Opinion
C076351
11-17-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL MANN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F04981)
Defendant Michael Mann appeals from his convictions of sexually abusing a minor. He contends prejudicial error occurred in his trial because (1) the trial court refused to allow him to represent himself; (2) defense counsel rendered ineffective assistance by not objecting to expert testimony on Child Sexual Abuse Accommodation Syndrome; (3) the court refused to allow him to cross-examine the expert witness on interrogation techniques used in a different child sex abuse case; (4) the court refused to allow him to impeach the testifying victim; (5) prosecutorial misconduct; and (6) cumulative error.
We reject each of defendant's contentions except we find one incident of misconduct occurred. However, the misconduct was not prejudicial. We affirm the judgment in its entirety.
FACTS
Incidents of abuse
Defendant, at approximately 27 years of age, moved in with N. and her 12-year-old daughter, B. Defendant fathered a child, M., with N. She was born in 2012.
Defendant and N. frequently argued, separated, and reconciled. Some of the arguments became violent. After one argument, N. broke a window on defendant's car with a tire iron. After another, she broke his computer. After one argument, defendant pushed N. down and hit her leg. On another occasion, he hit her in the stomach. On both of those occasions, N. was pregnant with M. On yet another occasion when N. was pregnant, he pushed N. to the floor. N. later lost the child.
B. witnessed some of these arguments. One occurred when N. was pregnant with M. N. and B. came home from the store, and they saw defendant had broken a mirror. Glass was everywhere. Defendant came out yelling at N. He pinned her to the wall and pushed her down. He went into a room and brought out a gun, and then he went outside with it. This scared B.
In 2011 and 2012, N. tended to her mother, who had been diagnosed with cancer. N.'s mother died in April 2012, right before B. turned 14. Later that month, N. gave birth to M. Afterward, she suffered from postpartum depression. She did not give as much attention to B. after M. was born. Devastated by her grandmother's death, B. turned to defendant for support.
Defendant began calling B. beautiful. She asked him if he had a crush on her. He said, "Yes, but don't tell your mom." Once, he told her he looked at her from behind when he dropped her off at school. He also told her she looked sexy in her middle school graduation dress. He bought her expensive earphones for her 14th birthday. He offered her marijuana, which she accepted, and an ecstasy pill, which she declined.
Soon after B's 14th birthday, defendant and she began a sexual relationship. B. stated defendant knew her age because he took her to school and he celebrated her 14th birthday with her. At first, B. felt uncomfortable with their sexual relationship, but ultimately she fell in love with defendant. Sometimes she felt good about the relationship because someone was paying attention to her, but most times she felt bad about it and dirty. She felt good when defendant complimented her because she had been bullied after gaining weight, but she also felt he was taking advantage of her and she was betraying her mother.
The two had vaginal intercourse on two occasions. The first time, in defendant's truck, was painful to B. She told him to stop. She cried and saw blood in her underwear. Defendant said, "I'm sorry. I shouldn't have done that." The second time occurred in a trailer near a motel where the family was living at the time.
Defendant orally copulated B. about 15 times. During one such incident in a car, a passing motorist threw a beer bottle and hit the car door. B. did not mention that incident until shortly before trial. She did not mention it to a forensic interviewer because it was very traumatic.
Defendant and B. had anal sex more than 20 times. She described three of those incidents. On one, defendant forced her to have anal sex. B., however, told the forensic interviewer that defendant never forced her. B. did not tell the interviewer about the force incident because she had forgotten it, and she did not want to tell her. Another incident happened in an Oakland hotel bathroom. A third incident happened in the living room of the house in Sacramento in which they were living.
Defendant also digitally penetrated B.'s vagina, put his mouth on her breasts and anus, and put her hand on his penis.
Sometimes B. refused to have sex with defendant. When she did, he became angry with N., who, in turn, would ignore B. When B. consented to sex, defendant was happy and treated N. nicer. So B. did not refuse often.
Towards the end of their sexual relationship, defendant asked B. not to tell anyone about it, fearing if she did, he would go to jail. B. initially kept silent. She did not want him to leave N., because N. yelled at her when defendant was gone. She knew defendant made N. happy and feared her life would change if she told authorities.
However, losing her virginity bothered B., so around May or June 2012 she told N. she lost her virginity to a boy her age at school. N. became extremely upset. B. also told friends she lost her virginity with a boy at school. B. similarly told defendant she lost her virginity with at school. She thought defendant would want to have sex with her if he thought she was no longer a virgin.
In early 2013, B. told her friend A. she and defendant had a sexual relationship. She told A. she loved defendant. She told A. not to tell anyone because she did not want to get defendant in trouble. A., however, had her aunt call Child Protective Services (CPS).
Reporting the abuse and pretext phone calls
In February 2013, B. denied sexual abuse accusations to Oakland police, CPS, and N. She denied the accusations to N. because she was not ready for N. to know and did not want N. to be stressed. She feared if N. knew, she would hate her, and defendant's family would hate her, too.
In April 2013, B. denied sexual abuse accusations to Sacramento CPS. She said defendant was like a father to her, and there was no domestic violence in the home.
On July 30, 2013, while visiting relatives in Gilroy, N. intercepted a boy's late night telephone call to B., and she began scrolling through B.'s text messages. Fearing N. would read a text message about defendant's sexual abuse, B. told N. what had happened. N. cried and held B. B. explained she had lied when she denied the abuse to police and CPS, and she was ashamed and afraid of upsetting N.
On August 1, 2013, B. and N. told defendant's mother and his sister, Althea Edwards, about the sexual abuse. Edwards remained with N. and her children until after defendant's arrest two days later. That same day, B. met with the Galt Police Department.
On August 2, 2013, N., B., and Edwards again met with the Galt Police Department. There, B., in the presence of Edwards and two male officers, engaged in a series of recorded pretext telephone conversations with defendant. It was difficult for B. to make the calls. She felt she was betraying defendant, for whom she still had positive feelings.
Recordings of the calls were played to the jury. During the first call, B. told defendant she missed him. He said he missed her, too. B. asked him if he remembered the last time "we did it." He said, "I don't know. Why?"
"[B.]: Like, I was just wondering, like, I miss doing it with you.
"DEFENDANT: Aw, don't say that.
"[B.]: Why?
"DEFENDANT: You can't say that on the phone.
"[B.]: What? I was just asking, cause like, I don't know, it's just been, in- in- on my mind all the time.
"DEFENDANT: (laughs) Really?
"[B.]: Yeah, I miss you a lot.
"DEFENDANT: Hm.
"[B.]: Well, I just wanted to tell you I really love you."
Defendant asked her why she did not answer any of his calls the previous night. B. said she was with her dying aunt. Defendant said he loved and missed B.
In the second call, B. asked defendant if he was mad at her. He said he was mad the previous night when she did not answer his calls. B. said she missed how they used to talk. Defendant said, "[E]verything happens for a reason." She said, "I wish I could kiss you." He told her to stop. He said, "[E]verything happens for a reason, and I wish the same thing too." B. said she wished they could have sex again. Defendant laughed.
"[B.]: Do you want to?
"DEFENDANT: I'll tell you in person. (Laughs).
"[B.]: Why?
"DEFENDANT: This is not something you can talk about on the phone.
"[B.]: You don't wanna talk about that stuff?
"DEFENDANT: Not on the phone.
"[B.]: But I thought you love me.
"DEFENDANT: I do."
He said they were going to make it work, and that he would die for her.
In the third call, B. asked defendant what he missed about her. Defendant said, "I just miss being around the joy that you bring into my life." B. said she missed the time they were together in the car having fun and holding hands. She asked again what he missed about her, and he said, "I'll tell you when I see you," and he laughed. Defendant said he was getting ready to go to a club. B. told him she wished he were there so she could hug him. He said, "Somebody'll give me a hug, don't worry." B. asked if he missed kissing her. He laughed. She said, "Maybe one time we could have- we could do it again." Defendant laughed.
"[B.]: Do you want to?
"DEFENDANT: You know I miss you, [B.].
"[B.]: You don't wanna have sex with me?
"DEFENDANT: You know I miss you. I miss everything about you, [B.]"
B. said she missed him so much. He replied, "I know. I miss taking it down (laughs)." B. asked what he meant by that. He said, "Kissing it and everything." B. said, "Yeah, maybe one day again."
They ended the call by saying they missed and loved each other.
Arrest
On August 3, 2013, N. exchanged text messages with defendant to lure him to Sacramento and facilitate his arrest. After learning of the molestations, N. tried to keep normal interactions with defendant, who was working in Alameda County, except she had accepted fewer calls from him than usual and was texting him more. This apparently frustrated defendant, who texted he would come get his things and N. could be truly free. N. called the Galt Police Department to report that defendant was on his way, but she was informed to call back when he was 15 minutes away.
In a phone call that afternoon, N. was upset and told defendant she did not want to be with him anymore. She did not say anything about the abuse allegations. N. text messaged him and said, "Come get this shit. It is on the porch after 6:00 P.M. I'm putting the folder and everything out there." Defendant called and was angry. He threatened he would come and kill N. During the call, N. heard the voice of defendant's boss, Rick, in the background.
After the call, N., B., M., and Edwards went to N.'s car to leave. N. did not put any of defendant's belongings on the porch. After getting in the car, B. saw defendant's truck parked nearby. N. immediately called 911. Defendant "practically flew down the stairs" from the apartment, ran to the car, and threw a Kindle at the car window. N. testified he yelled, "I'm going to effing kill you, [you] effing B, and all—just very angry." He jumped on top of the car next to N.'s and kicked her driver's side window in while she was trying to back out, avoid him, and talk to 911 on the phone.
N. told the 911 operator it looked like defendant pulled out a gun and that he had a pistol. At trial, she testified she never saw a gun. B. had told her she thought she saw him "with something out."
While still talking to the 911 operator, N. drove to a nearby grocery store where police contacted her. Phone calls and texts continued between N. and defendant. He texted messages saying he was sorry, he loved her, he did not mean that he hated her, and, "I'm really sorry about the window." Police saw defendant walking down the sidewalk and arrested him after a brief pursuit. Defendant admitted to police he ran because he broke some windows.
The prosecution also introduced expert evidence concerning Child Sexual Abuse Accommodation Syndrome. We will discuss this evidence later.
Medical examination
On August 6, 2013, Dr. Angela Rosas, a pediatrician specializing in child abuse and neglect, examined B. B. reported to Dr. Rosas that she had multiple sexual incidents with defendant over a year up to about three months before the exam. B. experienced pain and bleeding from vaginal intercourse with defendant but not from intercourse with a consensual partner two months prior to the exam. Dr. Rosas found a healed, deep tear in B.'s hymen that went all the way down to the base of the vagina. Such a tear does not occur naturally in teenagers that have not had sexual intercourse. There would have been pain and blood associated with such a tear. Dr. Rosas concluded the injury was consistent with B.'s history of abuse and was definitive evidence of sexual abuse or contact. The injury was more likely to be associated with the event B. described to have pain and bleeding than the event where there was no pain or bleeding.
A team of reviewers who viewed photos of the injury concluded there was probable evidence of sexual penetration and sexual abuse trauma. Dr. Rosas could not say with medical certainty the tear was from sex with defendant or with a consensual partner.
Defense
Edwards said she overheard the phone call between defendant and N. on August 3, 2013. She did not hear defendant threaten to kill N. She saw defendant kick in N.'s truck window, but it occurred after N. had sent him angry text messages and swore at him. She did not hear defendant call N. names or threaten to kill her. Edwards loves defendant, N., and B., and did not want anything bad to happen to any of them.
Rick Munoz, defendant's employer, testified N. called him in summer 2013, and was angry defendant used her to pay for expensive repairs on defendant's truck. N. told Munoz to tell defendant she was going to "get" him and see that she destroyed his life. Munoz also overheard N.'s call to defendant on August 3, 2013. N. told defendant to come to Sacramento to get his stuff or she would throw it out and destroy it. Munoz did not hear defendant threaten N.
Defendant testified at trial. He admitted having several criminal adjudications as a juvenile. He admitted he had several misdemeanors and one felony, all theft-related. He denied ever sexually abusing B. He denied telling B. she looked sexy in her graduation dress. He also denied offering her marijuana, but he acknowledged she once saw a marijuana cigarette in his truck.
Defendant said B. told him she lost her virginity to a boy at school in a library bathroom. He told B. she should have waited, and they should talk with N. about it. B. asked him not to say anything, and he agreed. Later, he changed his mind and told N. N. said she would act like she did not know and see if B. would tell her.
Detective Richard Small observed the pretext call and interviewed defendant after his arrest. He asked defendant why B. would allege the molestations occurred if they were not true. Defendant first thought it was because he acted crazy jumping on the car and smashing the window. Detective Small said defendant's explanation did not work because B. had disclosed the abuse a few days before defendant jumped on the car. Defendant next said N. was setting him up because the business he and N. did was set to make a lot of money. But when Detective Small asked defendant why B. would lie, defendant could not give him a reason. Defendant said he could not because he was in jail, he did not know what to think, he was not focused, and he "was just tripped out."
When Detective Small asked defendant about the pretext call, defendant said he taught N. and B. about sound engineering, and they must have engineered the call. He asserted if an expert reviewed the call, the expert would find the call was not real. When Detective Small told him officers were present listening to the call as it happened, defendant said it was not him on the call. When Detective Small tried to confirm defendant's phone number, defendant said he could not remember it because he had changed it at that time. Ultimately, defendant admitted he did not have an explanation for the call. He admitted while testifying it was him on the call.
Defendant testified that when B. said in the call she missed "doing it" with him, he told her not to say that because he was entertaining the sexual suggestion B. was making, something he said he should not have done. He was confused when she said it, but he did not ask her what she was talking about because he was high. He also said he was driving. He ultimately said he did not know why he did not ask her to explain her meaning.
When he said on the call he missed "taking it down," "kissing it and everything," he was entertaining the conversation and also talking about "dancing," "music stuff," and "dance talk," not oral sex.
Conviction and sentence
A jury convicted defendant of two counts of unlawful oral copulation when he was over age 21 years with B., who was under age 16 years (Pen. Code, § 288a, subd. (b)(2)); two counts of lewd and lascivious conduct with B., who was under age 16 (Pen. Code, § 288, subd. (c)(1)); two counts of sodomy when he was over age 21 with B., who was under age 16 (Pen. Code, § 286, subd. (b)(2)); and one count of misdemeanor vandalism (Pen. Code, § 594, subd. (a)). The jury acquitted defendant of one count of making a criminal threat to N. (Pen. Code, § 422).
The court found true an allegation defendant was previously convicted of robbery, which qualified as a strike (Pen. Code, §§ 667, subds. (a), (b)-(i), 1170.12.)
The court sentenced defendant to a state prison term totaling 12 years eight months, calculated as follows: the upper term of three years on one count of unlawful oral copulation, doubled, and then one-third the middle term of two years (eight months), doubled, for each of the remaining five felony counts. It also imposed a concurrent one-year term on the misdemeanor.
DISCUSSION
I
Faretta Error
Defendant contends the trial court unlawfully refused to honor his request to represent himself at trial pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). He claims the error is structural. The Attorney General contends defendant cured any error by informing the court he no longer wanted to represent himself. We agree with the Attorney General. Defendant cured whatever error the trial court may have made by later stating on the record he did not want to represent himself.
A. Background information
On January 2, 2014, defendant informed Judge Joseph Orr he wanted to represent himself. Answering questions from the court, defendant said he understood the consequences and risks of doing so. Defense counsel asked the court to provide defendant with a written advisement, which the court did. The court put the matter over for one day, instructed defendant to read and sign the advisement, and instructed the prosecutor to learn defendant's sentencing exposure.
The following day, January 3, defendant stated he read the advisement and still wanted to represent himself. The prosecutor stated defendant's exposure was 20 years in prison. The court asked defendant if he understood these potential consequences, that he was forfeiting appellate claims for ineffective assistance, the court could deny the request if it was made untimely, and he would be required to comply with the rules of procedure and evidence. Defendant said he understood these consequences.
Trial was already set for January 8. The court asked defendant how long he would need to prepare for trial. Defendant said he was "ready to go right now." The court disagreed, noting there was additional discovery he had not yet reviewed. Defendant said he was still ready to go forward, and the court disagreed again. The prosecutor noted she was awaiting a crime lab report and documentation on the prior conviction, and she hoped to receive that information by the following week.
Defense counsel stated the case involved complex DNA evidence. She barely understood what the DNA expert in her office explained about the evidence, and thus thought an additional expert would benefit the case. The court remarked if defendant represented himself, he would have to hire DNA counsel.
The court asked defendant why he wanted to represent himself and told him there was more discovery to receive and DNA evidence defendant would not understand. Defendant stated he felt the jury would find him innocent once he presented his case and all the facts. The court stated defendant did not know all of the facts, and he was making a "major mistake." The court stated it would continue the matter so defendant could receive the outstanding discovery, and it refused to confirm the case for trial on January 8.
Defendant said the "whole reason" he wanted to represent himself was so he could go to trial. The court responded: "We're not going to argue, and if you persist, I'm going to order a doctor to examine you because I think there's something haywire with your brain right now." Defendant said if he could not go to trial, then he did not want to represent himself, and he withdrew his request. The court continued the case for 30 days.
However, three days later, the prosecutor, in agreement with defense counsel, sought clarification of defendant's desire to represent himself. Her research disclosed a court must grant a timely Faretta motion regardless of how unwise the choice may be. As a result, the prosecutor calendared the case for the next day. At the hearing, she asked the court to inquire whether defendant wanted to represent himself and proceed with trial. Defense counsel said she was prepared, and suggested the court could order defendant to undergo a psychological evaluation if it doubted defendant's competence to waive counsel.
When asked by counsel if he wanted to represent himself, defendant refused to answer the question. He said the court threatened to have him psychologically evaluated when he tried to assert his right, so he was not going to say anything. Seeing defendant was "not choosing to avail himself" of the opportunity to represent himself, defense counsel asked the court to confirm the trial date set for the next day.
The court agreed. Judge Orr remarked, "[Defendant], I don't care if you represent yourself or if you continue to go with the public defender. What I indicated to you the other day . . . was that I thought it was not very wise for you to try to proceed on your own particularly with more discovery coming and with the exposure of state prison time hanging over your head. Not only is there additional discovery, but there is DNA which your attorney is having a hard time understanding, and you probably would even have a harder time understanding, and that evidence has not been submitted yet. . . . [I]f you want an attorney to represent you, you are entitled to do that. If you want to represent yourself, you can do that too, but the matter is set for tomorrow. And [defense counsel] is trying to do her best she can to represent your interests. If you don't want her to represent your interests, then indicate that to me and you can continue to go and represent yourself." Apparently, defendant did not respond, so counsel confirmed the trial date.
The following day, and after meeting with the prosecutor and defense counsel, Judge Lawrence Brown asked defendant if he was making a Faretta motion to represent himself. Defendant said, "No." The court continued the trial for about four weeks. The court and defendant spoke further:
"THE COURT: . . . I think that folks want to make sure that you are stating today that you are not going forward on your Faretta motion, that you are doing that voluntarily today, that you don't feel threatened by me, or under the circumstances that you are choosing not to pursue a Faretta; is that correct?
"THE DEFENDANT: Yes.
"THE COURT: All right. I appreciate that."
B. Analysis
"[W]hen a motion to proceed pro se is timely interposed, a trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be. Furthermore, the defendant's 'technical legal knowledge' is irrelevant to the court's assessment of the defendant's knowing exercise of the right to defend himself." (People v. Windham (1977) 19 Cal.3d 121, 128, quoting Faretta, supra, 422 U.S. at p. 836.)
"However, the right 'once asserted, may be waived or abandoned.' (People v. Dunkle (2005) 36 Cal.4th 861, 909; see Indiana v. Edwards (2008) 554 U.S. 164, 171 [self-representation right is not absolute].) A defendant's waiver or abandonment of this constitutional right should be voluntary, knowing, and intelligent (People v. D'Arcy (2010) 48 Cal.4th 257, 284); such waiver or abandonment may be inferred from a defendant's conduct. (Id. at pp. 284-285; People v. Stanley (2006) 39 Cal.4th 913, 929; People v. Dunkle, supra, 36 Cal.4th at p. 909.)" (People v. Trujeque (2015) 61 Cal.4th 227, 262-263.)
Most importantly, a defendant who, following an erroneous denial of his request to represent himself, validly waives the right to self-representation and proceeds to trial represented by counsel is not entitled to relief on appeal. (People v. Dunkle, supra, 36 Cal.4th at p. 910, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Defendant validly waived his Faretta right. All the evidence shows defendant waived his right voluntarily, knowingly, and intelligently. On the day set for trial, the court asked defendant twice if he was choosing not to represent himself. Defendant said he was, and that he did so voluntarily and without feeling threatened by the court. There is no indication defendant at this point was pressured to waive, or that he did not understand what he was waiving.
Defendant contends he was pressured to waive because Judge Orr threatened him with a psychological evaluation if he sought to represent himself. Three days later, however, Judge Orr clearly expressed to defendant his right to represent himself and gave him the opportunity to express that right. Defendant did not respond. The following day, Judge Brown gave defendant two opportunities to waive counsel, and each time defendant unequivocally stated he did not want to represent himself. He also proceeded through trial with counsel, and there is no evidence he further objected to representation. On these facts, we conclude defendant validly waived his right to represent himself, curing any Faretta error the trial court may have made.
II
Admission of CSAAS Testimony
Defendant contends his trial counsel rendered ineffective assistance and denied him due process when she failed to object to expert testimony of Child Sexual Abuse Accommodation Syndrome (CSAAS). CSAAS explains "common stress reactions of children who have been sexually molested . . . , includ[ing] the child's failure to report, or delay in reporting, the abuse." (People v. McAlpin (1991) 53 Cal.3d 1289, 1300.) Defendant claims his counsel should have objected to it because (1) the evidence was inadmissible due to its unreliability, as demonstrated by the lack of a scientific consensus supporting it; (2) the evidence was unduly prejudicial under Evidence Code section 352 because of its lack of credibility, and because it bolstered the victim's credibility and sullied his; (3) the evidence intruded upon the jury's factfinding function; and (4) the expert witness improperly used the evidence to opine on the credibility of accusers. We conclude defendant suffered no ineffective assistance, as he did not establish his trial counsel represented him unreasonably under prevailing professional norms by not objecting to the evidence.
A. Background information
Defense counsel objected in limine to expert evidence on CSAAS under Evidence Code section 352 as being unduly prejudicial, but the court stated it would review the evidence's admissibility when it arose in trial. When the prosecution offered the expert as an expert witness on CSAAS and child sexual abuse, counsel did not conduct any voir dire. She said, "I just would reserve for cross. And then if I could have a standing objection?" The court replied, "Okay. You [prosecution] can go ahead and ask your questions." Counsel raised no objections during the expert's testimony.
The expert witness, Dr. Blake Carmichael, is a psychologist at the University of California, Davis, Center for Advocacy, Resources and Education, a child abuse treatment and research facility. Dr. Carmichael stated CSAAS is "a group of concepts that . . . helps explain or describe what's going on for a kid who has been sexually abused." CSAAS is not used to diagnose whether a child has been sexually abused. It is based on research done on children who were sexually abused, and is used to educate juries, judges, and other social service professionals on the behavior patterns abuse victims tend to display. Those patterns fall into five principal behaviors: secrecy, helplessness, entrapment or accommodation, delayed disclosure, and recanting or retracting the disclosure. We will detail Dr. Carmichael's testimony below as needed.
After Dr. Carmichael finished his direct examination, the court informed the jury how to view his testimony. It said, "I think it is obvious from the nature of the testimony, this is just sort of background testimony for you to evaluate the evidence in this case. [¶] This witness has not—will not express any opinion about whether anything occurred in this case. [¶] He's not talked to the individual or anything like that . . . ." Dr. Carmichael confirmed this statement.
On cross-examination, defense counsel asked Dr. Carmichael if he had researched false accusations. He had not, but he knew from the literature that it could occur and did occur in a significant minority of cases. He agreed with defense counsel that parental influence could either encourage or discourage how an abuse victim discloses abuse. On redirect, Dr. Carmichael stated the most recent research of which he was aware concluded between two and eight percent of children will make false accusations. He was aware of higher percentages, but typically those accusations originated with the parents, sometimes in custody disputes.
The court instructed the jury on how it should consider evidence introduced for a limited purpose, and specifically how it should consider the CSAAS evidence. It stated: "During the trial certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and no other." (See CALCRIM No. 303.) "You have heard testimony from Dr. Carmichael regarding Child Sexual Abuse Accommodation Syndrome. Dr. Carmichael's testimony about Child Sexual Abuse Accommodation Syndrome is not evidence that the defendant committed any of the crimes charged against him. You may consider this evidence only in deciding whether or not [B.'s] conduct was not inconsistent with the conduct of someone who was [sic] been molested in evaluating the believability of her testimony." (See CALCRIM No. 1193.)
In her closing argument, defense counsel reminded the jury of the limited nature of Dr. Carmichael's testimony. Counsel stated in relevant part: "CSAAS is not meant to be handed to you as jurors like a checklist to go through and determine, hey, does [B.] meet all of these conditions. Therefore, she must have been abused. That is not the way you are to use it, and Dr. Carmichael told you that. He was not here to offer an opinion about whether or not [B.] had been abused. He's not her physician. He is not her counselor. He was merely here to talk about general concepts."
B. Analysis
1. Request to review claims directly
Defendant asks us to review his challenges to the admission of CSAAS evidence directly on appeal even though trial counsel did not object at trial. We will not. Defense counsel objected to the evidence in limine under Evidence Code section 352, but the court stated it would review the evidence's admissibility when it arose in trial. When the prosecution offered the expert as an expert witness, counsel did not object. She said, "I just would reserve for cross. And then if I could have a standing objection?" The court replied, "Okay." Defense counsel did not specify the basis of her standing objection, seek to obtain a definite ruling on a specific objection, or raise any other objection during the testimony.
"It is 'the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.' [Citations.]" (People v. Raley (1992) 2 Cal.4th 870, 892.) "[A] 'standing objection' has validity as a useful tool in conserving trial time, once a specific objection has been made and ruled on and the rest of the evidence flows naturally from that ruling . . . ." (People v. Ortiz (1969) 276 Cal.App.2d 1, 8, italics added.) But where the standing objection is not "timely made and stated so as to make clear the specific ground of the objection" (Evid. Code, § 353, subd. (a)), and the court has not passed upon the error (Evid. Code, § 353, subd. (b)), the objection is waived. (See Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1676 [failure to specify nature of standing objection and direct it to a particular, identifiable body of evidence failed to preserve objection on appeal].)
Here, counsel never made a specific objection to the evidence and the objections she made in limine and at trial were never ruled upon. As a result, defendant failed to preserve his objections to the CSAAS evidence as grounds for appeal, and they are forfeited. (Evid. Code, § 353, subd. (a).)
2. Ineffective assistance of counsel
To establish ineffective assistance of counsel, defendant must show (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's errors, defendant would have obtained a more favorable outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 692-693 [80 L.Ed.2d 674, 693, 696-697].)
Defendant contends the record supports no plausible, rational tactical explanation for trial counsel's failure to object to Dr. Carmichael's testimony. He asserts the evidence was inadmissible because members of the scientific community have concluded CSAAS evidence lacks scientific validity. Even if the evidence was admissible, defendant argues admitting the evidence was unduly prejudicial under Evidence Code section 352, and its admission violated due process.
In addition, defendant claims the CSAAS evidence unlawfully intruded upon the factfinding function by unduly influencing the fact finder's assessment of credibility. He also argues Dr. Carmichael exceeded the lawful scope of the evidence's admission by vouching for the victim's credibility.
Defendant acknowledges the California Supreme Court has determined CSAAS evidence is admissible for the limited purpose it was admitted here. The high court states: "[E]xpert testimony on the common reactions of child molestation victims . . . is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation. (People v. Bowker (1988) 203 Cal.App.3d 385, 390-394; People v. Gray (1986) 187 Cal.App.3d 213, 217-220; People v. Roscoe (1985) 168 Cal.App.3d 1093, 1097-1100.) 'Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior. [¶] The great majority of courts approve such expert rebuttal testimony.' (Myers et al., Expert Testimony in Child Sexual Abuse Litigation (1989) 68 Neb.L.Rev. 1, 89, fn. omitted.)" (People v. McAlpin, supra, 53 Cal.3d at pp. 1300-1301, fn. omitted.)
Despite this authority, defendant asks us to review the admissibility issues anew as part of determining whether he suffered ineffective assistance. We decline the request, as we are obligated to follow Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The CSAAS evidence was admissible because defense counsel attacked B.'s credibility by questioning her about lies she made to defendant and N., lies and omissions she made to interviewing authorities after the molestation incidents, and statements she made for the first time at trial. We can thus summarily conclude defendant suffered no ineffective assistance from his trial counsel not objecting to the admission of CSAAS evidence based on its alleged unreliability and its purported effect on the jury's factfinding function. Counsel was not deficient for recognizing the admissibility, relevance, and probative value of CSAAS evidence under current law.
We also disagree with defendant's contention that admitting the CSAAS evidence was unduly prejudicial under Evidence Code section 352. Defendant asserts the evidence's probative value was outweighed by its potential for undue prejudice because the evidence bolstered the victim's credibility "based on factors that have been proved not to predict truth or falsity of sexual abuse accusations," and it had "a tendency to sully [defendant's] character unfairly in the eyes of the jurors."
The evidence was probative for its limited purpose. It was used to rebut common misperceptions the jury may have held about how children should react to being sexually abused. It helped the jurors place into a proper context B.'s delayed reporting and her initial denials. As the trial court stated, without that evidence, the jury could have concluded the abuse did not occur simply because B. did not report it immediately and initially denied it when asked.
The evidence's probative value was not outweighed by its prejudicial impact. Defendant asserts the evidence lacks scientific verification. But the jury was made aware of this argument through defense counsel's cross-examination of Dr. Carmichael that challenged the evidence's validity and usefulness. Under counsel's questioning, Dr. Carmichael stated the originator of the theory, Dr. Roland Summit, was a psychiatrist and a clinician, not a researcher, who identified different patterns he saw in the patients he was treating. Dr. Carmichael admitted CSAAS is not a diagnostic tool and cannot be used to determine if the victim is making false allegations. Indeed, it is difficult to determine whether a child is making false allegations. Dr. Carmichael also acknowledged Dr. Summit wrote a follow-up article 10 years after his first article, observing some of his concepts had been misused to determine if someone had been abused. Summit wished he had used the term "pattern" instead of "syndrome" to clarify his theory. From this evidence, the jury could determine for itself the credibility of the CSAAS evidence.
Moreover, the court instructed the jury twice on the limited manner it could use the CSAAS evidence. Defense counsel also emphasized those instructions in her closing argument. Under these circumstances, we cannot say the evidence was unduly prejudicial and should have been excluded had defense counsel objected.
Defendant contends Dr. Carmichael exceeded the allowable scope of his testimony by opining on witness credibility. Specifically, defendant points to Dr. Carmichael's testimony on redirect that false accusations of molestation occur in two to eight percent of cases, and more often when instigated by an adult. Defendant asserts this testimony effectively expressed Dr. Carmichael's opinion that B. was telling the truth, an opinion the expert was not allowed to provide. He claims his attorney rendered ineffective assistance by not objecting to this testimony.
We disagree with defendant. First, the court accepted Dr. Carmichael as an expert witness on CSAAS and child sexual abuse. Testifying as to the amount of cases found by research to have been based on false allegations was within the scope of his expertise as an expert on child sexual abuse. Second, Dr. Carmichael's testimony lent support to defendant's theory of the case. It was defense counsel who opened the door for Dr. Carmichael's testimony on false allegations in her cross-examination. Having done so, and having elicited testimony that false allegations occur in "a significant minority" of cases, counsel reasonably may have chosen not to object, as the evidence lent support to her argument that B. was not telling the truth and was pressured by her mother to accuse defendant.
Third, Dr. Carmichael did not vouch for B.'s credibility. Not once did he testify as to B.'s credibility. He stated he had not talked with her and would not express any opinion about whether she had been sexually abused. He also acknowledged it was not his role as a psychologist to determine if someone was abused; the trier of fact bore that role. Where the CSAAS expert testified he had not met the victim, couched his testimony in general terms, and described behavior common to abused victims as a class, it is unlikely the jury interpreted the expert's testimony as supporting the victim's credibility. (People v. Mateo (2016) 243 Cal.App.4th 1063, 1074; People v. Housley (1992) 6 Cal.App.4th 947, 959.)
Under these circumstances, we cannot conclude defense counsel's decision not to object to the evidence fell below an objective standard of reasonableness under prevailing professional norms. Accordingly, defendant's claim of ineffective assistance of counsel fails.
III
Restriction of Cross-Examination
Defendant contends the trial court abused its discretion and denied him due process when it refused to allow defense counsel to cross-examine Dr. Carmichael on Dr. Roland Summit's support of suggestive interrogation techniques that allegedly were used in another child abuse case. We disagree with defendant, as the evidence he sought to introduce did not relate to Dr. Carmichael's testimony or serve to significantly impeach his credibility.
A. Background information
On recross-examination, defense counsel asked Dr. Carmichael if he was aware of "the McMartin trial." The prosecution objected to the question, and, following a bench conference, the trial court sustained the objection. After Dr. Carmichael's testimony, defense counsel made a record of what transpired in the bench conference. She stated she was using the question to impeach Dr. Carmichael's credibility by impeaching Dr. Summit. According to counsel, she used the question to get into Dr. Summit's research and other areas of psychology and techniques he had supported. She said Dr. Summit publicly supported the suggestive interrogation techniques used in the McMartin child abuse case, where the alleged abuse was later documented as false. Counsel wanted the jury to know that not all of Dr. Summit's techniques and statements were "gold standard."
The court sustained the objection to counsel's question because the question was "wholly outside the scope of direct. [¶] This witness never talked about any interrogation techniques whatsoever, and, therefore, I thought it was totally inappropriate . . . ."
B. Analysis
In general, "a witness testifying as an expert may be cross-examined to the same extent as any other witness and, in addition, may be fully cross-examined as to (1) his or her qualifications, (2) the subject to which his or her expert testimony relates, and (3) the matter upon which his or her opinion is based and the reasons for his or her opinion." (Evid. Code, § 721.)
Once an expert offers his opinion, "he exposes himself to the kind of inquiry which ordinarily would have no place in the cross examination of a factual witness. The expert invites investigation into the extent of his knowledge, the reasons for his opinion including facts and other matters upon which it is based [citation], and which he took into consideration; and he may be 'subjected to the most rigid cross-examination' concerning his qualifications, and his opinion and its sources [citation]." (Hope v. Arrowhead & Puritas Waters, Inc. (1959) 174 Cal.App.2d 222, 230.)
" '[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, "to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness." ' [Citation.] However, not every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced 'a significantly different impression of [the witnesses'] credibility' [citation], the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 946 (Frye), disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
The trial court acted within its discretion to exclude the question. Defense counsel sought to impeach the expert based on evidence that did not concern the subject about which Dr. Carmichael testified or the matter upon which he based his opinion. At no time did interrogation techniques become relevant at trial, and Dr. Carmichael testified he was unfamiliar with other parts of Dr. Summit's work outside of the two articles he wrote on CSAAS and other references to him.
Defendant also has not shown the prohibited cross-examination would have produced a significantly different impression of Dr. Carmichael's credibility. Defendant claims the proposed area of cross-examination would have refuted Dr. Carmichael's testimony that subsequent research established CSAAS's scientific validity and reliability, and that between two and eight percent of sexual abuse accusations were false, with more false accusations occurring in custody disputes.
We do not see a connection. Dr. Summit's views on interrogation techniques has no relevance to whether CSAAS was later proved reliable by other researchers or approved for us in trial courts by the California Supreme Court. Nor do they have any relationship to Dr. Carmichael's opinions on the prevalence of false accusations, as there is no evidence he relied on anything set forth by Dr. Summit to reach that conclusion. The court did not err in preventing the cross-examination.
IV
Excluding Impeachment of B.
Defendant contends the trial court committed constitutional error by refusing to allow defense counsel to impeach the victim about her claim defendant took her virginity with evidence that she had sex with a boy in a library bathroom across the street from or near the school. We disagree, as the court could rationally determine the questioning it stopped was not relevant to impeaching the victim.
A. Background information
During cross-examination of the victim, defense counsel impeached B.'s testimony that she lost her virginity to defendant with her pretrial statements that she lost her virginity to a boy at school. From this line of questioning, B. testified she initially told her mother she lost her virginity with a boy at school; she told defendant she lost her virginity with a boy at school in a bathroom; she thought she told defendant she had sex in a bathroom in a library across the street from school or near the school; and she told friends other than her friend A. she had sex with a boy at school.
Counsel began to ask, "Did you ever tell any of [defendant's] family members—," when the prosecutor moved to strike "this entire line of questioning, unless it is specific to the virginity question." Following a bench conference, the court sustained the objection. Defense counsel then confirmed with B. that she had told defendant, her friends, and her mother she lost her virginity with a boy at school.
Defense counsel put the bench conference on the record. She stated: "I made an offer of proof that, should my client testify, he would testify that [B.] would—told him that she had—not only that she had lost her virginity to a boy at school, but that she had been kicked out of a library or banned from a library because she had sex with a boy in the restroom.
"Some of the testimony that's been coming up regarding [B.'s] statement that she—A, that she was a virgin and that [defendant] took her virginity; and B, that she had no knowledge of anal sex prior to having anal sex with [defendant]. And I was looking to cross-examine her on those specific topics.
"So my understanding is that the Court has ruled that it is not relevant and—or, that it would be prohibited under [Evidence Code section] 782 grounds to get into that second portion of questioning."
The court responded, "Well we actually did handle this in in limine motions, and I did authorize you to get into limited issue about testing, essentially, the witness's credibility by claiming, on the one hand, that she lost her virginity by a boy at school; and then saying that she lost it, you know, to the defendant. She has freely testified about that.
"I did let you ask her all of those questions, and she's now admitted on the stand that she related that story to her mother, other friends, and including the defendant.
"Where I think [the prosecutor's] objection was well-founded is when you just started asking about the actual sexual conduct in a library. And I think the law is clear. I just don't see whether she's had sex with ten people is relevant in this case. At side bar you kind of mentioned, well, I have to show that she has knowledge about sex. And this is not a case of a, you know, a four-year-old where she wouldn't even have normal terminology. I would assume a girl 14 knows, you know, basics about sexual intercourse and that sort of thing; and, again, I don't think we would have to go into her sexual exploits, if there were any, to question her about her knowledge of sexual terms.
"So I just didn't see it relevant, and it seemed objectionable. That's why I sustained the objection . . . ."
B. Analysis
Defendant contends the court erred in sustaining the objection because it excluded valid impeachment evidence. He asserts the proposed inquiry "was directed at the consequences of [B.'s] disclosure, exclusion from the library bathroom, not, as the Court incorrectly framed the issue, [B.'s] 'sexual exploits' or 'actual sexual conduct in a library.' . . . The issue [according to defendant] was whether [B.'s] claim of losing her virginity to a boy her age incurred consequences that tended to impeach her claim that it was actually [defendant] who took her virginity from her."
Defendant misreads the record. Defense counsel stated she wanted to cross-examine B. on two issues: her claim defendant took her virginity, and her claim she did not know what anal sex was until she had it with defendant. Counsel understood the court was prohibiting questioning on the second issue. Thus, there was no debate that defense counsel could and did impeach B. on her testimony that defendant took her virginity.
Additionally, the court could reasonably conclude whether B. was banned from a library for having sex there was irrelevant without more foundation. The court could have reasonably interpreted defense counsel's explanation to mean the library incident was a second incident, separate from one where she lost her virginity. Nothing in B.'s testimony or counsel's offer of proof established they were the same incident. This explains by the court said the "issue was not the number of sexual partners." Also, counsel did not explain how the library incident or any of counsel's questions to B. would show B. knew what anal sex was before she had it with defendant.
Moreover, defense counsel put on the record her reasons for asking B. about what she said to defendant's family members, which was counsel's original question that drew the objection. Her reason was not at all to impeach B.'s statements she lost her virginity to defendant. Rather, she asked the question because "[B.] told [A.] that his family was contacting her through Facebook and calling her a liar and a hoe, and I think that is absolutely relevant to her state of mind as a witness in this case and all of the feelings that she's been talking about and the pressure that she's been under, as far as this process goes."
The court viewed that as "a classic 352 objection" alleging B. was testifying differently because of the family communications. The court indicated B. had not indicated any reluctance to testify. It said, "There is no indication that she is effecting her testimony out of fear of either the defendant or his family." The court continued: "I think balancing [Evidence Code section] 352 there, I don't think there's any particular relevance as how it is impacting her testimony. I think it could be highly prejudicial, particularly since we can't link the defendant with those kinds of statements. So that's why I sustained the objection there." Defendant does not challenge this ruling.
The trial court has broad discretion to control the scope of cross-examination, and it " 'may curtail a cross-examination which is unduly protracted, frivolous, or which relates to matters which are irrelevant, admitted or have already been fully covered. . . .' [Citation.]" (People v. Ross (1969) 276 Cal.App.2d 729, 734, italics omitted.) The court here did not abuse that discretion when it ended defense counsel's questioning to the extent counsel sought to impeach B. based on what may have happened at a library near her school. It also did not abuse its discretion when it concluded the Facebook evidence and counsel's questioning about what the victim told defendant's family members would trigger Evidence Code section 352.
V
Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct through various statements in her argument to the jury. Defendant forfeited this argument. At no time did defense counsel object to any part of the argument. Nor is there evidence any objection would have been futile. Under such circumstances, defendant may not complain of prosecutorial conduct on appeal. (People v. Hill (1998) 17 Cal.4th 800, 820.)
Nonetheless, defendant contends his trial counsel rendered ineffective assistance by not objecting to the argument. This assertion requires us to review the merits in order to determine whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and, if so, whether there is a reasonable probability that, but for counsel's errors, defendant would have obtained a more favorable outcome. (Strickland v. Washington, supra, 466 U.S. at pp. 687-688, 692-693.) Reviewing each allegation, we conclude there is no evidence defense counsel's performance was ineffective except in one instance, and in that instance, the error was not prejudicial.
"The applicable federal and state standards regarding prosecutorial misconduct are well established. ' "A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' " ' (People v. Gionis (1995) 9 Cal.4th 1196, 1214; People v. Espinoza (1992) 3 Cal.4th 806, 820.) 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 court or the jury.' " ' (People v. Espinoza, supra, 3 Cal.4th at p. 820.) . . . [W]hen the claim focuses upon comments made by the prosecutor before 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. [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
A. Appeals to sympathy for B.
Defendant asserts the prosecutor repeatedly appealed to the jurors' sympathies for B. We review each alleged incident.
1. During closing argument, the prosecutor reviewed [B.'s] difficulties during the period of the abuse, that she lost her grandmother, suffered estrangement from her mother related to her grandmother's illness and death, and struggled with grief, weight-gain, peer ridicule, and isolation. These statements were not misconduct. The points were based on facts in evidence. The prosecutor discussed them to explain B.'s emotional state and vulnerability to defendant's grooming her.
Defendant claims the prosecutor urged the jury to be moved by B.'s visible distress upon entering the courtroom before testifying. In closing argument, the prosecutor stated: "We—you know, and on top of her talking about all of that turmoil, we saw it, didn't we? When that door opened and she was supposed to come in here and testify, the reality of all this stuff, we saw that crashing down on her. We saw it when she fought back tears as she sat on the stand and had to talk about this stuff. That is the stuff of truth."
The prosecutor's comment was appropriate. The court instructed the jury that among the factors it could consider in assessing a witness's credibility were the witness's behavior while testifying and the witness's attitude about the case or about testifying. (See CALCRIM No. 226.) The prosecutor was connecting what the jury saw to what the jury could lawfully consider.
2. Defendant faults the prosecutor for stating B. was "a sweet, quiet unassuming young lady." But the prosecutor made the statement as a comparison to defendant as part of arguing witness credibility. In contrast to B., defendant admitted in court he had four separate findings of guilt relating to misdemeanor and felony theft and moral turpitude crimes. The jury could assess for itself whether B. met the prosecution's description. The comment was not misconduct.
3. Defendant criticizes the prosecutor for arguing B. would not endure the indignities and ordeals associated with prosecuting the crimes unless she was telling the truth. He specifically attacks the prosecutor's use of a colleague's experience in a sexual assault training class who was told to be prepared to recount his last sexual experience in public. We conclude the use of the vignette was error, but harmless under any standard.
The statements defendant challenges all arose in the prosecutor's discussion of B.'s credibility. The prosecutor opened this discussion by asking, "In fact, why would [B.] have subjected herself to this process at all, unless what she said happened, happened?" The prosecutor then recounted all the times B. had to tell others, both family members and strangers, of what defendant did to her. She had to make three pretext phone calls with two officers listening. She underwent further interviews and a medical exam, and testified in court.
Then the prosecutor related the experience of a colleague who said he was told by a sexual assault instructor that after lunch when the class resumed, "I'm going [to] call on one of you, and I'm going to ask you about your last sexual experience. I'm going to ask you about who it was with, where it happened, the details. I want to know about positions and what kind of sexual acts happened, how long it lasted, how you felt about it." After lunch, the prosecutor's colleague thought he would not be able to respond. Then the instructor said, "[Y]ou are probably all sitting there thinking I don't know if I can do this. Now, imagine doing that in a courtroom in front of a bunch of strangers and having to describe the act that wasn't consensual or with someone who forced it upon you, and that abuser is sitting 15 feet away from you. That's what that experience is like."
The prosecutor summed up this discussion by saying, "There is no way [B.] would have continued through this entire process unless she was, in fact, abused by this man."
A prosecutor is given wide latitude during argument to comment on a witness's credibility. " ' " '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.' " ' [Citation.] '[S]o long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the "facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief," her comments cannot be characterized as improper vouching.' [Citations.]" (People v. Bonilla (2007) 41 Cal.4th 313, 337.)
All of the prosecutor's statements regarding B.'s credibility were appropriate except the discussion of the colleague's experience in a training class and the concluding remark, "There is no way [B.] would have continued through this entire process unless she was, in fact, abused by this man." It attempted to get the jurors to feel what B. felt, and it introduced into the jurors' minds hearsay facts that had not been placed in evidence, all to strengthen, i.e., vouch for, albeit indirectly, B.'s credibility. "A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.]" (Frye, supra, 18 Cal.4th at p. 971.)
We, however, find the error was harmless. By relaying the experience of a colleague, the prosecutor was not suggesting she had special information outside the record specifically relating to B. on which she based her belief or to which the jury was not privy. Nor could the information lead the jury to believe it no longer needed to evaluate B.'s credibility for itself. Moreover, the trial court instructed the jury it solely bore the burden "to decide what happened, based only on the evidence that has been presented to you in this trial." (CALCRIM No. 200.) The court further instructed the jury that "[n]othing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence." (CALCRIM No. 222.) The court also instructed the jurors not to let sympathy influence their decision. (CALCRIM No. 200.) Defense counsel, too, reminded the jury not to consider sympathy. She also argued it was inappropriate for the prosecutor to use the vignette about her colleague to place the jurors "in the complaining witness's shoes." "[R]emarks by defense counsel must be considered when assessing the prejudicial effect of prosecutorial misconduct." (People v. Pitts (1990) 223 Cal.App.3d 606, 704, superseded by statute on another ground as stated in People v. Levesque (1995) 35 Cal.App.4th 530, 537, 539.) We assume the jurors followed these instructions, and, as a result, have no reasonable doubt under any standard the jury would have returned the same verdict had the prosecutor omitted the vignette from her argument.
B. Telling the jury to "do justice"
Defendant asserts the prosecutor committed misconduct by telling the jury "justice" required conviction. He contends this statement wrongly told the jurors they had a duty to convict, and to do so based on extrinsic factors. We disagree.
The prosecutor argued: "You have the power to do justice. Justice in this case would be holding this man responsible for the crimes committed against [B.] and [N.], for what he put [B.] through." And she said, "So go back there, work together, be patient, and come to the conclusion together to do justice by finding this man guilty of these crimes."
It is not improper for the prosecutor to urge the jury to convict the defendant. She would not be much of a prosecutor if she failed to urge the jury to convict. Couching her urging in terms of justice also was not misconduct. The comment was not unduly inflammatory or otherwise inappropriate. (See People v. Cornwell (2005) 37 Cal.4th 50, 92-93 [argument that democracy requires discipline and jury is the body that imposes that discipline did not appeal to sympathy], disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22; People v. Bradford (1997) 15 Cal.4th 1229, 1380 [argument that "justice demands an execution" not misconduct under the circumstances].)
C. Attacking defense counsel's integrity
Defendant argues the prosecutor attacked defense counsel's integrity in two instances. About the first incident, defendant asserts the prosecutor stated defense counsel's job was to deceive jurors. The prosecutor did not say that.
The argument defendant challenges went as follows: "So I'm going to sit down in just a minute, and [defense counsel] will give her closing comments. And just keep in mind that it is her job to pull you into the muck, to pick apart evidence, and criticize it and to insert doubt and confusion. I ask you to keep your common sense about you. [¶] Remember the word 'reasonable' in the standard of proof. Follow whatever theories [defense counsel] proposes all of the way through, and then ask yourself if they really make any sense, and keep the big picture in mind."
Nowhere in these remarks did the prosecutor say defense counsel's job was to deceive jurors. And it is not reasonably likely the jurors understood the remarks to mean as much. The remarks involved no personal attack on defense counsel's integrity. (See People v. Taylor (2001) 26 Cal.4th 1155, 1167 [prosecutor's referring to defense "tricks" and "moves" used to demonstrate a witness's confusion or uncertainty were not personal attacks on counsel's integrity].)
As for the second incident, defendant asserts the prosecutor attacked counsel's credibility by accusing defense counsel of offering a false explanation of defendant's inability to explain why B. might fabricate her accusations. We disagree. The prosecutor attacked counsel's theory, not counsel's integrity.
The argument defendant challenges went as follows: "Let's talk about what the defense theory is, if we—if we know, if it is clear. And note, before we go there, that that is defense counsel's theory. That is her argument. That is her job. [¶] The defendant himself couldn't give the detective a reason for why [B.] would lie. And you—he—the defendant knows [B.] better than any of us do. He couldn't give us a reason why [B.] would lie. So defense counsel did come up with a theory, and she—she glossed over it a little bit. She talked about [N.] looking in [B.'s] phone, and then that, in turn, triggering [B.] to make this up.
"[Defense counsel] mentioned, as part of that theory, that the relationship was circling the drain, I think she said. And I do think that [defense counsel] definitely tried to bring evidence out that proved that, but it didn't really pan out through the testimony."
The prosecutor went on to argue why this theory was not supported by the evidence. In doing so, she clarified she was not attacking counsel's integrity. She stated: "And, you know, I want you to know I—I'm not criticizing [defense counsel]. She's a good lawyer. She stood up here and she attacked different pieces of evidence, and that is what she is supposed to do. But, again, she can't undo the big picture, which is what you have."
Defense counsel offered a theory to explain evidence, and the prosecutor attacked that theory. She did not attack counsel's integrity and commit misconduct.
D. Shifting the burden of proof
Defendant claims the prosecutor wrongfully shifted the burden of proof onto him by arguing the following: defendant's inability to explain B.'s motive to fabricate accusations was evidence of guilt; defense counsel's decision not to present the questions interviewers asked B. that led to statements the defense used to impeach B. should be construed against defendant; and defendant's inability to provide an exonerating explanation for his statements in the pretext call should be construed against him.
None of these statements shifted the burden of proof. The prosecutor's remarks were comments on weaknesses in defendant's theory of the case as presented to the jury. In no way did they suggest defendant had the burden of proving his innocence. (See Frye, supra, 18 Cal.4th at pp. 972-973 [prosecutor's statement in argument that jury could infer if an expert witness, promised by the defense in its opening statement would appear but who did not appear, had information helpful to the defense, the jury would have heard from expert].) The jury understood the prosecution bore the burden of proof on each and every count, defendant was presumed innocent until proven guilty by the prosecution beyond a reasonable doubt, and the prosecutor's arguments were not evidence. (CALCRIM Nos. 220, 222, 224.) Under these circumstances, it is unlikely the jury understood or applied the prosecutor's statements in an improper manner or imposed a burden of proof on defendant.
E. Misstating the burden of proof
Defendant asserts the prosecutor misstated the burden of proof by arguing to the jury that acquittal required the "wholesale rejection" of the prosecution's case. The prosecutor did not make that argument. Rather, she simply argued and emphasized the overwhelming evidence against defendant.
Defendant challenges the following remarks by the prosecutor: "But, again, [defense counsel] can't undo the big picture, which is what you have. [¶] We don't have just [B.'s] statements, which could stand alone. We did talk about that jury instruction that said that, in and of itself, is sufficient to convict someone if you find that witness credible and it meets the elements. That would be enough. But we don't just have that. And we don't just have the complex, emotional reactions she described to us. We don't just have medical evidence. We don't just have unreliable and unbelievable testimony from the defendant himself. We don't just have that pretext call.
"So is [defense counsel] asking us to believe that [B.] made all this up for a reason that is still unclear, that she somehow described emotions so complex that we needed the assistance of an expert to help us unravel them? And she just so happened to have a torn hymen consistent with her description of the first time she had sex with the defendant. And that when she called with the police present, that the defendant just so happened to entertain having sexual activity with a teenager on that one occasion? That is not even to mention his failure to deny, not even to mention his direct admission. This would have to be the unluckiest man who ever walked the planet."
Nothing in this argument informed the jury it could acquit only if it rejected all of the evidence. The prosecutor simply was summarizing all of the evidence in order to meet her burden of proof. It is not misconduct to comment on the state of the evidence. (People v. Vargas (1973) 9 Cal.3d 470, 475.) The jury understood from instructions that "[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." (CALCRIM No. 220.) Nothing the prosecutor said in this exchange misstated the burden of proof, and it is unlikely the jury understood it in any way other than what it meant to convey.
From our analysis of defendant's contentions of prosecutorial misconduct, we conclude defendant, except in one instance, failed to demonstrate defense counsel performed beneath an objective standard of reasonableness under prevailing norms, as objections to the challenged remarks would reasonably have been overruled. As to the improper use of the vignette about the prosecutor's colleague, we conclude defendant suffered no prejudice from counsel's not objecting, as admission of the evidence was harmless error under any standard. The evidence did not relieve the jury of its responsibility to consider the evidence presented at trial, and the court and defense counsel fully instructed the jury not to consider attorney arguments as evidence and not to let sympathy influence its decision. We assume the jury followed these instructions, and, as a result, we have no reasonable doubt defendant would not have received a more favorable verdict had the prosecutor not discussed the vignette in her argument.
VI
Cumulative Error
Defendant asserts all of the above alleged errors constitute cumulative error. We disagree.
"In theory, the aggregate prejudice from several different errors occurring at trial could require reversal even if no single error was prejudicial by itself. '[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.' (People v. Hill[, supra,] 17 Cal.4th [at p.] 844.) . . . [C]laims previously rejected on their substantive merits—i.e., this court found no legal error—cannot logically be used to support a cumulative error claim because we have already found there was no error to cumulate." (In re Reno (2012) 55 Cal.4th 428, 483.)
We have rejected all of defendant's claims of error but two. The first of those two, the court's refusal to allow defendant to represent himself, defendant cured when he stated on the record twice that he no longer wanted to represent himself. The second, defense counsel's failure to object to the prosecutor's use of her colleague's vignette, we found to be harmless under any standard. As that was the only error left standing, there can be no cumulative error.
DISPOSITION
The judgment is affirmed.
NICHOLSON, Acting P. J. We concur: BUTZ, J. RENNER, J.