula set up a blanket on the floor for them to sleep on and went
out, leaving Jane Doe No. 2 with her grandparents. Appellant joined Jane Doe No. 2 on the
blanket and rubbed his hand in a circular motion ―in [her] private part,]‖ her ―bottom.‖ A
third incident of abuse took place when Jane Doe No. 2 slept with her grandparents in
Ricardo‘s bed, and appellant touched her when Carmen left the bed to use the bathroom.
Jane Doe No. 2 also described a specific incident when she was lying on her grandparents‘
bed in appellant‘s apartment, and he pulled her pants and panties down and began ―kissing
[her] on [her] private part,‖ and refused to stop even after she told him three times to do so
and pushed his head away. But, even as to her more specific descriptions of most of these
acts, Jane Doe No. 2 was unable to provide much detail, or any dates when the abuse
occurred or to enumerate how many times the touching happened. She also testified more
generically about repeated, indistinguishable acts of molestation by appellant; e.g., his having
touched her ―bottom,‖ when she visited his apartment ―most times‖ or ―two times a day.‖
And, contrary to appellant‘s assertion, the record does not reflect that Jane Doe No. 2
testified that the specific events she recalled occurred only before her first disclosure of the
abuse to her parents in May 2009. She did not state when all the specific acts she described
happened in relation to that disclosure. Rather, she testified that they occurred both before
and after her initial disclosure.
Both girls testified about numerous, repetitive molestations which took place over a
defined period of time. Each described the distinct types of abuse to which she had been
subjected in sufficient detail, was able to identify the locations where it took place, and was
able to give a general estimate of the frequency of events. Appellant offered no evidence in
his defense that might focus doubt as to any specific act of abuse as distinguished from any
other act of molestation. Rather, his defense was simply that no molestation ever occurred.
16
Thus, it is unlikely that the jury would have a reasonable disagreement with respect to any
particular act or instance of abuse, or could reasonably conclude that some of the victims‘
testimony was true but other parts were not.
The jurors either believed all the acts occurred, or they disbelieved the girls‘ stories
completely. As Jones explains, if it is not reasonably likely that jurors will disagree as to
which particular act the defendant committed and the only issue is whether they were
committed at all, the jury should be given the modified unanimity instruction contained in
CALCRIM No. 3501. This is so because the instruction allows the jurors to convict if they
agree unanimously on certain acts or if they unanimously agree the defendant committed all
the acts alleged by the victim. (Jones, supra, 51 Cal.3d at pp. 321–322.) The jury was
properly instructed with CALCRIM No. 3501.
b. CALCRIM No. 330.
Appellant also contends that his state and federal constitutional rights to a jury trial,
confrontation and due process were violated because the jury was improperly instructed with
CALCRIM No. 330. He is wrong.
In accordance with CALCRIM No. 330, the jury was instructed:
―You have heard evidence from a child who is age ten or younger. As with any other
witness, you must decide whether the child gave truthful and accurate testimony.
―In evaluating the child‘s testimony, you should consider all of the factors
surrounding that testimony, including the child‘s age and level of cognitive development.
―When you evaluate child‘s cognitive development, consider the child‘s ability to
perceive, understand, remember and communicate.
―While a child and adult witness may behave differently, that difference does not
mean that one is any more or less believable than the other. You should not discount or
distrust the testimony of a witness just because he or she is a child.‖
Defendant maintains this instruction should not have been given because it ―invaded
the jury‘s province‖ and unfairly bolstered Jane Doe No. 2‘s credibility, and violated his
―constitutional right to present a defense and to confront Jane 2‘s testimony against him by
17
unfairly impairing his ability to impeach her credibility based on her inability to perceive,
understand, remember, and communicate.‖
Anticipating our concerns, appellant acknowledges that he failed to object to the
instruction at trial, but argues he has not forfeited the issue on appeal because the erroneous
instruction affected his substantial rights. (§ 1259.) We find that appellant forfeited the
issue. Failure to object below to an instruction correct in the law forfeits the claim on appeal.
(People v. Virgil (2011) 51 Cal. 4th 1210, 1260.) Nevertheless, exercising our discretion to
address the merits, we conclude CALCRIM No. 330 is legally proper and the court acted
appropriately in so instructing the jury.
Appellant maintains that, by instructing on CALCRIM No. 330, the trial court
unfairly and unconstitutionally restricted the jury‘s consideration of evidence affecting the
credibility of Jane Doe No. 2 who was nine when she testified.
Appellant concedes that his contentions have been uniformly rejected in published
decisions rejecting the same argument with respect to CALJIC No. 2.20.1, the predecessor to
CALCRIM No. 330. (People v. McCoy (2005) 133 Cal. App. 4th 974, 979–980; People v.
Harlan (1990) 222 Cal. App. 3d 439, 455–457; People v. Jones (1992) 10 Cal. App. 4th 1566,
1572–1574; People v. Gilbert (1992) 5 Cal. App. 4th 1372, 1393.)
People v. McCoy, supra, 133 Cal. App. 4th 974 summarized its predecessor cases:
People v. Harlan, supra, 222 Cal. App. 3d 439 ―held that the instruction neither excessively
inflates a child‘s testimony nor impermissibly usurps the jury‘s role as arbiter of witness
credibility nor violates the accused‘s right to confront a child witness nor ‗require[s] the jury
to draw any particular inferences from a child‘s cognitive ability, age and performance as a
witness. Rather, it instructs the jury to consider such factors in evaluating a child‘s
testimony.‘ [Citation.] In . . . People v Jones[, supra,] 10 Cal. App. 4th 1566, the court held
that the instruction ‗presupposes that the jury must make a determination of credibility, but
only after considering all the factors related to a child‘s testimony, including his [or her]
demeanor, i.e., how he or she testifies on the stand,‘ all without ‗―foreclos[ing] independent
jury consideration of the credibility of a child witness.‖‘ [Citation.] [People v. Gilbert,
supra, 5 Cal. App. 4th 1372] held that CALJIC No. 2.20.1 neither ‗―lessen[s] the
18
government‘s burden of proof‖‘ nor ‗―instructs the jury to unduly inflate the testimony of a
child witness‖‘ [citation]: The instruction tells the jury not to make its credibility
determinations solely on the basis of the child‘s ―age and level of cognitive development,‖
but at the same time invites the jury to take these and all other factors surrounding the child‘s
testimony into account. The instruction provides sound and rational guidance to the jury in
assessing the credibility of a class of witnesses as to whom ―‗traditional assumptions‘‖ may
previously have biased the factfinding process. Obviously a criminal defendant is entitled to
fairness, but just as obviously he or she cannot complain of an instruction the necessary
effect of which is to increase the likelihood of a fair result.‘ [Citation.]‖ (McCoy, at p. 979.)
These holdings apply with equal force to CALCRIM No. 330, for the reasons
explained in McCoy. CALCRIM No. 330 simply instructs the jury to take into account a
child‘s ability to perceive, understand, remember and communicate when making a
credibility determination. It does not instruct the jury to subject a child‘s testimony to a less
rigorous credibility determination, nor does it excessively inflate a child witness‘s credibility.
We reject appellant‘s constitutional challenge to CALCRIM No. 330.4
3. Appellant’s assertions of prosecutorial misconduct fail.
Appellant contends the prosecutor committed misconduct during her closing
argument, going ―beyond the pale in attacking the character of the girls‘ fathers,
grandmother, and appellant himself, while vouching for the credibility and character of the
complaining witnesses and their mothers.‖ He also argues that the prosecutor sandbagged
him by ―sav[ing] most of the venom for her rebuttal closing, giving appellant no opportunity
to respond to a vicious and misleading recitation of the evidence.‖ He also claims his trial
counsel was ineffective for failing to object, and that the result of these errors cannot be
deemed harmless. None of appellant‘s contentions has merit.
4 Our determination that no error occurred with regard to the trial court‘s decision
to give either CALCRIM Nos.1305 or 330 renders it unnecessary to address appellant‘s
contention that the court erred cumulatively by giving both.
19
a. Forfeiture
Appellant asserts that the prosecutor committed misconduct by statements she made
in her closing argument. In response, the Attorney General argues that by objecting only one
time each on the vague ground of ―improper argument‖ during the prosecutor‘s initial and
rebuttal closing arguments, appellant has forfeited this issue.5 Appellant, who never
requested an admonition, appropriately concedes the merits of this argument.
―To preserve for appeal a claim of prosecutorial misconduct, the defense must make a
timely objection at trial and request an admonition; otherwise, the point is reviewable only if
an admonition would not have cured the harm caused by the misconduct‖ (People v. Price
(1991) 1 Cal. 4th 324, 447), or if ―an objection would have been futile‖ (People v. Arias
(1996) 13 Cal. 4th 92, 159). Appellant did not object to the arguments he challenges on
appeal. He does not argue that it would have been futile for him to have done so, nor does he
maintain that a judicial admonition could not have cured any error. The issue of
prosecutorial misconduct has been forfeited. (People v. Dennis (1998) 17 Cal. 4th 468, 521–
522; People v. Hill (1998) 17 Cal. 4th 800, 820 (Hill).)
b. No prosecutorial misconduct
Even on the merits the result would not change; there was no misconduct.
Appellant first argues that the prosecutor improperly vouched for the girls‘ credibility.
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.
[Citations.] Nor is a prosecutor permitted to place the prestige of her office behind a witness
by offering the impression that she has taken steps to assure a witness‘s truthfulness at trial.
[Citation.] However, so long as a prosecutor‘s assurances regarding the apparent honesty or
reliability of prosecution witnesses are based on the ‗facts of [the] record and the inferences
5 Appellant‘s counsel objected as ―improper argument‖ to the prosecutor‘s
comments during her opening argument about how frightening it must have been for the
children to testify. She also objected that the prosecutor had ―misstate[d] . . . testimony‖
in her rebuttal. Both objections were overruled.
20
reasonably drawn therefrom, rather than any purported personal knowledge or belief,‘ her
comments cannot be characterized as improper vouching.‖ (People v. Frye (1998) 18
Cal. 4th 894, 971, disapproved on another point by People v. Doolin (2009) 45 Cal. 4th 390,
421 & fn. 22; (People v. Boyette (2002) 29 Cal. 4th 381, 433.) Misconduct arises only if, in
arguing the veracity of a witness, the prosecutor implies she has evidence about which the
jury is unaware. (People v. Padilla (1995) 11 Cal. 4th 891, 945–946, overruled on another
point in Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
Here, the prosecutor‘s comments were grounded in the evidence regarding the victims
and their families, or were reasonable inferences drawn from that evidence, especially
relating to the girls‘ tenacity in sticking to their individual stories over the course of time and
in the face of overt hostility aimed at them and their mothers from their paternal relatives.
Because the prosecutor‘s comments were based on the evidence and reasonable inferences
that could be drawn therefrom, they were not improper vouching. (Boyette, supra, 29
Cal.4th at p. 433.)
Appellant also takes issue with the prosecutor‘s ―attacks on the character of the girls‘
fathers and grandmother and appellant himself.‖ He argues that the prosecutor repeatedly
labeled him and his family members liars. This was a permissible argument. ―‗The
prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to
credence . . . [and] to argue on the basis of inference from the evidence that a defense is
fabricated . . . .‘ [Citation].‖ (Boyette, supra, 29 Cal.4th at p. 433.) The evidence was
conflicting concerning those issues the prosecutor argued appellant and his family lied about
(e.g., whether appellant was ever alone with either granddaughter, Ricardo‘s attentiveness—
or lack thereof—to his daughter during visits, when Carlos learned that his niece had been
molested, the brothers‘ financial dependence on their father.) From this evidence, the
prosecutor was permitted to argue that appellant was less than truthful. ―‗[H]arsh and
colorful attacks on the credibility of opposing witnesses . . . are permissible. [Citations.]‘‖
(People v. Pearson (2013) 56 Cal. 4th 393.) As with most child molestation cases, this entire
case hinged on who was lying and who was telling the truth. It is not surprising, therefore,
21
that the entire argument of both defense counsel and the prosecution consisted of a series of
attacks on the credibility and character of witnesses.
The prosecutor made no direct personal attacks on appellant or any defense witness.
But, the prosecutor‘s comments did address testimony by appellant and defense witnesses
that implied the girls‘ mothers concocted the allegations of molestation in order to retaliate
against their ex-husbands, and had exposed or allowed their daughters to be exposed to
sexual or pornographic material. The prosecutor also commented on the defense witnesses‘
many contradictions of one another, and on Ricardo‘s frequently internally inconsistent
testimony, particularly his attempts to portray himself as a vigilant, attentive father when
Jane Doe No. 1 visited him at appellant‘s home, when in fact Ricardo regularly just dropped
his daughter off and left. Finally, in response to appellant‘s closing argument, the prosecutor
argues that appellant‘s grown sons—the victims‘ fathers—had a motive to lie on his behalf,
because both were financially dependent on him. Sarah also had a motive to lie, because she
continually relied on Carmen (who in turn relied on appellant to drive her places) to care for
her children. Nothing the prosecutor said was an improper appeal to the jurors‘ emotions nor
was it aimed at inflaming their passions.
Even if we stretched to label the prosecutor‘s argument as ―harsh,‖ or ―colorful,‖ it
was not improper. (Pearson, supra, 56 Cal.4th at p. 442.) ―[T]he use of derogatory epithets
to describe a defendant is not necessarily misconduct.‖ (People v. Friend (2009) 47 Cal. 4th
1, 32 [defendant described as ―‗living like a mole or the rat that he is‘‖].) ―A prosecutor is
allowed to make vigorous arguments and may even use such epithets as are warranted by the
evidence, as long as these arguments are not inflammatory and principally aimed at arousing
the passion or prejudice of the jury.‖ (People v. Pensinger (1991) 52 Cal. 3d 1210, 1251.)
The California Supreme Court has repeatedly rejected claims of prosecutorial misconduct
involving the use of such epithets in guilt phase arguments. (See, e.g., People v. Young
(2005) 34 Cal. 4th 1149, 1195 [no misconduct where prosecutor characterized crimes as
―‗serial killing,‘‖ and ―‗terrorizing and killing‘‖ people, italics omitted]; Pensinger, at
pp. 1250–1251 [no misconduct where prosecutor referred to defendant as a ―‗perverted
maniac‘‖].) The far milder aspersions cast on appellant and his family members by the
22
prosecutor here were isolated characterizations in the course of her summation, not
misconduct.6
Appellant also complains that he was sandbagged because the prosecutor saved her
most venomous attack for her rebuttal argument, giving him no opportunity to respond. He
likens this case to People v. Robinson (1995) 31 Cal. App. 4th 494, where the court found the
prosecutor committed misconduct by giving a ―perfunctory (three and one-half reporter
transcript pages) opening argument designed to preclude effective defense reply,‖ followed
by a ―‗rebuttal‘‖ argument that was ―10 times longer (35 reporter transcript pages) than his
opening argument.‖ (Id. at p. 505.) Here, however, the prosecutor‘s opening argument (20
transcript page) was not perfunctory, and her rebuttal was six pages shorter—not 10 times as
long—as the opening part of her closing argument. Moreover, the vast majority of the
prosecution rebuttal was a fair response to the theory posed in appellant‘s closing argument
that the girls were merely acting out in order to garner whatever attention they could from
their fathers and other members of their dysfunctional family. On this record, it cannot be
said that the prosecutor‘s conduct was so egregious that it infected the trial making it
fundamentally unfair, or that the prosecutor used any deceptive or reprehensible methods.
We also reject appellant‘s unsubstantiated assertion that the prosecutor
6
―impugned . . . the defense team.‖
A prosecutor is not ―required to discuss his [or her] view of the case in clinical or
detached detail.‖ (People v. Panah (2005) 35 Cal. 4th 395, 463.) He or she may make
comments ―aimed solely at the persuasive force of defense counsel‘s closing argument,
[but] . . . not at counsel personally. . . . [Citations.]‖ (People v. Zambrano (2007) 41
Cal. 4th 1082, 1155, disapproved on a different point by People v. Doolin, supra, 45
Cal.4th at p. 421 & fn. 22.) Appellant points to no comment by the prosecutor, nor has
our review disclosed any, that rises to the level of misconduct under either federal or state
standards. Viewed in context, none of her comments were personal attacks on defense
counsel, but were instead a fair rebuttal to doubts the defense tried to cast on the victims‘
credibility. The prosecutor‘s remarks related to the evidence in the case and urged the
jurors not to be distracted by defense counsel‘s focus on the dynamics of the victims‘
dysfunctional extended family. (See People v. Cunningham (2001) 25 Cal. 4th 926,
1002–1003 [no reasonable likelihood jury improperly influenced by prosecutor‘s remarks
that defense counsel‘s ―‗job is to create straw men. . . . put up smoke, red herrings‘‖].)
23
On this record, the prosecutor‘s remarks were permissible rebuttal on the pivotal issue of
witness credibility. (See People v. Tully (2012) 54 Cal. 4th 952, 1016; People v. Stanley
(2006) 39 Cal. 4th 913, 952.) Appellant‘s claim of prosecutorial misconduct fails.
c. Harmless error
Assuming (which we do only for the purpose of this analysis) that the prosecutor‘s
argument was improper, it is clear to us from our review of the record that the argument was
harmless, and that no prejudice has been (or can be) demonstrated. Even where a defendant
shows prosecutorial misconduct occurred, reversal is not required unless the defendant can
show he suffered prejudice. (People v. Arias, supra, 13 Cal.4th at p. 161.) Error with
respect to prosecutorial misconduct is evaluated under Chapman v. California (1967) 386
U.S. 18 [87 S. Ct. 824, 17 L. Ed. 2d 705], to the extent federal constitutional rights are
implicated, and People v. Watson (1956) 46 Cal. 2d 818, if only state law issues were
involved. (People v. Adanandus (2007) 157 Cal. App. 4th 496, 514.) Chapman is implicated
if the prosecutor‘s conduct renders the trial so fundamentally unfair that due process is
violated. (People v. Gionis (1995) 9 Cal. 4th 1196, 1214–1216; People v. Harris (1989) 47
Cal. 3d 1047, 1084.) Watson applies where the prosecutor uses ―‗―‗deceptive or
reprehensible methods to attempt to persuade either the court or the jury.‖‖‘‖ (Gionis, at
p. 1215.)
We find that, even if the prosecutor‘s argument constituted misconduct, it did not
render the trial so fundamentally unfair that it triggered the Chapman standard. Nor is it
reasonably probable that a more favorable result would have been reached absent the alleged
objectionable argument. Reversal is neither warranted nor appropriate. (People v. Watson,
supra, 46 Cal.2d at 836; People v. Barnett (1998) 17 Cal. 4th 1044, 1133.) As the jury heard,
appellant‘s granddaughters testified credibly and presented powerful evidence against him.
It is not reasonably probable that appellant would have achieved a more favorable outcome
had the prosecutor not made her allegedly improper argument.
d. Ineffective assistance of counsel
Finally, we turn to appellant‘s claims of ineffective assistance of counsel. He asserts
in a conclusory manner that his trial counsel was ineffective for failing to object to the trial
24
court‘s amendment of the information, the prosecutor‘s allegedly improper argument, and
sandbagging tactics in her closing argument. However, as we concluded above, the court‘s
amendment of the information was not error and there was no misconduct by the prosecutor.
Thus, we also conclude on this record that appellant‘s trial counsel was not ineffective for
failing to object, because there was a tactical reason for not doing so. In short, there was no
error. (See People v. Lucas (1995) 12 Cal. 4th 415, 436–443; People v. Mesa (2006) 144
Cal. App. 4th 1000, 1007–1008 [on direct appeal ―a conviction will be reversed for ineffective
assistance of counsel only when the record demonstrates there could have been no rational
tactical purpose for counsel‘s challenged act or omission‖].)
This was an emotionally-charged case involving two young girls and their volatile
family. The closing argument (including rebuttal) was relatively short and focused, by
necessity, primarily on the credibility of the victims vis-à-vis that of appellant, the girls‘
fathers and other members of appellant‘s family. The prosecutor commented, but did not
dwell, on objectionable material. Defense counsel reasonably could have concluded that she
did not want to draw additional attention to those statements by objecting, having the court
rule on the objections, striking them, and having the court give an admonition. Because this
would have been a reasonable trial strategy, we cannot find defense counsel‘s performance
deficient. Appellant‘s claim of ineffective assistance of counsel as to prosecutorial
misconduct lacks merit. (People v. Adanandus (2007) 157 Cal. App. 4th 496, 515–516.)
4. Reversal is not required because defense counsel did not present a Stoll expert at
trial.
Appellant argues he was denied effective assistance of counsel because his trial
attorney declined to call an expert under People v. Stoll (1989) 49 Cal. 3d 1136 (Stoll).
a. Procedural background
On April 13, 2011, during jury selection, defense counsel informed the court she had
neglected to add Dr. Cherkis, an expert, to her witness list. Counsel had not previously
notified the prosecutor about this witness—whom she was not yet sure she wished to call—
and did not have his report, but expected it by the next day.
25
On April 18, 2011, defense counsel still had not given the court or prosecutor a copy
of Dr. Cherkis‘s report. She informed the court that Dr. Cherkis had met with appellant on
April 16, 2011, and that she expected his report that day. When reminded that she was
supposed to have provided notice that Dr. Cherkis would testify 30 days prior to trial,
appellant‘s attorney said she thought her office had taken care of it.
Later that day, defense counsel told the court that Dr. Cherkis‘s report was being
faxed to the court, but the report did not promptly arrive and the court informed appellant‘s
counsel she needed to get the report that night.
On April 19, 2011, the court informed the parties that it had received and reviewed
Dr. Cherkis‘s one and a half page report the day before. Appellant‘s counsel informed the
court that the report was ―inadequate for testimony,‖ and said she no longer planned to call
Cherkis as a witness.
In a motion for a new trial, appellant argued that his trial counsel was ineffective, in
part, for failing to present a Stoll expert. After the conviction, appellant‘s new defense
counsel had a Stoll evaluation conducted by a psychologist, Dr. Malinek, who said he
―doubt[ed] [appellant] is a pedophile, . . . since pedophiles typically show sexually
inappropriate interest in children much earlier in life,‖ and appellant was 51 with no prior
history of sexual misconduct. Malinek also said that ―all the criminological risk factors,
which have been associated with recidivism among sex offenders, are absent in this case.‖
Further, appellant‘s scores on two ―state of the art‖ actuarial tools used to assess the risk of
recidivism, were ―unusually low, . . . suggesting a very low recidivism risk.‖ Appellant
argued that this expert testimony would have created a reasonable doubt as to his guilt.
The trial court denied the motion for a new trial. As to this argument, the court said:
―Insofar as the failure to call Dr. Cherkis as a [Stoll] expert or somebody else as a
[Stoll] expert, again, I don‘t think the defense has established that there was not a tacti[cal]
reason for not doing that. I think it could be for any number of reasons. Many lawyers feel
that jurors don‘t take kindly to expert testimony in the psychological area. I don‘t think
there‘s necessarily . . . no tactical reason why she might not want to call a defense expert in
that area. I don‘t think that fact considered either individually or cumulatively with any other
26
allegation would have reasonably or likely changed the outcome of the trial. So I find any
tactical error or inadequate performance by [trial counsel was harmless], and I‘m not finding
that because I don‘t think the defense has established it [error], but even if somebody were to
disagree with me and reach that conclusion, I don‘t find it to have been material to the
outcome of the case. I don‘t think reasonably and likely that a different outcome would have
been reached had such an expert . . . testified.‖
Appellant insists that, had his trial attorney been effective and obtained a Stoll
examination, he would have been able to show the jury that his psychological makeup is not
consonant with molesting a child, and that this case presented indicia of a credible claim of
innocence requiring reversal.
―It is now settled that psychological opinions based upon personal examination and
an analysis of accepted psychological tests . . . may be admitted as character evidence
tending to show that an individual was or was not likely to have committed a particular act.‖
(People v. Ruiz (1990) 222 Cal. App. 3d 1241, 1243–1244, Stoll, supra, 49 Cal.3d at p. 1153;
Evid. Code, § 1102, subd. (a).) In Stoll, a child molestation case, the California Supreme
Court held that the trial court erroneously excluded a psychiatrist‘s opinion that defendant
had a ―‗normal personality function,‘‖ that defendant had not previously engaged in ―sexual
deviancy of any kind‖ and that it was ―‗unlikely . . . she would be involved in the events
she‘s been charged with.‘‖ (Stoll, supra, 49 Cal.3d at p. 1149, italics omitted.)
Appellant‘s claim fails. While the case is close, he did not definitively establish that
trial counsel lacked a tactical reason for declining to present a Stoll expert at trial.
(Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S. Ct. 2052, 80 L. Ed. 2d 674];
People v. Lucas, supra, 12 Cal.4th at pp. 436–437.) We agree with the trial court that it is
possible that appellant‘s counsel decided a psychological expert might not hold sway with
the jurors and chose not to present that testimony.
Even if we assume trial counsel was deficient in failing to present an expert, appellant
cannot show that he suffered any prejudice as a result. Appellant maintained he did not
molest either of his granddaughters, and claimed they made up the allegations in collusion
with one another and their mothers to retaliate against his sons. But, despite the considerable
27
effort expended to establish this conspiracy, the defense never presented any evidence to
show that Jane Doe No. 1 or Jane Doe No. 2 had any interactions that would have permitted
them to have engaged in such concerted efforts, let alone that their mothers did so.
Further, most of the acts of molestation described by the girls differed between them.
Jane Doe No. 1 testified about behavior by appellant that involved him frequently touching
her vagina, inserting his finger into her vagina, and appellant‘s displaying of his penis to Jane
Doe No. 1 and also asking her to touch it. The behaviors Jane Doe No. 2 described were
different. They involved appellant frequently touching her ―bottom,‖ his oral copulation of
her vagina and no exposure of his penis. In addition, both girls were reluctant to report
appellant‘s actions to the police. The girls‘ testimony throughout the stages of the case
regarding the sexual abuse was consistent and there was no evidence they had discussed
appellant‘s conduct in advance.
In addition, the record reflects that Paula did not learn that Jane Doe No. 1 had been
molested until she met with Martha in May 2010 to discuss an unrelated matter. That was a
year after the abuse of Jane Doe No. 1 had been reported to the police, and about a year after
Jane Doe No. 2 first told her own parents she had been molested. Only after she checked
again with her daughter and learned appellant was still sexually abusing her did Paula and
Jane Doe No. 2 also report the abuse to the police.
In Stoll, four defendants were jointly tried and convicted of 36 counts of lewd conduct
against seven young boys. (Stoll, supra, 49 Cal.3d at p. 1141.) Two of the defendants,
convicted on four and five counts, tried to present expert testimony that they displayed no
signs of sexual deviance. (Id. at pp. 1141–1142.) In finding prejudice, Stoll emphasized that
the defendants had ―mounted a thorough attack on the credibility of each witness.‖ (Id. at
p. 1162.) In addition, four of the five victims admitted they lied at the preliminary hearing,
two witnesses admitted to at least one untruth in their testimony at trial; and all five victims
contradicted their pretrial statements in some respect. (Ibid.) Plus, one defendant had a
partial alibi. (Ibid.)
Stoll resembles this case in that, as in most cases involving accusations of sexual
molestation, there is no physical evidence or eyewitness testimony to corroborate the
28
allegations of abuse. But the two cases also differ markedly in that, here, the prosecution
lacked the numerous and fatal flaws emphasized in the prejudice analysis in Stoll. The Stoll
testimony proffered in the new trial motion, if believed, would tend to suggest appellant may
not have committed the charged offenses. (Stoll, supra, 49 Cal.3d at p. 1161.) But, absent
some significant impairment of the victims‘ credibility or evidence to support appellant‘s
conspiracy theory, we cannot agree that there is a reasonable probability the Stoll evidence
would have produced a different result on any count in this case. Appellant‘s claim of
ineffective assistance fails.
5. Appellant has not shown cumulative error.
Appellant‘s contends reversal of his convictions is required due to the cumulative
effect of all the alleged errors. But we have rejected appellant‘s contentions on appeal.
Accordingly, we also reject his claim of cumulative error. ―There was . . . no error to
cumulate.‖ (People v. Phillips (2000) 22 Cal. 4th 226, 244.) And, to the extent there was any
error, appellant was not prejudiced thereby. (People v. Jenkins (2000) 22 Cal. 4th 900, 1056
[―trial was not fundamentally unfair, even if we consider the cumulative impact of the few
errors that occurred‖]; accord, People v. Sapp (2003) 31 Cal. 4th 240, 316.) Accordingly,
reversal is not in order.
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
JOHNSON, J.
We concur:
ROTHSCHILD, Acting P. J.
CHANEY, J.
29