People v. Ibanez CA1/3

Filed 8/10/22 P. v. Ibanez CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A159525
v.
PEDRO ERASMO DIAZ IBANEZ, (Sonoma County
Super. Ct. No. SCR-722520-1)
Defendant and Appellant.
Defendant Pedro Ibanez appeals after a jury convicted him of several
counts of lewd acts against two minor victims and found true multiple-victim
allegations under the “One Strike” law. On appeal, defendant contends that:
(1) the trial court erroneously excluded evidence; (2) his trial counsel was
ineffective; (3) the court incorrectly and confusingly responded to a question
from the jury; and (4) cumulative prejudice requires reversal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with four counts of sexual intercourse with
Jane Doe One (Doe One), a child who was 10 years of age or younger (Pen.
Code, § 288.7, subd. (a),1 counts 1, 3, 5, 7). He was also charged with multiple
counts of lewd acts upon a child under 14 (§ 288, subd. (a) (288(a))): four
involving Doe One (counts 2, 4, 6, 8); and two involving Jane Doe Two (Doe
1 All further statutory references are to the Penal Code.
1
Two) (counts 9 and 10).2 The charges concerning Doe One specified that
counts 1 and 2 concerned conduct “In the bedroom—first time”; counts 3 and
4 concerned conduct “In the bedroom—the time when her sister was at the
house”; counts 5 and 6 concerned conduct “In the bathroom”; counts 7 and 8
concerned conduct “The same day as the bathroom incident.” A One Strike
multiple-victim allegation was alleged as to each of the section 288(a) counts.
(§ 667.61, subds. (e), (j)(2).)
After trial in October and November 2019, a jury found defendant not
guilty of counts 7 and 8, and could not reach a verdict on counts 1, 3 and 5.
The jury, however, convicted defendant of counts 2, 4, 6, and 9 and found the
One Strike multiple victim enhancements true as to each of those counts.
The trial court dismissed counts 1, 3, and 5 pursuant to a motion by the
People, and ultimately sentenced defendant to consecutive 25 to life terms for
each of his section 288(a) convictions, for a total of 100 years to life. The
following is a brief summary of some of the trial evidence.
A. Prosecution Case
1. Testimony of Doe One
Doe One, who was 13 years old at the time of trial, testified as follows.
For about half a year when Doe One was around two years old, her
parents took her to a woman for child care, and defendant was that woman’s
husband. Defendant “raped” Doe One at his house, but at the time she did
not understand what was happening.
Doe One first described an incident that started when she was sitting
at the kitchen table while defendant’s wife made food. Defendant came home
2 After the People rested their case in chief, defendant moved for
acquittal as to count 10 pursuant to section 1118.1. The court granted that
motion and dismissed the count.
2
for his lunch break and took her to his room. Defendant put her on the bed
and played a pornography video. When the video ended, defendant told Doe
One that she had to do the same thing, but Doe One refused. Defendant
slapped her, then forced himself on her. Doe One felt defendant force his
penis into her vagina and tried unsuccessfully to push him away. The
incident ended when defendant’s wife knocked on the door to say the food was
ready. Doe One felt a stinging in her “vagina.” Her vagina was red, and she
was in pain afterwards. This was not the first time this type of incident
occurred.
Doe One recalled another incident, when her sister went with her to
defendant’s home while an inspection was occurring at their apartment. She
could not recall how it began, just that she was playing with her sister in the
living room, then she was with defendant on his bed in his room, with the
door closed. He held her in place and penetrated her; this time he was less
aggressive than in the first incident she described and it hurt less. The
incident stopped when her sister knocked on the door after their mom called
to say the inspection was over. Defendant did not open the door and said Doe
One was sleeping. Doe One’s sister went home, but eventually returned and
said that Doe One had to go back home and that their father was getting
impatient. Doe One went home alone and remembered her father yelled at
her when she arrived, telling her it was unsafe to sleep at other people’s
houses.
Doe One described another incident that occurred in the bathroom.
Though she was unsure when it happened in relation to the other described
incidents, she recalled that defendant carried her into the bathroom, put her
down on a laundry basket, touched her, removed her pants and underwear,
3
and penetrated her. This happened in the bathroom more than once, but Doe
One had no specific memories of the other times.
Doe One had flashbacks about the incidents. The year prior to the
trial, she reported the incidents to a school counselor. In the summer of 2019,
she met Doe Two while at a friend’s house. Afterwards, they messaged each
other on Snap Chat, a messaging application. The two realized they were
involved in the same case, but did not talk about the details of the incidents.
2. Testimony of Doe Two
Doe Two, who was 11 years old at the time of trial, testified as follows.
Doe Two was around five years old when defendant’s wife babysat her.
She could not recall how many times it occurred, but defendant removed her
pants and underwear and touched her “private parts” in the living room with
his hands, while she sat on a rolling chair.3 She recalled one incident in
which he stopped touching her because her father had come to pick her up.
She told her father and her mother what happened that same day, but they
did not believe her. She recalled meeting Doe One a “long time ago” through
a mutual friend. She remembered messaging Doe One on Snap Chat, but
they never talked about the details of what happened to either of them.
3. Other witnesses
The prosecution presented testimony from the victims’ family members
and others, as follows.
Testimony from Doe One’s older sister included the following. She
sometimes went to defendant’s home with Doe One. When defendant was
home, she and her sister would always go to his bedroom to watch a movie.
In general, on such occasions, defendant would make them lay on his bed and
go under the blankets, and he would close the doors, windows, and window
3 Doe Two indicated that by “private parts” she meant her vaginal area.
4
curtains; the room would be very dark. Defendant would play “kid’s stuff, kid
movies” and turn the volume up. Defendant “was usually wrapped around”
her sister with his arms, laying very close to her, and she heard Doe One
giggling. One day, when it was already dark out, defendant asked Doe One’s
sister to leave while Doe One remained; he told the sister that she should
head home because her father was going to get worried, and that he was
going to give Doe One a snack then send her home. The sister tried to ask
Doe One if she wanted to leave, too, but Doe One did not respond, so she just
left. Doe One ended up coming home after her sister was already in bed, and
their father was angry. The next day, Doe One was uncharacteristically very
quiet and distant. Doe One and her sister were very close, and they talked a
lot. The sister could not recall how many times they went to defendant’s
house, but it was more than twice. After defendant started taking them to
his bedroom and closing the door, Doe One’s sister told her parents she did
not want to go to defendant’s house anymore.
Doe One’s father testified defendant was a neighbor in the same
apartment complex, who helped him find a job. He worked with defendant
but had been laid off about two and a half years prior. He felt bad about
being laid off, but said defendant was not responsible and he was not angry
at defendant. The two kept in contact a little bit.
Doe One’s mother testified that she stopped taking Doe One to
defendant’s wife for babysitting when Doe One was around three and a half
years old, because Doe One said she no longer felt comfortable there and did
not want to go there. She recalled that once Doe One stayed and fell asleep
at defendant’s house, and her older daughter went to pick her up. Doe One
did not complain of pain after returning from defendant’s home, except once
she came home and her lower “feminine part” was red and irritated. Doe One
5
did not want to be touched and did not let her put cream on it, which was
surprising. Sometimes Doe One returned home from defendant’s house in
clothes that were different than the ones she originally wore.
Doe Two’s mother testified that defendant’s wife babysat Doe Two
when she was around four or five years old. She stopped taking Doe Two to
defendant’s wife for babysitting after Doe Two told her and Doe Two’s father
that a man “forced himself on her” and told her to “go to the bathroom and
take off her clothes and she didn’t want to do that.” Doe Two’s father had
picked Doe Two up from defendant’s home the day she reported this; he saw
that she was trembling and thought it was wrong for defendant’s wife to
leave her alone with defendant. When Doe Two’s younger sister needed
babysitting, Doe Two’s mother called defendant’s wife to see what she was
charging. Doe Two reacted by shouting not to take her sister there, and said
she would rather stop going to school to watch her sister. Because of Doe
Two’s reaction, Doe Two’s mother realized that something more serious had
happened at defendant’s home. She was afraid because when Doe Two was
young and reported what had happened, she did nothing.
A school counselor testified that in March 2018, Doe One disclosed the
abuse to her. Doe One indicated she realized that what happened was not
okay after her parents talked to her about inappropriate touching and after
she watched a movie in January 2018 that depicted a sexual assault.
Detective Walter Spiller testified about the investigation of the case,
including the details regarding the forensic interviews of the victims, which
were played for the jury. Doe One’s parents provided Detective Spiller with
the phone number of Doe Two’s mother after he asked if they knew anyone
else who went to the defendant’s wife for child care. When Doe Two’s
6
mother’s reported her concerns, Detective Spiller set up a forensic interview
for Doe Two.
Another detective who examined a laptop with a user account bearing
defendant’s name also testified. The detective found hundreds of adult
pornography videos on the computer, but no child pornography.
Experts also testified at the trial. A nurse who qualified as an expert
in sexual assault examinations testified she found nothing relevant during
her non-acute physical examination of Doe One, which is what she expected
given that the examination occurred years after the alleged incidents. The
nurse noted Doe One reported that defendant verbally threatened her,
saying: “ ‘if you tell anybody I will do more next time.’ ” Finally, a psychology
expert in child sex abuse cases testified regarding “Child Sexual Abuse
Accommodation Syndrome,” a framework for explaining common behavior
amongst child sex abuse victims.
B. Defense Case
Defendant testified on his own behalf, denying that he inappropriately
touched Does One or Two or played pornography for Doe One. Discussing
pretext phone calls between himself and Doe One’s parents, defendant denied
the accusations and did not recall asking for forgiveness from Doe One’s
father, indicating he only asked forgiveness for what they were going through
or if he had done what the girl accused him of.4 He indicated his wife never
left him to watch the children she babysat, and by the time he got home from
work, the children were already gone. He acknowledged children were there
when he came home for lunch, and he sometimes tickled other children his
4 The prosecution did not introduce evidence of the pretext calls during
its case-in-chief. Although defendant testified about the calls, the recordings
themselves were not admitted into evidence.
7
wife babysat. He indicated he previously worked with Doe One’s father, but
they became distant after the father was laid off.
The defense called various witnesses, including defendant’s daughter
and other children whom defendant’s wife babysat, who testified they never
experienced or saw any inappropriate touching. Defendant’s daughter
testified defendant tickled her and other children being watched in the house,
and one of the other children testified defendant would tickle her and her
sisters.
Defendant’s wife testified that defendant never took a child in her care
to their bedroom, and that she never saw him touch a child inappropriately or
suspected he was doing so. Defendant was never alone with Doe Two because
of his work hours and Doe Two’s school schedule. She confirmed that Doe
Two suddenly stopped coming to her for babysitting. She denied ever sending
Doe One home in different clothes and ever seeing defendant tickle any of the
children she watched. Defendant had shown the wife adult pornography, and
she knew he watched it, but she was uncomfortable with it because of her
religion.
The defense also presented an expert in psychology and the psychology
of memory, Dr. Daniel Reisberg, who testified in part about the creation of
false memories. He described concepts associated with false memory,
namely, “stereotype induction” (where ideas are introduced to people or
children, who then create false narratives based on those ideas) and
“secondary gain” (where a person chooses to lie because there is some positive
effect to lying). Dr. Reisberg did not interview either of the victims,
indicating he was not a mental health professional and does not make
diagnoses.
8
C. Prosecution Rebuttal
The prosecution presented testimony from several law enforcement
witnesses in rebuttal. Among other things, Detective Spiller testified that he
has prior experience doing pretext calls, and generally when people are
approached with the type of serious accusation that confronted defendant,
they will adamantly deny the accusation if they are not guilty. But here,
during the initial pretext calls, defendant did not adamantly deny the
accusations and instead asked for forgiveness, which was abnormal. Officer
Zilverio Rivera, a Spanish speaking officer who assisted in conducting the
pretext calls, confirmed that defendant asked for forgiveness. Officer Rivera
testified some of defendant’s requests for forgiveness were qualified—e.g.,
defendant asked for forgiveness for whatever may have happened or if that
was what Doe One said—but others were not. Officer Rivera acknowledged
that defendant never admitted doing what Doe One accused him of.
DISCUSSION
A. Exclusion of Evidence
Defendant contends the trial court erred by excluding evidence of
statements that Doe Two made about her mother’s sexual behavior at home.
Specifically, he contends the court erred in prohibiting him and his wife from
testifying about alleged statements Doe Two made about her mother, and by
limiting the purpose of his daughter’s testimony about Doe Two’s statements.
Defendant contends the exclusion of this evidence denied him due process,
his right of confrontation, and his right to present a complete defense.
1. Additional Background
Defendant’s daughter testified that she sometimes spent time with Doe
Two when Doe Two was in defendant’s house. Doe Two sometimes talked
about her mother bringing men home and said “she could hear what her mom
9
would do.” Specifically, Doe Two said that she saw “her mom kiss other men
[(not her father)] in front of her, and she would use her hands and go like this
(indicating),” then defendant’s daughter pushed her two hands together. This
was the only thing that Doe Two ever said or did that caused defendant’s
daughter concern. In accord with defense counsel’s request, the court
admitted Doe Two’s statements as relayed by defendant’s daughter, not for
the truth of the matter asserted, but for how it affected the witness’s
perception of Doe Two.
Next, while defendant’s wife was on the stand, defense counsel asked if
she ever grew concerned about things Doe Two said about her home life, and
if Doe Two ever said anything about her mother having boyfriends at home.
The trial court sustained the prosecutor’s hearsay and relevance objections to
both questions. Defense counsel then asked if Doe Two ever indicated that
she was not staying at home because of situations between her parents. The
court overruled the prosecutor’s hearsay and relevance objections, and
defendant’s wife responded that Doe Two “would always tell about her mom
and her dad.” When defense counsel asked defendant’s wife to relay what
Doe Two said that was memorable, the prosecutor again objected on hearsay
and relevance grounds. The court sustained the objection, stating it did not
appear to be relevant. Defense counsel asked for a sidebar, then continued
examining defendant’s wife.
Later, outside the presence of the jury, defense counsel stated for the
record that, at the sidebar, the court denied her request to ask defendant’s
wife about statements Doe Two made about her mother having boyfriends in
the house and seeing her mother kiss other men. Defense counsel argued
these “events” were relevant to Doe Two’s “life experience, the circumstances
surrounding her allegations and her awareness of sexual matters, or matters
10
beyond the scope of a then four or five year old’s experience and
understanding.” The prosecutor noted Doe Two did not testify about any
specific sexual conduct at her own home5 and objected to defendant’s wife
providing hearsay evidence about such conduct. The court adhered to its
ruling, noting it found no reference in Doe Two’s testimony to boyfriends or
men visiting or kissing her mother.
Finally, defendant testified that he did not see Doe Two much when his
wife babysat her, but said that he would see Doe Two at his apartment
complex’s playground and when she would knock on his apartment door.
When defense counsel asked what Doe Two would say about why she played
outside, the trial court sustained the prosecutor’s objection on hearsay
grounds. Outside the jury’s presence, defense counsel indicated Doe Two had
told defendant that her mother was having sex with men for money at Doe
Two’s house and that she had seen them at her house. Defense counsel
explained that she was trying to “advance the defense that this child’s home
life was troubling, confusing, potentially ripe for what might result in a false
memory or allegation” and asserted that Doe Two’s statement was “indicative
of something.” Defense counsel insisted this was not objectionable as hearsay
because it was offered to show Doe Two’s “state of mind, her emotional make-
up, her life experience” and the fact “that the statement was made.”
The prosecutor disagreed and argued the statements were being offered
for the truth that Doe Two was exposed to sexual conduct in her home and
that the evidence would only be relevant if Doe Two was actually exposed to
5 On cross-examination, Doe Two testified she did not recall telling
defendant’s daughter anything about her mother being with other men in
their family’s home or telling anyone in defendant’s family about any of her
family’s private business. Nor did she recall coming by defendant’s home and
talking to him and his daughter.
11
such conduct. The prosecutor noted that Doe Two was never asked about
exposure to sexual conduct at home, and that the defense was now trying to
get other people to testify about it. Defense counsel responded by arguing
that whether or not the statements Doe Two made were true, they were
relevant to her credibility. Defense counsel denied asking “what [Doe Two]
saw in her house, what her mom’s sexual activities were” and acknowledged
“that is ultimately not relevant.”
The trial court ruled the proffered statements from defendant were
hearsay and no hearsay exception applied. Moreover, the court invoked
Evidence Code section 352 in concluding that admitting the statements
would be confusing for the jury and result in an undue consumption of time.
2. Discussion
Defendant’s opening brief does not address the fact that, at defense
counsel’s request, the trial court admitted and limited consideration of
defendant’s daughter’s statement that Doe Two said she saw her mother
kissing men in her house. Nor does he directly challenge the court’s decision
sustaining hearsay and relevance objections to defendant’s wife’s proposed
testimony about Doe Two’s supposed statements on the topic, or its decision
precluding defendant, based on hearsay grounds and Evidence Code section
352, from testifying that Doe Two said her mother was having sex with men
for money at their house.
Instead, relying solely on Franklin v. Henry (9th Cir. 1997) 122 F.3d
1270 (Franklin), defendant argues the court’s rulings violated his
constitutional rights of due process, cross-examination, and to present a
meaningful defense. Analogizing this case to Franklin, he claims that if Doe
Two’s statements about her mother engaging in sexual conduct with other
men in their house were false, then this would have been highly relevant to
12
Doe Two’s credibility insofar as “defense counsel could have argued that if
Doe Two was capable of making a false accusation of sexual misconduct
against her own mother, surely she would be equally or more capable and
willing to make . . . [a] false allegation of sexual misconduct against
[defendant].” Alternatively, defendant claims Doe Two’s statements should
have been admitted because if they were true, then they would be relevant
“to show that the complaining witness had a source of experience, knowledge,
and information as to the sexual activity independent of the accusation
against the defendant.”
Initially, we note the People contend defendant forfeited his present
constitutional arguments by failing to specifically raise them below with
regard to the proffered testimony of any of the three witnesses. (People v.
Blacksher (2011) 52 Cal.4th 769, 821 [“defendant’s contention that, despite
the rules of evidence, the federal constitutional right to present a defense
prevails over state evidentiary rules to invalidate the court’s rulings” was
forfeited because it was not raised below]; People v. Daniels (2009) 176
Cal.App.4th 304, 320, fn. 10.) As for the court’s admission of defendant’s
daughter’s testimony for the limited purpose of considering how Doe Two’s
statements affected the witness’s perception of Doe Two, the court imposed
that limitation at defense counsel’s request. Nevertheless, even if defendant
had not forfeited the constitutional claims, we would find no error.
“ ‘ “As a general matter, the ordinary rules of evidence do not
impermissibly infringe on the accused’s right to present a defense” ’ ” and
“ ‘[c]ourts retain . . . a traditional and intrinsic power to exercise discretion to
control the admission of evidence in the interests of orderly procedure and
the avoidance of prejudice.’ ” (People v. Ghobrial (2018) 5 Cal.5th 250, 283.)
Although federal constitutional principles are violated when the application
13
of state evidentiary rules prevent a defendant “from making an effective
challenge to the prosecution’s case or from presenting crucial exculpatory
evidence” (People v. Espinoza (1992) 3 Cal.4th 806, 818), the “[a]pplication of
ordinary rules of evidence to exclude ‘ “defense evidence on a minor or
subsidiary point does not impair an accused’s due process right to present a
defense.” ’ ” (People v. Anderson (2012) 208 Cal.App.4th 851, 880.) “For a
defendant’s constitutional rights to override the application of ordinary rules
of evidence, ‘ “the proffered evidence must have more than ‘slight-relevancy’
to the issues presented. . . . The proffered evidence must be of some
competent, substantial and significant value.” ’ ” (Ibid.)
In Franklin, supra, 122 F.3d 1270, a child accused the defendant of
sexual abuse, reporting in part that he licked her “ ‘private.’ ” (Id. at p. 1271.)
In his defense, the defendant tried to introduce his own testimony that the
victim, in his presence, told her brothers that her mother “ ‘licked her
private.’ ” (Id. at p. 1272.) In discussing the victim’s statement concerning
her mother, the state Court of Appeal had stated that the victim “falsely
accused” her mother and noted “[t]he statement was presented as a product
of [the victim’s] imagination.” (People v. Franklin (1994) 25 Cal.App.4th 328,
335, fn. 4.) While concluding the trial court erroneously excluded the
evidence because it was relevant to the victim’s credibility, the state Court of
Appeal nevertheless concluded the error harmless because ample other
impeachment evidence was introduced. (Id. at pp. 335–337.) The United
States Court of Appeals for the Ninth Circuit disagreed and granted the
defendant relief on habeas. Specifically, the Ninth Circuit determined the
error at issue was of constitutional magnitude because the excluded
testimony “bore on the credibility of the only percipient witness” against the
defendant, and if believed, would have shown the victim was capable of
14
fantasies about her mother analogous to the accusations she made against
the defendant. (Franklin, 122 F.3d at p. 1273.) In reversing the defendant’s
conviction, the Ninth Circuit explained the error could have been harmful,
insofar as the case hinged on the jury believing the victim, and the excluded
evidence “might have tipped the verdict to acquittal.” (Ibid.)
Defendant fails to show a constitutional error here as in Franklin.
First of all, Franklin involved an alleged sexual molestation victim who had
made a false accusation of sexual molestation against her mother. (Franklin,
supra, 122 F.3d at p. 1272.) As Franklin explained, the victim’s false
accusation against her mother showed that the victim was “capable of
fantasies about her mother analogous to the charges she made against
Franklin.” (Id. at p. 1273.) That stands in sharp contrast with the instant
situation. Here, Doe Two’s supposed statements did not falsely accuse her
mother of sexually molesting anyone, though they indicated her mother
engaged in sexual conduct with other men in their house and did so for
money (according to defendant). While the content of the excluded
statements appeared sexual in a broad sense, they were not analogous to the
sexual abuse accusations leveled against defendant. Thus, even assuming
the falsity or inaccuracy of Doe Two’s statements, they fall far short of
showing that Doe Two was capable of “analogous” fantasies about being
molested by defendant.
More fundamentally, there was no dispute in Franklin that the victim’s
statement about her mother licking her private was false and the product of
her imagination. (See People v. Franklin, supra, 25 Cal.App.4th at p. 335,
fn. 4.) The Franklin court could thus conclude that the victim’s statement
concerning her mother bore on the victim’s credibility. (Id. at p. 335.) Here,
the same cannot be said of Doe Two’s alleged statements. Notably, defense
15
counsel below never attempted to ask Doe Two or her mother about sexual
affairs in their own house and even indicated her belief that the matter was
“ultimately not relevant.” Moreover, there is no evidence in the record
bearing on the truth or falsity of Doe Two’s alleged statements. Defendant
seems to acknowledge no such evidence exists, as he merely posits alternative
hypothetical arguments about how the statements might be relevant if false
or if true.
Ultimately, the defense never established that Doe Two’s alleged
statements about her mother were false, and therefore never established the
impeachment value of the statements.6 (Evid. Code, § 350 [“No evidence is
admissible except relevant evidence.”]; id., § 210 [“ ‘Relevant evidence’ means
evidence, including evidence relevant to the credibility of a witness or
hearsay declarant, having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.”]; cf.
People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457–1458 [a prior false
accusation of sexual molestation is admissible to challenge a victim’s
credibility, but only if it is first established that the prior accusation was
false].) In sum, defendant fails to show the trial court’s exclusion of evidence
having only questionable impeachment value amounted to a constitutional
error comparable to the error found in Franklin.
Defendant alternatively contends that Doe Two’s statements, if true,
would have been relevant “to show that the complaining witness had a source
6 Defendant argues defense counsel in this case, as in Franklin, treated
Doe Two’s proffered statements as the product of the victim’s imagination.
This claim is unsupported by any record citations, and our review of the
record reveals defense counsel took no definitive position on the veracity of
Doe Two’s statements, arguing instead for their admission regardless of
whether they were true or false.
16
of experience, knowledge, and information as to the sexual activity
independent of the accusation against the defendant.” But this contention
suffers from a similar problem as discussed above: without evidence that Doe
Two’s statements were actually true, defendant cannot show the statements
had evidentiary value in terms of proving that Doe Two acquired sexual
knowledge at home. Moreover, even if true, the excluded statements were of
questionable relevance because they were in no way analogous to the sexual
abuse accusations leveled against defendant. Defendant cites no authority
holding that constitutional error may properly rest on the exclusion of
evidence that is speculative or of marginal relevance.7 (People v. Anderson,
supra, 208 Cal.App.4th at pp. 880–881.)
Accordingly, we reject defendant’s claim that the limitation or exclusion
of testimony concerning Doe Two’s alleged statements about her mother
denied him his constitutional rights.
B. Ineffective Assistance of Counsel
Defendant argues his trial counsel rendered ineffective assistance
during closing argument. Specifically, he contends defense counsel
incompetently failed to argue to the jury that the defense expert’s testimony
established that Doe One was “too young and physiologically incapable of
forming long-term memories” at the time that defendant’s wife babysat her.
(Capitalization omitted.)
7 Having discerned that the record contains no evidence concerning the
truth of Doe Two’s statements, we need not address defendant’s additional
argument that the evidence would have been admissible under Evidence
Code section 1250 “to explain how Jane Doe Two would have been able to
make a complaint of improper sexual activity against defendant.” But we
take a moment to note that Evidence Code section 1250, subdivision (b),
states: “This section does not make admissible evidence of a statement of
memory or belief to prove the fact remembered or believed.”
17
1. Additional Background
The People charged defendant with sex crimes against Doe One
occurring on or between April 19, 2008 and April 18 and 19, 2011. Doe One
testified that she was born in 2006,8 and that defendant’s wife babysat her for
about half a year when she was around two years old. Other witnesses gave
testimony essentially confirming that defendant’s wife babysat Doe One for a
few months when she was two years old or, at most, three and a half years
old.
Dr. Reisberg, the defense expert in psychology and the psychology of
memory, testified at trial concerning the accuracy of childhood memories. In
his words: “Basically, from birth until age two, or two and a half, the vast
majority of people have essentially no verbally reportable memories at all.
They do have memories. They do have reflexes, are able to learn. But if
you’re focusing on the kinds of memory somebody could, you know, sit in this
chair and testify about, report a memory, for the vast majority of children it’s
just nothing prior to age two and a half or sometimes three. [¶] Once you get
past that stage, . . . for children roughly from age three until maybe six or
seven, maybe eight at the outside, you can get accurate reports. But it is
extremely careful [sic], important to question the child in exactly the right
way. It’s because children of that age are massively suggestible. It’s not
because their memories are flawed. It’s because children of that age are just
doing a fabulous job of absorbing all sorts of information. Often they get
confused about where they got their information . . . . That kind of confusion
is confusion that can happen for anybody of any age. [¶] But it’s a much
greater problem for children basically in the preschool years. Once you get
8 The dates of the offenses charged put Doe One between the ages of two
and five.
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past age seven or eight or so, overall, the pattern of memory functioning
starts to look pretty much like you’d expect in an adult . . . .” Dr. Reisberg
went on to discuss memory for adolescents, as children experience puberty,
and indicated the memories of 16 and 17 years olds are the “same until
memory starts to fade later in life.”
During closing argument, the defense attacked Doe One’s testimony
regarding defendant’s abuse of her. Among other things, the defense
contended that Doe One’s age and the amount of detail she could recall made
her testimony implausible and “suspicious” and unbelievable.
2. Discussion
Defendant contends his trial counsel rendered ineffective assistance
during closing argument by failing to argue that “undisputed expert
testimony established that Jane Doe One was too young and physiologically
incapable of forming long-term memories” at the time of the alleged crimes.
(Capitalization omitted.) In defendant’s view, Dr. Reisberg’s testimony
“provided an objective reason for the jury to conclude that [Doe One’s]
testimony . . . was biologically and physiologically impossible,” and trial
counsel performed deficiently by failing to contend during closing argument
that Doe One was unable to form memories at the time of the alleged crimes.
To demonstrate ineffective assistance, a defendant must show both that
counsel’s performance fell below an objective standard of reasonableness
under prevailing professional norms, and that the deficient performance was
prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687.) “A
defendant who raises the issue on appeal must establish deficient
performance based upon the four corners of the record. ‘If the record on
appeal fails to show why counsel acted or failed to act in the instance
asserted to be ineffective, unless counsel was asked for an explanation and
19
failed to provide one, or unless there simply could be no satisfactory
explanation, the claim must be rejected on appeal.’ ” (People v. Cunningham
(2001) 25 Cal.4th 926, 1003.) “These standards apply with particular force at
closing argument because, . . . ‘[t]he decision of how to argue to the jury after
the presentation of evidence is inherently tactical . . . .’ ” (People v. Gamache
(2010) 48 Cal.4th 347, 391.) “Reversals for ineffective assistance of counsel
during closing argument rarely occur; when they do, it is due to an argument
against the client which concedes guilt, withdraws a crucial defense, or relies
on an illegal defense.” (People v. Moore (1988) 201 Cal.App.3d 51, 57.)
In this case, defendant fails to establish deficient performance on his
counsel’s part. During closing argument, defense counsel presented a
detailed attack on the prosecution’s case, which included challenging Doe
One’s credibility given her age at the time of the alleged molestation.
Defense counsel also told the jurors to use their “common sense about how
life works” and argued that Doe One testified with “tons of detail” that made
her memories “suspicious and strange.” But, defense counsel did not
specifically argue—as defendant now complains—that per Dr. Reisberg’s
testimony, Doe One was “biologically and physiologically incapable” of
remembering what occurred while defendant’s wife babysat her.
The record on appeal fails to disclose what reasons, if any, counsel had
for failing to make the foregoing argument. But we can readily perceive a
possible satisfactory explanation for the omission. Namely, Dr. Reisberg did
not state categorically that all children from birth up to an exact age are
biologically and physiologically incapable of forming long-term memories.
Rather, Dr. Reisberg testified that “the vast majority” of people from birth to
the age of two or two and a half, or “sometimes three,” have no verbally
reportable memories, but once past that stage, “roughly from age three until
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maybe six or seven, maybe eight at the outside, you can get accurate reports.”
Thus, Dr. Reisberg’s testimony would not have supported an airtight
assertion that Doe One lacked the capacity to remember what happened to
her.
Acknowledging that Dr. Reisberg’s statement was not categorical,
defendant’s reply brief contends that defense counsel unreasonably failed to
argue that “it was highly unlikely that Jane Doe One had an actual memory
of any molestation because the ‘vast majority’ of children her age lack the
physiological and psychological capacity to do so.” (Italics added.) But,
again, we can readily perceive a reasonable explanation for why counsel did
not make that argument: such an assertion would have been met with
obvious rebuttal argument that (1) Dr. Reisberg’s testimony did not purport
to conclusively establish that children of a certain age cannot form long term
memories; (2) Dr. Reisberg had not examined Doe One, and there was no
evidence specifically indicating any inability on Doe One’s part to form
memory at an early age; (3) there was evidence that Doe One was three years
old or older when defendant’s wife was caring for her; and (4) Dr. Reisberg
otherwise acknowledged that, overall, the evidence is clear that correct
memories far outnumber incorrect ones and that in the majority of cases,
memories are accurate.
Defendant fails to address all the evidence of Doe One’s age, which
undercuts the factual premise of his ineffective assistance contention, i.e.,
that Doe One was only two years old when defendant’s wife babysat her. As
the record reflects, Doe One’s mother—the parent responsible for arranging
Doe One’s childcare and enrolling her in school—testified that Doe One was
three years old while defendant’s wife babysat for her and around three and a
21
half years old when defendant’s wife stopped providing child care.9
Specifically, Doe One’s mother testified that defendant’s wife babysat Doe
One for “about six months” or “[f]rom two, to three, to six months” “but no
more.” When asked to clarify whether she stopped taking Doe One to
defendant’s wife for babysitting before Doe One started at Head Start, Doe
One’s mother responded: “No. She was already going to Head Start. She
started to go to Head Start at the age of three.” Doe One’s mother was then
asked: “So she was going to Head Start when you switched her from
[defendant’s wife] to another private babysitter in addition to Head Start?”
Doe One’s mother responded, “Yes.” In response to a subsequent question,
Doe One’s mother answered that Doe One was “[a]round” three and a half at
the time when Doe One said she did not want to go to defendant’s wife for
babysitting anymore.
This evidence put Doe One outside the age period that Dr. Reisberg
suggested was the norm for when children have no “verbally reportable”
memories. Combined with Dr. Reisberg’s testimony that correct memories
far outnumber incorrect ones and that memories are accurate in the majority
of cases, the prosecutor could have made a damaging rebuttal argument that,
according to Dr. Reisberg’s testimony, Doe One likely did have the capacity to
9 Defendant’s opening brief asserts that the prosecutor argued to the jury
that Doe One was two years old when she was being cared for by defendant’s
wife. In support, defendant points to the prosecutor’s closing argument
stating: “I think it came out pretty clearly in the testimony that [Doe One]
was really between two and three in terms of having been there, mostly
before Head Start.”
To the extent defendant is suggesting this was a concession by the
prosecutor that Doe One was not beyond two years old when being babysat by
defendant’s wife, we disagree. In making the quoted argument, the
prosecutor clearly was addressing the element of the charged offenses that
the victims be under 10 or 14 years of age.
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remember defendant’s molestation of her and that her memory likely was
accurate.
In sum, we reject the appellate claim of ineffective assistance.
C. Response to Jury Questions
Defendant contends he was deprived of due process and a fair trial
because of the court’s erroneous and confusing response to a jury question.
1. Additional Background
During deliberations, which spanned about six days, the jury submitted
numerous questions and requests to the court. As relevant here, on the
second day of deliberations, Juror No. 6252 submitted the following question:
“It has repeatedly come up that something must not have happened because
they didn’t present evidence to say it didn’t happen. A juror referred to this
as ‘negative evidence’. [¶] Example—there was no testimony that
[defendant’s wife] was in trouble for any of this and if this is true she should
be therefore . . . [¶] Are we supposed to be . . . considering what evidence that
was not presented? Or Lack of evidence?”
The trial court discussed the question with counsel.
“[Prosecutor]: . . . I think that we should respond to them that they are
not to be considering evidence that was not presented. Sort of their last part
was ‘are we supposed to be considering what else was not presented?’
“THE COURT: I think maybe the start of the response should be
[defendant’s wife] is not a defendant or an accused person relative to this case
and that they’re not to speculate about anything that was not introduced as
evidence at trial.
“[Defense counsel]: I think if there is something that hasn’t been
proven, they can’t treat that as having been proven.
23
“THE COURT: Let me read to you my attempt at responding so this
. . . . ‘[Defendant’s wife] is not a defendant or person accused in this case.
The defendant is not required to prove he’s innocent. He’s innocent until
proven guilty. If no evidence was presented to satisfy one or more of the
required elements of the crime, then the defendant is entitled to prevail on
that element and must be found not guilty of that crime. Please refer to jury
instructions 220, 223, 224, 225, 300, 1110, 1127.’
“[Prosecutor]: . . . I think it would be important to include as well that
they are not to speculate on matters that—upon which there was no evidence
presented in this case.
“[Defense counsel]: My concern is that what they’re—at least one
interpretation that is if the defense didn’t prove that something didn’t
happen, in other words, there is no evidence that it happened, how are they
supposed to treat that absence of evidence? And I think if there is no
evidence, you treat it as there is no evidence about that. If that is an
essential piece of establishing guilt, then that’s a lack of evidence. [¶] But,
right? But they shouldn’t speculate and fill in the gaps about one way or the
other, right? It’s just that it hasn’t been proven and you’re the only one
that—I mean, you’re the only one with the burden.
“[Prosecutor]: Right. And I think that the Court’s suggested answer
does incorporate that. Because I think that is one of the few questions that
may be being asked here. And I agree that would be a concern that needs to
be addressed. I do think that, just in my reading of the question, it appears
to me what may be happening, they’re just having a very open discussion and
it’s branching off into areas they would maybe like to know more about, such
as did [defendant’s wife] get in trouble for this, which we don’t have evidence
24
on, et cetera, et cetera. So I would like to see if it does reign [sic] in their
discussion of what was the evidence presented, does that prove the crime?”
The trial court then proposed the following response and the parties
discussed it:
“THE COURT: ‘Are we supposed to be considering what evidence that
was not presented?’ I’ll answer no. You may consider lack of evidence and
maybe leave it at that.
“[Defense counsel]: You may consider lack of evidence and then refer
them to those other instructions maybe.
“THE COURT: Yeah.
“[Prosecutor]: Uh-hum.
“THE COURT: . . . I think that’s probably the clearest way to respond
to this.
“[Defense counsel]: Yes. As opposed to going down the rabbit hole. I
would rather not address the example they give, because it seems like it’s just
an example. . . .”
The trial court then typed up a response, which tracked what was
discussed, and allowed the parties to review it. Aside from a minor edit to
that typed response, that the parties agreed on (removing the word “the”
from a sentence), the parties otherwise indicated their approval. The court’s
typed response ultimately read as follows: “Question . . . : ‘Are we supposed
to be considering what evidence was not presented?’ [¶] Court’s Response:
No. [¶] Question . . . : ‘Or Lack of evidence?’ [¶] Court’s Response: You may
consider lack of evidence in reaching your verdict. [¶] Please refer to jury
instructions 220, 223, 224, 225, 300, 1110 and 1127.”
25
2. Discussion
Defendant contends the trial court erred by failing to request
clarification from the jury because the question was confusing. Defendant
further contends the court’s responses to the question were internally
contradictory and erroneous.
“The court is under a general obligation to ‘clear up any instructional
confusion expressed by the jury,’ but ‘[w]here . . . the original instructions are
themselves full and complete, the court has discretion . . . to determine what
additional explanations are sufficient to satisfy the jury’s request for
information.’ [Citations.] [¶] When the trial court responds to a question
from a deliberating jury with a generally correct and pertinent statement of
the law, a party who believes the court’s response should be modified or
clarified must make a contemporaneous request to that effect; failure to
object to the trial court’s wording or to request clarification results in
forfeiture of the claim on appeal.” (People v. Dykes (2009) 46 Cal.4th 731,
802; see People v. Loza (2012) 207 Cal.App.4th 332, 350.)
We conclude defendant forfeited his claims concerning the court’s
response to the jury’s question. Defense counsel never asked the trial court
to request that the jury clarify its question, and she assented to the court’s
proposed answer. The trial court responded to the jury’s questions with
generally correct statements of the law. First, the court’s response “[n]o” to
the question “ ‘[a]re we supposed to be considering what evidence was not
presented’ ” is generally correct. (See People v. Centeno (2014) 60 Cal.4th
659, 669 [“jury may only decide the issue of guilt based on the evidence
presented at trial”]; People v. Leonard (2007) 40 Cal.4th 1370, 1414 [“jury’s
verdict in a criminal case must be based on the evidence presented at trial,
not on extrinsic matters”].) Indeed, the court’s response was consistent with
26
its instruction under CALCRIM No. 200, which states: “You must decide
what the facts are. It is up to all of you, and you alone, to decide what
happened, based only on the evidence that has been presented to you in this
trial.” (Italics added.)
Second, the court’s response to the jury’s other question—i.e., “[the
jury] may consider lack of evidence in reaching [its] verdict”—was also
correct. “Reasonable doubt may arise from the evidence presented at trial or
the ‘ “ ‘lack of evidence.’ ” ’ ” (People v. Westbrooks (2007) 151 Cal.App.4th
1500, 1508; see Johnson v. Louisiana (1972) 406 U.S. 356, 360 [reasonable
doubt is one “ ‘ “based on reason which arises from the evidence or lack of
evidence” ’ ”].) The court correctly informed the jury it could consider lack of
evidence, then pointed the jury to the standard instructions about reasonable
doubt, direct and circumstantial evidence, the elements of the charged
offenses, and the principle that not all available evidence must be presented.
(CALCRIM Nos. 220, 223, 224, 225, 300, 1110 and 1127.)
In arguing to the contrary, defendant claims the jurors’ questions about
evidence “not presented” and “lack of evidence” were really just a single
inquiry about whether they could consider the lack of evidence, and so the
court’s two answers conflicted with each other. (Underlining omitted.) This
suggested interpretation is not manifest, especially given the jury’s preface to
its questions. Indeed, neither defense counsel nor the prosecutor perceived
the jury as asking a single question, and both acceded to the trial court’s
responses. And after receiving the court’s responses, the jurors expressed no
confusion and requested no clarification regarding what they were told.
While we acknowledge the jury worded its inquiry in a way that, at least
arguably, was somewhat ambiguous, the court’s responses were nonetheless,
as indicated above, generally correct statements of law requiring objection by
27
trial counsel to avoid forfeiture. (People v. Dykes, supra, 46 Cal.4th at p. 802;
People v. Loza, supra, 207 Cal.App.4th at p. 350.)
Defendant claims the trial court’s answer to the jury’s first question
contradicted its answer to the second, resulting in the jury not being
instructed that it could consider a lack of evidence as contributing to
reasonable doubt. We are not persuaded.
Even if we assume both that the jury’s inquiry was ambiguous and that
its ambiguity rendered the court’s response seemingly inconsistent, we must
still assess “ ‘whether there is a “ ‘reasonable likelihood that the jury has
applied the challenged instruction in a way’ that violates the Constitution.” ’ ”
(People v. Mills (2012) 55 Cal.4th 663, 677.) “ ‘[N]ot every ambiguity,
inconsistency, or deficiency in a jury instruction rises to the level of a due
process violation. The question is “ ‘whether the ailing instruction . . . so
infected the entire trial that the resulting conviction violates due process.’ ”
[Citations.] “ ‘[A] single instruction to a jury may not be judged in artificial
isolation, but must be viewed in the context of the overall charge.’ ” ’ ” (Ibid.)
“The reviewing court also must consider the arguments of counsel in
assessing the probable impact of the instruction on the jury.” (People v.
Young (2005) 34 Cal.4th 1149, 1202.)
Here, there is no reasonable likelihood that the jury applied the
arguably ambiguous answer to the first question in the suggested manner.
“Jurors are presumed to be intelligent people, capable of understanding and
correlating all instructions.” (People v. Ayers (2005) 125 Cal.App.4th 988,
997.)
To begin with, it is highly improbable that the jury received the trial
court’s response and thought that the judge was providing it with directly
contradictory answers to synonymous questions in one breath. Even if it had
28
been attempting to ask a single question, the jury is far more likely to have
understood the court as perceiving their questions as two separate ones that
necessitated two distinct answers.
As for the trial court’s answer “[n]o” to the question worded “ ‘[a]re we
supposed to be considering what evidence was not presented,’ ” that response
was consistent with CALCRIM No. 200, which instructed the jury it must
decide the facts based only on the evidence presented. As for the jury’s
second question, the court responded with the clear statement, “You may
consider lack of evidence in reaching your verdict,” then specifically referred
the jury to other instructions, such as the instructions concerning reasonable
doubt and elements of the crimes. The court also gave CALCRIM No. 103
and CALCRIM No. 220, which effectively instructed that “a lack of evidence
could lead to reasonable doubt.” (People v. Flores (2007) 153 Cal.App.4th
1088, 1093.)
Defense counsel capitalized on the force of these instructions during
closing argument by urging the jurors to entertain a reasonable doubt as to
the charges due to lack of evidence or the state of the evidence. For example,
defense counsel noted that the prosecution did not present Doe One’s medical
records; that Doe One “did not demonstrate the kind of fear that a person
would have if they’re having flashbacks of violent rapes coming in to court” or
when she reported the crimes to her school counselor; that Doe One did not
describe certain things, e.g., defendant’s penis or his erection or the clothes
defendant wore; that Doe One’s mother never saw signs or “physical
examples” of abuse and had no concerns; that no child pornography was
found on a laptop found in defendant’s home; and that no evidence of
grooming (of a predatory nature) was presented. In response, the prosecution
did not argue to the jurors that they could not consider such lack of evidence;
29
rather, the prosecution simply disputed whether some of the evidence to
which the defense alluded was truly lacking, or whether the claimed absence
of certain evidence had the significance that the defense claimed.
Finally, the outcome at trial undercuts defendant’s claim of juror
confusion and/or misdirection. After receiving the court’s instructions and
hearing all the defense reasons why guilt had not been proven beyond a
reasonable doubt, the jury ended up not finding defendant guilty of any of the
four counts of sexual intercourse involving Doe One in violation of section
288.7, subdivision (a). This outcome indicates that the jury understood the
given instructions, particularly the reasonable doubt standard, and applied
that standard carefully. (Cf. People v. Ellison (2011) 196 Cal.App.4th 1342,
1353 [“the jury acquitted defendant of the three most serious charges,
demonstrating that it understood the applicable burden of proof as it was
instructed, and applied it to defendant’s advantage as to the acquitted
counts”].)
In sum, we reject defendant’s instruction-based challenges.
D. Cumulative Effect of Errors
Defendant argues the cumulative effect of the claimed errors requires
reversal. Because defendant has failed to demonstrate error on his properly
preserved appellate contentions, we reject the claim.
DISPOSITION
The judgment is affirmed.
30
_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Tucher, P.J.
_________________________
Petrou, J.
People v. Ibanez (A159525)
31