People v. Cole CA3

Filed 9/2/22 P. v. Cole CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE, C090105
Plaintiff and Respondent, (Super. Ct. No. 62159526)
v.
ROBERT EUGENE COLE,
Defendant and Appellant.
A jury found defendant Robert Eugene Cole guilty of committing numerous sex
offenses against three male relatives, including sodomy with a child 10 years of age or
younger by a person 18 years of age or older (Pen. Code, § 288.7, subd. (a)),1 oral
copulation with a child 10 years of age or younger (§ 288.7, subd. (b)), two counts of a
lewd and lascivious act upon a child under the age of 14 years (§ 288, subd. (a)), forcible
1 Undesignated statutory references are to the Penal Code.
1
oral copulation (former § 288a, subd. (c)(2)(A) [now § 287, subd. (c)(2)(A)]), oral
copulation of an unconscious person (former § 288a, subd. (f) [now § 287, subd. (f)]),
oral copulation of a person under 16 years of age by a person over 21 years of age
(former § 288a, subd. (b)(2) [now § 287, subd. (b)(2)]), attempted sodomy of a person
under 16 years of age by a person over 21 years of age (§§ 664, 286, subd. (b)(2)), and
attempted oral copulation of a person under 16 years of age by a person over 21 years of
age (§ 664; former § 288a, subd. (b)(2) [now § 287, subd. (b)(2)]).2 The jury also found
true the multiple victim enhancement allegations under the one strike law. (§ 667.61,
subds. (b), (e)(4).) The trial court sentenced defendant to an aggregate term of 93 years
eight months to life in prison.
Defendant timely appealed on July 31, 2019; after multiple extensions of time for
record preparation, correction, and augmentation as well as extensions for the parties’
oversized briefing, the case was fully briefed on February 25, 2022, and assigned to this
panel on March 30, 2022.
Defendant argues that reversal is required for many reasons, including insufficient
evidence, evidentiary error, prosecutorial misconduct, instructional error, ineffective
assistance of counsel, and sentencing error. We will modify the judgment to correct a
minor sentencing error and affirm the judgment as modified.
BACKGROUND
We do not attempt to recite all the evidence adduced at trial. Nor do we attempt
to resolve the inconsistencies and conflicts in the evidence. Instead, we summarize the
relevant facts in the light most favorable to the judgment (People v. Maury (2003)
2 Effective January 1, 2019, section 288a was amended and renumbered section 287 by
Senate Bill No. 1494 (Reg. Sess. 2017-2018). (Stats. 2018, ch. 423, § 49.) The former
section 288a offenses at issue in this case now appear at section 287 without material
substantive change. (See § 287, Stats. 2013, ch. 282, § 1.)
2
30 Cal.4th 342, 396, 403 [it is the jury’s role to resolve the inconsistencies and conflicts
in the evidence]) and add facts throughout the Discussion section where necessary to
resolve the issues raised on appeal. For purposes of clarity and consistency we refer, as
the parties did in the trial court and in their appellate briefs, to the alleged victims in this
case as John Doe 1, John Doe 2, and John Doe 3 (hereafter, JD1, JD2, and JD3,
collectively John Does).
The John Does are related to defendant, who was in his late 30s and early 40s
when the incidents giving rise to this case occurred. JD1 and JD2 are defendant’s first
cousins once removed; they are the sons of defendant’s cousin.3 JD3 is defendant’s
nephew; he is the son of defendant’s identical twin brother, J.C. As we describe post, the
molestations in this case occurred over the course of several years when the John Does
were between the ages of nine and 15. The molestations occurred at three different
homes where defendant resided; the homes were located in Auburn, Grass Valley, and
Lincoln.
Defendant did not testify at trial. The defense theory was that the John Does
fabricated their claims of molestation. Because there was no evidence presented at trial
to corroborate the alleged molestation, the outcome of this case hinged on whether the
jury believed the John Does, each of whom testified at trial. Next, we briefly summarize
the evidence supporting defendant’s convictions.4
3 JD1 and JD2 are half-brothers; they share the same father. JD2 is about five-and-a-half
years older than JD1. At the time of trial, there were six boys in their family.
4 We recognize that there was evidence adduced at trial supporting the conclusion that
the John Does were dishonest. There was also inconsistent and conflicting evidence
presented at trial as to the claims of molestation made by JD1 and JD2, including if,
when, and where certain acts happened. However, because the jury found defendant
guilty as charged and we summarize the evidence in the light most favorable to the
verdicts, we need not and do not summarize that evidence.
3
JD1 (Counts One, Two, and Three)
JD1 was born in May 2008. He turned 11 years old two days before he testified at
trial.
Trial Testimony
In 2017, JD1 and his family celebrated Thanksgiving at defendant’s home in
Lincoln. At that time, JD1’s relationship with defendant was “unique” and “special.”
Defendant referred to JD1 as his favorite, gave JD1 special attention, treated JD1 as a
best friend, and made JD1 feel special and loved. JD1 was nine years old.
JD1 and JD2 stayed at defendant’s house from the Wednesday night before
Thanksgiving to that Sunday, November 22, 2017 to November 26, 2017. We refer to
this time period as the 2017 Thanksgiving holiday. The other members of JD1 and JD2’s
family went home on the Friday after Thanksgiving.
Except for Saturday night, JD1 slept with defendant in his downstairs bedroom
during the 2017 Thanksgiving holiday. At trial, JD1 explained that defendant touched
him between his legs in the “wrong parts” (i.e., his “wiener”) while they were in bed at
night. JD1 noted that defendant’s mouth touched his “wiener” more than once while they
were in defendant’s bed at night, and that it felt “[d]isturbing.” When JD1 told defendant
to stop, he refused, which made JD1 feel nervous. JD1 also testified that defendant
sodomized him “[u]pstairs,” although he did not specify whether the sodomy occurred
during the 2017 Thanksgiving holiday.
On April 11, 2018, JD1 met with a Child Protective Services (CPS) social worker,
Gilka Marian, who was conducting an investigation unrelated to defendant. During that
interview, JD1 disclosed that defendant had orally copulated him. JD1 explained that this
incident occurred at defendant’s home in Lincoln over the 2017 Thanksgiving holiday.
JD1 said to Marian: “You know when you suck on a sucker? [Defendant] did that to me
where I go pee-pee.” He explained that he did not immediately report this incident
because defendant told him to keep it a secret.
4
Later that same day, JD1’s mother learned that defendant had done something
inappropriate to JD1. JD1 explained to her that defendant told him not to tell anyone.
When JD1’s mother testified, she recalled an incident that occurred around New
Year’s 2018 where defendant slapped JD1 in the face and spanked him with a belt. She
explained that defendant believed JD1 had broken a record player and lied about doing
so. JD1’s mother noted that defendant’s actions made JD1 upset, hurt, and confused.
There was also evidence that defendant spanked JD1 with a belt on another occasion after
JD1 lied about taking gum that was not his.
JD1’s Forensic Interview
On April 19, 2018, JD1 participated in a forensic interview, which was recorded
(video and audio) and played for the jury. JD1 was nine years old.
Over the course of the interview, JD1 described several instances of molestation
that occurred at defendant’s home in Lincoln during the 2017 Thanksgiving holiday. JD1
initially indicated that defendant orally copulated and sodomized him while he was in bed
in defendant’s downstairs bedroom. As for the oral copulation, JD1 explained that
defendant rolled him over, pulled his pants down, and sucked his “pee-pee.” JD1 further
explained that when he tried to turn away, defendant rolled him over, and continued to
suck his “pee-pee.” Defendant also orally copulated him the next morning.
As for the sodomy, JD1 specifically recalled an incident that occurred in the
morning during the 2017 Thanksgiving holiday. JD1 explained that he decided to sleep
in an upstairs bedroom with JD2 after defendant molested him downstairs, and that
defendant put his “pee-pee” in JD1’s butt while JD1 was asleep the next morning. In
recalling this incident, JD1 described how defendant’s body was moving back and forth.
He also noted that he felt “[s]haky, weird” and told defendant to stop. JD1 explained
that, after he put his clothes “back up,” defendant became angry and asked JD1 why JD1
would not let him “do it.” Because defendant was mad, JD1 let him do “it again.” JD1
explained that he complied because defendant would spank him with a belt and he did not
5
want to get “beat.” When asked for more details about this incident, JD1 said that he did
not want to “keep on explaining the same thing,” but noted that JD2 could describe the
incident because he was in the bedroom when it occurred.
JD1 explained that he disclosed defendant’s molestation to his mother because
defendant was being rude to JD2; defendant was hitting JD2 in the face and slapping
JD2’s “butt” with a belt.
JD2’s Testimony About JD1 and Defendant
When JD2 testified, he recalled an incident that occurred in Lincoln after
Thanksgiving day. JD2 explained that he was cooking lunch when he heard JD1 call out
for help, and that when he went into defendant’s downstairs bedroom, he saw that
defendant and JD1 were both naked, JD1 was crying, and defendant was “sucking
[JD1’s] dick.” JD2 further explained that he left to check on the food he was cooking and
when he returned defendant and JD1 were under a blanket and defendant’s body was
going back and forth on JD1. When JD2 moved the blanket, he saw defendant’s penis in
JD1’s “butt.” JD2 also indicated that he saw JD1 “sucking [defendant’s] dick” during
this incident.
JD2 took JD1 outside so he could calm down and stop crying and yelling. While
they were outside, JD1 said that he was “very uncomfortable with what he did,” and that
he was hurting “bad” because “it went in too deep.”
JD2 (Counts Four through Eight)
JD2 was born in October 2002. He was 16 years old at the time of trial.
Trial Testimony
In June 2017, approximately six months prior to the incidents of molestation
involving JD1, JD2’s parents sent him to live with defendant in Lincoln. At that time,
JD2 was not doing well in school and there were problems at home. Although JD2
enjoyed living with defendant, he did not like that defendant yelled “a lot in [his] face”
6
and spanked him with a belt. JD2 explained that he was afraid of being hit with the belt
because it hurt.
At some point between Thanksgiving and Christmas 2017, defendant’s family and
JD2 moved to Grass Valley. JD2 was 15 years old.
JD2 moved back to his parents’ home on April 12, 2018, the day after JD1
disclosed defendant’s molestation. That same day, JD2 disclosed defendant’s
molestation to his father, step-mother, and some of his siblings. When asked, JD2 said
that he was “kicked out” of defendant’s house because he stole from defendant, although
he also indicated that he moved back home due to JD1’s disclosure of defendant’s
molestation.
The next day, April 13, 2018, JD2 met with the CPS social worker (Marian).
During that meeting, JD2 was uncomfortable and “very upset.” He reported that
defendant had touched both him and JD1 in a sexual way about five or six times. He said
defendant had repeatedly touched his penis as recently as about a month earlier.
At trial, JD2 described various incidents of molestation that occurred at
defendant’s home in Grass Valley, which largely took place at night after JD2 fell asleep.
JD2 explained that defendant orally copulated him multiple times. In one of those
incidents, defendant came into JD2’s bedroom at night while he was asleep, pulled his
pants down, and orally copulated him until he woke up and told defendant to “get out.”
JD2 also explained that he was forced to orally copulate defendant on one or two
occasions. In one of those incidents, defendant came into JD2’s bedroom at night and
threatened to “beat” him with a belt if he refused to comply.
During his testimony, JD2 recalled several other instances of molestation,
including an incident where defendant pulled his pants down while he was asleep and
sodomized him, an incident where defendant ejaculated on his face while he was asleep,
an incident where he woke up and defendant was in his bed touching his leg, and an
7
incident where defendant attempted to orally copulate him. JD2 also noted that defendant
attempted to “rape” him more than once.
JD1’s Forensic Interview
During his forensic interview, JD1 described an uncharged incident of molestation
involving JD2 that occurred at defendant’s home in Lincoln over the 2017 Thanksgiving
holiday. JD1 explained that he was sleeping in the same bedroom as JD2 and woke up to
“[n]oises” in the morning and defendant “doing it” to JD2. JD1 saw defendant orally
copulate and sodomize JD2; defendant put his penis “[r]ight in the hole.” Thereafter, JD2
told JD1 that defendant had orally copulated and sodomized him.
JD3 (Count Nine)
JD3 was born in June 2001. He was 17 years old at the time of trial. JD3 is the
son of defendant’s identical twin brother, J.C.
In early November 2014, JD3’s family was evicted from their home in Roseville,
approximately seven months before JD3 completed the seventh grade and turned 14 years
old in June 2015. At some point when JD3 was in the seventh grade, his family moved
into defendant’s home in Auburn. One night when JD3 was 13 or 14 years old, he woke
up hot and discovered that defendant was in his bed, spooning him and touching his penis
“like he was trying to grab it.” JD3 immediately got out of bed and went to the
bathroom. When asked, JD3 recalled that there was a fire burning in the wood fireplace,
which made his bedroom really warm.
JD3 told three friends about this incident but did not report it to his parents
because he did not think they would believe him. JD3 explained that his mother and
father thought everything he said was a lie, and that he did not trust anyone in his family
because they had never showed “support or care.” Below, we set forth JD3’s testimony
explaining why he had a bad relationship with his family, particularly his parents.
In May 2018, after defendant had been arrested on charges related to JD1 and JD2,
JD3 disclosed defendant’s molestation to medical personnel while he was hospitalized
8
due to stomach pain.5 At that time, JD3 was a sophomore in high school. When asked,
JD3 explained that his friends encouraged him to disclose the molestation because CPS
“need[ed] to know everything.” JD3 also said that “It had to come out.” On cross-
examination, JD3 acknowledged that he had used drugs (“Molly” and “coke”) before he
was hospitalized, and that he smoked marijuana.
As we discuss in more detail post, JD3’s disclosure of defendant’s molestation
occurred several months after defendant and one of his sons, R., posted flyers at JD3’s
school and the schools attended by his siblings. The flyers accused JD3 of molesting his
own sister and claimed that JD3’s mother was “unfit.”
DISCUSSION
I
Sufficiency of the Evidence
Defendant makes several insufficiency of the evidence claims, which we address
in turn next. As we shall explain, we find no merit in these claims.
A. Standard of Review
In a challenge to the sufficiency of the evidence supporting a conviction, “ ‘we
review the whole record to determine whether any rational trier of fact could have found
the essential elements of the crime . . . beyond a reasonable doubt. [Citation.] The record
must disclose substantial evidence to support the verdict—i.e., evidence that is
reasonable, credible, and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review
the evidence in the light most favorable to the prosecution and presume in support of the
5 In an interview that occurred the next day, JD3 claimed that defendant had molested
him when he was in the sixth grade. However, as we discuss post, the evidence adduced
at trial showed that this incident of molestation occurred when JD3 was in seventh grade
or shortly after he completed seventh grade.
9
judgment the existence of every fact the jury could reasonably have deduced from the
evidence.’ ” (People v. Manibusan (2013) 58 Cal.4th 40, 87.) “ ‘We do not reweigh
evidence or reevaluate a witness’s credibility.’ [Citations.] ‘Resolution of conflicts and
inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]
Moreover, unless the testimony is physically impossible or inherently improbable,
testimony of a single witness is sufficient to support a conviction.’ ” (People v. Brown
(2014) 59 Cal.4th 86, 106 (Brown).)
“ ‘Substantial evidence includes circumstantial evidence and any reasonable
inferences drawn from that evidence.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 57.) We
must accept all logical inferences that the jury may have drawn from circumstantial
evidence. (People v. Maury, supra, 30 Cal.4th at p. 396.) If the circumstances
reasonably justify the findings made by the trier of fact, reversal of the judgment is not
warranted simply because the circumstances might also reasonably be reconciled with a
contrary finding. (People v. Zamudio (2008) 43 Cal.4th 327, 358.)
“The focus of the substantial evidence test is on the whole record of evidence
presented to the trier of fact, rather than on ‘ “isolated bits of evidence.” ’ ” (People v.
Cuevas (1995) 12 Cal.4th 252, 261.) It is well-settled that “ ‘[a] reversal for insufficient
evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support’ ” the jury’s verdict.’ ” (People v. Penunuri
(2018) 5 Cal.5th 126, 142.)
The substantial evidence test applies when an appellate court is reviewing the
sufficiency of the evidence to support a conviction in the context of a motion for acquittal
pursuant to section 1118.1. (People v. Stevens (2007) 41 Cal.4th 182, 200.) “ ‘The
purpose of a motion under section 1118.1 is to weed out as soon as possible those few
instances in which the prosecution fails to make even a prima facie case.’ [Citations.]
The question ‘is simply whether the prosecution has presented sufficient evidence to
present the matter to the jury for its determination.’ [Citation.] The sufficiency of the
10
evidence is tested at the point the motion is made. [Citations.] The question is one of
law, subject to independent review.” (Ibid.)
B. Count Nine--Lewd and Lascivious Act Upon JD3
Defendant contends there was insufficient evidence to support his conviction on
count nine, which charged him with committing a lewd and lascivious act upon JD3
when JD3 was under the age of 14 years (§ 288, subd. (a)), and that the trial court erred in
denying his motion for acquittal on this ground after the close of the prosecution’s case-
in-chief. The trial court also denied defendant’s motion for new trial on this ground.
Defendant argues that reversal is required because there is no substantial evidence
establishing that JD3 was under the age of 14 at the time of the offense, both at the close
of the prosecution’s case-in-chief and at the close of the entire case.
JD3, a prosecution witness, testified that he was born on June 7, 2001. Thus, the
question for us is whether substantial evidence supports the jury’s determination that JD3
was molested by defendant before June 7, 2015. Viewing, as we must, the evidence in
the light most favorable to the judgment, we conclude there was sufficient evidence to
support the jury’s finding that JD3 was under the age of 14 years at the time of the
offense charged in count nine.
Prior to the close of the prosecution’s case-in-chief, the parties stipulated to the
admission of an unlawful detainer judgment, which showed that JD3’s family was
evicted from their home in Roseville on November 3, 2014, approximately seven months
before JD3 turned 14 years old.6 JD3 testified that he was in seventh grade at the time of
the eviction, he was 13 years old during the entirety of his seventh grade year, his family
6 On cross-examination, JD3 explained that his family was evicted from their Roseville
home at “the end of 6th grade year starting 7th grade [year],” and that he did not know if
the eviction occurred in 2014. When he was asked whether it would help refresh his
memory to review an exhibit consisting of eviction records, he said “no.” The parties
subsequently stipulated to the admission of the unlawful detainer judgment.
11
moved into defendant’s home in Auburn when he was in the seventh grade, he was
molested by defendant a month or two later, and there was a fire in the wood fireplace
that night. Although JD3 also testified that he lived with defendant during his seventh
and eighth grade years when he was “[a]bout 13, 14,” that his family moved to
defendant’s home in Auburn during the summer after he completed seventh grade, and
that his family lived in hotels for about a year after they were evicted from their home in
Roseville, there was sufficient evidence from which a reasonable jury could have found
that he was under the age of 14 years at the time of the abuse.
Ultimately, the jury decided that defendant molested JD3 before June 7, 2015, that
is, when JD3 was 13, not 14 years old. That was a reasonable inference based on the
evidence presented, both at the close of the prosecution’s case-in-chief and at the close of
the entire case.7 The fact that JD3 testified in a contradictory manner about the timing of
the molestation does not mean his testimony was insufficient to support a finding on that
point. It merely raised a credibility issue for the jury to resolve. (People v. Young (2005)
34 Cal.4th 1149, 1181; see People v. Crabtree (2009) 169 Cal.App.4th 1293, 1323-1324
[jury was entitled to resolve conflict as to when a lewd act occurred where evidence
suggested the act may have occurred when the victim was 16, not 15 years old]; People v.
Mejia (2007) 155 Cal.App.4th 86, 98-99[jury was entitled to resolve conflict as to
whether two lewd acts occurred in one month when there was evidence suggesting only
one lewd act occurred in that month].) On this record, we cannot conclude that
“ ‘ “ ‘upon no hypothesis whatever is there sufficient substantial evidence to support’ ”
7 During the defense case, additional evidence was presented that supported the jury’s
verdict on count nine. There was evidence that JD3’s family lived at hotels for only a
few months after they were evicted from their home in November 2014, and that JD3’s
family moved into defendant’s home in Auburn while JD3 was in the seventh grade. In
addition, JD3’s mother testified that it was “common” that a fire would be burning all
night in the wood stove during the winter, and that she could not recall any occasion
when the wood stove was used in the summertime.
12
the jury’s verdict.’ ” (People v. Penunuri, supra, 5 Cal.5th at p. 142.) We therefore
reject defendant’s contention that reversal is required on count nine due to insufficient
evidence.
Mejia, on which defendant relies, is distinguishable. In Mejia, the court held that
there was insufficient evidence to support a conviction for continuous sexual abuse of a
child under the age of 14 years, which required the prosecution to prove the defendant
engaged in three or more acts of sexual abuse over a period of not less than three months.
(People v. Mejia, supra, 155 Cal.App.4th at pp. 93-94.) Because the evidence did not
show exactly when the abuse began, there was no inference for the jury to draw to
support a conviction. (Id. at pp. 94-95 [concluding that the only reasonable inference
permitted by the evidence was that the defendant’s abuse began sometime in June and
continued to some date in September, but the jury could only speculate that the first
incident occurred early enough in June to satisfy the 90-day requirement expiring on
September 17, 2004, the day before the alleged victim’s 14th birthday].) Here, by
contrast, there was evidence from which the jury could have reasonably inferred that JD3
was molested before he turned 14 years old, as we have discussed ante.
C. Count Five--Oral Copulation of an Unconscious Person (JD2)
Next, defendant contends there was insufficient evidence to support his conviction
on count five, which charged him with orally copulating an unconscious person (JD2)
(former § 288a, subd. (f) [now § 287, subd. (f)]),8 and that the trial court erred in denying
his motion for acquittal on this ground after the close of the prosecution’s case-in-chief.
Defendant argues that reversal is required because JD2 was conscious and aware of the
8 Section 287, subdivision (f) became effective prior to the commencement of trial.
(Stats. 2018, ch. 423, § 49, eff. Jan. 1, 2019 [renumbering and amending former § 288a,
subd. (f)].) As we noted ante, this provision is substantively similar in all material
respects to the charged offense, former section 288a, subdivision (f). (Stats. 2013, ch.
282, § 1.)
13
oral copulation when it occurred, and therefore no evidence supports the jury’s
determination that he was “unconscious” within the meaning of the statute. We disagree.
As relevant here, section 287, subdivision (f) provides: “Any person who commits
an act of oral copulation, and the victim is at the time unconscious of the nature of the act
and this is known to the person committing the act, shall be punished by imprisonment in
the state prison for a period of three, six, or eight years. As used in this subdivision,
‘unconscious of the nature of the act’ means incapable of resisting because the victim
meets one of the following conditions: [¶] (1) Was unconscious or asleep. [¶] (2) Was
not aware . . . that the act occurred.” It is settled that a victim need not be totally and
physically unconscious in order for the statute to apply. (People v. Lyu (2012)
203 Cal.App.4th 1293, 1299-1300 [interpreting § 289, subd. (d) (sexual penetration of an
unconscious person by a foreign object) and former § 288a, subd. (f)]; see People v.
Howard (1981) 117 Cal.App.3d 53, 55 [interpreting former § 288a, subd. (f) and
rejecting defense argument that “unconsciousness must be total, i.e., a total unawareness
that the physical act is being performed”].)
Viewing the evidence in the light most favorable to the judgment, we conclude
there was sufficient evidence to support the jury’s determination that JD2 was
“unconscious” within the meaning of section 287, subdivision (f), both at the close of the
prosecution’s case-in-chief and at the close of trial. JD2 testified that defendant came
into his bedroom one night while he was asleep and attempted to pull his pants down.
JD2 explained that he “kept turning over” but defendant “kept pulling [him] and stuff like
that,” and that defendant used his fingernails to pull JD2’s pants all the way down. JD2
further explained that he became “uncomfortable” and woke up when defendant “kept
sucking [his] dick.”
Although JD2’s testimony indicates that he had some awareness of defendant’s
conduct in pulling his pants down, he clearly testified that he woke up while defendant
was orally copulating him. “As with other facts, the direct testimony of a single witness
14
is sufficient to support a finding unless the testimony is physically impossible or its
falsity is apparent ‘without resorting to inferences or deductions.’ ” (People v. Cudjo
(1993) 6 Cal.4th 585, 608.) JD2’s testimony was neither physically impossible nor
apparently false.
As the Attorney General points out, “there is no bright line that distinguishes
consciousness from sleep.” (Burdine v. Johnson (S.D. Tex. 1999) 66 F.Supp.2d 854,
865.) Under the facts of this case, the jury could have reasonably inferred that JD2 was
only partially conscious when defendant was pulling his pants down, and that JD2 did not
fully awake until defendant was orally copulating him. By then, a violation of section
287, subdivision (f) had already occurred. In short, we are satisfied that there was
sufficient evidence from which a reasonable jury could have concluded that JD2 was
“unconscious of the nature of the act,” that is, incapable of resisting defendant at the
moment when defendant first began to orally copulate him. (§ 287, subd. (f).)
Substantial evidence thus supports defendant’s conviction on count five.
Defendant’s reliance on Lyu is unavailing, as that case is clearly distinguishable.
In Lyu, the female victim was sexually assaulted during an ordinary massage. (People v.
Lyu, supra, 203 Cal.App.4th at pp. 1295-1296.) She was not unconscious or asleep.
Rather, she was fully awake and “instantly knew, perceived, and was cognizant” that the
defendant had assaulted her. (Id. at p. 1301.)
We decline to consider defendant’s contention that reversal is required because the
prosecution failed to prove he knew JD3 was unconscious of the nature of the act, i.e., the
oral copulation. Defendant did not raise this issue in the trial court or in his opening brief
on appeal. (In re Campbell (2017) 11 Cal.App.5th 742, 756-757 [declining to address
argument raised for the first time on appeal]; People v. Duff (2014) 58 Cal.4th 527, 550,
fn. 9 [refusing to address argument raised for the first time in the reply brief].)
15
D. Convictions Involving JD1 and JD2 (Counts One through Eight)
Finally, defendant contends there was insufficient evidence to support his
conviction on any of the counts involving JD1 and JD2 (i.e., counts one through eight).
Defendant argues that reversal is required because JD1’s and JD2’s trial testimony was so
vacillating, conflicting, inherently improbable, and transparently fabricated that no
rational jury could rely on it as a basis to convict.
It is the exclusive province of the jury to resolve conflicts and inconsistencies in
the testimony, and the testimony of a single witness is sufficient to support a conviction,
unless the testimony is “ ‘physically impossible or inherently improbable.’ ” (Brown,
supra, 59 Cal.4th at p. 106.) “Inherently improbable . . . means that the challenged
evidence is ‘unbelievable per se,’ such that ‘the things testified to would not seem
possible.’ [Citation.] The determination of inherent improbability must be made without
resort to inference or deduction, and thus cannot be established by comparing the
challenged testimony to other evidence in the case.” (People v. Ennis (2010)
190 Cal.App.4th 721, 725, italics omitted (Ennis).) “While an appellate court can
overturn a judgment when it concludes the evidence supporting it was ‘inherently
improbable,’ such a finding is so rare as to be almost nonexistent. ‘ “To warrant the
rejection of the statements given by a witness who has been believed by [the trier of fact],
there must exist either a physical impossibility that they are true, or their falsity must be
apparent without resorting to inferences or deductions.” ’ ” (Id. at p. 728.)
“The inherently improbable standard addresses the basic content of the testimony
itself—i.e., could that have happened?—rather than the apparent credibility of the person
testifying.” (Ennis, supra, 190 Cal.App.4th at p. 729.) “In other words, the challenged
evidence must be improbable ‘ “on its face.” ’ ” (Ibid.) “The only question is: Does it
seem possible that what the witness claimed to have happened actually happened?”
(Ibid.) To reject testimony as inherently improbable, it must be “ ‘so inherently
incredible, so contrary to the teachings of basic human experience, so completely at odds
16
with ordinary common sense, that no reasonable person would believe it beyond a
reasonable doubt.’ ” (People v. Hovarter (2008) 44 Cal.4th 983, 996; see Ennis, at p. 729
[“ ‘Testimony may be rejected only when it is . . . “ ‘unbelievable per se,’ ” physically
impossible or “ ‘wholly unacceptable to reasonable minds’ ” ’ ”].)
Having reviewed the portions of the record relied upon by defendant, we conclude
he has failed to show that the evidence supporting his convictions was physically
impossible or inherently improbable “on its face.” In making this argument, defendant
misapprehends the “inherently improbable” standard; he points out inconsistencies and
conflicts in the evidence and then resorts to inferences and deductions to argue that no
reasonable jury could credit JD1’s and JD2’s claims of molestation beyond a reasonable
doubt. Defendant argues that their “stories” of abuse were “transparent fabrications” and
that their testimony was “ ‘in one part or another, perjurious.’ ” Defendant, in essence,
invites us to reweigh the evidence and disagree with the jury’s credibility determinations.
We cannot and will not do that. (Ennis, supra, 190 Cal.App.4th at p. 725 [inherent
improbability claim based entirely on comparisons, contradictions, and inferences
amounts to nothing more than an attack on witness credibility and cannot provide a basis
for reversal on appeal].) In short, because there was physically possible and plausible
evidence supporting the convictions on the counts involving JD1 and JD2, and the jury
found that evidence credible despite the purported weaknesses to which defendant points
on appeal, we cannot second-guess those determinations. (See People v. Hovarter,
supra, 44 Cal.4th at p. 996 [except in rare instances of demonstrable falsity, doubts about
the credibility of a witness should be left for the jury’s resolution].) Accordingly,
defendant’s inherent improbability claim fails.
Defendant’s reliance on People v. Casillas (1943) 60 Cal.App.2d 785 is
misplaced. In Casillas, the appellate court determined that the evidence relied upon by
the prosecution was so improbable as to be incredible, and therefore reversed the
defendant’s convictions. (Id. at pp. 794-795.) The court found that the alleged victim’s
17
testimony, which included claims that her father had sexual intercourse with her on direct
and redirect examination and recantations of the abuse on cross and recross examination,
“so lacking in substantiality as to truth or credibility that it falls far short of that quantum
of verity, reasonableness and substantiality required by law in criminal cases.” (See id. at
pp. 791-794 [explaining that the alleged victim gave three separate, distinct, and
contradictory versions as to what had happened, including claiming that a boy named
Manuel was responsible for her pregnancy].) Because the circumstances of this case are
not analogous to Casillas, no further discussion of that case is required. We do not
express any opinion as to whether we agree with its reasoning.
II
Alleged Evidentiary Errors
Defendant challenges a number of the trial court’s evidentiary rulings, which we
address in turn below. As we shall explain, we find no reversible error. Because we
reach the merits of defendant’s claims, we need not and do not consider the Attorney
General’s forfeiture arguments.
A. Excluded Cross-Examination of JD1
Defendant contends the trial court prejudicially erred by limiting the cross-
examination of JD1 on the subject of where the offense charged in count one (sodomy)
occurred in violation of his constitutional right to confrontation. He argues that reversal
is required because the trial court denied him the opportunity to test JD1’s credibility,
knowledge, and recollection as to this offense.
1. Additional Background
Defendant was charged in count one with unlawful sexual intercourse or sodomy
with JD1 when JD1 was 10 years of age or younger and defendant was 18 years of age or
older. (§ 288.7, subd. (a).) As pointed out by the prosecutor in her opening statement,
the basis for this count was JD1’s claim in his forensic interview that defendant
sodomized him in Lincoln during the 2017 Thanksgiving holiday.
18
On direct examination, the prosecutor did not ask JD1 whether he had been
sodomized by defendant. On cross-examination, JD1 initially (and repeatedly) denied
that he had been sodomized by defendant and claimed that he had lied when he accused
defendant of sodomy in his forensic interview. When asked, JD1 specifically denied that
defendant, “[o]ver Thanksgiving,” had “put his private part in [JD1’s] rear end when
[JD1 was] upstairs in [JD2’s] bedroom.” Later, however, JD1 said that defendant did
something “inappropriate” to him during the Thanksgiving holiday, that JD2 was in the
room when it happened, and that JD2 was in the room every time it happened. Upon
further questioning and after a portion of JD1’s forensic interview was played for the
jury, JD1 testified that he saw defendant “putting his private part into [JD2’s] rear end”
during the daytime over “Thanksgiving break.” JD1’s testimony in this regard was
consistent with what he said in his forensic interview. Shortly thereafter, the trial court
recessed for the day.
When cross-examination resumed the next day, JD1 testified that he saw
defendant put his “wiener” into JD2’s “butt” over the Thanksgiving holiday in an upstairs
room. Thereafter, JD1 accused defendant of sodomizing him. JD1 explained that
defendant put his “pee-pee” in JD1’s “butt,” and that he reported this incident to a “lady”
at his school. The following exchange then occurred:
“Q. Where did that happen?
“A. Upstairs.
“Q. At the house with the pond [i.e., the house in Grass Valley] or the other house
where you were at Thanksgiving [i.e., the house in Lincoln]?
“THE COURT: That question has been asked and answered. This is repetitive.
Please move on.”
On redirect examination, JD1 testified that he told the truth during his forensic
interview. Thereafter, his entire forensic interview was played for the jury.
19
2. Analysis
“The Confrontation Clause of the Sixth Amendment gives the accused the right ‘to
be confronted with the witnesses against him.’ This has long been read as securing an
adequate opportunity to cross-examine adverse witnesses.” (United States v. Owens
(1988) 484 U.S. 554, 557; see People v. Szadziewicz (2008) 161 Cal.App.4th 823, 841-
842 [the constitutional right of confrontation includes the right to cross-examine adverse
witness on matters reflecting on their credibility], disapproved on another ground by
People v. Dalton (2019) 7 Cal.5th 166, 214.) Not every restriction on a defendant’s
cross-examination, however, violates the Constitution. “The trial court retains wide
latitude to restrict repetitive, prejudicial, confusing, or marginally relevant cross-
examination. Unless the defendant can show that the prohibited cross-examination would
have created a significantly different impression of the witness’s credibility, the trial
court’s exercise of discretion to restrict cross-examination does not violate the
constitutional right of confrontation.” (People v. Sanchez (2016) 63 Cal.4th 411, 450-
451.)
“ ‘ “Confrontation clause violations are subject to federal harmless-error analysis
under Chapman v. California (1967) 386 U.S. 18, 24 .” [Citation.] We ask whether it is
clear beyond a reasonable doubt that a rational jury would have reached the same verdict
absent the error.’ ” (People v. Livingston (2012) 53 Cal.4th 1145, 1159.)
Even assuming the trial court erred in preventing defense counsel from cross-
examining JD1 as to where the sodomy occurred, we see no constitutional violation or
prejudice. JD1’s forensic interview, which was played for the jury, made clear that JD1
accused defendant of sodomizing him multiple times during the 2017 Thanksgiving
holiday at defendant’s home in Lincoln; the first incident occurred in defendant’s
downstairs bedroom at night, while the second incident occurred later in an upstairs
bedroom in the morning. JD1 also testified at length at trial, which provided ample
opportunity for the jury to assess his credibility. Defense counsel’s cross-examination of
20
JD1 provided reasons for the jury to doubt his credibility. In closing argument, counsel
highlighted JD1’s conflicting and inconsistent statements regarding defendant’s
molestation and argued that JD1 lacked credibility, including with regard to his claim of
being sodomized by defendant. Counsel specifically pointed out that JD1 testified that
defendant never sodomized him. Counsel also argued that JD1 had a motive to fabricate
his claims of molestation; specifically, his anger at defendant for the way in which
defendant treated him and his brother (JD2), including physically disciplining them and
making JD2 move back home. Under the circumstances presented, we see no reasonable
probability the jury would have received a significantly different impression of JD1’s
credibility had the trial court permitted defense counsel to ask JD1 to specify whether
defendant sodomized him in Lincoln or Grass Valley. In any event, we are convinced
beyond a reasonable doubt that the jury would have reached the same verdict absent the
asserted error. It is apparent that, despite the conflicting evidence about the specifics of
the allegation comprising count one, the jury credited the evidence supporting a
conviction.
B. Excluded Testimony Regarding JD1’s Character for Truthfulness
Next, defendant contends the trial court prejudicially erred in prohibiting JD1’s
brother, C., from testifying about JD1’s character for truthfulness.
1. Additional Background
At trial, JD1’s older brother, C., then age 14, testified as a prosecution witness
before JD1 testified. On cross-examination, C. was asked whether JD1 had a hard time
telling the truth sometimes, and whether JD1 made up stories. The trial court sustained
the prosecutor’s relevancy objection to both of these questions. Immediately thereafter,
defense counsel asked C. whether JD1 had ever lied to him. The trial court sustained the
prosecutor’s objection on the grounds of relevancy and improper impeachment.
At defense counsel’s request, a sidebar conference was held. During the
discussion, defense counsel explained that he was attempting to establish that JD1 had a
21
reputation for being a liar, and argued that “[i]mpeachment of a witness with a reputation
for lying . . . is an appropriate area to pursue.” In response, the prosecutor noted that JD1
had not testified yet, and objected to defense counsel’s questions on the grounds of
relevancy, improper character evidence, and improper impeachment. The trial court
sustained the prosecutor’s objections, and added that defense counsel’s questions were
improper because they were “vague and open-ended as to time.”
2. Analysis
“Evidence of a witness’s character for truthfulness, or its opposite, is relevant to
credibility and admissible for this purpose. [Citation.] This evidence may be shown by
‘(a) evidence of specific instances of conduct, (b) opinion evidence, or (c) reputation
evidence.’ ” (People v. Bell (2019) 7 Cal.5th 70, 106.) “ ‘An individual who has known
a witness for a reasonable length of time or who knows the reputation of that witness for
honesty and veracity in the community may qualify to testify as to the witness’ character
for honesty or veracity.’ ” (Id. at p. 107.) Thus, we assume error here.
Evidentiary rulings are generally subject to harmless error review under the
standard in People v. Watson (1956) 46 Cal.2d 818, which requires us to determine if a
reasonable probability exists that the jury would have reached a result more favorable to
the defendant absent the error. (People v. Partida (2005) 37 Cal.4th 428, 439; People v.
Gallardo (2017) 18 Cal.App.5th 51, 76; see People v. Jones (2013) 57 Cal.4th 899, 957
[“because the trial court merely excluded some evidence that could have impeached a
complaining witness and did not preclude defendant from presenting a defense, any error
would be one of state evidentiary law only”].) Here, the error was harmless.
The jury had ample opportunity to assess JD1’s credibility; he testified at length at
trial, at times inconsistently, and his entire forensic interview was played for the jury. As
we have already discussed, there was ample evidence adduced at trial that undermined his
credibility, including his own conflicting and inconsistent statements about defendant’s
molestation. There was also evidence that JD1 had lied on occasion about relatively
22
minor matters, including when he was accused of breaking defendant’s record player and
taking gum that did not belong to him. In his interview with Marian, JD1 claimed to be a
“liar” when he was asked if he knew the difference between the truth and a lie, although
he was laughing when he made this statement. On this record, we conclude it is not
reasonably probable that a result more favorable to defendant would have been reached
absent the error. As for the counts involving JD1, either the jury believed him despite
clear evidence of conflicting statements or it did not. It is not reasonably probable the
jury would have reached a different result on these counts even had C. testified that JD1
had credibility issues. Such evidence would have been cumulative and its impeachment
value would have been minimal compared to the other more compelling evidence casting
doubt on JD1’s credibility.
We reject defendant’s contention that the effect of the trial court’s evidentiary
ruling should be evaluated under the harmless error standard articulated in Chapman v.
California, supra, 386 U.S. 18, which is reserved for errors of a constitutional dimension.
(Id. at p. 24.) Unless a trial court’s ruling completely excludes evidence of an accused’s
defense, the proper standard of review for an evidentiary ruling is the reasonable
probability standard articulated in People v. Watson, supra, 46 Cal.2d 818. (People v.
Fudge (1994) 7 Cal.4th 1075, 1102-1103; People v. Bacon (2010) 50 Cal.4th 1082, 1104,
fn. 4.) Although not entirely clear, it appears that the challenged evidentiary rulings were
based in part on the fact that JD1 had not yet testified at the time C. was testifying. The
trial court’s rulings did not prevent the defense from calling character witnesses to
impeach JD1’s credibility, including C., who was excused as a prosecution witness
“[s]ubject to recall.” Indeed, the record discloses that defendant was permitted to elicit
testimony from various witnesses that JD2 and JD3 were generally dishonest.
23
C. Excluded Cross-Examination of JD1 Regarding Alleged False Report of
Molestation
Next, defendant contends the trial court prejudicially erred in preventing him from
cross-examining JD1 about an alleged prior false report of molestation he made against
his brother, JD2. We disagree.
1. Applicable Legal Principles
Generally, an alleged victim of sexual assault may not be questioned about
specific instances of their prior sexual activity. (Evid. Code, § 1103, subd. (c) (1);
People v. Woodward (2004) 116 Cal.App.4th 821, 831.) Evidence Code section 782
provides a limited exception to that general rule and allows evidence of prior sexual
conduct if it is “offered to attack the credibility of the complaining witness.” (Evid.
Code, § 782, subd. (a); People v. Fontana (2010) 49 Cal.4th 351, 362.) However,
evidence of a complaining witness’s prior false report of molestation is not evidence of
“sexual conduct” as defined by Evidence Code section 782. (People v. Tidwell (2008)
163 Cal.App.4th 1447, 1454-1456 [Evid. Code, § 782 inapplicable in sexual assault case
in which victim was alleged to have made prior false report of rape “because it was [the
complaining witness’s] allegedly false complaints that the defense sought to use as
impeachment evidence, not her prior sexual conduct or willingness to engage in sexual
activity”].) A prior report of molestation or rape is relevant to the complaining witness’s
credibility only if the report is shown to be false. (People v. Winbush (2017) 2 Cal.5th
402, 469; People v. Miranda (2011) 199 Cal.App.4th 1403, 1424; Tidwell, at p. 457.)
2. Additional Background
Defendant filed a pretrial motion, supported by an affidavit filed under seal,
seeking permission to introduce evidence of prior sexual conduct by JD1 and JD2 under
Evidence Code section 782. As relevant here, defendant also sought to present evidence
showing that JD1, in his interview with CPS social worker Marian, had falsely accused
JD2 of sodomizing their younger brother, S., when JD2 was 14 years old. In support of
his motion, defendant asserted that a prior false report of molestation was admissible
24
impeachment evidence, independent of Evidence Code section 782. The trial court
issued a written order denying the motion. In so ruling, the court recognized that a prior
report of molestation by a complaining witness is not admissible unless there is credible
evidence that the report was false, although the court did not specifically identify this
ground as one of the reasons for denying the motion.
At trial, defense counsel sought permission at a sidebar conference to question C.
about whether JD1 had ever falsely accused C. or any of their siblings of improper sexual
conduct. The trial court denied the request, relying in part on its pretrial ruling under
Evidence Code section 782. The court also found that the evidence was inadmissible
under Evidence Code section 352 because an inquiry into this issue would be “unduly
consuming of time and not probative given the subject matter.” Thereafter, the trial court
denied a similar request made by defense counsel at a sidebar conference while JD1 was
testifying, referencing its pretrial ruling under Evidence Code section 782. The court also
agreed with the prosecutor’s objections, which included defendant’s failure to prove JD1
made a false report of sexual misconduct, and her assertion that the evidence the defense
sought to elicit was irrelevant, improper impeachment, and inadmissible under Evidence
Code section 352.
3. Analysis
Even assuming the trial court erred in relying on Evidence Code section 782, any
error was harmless, as the evidence regarding JD1’s allegedly false report of molestation
was properly excluded on other grounds.
We review a trial court’s relevancy and Evidence Code section 352 rulings for
abuse of discretion. (People v. Avila (2006) 38 Cal.4th 491, 578.) No abuse of discretion
appears on this record. Defendant did not present evidence in connection with his pretrial
motion establishing that JD1 falsely accused JD2 of molesting their younger brother, S.
As such, the trial court properly determined that JD1’s accusation was not relevant for the
purpose of impeaching his credibility. (People v. Winbush, supra, 2 Cal.5th at p. 469.)
25
Moreover, the proffered evidence was properly excluded under Evidence Code
section 352, which “empowers courts to prevent criminal trials from degenerating into
nitpicking wars of attrition over collateral credibility issues.” (People v. Wheeler (1992)
4 Cal.4th 284, 295-297.) The trial court may exclude evidence under that section if its
probative value is substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury. (People v. Miles (2020)
9 Cal.5th 513, 587; see also Evid. Code, § 352.)
Here, defendant sought to adduce evidence on a collateral credibility issue, which
would have required the expenditure of time on a sensitive matter involving multiple
minors, including JD2. Defendant’s offer of proof was insubstantial, consisting of
nothing more that JD1’s allegedly false report of molestation in his interview with
Marian, and defense counsel’s assertion that this report was false because CPS records
reflected that S., in an interview with Marian, denied that he had ever been sodomized by
JD2. Further, the proffered evidence, even if true, had no direct bearing on the critical
issue of whether defendant in fact molested JD1, and was cumulative to other evidence
casting doubt on JD1’s credibility, including his conflicting and inconsistent statements
about the molestation. Under these circumstances, the trial court could have reasonably
determined that the probative value of the proffered evidence (if any) was substantially
outweighed by the probability that its admission would necessitate the undue
consumption of time and create a substantial danger of undue prejudice. (See Evid.
Code, § 352.) In our view, the trial court acted well within its discretion in excluding the
evidence. Because the trial court’s ruling was not an abuse of discretion, defendant’s
constitutional claim fails. (People v. Johnson (2022) 12 Cal.5th 544, 607; People v.
Panah (2005) 35 Cal.4th 395, 484, fn. 32.)
We decline to consider defendant’s contention, raised for the first time on appeal,
that JD1’s report of molestation against JD2 was admissible because, if true, JD2’s
26
conduct was a crime involving moral turpitude, which was relevant to assessing JD2’s
credibility and gave him a motive to fabricate his allegations of molestation against
defendant. (People v. Case (2018) 5 Cal.5th 1, 44; In re Campbell, supra,
11 Cal.App.5th at pp. 756-757.)
D. Exclusion of Evidence Regarding JD1’s Initial Disclosure
Next, defendant contends the trial court prejudicially erred in excluding evidence
about the circumstances surrounding JD1’s initial disclosure of defendant’s molestation
in violation of his due process right to present a complete defense. Defendant argues that
such evidence was admissible because it cast doubt on JD1’s claims of molestation, as
the CPS social worker conducting the interview (Marian) “prompted” and “steered” JD1
“down a path” toward accusing defendant of molestation via suggestive questioning. We
see no error.
1. Additional Background
As previously indicated, JD1’s initial disclosure of defendant’s molestation
occurred during an interview in April 2018 with Marian, a social worker who was
conducting an investigation unrelated to defendant. Before Marian testified as a defense
witness, defendant requested permission to question her about the circumstances
surrounding JD1’s disclosure of defendant’s molestation. Among other things, defendant
sought to elicit testimony from Marian that JD1 had been exposed to pornography and
had accused JD2 of sodomizing their younger brother, S. In making this request,
defendant explained that he wanted the jury to understand how the allegations of
molestation against him came to light, to establish the “starting point” for the allegations,
and to show how the interview “progresse[d]” and “unfold[ed].” The trial court denied
defendant’s request, finding that such testimony would violate its pretrial ruling under
Evidence Code section 782.
After the prosecutor completed her cross-examination of Marian, which included
questions about JD1’s disclosure of defendant’s molestation, defense counsel renewed his
27
request to question Marian about the circumstances surrounding JD1’s disclosure.
During a sidebar conference, defense counsel argued that the prosecutor had “opened up
the entirety” of Marian’s interview of JD1 under Evidence Code section 356,9 and that in
order to “protect due process” and preserve defendant’s right to a fair trial, he should be
permitted to elicit testimony about how defendant’s name “came up” in the interview,
which “goes to the credibility of [JD1].”
In denying defense counsel’s request, the trial court stated: “Number 1, I don’t
think that [the] door was opened; two, even if it was, the evidence about the
circumstances . . . would be subject to being excluded under Evidence Code § 352. It
would . . . result in an undue consumption of time. We’ve litigated the basis and
circumstances of the referral, and the evidence that would be admitted would be more
prejudicial than probative, and that’s the Court’s ruling.” Thereafter, the court denied
defendant’s motion for mistrial on the ground that he was denied the right to effectively
question Marian, concluding that the evidence defendant sought to admit was
inadmissible under Evidence Code sections 782 and 352, even if Evidence Code section
356 applied.
The trial court also denied defendant’s motion for new trial on this ground.
9 Evidence Code section 356 provides: “Where part of an act, declaration, conversation,
or writing is given in evidence by one party, the whole on the same subject may be
inquired into by an adverse party; when a letter is read, the answer may be given; and
when a detached act, declaration, conversation, or writing is given in evidence, any other
act, declaration, conversation, or writing which is necessary to make it understood may
also be given in evidence.” The purpose of this section, known as the rule of
completeness, is to “ ‘prevent the use of selected aspects of a conversation, act,
declaration, or writing, so as to create a misleading impression on the subjects
addressed.’ ” (People v. Pearson (2013) 56 Cal.4th 393, 460.)
28
2. Analysis
As an initial matter, we note that Marian’s interview of JD1 is not included in the
appellate record. It is appellant’s burden to provide an adequate record for our review of
his claims on appeal. Having reviewed defense counsel’s proffer as to the contents of the
interview, we are not persuaded that Marian’s questioning was impermissibly suggestive.
Instead, it appears the trial court reasonably concluded that any probative value of the
evidence defense counsel sought to elicit from Marian would have been substantially
outweighed by the probability that its admission would necessitate undue consumption of
time and create a substantial danger of undue prejudice. Counsel sought to elicit, among
other things, evidence about a sensitive and inflammatory matter, an alleged sexual
assault by JD2 against his younger brother S. that had not been proven false but was
merely disputed. In short, given the limited relevance of the inquiry proposed by defense
counsel and its possible prejudicial effect, we see no abuse of discretion. Because we
conclude the trial court properly excluded the evidence under Evidence Code section 352,
we need not and do not consider whether the trial court erred in excluding the evidence
on other bases. (See Johnson, supra,12 Cal.5th at pp. 604-605 [evidence admissible
under Evid. Code, § 356 subject to exclusion under Evid. Code, § 352]; People v.
Chandler (1997) 56 Cal.App.4th 703, 707-708 [evidence admissible under Evid. Code, §
782 subject to exclusion under Evid. Code, § 352].) Since the trial court’s evidentiary
ruling was not an abuse of discretion, defendant’s constitutional claim fails. (Johnson, at
p. 607; People v. Panah, supra, 35 Cal.4th at p. 484, fn. 32.)
E. Admission of Evidence that JD3’s Father Molested Him
Finally, defendant contends the trial court prejudicially erred in allowing JD3 to
explain on redirect examination why he “hated” his father--defendant’s identical twin
brother J.C.--and his mother. Specifically, defendant challenges the admission of
evidence that J.C. molested JD3.
29
1. Additional Background
After the original charging document was filed in this case, the prosecutor filed a
motion to consolidate this action with a separate criminal action pending against
defendant and J.C. on the grounds that they were both charged with the same class of
crimes and offenses, the victims in both cases (including JD3) were related to them, and
the evidence in both cases was cross-admissible. The trial court denied the motion to
consolidate and granted defendant’s motion to sever the sole charge filed against
defendant in the separate criminal action, such that defendant and J.C. would be tried
separately. Prior to the commencement of trial in this action, the prosecutor and defense
counsel agreed that any evidence related to the charges filed against J.C. was irrelevant
and would not be introduced in the prosecution’s case-in-chief.
On cross-examination, defense counsel attempted to establish that JD3 had a
motive to falsely accuse defendant of molesting him; namely, JD3’s animosity toward his
family. When defense counsel asked JD3 about his drug use and whether he blamed
defendant for his “screwed-up” life, JD3 said, “Not just [defendant].” Upon further
questioning, JD3 explained that he hated his parents and defendant because they were
“assholes,” and referred to his mother as a “piece of shit.” JD3 also blamed his parents
and brother for the suicidal thoughts he had before he began living with defendant. He
explained that his parents favored his brother. When asked, JD3 indicated that his
parents were “toxic people,” that he hoped they would die, and that defendant would “rot
in jail in hell.”
At one point during cross-examination, defense counsel showed JD3 a photograph
taken at his eighth grade graduation, which included JD3, J.C., and other family
members. Immediately thereafter, defense counsel showed JD3 a photograph of
defendant and JD3 at the same graduation. When asked, JD3 agreed that he and
defendant appeared to be happy. As detailed ante, on direct examination, JD3 indicated
that defendant molested him before he completed eighth grade. Thus, these photographs
30
were apparently introduced for the purpose of casting doubt on JD3’s claim of
molestation against defendant.
Near the end of cross-examination, defense counsel questioned JD3 about certain
flyers defendant and his son, R., had posted at JD3’s high school and the schools attended
by JD3’s siblings several months prior to JD3’s disclosure of defendant’s molestation.
The flyers, which were posted when JD3 was a sophomore, accused JD3 of molesting his
sister and claimed that his mother was “unfit.” When asked, JD3 denied that the flyers
made him angry, but said they made him feel sad, upset, and depressed.
After cross-examination was completed, a sidebar conference was held. During
the discussion, the prosecutor requested permission to question JD3 about the flyers and
about how his relationship with J.C. changed after J.C.’s arrest. Defense counsel agreed
that it was appropriate for the prosecutor to question JD3 about the flyers but objected to
the prosecutor questioning JD3 about the allegations against J.C., citing Evidence Code
section 352. The trial court overruled the objection, stating that it would permit such
questioning “subject to an appropriate question.” In so ruling, the court explained that
defense counsel’s cross-examination of JD3 had opened the door to the admission of this
evidence.
On redirect examination, JD3 explained that the flyers were posted at his school
and the schools attended by his siblings after his sister accused defendant’s son, R., of
forcibly sexually assaulting her. JD3 further explained that defendant’s conduct in
posting the flyers made him feel sad and really upset. When asked, JD3 said that his
eighth grade graduation was a “happy time,” but that his life changed during his freshman
year of high school. Over defense objections on the grounds of relevancy and Evidence
Code section 352, JD3 was permitted to explain what his father J.C. had done to him
during his freshman year. JD3 explained that J.C. started “drinking a lot more” and
molested him, which was the reason why he referred to J.C. as an “asshole” during cross-
examination. JD3 also noted that he was angry with his mother for not protecting him,
31
and that it made him feel really depressed when defendant encouraged him to kill himself
during an incident that occurred after he was hospitalized.
Prior to deliberations, the jury was given the following limiting instruction:
“During the trial, you have . . . heard certain evidence about [J.C.]. You may only
consider this evidence for a limited purpose. You may only consider this evidence to
evaluate the bias, interest, motives and credibility of [JD3 and others]. You may consider
that evidence only for that purpose and for no other. You may not consider any evidence
about [J.C.] to show that [defendant] committed any of the crimes charged in this
case.”10
The trial court denied defendant’s request for a new trial on the ground that JD3
should have been prohibited from testifying that J.C. had molested him under Evidence
Code section 352.
2. Analysis
Defendant contends the trial court abused its discretion in allowing the prosecutor
to elicit evidence that his identical twin brother (J.C.) molested JD3. He argues that this
evidence was irrelevant and inadmissible under Evidence Code section 352, as any
probative value of the evidence was substantially outweighed by the probability that its
admission would create a substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury. He argues the evidence had little or no relevance to any
contested issue at trial, while creating a substantial danger that the jury would draw the
10 This limiting instruction told the jurors that they could consider the evidence
regarding J.C. to evaluate not only JD3’s bias, interest, motives and credibility, but also
the bias, interest, motives, and credibility of JD3’s sister, JD3’s mother, and JD2. The
written limiting instruction given to the jury did not include JD2 but rather “J.C.”
Although unclear, the “J.C.” in the limiting instruction appears to be a reference to JD3’s
brother. In any event, as we discuss post, we assume, without deciding, that the trial
court erred in instructing the jury that the evidence regarding J.C. could be considered for
any other purpose than to evaluate JD3’s bias, interest, motives, and credibility.
32
improper propensity inference that defendant was genetically disposed to commit sexual
offenses, given that J.C. was his identical twin. We disagree.
Under the doctrine of “opening the door,” previously irrelevant testimony may
become relevant and thereby admissible--or evidence that was relevant but otherwise
inadmissible may become admissible--to avoid giving the jury a misleading impression
of the evidence. (See People v. Steele (2002) 27 Cal.4th 1230, 1248-1249; People v.
Kerley (2018) 23 Cal.App.5th 513, 553.) But, “opening the door” does not justify
admitting evidence that was and remains irrelevant. (Evid. Code, § 350; see In re Lucas
(2004) 33 Cal.4th 682, 733.) A trial court’s ruling on whether evidence is admissible
under this theory is reviewed for abuse of discretion. (Kerley, at p. 553.)
We see no evidentiary error. Defense counsel elicited testimony as to JD’s bad
relationship with his family, which caused the question of why to become relevant. This
is because the record reflects, and defendant acknowledges on appeal, that defense
counsel, in questioning JD3 on cross-examination, attempted to establish a motive as to
why JD3 would make false allegations of molestation--namely, JD3’s “considerable ill-
will” toward his family. The prosecutor’s questions on redirect examination were
relevant to JD3’s credibility in accusing defendant of molestation, and the probative
value of this evidence was not substantially outweighed by the probability that its
admission would create a substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.
Contrary to defendant’s contention, JD3’s testimony on redirect examination,
which was brief and did not include any details about J.C.’s molestation, did not uniquely
tend to evoke an emotional response or bias against defendant. The evidence elicited was
not of such a nature as to inflame the emotions of the jury that they would use the
information for an improper purpose, including to conclude that defendant was guilty of
molesting JD3 because JD3 accused defendant’s identical twin brother of molesting him.
Indeed, in our view the admission of this evidence was more likely to cause the jury to
33
question JD3’s credibility in accusing both his father and uncle of molesting him and
suspect he was merely lashing out at multiple family members with false allegations. We
are similarly unpersuaded by defendant’s contention that the challenged testimony should
not have been admitted because it had little or no relevance to any contested issue at trial.
The credibility of the John Does was the critical issue at trial. On redirect examination,
the prosecutor sought to challenge the inference that JD3 had a motive to falsely accuse
defendant of molesting him because of his animosity toward his family, including his
professed hatred of his parents. Thus, the evidence was at least minimally helpful in
assisting the jury in determining whether defendant was guilty of molesting JD3.
In any event, any error was harmless. The outcome of this case hinged on whether
the jury believed the John Does. The jury was given adequate opportunity to evaluate
JD3’s credibility and ultimately decided to credit his claim that defendant molested him.
The prosecutor did not mention JD3’s claim of molestation against J.C. in closing
argument. Instead, the prosecutor urged the jury to believe the John Does and reject the
defense’s fabrication theory. In doing so, the prosecutor highlighted the fact that the
molestation of all three John Does was primarily accomplished in the same way; namely,
defendant would initiate the abuse while the John Does were asleep and vulnerable. And
the jury was specifically instructed not to not consider any evidence about J.C. to show
that defendant committed any of the crimes charged in this case. We presume the jury
understood and followed this instruction. (People v. Chism (2014) 58 Cal.4th 1266, 1299
(Chism); People v. McKinnon (2011) 52 Cal.4th 610, 670 (McKinnon).) On this record,
we do not find it reasonably probable that defendant would have obtained a more
favorable result had the trial court prevented JD3 from explaining on redirect
examination why he hated his parents. (People v. Partida, supra, 37 Cal.4th at p. 439
[absent fundamental unfairness, state law error in admitting evidence subject to the
reasonably probable standard articulated in Watson].)
34
III
Prosecutorial Misconduct
Defendant contends the prosecutor committed prejudicial misconduct while
questioning defense expert William O’Donohue, Ph.D. He argues reversal is required
because the prosecutor asked argumentative questions to insinuate that (1) Dr.
O’Donohue betrayed his clients (i.e., child sexual abuse victims) by sharing the
information he learned during their counseling sessions with defense attorneys, and (2)
defense attorneys who represent clients accused of child molestation work to subvert
justice by helping abusers escape justice.
A. Additional Background
It is well-settled that “expert testimony on the common reactions of child
molestation victims is not admissible to prove that the complaining witness has in fact
been sexually abused; it is admissible to rehabilitate such witness’s credibility when the
defendant suggests that the child’s conduct after the incident—e.g., a delay in reporting—
is inconsistent with his or her testimony claiming molestation. [Citations.] ‘Such expert
testimony is needed to disabuse jurors of commonly held misconceptions about child
sexual abuse, and to explain the emotional antecedents of abused children’s seemingly
self-impeaching behavior.’ ” (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301, fn.
omitted,) Thus, in California, “it has long been held that in a judicial proceeding
presenting the question whether a child has been sexually molested, [testimony
regarding] CSAAS [Child Sexual Abuse Accommodation Syndrome] is admissible
evidence for the limited purpose of disabusing the fact finder of common misconceptions
it might have about how child victims react to sexual abuse.” (In re S.C. (2006)
138 Cal.App.4th 396, 418.)
At trial, a professor at U.C. Davis and a clinical psychologist at U.C. Davis
Children’s Hospital testified as a prosecution expert on the subject of child sexual abuse,
including CSAAS. Because the admissibility of the CSAAS evidence is not challenged
35
on appeal, we do not provide a detailed account of this testimony. We simply note that
this testimony was particularly relevant in this case to explain the John Does’ delay in
disclosure, JD1’s and JD2’s incremental disclosure, JD1’s and JD2’s inconsistencies and
contradictions regarding the molestation, and JD1’s and JD2’s various recantations of
their allegations of molestation at trial.
Dr. O’Donohue testified as an expert for the defense on the subject of child sexual
abuse. At the time of trial, he was a licensed psychologist, professor at the University of
Nevada, Reno, and director of the Victims of Crime Treatment Center for Sexual Abuse
Victims operated by the university. On direct examination, Dr. O’Donohue was asked
questions concerning, among other things, JD1’s and JD2’s pretrial interviews, CSAAS,
and suggestibility (i.e., suggested memories) in the context of forensic interviews of
children who have allegedly been sexually abused. During his testimony, Dr.
O’Donohue noted that most child sexual abuse victims are consistent as to the “core
details” of the abuse, it is rare for a sibling to witness the sexual abuse of another sibling,
and that it is “expected” that “individuals who witness each other’s events” (i.e.,
molestation) would consistently recount “core details” of the molestation. Dr.
O’Donohue also noted that leading, suggestive, and repeated questions can result in
children forming false memories, that suggested memories are often “told more
inconsistently’” and that younger children are “more prone to suggestibility.”
When asked about the “forensic side” of his practice, Dr. O’Donohue explained:
“Lawyers call me up to consult on cases, mainly defense attorneys. And they send me
materials, and then I review the materials and give opinions about issues, like the quality
of the forensic interview, problems with that, unusual aspects of the allegation.” Near the
end of direct examination, Dr. O’Donohue noted that he had been practicing for 32 years,
and that he “mostly” testifies as a defense witness in criminal trials.
36
On cross-examination, the prosecutor attempted to establish bias on the part of Dr.
O’Donohue. As relevant here, the prosecutor and Dr. O’Donohue engaged in the
following exchange:
“Q. But as a therapist, you’re listening to victims of child maltreatment, physical
abuse, and in this particular realm, sexual abuse, correct?
“A. Yes.
“Q. You’re listening to their tragedies?
“A. Yes.
“Q. You’re listening to their victimization?
“A. Correct.
“Q. And you receive money in part by giving therapy and counseling to these
survivors of sexual assault?
“A. Yes.
“Q. And you then have interpreted your work with people and have done things
such as published books, correct?
“A. Correct.
“Q. So you’ve made money off of that too?
“A. Yes. And you don’t make much money publishing academic books, but it’s
some.
“Q. And you’ve given presentations on your work that you have done with
patients studying their victimization, studying their tragedies and applying that to
literature, correct?
“A. Yes. I’ve given presentations to police officers and to Defense attorneys.
“Q. When was the last time you gave a presentation to the police department?
Because my understanding, your last invitation was rescinded.
37
“A. The last invitation was rescinded after a DA talked to them. But the last time
before that was probably about six or seven years ago, and I was invited by the director of
the child abuse center in Reno, Dr. Kristin MacLeod.
“Q. You have no affiliation with her, do you?
“A. No.
“Q. So - - but that’s not primarily your target audience, is it? You’re a Defense
expert. You primarily testify for the Defense?
“A. Well, I’m not a Defense expert. I do primarily testify for the Defense. I
would testify for the Prosecution, but you control that. I can’t come in here and testify if
you don’t ask me first.
“[PROSECUTOR]: May I have this marked?
“THE COURT: Yes.
“[DEFENSE COUNSEL]: May we approach?”
After a brief sidebar discussion, the exhibit--a presentation given by Dr.
O’Donohue--was marked for identification and the following exchange then occurred:
“Q. Dr. O’Donohue, so we talked about your work with victims for 22 years in
the area of sexual assault and your experiences with them and the fact that you present in
this area, correct?
“A. Correct.
“Q. And I have a feeling you know what I’m going to hand you. In 2009, you
testified, taking all the information you’ve gleaned from child sexual assault victims, and
you presented at the annual fall criminal defense seminar titled Winning Strategies
from Defense Experts and you specifically talked about forensic interviews?
“A. Yes, I was asked by an attorney to give a talk at a conference about forensic
interviews with children, and I did that.
“Q. And that interview was Mr. Rothschild, correct?
“A. Michael Rothschild. Not the interview but the lawyer who asked me, yes.
38
“Q. And he is predominantly known in the Sacramento area for being a Defense
attorney for child molestation cases, correct?
“A. I believe that’s true.
“Q. So as part of the winning strategies from the expert, you presented on the
topic of child forensic interviewing?
“A. Yes. I didn’t know what the title of the conference was, but--
“Q. But you knew your audience.
“A. Yeah, I don’t think it’s any problem to give education to Defense attorneys or
to DAs. It’s part of a role of a professor . . . to provide, give lectures and to give
information to people who ask.
“Q. Do your clients know -- and by ‘your clients’ I’m talking about the ones
where you’ve listened to their tragedies, you’ve listened to their victimization -- that
you’ve summarized their experiences and then you handed that information to the people
who would help their abuser escape justice? Do your clients know that, sir?
“A. There’s a lot of problems with that. One is what I’m --
“Q. Yes or no, sir. Do your clients --
“THE COURT: Wait a minute.
“[DEFENSE COUNSEL]: Objection. Argumentative.
“THE COURT: Sustained.
“Restate your question.
“[PROSECUTOR]:
“Q. Do your clients know specifically that you have gone and taken their
tragedies and victimizations and taught people who represent them in court how to avoid
being convicted?
“A. Well, I haven’t done that, so it’s impossible for them to know that.”
39
B. Applicable Legal Principles
“ ‘ “A prosecutor who uses deceptive or reprehensible methods to persuade the
jury commits misconduct, and such actions require reversal under the federal Constitution
when they infect the trial with such ‘ “unfairness as to make the resulting conviction a
denial of due process.” ’ ” ’ [Citations.] ‘ “Under state law, a prosecutor who uses such
methods commits misconduct even when those actions do not result in a fundamentally
unfair trial.” ’ [Citations.] . . . Prosecutorial misconduct can result in reversal under
state law if there was a ‘reasonable likelihood of a more favorable verdict in the absence
of the challenged conduct’ and under federal law if the misconduct was not ‘harmless
beyond a reasonable doubt.’ ” (People v. Rivera (2019) 7 Cal.5th 306, 333-334.)
“ ‘As a general rule a defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion—and on the same ground—the defendant made an
assignment of misconduct and requested that the jury be admonished to disregard the
impropriety.’ ” (People v. Prieto (2003) 30 Cal.4th 226, 259; see also People v. Tully
(2012) 54 Cal.4th 952, 1010.) “ ‘The primary purpose of the requirement that a
defendant object at trial . . . is to give the trial court an opportunity, through admonition
of the jury, to correct any error and mitigate any prejudice.’ ” (People v. Seumanu (2015)
61 Cal.4th 1293, 1328.) The general forfeiture rule is subject to two exceptions. A claim
of prosecutorial misconduct is reviewable on appeal, absent an objection and request for
an admonition, if (1) an objection would have been futile (People v. Hill (1998)
17 Cal.4th 800, 820), or an admonition would not have cured the harm (People v. Friend
(2009) 47 Cal.4th 1, 29).
C. Analysis
Defendant contends the prosecutor engaged in misconduct by asking Dr.
O’Donohue a second argumentative question after the trial court sustained a defense
objection on the ground of argumentative questioning.
40
While effective and legitimate cross-examination may include assertive and even
harsh questioning, it may not be argumentative. (People v. Armstrong (2019) 6 Cal.5th
735, 796 & fn. 23; People v. Chatman (2006) 38 Cal.4th 344, 384.) An argumentative
question is one that is designed to engage a witness in argument rather than elicit facts
within the witness’s knowledge. (People v. Guerra (2006) 37 Cal.4th 1067, 1125,
overruled on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) “An
argumentative question is a speech to the jury masquerading as a question. . . . . An
argumentative question that essentially talks past the witness, and makes an argument to
the jury, is improper because it does not seek to elicit relevant, competent testimony, or
often any testimony at all.” (Chatman, at p. 384.)
We agree the challenged questions were argumentative. However, asking the
questions was not necessarily prejudicial misconduct.
As an initial matter, we conclude that defendant has forfeited his prosecutorial
misconduct claim. He never raised the issue of misconduct or asked the trial court to
admonish the jury to disregard any impropriety on the part of the prosecutor. We are
unpersuaded by defendant’s contention that an objection on the ground of misconduct
would have been futile or that an admonition would not have cured any harm from the
challenged questions. Indeed, the trial court had already sustained the one and only
objection made by defense counsel during the exchange set forth above.
But even were we to overlook forfeiture and assume the challenged questions
amounted to misconduct, they do not constitute prejudicial misconduct. The trial court
sustained defendant’s objection to the first question, dispelling any prejudice as to that
question. (People v. Fuiava (2012) 53 Cal.4th 622, 687.) In response to the prosecutor’s
second question, Dr. O’Donohue denied that he had done the things the argumentative
question accused him of doing. The prosecutor did not ask any further questions about
this topic. And the trial court instructed the jury to ignore any of the attorneys’ questions
to which it had sustained an objection. (See CALCRIM No. 104.) We presume the jury
41
understood and followed this instruction. (Chism, supra, 58 Cal.4th at p. 1299;
McKinnon, supra, 52 Cal.4th at p. 670.) On this record, including the evidence
supporting the guilty verdicts, we are convinced that reversal is not required.
IV
Alleged Instructional Errors
Defendant makes a number of instructional error claims, which we next address in
turn. As we shall explain, we reject these claims, which we address on the merits. We
need not and do not consider the Attorney General’s forfeiture arguments.
A. Generally Applicable Legal Principles and Standard of Review
“ ‘The trial court has the duty to instruct [the jury] on general principles of law
relevant to the issues raised by the evidence [citations] and has the correlative duty “to
refrain from instructing on principles of law which not only are irrelevant to the issues
raised by the evidence but also have the effect of confusing the jury or relieving it from
making findings on relevant issues.” ’ ” (People v. Alexander (2010) 49 Cal.4th 846,
920-921.)
The claims of instructional error raised by defendant are subject to the independent
or de novo standard or review. (See People v. Posey (2004) 32 Cal.4th 193, 218;
People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Cooksey (2002) 95 Cal.App.4th
1407, 1411.) “ ‘A defendant challenging an instruction as being subject to erroneous
interpretation by the jury must demonstrate a reasonable likelihood that the jury
understood the instruction in the way asserted by the defendant.’ ” (People v.
Covarrubias (2016) 1 Cal.5th 838, 905.) A reviewing court reads the instructions as a
whole to determine whether there is a reasonable likelihood the jury applied the
challenged instruction in an impermissible manner. (People v. Wilson (2008) 44 Cal.4th
758, 803.) We presume the jurors understood, correlated, and correctly applied the
instructions. (People v. Carey (2007) 41 Cal.4th 109, 130.) In assessing the probable
42
impact of the instructions on the jury, we consider the arguments of trial counsel.
(People v. Young, supra, 34 Cal.4th at p. 1202.)
B. CALCRIM No. 105
Defendant contends the trial court prejudicially erred in instructing the jury with
the optional portion of CALCRIM No. 105, which states that a witness’s character for
truthfulness can be inferred from the lack of discussion on the topic among the people
who know him or her. He argues that reversal is required because there was no evidence
to support this instruction, which invited the jury to irrationally infer that JD1 had a
character for truthfulness. The Attorney General concedes the error, but argues it was
harmless. We agree with the Attorney General.
“ ‘What people say behind your back is your standing in the community in which
you live.’ On the other hand, what people do not say about you may also shed light on
your reputation in the community and, in turn, your character. That is the principle
behind an optional part of CALCRIM No. 105—the standard instruction on witness
credibility—which informs the jury that ‘[i]f the evidence establishes that a witness’s
character for truthfulness has not been discussed among the people who know him or her,
you may conclude from the lack of discussion that the witness’s character for truthfulness
is good.’ ” (People v. Jimenez (2016) 246 Cal.App.4th 726, 728, fns. omitted.)
“ ‘ “ ‘It is an elementary principle of law that before a jury can be instructed that it
may draw a particular inference, evidence must appear in the record which, if believed by
the jury, will support the suggested inference.’ ” ’ [Citation.] Consistent with this rule,
the Bench Note to CALCRIM No. 105 advises the court concerning the optional
instruction as follows: ‘Give any of the final three bracketed paragraphs if relevant based
on the evidence.’ ” (People v. Jimenez, supra, 246 Cal.App.4th at pp. 732-733.)
We agree with the parties that the trial court erred by instructing the jury with the
optional portion of CALCRIM No. 105, as there was no evidence to support the inference
suggested by this instruction. However, we find the error harmless. In our view, it is not
43
reasonably probable the jury applied the instruction in an impermissible manner and
would have returned a more favorable verdict had the instruction not been given. (People
v. Cross (2008) 45 Cal.4th 58, 67 [“giving an irrelevant or inapplicable instruction is
generally ‘ “only a technical error which does not constitute ground for reversal” ’ ”];
People v. Lee (1990) 219 Cal.App.3d 829, 841 [“Where, as here, the court gives a legally
correct, but irrelevant, instruction, the error ‘is usually harmless, having little or no effect
“other than to add to the bulk of the charge” ’ ”]; see also People v. Guiton (1993)
4 Cal.4th 1116, 1130 [error in giving legally correct but inapplicable instruction is “one
of state law subject to the traditional Watson test”].) The jury was specifically instructed
that “[s]ome of these instructions may not apply, depending on your findings about the
facts of the case.” (CALCRIM No. 200.) We presume the jury understood and followed
this instruction and ignored the inapplicable instruction. (Chism, supra, 58 Cal.4th at
p. 1299; McKinnon, supra, 52 Cal.4th at p. 670.) We additionally note that neither party
mentioned the instruction in closing argument; at no point did the prosecutor argue or
suggest that there was evidence establishing JD1’s or any other witness’s character for
truthfulness. Further, the jury was well aware from the evidence presented at trial and
defense counsel’s closing argument that there was evidence, including JD1’s conflicting
testimony, supporting the conclusion that JD1 had been untruthful at times. Under these
circumstances, we are convinced that defendant suffered no prejudice from the
instructional error.
C. CALCRIM No. 1191B
Prior to deliberations, the jury was instructed pursuant to a modified version of
CALCRIM No. 1191B that evidence of a charged sex offense, if proven beyond a
reasonable doubt, was admissible to prove defendant was disposed or inclined to commit
the other charged sex offenses, but that such evidence alone was insufficient to prove
defendant was guilty of another crime; the People must still prove each charge beyond a
reasonable doubt.
44
On appeal, defendant contends the trial court prejudicially erred in providing the
jury with this instruction. He argues this instruction includes an irrational permissive
inference, which invited the jury to infer that if he was guilty of one charged offense, it
was likely he committed all of the charged offenses. This claim is foreclosed by
People v. Villatoro (2012) 54 Cal.4th 1152 (Villatoro).
In Villatoro, our Supreme Court held that Evidence Code section 1108 permits the
jury to draw a propensity inference from currently charged sex offenses, and approved a
modified version of CALCRIM No. 1191, similar to the instruction given in this case.
(Villatoro, supra, 54 Cal.4th at pp. 1164, 1167-1168.) The modified instruction used in
Villatoro explained to the jury that “if it decided that defendant had committed a charged
sex offense, ‘from that evidence’ it could conclude that defendant had a disposition to
commit the other charged sex offenses, and that based on that decision, the jury could
also conclude that defendant was likely to and did commit the other charged sex
offenses.” (Id. at pp. 1165, 1167.) After Villatoro was decided, CALCRIM No. 1191
was modified to distinguish uncharged sex offenses from charged sex offenses as
propensity evidence, and now includes language similar to the instruction given in the
Villatoro trial. (See Villatoro, at p. 1167; CALCRIM No. 1191A; CALCRIM No.
1191B.)11 The Villatoro court held that the instruction properly implemented Evidence
Code section 1108 and did not impermissibly lower the standard of proof or otherwise
interfere with the presumption of innocence. (Villatoro, at pp. 1164-1165, 1168.)
In view of Villatoro, which we must follow, the trial court did not err in
instructing the jury pursuant to CALCRIM No. 1191B. (See People v. Meneses (2019)
11 In 2017, the Judicial Council revised CALCRIM No. 1191 and split it into two
instructions to distinguish between uncharged offenses offered as propensity evidence
(CALCRIM No. 1191A) and charged offenses offered for that purpose (CALCRIM No.
1191B). (People v. Gonzales (2017) 16 Cal.App.5th 494, 496, fn. 1.)
45
41 Cal.App.5th 63, 68; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
We reject defendant’s contention that the permissive inference in CALCRIM No.
1191B should not apply where, as here, the “other charged offenses” include an element
that must be proved in addition to the proscribed sexual act (e.g., force element). While it
is true, as defendant argues, that a person’s disposition or inclination to commit sex
offenses is of no assistance to the jury’s determination as to whether an additional
required element has been proven (e.g., whether force was used), CALCRIM No. 1191B
specifically instructs the jurors that if they find that the defendant committed one or more
of the charged crimes, that conclusion is not sufficient by itself to prove defendant was
guilty of another crime; the People must still prove each charge beyond a reasonable
doubt. (See CALCRIM No. 1191B.)
D. Limiting Instruction
Next, defendant contends the trial court gave the jury an erroneous limiting
instruction regarding the evidence adduced at trial concerning JD3’s father, J.C. The
challenged instruction advised the jury that the evidence presented at trial about J.C.
(including JD3’s claim that he was molested by J.C.) could only be considered for the
limited purpose of evaluating the bias, interest, motives, and credibility of JD3 (and
others), and that the evidence could not be considered for any other purpose, including to
show that defendant committed any of the charged crimes.
Defendant initially argues that reversal is required because the limiting instruction
did not advise the jury that JD3’s allegation of molestation against J.C. could not be
considered for the truth of the matter asserted, which permitted the jury to conclude that
JD3’s credibility in accusing defendant of molesting him was bolstered by the fact that
defendant’s identical twin (J.C.) committed a similar offense on a different occasion.
According to defendant, the jurors were allowed to treat JD3’s accusation of molestation
46
against J.C. as true and infer that defendant had a genetic propensity to commit the
charged offenses because J.C. was guilty of molesting JD3. We reject this claim.
“We ‘credit jurors with intelligence and common sense’ [citation] and presume
they generally understand and follow instructions.” (McKinnon, supra, 52 Cal.4th at
p. 670; see People v. Guerra, supra, 37 Cal.4th at p. 1115 [we presume jurors follow
limiting instructions].) We find it highly unlikely the jury misinterpreted and misapplied
the limiting instruction in the manner defendant suggests. The challenged instruction
specifically told the jury that the evidence concerning J.C. could not be used to show that
defendant was guilty of the charged crimes. The jury was advised that the evidence as to
J.C. was only to be considered in evaluating the bias, interests, motives, and credibility of
JD3, among others.
To the extent defendant complains that the limiting instruction improperly
permitted the jury to use the evidence concerning J.C. to evaluate the bias, interests,
motives, and credibility of witnesses other than JD3, we discern no basis for reversal.
Even assuming the instruction was incorrect in this respect, we fail to see how defendant
was prejudiced. As we have repeatedly stated, the outcome of this case hinged on
whether the jury believed the John Does. The evidence adduced at trial regarding J.C.
was limited; it only consisted of JD3’s testimony on redirect examination explaining why
he “hated” J.C., which included JD3’s claim that J.C. molested him. The testimony
spanned one page of the reporter’s transcript. It was only relevant to a collateral
credibility issue (i.e., JD3’s credibility) and had no direct bearing on any contested issue,
including whether defendant molested JD3. The prosecutor did not discuss the evidence
about J.C. in closing argument, and the jury was specifically instructed that some of the
trial court’s instructions may not apply. (CALCRIM No. 200.) On this record, we are
convinced that any instructional error was harmless.
47
V
Ineffective Assistance of Counsel
Defendant raises two claims of ineffective assistance of counsel, with which we
disagree, as we next explain.
A. Generally Applicable Legal Principles
“ ‘In assessing claims of ineffective assistance of trial counsel, we consider
whether counsel’s representation fell below an objective standard of reasonableness
under prevailing professional norms and whether the defendant suffered prejudice to a
reasonable probability, that is, a probability sufficient to undermine confidence in the
outcome.’ ” (People v. Carter (2005) 36 Cal.4th 1114, 1189 (Carter).) “ ‘Prejudice is
shown when there is a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” ’ ” (In re Avena (1996)
12 Cal.4th 694, 721.) “When a defendant challenges a conviction, the question is
whether there is a reasonable probability that, absent the errors, the factfinder would have
had a reasonable doubt respecting guilt.” (Strickland v. Washington (1984) 466 U.S. 668,
695 (Strickland).)
Defendant bears the burden of establishing inadequate assistance of counsel.
(People v. Ledesma (1987) 43 Cal.3d 171, 216-217) “[A] court need not determine
whether counsel’s performance was deficient before examining the prejudice suffered by
the defendant as a result of the alleged deficiencies. . . . . If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should
be followed.” (Strickland, supra, 466 U.S. at p. 697.)
B. Closing Argument Regarding Count Nine--Lewd and Lascivious Act Upon JD3
Defendant initially contends that his trial counsel was ineffective in closing
argument by failing to (1) object or otherwise inform the jury that the prosecutor
erroneously stated the age requirement on count nine was satisfied by proof that JD3 was
48
under 15 years of age at the time of the offense, and (2) argue that the evidence showed
JD3 was 14 years old at the time of the offense.
1. Additional Background
Prior to deliberations, the jury was instructed orally and in writing on the elements
of count nine, which charged defendant with committing a lewd and lascivious act upon
JD3 when JD3 was under the age of 14 years in violation of section 288, subdivision (a).
While discussing count one in closing argument, the prosecutor told the jurors to
“always” rely on the law as given to them by the trial court because she “might misstate
something,” and to “always” refer to the jury instructions if she “state[d] anything
differently.” Later, the prosecutor advised the jury that count nine (lewd and lascivious
act) involved JD3 and required, among other things, a finding that JD3 was under the age
of 14 at the time of the offense. Immediately thereafter, the prosecutor emphasized that
the “biggest fight” on this count was going to be whether JD3 was “under the age of 14.”
After the prosecutor discussed the other elements of the offense, she returned to the age
requirement, noting that the “fight” as to this count is “primarily over the age” of JD3.
She pointed out that there was evidence that JD3’s family moved out of their home in
November 2014, that there were some “discrepancies” as to how quickly JD3’s family
moved in with defendant’s family thereafter, and that JD3’s mother testified that her
family did not have the financial means to live in hotels for a year. The prosecutor then
made the following challenged remarks: “So [JD3] originally disclosed that this
happened [(i.e., the molestation)] when he was in 6th grade, which would have made him
12 to 13 years old. That’s what he said at the time of his interview. And then he testified
on the stand he was either 13 or 14 years old. [¶] So in order for the Defendant to be
guilty of this crime, you have to [find] that the Defendant committed the crime before
[JD3] turned 15. So that’s why it takes you to the day before his birthday. So it’s June
6th, 2015, is the last day he is 14. So you would all have to agree that this crime was
49
committed sometime between when [his family] moved in [with defendant’s family] in
2014 before his 15th birthday. (Italics added.)
Defense counsel did not object to the prosecutor’s references to JD3’s 15th
birthday.
During defense counsel’s closing argument on count nine, he initially focused on
the timing of JD3’s disclosure of molestation and argued that JD3 was a liar who had a
motive to get even with defendant for, among other things, the flyers defendant posted at
his school. As for the age requirement, defense counsel noted that JD3’s family was
evicted from their home in November 2014 and that the family became homeless for a
period of time. Defense counsel then stated: “It’s either a year or six months or
something along those lines before they move into [defendant’s home]. And that just
gets to the issue that [the prosecutor] was talking about, how old would . . . [JD3 have]
been. His date of birth is . . . June of 2001. So you guys can work that out.”
2. Analysis
“Advocates are given significant leeway in discussing the legal and factual merits
of a case during argument. [Citation.] However, ‘it is improper for the prosecutor to
misstate the law generally [citation], and particularly to attempt to absolve the
prosecution from its . . . obligation to overcome reasonable doubt on all elements
[citation].’ ” (People v. Centeno (2014) 60 Cal.4th 659, 666 (Centeno).)
“When attacking the prosecutor’s remarks to the jury, the defendant must show
that, ‘[i]n the context of the whole argument and the instructions’ [citation], there was ‘a
reasonable likelihood the jury understood or applied the complained-of comments in an
improper or erroneous manner. [Citations.] In conducting this inquiry, we “do not
lightly infer” that the jury drew the most damaging rather than the least damaging
meaning from the prosecutor’s statements.’ ” (Centeno, supra, 60 Cal.4th at p. 667.)
We see no prejudice. The record reflects that the testimony adduced at trial and
the prosecutor’s closing argument as to count nine focused on the age requirement;
50
specifically, whether JD3 was under 14 years of age at the time of the offense. As we
have just described, during closing arguments the prosecutor advised the jurors to rely on
the court’s instructions over her argument and initially explained correctly that a guilty
verdict on count nine would require a finding that JD3 was under the age of 14 and
emphasized that was a finding at issue. While the prosecutor erroneously concluded her
remarks on this count by telling the jurors that they must decide whether the offense
occurred before JD3 turned 15--rather than 14--years old, we cannot conclude that
defendant suffered prejudice. (People v. Carter, supra, 36 Cal.4th at p. 1189.) As the
prosecutor correctly highlighted for the jury, the question was whether the molestation
occurred before JD3’s birthday in June 2015. We do not agree with defendant’s
argument that it is reasonably probable that, but for defense counsel’s failure to object to
the prosecutor’s misstatements regarding the age requirement for count nine, the jury
would have harbored a reasonable doubt respecting defendant’s guilt on that count.
(Strickland, supra, 466 U.S. at p. 695.) The prosecutor’s misstatements about the law
were brief and came after she told the jury to follow the law as stated in the instructions
even if she said otherwise, and emphasized that count nine required a finding that JD3
was under 14 years old. The jury was instructed orally and in writing that a guilty verdict
on count nine required a finding that JD3 was under the age of 14 years when the offense
occurred, and that if “the attorneys’ comments on the law conflict with the Court’s
instructions, you must follow the Court’s instructions.” We presume the jurors
understood and followed these instructions. (Chism, supra, 58 Cal.4th at p. 1299;
McKinnon, supra, 52 Cal.4th at p. 670.) Under the circumstances presented, we are
convinced that defense counsel’s failure to object to the prosecutor’s misstatements of
law or point out her errors in closing argument did not prejudice defendant.
Equally without merit is defendant’s contention that reversal is required because
defense counsel failed to highlight the evidence supporting a finding that JD3 was 14
years old at the time of the offense charged in count nine. Because the evidence
51
supporting that finding was relatively weak compared to the evidence supporting a
finding that the age requirement was satisfied, we cannot say that it is reasonably
probable that, but for defense counsel’s alleged deficient performance, the jury would
have had a reasonable doubt respecting guilt on count nine. (Strickland, supra, 466 U.S.
at p. 695.)
C. Beyond a Reasonable Doubt Standard
Next, defendant contends his trial counsel was ineffective for failing to object
when the prosecutor mischaracterized the standard of proof in rebuttal closing argument.
1. Additional Background
Prior to closing argument, the trial court orally instructed the jury pursuant to
CALCRIM No. 220. The jury was told that defendant was presumed innocent and that
this presumption required the prosecution to prove defendant was guilty of the charges
beyond a reasonable doubt. The court gave the jury the standard definition of reasonable
doubt: “Proof beyond a reasonable doubt is proof that leaves you with an abiding
conviction that the charge is true. The evidence need not eliminate all possible doubt
because everything in life is open to some possible or imaginary doubt.”
At the outset of his closing argument, defense counsel reminded the jury of the
presumption of innocence and that the prosecution had the burden to prove the charges
beyond a reasonable doubt. Defense counsel also read the standard definition of
reasonable doubt as set forth in CALCRIM No. 220.
In rebuttal closing argument, the prosecutor urged the jury to refer to the
instruction on reasonable doubt and then read the standard definition of reasonable doubt
as set forth in CALCRIM No. 220. Immediately thereafter, the prosecutor concluded her
remarks to the jury by stating as follows: “The law takes into account that we are human.
How many times have we gone to dinner with our family, family events and maybe even
the next day, the next week, the next month, you sit there and say, Did I hear that right?
Did I see that right? Because we are normal thinking human beings, and those are our
52
own ways. [¶] So, ladies and gentlemen, an abiding conviction of the truth of the charge
simply boils down to this: You believe the charges against the Defendant are true and
that the People have met their burden of proof, and if you do, find the Defendant guilty.
[¶] Thank you.” (Italics added.)
2. Applicable Legal Principles
“Under the due process clauses of the Fifth and Fourteenth Amendments, the
prosecution must prove a defendant’s guilt of a criminal offense beyond a reasonable
doubt, and a trial court must so inform the jury.” (People v. Aranda (2012) 55 Cal.4th
342, 356.)
Proof beyond a reasonable doubt requires “a subjective state of near certitude”
about the accused’s guilt. (Jackson v. Virginia (1979) 443 U.S. 307, 315.) California
law defines reasonable doubt as follows: “ ‘It is not a mere possible doubt; because
everything relating to human affairs is open to some possible or imaginary doubt. It is
that state of the case, which, after the entire comparison and consideration of all the
evidence, leaves the minds of jurors in that condition that they cannot say they feel an
abiding conviction of the truth of the charge.’ ” (§ 1096.)
CALCRIM No. 220 describes proof beyond a reasonable doubt as “proof that
leaves you with an abiding conviction that the charge is true. The evidence need not
eliminate all possible doubt because everything in life is open to some possible or
imaginary doubt.” In People v. Zepeda (2008) 167 Cal.App.4th 25, a panel of this court
explained that “[t]he modifier ‘abiding’ informs the juror his conviction of guilt must be
more than a strong and convincing belief. Use of the term ‘abiding’ tells the juror his
conviction must be of a ‘lasting, permanent nature,’ it informs him ‘as to how strongly
and deeply his conviction must be held.’ ” (Id. at pp. 30-31 [finding the “phrase, ‘proof
that leaves you with an abiding conviction that the charge is true,’ unmistakably conveys
the conviction’s subjective nature and the very high level of certainty required”].)
53
“The United States Supreme Court and the California Supreme Court,
respectively, have described ‘an abiding conviction’ as one that is ‘settled and fixed’
[citation] and one that is ‘lasting [and] permanent’ [citation].” (People v. Pierce (2009)
172 Cal.App.4th 567, 573.)
3. Analysis
We conclude that defendant’s trial counsel was not ineffective. The prosecutor
did not mischaracterize the reasonable doubt standard or otherwise misstate the law in
rebuttal closing argument as to the burden of proof. Instead, the prosecutor correctly
defined the reasonable doubt standard and urged the jury to find defendant guilty if it
believed the charges were true and the prosecution met its burden of proof, that is, proved
the charges beyond a reasonable doubt, which requires the jurors to have an abiding
conviction that the charges are true. (CALCRIM No. 220.) Because there was no
misstatement of the law warranting a defense objection, defense counsel’s performance
was not deficient. (People v. Lucero (2000) 23 Cal.4th 692, 732.)
Defendant’s reliance on Centeno, a case involving child sexual abuse, is
misplaced. In Centeno, the prosecutor misled the jury on the burden of proof in two
ways, only the second of which is arguably relevant here. (Centeno, supra, 60 Cal.4th at
pp. 665-666, 669-673.) As for the second way, the prosecutor in Centeno told the jury
that its decision had to be based on reason and that it needed to “look at the entire
picture” to determine if the case had been proved beyond a reasonable doubt. (Id. at
p. 671.) The prosecutor asked whether it was reasonable to believe that the child victim
lied or that defendant abused her, and the prosecutor repeatedly indicated it was
reasonable to believe defendant abused the child. (Id. at pp. 671-672.) The Centeno
court concluded that many portions of the prosecutor’s argument were unobjectionable,
but ultimately reversed after finding that the argument “strongly implied that the People’s
burden was met if its theory was ‘reasonable’ in light of the facts supporting it.” (Id. at
pp. 671-672, 678.) Here, in contrast to Centeno, the prosecutor did not imply, much less
54
“strongly” imply, that the jury should convict defendant if it was more reasonable to
believe him guilty than not. Nor did the prosecutor suggest the jury could find defendant
guilty based on a “ ‘reasonable’ account of the evidence.” (Id. at p. 673.) Moreover, the
facts of this case are nothing like Centeno. In our view, the present case, unlike Centeno,
cannot accurately be characterized as a “very close case.” (See id. at p. 677 [explaining
why the case was very close].)
VI
Alleged Sentencing Errors
Defendant makes several claims of sentencing error; as we shall explain, we find
merit in one of these claims. We will modify the judgment to correct the error.
A. Failure to Stay Sentence on Count Three--Lewd and Lascivious Act Upon JD1
Defendant was convicted of committing three sex offenses against JD1: sodomy
(count one), oral copulation (count two), and lewd and lascivious act (count three). On
appeal, defendant contends the imposition of sentence on count three violated section
654’s proscription against multiple punishment. He argues count three was based on the
same conduct as counts one and two, and the trial court’s failure to stay sentence on
count three violated his constitutional rights under the due process and double jeopardy
clauses of the United States Constitution. He adds that principles of estoppel barred the
prosecution from arguing at sentencing that count three should not be stayed under
section 654. Finally, he argues that there is no evidence in the record to support a
separate sentence on count three. We reject these arguments.
1. Additional Background
At the preliminary hearing, a detective who watched and listened to JD1’s forensic
interview testified about two incidents of oral copulation and two incidents of sodomy
involving defendant and JD1 during the 2017 Thanksgiving holiday. Thereafter, the
parties stipulated to the admission of JD1’s entire forensic interview for the trial court’s
review and consideration.
55
In requesting a holding order for the counts involving JD1, the prosecutor told the
trial court that her intent was that count three (lewd and lascivious act) was “section 654”
to counts one (sodomy) and two (oral copulation). When asked by the trial court, the
prosecutor acknowledged that she was “conceding” that count three was “654” as to
counts one and two. Shortly thereafter, the court noted that section 654 issues do not
impact the preliminary hearing (i.e., whether a holding order should be issued as to
particular counts), as the application of section 654 is a sentencing issue. At the
conclusion of the preliminary hearing, the court held defendant to answer on all counts.
As to the counts involving JD1, the court found credible the statements he made in his
forensic interview describing defendant’s molestation.
In her opening statement, the prosecutor told the jury that the evidence would
show that defendant orally copulated JD1 once and sodomized him twice during the 2017
Thanksgiving day holiday. The prosecutor did not state that the acts giving rise to counts
one (sodomy) and two (oral copulation) provided the factual basis for count three (lewd
and lascivious act).
As detailed ante, there was evidence presented at trial supporting counts one and
two, as well as additional evidence supporting count three; specifically, evidence
supporting the conclusion that defendant committed a separate and additional lewd and
lascivious act upon JD1 during the 2017 Thanksgiving holiday.
Prior to closing argument, the trial court orally instructed the jury on the unanimity
requirement pursuant to the modified unanimity instruction, CALCRIM No. 3501, which
is required when, as here, there are multiple acts that could support a single charge.
(People v. Russo (2001) 25 Cal.4th 1124, 1132; People v. Fernandez (2013)
216 Cal.App.4th 540, 555-556 (Fernandez).) The jury was instructed that the
prosecution had presented evidence of more than one act to prove defendant committed
count three (lewd and lascivious act), and that the jury could not find defendant guilty
unless they unanimously agreed either that (1) the prosecution had proved that defendant
56
“committed at least one of these acts and you all agree on which act he committed for
each offense,” or (2) the prosecution had proved that defendant “committed all the
alleged acts to have occurred during this time period” (i.e., the 2017 Thanksgiving
holiday) and had also proved that defendant “committed at least [the] number of offenses
charged.” (See CALCRIM No. 3501.)
The jury was also instructed with a modified version of CALCRIM No. 3502,
which is required when, as here, the prosecution elects a specific factual basis for a
charged offense and there is evidence of multiple criminal acts. (People v. Melhado
(1998) 60 Cal.App.4th 1529, 1534-1536.) The instructed stated: “You must not find the
[d]efendant guilty of any of the charged counts unless you all agree that the People have
proved specifically that the [d]efendant committed the offense connected to each count.
[¶] . . . [¶] The [p]rosecution alleges that Count 1 . . . relates to an alleged sodomy, and
Count 2 relates to an alleged oral copulation perpetrated by the [d]efendant against [JD1
during the 2017 Thanksgiving holiday]. [¶] The [p]rosecution alleges that Count 3
relates to alleged lewd conduct perpetrated by the [d]efendant against [JD1] during this
same time frame.”
In closing argument, the prosecutor described the evidence supporting a guilty
verdict on counts one (sodomy) and two (oral copulation). In doing so, the prosecutor
identified specific instances of molestation reported by JD1 in his forensic interview.
Immediately thereafter, the prosecutor explained to the jurors that if they did not find that
there was sufficient evidence to support count one because there was no penetration, they
could still find defendant guilty on count three because defendant touched JD1’s body
with the requisite sexual intent. The prosecutor then stated: “So, for example, a failure
of proof, let’s say on the part of the People for Count 1, would get you potentially to
Count 3, you still being able to find him guilty. [¶] If you found him guilty on Count 1,
you can still find him guilty on Count 3. If you find him guilty on Count 2, the oral
57
copulation, you could still find him guilty on Count 3. You just have to agree which act
qualifies, and you all have to agree beyond a reasonable doubt for Count 3.”
After closing arguments, the jury was given a packet of written instructions, which
included the unanimity instructions described ante. The jury was also given verdict
forms for each count; the verdict form for count three did not identify a specific act that
provided the factual basis for that count. The jury returned guilty verdicts on all counts.
At sentencing, defense counsel argued that sentence should be stayed on count
three under section 654. In support of his position, defense counsel asserted that the lewd
and lascivious act supporting count three was the conduct alleged in count one and count
two. The prosecutor disagreed that a stay of sentence was warranted on count three,
explaining that while the jurors could of have found defendant guilty on that count if
there was “a failure of proof” as to count one or two, “they also could have found him
guilty for any of the touching of [JD1’s] body because . . . it’s any part of the child[’s]
body that is touched with sexual intent,” and there was evidence defendant touched JD1’s
body “independent of penetration or completed oral copulation.”
The trial court implicitly denied defendant’s request to stay sentence on count
three by imposing a consecutive sentence of 15 years to life on that count.
2. Applicable Legal Principles
a. Section 654
At the time of sentencing, former section 654, subdivision (a) provided that “[a]n
act or omission that is punishable in different ways by different provisions of law shall be
punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision.” (Stats. 1997, ch. 410, § 1.)12
12 Assembly Bill No. 518 (2021-2022 Reg. Sess.), effective January 1, 2022, amended
section 654, subdivision (a) to state: “An act or omission that is punishable in different
58
Section 654 “does not prohibit the imposition of multiple punishment for separate
sexual offenses committed during a continuous attack, ‘even where closely connected in
time.’ ” (People v. Hicks (1993) 6 Cal.4th 784, 788, fn. 4.) However, a defendant cannot
be separately punished for a lewd act “under section 288 and another applicable statute
for the same criminal act.” (People v. Scott (1994) 9 Cal.4th 331, 344, fn. 6, italics
added.) Thus, although a single act may give rise to multiple convictions under different
statutes, a single act may not give rise to multiple punishments. (See People v. Correa
(2012) 54 Cal.4th 331, 336.) “[W]hen a court determines that a conviction falls within
the meaning of section 654, it is necessary to impose sentence but to stay the execution of
the duplicative sentence.” (People v. Duff (2010) 50 Cal.4th 787, 796, italics omitted.)
Whether section 654 applies in a given case is a factual question for the trial court,
and its findings (explicit or implicit) must be upheld on appeal if there is any substantial
evidence to support them. (People v. Cruz (2020) 46 Cal.App.5th 715, 737; People v.
Jones (2002) 103 Cal.App.4th 1139, 1143.) In conducting our review, we view the
evidence in the light most favorable to the trial court’s findings and presume the
existence of every fact the trier could reasonably deduce from the evidence. (Jones, at
p. 1143.)
b. Unanimity Requirement
“In a criminal case, a jury verdict must be unanimous,” and “the jury must agree
unanimously the defendant is guilty of a specific crime.” (People v. Russo, supra,
25 Cal.4th at p. 1132.) “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.” (Ibid.) “ ‘The prosecution
can make an election by “tying each specific count to specific criminal acts elicited from
ways by different provisions of law may be punished under either of such provisions, but
in no case shall the act or omission be punished under more than one provision.”
59
the victims’ testimony”—typically in opening statement and/or closing argument.
[Citations.] [¶] Under these principles, there is an implicit presumption that the jury will
rely on the prosecution’s election and, indeed, is bound by it.’ ” (People v. Brugman
(2021) 62 Cal.App.5th 608, 627.) “If the prosecution is to communicate an election to
the jury, its statement must be made with as much clarity and directness as would a judge
in giving instruction. The record must show that by virtue of the prosecutor’s statement,
the jurors were informed of their duty to render a unanimous decision as to a particular
unlawful act.” (People v. Melhado, supra, 60 Cal.App.4th at p. 1539; see Brugman, at
p. 629 [direct and clear statement by prosecutor in closing argument qualifies as an
effective election].)
CALCRIM No. 3501 is an alternative instruction to the standard unanimity
instruction, CALCRIM No. 3500. (Fernandez, supra, 216 Cal.App.4th at p. 556.)
“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].’ ” (Fernandez, at p. 556.)
“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 in focusing the jury’s attention
on each such act related by the victim and charged by the People. [There is] 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
60
satisfied.’ [Citation.] 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 counts, and (3) the general time period in which the acts occurred.”
(Fernandez, supra, 216 Cal.App.4th at pp. 556-557.)
3. Analysis
We see no sentencing error. In arguing that sentence on count three (lewd and
lascivious act) should have been stayed under section 654, defendant relies in part on
People v. Siko (1988) 45 Cal.3d 820 (Siko). “Siko is . . . authority that where there is a
basis for identifying the specific factual basis for a verdict, a trial court cannot find
otherwise in applying section 654.” (People v. McCoy (2012) 208 Cal.App.4th 1333,
1339, italics added.) However, “in the absence of some circumstance ‘foreclosing’ its
sentencing discretion (as in Siko . . .), a trial court may base its decision under section 654
on any of the facts that are in evidence at trial, without regard to the verdicts.” (McCoy,
at p. 1340.)
The Siko court concluded that the trial court erred when it did not stay sentence on
a lewd act conviction where “the charging instrument and the verdict both identif[ied] the
lewd conduct as consisting of the rape and sodomy rather than any other act. Nor did
anything in the prosecutor’s closing argument or in the court’s instructions suggest any
different emphasis.” (Siko, supra, 45 Cal.3d at p. 826.) In Siko, the Attorney General
argued on appeal there was evidence of other conduct that could support the lewd act
conviction, because the defendant had separately twisted a handkerchief around the
victim’s neck and undressed her. (Id. at p. 825.) But the “claim [was] untenable”
because “[t]here [was] no showing that the lewd-conduct count was understood in this
fashion at trial” and a “review of the record demonstrate[d] the contrary.” (Id. at pp. 825-
826.)
We find Siko to be distinguishable. Here, in contrast to Siko, there was no
language in the charging document or verdict form that narrowed the court’s discretion
61
on count three. The charging document did not base the lewd and lascivious act charged
in count three on the sodomy or the oral copulation that provided the basis for counts one
and two, respectively. Nor did the prosecutor elect in opening statement to base count
three on the acts providing the basis for counts one and two. Further, neither the
prosecutor’s closing argument nor the jury instructions suggested that the acts providing
the factual basis for counts one and two were the only acts that could provide the factual
basis for the lewd and lascivious act supporting count three. And the verdict form for
count three did not identify the specific factual basis for that count. In short, because the
prosecutor did not elect to prove count three on the limited basis identified by defendant,
and because nothing else in the record reveals on which act the jury relied in finding
defendant guilty on count three, there were no circumstances foreclosing the trial court
from exercising its discretion to consider all the evidence adduced at trial to make its
sentencing decision under section 654.
We find no merit in defendant’s contention that there is insufficient evidence to
support the trial court’s implied finding that his conviction on count three does not fall
within the meaning of section 654. During JD1’s forensic interview, he stated that
defendant orally copulated and sodomized him more than once during the 2017
Thanksgiving holiday. In addition, JD2 testified about a separate incident that occurred
during the same time period where he saw JD1 “sucking [defendant’s] dick” and
defendant “sucking [JD1’s] dick.” JD2 also saw defendant sodomizing JD1. Contrary to
defendant’s suggestion, the trial court’s determination as to the applicability of section
654 was not limited to the prosecutor’s theory at sentencing that “there was evidence of
touching [JD1’s] body independent of penetration [i.e., sodomy] or completed oral
copulation.” (People v. Leonard (2014) 228 Cal.App.4th 465, 500 [trial court not bound
by prosecutor’s statements during closing argument when making section 654
decisions].)
62
Equally without merit is defendant’s contention that the trial court erred in failing
to stay sentence on count three because the prosecution elected to charge count three as
duplicative of counts one and two. In making this argument, defendant relies on
statements the prosecutor made during the preliminary hearing; specifically, the
prosecutor’s comment that it was her intent that count three would “654” to counts one
and two, and her concession, when asked by the trial court, to the same In defendant’s
view, these statements constitute a “deliberative prosecutorial charging decision to charge
Count 3 as duplicative of Counts 1 and 2, rather than as an additional offense based on
any additional lewd touching.” However, the charging document was never amended to
reflect this understanding, the prosecutor did not make an election in opening statement
to base count three solely on acts giving rise to counts one and two, the jury was not
instructed that the only acts supporting count three were the specific acts alleged in
support of counts one and two, and, as we have discussed, the prosecution did not elect in
closing argument to treat count three as solely based on the same conduct that supported
counts one and two. Defendant, for his part, has not cited any authority persuading us
that reversal is required under the circumstance presented.
Nor has defendant shown that the double jeopardy clause has been violated
because he received multiple punishment for the same offense (People v. Anderson
(2009) 47 Cal.4th 92, 103-104), or that reversal is required under principles of judicial,
equitable, or promissory estoppel. Defendant forfeited his estoppel arguments by failing
to raise them in the trial court. (People v. Case, supra, 5 Cal.5th at p. 44; In re Campbell,
supra, 11 Cal.App.5th at pp. 756-757.)13 In any event, we have considered each of the
estoppel doctrines relied on by defendant and find that none of them apply.
13 For this same reason, we reject defendant’s judicial admission argument, which also
fails on the merits. Defendant cites no authority for the argument that a prosecutor can
63
Finally, we are unpersuaded by defendant’s contention that his due process rights
were violated because he did not receive effective notice of the prosecutor’s claim that
count three was an independent offense. Notice of the specific charges is among the
constitutional rights of every accused in a criminal proceeding. (People v. Anderson
(2020) 9 Cal.5th 946, 953 [due process requires that a criminal defendant be given fair
notice of the charges so he may have a reasonable opportunity to prepare a defense and
avoid unfair surprise at trial].) “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. [Citation.] 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.’ [Citation.] 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.” ’ ” (Fernandez, supra, 216 Cal.App.4th at
pp. 554-555; see People v. Jeff (1988) 204 Cal.App.3d 309, 342 [while the information
tells the defendant what kinds of offenses he is charged with, the time, place, and
circumstances of the charged offenses are left to the preliminary hearing transcript, which
is “the touchstone of due process notice to a defendant”].)
As we have discussed, in addition to the detective’s testimony at the preliminary
hearing describing the basis for the counts involving JD1, the parties stipulated that JD1’s
make a judicial admission at the preliminary hearing that is binding on the trial court at
sentencing with respect to the application of section 654.
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entire forensic interview could be considered as evidence supporting these counts.
During his forensic interview, JD1 described conduct on the part of defendant that was
sufficient to put defendant on notice that there was a factual basis for count three that was
independent of the factual basis supporting counts one and two. Thus, there was no due
process violation. (People v. Jeff, supra, 204 Cal.App.3d at p. 342 [“So long as the
evidence presented at the preliminary hearing supports the number of offenses charged
against defendant and covers the timeframe(s) charged in the information, a defendant
has all the notice the Constitution requires”].)14
B. Sentence on Count Eight--Attempted Oral Copulation of JD2
Next, defendant contends that his conviction on count eight (attempted oral
copulation of JD2) must be reversed because it was based on the same act as count six
(oral copulation of JD2). In the alternative, he argues that his sentence on count eight
must be stayed under section 654. We disagree.
1. Additional Background
Defendant was charged in count five with oral copulation of an unconscious
person (JD2) (former § 288a, subd. (f) [now § 287, subd. (f)]), in count six with oral
copulation of a person under 16 years of age (JD2) when he was over 21 years of age
(former § 288a, subd. (b)(2) [now § 287, subd. (b)(2)]), and in count eight with attempted
oral copulation of a person under 16 years of age (JD2) when he was 21 years of age
(§ 664; former § 288a, subd. (b)(2) [now § 287, subd. (b)(2)]). The record reflects that
the factual basis for counts five and six was the incident where defendant pulled JD2’s
pants down using his fingernails while JD2 was asleep. At trial, JD2 testified about
numerous instances of molestation that occurred at defendant’s home in Grass Valley,
14 In light of our determination that defendant’s due process claim fails on the merits, we
need not and do not consider the Attorney General’s forfeiture argument.
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including the incident we just described and an additional separate incident where
defendant “tried to pull [his] pants down and tried to suck [his] dick and stuff like that.”
Prior to deliberations, the jury was instructed with a modified version of the
unanimity instruction set forth in CALCRIM No. 3502, which stated: “You must not find
the defendant guilty of any of the charged counts unless you all agree that the People
have proved specifically that the defendant committed the offense connected to each
count. [¶] . . . [¶] The prosecution alleges that Counts 4 to 8 relate to crimes allegedly
perpetrated by the defendant against [JD2], between November 26, 2017 and April 19,
2018 at . . . Grass Valley, Nevada County, California. Count 4 alleges an act of forced
oral copulation; Count 5 alleges an act of oral copulation while [JD2] was unconscious;
Count 6 alleges an act of oral copulation against [JD2], a person under 16 based upon
the same circumstances as Count 5; Count 7 alleges an attempted sodomy against [JD2];
Count 8 alleges a separate act of attempted oral copulation against [JD2].” (Italics
added.)
During closing argument, the prosecutor erroneously told the jury that the factual
basis for count eight was the incident where defendant “tried to suck [JD2’s] dick” after
defendant used his “nails” to pull JD2’s pants down.
The jury returned guilty verdicts on counts five, six, and eight. The trial court
imposed a consecutive sentence of four months on count eight.
2. Analysis
We see no basis for reversal. The trial court gave a unanimity instruction as to the
counts involving JD2. As relevant here, the jury was specifically instructed that counts
five and six were based on the incident where defendant orally copulated JD2 while JD2
was allegedly unconscious, that is, the incident in which defendant used his fingernails to
pull JD2’s pants down while JD2 was asleep. Notably, both counts five and six, which
the jury was told involved the same circumstances, alleged a completed act of oral
copulation, with count five requiring an additional finding of unconsciousness. As for
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count eight, the jury was instructed that it involved a separate act of attempted oral
copulation. In finding defendant guilty on counts five and six, the jury necessarily found
that he orally copulated JD2 while JD2 was unconscious. As such, the jury’s verdict on
count eight, contrary to defendant’s contention, was not based on the same act giving rise
to counts five and six.
We are unpersuaded by defendant’s contention that the prosecutor’s remarks to the
jury constituted a binding election to treat count eight as based on the same circumstances
as counts five and six. The jury was given a unanimity instruction expressly stating
otherwise. And a prosecutor’s statements in closing argument are not evidence and they
are not binding on the jury or the court. (People v. Leonard, supra, 228 Cal.App.4th at
p. 500; see also People v. Perez (1992) 2 Cal.4th 1117, 1126 [“It is elementary . . . that
the prosecutor’s argument is not evidence and the theories suggested are not the exclusive
theories that may be considered by the jury.”].) Indeed, the jury was specifically
instructed that the remarks made by the attorneys in closing argument are not evidence
(CALCRIM No. 222), and that it must disregard the attorneys’ remarks to the extent they
conflict with the jury instructions (CALCRIM No. 200). Defendant cites no authority
supporting the conclusion that a prosecutor may make a binding election in closing
argument that conflicts with a unanimity instruction given by the trial court.
Because we find no merit in defendant’s contention that counts six and eight were
based upon the same act, we reject his related argument that sentence should have been
stayed on count eight under section 654.15
15 We reject defendant’s contention that count eight must be reversed due to insufficient
evidence. As we have discussed, JD2 testified about an incident where defendant “tried
to pull [his] pants down and tried to suck [his] dick and stuff like that.” The testimony of
a single witness is sufficient to support a finding of guilt. (Brown, supra, 59 Cal.4th at
p. 106.) We find unpersuasive defendant’s contention that there was no evidence to
support count eight because the prosecutor elected, in opening statement, to base that
count on specific conduct for which no evidence was presented at trial. At no point in
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C. Sentence on Count Six--Oral Copulation of JD2
Finally, defendant contends, and the Attorney General concedes, that the trial
court erred in imposing and staying a consecutive sentence on count six. We agree.
As noted above, count five charged defendant with oral copulation of an
unconscious person (JD2) (former § 288a, subd. (f) [now § 287, subd. (f)]), and count six
charged defendant with oral copulation of a person under 16 years of age (JD2) when he
was over 21 years of age (former § 288a, subd. (b)(2) [now § 287, subd. (b)(2)]). It
undisputed that these counts were predicated on the same factual basis and the jury was
so instructed. At sentencing, the trial court selected count five as the base term for the
determinate term of defendant’s sentence and imposed an upper term sentence of eight
years. The trial court then imposed an upper term three-year consecutive sentence on
count six but stayed sentence under section 654.
“A sentence cannot be imposed so as to simultaneously run consecutively to
another count and be stayed pursuant to . . . section 654; these are mutually exclusive
options. While it is proper for a court to pronounce judgment in terms of ‘imposing a
term’ and ‘staying punishment,’ it is incorrect to indicate . . . that the sentence . . . runs
‘consecutive,’ as well.’ ” (People v. Toure (2015) 232 Cal.App.4th 1096, 1107; see also
People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164.)
We exercise our inherent authority to correct an unauthorized sentence (People v.
Smith (2001) 24 Cal.4th 849, 852; People v. Turner (2002) 96 Cal.App.4th 1409, 1415-
1416) by modifying the judgment to reflect that the three-year upper term sentence
imposed on count six is stayed pursuant to section 654 and the sentence does not run
opening statement did the prosecutor identify the specific factual basis for count eight.
Rather, the prosecutor discussed what she believed the evidence would show at trial,
without mentioning any specific count and the conduct that formed the factual basis for
that count.
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consecutive to the sentence imposed on count five. Since the abstract of judgment
already reflects the correct sentence as to count six, it need not be modified.
DISPOSITION
The judgment is modified to reflect that the three-year upper term sentence
imposed on count six is stayed pursuant to section 654 and the sentence does not run
consecutive to the sentence imposed on count five. As modified, the judgment is
affirmed.
/s/
Duarte, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Renner, J.
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