Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA096836 Robert J. Higa, Judge.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Trent Wayne Reed appeals from the judgment entered after a jury found him guilty of continuous sexual abuse (Pen. Code, § 288.5, subd. (a); count 1) and the commission of a lewd act upon a child (§ 288, subd. (a); count 2) and further found true the allegation, as to count 1, that the victim was under the age of 14 and that defendant had substantial sexual conduct with the victim (§ 1203.066, subd. (a)(8)). The trial court sentenced defendant to state prison for a total of 18 years.
All further statutory references are to the Penal Code unless otherwise noted.
Defendant contends: (1) the trial court erroneously allowed the prosecutor to indoctrinate the jury by asking questions during voir dire that encouraged the jurors to prejudge the case; (2) he was deprived of his federal and state constitutional rights to due process, a fair trial, and to present a defense when the trial court granted the prosecution’s motion to exclude defense witnesses as a sanction for late discovery; (3) the prosecutor prejudicially attempted to influence testimony by persisting in asking leading questions throughout the presentation of her case; (4) the prosecutor impermissibly and prejudicially urged the jury to draw an inference from his failure to testify or to present witnesses to refute the testimony of the complaining witness; and (5) cumulative error denied him his due process right to a fair trial. We affirm.
FACTS
A. Prosecution
1. Count 2: Lewd Act Upon a Child Under 14
Defendant and R.M. met in 2002 in the mobile home park in Lakewood where they both resided. In 2003, defendant moved in with R.M. and her two daughters but kept his own residence. Defendant’s two young sons occasionally spent time at R.M.’s home.
On August 17, 2006, R.M. was scheduled to leave for Laughlin, Nevada with friends. R.M.’s youngest daughter already was with R.M.’s mother, who lived nearby. Defendant was to take R.M.’s daughter M.M., who then was 12 years old, to her grandmother’s home after R.M. left for her trip.
R.M. left the house around 7 a.m. At the time, M.M. was asleep on the living room floor with defendant’s young son, Trent Jr. Defendant was awake in the master bedroom. R.M. reminded defendant to take M.M. to her grandmother’s house.
Sometime after R.M. left, M.M. woke up. She entered her mother’s bedroom to tell defendant that her ankle, which she injured the previous evening, still hurt. Defendant was awake and lying on the right side of the bed. Defendant asked M.M. to get into the bed. M.M. climbed on top of the bed, after which defendant told her to get under the covers because it was cold. When she did so, she noticed that defendant was naked. Defendant pulled M.M. closer to him and asked M.M. to remove her pajama pants and her panties. M.M. complied. Defendant also asked M.M. to take off her T-shirt but she refused.
Defendant then began kissing M.M. on her forehead, cheek and lips. He also lifted her T-shirt and kissed her right breast. As he did so, M.M. could feel defendant’s erect penis touching her bare stomach.
M.M. told defendant, “If you’re going to be doing this, you need to shut the door.” Defendant got up, shut the door to the master bedroom and locked it. Defendant then returned to bed and resumed touching M.M. M.M., in turn, put her hand around defendant’s erect penis. Defendant moved his body back and forth on M.M.’s body, simulating sexual intercourse.
Meanwhile, R.M. had driven to her mother’s house to pick up a cooler. R.M. realized that she had forgotten some cash and returned home about 20 minutes later to retrieve it. R.M. tried to enter her master bedroom but found the door, which she had left wide open, to be closed and locked. She banged on the door, explaining that she was in a hurry and needed to get some money. Defendant eventually cracked open the door and peeked out, stating that he had been in the bathroom. According to M.M., defendant jumped out of the bed, unlocked the door and opened it approximately four inches. His body was behind the door, and his face position in the small opening. During the time M.M. was in the bedroom, defendant never went into the adjoining master bathroom.
According to R.M., there was no door to the master bathroom. Rather, beads hung from the door jamb. Whenever someone entered or exited the bathroom, the beads would swing and clang against one another for some time until they settled down. When R.M. entered the bedroom, the beads were completely still.
After forcing her way inside her bedroom, R.M observed defendant, who normally slept in his underwear, to be fully naked. Defendant walked out of the bedroom to another part of the house, although it was not customary for anyone to walk around the house without wearing clothes.
R.M. then noticed a lump under the bedding and blonde hair sticking out from the sheets. When R.M. pulled down the covers, she saw M.M., who began crying and blurted out that defendant had been touching her. M.M., who always wore panties and pajamas to sleep, was naked from the waist down.
R.M. then looked for and confronted a fully naked defendant. R.M. was furious and screamed, “What have you done to my child?” Defendant replied, “I didn’t do anything. You’re misunderstanding what’s going on. I haven’t done anything.” Defendant also stated, “It’s not what you think is going on. It’s not what you think.” R.M. thereafter left her home with M.M. and called 911. While waiting for sheriff’s deputies at a nearby gas station, M.M. told her mother that there had been nine to ten similar incidents.
Los Angeles Sheriff’s Deputy Jonathan Bailey met with R.M. and M.M. at the gas station. R.M. was extremely upset and crying. M.M. was crying as well. M.M. told Deputy Bailey what had transpired, after which R.M. and M.M. went to the Lakewood Sheriff’s Station. After M.M. was interviewed separately at the station, R.M. took M.M. to a hospital in Long Beach where they met Detective Bryan Sirkel. M.M. recounted the events of the morning with the detective and also told him about her prior sexual contacts with defendant.
Meanwhile, Deputy Grant Oberle went to R.M.’s home. While waiting for other units to arrive, Deputy Oberle saw defendant leave the residence and drive away in a truck. The deputy conducted a traffic stop and detained defendant until Deputy Bailey arrived to arrest him.
At the hospital, M.M. was examined by a Sexual Assault Response Team (SART) outside the presence of her mother. M.M. told the SART nurse that before that day, there had been other incidents during which defendant inserted his finger, tongue and penis into her vagina. The first of three possible incidents occurred around Christmas 2005. M.M. did not tell her mother or anyone else about the sexual abuse because defendant said they might kill him.
The results of the August 17, 2006 examination revealed that M.M.’s hymen had partial thinning on one side, and there was minor redness of her labia. The hymenal tag had not been torn, however. The SART nurse found no acute trauma during her examination, suggesting that any injury had not been caused in the 72 hours preceding the examination.
A follow up examination took place on August 29, 2006. The thinning of M.M.’s hymen was less apparent at that time.
The areas of M.M.’s body that defendant touched were swabbed for evidence. The samples collected from M.M.’s forehead, right breast, abdomen, and pubic area contained defendant’s DNA.
2. Count 1: Continuous Sexual Abuse
According to M.M., defendant’s sexual contact with her began as early as December 2005 in their Lakewood home. Between the time of the December 2005 incident and the August 17, 2006 incident, defendant touched M.M.’s private parts approximately 10 to 15 times.
One day in December 2005, M.M. and her younger sister, A.M., were at home with defendant while their mother was at work. At that time, M.M. was 11 and A.M. was six and a half. The three of them had been roughhousing on the porch, after which M.M. and A.M. went into their bedroom. M.M. was lying on her bed next to her sister when defendant began rubbing or tickling M.M.’s stomach. Defendant then moved his hand down toward M.M.’s vaginal area, which he rubbed over her clothes. Defendant told A.M. to go into the living room and watch television. After A.M. left the room, defendant placed his hand under M.M.’s pants and touched the outside of her vagina, digitally penetrated her vagina and asked M.M. if it felt good. Defendant then proceeded to orally copulate M.M. Defendant told M.M. not to tell anyone what had happened, in that they would both be in trouble.
M.M. then recalled another instance of sexual abuse that occurred in December 2005 while her mother was at work. M.M. was on the couch in the living room when defendant digitally penetrated her vagina.
On another occasion, while R.M. was away from the home, defendant and M.M. were watching a football game on television when defendant joined M.M. on the floor and began digitally penetrating her vagina, moving his finger in and out as he had done in the past. Defendant then removed M.M.’s pants and underwear, as well as his own, and had sexual intercourse with M.M. M.M. told defendant to stop because it hurt. Defendant stopped and became upset. This was the only time defendant had sexual intercourse with M.M.
During the remaining 10 to 15 instances of sexual abuse occurring prior to August 17, 2006, defendant touched M.M.’s vagina under her clothing.
3. Defendant’s Interview with Police
At 2:45 p.m. on the date of defendant’s arrest, Detective Sirkel interviewed defendant at length. Before doing so, Detective Sirkel advised defendant of his Miranda rights, which defendant waived both orally and in writing. The interview proceeded for almost 55 minutes before defendant stated he wanted to speak to an attorney and to his father. At that juncture, Detective Sirkel terminated the interview, turning off the tape at 3:38 p.m.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
During the time in which defendant elected to answer Sirkel’s inquiries, defendant made various admissions. He admitted that he was in bed when R.M. left for her trip to Laughlin; that M.M. later entered the bedroom while he was in bed to complain about her ankle; that M.M. eventually got into bed with him; and that he was naked. Defendant further admitted that R.M. later knocked on the bedroom door and that he was nude when he opened the door, after which R.M. went “nuts.” R.M. asked M.M. if defendant had molested her and accused defendant of being a child molester. Defendant told Detective Sirkel that he knew R.M. “well enough and when she gets worked up like that I just, I just zipped. I just, uh, you know, I didn’t really argue with her, you know. I tried calming her down a little bit but she was just way overboard at that point....” Defendant stated he was a little angry but further noted, “But I’ve had a lot of time to think about it sitting here. And I guess, I mean, it looked bad and I would think that same thing....” Defendant also admitted that M.M. was “laying next to me” but stated, “no-we didn’t do anything like that.” Defendant described M.M. as “a good kid,” who normally would not lie.
During the interview, Detective Sirkel recounted in detail M.M.’s version of the morning’s events. Defendant denied having his arm around M.M. or having M.M. touch his penis or “masturbate” him. Defendant further denied that he had M.M. take off her pants so that she was naked from the waist down, that he kissed her on the face and breasts, that they came together and held on to and hugged each other when R.M. knocked on the door. Defendant admitted that M.M. was lying next to him, but stated unequivocally, “we didn’t do anything like that.”
Detective Sirkel then made a series of observations and posed a number of questions designed to elicit an explanation from defendant as to how M.M. could be so detailed, given her lack of life experiences. Consider the following exchange:
“DET. SIRKEL:... But that girl did not learn that-I’m sorry-did not invent that. She learned it somewhere.... Do you understand?
“DEFENDANT: Mm hmm.
“DET. SIRKEL: Okay.... What do you think about that?
“DEFENDANT: I, I don’t know what to, I, I, again, it didn’t... it didn’t go that way, and, and, you know...
“DET. SIRKEL: So, what you’re saying is that what she’s saying is, that is not true.
“DEFENDANT: Mm hmm.
“DET. SIRKEL: But yet, you told me earlier that she’s not one to lie.
“DEFENDANT: Not generally, no.
“DET. SIRKEL: Then, so what’s happening now?”
At this juncture, defendant focused on R.M.’s reactions and accusations of child molestation. Detective Sirkel, in turn, stated that M.M.’s account of the events had nothing to do with anything R.M. said. When the detective asked defendant if he honestly thought that R.M. would tell M.M. to be that detailed, defendant replied, “No. I’m not saying that. I didn’t say that at all.”
Detective Sirkel then queried how M.M. could “make that stuff up” so quickly. The detective then continued: “You know how? Because it happened buddy.... That’s how.... Because when you tell the truth, it comes right out. You don’t have to think about it. You don’t have to just kind of sit there, it just kind of rattles off; it comes out. She’s telling the truth.... Okay.... But what I’m telling you is, is it was a mistake, okay. Shit happens. Whatever, whatever you want to say. But she’s telling the truth. She’s twelve.... You understand?” After defendant replied, “Mm hmm,” Detective Sirkel stated: “... That’s why. That’s why she’s able to talk about this that detailed, because it, she experienced it.... Okay... she did not invent that. She did not dream that up. She lacks the mental ability as a 12-year old, it [is] a scientific fact, that’s proven. She doesn’t even have an adolescent mind yet. She’s twelve.... Okay.... It happened. I need to know that it won’t happen again... and that it was a mistake. Then I can tell her that it was a mistake. That he’s sorry. Do you understand? It’s important for her. She’s confused. She really is.... Do you understand? Defendant said he understood, after which the detective asked him, “So, what happened this morning?” Defendant said, “I told you what happened this morning.” The detective then asked defendant if he understood his (the detective’s) dilemma, explaining that “[w]hat you’re telling me does not make sense in regards to what she’s telling me.” Detective Sirkel then immediately turned to the topic of M.M.’s sexual assault examination.
The detective informed defendant that M.M. had been examined by a forensic nurse and that DNA samples, which did not belong to M.M., had been collected from M.M.’s body. Defendant denied that the samples would be his or that his DNA would be found on M.M.’s body. Detective Sirkel continued to press the issue, stating that when the DNA on M.M.’s body is compared to defendant’s DNA, “it’s going to match.” The detective continued: “DNA makes murder cases and it makes my case just as easy, okay. The difference is, is you denying about it and not telling the truth about it, well, it ain’t going to look as good as if you were up front with me, okay. Because it’s that scientific, it’s that exact. Do you understand? When they calculate the equations as far as DNA goes, it’s that solid, okay. There’s no disputing it. It’s been tested over and over again in court. It’s allowed all the time in court. It’s upheld all the way to the Supreme Court, the highest court in the country. DNA evidence is huge. And I’m telling you right now that we have a sample of a DNA profile okay and it’s going to match yours. There’s no doubt in my mind it’s going to match yours. There’s no other people there that are going to have their DNA on her, none. Do you understand?” Defendant replied that he understood what the detective was saying, at which point Detective Sirkel interjected, “So you still think that what she’s saying is not the truth, based on all of that?” Defendant then asked to speak to an attorney and to his father. After confirming that defendant did not want to continue the interview and wanted to talk to an attorney and his father, Detective Sirkel terminated the interview.
B. Defense
According to forensic psychologist Ronald Fairbanks (Fairbanks), defendant did not have the typical characteristics of a sex offender and was at extremely low risk of committing sex crimes. Fairbanks also opined that defendant was not a psychopath and showed no predilection for physical or sexual violence.
Fairbanks noted that child victims tend to forget the details of the offense because they are so frightened but are more apt to remember the events transpiring before and after the offense. Fairbanks noted that when a child victim recalls vivid details of the crime, but not the surrounding period, he would entertain a “strong significant suspicion” that the child was being coached.
A week after defendant’s arrest, his nephew, Stephen Spencer, went to R.M.’s home to get defendant’s belongings. R.M. told Spencer that she had been trying to get rid of defendant all summer, and “what else was she supposed to do to get rid of him.”
According to Carlos Ferreira, who used to work with R.M. and defendant, the couple argued regularly. M.M. got along with defendant and did not appear to be afraid of him and was not hesitant to be with him.
DISCUSSION
A. Voir Dire
During voir dire, the trial court asked the prospective jurors if they or any of their relatives had been the victim of a crime. Prospective juror No. 6206 candidly revealed that she and her sister had been sexually molested as children by their mother’s boyfriend. When questioned by the prosecutor, prospective juror No. 6206 stated it would be difficult for her to serve on the jury given the nature of the charges. Defendant later exercised a peremptory challenge to excuse this juror.
The prosecutor asked prospective juror No. 2639 if he or his family, or any family he knew, had a practice or custom of walking around the house without clothes. The prosecutor also asked prospective juror No. 2639 if his family or a family he knew cuddled with their children while reading a book or watching television without any clothes on. When the prosecutor proceeded to ask the same questions of prospective juror No. 0664, defense counsel objected and asked to approach the bench. When the trial court asked counsel if his objection was “prejudge evidence,” the court stated, “I don’t think so. Not yet.”
The prosecutor thereafter continued this line of inquiry, which led prospective juror No. 1578 to reveal that her father sunbathed at home in the nude and also sexually abused her and her two sisters. When the prosecutor asked this individual if she would have believed her sister’s assertions of sexual abuse if she herself had not been abused, she said she would. At this juncture, defense counsel objected, stating “[t]hat is coming close to prejudging.” The court stated, “That is a little closer than the other question you asked about their past. Stay away from that.” “The grounds being prejudgment.” Prospective juror No. 1578 later was excused by the defense.
Later, after new prospective jurors were seated in place of those who had been excused, the prosecutor asked if any of them had a personal custom or practice in their own home or knew anyone who engaged in activities with their children in the nude. No hands were raised. When the prosecutor later revisited this issue, defense counsel objected, “This is prejudging evidence.” The court disagreed stating, “I don’t think so. [¶] She’s asking what their prior practices are. That’s all. She’s allowed to ask that.”
The prosecutor then asked specific prospective jurors if their children slept with them when they were young. A number of prospective jurors answered in the affirmative. When asked for a show of hands as to whether either the parent and/or child slept in the nude together, no one answered.
Defendant contends that the trial court erroneously permitted the prosecutor to indoctrinate the jury during voir dire by asking questions that encouraged the prospective jurors to prejudge the case. There is no merit to this contention.
An accused has a constitutional right to an impartial jury, “one in which no member has been improperly influenced and every member is capable and willing to decide the case solely on the evidence before it. [Citation.] To effectuate this right, the prospective jurors are subjected to voir dire questioning under oath to uncover any bias, and the selected jurors are sworn to decide the case based on the evidence presented to them and the instructions given by the court. [Citations.]” (People v. Cissna (2010) 182 Cal.App.4th 475, 486; accord, People v. Wilson (2008) 44 Cal.4th 758, 822.)
“One of the purposes of voir dire is to expose the possible biases of potential jurors, who can be excused for cause if bias is demonstrated or excused through a peremptory challenge if counsel suspects a possibility of bias.” (Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 58.) “‘It is, of course, well settled that the examination of prospective jurors should not be used “‘to educate the jury panel to the particular facts of the case, to compel the jurors to commit themselves to vote a particular way, to prejudice the jury for or against a particular party, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of law.’”’ [Citations.]” (People v. Abilez (2007) 41 Cal.4th 472, 492-493.)
While the parties cannot ask questions so specific that they expose jurors to the facts of the case and ask them to prejudge the issues (cf. People v. Carasi (2008) 44 Cal.4th 1263, 1286), the questions cannot be so abstract that they fail to identify prospective jurors with bias that would interfere with the performance of their duty. (Ibid.; People v. Whisenhunt (2008) 44 Cal.4th 174, 197.)
We review the trial court’s ruling on a motion pertaining to the conduct of voir dire for an abuse of discretion. (People v. Navarette (2003) 30 Cal.4th 458, 490.) Such abuse occurs when the court’s ruling is beyond the bounds of reason. (See Code Civ. Proc., § 223; People v. Waidla (2000) 22 Cal.4th 690, 713-714.) No abuse of discretion has been demonstrated here.
Although the prosecutor’s questions regarding nudity suggested that nudity might be an issue in the case (which it was), the prosecutor’s questions were designed to uncover any possible bias on the part of prospective jurors. (Ovando v. County of Los Angeles, supra, 159 Cal.App.4th at p. 58.) To be sure, any individual who engaged in such a practice or custom with his or her children might have been sympathetic to defendant. The prosecutor’s questions were not intended “‘“‘to educate the jury panel to the particular facts of the case, to compel the jurors to commit themselves to vote a particular way, to prejudice the jury for or against a particular party, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of law.’”’ [Citations.]” (People v. Abilez, supra, 41 Cal.4th at pp. 492-493.) As such, defendant has failed to demonstrate that the trial court allowed the prosecutor to indoctrinate the jury and to encourage them to prejudge the evidence. Defendant’s additional assertions that the prosecutor’s questions prejudiced the jury against him, thereby depriving him of his constitutional rights to due process and a fair and impartial jury are equally without merit and warrant no further discussion.
B. Discovery Sanctions
As extant at the time of trial, section 1054.3 mandated that a defendant and his or her counsel “disclose to the prosecuting attorney: [¶] (a) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial. [¶] (b) Any real evidence which the defendant intends to offer in evidence at the trial.”
Disclosures made by a defendant pursuant to section 1054.3 must be made “at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred. ‘Good cause’ is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement.” (§ 1054.7.)
If a defendant fails to comply with his obligation under sections 1054.3 and 1054.7, the prosecution may seek a court order directing the required disclosures on the condition that it first make an informal request to defense counsel for the materials and information subject to disclosure. (§ 1054.5, subd. (b).) If that condition is met and discovery is not forthcoming, “a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order....” (Ibid.) Before the trial court may prohibit a witness from testifying pursuant to section 1054.5, subdivision (b), it must exhaust all other sanctions. (§ 1054.5, subd. (c).)
A preclusion order is appropriate where the discovery violation causes significant prejudice and was based on willful conduct designed to obtain a tactical advantage at trial. (People v.Gonzales (1994) 22 Cal.App.4th 1744, 1757-1758; People v. Edwards (1993) 17 Cal.App.4th 1248, 1264.) The trial court’s decision as to the appropriate remedy for a discovery violation is reviewed for an abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 299; People v. Edwards, supra, at p. 1263.)
No abuse of discretion has been demonstrated here. As the trial court aptly noted, defendant had almost a year and a half to prepare for trial. The original trial date in this case was November 2006. The case thereafter was continued or trailed a total of 16 times. On February 1, 2008, defendant’s case was sent to a trial court and voir dire commenced. On February 4, voir dire was completed and the evidentiary portion of the People’s case began.
On the morning of February 5, 2008, the prosecutor requested an Evidence Code section 402 hearing on her motion to exclude defense witnesses due to a discovery violation. The prosecutor explained that minutes before the case had been sent out for trial on February 1, defense counsel handed her a witness list containing 20 witnesses. Noting that section 1054.3 required defense counsel to turn over the names, addresses and telephone numbers of all witnesses at least 30 days prior to trial, the prosecutor stated that on more than one occasion she asked defense counsel for his witness list on August 3, 2007, December 3, 2007 and January 15, 2008. On each occasion, defense counsel stated he had no witnesses, except that on December 3, he mentioned that he had a doctor. Defense counsel mentioned no other potential witnesses.
The prosecutor further explained that on January 31, 2008, the date before the case was sent out for trial, the prosecutor made another inquiry, specifically asking defense counsel “about any DNA expert analysis that he was going to have.” This had been the prosecutor’s primary reason for her inquires, as the prosecution previously had turned over DNA samples to the defense for independent testing. Defense counsel represented that he would not be presenting any DNA expert analysis. He did turn over an 11 or 12-page psychological report prepared by Dr. Fairbanks. This was the first time the prosecutor had seen this report.
With regard to defense counsel’s witness list, the prosecutor moved to exclude all witnesses on the list with the exception of R.M., M.M. and Trent Reed, Jr., all of whom had been identified in the police report. The prosecutor argued that the disclosure was “extremely late” and “in blatant violation of 1054.”
Defense counsel responded by pointing out that there were five individuals on his list that were contained in police reports. He further represented that he did not get the list from defendant until January 31, 2008 and that he informed the prosecutor that he did not expect to call all the witnesses listed, many of whom were character witnesses.
Defense counsel further stated that he went down the list with the prosecutor, identified each potential witness and explained how each was related to defendant. Defense counsel stated that he was going to call David Spencer, Jackie Reed and Carlos Ferreira. The trial court ruled that defense counsel could call these witnesses but required counsel to spell out for the prosecutor in writing “exactly what they’re going to testify to, exactly.” The court stated that defense counsel could not expand the scope of their testimony beyond that provided to the prosecutor in writing.
In response to the trial court’s statement that the others would not be allowed to testify because defense counsel did not comply with the code, defense counsel stated that he did comply with the code. He simply did not have the information until the time it was turned over to the prosecutor. Following a conference between defendant and defense counsel, the latter explained to the court that defendant was explaining why he was delayed in getting the information to counsel. The court stated the case started in September 2006 so the defense “messed up.” Defense counsel then stated, “I wish in a perfect world we defense lawyers have complete control over our clients, but we don’t always have.” The court stated that his rulings under section 1054 had been made.
Later, defense counsel stated that section 1054.5, subdivision (c), required the court to exhaust all other sanctions before prohibiting a witness from testifying. A discussion of potential sanctions then took place. When defense counsel stated he had no objection to a continuance if the prosecutor needed one, the court said that would not work because trial already had commenced. Defense counsel then raised the sanction of immediate disclosure, which the court already imposed with regard to David Spencer, Jackie Reed and Carlos Ferreira. The court stated, “If I did that with all of these witnesses, people can violate the section, and nothing happens right up to the trial date, and the other side doesn’t get the information. That is the problem, see, my just saying turn over everybody’s, what they propose to testify.” Defense counsel repeated that he had advised the prosecutor who on the list was a potential character witness, to which the court responded, “Counsel, you can’t wait until you get sent out on trial and send these things out. It violates the entire spirit of this section. You know that. You’ve been around.” The prosecutor chimed in, “I don’t know what he’s talking about or who he’s referring to.”
A discussion regarding R.M.’s previously estranged husband then ensued, after which the trial court ruled that defense counsel could call him as a witness, in that his testimony was relevant to a possible defense. Defense counsel was required to detail his anticipated testimony for the prosecution, however, as with the other witnesses the court permitted to testify.
The trial court did not abuse its discretion in excluding defendant’s character witnesses. The witnesses were members of defendant’s family. Although defendant’s trial counsel claimed to have only recently received the names of these witnesses from defendant, given the length of time defendant had to prepare for trial, defendant’s failure to give his trial counsel this information was most likely willful. (People v. Jackson (1993) 15 Cal.App.4th 1197, 1203, quoting Taylor v. Illinois (1988) 484 U.S. 400, 413 [108 S.Ct. 646, 98 L.Ed.2d 798].)
More importantly, the trial court considered lesser sanctions prior to imposing an exclusionary one. The sanction of dismissal of the charges obviously was not an option, and a sanction imposed against defense counsel, such as a fine or contempt citation, would not have given the prosecution ample opportunity to investigate the witnesses thus compromising “the integrity of the adversarial process.” (People v. Jackson, supra, 15 Cal.App.4th at p. 1203.) We therefore conclude that under the particular circumstances of this case, the trial court did not abuse its discretion in precluding defendant’s character witnesses from testifying. (People v. Ayala, supra, 23 Cal.4th at p. 299; People v. Edwards, supra, 17 Cal.App.4th at p. 1263.)
C. Prosecutorial Misconduct
1. Leading Questions
In his opening brief, defendant detailed numerous instances in which his trial counsel objected to the prosecutor’s questions on the ground that they were leading. The trial court sustained virtually all of these objections. On appeal, defendant contends that in repeatedly asking leading questions, the prosecutor committed misconduct. Defendant has forfeited this issue.
“A question is ‘leading’ if it ‘suggests to the witness the answer the examining party requires.’ [Citations.]” (People v. Williams (1997) 16 Cal.4th 635, 672.)
To preserve a claim of prosecutorial misconduct, the accused must object on that specific ground and ask the trial court to give the jury a curative admonition. (People v. McDermott (2002) 28 Cal.4th 946, 1001.) Here, defendant did neither. Although he interposed numerous evidentiary objections to questions he perceived to be leading, he never once raised the claim of prosecutorial misconduct or sought a corrective warning from the court. Defendant thus has forfeited his claim of prosecutorial misconduct based on the prosecutor’s use of leading questions.
A defendant will be excused from doing so only if a timely objection and/or a request for an admonition would have been futile. (People v. Cole (2004) 33 Cal.4th 1158, 1201.)
In any event, as the court in People v. Hayes (1971) 19 Cal.App.3d 459 aptly noted, the use of leading questions does not “constitute prejudicial misconduct in the absence of any showing that such examination had the effect of deliberately producing inadmissible evidence or called for inadmissible and prejudicial answers. A perusal of the questions complained of discloses that they did not produce inadmissible evidence or prejudicial answers, but evidence that could properly have been elicited by questions not objectionable in form.” (Id. at p. 470.)
2. Statements Made During Closing Argument
a. Griffin Error
Defendant contends the prosecutor committed Griffin error during her summation to the jury. In Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106], the nation’s high court held that the Fifth Amendment prohibits a prosecutor from commenting, either directly or indirectly, upon a defendant’s failure to testify on his own behalf. (Id. at pp. 614-615.) “This prohibition does not, however, ‘extend to comments on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses.’ [Citation.]” (People v. Turner (2004) 34 Cal.4th 406, 419.) Thus, “[i]t may be Griffin error to argue to the jury ‘that certain testimony or evidence is uncontradicted, if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand.’ [Citation.] However, there is no such error when the prosecutor refers to a lack of proof ‘which might have been presented in the form of physical evidence or testimony other than that of defendant.’ [Citation.]” (People v. Lewis (2004) 117 Cal.App.4th 246, 258, italics omitted.)
In this case, the prosecutor did not directly comment on defendant’s failure to testify at trial. Defendant suggests that the prosecutor did so indirectly, however, when during her summation to the jury she stated on numerous occasions that no witness came into court and provided defendant with an alibi or refuted M.M.’s testimony about the sexual abuse. We agree in part, noting that the challenged comments were made while the prosecutor was discussing the evidence pertaining to count 1 of the information, which charged defendant with continuous sexual abuse. (§ 288.5, subd. (a).)
With regard to count 1, the trial court instructed the jury that “[e]very person who, either resides in the same home with a minor child or has recurring access to a child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct, or three or more acts of lewd or lascivious conduct with a child under the age of 14 years at the time of the commission of the offense is guilty of the crime of continuous sexual abuse of a child, a violation of... section 288.5, subdivision (a).”
During her closing argument to the jury, the prosecutor reviewed the law governing count 1 and then discussed the evidence establishing three specific instances of molestation required for a conviction of continuous sexual abuse. After the prosecutor recounted in vivid detail the first incident of sexual abuse that occurred in December 2005 in M.M. and A.M.’s bedroom, the following transpired:
“[THE PROSECUTOR]: That’s the evidence as to the first act of Count 1, and the evidence as to that act is not refuted. You didn’t hear a single witness come in here and tell you that that did not happen. You didn’t hear a single witness that came in here and gave the defendant an alibi.
“[DEFENSE COUNSEL]: Your Honor, I’m going to object. [¶] It’s a contrary presumption.
“THE COURT: Overruled. [¶] Go ahead.
“[THE PROSECUTOR]: You didn’t hear a single witness that refuted what [M.M.] told you under oath happened to her in her home after the defendant, she told you, sent her little sister out of the room. The evidence as to Count 1 is unrefuted. He committed a lewd act upon [M.M.] who was a child under the age of 14, and in addition to that, he committed substantial sexual conduct.”
Defendant did not object to these particular statements on the grounds that they constituted Griffin error and thus has waived the issue. (People v. Medina (1995) 11 Cal.4th 694, 756; People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1244.) Rather, he objected only to the first of these statements on the ground that it was contrary to the presumption of innocence. In any event, no Griffin error was committed as to these particular comments.
Defendant first molested M.M. sexually in December 2005 on the bed in the girls’ bedroom. When the molestation began, A.M., who then was six and a half, was on the bed with M.M. That the molestation continued after defendant told A.M. to go into the living room and watch television, is of no consequence. Since the lack of proof to which the prosecutor referred could have been presented by the testimony of someone other than defendant, namely A.M., the prosecutor’s comments do not constitute Griffin error. (People v. Turner, supra, 34 Cal.4th at pp. 419-420; People v. Lewis, supra, 117 Cal.App.4th at p. 258.)
Next, the prosecutor detailed the evidence establishing the second instance of sexual abuse that occurred in December 2005 in the living room. After doing so, the prosecutor argued, “Did you hear a single witness come into court and provide an alibi for the defendant? [M.M.] knows what happened to her, because it’s ingrained in her mind. These are the types of incidents - ” At this point, defense counsel interjected, “I’m going to object again. [¶] I think counsel is commenting on my client’s not testifying.” The trial court impliedly overruled defense counsel’s objection, stating, “Go ahead. Stay away from that. [¶] But she’s not doing that. She’s just commenting on the evidence.” The prosecutor then argued without objection: “These are the types of things that a child would never forget. They stay in her mind, in any child’s mind, when this type of conduct has occurred, and you didn’t hear a single witness refute it. [¶] And, again, you didn’t hear a single witness refute it, so now we have two lewd acts upon [M.M.], both of which involve substantial sexual conduct, which is not even necessary for the continuous sexual abuse charge. All you need is three lewd acts upon a child. And not only do you have so far two lewd acts, you have two lewd acts, both of which involve substantial sexual conduct.”
The prosecutor then went on to detail the evidence establishing “the third act” on M.M. After doing so, the prosecutor argued to the jury, “You didn’t hear a single witness come into this court and tell you it didn’t happen. You didn’t hear a single witness that provided any alibis for the defendant. [M.M.] told you - ” Defense counsel again objected for the record. Without waiting for the trial court to rule on the objection, which it did not do, the prosecutor just continued, “ - what happened to her. She knows what happened to her, and that man right over there, Trent Reed, did these things to [her].”
Shortly thereafter, the prosecutor still focusing on count 1, asked the jury, “Did you hear a single witness come into court and refute [M.M.’s] testimony as to what happened to her on that morning or that afternoon when the defendant put his penis inside of her vagina? Didn’t happen.” Defense counsel again objected for the record.
A short while later, the following transpired:
“[THE PROSECUTOR]: Now, during this period between September (sic) 2005, and going up until the date on which the defendant got caught - let’s go to the day before. From September [sic; December] of 2005 up to August 16th, 2006, from the sworn testimony, the evidence produced in this court which is not refuted, the defendant committed -and we’re going to say conservatively
“[DEFENSE COUNSEL]: Your Honor, objection.
“THE COURT: Pardon me?
“[DEFENSE COUNSEL]: Objection on the record again.
“THE COURT: All right. [¶] Miss White-Black, cut it out.
“[THE PROSECUTOR]: Thank you, Your Honor.
“THE COURT: You’re pushing the envelope. [¶] Don’t do it again.
“[THE PROSECUTOR]: Thank you, Your Honor. [¶] Conservatively ten acts between September [sic; December] of 2005 up through August 16th, 2006. That’s when [M.M.] is ages 11 and 12.”
There is no evidence that anyone other than defendant was present with M.M. during the second and third instances of sexual abuse. It follows, then, that the only person who could have refuted or contradicted M.M.’s account of these particular incidents was defendant. The prosecutor thus unquestionably committed Griffin error. (People v. Turner, supra, 34 Cal.4th at pp. 419-420; People v. Lewis, supra, 117 Cal.App.4th at p. 258.) The question remaining is whether that error is reversible.
Griffin error is reviewed under the Chapman standard. (People v. Delgado (2010) 181 Cal.App.4th 839, 854.) “Under Chapman, before a federal constitutional error can be held harmless, a court must declare that it could have had no effect upon the verdict and was harmless beyond a reasonable doubt.” (People v. Galloway (1979) 100 Cal.App.3d 551, 559.) We so declare in this case.
On August 17, 2006, when R.M. left for her trip to Laughlin, she left the door to her bedroom wide open and her daughter asleep in the living room. When R.M. returned 20 minutes later to get the money she had forgotten, she found the door to her bedroom locked. After banging on the door and stating she had forgotten her money, defendant cracked open the door and said he had been in the master bathroom. R.M. forced her way in the room and saw that defendant, who normally slept in his underwear, was completely naked. She also noticed that the beads hanging in the entrance to the master bathroom were completely still, negating defendant’s claim that he had been in the bathroom.
R.M. further observed a lump in her bed and blonde hair sticking out from the sheets. When R.M. pulled down the covers, she found M.M., who always wore pajamas to bed, naked from the waist down. M.M. looked “scared and horrified” and was crying; she told her mother that defendant had been touching her.
M.M. provided a detailed account of what transpired after she got under the covers with defendant. He began kissing her on her forehead, cheek and lips. He also lifted up her T-shirt and kissed her right breast. As he did so, his erect penis touched her bare stomach. Later, M.M. held defendant’s penis in her hand, and he simulated sexual intercourse.
Although defendant denied sexually molesting M.M. during his interview with Detective Sirkel, defendant did make various admissions. He admitted that he was naked in bed with M.M.
Finally, M.M.’s credibility received a significant boost as the scientific evidence fully corroborated her account of the August 17, 2006 incident. Defendant’s DNA was found on M.M.’s forehead, right breast, stomach and pubic area, the specific areas defendant either kissed or touched with his penis. Inasmuch as the jury indubitably believed M.M.’s account of the August 17, 2006 incident, it also follows that they credited her testimony that defendant had been abusing her sexually over a substantial length of time. We therefore conclude unequivocally that Griffin error had no effect on the verdict and thus was harmless beyond a reasonable doubt. (People v. Galloway, supra, 100 Cal.App.3d at p. 559.)
b. Error “Akin” to Doyle Error
Doyle v. Ohio (1976) 426 U.S. 610 [96 S.Ct. 2240, 49 L.Ed.2d 91].
Defendant also argues that, during her summation to the jury, the prosecutor improperly commented upon defendant’s silence in the face of accusations made by police detectives. The challenged portion of the prosecutor’s argument follows:
“[THE PROSECUTOR]:... The defendant admits - and these are adoptive admissions. Remember when Detective Sirkel was talking to the defendant, and he was asking him, ‘How in the world would she come up with this, unless it actually happened to her? She doesn’t even have the life experiences. She’s 12. She doesn’t know what these things are, unless she actually experienced them.’ And the defendant agrees with that.
“She - there’s a point in this interview where the detective says that, ‘She lacks the life experience to know about these things,’ and the defendant’s response is, ‘Um-hum,’ meaning ‘yes.’
“[DEFENSE COUNSEL]: Objection.
“[THE PROSECUTOR]: The detective during the course of this interview
“THE COURT: Pardon me?
“[THE PROSECUTOR]: - says
“[DEFENSE COUNSEL]: That assumes facts not in evidence.
“THE COURT: Go ahead.
“[THE PROSECUTOR]: - ‘It happened to her, and the only way that she would know how to describe it in that detail is because she experienced it.’
“The defendant says nothing. He doesn’t deny it. He doesn’t say, ‘She’s a liar.’ That’s an accusation that he committed this act against a child, because, remember, the detective had already told the defendant what [M.M.]’s account of the events that had occurred that morning was, that he asked her to get into the bed, he told her to take off her pants, she got naked with him, he pulled her closer to kiss her body, et cetera, et cetera.
“The only way she is going to have the knowledge and the ability to articulate the details of what happened to her is because she experienced it. She’s a 12-year-old girl. She doesn’t know these things outside of her personal experience. Her personal experience was with the defendant.
“[M.M.] is telling the truth. We know that, because she took an oath. She told us she’s telling the truth.
“When the defendant is talking to Detective Sirkel, there’s a point in the interview where the detective says, ‘She’s telling the truth. That’s the only way that she’d be able to describe these events with that detail. She’s telling the truth.’
“The defendant doesn’t deny. He doesn’t say, ‘No. She’s a liar.’
“[DEFENSE COUNSEL]: Objection, Your Honor.
“[THE PROSECUTOR]: He doesn’t say, ‘No. she is not telling the truth.’
“[DEFENSE COUNSEL]: Objection again.
“THE COURT: Just a second. Hold on. [¶] Look, why don’t you just give us all the courtesy when he objects. I know you hear it. Why don’t you stop.
“All right. Ladies and gentlemen, you rely upon your own minds regarding the evidence, no matter what anybody else says. And remember the jury instructions I gave you.
“[THE PROSECUTOR]: Thank you, Your Honor.
“[M.M.] is telling the truth. The detective says that to the defendant, and he says nothing. That’s an adoptive admission. That was his opportunity, if [M.M.] was lying, to tell us that [M.M.] is lying. He doesn’t do that, because he knows [M.M.] is not lying.”
Defendant characterizes the prosecutor’s comments regarding his lack of denial in the face of police accusations as further Griffin error. They are not. Rather, the comments, if improper, are more akin to error under Doyle v. Ohio, supra, 426 U.S. 610.
In Doyle, the United States Supreme Court held that when a defendant testifies, it is a violation of due process for the prosecutor to impeach the defendant’s exculpatory story told for the first time at trial by cross-examining defendant about why he did not tell the police his exculpatory story after receiving Miranda warnings. (Doyle v. Ohio, supra, 426 U.S. at p. 611.) Thus, “[u]nder the rationale of Doyle, due process is violated whenever the prosecution uses for impeachment purposes a defendant’s post-Miranda silence.” (Brecht v. Abrahamson (1993) 507 U.S. 619, 629 [113 S.Ct. 1710, 123 L.Ed.2d 353].) “Doyle v. Ohio is founded on the notion that it is fundamentally unfair to use a defendant’s post-Miranda silence to impeach his trial testimony in view of the implicit assurance contained in the Miranda warnings that exercise of the right of silence will not be penalized.” (People v. Eshelman (1990) 225 Cal.App.3d 1513, 1520, citing Wainwright v. Greenfield (1986) 474 U.S. 284, 291-292 [106 S.Ct. 634, 88 L.Ed.2d 623].
This case is obviously distinguishable from Doyle, in that defendant did not testify at trial and thus could not have been impeached via cross-examination about his failure to deny Detective Sirkel’s accusations. Although, Doyle error can occur during cross-examination and/or argument to the jury (People v. Lewis, supra, 117 Cal.App.4th at p. 256; People v. Evans (1994) 25 Cal.App.4th 358, 368), the cases so holding have involved Doyle error in both forms. The prosecutor does not get a free pass to violate the spirit of Doyle simply because defendant elected not to testify in this case, however. We thus conclude that the prosecutor’s challenged comments made during argument to the jury are akin to Doyle error and implicate the constitutional protections espoused therein.
When arguing to the jury, the prosecutor repeatedly stated that defendant had been silent in the face of Detective Sirkel’s statements that M.M. could only have been so detailed in her description of the molestation if she actually experienced it. Surely, the prosecutor’s argument to the jury that defendant’s silence in the fact of the detective’s accusations constituted an adoptive admission was error. As the court observed in People v. Jennings (2003) 112 Cal.App.4th 459, a case involving joint custodial interrogation, “Silence can normally be interpreted as an adoptive admission, but not when the circumstances ‘“lend themselves to an inference that [the defendant] was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution”’ (People v. Riel (2000) 22 Cal.4th 1153, 1189....) And silence during a post-Miranda custodial interrogation is generally interpreted to be an assertion of that right and therefore constitutionally inadmissible. (People v. Medina (1990) 51 Cal.3d 870, 891....) As the United States Supreme Court has concluded, the Miranda warnings render every postarrest silence ‘insolubly ambiguous’ and therefore constitutionally inadmissible, even for the limited purpose of impeachment. (Doyle v. Ohio[, supra,] 426 U.S. 610, 617-619....)” (Jennings, supra, at p. 472.)
To the extent that the prosecutor sought to impeach defendant during closing argument by arguing that his silence in the face of select statements made by Detective Sirkel is indicative of guilt, the prosecutor committed Doyle error which, like Griffin error, is reviewed under the Chapman standard. (People v. Delgado, supra, 181 Cal.App.4th at p. 854.)
Here, Doyle error is harmless beyond a reasonable doubt for the very same reasons we deemed the prosecutor’s Griffin error to be harmless. In addition, the prosecutor’s challenged statements regarding defendant’s silence in the face of police accusations were transparently selective and somewhat disingenuous in the first instance. Although it is true that defendant did not expressly call M.M. a liar during his interview with Detective Sirkel, a review of the entire transcript of defendant’s police interview readily reveals that defendant at all times denied M.M.’s account of the sexual molestation. When addressing the jury, defense counsel emphasized that during cross-examination Detective Sirkel testified to numerous denials made by defendant. Defense counsel also reminded the jury that it would have the transcript of the interrogation, as well as a CD of the actual interview, to review and consider during its deliberations. This is yet another reason the particular Doyle error committed here is harmless beyond a reasonable doubt.
c. Comment on Defendant’s Failure to Call Excluded Witnesses
Defendant also contends that the prosecutor impermissibly commented on defendant’s failure to call witnesses who were excluded as a result of the prosecutor’s own motion. Inasmuch as the only defense witnesses excluded from testifying were character witnesses and the prosecutor did not comment specifically on defendant’s failure to call witnesses who could attest to defendant’s character, his contention is unavailing. Defendant’s bald assertion that his character witnesses could have testified that he was not the type of person who could molest a child does not compel a contrary conclusion.
D. Cumulative Error
Defendant’s final contention is that he was deprived of his due process right to a fair trial as a result of cumulative error. We disagree. With the exception of defendant’s claim of Griffin/Doyle error, which we have concluded was harmless beyond a reasonable doubt, we have rejected his remaining claims of error. Consequently, there is no cumulative error. (People v. Bennett (2009) 45 Cal.4th 577, 618; People v. Koontz (2002) 27 Cal.4th 1041, 1094.)
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., ZELON, J.