People v. Weece CA5

Filed 12/17/20 P. v. Weece CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F077362
Plaintiff and Respondent,
(Super. Ct. No. VCF353288)
v.
JOHN EDWARD WEECE, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A.
Kalashian, Judge.*
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and
Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
*Retired Judge of the Tulare Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
INTRODUCTION
A jury convicted defendant John Edward Weece of multiple counts of sexual
abuse of female minors, including three counts of sex with a child 10 years or younger,
nine counts of oral copulation/penetration with a child under 10, 32 counts of forcible
lewd acts on a child, two counts of lewd acts on a child, and one count of using a minor
for sexual acts. (Pen. Code, §§ 288, 288.7, 311.4.) On appeal, he argues insufficient
evidence supports his convictions. He further contends the court erred in admitting an
out-of-court interview with the youngest complainant; the prosecutor committed
numerous instances of prejudicial misconduct; and the court prejudicially erred in failing
to instruct the jury it could not convict him of any of the charged offenses based upon
uncharged acts evidence (CALCRIM No. 1191A).
We affirm defendant’s convictions.
FACTUAL BACKGROUND
Defendant was charged with 53 counts of sexual abuse.
Prosecution case
Initial disclosure
At trial, Doe 1 testified that, in February 2016, she watched a presentation at
school that discussed abuse, child pornography, and inappropriate touching. The
presenters explained a person could go to jail for having naked pictures of a child.
Doe 1 recalled an incident when defendant forced her to take inappropriate
pictures of her sister, Doe 2, when she was nine years old. They were in defendant’s
shop behind his house and defendant told Doe 2 to take off her clothes; she undressed
from the waist down. Defendant gave Doe 2 a vibrator and told Doe 1 to use his phone to
take pictures of Doe 2 with the vibrator in her vagina. Defendant then deleted the
pictures off his phone. Defendant never touched Doe 1, but she had seen him touching
Doe 2 on her thighs over her clothes.
2.
After the school presentation, Doe 1 got scared and stressed out; she could not eat.
In the evening of February 11, 2016, Doe 1 told her mother, Ms. D., she was not feeling
well. Doe 1 was pale and running a fever. That night, she eventually disclosed to her
mother the incident when defendant forced her take pictures of Doe 2 “‘doing bad
things.’” Ms. D. called her sister, Ms. M., who had a young daughter, Doe 3; Ms. D.
explained what Doe 1 had told her. The next day, Ms. D., Ms. M., and Doe 1 spoke to
Doe 2 while Doe 3 was in another room.
Ms. D. asked Doe 2 if anyone had ever touched her. Doe 1 was crying, and Doe 2
started crying. Doe 2 initially said no, but she eventually admitted defendant had touched
her inappropriately. Ms. M. asked Doe 2 if Doe 3 should be left alone with defendant,
and Doe 2 said no.
Ms. M. then went to speak to Doe 3 in another room. She asked Doe 3 if anyone
had ever made her feel uncomfortable or touched her inappropriately. Doe 3 told her
something happened with defendant that should not have happened. Ms. M. called the
police and Detective Florence Cotton arrived and took over the investigation.
Ms. M. also called defendant’s wife and told her to come to Ms. D.’s house and
said it was about defendant and the girls. According to defendant’s wife, she felt like she
was going to have a heart attack; she understood Ms. M.’s statement to mean something
inappropriate had happened. When defendant’s wife arrived at Ms. D.’s house, a police
officer was there, and Doe 2 was at the table. Defendant’s wife asked Doe 2 if defendant
had touched her inappropriately and Doe 2 started crying.
Detective Cotton spoke to Ms. D., Ms. M., and Doe 2. She prepared a report in
which she documented what Doe 2 told her. She did not speak to eight-year-old Doe 3
because, given Doe 3’s age, Detective Cotton thought it best for her to speak to a forensic
interviewer. Detective Cotton told Ms. M. she would be contacting her to set up an
interview with the child abuse response team (a CART interview).
3.
Defendant’s wife later spoke with Detective Cotton and, in response to
questioning by Detective Cotton, defendant’s wife reported she had a red vibrator.
Defendant’s wife then went back to her house. Defendant was working in Fresno that
day, so he was not at home. Defendant’s wife picked up her clothes, makeup bag, and
$25,000 from their fire safe. She testified she initially planned to only take half of the
money, but Ms. M. advised her not to leave it because defendant’s wife would need it.
Defendant’s wife put the money in a bank account; defendant closed their other accounts.
Four days later, defendant’s wife called a lawyer because she was not going to “be
married to somebody that had done something like that.”
Doe 2’s reports of abuse
At trial, Doe 2 testified defendant would touch and squeeze her breasts and had
put his hands down her pants and touched her vagina more than five times. He touched
her for the first time when she was nine years old. When Doe 2 was approximately 10
years old, she, Doe 1, and their mother lived with defendant and his wife while their
house was under construction.
Doe 2 recalled an instance when defendant touched her vagina over her clothes
when she and Doe 1 were wrestling with him. She specifically recalled more than once
that she and defendant “would go to Lowe’s [or Home Depot]; and on [their] way back,
he would pull over by a dirt bike track and [digitally penetrate her vagina] while he
masturbated.” She remembered an incident when she and Doe 1 stayed with defendant
while their mother and defendant’s wife were on a trip to Arizona. According to Doe 2,
defendant watched her take a shower and then asked her to dance naked for him. He also
asked her to lay in his bed and he digitally penetrated her vagina while masturbating; then
he inserted his penis in her vagina. Doe 2 testified most of the touching occurred when
she was nine and 10 years old and she believed the touching stopped when she was a
freshman in high school. She recalled an instance when defendant had a jobsite near Los
4.
Angeles and she went with him; they were on their way back when defendant pulled
over, pulled her pants down, and touched her while he masturbated. She also recalled
instances when defendant would rub her thigh.
Doe 3’s reports of abuse
Doe 3’s first CART interview occurred on February 17, 2016, five days after her
initial disclosure. The prosecutor played the first CART interview for the jury.
A few months later, in May 2016, Ms. M. contacted Detective Cotton because Doe
3 had additional information to disclose. Detective Cotton contacted Doe 3 for a follow-
up interview on May 13, 2016. Doe 3 reported to Detective Cotton that she had a
conversation with her mother that triggered her memory regarding approximately five
times when defendant put his hand down her pants and he digitally penetrated her. Doe 3
also reported defendant grabbed her hand and forced it on his penis three or four times.
She recalled that defendant forced her mouth on his “private” at the shop at least three
times; she had not previously reported this. One time, Doe 3 bit defendant and he got
upset and did not speak to her for the rest of the day. In one incident while defendant’s
penis was in her mouth, a white fluid came into Doe 3’s mouth while defendant’s eyes
rolled back. Doe 3 reported that, three or four weeks before her initial disclosure, she
was at defendant’s shop with defendant and his wife when his wife left to go to the store.
Doe 3 had to stay back with defendant, and he pulled down her shorts and began licking
her “pussy.” She had scratches from defendant pulling her pants down and bruises on her
inner thighs. Doe 3 drew a picture of defendant’s penis that day with two scars on it.
A year later, in May 2017, there was an incident at Doe 3’s school that caused
Ms. M. to contact law enforcement again and take Doe 3 in for an additional interview.
An additional CART interview was conducted on June 7, 2017, and investigator Khoua
Lopez observed the interview from another room. The prosecutor played a video of the
second CART interview for the jury.
5.
At trial, Doe 3 was 10 years old and in the fifth grade. She testified she had
known defendant since she was very young and would spend time with him and his wife
when she went to their house. Doe 3 would go to the shop of defendant and his wife after
school almost every day and then go to their house until Ms. M. got off work. Doe 3
testified she enjoyed spending time with defendant. He would buy her candy and sodas
and once bought her a teddy bear. Doe 3 used to consider defendant one of her best
friends, but now she hated him.
She recalled that on February 12, 2016, she was at Ms. D.’s house when she was
asked to go in the bedroom and watch television. Her mom then came into the bedroom
and asked Doe 3 if anyone had ever touched her. Doe 3 said “no.” Her “heart dropped to
[her] stomach, because [she] knew someone said something.” Doe 3 then told her mom
defendant had “touched [her] on [her] privates in the wrong way.” According to Doe 3,
“everyone was … telling their parents about what happened to them” so she “just told
them what happened to [her].” Ms. M. did not ask her for specific details; instead,
Ms. M. said “okay” and walked out of the room. The police arrived, but Doe 3 did not
speak to them that day.
Doe 3 remembered the first CART interview when she was asked questions
regarding what had happened to her, but Doe 3 did not tell everything that had happened
because she was embarrassed. It was the first time Doe 3 had talked to anybody about
details regarding what had happened with defendant. Doe 3 later spoke with Detective
Cotton regarding what had happened with defendant.
Doe 3 testified she did not recall the first time that defendant touched her, but she
believed it occurred when she was five or six years old. The first incident she
remembered was defendant telling her that if she let him take pictures of her on the
beach, he would buy her a swimsuit. He bought her a two-piece swimsuit and then took
pictures of her on the beach. At trial, the prosecutor introduced photographs of Doe 3
from that day at the beach.
6.
According to Doe 3, defendant touched her vagina with his hand between five and
10 times; some of those times he would put his fingers inside her vagina and move them
up and down. Doe 3 testified defendant’s penis touched her vagina and went inside.
Defendant would also pull off her clothes and touch his penis to her bottom; sometimes
she had underwear on, other times she did not. Doe 3 stated it was “very uncomfortable”
and she asked him to stop, but he would not. This occurred more than three times but
less than 10 times. The touching occurred both in the house of defendant and his wife
and in their shop, but it usually occurred in the bedroom when defendant’s wife was in
the shower or not home. Doe 3 did not tell defendant’s wife because she was nervous.
Doe 3 also testified defendant’s genitals touched her mouth more than three times.
He touched her breasts with his hands and mouth both over and under her clothes more
than five times. He touched and squeezed her “butt” more than five times. He also put
his mouth to Doe 3’s private part more than three times. She recalled incidents when she
saw white stuff come out of defendant’s private part onto her stomach. Doe 3 testified
defendant’s private part touched her stomach more than three times. She also stated he
kissed her on the lips multiple times. Ms. M. had seen defendant kiss Doe 3 on the lips in
the past and it made her uncomfortable and she thought it was inappropriate.
Defendant told Doe 3 not to tell anyone about the touching or he would “‘get in
really big trouble’” and “be really mad at [her].” He also threatened to hurt her family.
Doe 3 recalled a specific incident when she drove with defendant and his wife to a
national park to see a big tree. They stopped at a rest stop so defendant’s wife could use
the restroom. While defendant’s wife was inside, defendant unzipped his pants and
grabbed Doe 3’s hand and put it on his penis.
She recalled another incident when she was about six years old and she and
defendant dropped off defendant’s wife at the airport. Defendant reached over and
touched Doe 3’s genital area over her clothes. She told him to stop, but he would not.
He would get “real mad” at her when she told him to stop.
7.
The last time Doe 3 recalled something occurring, she and her cousin Doe 2 were
at defendant’s house; it was the night before she told her mother about the touching.
Defendant took Doe 3 outside to look at some cars in back of the house, and he forced
her to put her hand on his penis. She pulled away.
Defendant’s wife’s testimony
Defendant’s wife also testified at trial. She explained she and defendant got
married in 2001. They opened a business together. They eventually sold the business; “it
was getting rough right before [they] sold it.” After a certain period of time, the buyers
of the company defaulted on their note, and defendant and his wife repurchased the
business. Starting the business again caused defendant’s wife some concern because she
was worried about losing money. At that same time, defendant’s son and his wife began
living with defendant and his wife. It was apparent to defendant’s wife that defendant’s
son and his wife did drugs.
Defendant’s wife testified she babysat Doe 3 before Doe 3 was old enough to go
to school. When Doe 3 started going to school, defendant or his wife would often pick
her up and take her to their shop and then to their house. Defendant’s wife would leave
Doe 3 alone with defendant at times. She never noticed anything inappropriate or
unusual between defendant and Doe 3.
Defense counsel asked whether defendant “had a problem and could not get an
erection” about the time the abuse was reported; defendant’s wife responded she did not
know. Defense counsel then asked, “[I]s it not true that you were not having [a] sexual
relationship with your husband, vaginal intercourse, because he could not get an
erection?” Defendant’s wife responded, “No, that’s not true. That’s not true.”
Defendant’s wife denied telling defendant’s siblings or stating in front of them that
“if they wanted to gain some kind of an advantage when there’s a dispute, that all you
had to do was allege that there was a sexual molestation taking place.”
8.
Defense case
Defendant testified on his own behalf. He denied all of the allegations of sexual
misconduct. Defendant testified Ms. D’s daughters Doe 1 and Doe 2 lived with him and
his wife for some time while their house was under construction. Defendant admitted he
had a black flip phone. He denied asking Doe 2 to lay naked on a carpet in the shop
when she and her sister lived with him or asking Doe 1 to take photographs of Doe 2. He
also denied having Doe 2 use a vibrator on herself. Defendant recalled wrestling with
Doe 1 and Doe 2 in the living room when they first moved in, but he denied grabbing
Doe 2’s vagina. He denied watching Doe 2 take a shower at any time, pulling her towel
off, making her dance naked, or touching her breasts or vagina after she showered. One
time, he heard Doe 2 scream and she ran out of the bathroom naked saying there was a
wasp in the shower; that was the only time defendant saw Doe 2 naked. He recalled
taking a trip to the Los Angeles area for work and that Doe 2 asked to go with him, so he
took her along. He denied pulling off the road and touching her inappropriately during
that trip. He testified Doe 2 went with him everywhere; but he denied ever touching her
vagina while they were in the car. He recalled a time his wife went to Arizona with
Ms. D.; he testified Doe 1 and Doe 2 asked to stay with him, he was not trying to get
them to stay with him. He denied putting his penis inside Doe 2’s vagina in his bedroom
or asking her to use a vibrator on herself when the girls stayed with him. He also denied
masturbating in front of Doe 2 or seeing her naked during that time.
Defendant also denied touching Doe 3’s vagina or butt with his mouth, hand, or
penis at the shop or in the house. He further denied grabbing Doe 3’s hand and placing it
on his penis or forcing her to touch his penis with her mouth. He recalled taking Doe 3
places in his vehicle, but he denied he ever touched her vagina or put his penis in or near
her vagina while in his truck. He also denied threatening Doe 3. According to defendant,
Doe 3 was his best friend besides his wife. He recalled going on trips to a national park
and to Las Vegas with his wife and Doe 3, but he denied touching Doe 3’s vagina or
9.
having Doe 3 touch his penis while his wife was in the bathroom on either trip. He
remembered taking Doe 3 to Pismo Beach while on a work trip and buying her a bathing
suit at Kmart. According to defendant, Doe 3 changed in the bathroom at the beach and
asked defendant to take photographs of her to send to her mother.
Defendant explained that he purchased a company in 2003 and his wife began
working for the company with him. In 2006, defendant sold the business. In 2013,
defendant took the company back after the buyers defaulted on their payments; his wife
was not happy about him taking the company back.
On February 11, 2016, defendant made an offer to buy the building where his shop
was located. He planned to place a $100,000 down payment, which he had in a safe at
his house. His wife was present when he made the offer. He saw his wife make a phone
call immediately after he had the discussion about purchasing the building. Doe 3 was at
the office and asked defendant if she could stay the night; defendant said yes. Doe 2 later
asked to stay the night, so defendant, his wife, and Doe 3 went to pick her up. The next
morning, defendant went to work around 5:00 a.m. His wife normally arrived between
6:30 and 6:45 a.m. but she arrived a little after 7:00 a.m. that day. He sensed something
was different; his wife had not done her hair or makeup. Defendant left for Fresno. On
the drive, his wife called him and told him she was leaving the office to go home. On his
way back to Tulare, defendant called and texted his wife, but she did not respond. He
went to the house and the shop to look for her, but she was not at either. He became
concerned and went back to the house. He checked the box where the money had been
and realized it was empty.
According to defendant, there was supposed to be $126,000 in the house.
Defendant started feeling sick and finally got a hold of Ms. M. Ms. M. told defendant his
wife was having a nervous breakdown and did not want to speak to him. Defendant
continued to try to reach his wife but to no avail. He heard from his son there were
10.
allegations of sexual molestation against him. Defendant was arrested on February 20,
2016.
An employee of defendant’s company, Ricky H., testified he worked at the shop of
defendant and his wife five days a week, and he recalled Doe 3 coming to the business
regularly in 2015 and 2016. While working at the shop, Ricky could see inside the
shop’s office, where Doe 3 would stay when she was there. Ricky never saw defendant
take off Doe 3’s clothes or touch her inappropriately.
Defendant’s former sister-in-law, Jan, testified she knew defendant’s wife before
she married defendant. Jan recalled attending a dinner with defendant’s wife in 1982
when defendant’s wife stated, if her daughter’s biological father opposed her husband’s
adoption of that daughter, defendant’s wife would claim the biological father had
molested the daughter.
Defendant’s brother, Doyle, testified defendant was previously married to the
mother of Doyle’s biological daughter. Doyle recalled an incident in 1988 when
defendant’s wife suggested to Doyle that he accuse defendant of child molestation in
order to obtain visitation rights of his daughter.
Verdict
The jury convicted defendant of all the charges alleged to have been committed
against Doe 3, counts 1–41. The jury also convicted defendant of committing count 46
against Doe 2, which related to the incident during which defendant had Doe 2 use a
vibrator while Doe 1 took pictures. Additionally, in relation to that incident, the jury
convicted defendant of count 53, using a minor for sex acts, related to Doe 1. Finally, the
jury convicted defendant of count 52 for touching Doe 2’s thigh. The jury acquitted
defendant of counts 42–45 and counts 47–51, which related to certain other acts alleged
to have been committed against Doe 2.
11.
DISCUSSION
I. Court Did Not Err in Admitting Doe 3’s CART Interviews
Defendant first contends the court prejudicially erred in admitting the recordings
of Doe 3’s two CART interviews because they did not bear sufficient indicia of
reliability. We disagree.
A. Relevant Procedural History
Before trial, the prosecutor moved in limine to admit the CART interviews
conducted with Doe 3 on February 17, 2016, and June 7, 2017, pursuant to Evidence
Code section 1360.
1. February 2016 CART interview
Doe 3 was eight years old during the first CART interview. At the beginning of
the interview, the forensic investigator, Laura Boland, explained to Doe 3 that if Doe 3
did not understand a question, she should let Boland know. Boland then asked Doe 3,
“[S]o, what if I ask you, what gender are you, what would you say?” Doe 3 responded, “I
don’t know what gender means.” Boland also asked Doe 3 to correct her if she said
something wrong. Boland then asked Doe 3, “[W]hat if I said that you are 30 years old,
what would you say?” Doe 3 responded, “That’s wrong, I’m eight.” Boland explained
she wanted Doe 3 to tell the truth.
Boland then asked Doe 3 what they were there to talk about, and Doe 3 responded,
“Family issues.” Boland asked Doe 3 what Doe 3 could tell her and Boland explained it
was “really important” for her to know everything that happened. Doe 3 initially stated,
“[I]t was just one time.” She explained defendant touched her “private part” in his
vehicle after they dropped off his wife at the airport to go to Arizona. Boland asked Doe
3 follow-up questions to obtain details about the incident, such as whether defendant
touched Doe 3 under or over her clothes. Boland then asked Doe 3 to tell her about other
times when defendant may have touched her. Doe 3 related another time when
12.
defendant’s wife went out and defendant convinced Doe 3 to take off her clothes; he
pulled her pants down and touched her “private.” Boland again asked follow-up
questions regarding details of that incident, such as when it occurred. Boland then asked
Doe 3 to tell her about any times when defendant touched her “private” on the skin, and
Doe 3 responded that “he’s never done that.” Boland asked Doe 3 if there were any other
times defendant touched her “private,” and Doe 3 responded affirmatively. Boland asked
Doe 3 to tell her about the other times. Doe 3 responded that she did not remember.
Boland then asked Doe 3 when she was first touched and when she was last
touched. Doe 3 reported defendant began touching her when she was six years old and
last touched her that past Thursday at defendant’s office and his house. Boland asked her
for details about the last incidents, and Doe 3 explained defendant touched her at the
office when his wife was taking out the trash and at the house when her cousin Doe 2 was
in the kitchen. Boland then asked Doe 3 to tell her about any time Doe 3 had seen
defendant touching someone else, and Doe 3 responded defendant flirts with her cousin
Doe 2 to make Doe 3 mad. After asking Doe 3 for details, Boland again told Doe 3 it
was important for her to know everything that happened. Boland then asked Doe 3 if
there were other places on her body that defendant had touched and if defendant had
touched her more than one time on top of her underwear. Doe 3 responded it occurred
once. Boland asked Doe 3 to tell her about any times defendant’s hand or fingers
touched inside her “private,” and Doe 3 responded it happened once in the car on the way
to Nevada. Defendant took off Doe 3’s pants and underwear and “just went inside.”
Boland asked follow-up questions regarding that incident, such as what it felt like, what
defendant said, and where defendant’s wife was at the time.
Boland then asked Doe 3 to tell her about any times defendant made her touch his
body. Doe 3 stated she never saw defendant’s “body parts ever,” but she reported
defendant grabbed her hand and put it on his private twice, one time when defendant’s
13.
wife was in the shower and another time on a trip to Sequoia National Park when they
stopped for defendant’s wife to use the restroom.
Boland then recapped what Doe 3 had told her and confirmed how many times
defendant had touched her at his office; Doe 3 responded he touched her almost every
time she went to the office. Boland then followed up with additional questions in
response to Doe 3’s answer, and Doe 3 responded the touching occurred over her clothes
when defendant’s wife was outside or not paying attention. Boland asked Doe 3 if
defendant’s wife ever saw, and Doe 3 responded there was “one time that hopefully she
didn’t see.” That time, defendant touched her inside her bathing suit in his house.
Boland again asked follow-up questions regarding that incident and asked if Doe 3 ever
felt pain. Doe 3 said it would “hurt really bad” when he “would go inside it”;
“[s]ometimes he would come back from working and his hands would be dirty, and it
would just hurt.” In response to Doe 3’s use of the word “sometimes,” Boland asked Doe
3 “how many times has he touched inside [her] private.” Doe 3 said she remembered it
happening 10 times. Boland asked Doe 3 whether defendant touched any other part of
his body to her body and she asked Doe 3 about kissing. Doe 3 explained defendant
would kiss her on the lips every time she would go home.
Boland then gave Doe 3 a picture of a girl’s body and asked Doe 3 to mark the
areas where defendant touched her; Boland reviewed each area Doe 3 marked, including
the chest and buttocks, which Doe 3 had not previously discussed, and asked her for
details regarding those incidents. Boland then gave Doe 3 a picture of a man’s body and
asked Doe 3 to mark where the “private” is; she then reviewed the two incidents Doe 3
discussed regarding defendant forcing her to touch his “private.”
14.
2. June 2017 CART interview
In the second CART interview, Boland again explained to Doe 3 to correct her if
she said something wrong and to tell her if Doe 3 did not understand a question. Nine-
year-old Doe 3 promised to tell the truth and not tell any lies.
In response to Boland asking what happened to her, Doe 3 responded that
defendant had “raped” and “molested” her and “he would touch [her] private parts a lot
and he would try to … put his parts on [her] parts a lot.” He first touched her when she
was five years old. He last touched her in February 2016 at his house when she and her
cousin spent the night there; he touched her private parts with his hands. Like in the first
interview, Boland gave Doe 3 a picture of a girl’s body and asked Doe 3 to mark where
defendant had touched her. Doe 3 marked the breasts, “private,” and buttocks.
Boland then asked Doe 3 to provide details about the touching, such as where and
how often it would occur, what it felt like, and what defendant would use to touch her.
Doe 3 explained defendant would squeeze her breasts, comment on their size, and put
them in his mouth; he touched her there “[m]ostly every time. Like almost every day.”
Doe 3 would get angry when defendant touched her, and they would argue. Doe 3 noted
none of her family ever saw defendant touch her. She also stated defendant touched her
private with his hands and mouth and he put his “private” on her “parts.” He would take
off Doe 3’s clothes and put his private on her private. He would make her sit on his lap
facing him and wrap her legs around him. Boland asked Doe 3 to show her where
defendant’s private would touch her on the picture, and Doe 3 explained it would go
inside the line of her “private.” Boland asked Doe 3 what it felt like, what defendant
would do with his body, and about any times something came out of defendant’s private
when he touched Doe 3’s private. Doe 3 responded defendant would “twitch” and “stuff
came out of his penis.” Boland then asked follow-up questions regarding where, when,
and how many times that occurred and where on Doe 3’s body defendant would touch
her with his penis. Doe 3 described instances when defendant touched her on her mouth,
15.
stomach, buttocks, and “private” with his penis, and Boland asked her follow-up
questions about those instances.
At the end of the interview, Boland noted Doe 3 had told her things in the
interview that she had not previously discussed. Boland asked Doe 3 if there was
anything that had happened or if there was a reason why Doe 3 “decided to talk about
more.” Doe 3 explained that in the first interview, she was “nervous to tell [Boland]
everything,” but she had been going to see a therapist and now she felt more comfortable
talking about it.
3. Court admitted CART interviews after holding an Evidence Code
section 402 hearing
The court held an Evidence Code section 402 hearing to consider the admissibility
and reliability of the interviews. During the hearing, Detective Florence Cotton
explained a CART interview is conducted by a forensic specialist in a room designed to
make the victim feel comfortable. The forensic interviewer asks “open-ended questions”
and “determines whether or not the child knows the difference between the truth and a
lie.”
The court reviewed portions of the recorded CART interviews conducted on
February 17, 2016, and June 7, 2017, to determine whether the time, content, and
circumstances of the interviews showed sufficient indicia of reliability. Based on its
review, the court held it was satisfied the interviews were conducted under circumstances
providing sufficient indicia of reliability and, thus, they were admissible.
B. Standard of Review and Applicable Law
Evidence Code section 1360 provides in pertinent part:
“(a) In a criminal prosecution where the victim is a minor, a
statement made by the victim when under the age of 12 describing any act
of child abuse … performed with or on the child by another … is not made
inadmissible by the hearsay rule if all of the following apply:
16.
“(1) The statement is not otherwise admissible by statute or court
rule.
“(2) The court finds, in a hearing conducted outside the presence of
the jury, that the time, content, and circumstances of the statement provide
sufficient indicia of reliability.
“(3) The child … : [¶] (A) Testifies at the proceedings.”
The California Supreme Court has identified the following nonexhaustive list of
factors as being relevant to the reliability of hearsay statements made by a child witness
in a sexual abuse case: (1) spontaneity and consistent repetition; (2) the declarant’s
mental state; (3) use of terminology unexpected of a child of a similar age; (4) lack of
motive to fabricate; and (5) the child’s ability to understand the duty to tell the truth and
to distinguish between truth and falsity. (In re Cindy L. (1997) 17 Cal.4th 15, 29–30; see
Idaho v. Wright (1990) 497 U.S. 805, 821–822, abrogated in part by Crawford v.
Washington (2004) 541 U.S. 36, 60–62; In re Lucero L.(2000) 22 Cal.4th 1227, 1250.)
“We review a trial court’s admission of evidence under [Evidence Code] section
1360 for abuse of discretion. [Citation.]” (People v. Roberto V. (2001) 93 Cal.App.4th
1350, 1367; see People v. Waidla (2000) 22 Cal.4th 690, 724.) A trial court has “broad
discretion” in determining whether a party has established the foundational requirements
for application of a hearsay exception. (People v. Martinez (2000) 22 Cal.4th 106, 120.)
Under this standard, a trial court’s ruling will not be disturbed, and reversal of the
judgment is not required, unless the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.
(People v. Rodriguez (1999) 20 Cal.4th 1, 9–10.)
C. Analysis
Defendant contends Doe 3’s two CART interviews “were not reliable based upon
their content and upon the circumstances in which the statements were made.” He
argues, “The record demonstrates that the trial court gave no consideration to the
circumstances surrounding these interviews in determining indicia of reliability.” He
17.
contends the admission of “this unreliable hearsay” violated his state and federal due
process right to a fair trial and “undermined the fundamental fairness.” Accordingly, he
argues the alleged error should be assessed for prejudice under the standard articulated in
Chapman v. California (1967) 386 U.S. 18, 24. He argues he was prejudiced because
without the CART interviews, the jury likely would have acquitted him on the “[Doe 3]
counts” because her trial testimony “was contradictory and incredible.” The People
respond the court properly admitted the two CART interviews. They further contend any
alleged error should be reviewed for prejudice under the standard set forth in People v.
Watson (1956) 46 Cal.2d 818, 836 and that “it is not reasonably probable the jury would
have acquitted [defendant] of the charges involving [Doe 3] if the CART interviews had
been excluded.” As detailed below, we cannot conclude the court abused its discretion in
admitting Doe 3’s CART interviews.
1. February 2016 CART interview
Defendant first asserts the February 2016 CART interview “was tainted by leading
questions” in that Boland “did not accept [Doe 3]’s answers, and it became clear from
subsequent questions what Ms. Boland wanted to hear was multiple acts of molest, not
details.” Defendant argues Doe 3 initially mentioned she was only touched on two
different occasions but later described more in response to Boland’s questioning. He
cites instances when Doe 3 described specific incidents of molestation in the interview,
and Boland followed up by asking Doe 3 what else defendant had done or asked Doe 3 to
tell her about other times. Defendant argues “[e]very time [Doe 3] tells Ms. Boland that
she’s told her the whole story, Ms. Boland asks for more and states specifically the
conduct that Ms. Boland wants to hear about.” He contends Boland’s questions were
suggestive, pointing to instances when Boland asked Doe 3 to tell her what defendant
said while touching her on her private or about skin-to-skin contact and penetration. In
his reply brief, defendant further alleges Doe 3’s mental state made her statements
18.
unreliable. The People argue most of the questions were open-ended and the court
viewed a recording of the interview and determined for itself the interview was
sufficiently reliable. They contend Boland’s questions “were utilized to elicit as much
information as possible from a reluctant and nervous eight-year-old girl who was
speaking with Boland for the first time.” The People further argue defendant
mischaracterizes Boland’s questioning as refusing to accept Doe 3’s answers; but Boland
“was being thorough by asking whether there was more than one incident of
molestation.” We agree with the People.
The trial court did not abuse its discretion in concluding the time, content, and
circumstances of Doe 3’s first CART interview provided sufficient indicia of reliability.
Contrary to defendant’s assertions, the trial court could have reasonably found that Doe
3’s statements to Boland were largely made in response to open-ended questions. Indeed,
our review of the record reveals Boland generally asked Doe 3 to tell her about defendant
touching her, and Boland followed up on Doe 3’s statements to obtain specific details
about the incidents of abuse Doe 3 described. In asking Doe 3 to tell her about other
times or incidents of abuse, we cannot conclude Boland was leading or suggesting to Doe
3 to lie or manufacture a response. Rather, in both CART interviews Boland emphasized
the importance of Doe 3 telling the truth. Though Doe 3 initially reported only two
instances of abuse, she later volunteered additional information regarding other incidents
of abuse, which Boland followed up on in her questioning. To the extent defendant is
challenging the reliability of the CART interview based on the consistency of Doe 3’s
answers, Doe 3 testified at trial, so she was subject to cross-examination regarding her
credibility and any alleged prior inconsistent statements. Furthermore, the first CART
interview was conducted less than a week after Doe 3 first reported sexual abuse. We
also do not find that Doe 3 used unexpected terminology in describing the abuse nor does
the record reveal Doe 3 had a motive to fabricate her statements during that interview.
Additionally, nothing about the interview suggests Doe 3’s mental state was in question
19.
at the time it was conducted. And, contrary to defendant’s assertion, the court expressly
stated it was reviewing the interviews to consider the time, content, and circumstances
under which they took place. Thus, the record reflects the court was aware of and
executed its duty to consider these factors in determining whether such evidence bore
sufficient indicia of reliability to merit their admission. On this record, we cannot
conclude the court erred in concluding the first CART interview bore sufficient indicia of
reliability to merit its admission.
2. June 2017 CART interview
Defendant next asserts the circumstances surrounding the second CART interview
also lacked indicia of reliability because his wife, who had the most to gain from
defendant’s convictions, lived with Doe 3 at the time of the interview. He argues “the
trial court did nothing to ascertain anything about [Doe 3]’s living situation leading up to
these ‘additional’ allegations or why [Doe 3] had ‘new’ allegations over a year after the
first CART interview.” Additionally, he contends “the circumstances surrounding [the]
second interview also show that [Doe 3] had learned that additional allegations brought
her attention, approval, and sympathy from the adults in her life: her family, Detective
Cotton, and the CART interviewer.” He argues Doe 3’s use of “adult vocabulary” such
as the terms “rape” and “molest” “should have put the trial court reviewing this interview
for [Evidence Code] section 1360 purposes on notice that [Doe 3] had adopted the
vocabulary of the adults who had been talking to her.” He further contends Doe 3’s
allegations “were outrageous and impossible.” The People again respond the time,
content and circumstances of the second interview provided sufficient indicia of
reliability. They assert many of Doe 3’s allegations were consistent with her first
interview, and her additional allegations were made after she spoke with a therapist. The
People further contend, “[Doe 3]’s mental state does not support an inference that her
statements were unreliable” and her language in the interview was age-appropriate. They
20.
argue defendant “fails to explain how [his wife] would or did obtain a financial reward
from [Doe 3]’s allegations against” defendant. They assert defendant points to nothing in
the record to support his allegation Doe 3 obtained attention, approval, and sympathy
from the adults in her life as a result of her report of sexual molestation. Finally, they
contend “there is no evidence that [defendant’s wife] told [Doe 3] what to say or
instructed her to make up allegations against” defendant. Again, we agree with the
People; the trial court did not abuse its discretion in concluding the second CART
interview bore sufficient indicia of reliability.
Contrary to defendant’s assertions, the record does not reflect Doe 3 was
motivated to lie in order to seek attention or approval or because of defendant’s wife’s
influence. Additionally, as discussed, to the extent Doe 3’s credibility was in question,
she testified at trial and was available for cross-examination. We also cannot conclude
Doe 3’s use of the terms “rape” and “molest” was inappropriate for her age such that the
reliability of the interview should have been called into question on that basis. And
nothing in the record suggests Doe 3’s mental state was in question at the time of the
second interview such that the trial court should have deemed her statements to be
unreliable. Rather, as in the first interview, Doe 3 responded spontaneously in response
to largely open-ended questions. Though she disclosed additional allegations in the
second interview, the new allegations built upon Doe 3’s previous reports of abuse.
Additionally, Doe 3 explained she felt more comfortable discussing the abuse after
working with a therapist. On this record, we cannot conclude the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner in admitting Doe 3’s
second CART interview.
We reject defendant’s first contention.
21.
II. Prosecutorial Misconduct
Defendant next contends the prosecutor repeatedly engaged in prejudicial
misconduct.
A. Standard of Review and Applicable Law
“‘“‘[A] prosecutor is given wide latitude during argument. The argument may be
vigorous as long as it amounts to fair comment on the evidence, which can include
reasonable inferences, or deductions to be drawn therefrom. [Citations.]’”’” (People v.
Hill (1998) 17 Cal.4th 800, 819.) “A prosecutor’s conduct violates the Fourteenth
Amendment to the federal Constitution when it infects the trial with such unfairness as to
make the conviction a denial of due process. Conduct by a prosecutor that does not
render a criminal trial fundamentally unfair is prosecutorial misconduct under state law
only if it involves the use of deceptive or reprehensible methods to attempt to persuade
either the trial court or the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44; see
People v. Mendoza (2007) 42 Cal.4th 686, 700; People v. Farnam (2002) 28 Cal.4th 107,
167.) “The focus of the inquiry is on the effect of the prosecutor’s action on the
defendant, not on the intent or bad faith of the prosecutor.” (People v. Mendoza, supra,
at p. 700.) “‘A defendant’s conviction will not be reversed for prosecutorial misconduct,
however, unless it is reasonably probable that a result more favorable to the defendant
would have been reached without the misconduct.’” (People v. Tully (2012) 54 Cal.4th
952, 1010.)
B. Waiver and Ineffective Assistance of Counsel
Here, defense counsel lodged no objections to the prosecutor’s conduct defendant
now challenges on appeal. “‘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. Hill, supra, 17 Cal.4th at p. 820.) An
exception is made if a timely objection or request for admonition would have been futile,
22.
or if an admonition would not have cured the harm caused by the misconduct. (Ibid.)
“The reason for this rule, of course, is that ‘the trial court should be given an opportunity
to correct the abuse and thus, if possible, prevent by suitable instructions the harmful
effect upon the minds of the jury.’” (People v. Green (1980) 27 Cal.3d 1, 27, overruled
on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 239.)
In his reply brief, defendant contends for the first time that his trial counsel
rendered ineffective assistance of counsel by failing to object to the prosecutor’s
challenged comments below. To prove ineffective assistance of counsel, a defendant
must satisfy the two-part test of Strickland v. Washington (1984) 466 U.S. 668 requiring
a showing of counsel’s deficient performance and prejudice. (Id. at p. 687.) As to
deficient performance, a defendant “must show that counsel’s representation fell below
an objective standard of reasonableness” measured against “prevailing professional
norms.” (Id. at p. 688.) The prejudice prong requires a defendant to establish that “there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” (Id. at p. 694.) “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” (Ibid.) Prejudice must
be affirmatively proved. (People v. Maury (2003) 30 Cal.4th 342, 389.) Where a
defendant fails to show prejudice, a reviewing court may reject a claim of ineffective
assistance of counsel without reaching the issue of deficient performance. (See
Strickland, supra, at p. 697.)
However, when a defendant fails to raise an issue in the opening brief, raising it
for the first time in a reply brief, we generally decline to address the issue or address it in
a summary manner. (See People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [claim of
ineffective assistance of counsel raised by defendant for the first time in reply brief is
forfeited]; People v. Harris (2008) 43 Cal.4th 1269, 1290 [defendant’s claim of
ineffective assistance of counsel for failure to object to prosecutor’s argument, made for
first time in reply brief in response to waiver argument, “is as meritless as it is belated”];
23.
People v. Alvarez (1996) 14 Cal.4th 155, 241, fn. 38 [“‘perfunctorily’” rejecting
defendant’s claim of ineffective assistance of counsel, made for the first time in reply
brief and in a single paragraph].)
Nevertheless, here, as we explain post, even if these issues had been adequately
preserved for our review, defendant has failed to establish the prosecutor engaged in
prejudicial misconduct. Thus, both defendant’s prosecutorial misconduct and ineffective
assistance of counsel claims fail.
C. Analysis
Defendant argues nine specific instances of alleged prosecutorial misconduct. He
contends the prosecutor: (1) made “material misrepresentations” about Family Law and
his wife’s community property interest in the marital assets, (2) misrepresented the status
of his and his wife’s community property, (3) misrepresented California community
property law regarding dissolution of the marital estate, (4) falsely accused the defense of
misleading the jury, (5) made false claims about the timing of the molestation allegations
that took place in defendant’s home and shop, (6) falsely claimed the medical records
corroborated the Doe 3’s claims, (7) falsely claimed that defendant’s ability to achieve an
erection and ejaculation was not relevant to the charges, (8) misrepresented the DNA
data, and (9) misrepresented defendant’s testimony. We address and reject each of
defendant’s contentions in turn.
1. Alleged misrepresentations about Family Law and defendant’s
wife’s community property interest in marital assets
Defendant first contends the prosecutor committed prejudicial misconduct during
argument by arguing there was “no money” when referring to defendant and his wife’s
marital assets.
(a) Relevant Procedural History
Defendant’s wife testified she and defendant sold their house and rental properties
and liquidated their company; the resulting money went into a trust. She explained there
24.
was a large community debt of over $160,000 plus taxes to be paid. Defendant’s wife
testified, after her divorce from defendant is final, “[t]here’s not going to be anything
left.” She denied defense counsel’s assertion that she would be getting half of $377,000.
Defendant’s wife explained the court first had to determine the community debt before
the amount of community property could be ascertained, and she did not know what was
going to happen. Defendant confirmed the court had them sell their house and rental
properties and that they still owed approximately $40,000 on the house. He also testified
all the money from the sale of those assets was in a trust account.
During the prosecutor’s argument, she argued:
“… The defense wants you to believe that [defendant’s wife] is a
mastermind, a conspiracy theorist and a manipulator and that’s the only
reason why all three [victims and their mothers] go to every court
appearance, show up every time, have stood here every day in trial, and
come in and testify in front of a bunch of strangers, is because [defendant’s
wife]’s all about the money? There is no money. None.
“The defense isn’t required to prove to you anything. That is my
burden. I need to prove everything beyond a reasonable doubt. If they’re
gonna stand here and tell you that this is all about the money, where is it?
Because right now there’s no house. There’s no rental properties. There’s
no business. There’s nothing. It’s liquidated and in a trust. Why?
Because they’re getting a divorce. And they’re not getting a divorce
because [defendant’s wife] wants the money. They’re getting a divorce
because the defendant is a child molester and she wasn’t going to stand by
him. That’s it.”
(b) Analysis
Defendant argues the prosecutor’s representation that defendant and his wife’s
marital estate was valued at “zero” was not supported by evidence in the record. He
further contends such a statement was false given the filings in the divorce proceedings
by the attorney for defendant’s wife stating the total property on hand was $364,000.
Defendant also argues the prosecutor misled the jury by stating “there was no money”
because the marital assets had been liquidated and placed in a trust. He contends the
25.
prosecutor’s conduct amounted to the “‘use of deceptive or reprehensible methods to
attempt to persuade either the court or the jury.’” He asserts the alleged misconduct was
prejudicial because it “undermined the defense position that [defendant’s wife] had put
[the victims] up to false allegations of molestation for her own financial gain.” We
disagree with defendant’s contentions.
Here, the prosecutor’s referenced argument was reasonably based upon the
testimony presented and was a fair comment on the evidence; it was not prejudicial
misconduct. Both parties explained their properties had been sold, the business had been
liquidated, and the proceeds were placed in a trust. Defendant’s wife expressly testified
she did not believe there would be any money left for her to receive after their debts had
been paid and the divorce was finalized. Contrary to defendant’s assertion that no
evidence in the record supported the prosecutor’s argument, his wife’s testimony is
evidence. (See Evid. Code, § 140 [“‘Evidence’ means testimony, writings, material
objects, or other things presented to the senses that are offered to prove the existence or
nonexistence of a fact”].) And, as the People note, defendant’s assertion that his wife’s
attorney represented the assets of the marriage totaled $364,000 in the divorce
proceedings was not supported by evidence submitted at trial. Irrespective, defendant’s
wife testified the money held in trust did not account for the community debt that needed
to be paid. On this record, we conclude the complained-of remarks made by the
prosecutor “were founded on evidence in the record and fell within the permissible
bounds of argument.” (People v. Williams (2013) 56 Cal.4th 630, 672.)
2. Alleged misrepresentation regarding status of community property
of defendant’s marriage
Defendant next argues the prosecutor’s question to defendant regarding whether
the cash in the house belonged to both him and his wife, and the prosecutor’s related
argument, constituted misconduct.
26.
(a) Relevant Procedural History
On direct examination, defendant testified that when he returned to his and his
wife’s house after work on February 12, 2016, he checked the fire safe and the cash that
had been inside it was gone. According to defendant, there had been a total of $126,000
in two fire safes in the house. Defendant testified on direct examination that he was not
concerned that the money was gone because it belonged to him and his wife. He also
testified he charged Ms. D. $20 a month for electricity while she lived with them because
she used her computer for work.
On cross-examination, the following exchange took place between the prosecutor
and defendant regarding the money in the house:
“[PROSECUTOR:] Q. … First of all, you never ever filed a police
report about [your wife] taking 126,000 from the house, did you?
“[DEFENDANT:] A. No, I did not. Why would I?
“Q. Right, because it was both of your money that was in the house;
correct?
“A. That’s correct….”
In argument, the prosecutor argued defendant was “fixated on the money” and
“somebody paying him back for utilities.” The prosecutor continued:
“… Yet there is no mention whatsoever of [defendant’s] concern of
126,000. His response was it was our money. We shared it. If
[defendant’s wife] did take it, it was our money.
“Then how does the defense of ‘it’s all about the money’ come into
play if the defendant himself doesn’t care?”
(b) Analysis
Defendant argues the prosecutor’s referenced questioning and argument amounted
to “a gross misrepresentation of the Family Law Code’s community property statutes”
because “[defendant’s wife] had no right to take and secret a community asset.” We
disagree with defendant’s characterization of the referenced questioning and argument.
27.
First, where, as here, “a defendant voluntarily testifies, the district attorney may
fully amplify his testimony by inquiring into the facts and circumstances surrounding his
assertions, or by introducing evidence through cross-examination which explains or
refutes his statements or the inferences which may necessarily be drawn from them.”
(People v. Cooper (1991) 53 Cal.3d 771, 822; see People v. Dykes (2009) 46 Cal.4th 731,
764 [“When a defendant chooses to testify concerning the charged crimes, the prosecutor
can probe the testimony in detail and the scope of cross-examination is very broad”].)
And here, the challenged questioning was proper cross-examination; the prosecutor was
further probing the statements defendant made on direct examination.
And the prosecutor’s related argument in summation to the jury was a fair
comment on the evidence. The prosecutor referred to defendant’s testimony in arguing
defendant believed the money in the house belonged to both him and his wife, and he was
not concerned if his wife had taken it. The prosecutor did not assert, as defendant
alleges, that defendant’s wife had a right to take and secret property as a matter of law.
Accordingly, the referenced questioning and argument were not misstatements of law and
did not amount to misconduct.
3. Alleged misrepresentation of California community property law
Defendant next alleges the prosecutor misrepresented California law on
community property by arguing defendant did not need to be a child molester for his wife
to divorce him and she would not get more money on that basis.
(a) Relevant Procedural History
During argument, the prosecutor stated:
“[T]hey’re not getting a divorce because [defendant’s wife] wants
the money. They’re getting a divorce because the defendant is a child
molester and she wasn’t going to stand by him. That’s it. There’s no
requirement in the State of California that your husband needs to be
charged with child molest in order to get a divorce. You don’t get any
more money because your husband went on trial for being a child molester.
Not at all. It just doesn’t happen. [¶] … [¶]
28.
“[T]here is no reasonable explanation as to why [the victims] would
say this. The divorce has nothing to do with it at all. [Defendant’s wife]
made up her mind to divorce [defendant] because of what [the victim] said
about him. Again, you do not need to have a child-molesting husband to
get a divorce in California. You certainly don’t get any more money for it.”
(Italics added.)
(b) Analysis
Defendant contends the referenced argument was false; rather, “[Defendant’s
wife] positioned herself to obtain more of the marital assets by sending her husband to
jail as a child molester than she would have received in a settlement if she had simply
filed for divorce.” He argues, “[Defendant’s wife] acted to destroy a business that she no
longer wanted to operate, and the most effective way to accomplish her goal was to put
[defendant] in jail.” As a result, “[i]nstead of a lump sum payment based upon
liquidation of all the assets, [defendant’s wife] would have received payments over time,
and possibly less than she received in a lump sum distribution.” Additionally,
“[defendant’s wife] set up [the victims] for direct victim restitution, paid out of
[defendant]’s share of the marital assets.”
Defendant cites no law in support of his contention that the referenced argument
was false. To the contrary, the prosecutor’s statements that there is no requirement in the
State of California that a husband needs to be charged with child molest in order to get a
divorce is true; California is a no-fault divorce state. (See Fam. Code, § 2310; Diosdado
v. Diosdado (2002) 97 Cal.App.4th 470, 473 [noting since the 1969 enactment of Civ.
Code, § 4506 (now Fam. Code, § 2310), “[f]ault is simply not a relevant consideration in
the legal process by which a marriage is dissolved”]; see also Fam. Code, § 2335
[“Except as otherwise provided by statute, in a pleading or proceeding for dissolution of
marriage or legal separation of the parties, including depositions and discovery
proceedings, evidence of specific acts of misconduct is improper and inadmissible”].)
We also do not find support for defendant’s assertion that his wife positioned herself to
obtain more of the marital assets through the accusations against defendant beyond
29.
speculation. Furthermore, even if the child victims were entitled to restitution, there is no
evidence to support defendant’s suggestion that his wife would benefit from such
payments. Accordingly, we cannot conclude the referenced argument amounted to
misconduct.
4. Accusing defense of misleading the jury
Defendant next argues the prosecutor committed misconduct in making an
“unsupported implication … that defense counsel fabricated a defense.”
(a) Relevant Procedural History
During the first CART interview, Doe 3 testified defendant last touched her that
past Thursday at the office and at his house when she and Doe 2 spent the night. She
stated that night, Doe 2 was in the kitchen and defendant’s wife was in the shower while
she and defendant were on the couch. Defendant reached over and touched her. During
her second CART interview, Doe 3 again stated the last time defendant touched her was
in February 2016, when she and Doe 2 spent the night at his house. She explained Doe 2
“came over and we were hanging out and when we fell asleep we were on the trampoline
and he started touching me on my private parts again.” At trial, Doe 3 discussed the last
incident of molest, stating they picked up Doe 2, and defendant “went to show me the
cars out in the back. I looked at them. We went on the trampoline. He was being nasty.”
She testified the cars were behind the house and the trampoline was behind the cars. Doe
3 went on the trampoline alone for “[n]ot too long because then it started to get cold.”
Defendant tried to get her to touch his private parts while they were looking at the cars.
On cross-examination, Doe 3 testified she did not recall stating in a CART interview that
she and Doe 2 had fallen asleep on the trampoline that night, or that defendant had
touched her inappropriately when they were sleeping on the trampoline.
In summation, defense counsel argued there were inconsistencies in Doe 3’s
statements:
30.
“… So [Doe 3] came in and she testified that on the night of the 11th
that was the last time that something happened to her.
“Now, she told her mom that something had only happened to her
twice. She had been sexually molested or touched on the outside of her
clothing. Then she told the CART interviewer that the last time something
happened she was sitting in the living room. [Doe 2] went into the other
room, and maybe got water, and that’s when something happened.
“Then she tells the CART interviewer in the second CART interview
that they were sleeping out on the trampoline in the middle of February, she
and [Doe 2]. That’s when [defendant] came out and molested her. And
then when she testified, she said the last time that something happened to
her [defendant] took her out to see vehicles. That’s when he molested her
out by the trampoline.
“Now, this is [sic] multiple different stories. Of course, the
prosecutor has suggested that well, [Doe 3] is just really confused.
Everything blends together. Watch the CART interviews. She was very
specific that the last time something happened to her was February 11th.
She’s giving very different accounts of the same night. Which one is it
we’re supposed to believe? Which one? Which one are we convicting him
of? Beyond a reasonable doubt, which one of those four or five different
statements is the truth? I mean, I don’t know. I don’t know. So that’s a
whole lot of different statements. Again, they don’t really add up. Again,
we’re just searching for doubt here as we go through the story.”
In rebuttal, the prosecutor asserted Doe 3’s statements regarding the trampoline in
the CART interview were “very wildly being mischaracterized.” The prosecutor
asserted:
“… If you listen to the CART interview, she’s talking about the
independent [sic], how they went on the trampoline, they fell asleep, and
the defendant touched her that night, describing that he touched her that
night at the house, how he had touched her previously at the shop, and then
he touched her that night at the house.
“At no point is [Doe 3] saying I was sitting on the trampoline with
my cousin and we fell asleep on the trampoline that night and the defendant
touched me on the vagina that night on the trampoline. She’s just trying to
get out that this is the last incident that she recalls. This is one of the last
times.
31.
“So if you need to be refreshed, absolutely go watch that CART
interview, because everything that you need to convict the defendant is
contained in those statements and those interviews.”
(b) Analysis
Defendant asserts the prosecutor argued facts not in evidence and implied defense
counsel “fabricated a defense” in the referenced rebuttal statements. He further contends
“[t]he transcript of the [second] CART interview demonstrates that the prosecutor’s
claims [are] unsupported and false.” Again, we disagree with defendant’s
characterization of the challenged rebuttal argument and find no prejudicial misconduct.
It is “improper for the prosecutor to imply that defense counsel has fabricated
evidence or otherwise to portray defense counsel as the villain in the case.” (People v.
Sandoval (1992) 4 Cal.4th 155, 183.) But it is not misconduct to challenge “the
persuasive force of defense counsel’s closing argument.” (People v. Zambrano (2007) 41
Cal.4th 1082, 1155, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th
390, 421, fn. 22.)
In the referenced rebuttal argument, the prosecutor did not imply defense counsel
“fabricated a defense.” Rather, she was arguing the evidence should be read differently
from the manner defense counsel argued, and that Doe 3’s statements could be
reconciled. This did not amount to an attack on defense counsel personally, but rather
was a permissible challenge to the persuasive force of defense counsel’s closing
argument. (See People v. Dykes, supra, 46 Cal.4th at p. 772.)
Additionally, here, the focus of the prosecutor’s referenced argument was in
interpreting Doe 3’s statement during the CART interview that she and Doe 2 “were
hanging out and when we fell asleep we were on the trampoline and he started touching
me on my private parts again.” The prosecutor’s assertion Doe 3 was listing separate
events that occurred that night, rather than explaining the touching occurred while she
was on the trampoline, was a reasonable inference to be drawn from this evidence. This
32.
was a particularly reasonable inference in light of Doe 3’s subsequent trial testimony in
which she explained these were separate events that occurred that night.
However, even if the prosecutor’s statement—“At no point is [Doe 3] saying I was
sitting on the trampoline with my cousin and we fell asleep on the trampoline that night
and the defendant touched me on the vagina that night on the trampoline”—could be
considered in conflict with Doe 3’s statement in the second CART interview, we
conclude any alleged error was harmless. Both the prosecutor and defense counsel
directed the jury to review the CART interview in resolving what Doe 3 said. (See
People v. Redd (2010) 48 Cal.4th 691, 735 [rejecting prosecutorial misconduct claim
where prosecutor’s comments “focused the jury upon the evidence rather than distracting
it from its task”].) Furthermore, the jury was instructed, “Nothing the attorneys say is
evidence. In their opening statements and closing arguments, the attorneys discuss the
case, but their remarks are not evidence. Their questions are not evidence. Only the
witness’ answers are evidence.” We presume the jury followed these instructions. (See
People v. Edwards (2013) 57 Cal.4th 658, 764 [presuming jury will follow instruction
that statements of attorneys are not evidence]; People v. Avila (2009) 46 Cal.4th 680, 719
[same]; see also People v. Bryden (1998) 63 Cal.App.4th 159, 184 [“Further, the court
instructed the jury that questions and statements by the attorneys do not constitute
evidence, and the jury is presumed to follow the court’s instructions”].) On this record,
we cannot conclude the referenced argument constituted prejudicial misconduct.
Additionally, as noted at the outset, defense counsel did not object to the
prosecutor’s statement. “[D]eciding whether to object is inherently tactical, and the
failure to object will rarely establish ineffective assistance.” (People v. Hillhouse (2002)
27 Cal.4th 469, 502.) Here, the record does not reveal why defense counsel did not
object to the prosecutor’s statements. And, while objecting was one tactical option,
defense counsel could have reasonably decided the prosecutor’s argument fell within the
bounds of proper argument in deciding not to object. Thus, we also cannot conclude
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defendant has established his counsel was ineffective for failing to object to the
challenged argument or that he was prejudiced thereby.
5. Alleged false claims about the timing of specific molestation
allegations
Defendant next argues the prosecutor falsely claimed defendant corroborated part
of Doe 1’s and Doe 2’s statements regarding when an alleged incident of sexual
misconduct occurred.
(a) Relevant Procedural History
Defendant testified there were times Doe 1 and Doe 2 would come out to the shop
while he was working there. According to defendant, one time, Doe 2 wanted to be
pushed around in the cart, and she went around taking tools off the wall. Defendant,
however, denied Doe 2 ever laid down naked on the cart. He testified he did not know if
he took Doe 1 and Doe 2 out to the shop when his wife and Ms. D. were in Arizona, but
if they did go to the shop, “they didn’t use no vibrator on ’em.”
During rebuttal argument, the prosecutor discussed the evidence presented and
stated, “You have the defendant talking about taking [Doe 1 and Doe 2] into that shop,
them being into that shop, that being his area, corroborating the exact same weekend that
[defendant’s wife] and [Ms. D.] were out of the house.”
(b) Analysis
Defendant contends the cited rebuttal argument was false because defendant never
said he took Doe 1 and Doe 2 to the shop behind his residence during the weekend his
wife and Ms. D. went to Arizona. He asserts the false statement that defendant
corroborated the incident “lent a certainty to a claim by [Doe 1 and Doe 2] that had as
many inherent problems as the other shifting stories of victimization in this case.” The
People concede the prosecutor misstated that defendant corroborated that he, Doe 1, and
Doe 2 went to his shop during the weekend his wife and Ms. D. were gone, but they
assert the error was harmless. We agree any alleged error was harmless.
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Prosecutorial misconduct occurs where a prosecutor misstates evidence during
argument or makes statements regarding facts that are not in evidence. (People v. Linton
(2013) 56 Cal.4th 1146, 1207; People v. Davis (2005) 36 Cal.4th 510, 550.) When
evaluating claims of improper argument to the jury, “‘“the question is whether there is a
reasonable likelihood that the jury construed or applied any of the complained-of remarks
in an objectionable fashion.”’” (People v. Adams (2014) 60 Cal.4th 541, 568.)
We conclude there is not a reasonable likelihood the jury construed or applied the
complained-of remarks in an objectionable fashion. Here, the challenged comment was
brief and minor in the context of the argument as a whole. The prosecutor did not engage
in repeated or egregious conduct. And, as discussed, the jury was instructed the
attorneys’ statements are not evidence and we presume the jury followed these
instructions.
Additionally, the evidence supporting the related charged crimes was strong. Both
Doe 1 and Doe 2 separately discussed details of the incident involving Doe 1 taking
photographs of Doe 2 using a vibrator while on an orange hydraulic lift at defendant’s
shop at his direction. They both described the vibrator, the circumstances of the incident
including how and where it took place, and that Doe 1 took pictures on defendant’s flip
phone. Doe 1 explained the presentation at her school regarding the taking of child
pornography prompted her to disclose the incident, and other evidence corroborated Doe
1’s claim such a presentation was shown at her school in February of 2016 before she
disclosed the incident. On this record, we cannot conclude it was reasonably probable the
prosecutor’s brief misstatement during closing argument affected the jury’s verdict.
Rather, we conclude the alleged error was harmless.
6. Alleged misrepresentation of medical records corroborated Doe 3’s
claims
Defendant next argues the prosecutor falsely stated Doe 3’s medical records
corroborated her claims.
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(a) Relevant Procedural History
Ms. M. testified there was a certain period of time during which Doe 3 was getting
urinary tract infections. She recalled a specific instance in 2014 when Doe 3 had sharp
pain when she urinated, and she was diagnosed with a urinary tract infection. The
prosecutor moved to introduce Doe 3’s medical records related to that incident as an
exhibit. In response to further questioning, Ms. M. testified Doe 3 had zero urinary tract
infections since defendant stopped seeing her.
In argument, the prosecutor directed the jury to Doe 3’s medical records and
stated:
“Do these medical records prove that the defendant put his penis in [Doe
3]’s vagina? No. Why did you hear about them? Because it shows that
Doe 3 had pain. She had pain in her stomach, and she had pain when she
was urinating. And her mom took her to the doctor.… [¶] But what do we
know about these medical records? What do we know about these urinary
tract infections that [Doe 3] got frequently? That she got zero after she
stopped being around the defendant. Not one, not less frequent, not as
many as before. Zero. None. And that’s corroboration. That’s
circumstantial evidence.”
During defense counsel’s closing argument, she, too, discussed Doe 3’s urinary
tract infections:
“Also, of great significance, and you’ll be able to see it back in the jury
room, is that [Doe 3], in 2014, did go to the doctor for urinary tract
infections. Her mother testified that her mother gets urinary tract
infections. Their whole family gets urinary tract infections. That’s not the
issue. The issue is during that visit the doctor actually did a full exam. No,
they didn’t use instruments, but they did an exam. Look at the medical
exam when you’re back in the jury room. It says ‘genital exam.’ It says
‘normal.’ So if a little girl was being raped by a grown man, it would not
be normal. Again, this information was never requested by Detective
Cotton.”
And in rebuttal, the prosecutor again noted, “You have the medical records that
show that [Doe 3] got UTIs frequently. As soon as she wasn’t around the defendant
anymore, she got zero.”
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(b) Analysis
Defendant contends the prosecutor’s statement in rebuttal constituted misconduct
because it was a false statement; rather, “[t]here was no medical evidence that [Doe 3]
had frequent urinary tract infections that ceased when she was separated from
[defendant].” The People concede the medical records only discuss one urinary tract
infection rather than frequent urinary tract infections. However, they argue the
prosecutor’s misstatement was harmless because there was other evidence Doe 3 got
frequent urinary tract infections, namely Ms. M.’s testimony. Accordingly, they contend
there was not a reasonable probability the jury would have rendered a more favorable
outcome absent the prosecutor’s statement. We agree with the People and again, we find
no prejudice.
Here, both the prosecutor and defense counsel argued Doe 3 went to the doctor for
urinary tract infections (plural). But they both directed the jury to review the medical
records, which reflected a single urinary tract infection diagnosis. Ms. M. testified Doe 3
got urinary tract infections during a certain period of time and that Doe 3 had not had any
such infections once she stopped seeing defendant. The jury was instructed: “Evidence
is the sworn testimony of witnesses and exhibits that were admitted into evidence,” and
that nothing the attorneys say is evidence, and we presume the jury followed this
instruction. On this record, we cannot conclude the prosecutor’s brief comment
prejudiced defendant.
7. Argument that defendant’s ability to achieve erection and
ejaculation was not relevant to the charges
Defendant contends the prosecutor committed misconduct by stating defendant
was not charged with getting an erection and that he was not required to achieve an
erection under the law.
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(a) Relevant Procedural History
During trial, defendant testified his sex life changed as he got older because his
penis did not function at full capacity anymore due to his diabetes. He explained, for a
long time, he was physically unable to have sex. In rebuttal, the prosecutor addressed
defendant’s alleged inability to get an erection:
“Regarding the defendant not being able to get an erection, I have one word
for you: Foreplay. That’s what he does when he’s masturbating while
touching [Doe 2]’s vagina. That’s what he’s doing when he’s masturbating
and putting his penis on [Doe 3]’s stomach and putting his penis in [Doe
3]’s mouth. That is called foreplay. The defendant is not charged with
getting an erection. He’s not required to have an erection under the law at
all.” (Italics added.)
(b) Analysis
Defendant argues the prosecutor’s statement in rebuttal was false and prejudicially
misleading as a matter of fact and law because his “sexual health was highly relevant on a
number of points,” and he was required to have an erection for counts 1 through 3 for sex
with a child under 10 years of age. The People respond, though defendant’s ability to get
an erection may have been relevant to the case, it was not required to prove any of the
sexual crimes of which defendant was convicted; thus, the prosecutor’s argument was
proper. We agree with the People and cannot conclude the cited argument was
prejudicial misconduct.
While defendant’s ability to obtain an erection may have been relevant to his
defense, the referenced statements in the prosecutor’s rebuttal are true: it was not an
element of any of the charged crimes and there was no requirement under the law that the
prosecution prove defendant was able to have an erection for defendant to be convicted of
the charged crimes. Thus, we cannot conclude the challenged statement was misconduct.
It also bears noting, defendant did not testify he was completely unable to achieve
an erection, but rather for a long time he was physically unable to have sex, and his penis
functioned, but not at full capacity. No evidence was introduced as to when this alleged
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decrease in functionality occurred and whether the timing overlapped with the charged
offenses reducing the potential relevance of such evidence to the charged crimes. On this
record, we also cannot conclude defendant was prejudiced by the prosecutor’s statement.
8. Alleged misrepresentation of DNA data
Defendant next contends the prosecutor falsely argued seminal fluid was found in
the upholstery of defendant’s truck.
(a) Relevant Procedural History
Julie Hale, a Forensic Criminalist from the Department of Justice (DOJ), testified
she examined pieces of seat material from defendant’s truck for stains that visually
appeared to be biological fluid. One of the samples tested positive for P-30, a protein
found in high concentration in seminal fluid, but that could also be found in other bodily
fluids including vaginal secretions, breast milk, and male urine.
During argument, the prosecutor noted Hale’s testimony that the P-30 protein was
found in the part of defendant’s truck where Doe 2 described an incident occurring during
which defendant pulled her pants down, put his finger in her vagina while masturbating
himself, and ejaculated. The prosecutor noted such evidence was “[a]bsolutely not” a
“smoking gun,” but still was circumstantial evidence. The prosecutor noted, “It’s not a
slam dunk saying this actually happened, but it’s not [sic] there exactly in the same place
that [Doe 2] said it would be.”
In defense counsel’s closing argument, he argued: “Another critical case is they
tested two different vehicles of [defendant]’s. They cut on the cushions and had them
tested for semen. The DOJ came and testified there was no semen on any seat cover at
all. None, zero. Not on truck one, and not on truck two.” “Now, given the statements
made by the girls that involved semen and ejaculation and digital penetration and all of
these very specific statements, that would be a really good time [for Detective Cotton] to
sit down and talk to the girls and say, hey, there’s zero semen. Not like a little bit, not
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like there’s not enough to test. There’s actually none. Zero. But no, she didn’t do that,
because, again, there was no thorough investigation.”
In rebuttal, the prosecutor again noted the jury heard “evidence from the
Department of Justice that P-30, which is the protein found in seminal fluid, doesn’t have
to have semen in it. It’s the protein found in seminal fluid and vaginal secretions were
[sic] found in the back seat of the defendant’s truck, exactly where [Doe 2] said this
incident happened.” (Italics added.)
(b) Analysis
Defendant argues the prosecutor’s assertion seminal fluid was found in
defendant’s truck was false and “in no way a fair comment on the evidence.” He argues
the criminalist testified P-30 is found in vaginal secretions, breast milk, male blood, and
urine, and she could not name the source of the P-30 found in defendant’s truck. He
notes “the jury rejected [Doe 2]’s allegations about sex in [defendant’s] truck,” “[b]ut the
jury likely took the prosecutor’s false statement about [Doe 3]’s medical records and
combined it with her false statement about finding seminal fluid in the truck as
corroboration for [Doe 3]’s … claims about being molested and about intercourse in
[defendant’s] truck.” The People respond the prosecutor properly stated, “[A] protein
found in seminal fluid was found in the upholstery of [defendant’s] truck.” We agree
with the People.
The prosecutor’s statements were fair comments on the evidence presented.
Relying on the criminalist’s testimony, the prosecutor argued P-30, a protein found in
high concentrations in seminal fluid along with other bodily fluids, was found in
defendant’s truck. The prosecutor noted such evidence was not a smoking gun or a slam
dunk, but nonetheless constituted circumstantial evidence of the charged crimes. We
cannot conclude the referenced argument was misconduct.
40.
9. Alleged misrepresentation of defendant’s testimony
Finally, defendant contends the prosecutor “materially” and “prejudicially”
misrepresented his testimony by arguing he corroborated the molest allegations.
(a) Relevant Procedural History
The prosecutor argued defendant, in his testimony, corroborated statements made
by Doe 3 and Doe 2. She argued, “Every time [Doe 3] talked about a specific incident,
the defendant corroborated it. He just left out the molesting, but he remembered the
exact same details.”
“You have the defendant corroborating that exact trip from LA, that
trip to Nevada, that trip to the Sequoias.
“And I’m only going to use one pencil, because he corroborated that
trip to the airport, too. He corroborated every single incident that [Doe 3]
described, that [Doe 2] described. He just left out the points where he
molested them.” (Italics added.)
(b) Analysis
Defendant claims the prosecutor’s assertion that he corroborated the incidents Doe
3 and Doe 2 described was false. He asserts, “To corroborate the molest claims, [he]
would have had to have made an admission that [Doe 3] was correct about what
happened during the incidents.” Again, we disagree with defendant’s characterization of
the challenged argument and find no prejudicial misconduct.
Contrary to defendant’s assertions, the prosecutor expressly noted defendant did
not corroborate the molest allegations. Rather, she argued defendant’s testimony
confirming that he went to Sequoia National Park and Nevada with Doe 3 and Los
Angeles with Doe 2 corroborated their testimony that the trips occurred and that
defendant was with them on specific occasions. Such argument was a fair comment on
the evidence and did not constitute misconduct.
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III. The Court Did Not Prejudicially Err in Failing to Instruct the Jury With
CALCRIM No. 1191A
Defendant next contends the court erred in failing to sua sponte instruct the jury
with CALCRIM No. 1191A, which limits the jury’s consideration of uncharged offenses.
The court did not prejudicially err.
A. Relevant Procedural History
Before trial, the prosecutor noted uncharged offenses admitted pursuant to
Evidence Code sections 1101, subdivision (b), and 1108 are not subject to the proof
beyond a reasonable doubt standard, but rather a preponderance of the evidence standard.
However, the prosecutor asked the court to instruct the jury only with the higher, proof
beyond a reasonable doubt standard, even regarding the propensity evidence.
During her CART interviews and at trial, Doe 3 discussed certain acts of abuse
occurring on a trip with defendant to Nevada and on the way to Sequoia National Park.
And Doe 2 testified defendant touched her inappropriately on a trip back from Los
Angeles.
In summation, the prosecutor expressly noted defendant was not charged with
these specific incidents. She explained the Sequoia National Park incident was not
charged because it “could be Fresno, could be Tulare County. We have jurisdiction
here.” Similarly, she reminded the jury, “that Nevada incident is not charged because,
again, it happened in Nevada. We’re in the State of California.” Likewise, she stated
because Doe 2 could not give a specific location regarding the touching that took place
near an off-ramp, and it was unclear whether the incident occurred in Tulare, Kern, or
Los Angeles County, this incident was not charged in this case. Accordingly, the jury
could not convict defendant of that charge. The prosecutor further explained the trips to
Nevada, Los Angeles, and to the Sequoias could be used “to decide if the defendant was
inclined or disposed to commit the other crimes that happened in our jurisdiction.”
42.
B. Standard of Review and Applicable Law
“[E]vidence of a defendant’s other sex offenses constitutes relevant circumstantial
evidence that he committed the charged sex offenses. A properly instructed jury will …
be given the usual instructions regarding the presumption of defendant’s innocence and
the prosecutor’s proof burden. Additionally …, at the defendant’s request, the jury may
be told that evidence of his other sexual offenses is not sufficient by itself to prove his
commission of the charged offense, that the weight and significance of the evidence, if
any, is for the jury to decide, and that unless otherwise instructed, the jury may not
consider this evidence for any other purpose.” (People v. Falsetta (1999) 21 Cal.4th 903,
920.)
CALCRIM No. 1191A instructs the jury on the consideration of uncharged sex
offenses and provides:
“The People presented evidence that the defendant committed the
crime[s] of ___________ that (was/were)
not charged in this case. (This/These) crime[s] (is/are) defined for you in
these instructions.
“You may consider this evidence only if the People have proved by
a preponderance of the evidence that the defendant in fact committed the
uncharged offense[s]. Proof by a preponderance of the evidence is a
different burden of proof from proof beyond a reasonable doubt. A fact is
proved by a preponderance of the evidence if you conclude that it is more
likely than not that the fact is true.
“If the People have not met this burden of proof, you must disregard
this evidence entirely.
“If you decide that the defendant committed the uncharged
offense[s], you may, but are not required to, conclude from that evidence
that the defendant was disposed or inclined to commit sexual offenses, and
based on that decision, also conclude that the defendant was likely to
commit [and did commit] ___________, as
charged here. If you conclude that the defendant committed the uncharged
offense[s], that conclusion is only one factor to consider along with all the
other evidence. It is not sufficient by itself to prove that the defendant is
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guilty of ___________. The People must
still prove (the/each) (charge/ [and] allegation) beyond a reasonable doubt.
“[Do not consider this evidence for any other purpose [except for the
limited purpose of ______________].]”
Ordinarily, the court does not have a sua sponte duty to instruct the jury with
CALCRIM No. 1191A. (People v. Cottone (2013) 57 Cal.4th 269, 293, fn. 15; see
People v. Falsetta, supra, 21 Cal.4th at p. 924 [“the trial court ordinarily has no sua
sponte duty to instruct the jury as to the admissibility or use of other crimes evidence”].)
C. Analysis
Defendant argues the court erred in failing to instruct the jury with CALCRIM
No. 1191A, which left the jury free to convict defendant based on uncharged acts that
were not shown to have occurred in Tulare County, the jurisdiction of the court. He
contends his convictions must be reversed because “it is impossible to tell whether the
jury’s verdicts rest upon legally adequate grounds or inadequate grounds.” In his reply
brief, defendant concedes the trial court does not have a sua sponte duty to instruct the
jury with CALCRIM No. 1191A; but he argues for the first time, if this issue is waived
based on his counsel’s failure to request such an instruction, his counsel was ineffective.
The People, too, note the trial court had no sua sponte duty to instruct the jury with
CALCRIM No. 1191A and, irrespective, any alleged error was harmless because
overwhelming evidence supports defendant’s convictions.
As the parties acknowledge, the trial court had no sua sponte duty to instruct the
jury with CALCRIM No. 1191A, and defendant never requested such an instruction.
(See People v. Cottone, supra, 57 Cal.4th at p. 293, fn. 15; see also People v. Falsetta,
supra, 21 Cal.4th at p. 924.) However, even assuming, arguendo, the issue was
sufficiently preserved for our review, any alleged error in failing to instruct the jury on
how to use the propensity evidence was harmless.
44.
Here, the prosecutor explicitly informed the jury the alleged incidents that
occurred outside of Tulare County were not charged in this case, and defendant could not
be convicted based on those incidents. Indeed, the prosecutor expressly clarified the
defendant was not charged with putting his finger inside Doe 3’s vagina on the trip to
Nevada; rather, Doe 3 said it happened at least 10 times and defendant was only charged
in three counts. Similarly, the prosecutor noted defendant was not charged with touching
Doe 3’s hand to his penis on the trip to Sequoia National Park; rather, Doe 3’s other
testimony provided a basis for the charged offenses. Additionally, the jury was instructed
the prosecutor had the burden of proving each charge and allegation beyond a reasonable
doubt. Neither party argued to the jury that they should convict defendant based on the
uncharged incidents that occurred outside of Tulare County. And the uncharged crimes
were no more inflammatory than the charged crimes, which were supported by
substantial evidence as discussed further. On this record, we conclude any alleged error
in failing to instruct the jury with CALCRIM No. 1191A was harmless. (See People v.
Falsetta, supra, 21 Cal.4th at pp. 924–925; see generally People v. Watson (1956) 46
Cal.2d 818, 838.)
IV. Sufficiency of the Evidence
Finally, defendant argues there is insufficient evidence to support his convictions.
We reject defendant’s challenges and affirm each of his convictions.
A. Standard of Review
On appeal, the relevant inquiry governing a challenge to the sufficiency of the
evidence “‘is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) The
reviewing court’s task is to review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence—evidence that is
45.
reasonable, credible, and of solid value upon which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297,
331; People v. Johnson (1980) 26 Cal.3d 557, 578.)
We “presume in support of the judgment the existence of every fact the jury could
reasonably have deduced from the evidence.” (People v. Zamudio (2008) 43 Cal.4th 327,
357.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon
no hypothesis … is there sufficient substantial evidence to support”’ the jury’s verdict.”
(Ibid.)
“In deciding the sufficiency of the evidence, a reviewing court resolves neither
credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and
inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]
Moreover, unless the testimony is physically impossible or inherently improbable,
testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v.
Young (2005) 34 Cal.4th 1149, 1181.)
“‘“‘[A]lthough an appellate court will not uphold a judgment or verdict
based upon evidence inherently improbable, testimony which merely
discloses unusual circumstances does not come within that category.
[Citation.] To warrant the rejection of the statements given by a witness
who has been believed by a trial court, there must exist either a physical
impossibility that they are true, or their falsity must be apparent without
resorting to inferences or deductions. [Citations.] Conflicts and even
testimony which is subject to justifiable suspicion do not justify the reversal
of a judgment, for it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts
upon which a determination depends.’”’” (People v. Dalton (2019) 7
Cal.5th 166, 209.)
B. Applicable Law
Generic testimony regarding molestations may be sufficiently substantial from an
evidentiary standpoint. (See People v. Jones (1990) 51 Cal.3d 294, 314–316.) “[E]ven
generic testimony (e.g., an act of intercourse ‘once a month for three years’) outlines a
46.
series of specific, albeit undifferentiated, incidents, each of which amounts to a separate
offense, and each of which could support a separate criminal sanction.” (Id. at p. 314.)
And “the particular details surrounding a child molestation charge are not elements of the
offense and are unnecessary to sustain a conviction.” (Id. at p. 315.)
“The victim … must describe the kind of act or acts committed with
sufficient specificity, both to assure that unlawful conduct indeed has
occurred and to differentiate between the various types of proscribed
conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy).
Moreover, the victim must describe the number of acts committed with
sufficient certainty to support each of the counts alleged in the information
or indictment (e.g., ‘twice a month’ or ‘every time we went camping’).
Finally, the victim must be able to describe the general time period in
which these acts occurred (e.g., ‘the summer before my fourth grade,’ or
‘during each Sunday morning after he came to live with us’), to assure the
acts were committed within the applicable limitation period. Additional
details regarding the time, place or circumstance of the various assaults
may assist in assessing the credibility or substantiality of the victim’s
testimony, but are not essential to sustain a conviction.” (People v. Jones,
supra, 51 Cal.3d at p. 316.)
C. Analysis
Defendant challenges the sufficiency of the evidence in support of each of his
convictions. We reject defendant’s assertions.
1. Counts 1–41 committed against Doe 3
With regard to the counts committed against Doe 3, defendant argues Doe 3’s
testimony was inherently improbable or physically impossible and should be discredited
because her allegations changed over time and she continued to visit defendant and his
wife despite the alleged abuse. He contends he “could not have been driving around with
[Doe 3] in his truck assaulting her on a daily basis because she was in school nine months
of the year.” He further asserts there was evidence “the molestation allegations were
very likely orchestrated by [defendant’s wife] for financial gain.” The People respond
the record contains overwhelming evidence supporting these counts. Relying on People
v. Jones, supra, 51 Cal.3d 294, the People argue cases involving a resident child molester
47.
often involve victims who testify to repeated acts of molestation over an extended period
of time may lack details, dates, or distinguishing characteristics as to individual acts of
abuse. They assert Doe 3 credibly explained she became more comfortable discussing
the full extent of the molestations over time and after going to therapy. Additionally, the
jury considered and rejected defendant’s arguments there was no physical evidence of
assault, that defendant’s wife orchestrated the allegations for her own financial gain, and
that evidence the girls enjoyed visiting defendant’s house undermined their allegations.
We agree with the People.
As detailed post, our review of the record establishes substantial evidence supports
defendant’s convictions against Doe 3. That Doe 3’s allegations grew and evolved over
time does not affect our conclusion. “[I]t is the exclusive province of the trial judge or
jury to determine the credibility of a witness.” (People v. Jones, supra, 51 Cal.3d at p.
314.) And, here, the jury was made aware of the discrepancies in Doe 3’s various
accounts and nonetheless found her allegations to be credible. They were also presented
with the defense theory that defendant’s wife orchestrated the allegations, but presumably
rejected this defense in convicting defendant of the charged crimes. There was nothing
inherently implausible about Doe 3’s testimony, and nothing in the evidence establishes
defendant’s acts were physically impossible. The jury could have reasonably rejected
defendant’s theory of the case and instead accepted Doe 3’s allegations. And, as further
detailed, our review of the record establishes substantial evidence supports defendant’s
convictions.
(a) Counts 1–3: Sexual intercourse with a child 10 years of
age or younger
First, substantial evidence supports the jury’s verdicts on counts 1, 2, and 3 for
sexual intercourse with a child 10 years old or younger in violation of Penal Code section
288.7, subdivision (a). Here, multiple witnesses including defendant testified Doe 3
would regularly spend time at defendant’s place of business and house, and Doe 3 spent
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substantial time alone with him. During her second CART interview, Doe 3 disclosed
defendant had put his penis “inside the line” of her vagina. At trial, Doe 3 again stated
defendant put his penis inside the line of her vagina, and this occurred at least three times.
There was nothing inherently improbable or unbelievable about Doe 3’s
statements. (See People v. Dalton, supra, 7 Cal.5th at p. 209 [“‘“‘Conflicts and even
testimony which is subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a determination
depends’”’”].) Though defendant denied Doe 3’s allegations, the jury accepted Doe 3’s
version of the events and “it is not a proper appellate function to reassess the credibility
of the witnesses.” (People v. Jones, supra, 51 Cal.3d at pp. 314–315.) Accordingly, we
conclude sufficient evidence supports defendant’s convictions of counts 1, 2, and 3. (See
id. at p. 316 [concluding where victim specifies type of conduct involved and its
frequency and that such conduct occurred during limitation period, “[n]othing more is
required”].)
(b) Counts 4–12: Oral copulation/sexual penetration with
child under 10
We next conclude substantial evidence supports defendant’s convictions on counts
4–12 for oral copulation/sexual penetration with a child under 10 in violation of Penal
Code section 288.7, subdivision (b).
In counts 4–6, defendant was convicted of orally copulating Doe 3 when she was
10 years old or younger. During her second CART interview, Doe 3 reported defendant
would push his face into her private area, and he would put his tongue inside her
“private.” At trial, she testified defendant put his mouth on her vagina more than three
times. She described a particular incident to Detective Cotton when she was at the shop
with defendant and his wife, and defendant’s wife left to go to the store. After she left,
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defendant pulled down Doe 3’s pants and underwear, resulting in scratches on her legs.
Defendant then licked Doe 3’s vagina.
Defendant was convicted in counts 7–9 of having Doe 3 orally copulate him. Doe
3 testified defendant put his penis in her mouth more than three times. During one of her
CART interviews, Doe 3 recalled defendant tried to force his penis into her mouth and to
make her eat the “stuff” that came out of it. Doe 3 told Detective Cotton her mouth was
on defendant’s penis at the shop at least three times while defendant moved his lower
body back and forth. Doe 3 reported to Detective Cotton that defendant would grab her
by her head and force her mouth on it; one time, Doe 3 bit defendant and he got upset and
did not speak to her for the rest of the day.
And in counts 10–12, defendant was convicted of digitally penetrating Doe 3.
During both CART interviews, Doe 3 reported defendant had put his fingers inside her
vagina. At trial, Doe 3 again repeated this allegation, stating defendant put his fingers
inside her vagina more than three times and moved them up and down. She testified this
occurred “almost every day,” when they were either at his house or at the shop.
Again, defendant denied all of Doe 3’s allegations regarding the inappropriate
touching related to these counts. But the jury resolved the conflict in the evidence in
favor of Doe 3 and found her account to be more credible. As discussed, “‘[w]e do not
reweigh evidence or reevaluate a witness’s credibility.’” (People v. Brown (2014) 59
Cal.4th 86, 106.) And again, we cannot conclude the presented evidence of these counts
was inherently improbable or physically impossible. Rather, substantial evidence
supports these convictions.
(c) Counts 13–41: Forcible lewd act upon a child (Doe 3)
We also conclude sufficient evidence supports defendant’s convictions for the
remaining counts committed against Doe 3, counts 13–41, for forcible lewd acts upon a
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child in violation of Penal Code section 288, subdivision (b). We discuss each of
defendant’s related convictions and the supporting evidence admitted at trial in turn.
In counts 13–15 defendant was convicted of touching his penis to Doe 3’s vagina.
During her second CART interview and at trial, Doe 3 could not recall exactly how many
times this happened, but, both times, she reported this occurred “a lot.”1 Doe 3 described
specific incidents during her CART interview. She explained that when she was at the
shop with defendant, he would make her sit on his lap facing towards him with her legs
wrapped around his back and his penis would touch her vagina. She also described a
time when this occurred before defendant rolled her over and “stuff” came out on her
back.
In count 16 defendant was convicted of touching his penis to Doe 3’s buttocks.
Both at trial and during her second CART interview, Doe 3 explained defendant touched
his penis to her buttocks and it was uncomfortable and painful. During her CART
interview, she explained this happened once or twice; she recalled that she said “no,” but
defendant held her down. At trial, Doe 3 stated this type of touching occurred more than
three times.
In counts 17–19, defendant was convicted of putting his penis on Doe 3’s
stomach. Doe 3 testified this occurred on more than three occasions. During a CART
interview, Doe 3 specifically recalled white stuff coming out of defendant’s penis onto
her stomach.
In count 20, defendant was convicted of putting his hand to Doe 3’s vagina in the
car. At trial and during a CART interview, Doe 3 discussed a specific incident when
defendant touched her “private part” over her clothes in the car on the way home from
1It
bears noting Doe 3 also testified at trial that defendant’s front middle part touched her
front middle part “not often,” “[m]ore like twice.”
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dropping off defendant’s wife at the airport. Doe 3 asked defendant to take her home
because she felt uncomfortable.
In counts 21–23 defendant was convicted of putting his hand to Doe 3’s vagina
while they were at the shop, defendant’s place of business. Doe 3 testified defendant
touched her private with his fingers and hand at least five times when they were at the
shop. She recalled sitting on defendant’s lap at the computer and defendant would “reach
over and try to touch [her] privates.” People would be around but defendant “tried to be
sneaky about it.” She described a specific incident when defendant rubbed her private
part in the office while his wife took out the trash.
In counts 24–26, defendant was convicted of touching his hand to Doe 3’s vagina
at his house. Doe 3 testified defendant touched her vagina with his hands more than five
times in his bedroom when his wife was not home, or she was in the shower. She also
recalled him touching her private at the shop behind his house. At trial and during a
CART interview, Doe 3 recalled a specific incident when defendant touched her private
under her bathing suit while his wife went to get a towel.
In counts 27–29, defendant was convicted of putting his mouth to Doe 3’s breasts.
Doe 3 testified defendant put his mouth to her breast more than five times. During her
CART interview, she explained defendant would comment that her breasts were getting
large, squeeze them, and put his mouth on them.
In counts 30–32, defendant was convicted of putting his hand to Doe 3’s breast.
Doe 3 testified defendant touched her breasts with his hands more than five times.
During her CART interview, Doe 3 explained she would sleep in a big T-shirt and
defendant would touch her breasts under her shirt.
In counts 33–35, defendant was convicted of touching Doe 3’s buttocks with his
hand. At trial, Doe 3 testified defendant would touch her buttocks with his hands “a lot”
and that he squeezed her “butt” more than five times.
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In counts 36–39 defendant was convicted of kissing Doe 3. Ms. M. and Doe 2
testified they saw defendant kiss Doe 3 on the lips. And at trial and during her CART
interviews, Doe 3 reported defendant would regularly kiss her on the lips when he
dropped her off; he did it more than 10 times.
In counts 39–41, defendant was convicted of putting Doe 3’s hand to his penis.
Doe 3 reported in her CART interview and testified at trial that defendant forced her to
touch his genital area by grabbing her hand and putting it on his “private.” She reported
to Detective Cotton this occurred three to four times; defendant would unzip his pants
and her hand would touch his penis through the zipper.2 Doe 3 testified she specifically
recalled defendant forcing her hand to his “private part” the day before she disclosed the
molest in February 2016.
Again, defendant denied all of the charges, and Doe 3 did not initially disclose all
of the incidents of molest. However, as detailed, Doe 3 did eventually report each of the
charged incidents of molest and the jury credited her reports in convicting defendant of
the charges. There was nothing inherently improbable or impossible about Doe 3’s
allegations. And we reject defendant’s challenge to his convictions based not on an
absence of substantial evidence, but rather on challenges to the credibility of, and
supposed inconsistencies in Doe 3’s testimony. (People v. Young, supra, 34 Cal.4th at p.
1181 [appellate court will not address sufficiency-of-the-evidence challenges by
assessing credibility issues or weighing evidentiary conflicts]; People v. Mayberry (1975)
15 Cal.3d 143, 150 [evidentiary “‘“[c]onflicts and even testimony which is subject to
justifiable suspicion”’” are not grounds for reversal, since credibility matters are the
“‘“exclusive province of the trial judge or jury”’”].) Rather, we conclude substantial
evidence supports defendant’s convictions of counts 13–41.
2At trial, Doe 3 initially did not recall defendant’s “private part” touching her hand, but
later reported this occurred. In her CART interview, Doe 3 reported this occurred two times,
once during the uncharged incident to Sequoia National Park.
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2. Counts 46, 52, and 53 committed against Doe 1 and Doe 2
Defendant also challenges his convictions for acts against Doe 1 and Doe 2. We
address and reject each of defendant’s challenges in turn.
(a) Counts 46: Lewd act upon a child (Doe 2) and Count 53:
Using a minor for sex acts (Doe 1)
Defendant asserts insufficient evidence supports his convictions for counts 46 and
53—committing a lewd act upon a child (Doe 2) in violation of Penal Code section 288,
subdivision (a) and using a minor (Doe 1) for sex acts in violation of section 311.4,
respectively—in connection with an incident in his shop when he had Doe 1 photograph
Doe 2 using a vibrator on her vagina. He asserts Doe 2 and Doe 1 told “wildly different
stories about the incident in the shop” and their testimony was “inherently improbable or
physically impossible.” Doe 2 stated she was asked to remove all her clothes; whereas,
Doe 1 recalled Doe 2 only pulling down her pants. Doe 2 did not remember what the
vibrator felt like, which defendant contends she “would certainly remember.” Doe 1
testified she was sitting on the couch with defendant’s wife before going to the shop, but
Doe 2 denied that she was in the shop with defendant before Doe 1 arrived. Doe 2
thought defendant’s flip phone was black while Doe 1 thought it was blue. Defendant
further asserts “[a] vibrator in a [minor]’s vagina would have produced injury and
bleeding.” The People respond defendant’s arguments on appeal are nothing other than
an attack on witness credibility, and the proffered evidence was not inherently
improbable. We agree with the People.
Substantial evidence supports defendant’s convictions for counts 46 and 53. At
trial, both Doe 1 and Doe 2 testified regarding the charged misconduct. Doe 1 testified
she recalled an incident that occurred in the shop behind defendant’s house with Doe 2
and defendant. Defendant pulled out a piece of carpet and put it on top of an orange lift.
The People introduced a photograph of an orange-colored hydraulic lift that is inside the
shop area of defendant’s residence. According to Doe 1, defendant told Doe 2 to take off
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her pants and lie down on the carpet. He handed Doe 2 a pinkish vibrator and told her to
put it in her vagina. He told Doe 1 to use his blue flip phone to take photographs of Doe
2’s vagina while Doe 2 inserted the vibrator in her vagina.
Doe 2 also testified regarding the incident. She explained she went to the shop
behind defendant’s house with defendant and Doe 1. Doe 2 testified she took off her
clothes and sat down on an orange lift at defendant’s direction. Defendant then handed
her a pink vibrator and had her put it in her vagina. He handed Doe 1 his flip phone and
told her to take pictures of Doe 2 putting the vibrator in her vagina. Doe 2 initially
testified the flip phone was black, but she later confirmed it was dark blue.
This testimony provided substantial evidence—evidence that was reasonable,
credible, and of solid value, upon which a reasonable trier of fact could find defendant
guilty beyond a reasonable doubt—of counts 46 and 53. (See People v. Bolin, supra, 18
Cal.4th at p. 331.) To the extent there were minor inconsistencies regarding the details of
the circumstances surrounding the incident, “[r]esolution of … inconsistencies in the
testimony is the exclusive province of the trier of fact.” (People v. Young, supra, 34
Cal.4th at p. 1181.) Additionally, contrary to defendant’s assertion, there is no evidence
it was inherently improbable or physically impossible that the incident testified to by Doe
2 and Doe 1 occurred and it did not result in substantial physical injury to Doe 2. Rather,
substantial evidence supports defendant’s convictions of counts 46 and 53. (See People
v. Austin (1980) 111 Cal.App.3d 110, 115, see id. at pp. 114–116 [defendant who ordered
child to remove her own pants was liable for commission of lewd act against the child;
defendant “was responsible for the touching and removal of the child’s pants as surely as
if he had done it himself”].)
(b) Count 52: Lewd act upon a child (Doe 2)
Defendant next argues there was “no evidence” to support count 52, which related
to defendant touching Doe 2’s thigh in violation of Penal Code section 288, subdivision
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(a). He argues the evidence is insufficient to sustain this conviction because Doe 1 did
not report the incident to law enforcement and Doe 2 testified Doe 1 was not in the truck
when the touching occurred.
However, Doe 2 expressly testified that, more than once, defendant rubbed her
thigh with his hand. Doe 1 testified she saw defendant touch Doe 2’s thighs over her
clothes while in his truck when they would go to the store. Though Doe 2 did not
remember defendant touching her thigh while Doe 1 was in the vehicle, she did not
testify this did not occur. Both Doe 2’s and Doe 1’s testimonies provided substantial
evidence in support of defendant’s conviction of count 52.
On this record, we reject all of defendant’s challenges to the sufficiency of the
evidence in support of his convictions.
DISPOSITION
The judgment is affirmed.
PEÑA, J.
WE CONCUR:
FRANSON, Acting P.J.
SNAUFFER, J.
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