Opinion
F083215
08-29-2024
THE PEOPLE, Plaintiff and Respondent, v. ORACIO GUADALUPE REYES, Defendant and Appellant.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County, No. VCF363250 Nathan G. Leedy, Judge.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
POOCHIGIAN, J.
Defendant and appellant Oracio Guadalupe Reyes (defendant) was convicted by a jury of 15 counts of committing a lewd act on a child aged 14 years or younger and three counts of oral copulation on a child aged 10 years or younger. The court sentenced defendant to a total term of 120 years to life imprisonment. On appeal, defendant contends: (1) he was denied the effective assistance of counsel when his attorney improperly lessened the beyond a reasonable doubt standard during closing argument; (2) he was denied the effective assistance of counsel when his attorney failed to object to numerous uncharged prior acts that were not properly disclosed; (3) counts 2 and 3 are supported only by legally insufficient generic evidence; (4) the trial court abused its discretion and violated the Fourteenth Amendment by allowing the jury to hear speculative and irrelevant evidence regarding observation of blood on the underwear of a victim; (5) the trial court erred by failing to exclude under Evidence Code section 352 testimony regarding blood on the victim's underwear; (6) he was denied the effective assistance of counsel when counsel failed to object to multiple instances of prosecutorial misconduct involving improper questioning, mischaracterizing evidence and shifting the burden to defendant to produce evidence, and vouching for the victims' credibility; (9) he was denied effective assistance of counsel through counsel's cumulative errors; and (10) CALCRIM Instruction 1191B unconstitutionally allowed the victims to corroborate their own accusations. We affirm.
PROCEDURAL BACKGROUND
On June 22, 2021, the Tulare County District Attorney filed a third amended information charging defendant with 18 total offenses against six minor victims. The amended information charged as follows: as to C.R., one count of oral copulation on a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b); count 1) and four counts of a lewd act on a child under the age of 14 years (§ 288, subd. (a); counts 2, 3, 4, and 5); as to N.Y., two counts of oral copulation on a child 10 years of age or younger (§ 288.7, subd. (b); counts 6 and 7) and three counts of a lewd act on a child under the age of 14 years (§ 288, subd. (a); counts 8, 9, and 10); as to R.Y., one count of a lewd act on a child under the age of 14 years (ibid.; count 11); as to S.R., two counts of a lewd act on a child under the age of 14 years (ibid.; counts 12 and 13); as to J.F., four counts of a lewd act on a child under the age of 14 years (ibid.; counts 14, 15, 16, and 17); and as to J.J., one count of a lewd act on a child under the age of 14 years (ibid.; count 18). The information also alleged an aggravating circumstance for multiple victims under section 667.67, subdivisions (b) and (e) for counts 2 through 5, 8, 9, and 11 through 14, and an aggravating circumstance under section 667.67, subdivisions (e) and (j)(2) for multiple victims under the age of 14 years for counts 8 through 10 and 15 through 18. The information further alleged under counts 2 through 5, 8, 9, and 12 through 15 that defendant engaged in substantial sexual conduct with victims under the age of 14 years pursuant to section 1203.066, subdivision (a)(8). Finally, the information alleged the charges for all counts except counts 1, 6, and 7 were within the applicable limitations period of section 801.1, subdivision (a).
The third amended information was filed during the course of defendant's jury trial.
All further undesignated statutory references are to the Penal Code unless otherwise noted.
A jury trial began on June 15, 2021, and concluded on June 24, 2021. The jury found defendant guilty on all 18 counts and also found true all of the special allegations under sections 667.67, subdivisions (b), (e), and (j)(2), 801.1 subdivision (a), and 1203.066, subdivision (a)(8).
On August 10, 2021, the trial court conducted a sentencing hearing. The court sentenced defendant to an aggregate term of 120 years to life as follows: as to count 1, 15 years to life; as to count 2, 15 years to life to be served concurrently with count 1; as to count 3, 15 years to life to be served concurrently with count 2; as to count 4, 15 years to life to be served concurrently with count 3; as to count 5, 15 years to life to be served concurrently with count 4; as to count 6, 15 years to life to be served concurrently with count 5; as to count 7, 15 years to life to be served concurrently with count 6; as to count 8, 25 years to life to be served consecutively to count 1; as to count 9, 25 years to life to be served concurrently with count 8; as to count 10, 25 years to life to be served concurrently with count 9; as to count 11, 15 years to life to be served consecutively to count 8; as to count 12, 15 years to life to be served consecutively to count 11; as to count 13, 15 years to life to be served concurrently with count 12; as to count 14, 25 years to life to be served concurrently with count 12; as to count 15, 15 years to life to be served consecutively to count 12; as to count 16, 25 years to life to be served concurrently with count 15; as to count 17, 25 years to life to be served concurrently with count 16; and as to count 18, 25 years to life to be served consecutively to count 15.
On August 23, 2021, defendant timely appealed.
FACTUAL BACKGROUND
Defendant was born in 1984. At all relevant times, defendant lived with his parents at his parents' house and did odd jobs and clay sculpting. Defendant's brother and his family (including nieces C.R. and S.R.) lived catty-corner to defendant, while the Y family (including daughters N.Y. and R.Y.) lived directly across the street from defendant. C.R., S.R., N.Y., and R.Y., along with J.J. (N.Y. and R.Y.'s cousin) were all minors and would visit and play at defendant's home on a regular basis. Defendant's female cousin, J.F., who was a minor, would also visit defendant's home during holidays.
In February 2018, when N.Y. was 12 years old and in the 7th grade, she reported to her teacher that defendant had sexually abused her. This report was the first time that N.Y. had told anyone about sexual abuse/molestation. N.Y. was unaware of any sexual abuse by defendant against the other victims. A law enforcement investigation into N.Y.'s allegations against defendant ensued.
A Visalia police officer and a county child welfare officer went to N.Y.'s home to conduct a preliminary interview. N.Y. informed these officers that defendant had "touched her inappropriately." Per protocol, the officers also spoke with N.Y.'s sister R.Y., who was 17 years old at the time. R.Y. disclosed to the officers that defendant had "inappropriately touched her." This was the first time that R.Y. disclosed abuse by defendant. The officers forwarded their information to Visalia police detectives for further investigation.
The matter was assigned to Detective Martinez for further investigation. Martinez instituted a CART (child abuse report team) interview with N.Y., and an in-depth interview with R.Y. During N.Y.'s interview, she mentioned that C.R. had accidentally witnessed defendant molesting her.
Detective Martinez subsequently spoke with C.R., who was 15 years old at the time, at her high school to see if she remembered the incident with defendant and N.Y. As Martinez began to speak with C.R. about defendant and N.Y., C.R. became emotional and started to cry. Martinez asked C.R. if defendant had touched her inappropriately, and C.R. said that he had. C.R. had not told anyone about the abuse. Martinez arrested defendant after interviewing C.R.
Shortly after defendant's arrest, Detective Martinez contacted C.R.'s parents to disclose C.R.'s allegations. C.R.'s parents talked with their daughters and later spoke with Martinez. C.R.'s father believed that S.R. was holding something back, and he requested that Martinez speak with S.R. Martinez then went to S.R.'s high school and spoke with S.R., who was 16 years old at the time. S.R. disclosed to Martinez that she had been molested by defendant.
C.R.'s father again contacted Detective Martinez to let him know that his cousin, P.I., had requested Martinez's contact information. P.I. spoke with Martinez to inform him that her younger sister J.F. had indicated something had happened between J.F. and defendant. Martinez then instituted a CART interview with J.F., who was 11 years old at the time. J.F. disclosed that she had been molested by defendant.
After J.F. was interviewed, P.I. again contacted Detective Martinez and gave him information concerning J.J. Martinez contacted J.J. at her high school, where she disclosed that defendant had touched her inappropriately.
At trial, all six victims testified.
Due to the nature of the points raised in defendant's appeal, it is unnecessary to recount every aspect of each victims' testimony.
Victim N.Y.
In relevant part, N.Y. testified that defendant began touching her inappropriately when she was five years old. Defendant would touch N.Y.'s vagina or buttocks with his hand or mouth, and when she was about six or seven years old, defendant started to show her pornography. N.Y. testified that defendant would also make her touch his penis. N.Y. had no memory of defendant attempting to have intercourse with her, but she did remember defendant telling her one time that he wanted to try intercourse, but said she was too small, and that Vaseline might help. Defendant told N.Y. not to tell anyone about the molestations and to keep them secret. N.Y. thought what defendant was doing to her was normal, but eventually around ages eight or nine, she began to realize that it was wrong. N.Y. started avoiding defendant because his abuse made her feel anxious and nervous. Although N.Y. testified that defendant molested her close to every time she was at his house, she could not remember many specific incidents of molestation. At the time of trial, N.Y. was seeing two therapists, and while the therapists did not tell N.Y. what to say in court, the therapists helped N.Y. to vocalize and express her feelings.
Victim R.Y.
R.Y. testified that she and her sister N.Y., as well as other neighborhood children, would often play inside and around defendant's house. When she was between 10 and 12 years old, she and some other children were playing hide and seek in defendant's house and room. Defendant went into his room, turned off the lights and closed the door. R.Y. was lying on defendant's bed with her eyes closed. Defendant then touched R.Y.'s buttocks, began "squishing" her buttocks with both hands, and put his nose between her buttocks. R.Y. also testified that defendant would show her and N.Y. pornography. R.Y. did not tell anyone about defendant's abuse because she did not know how to tell and did not know if she would be believed. At the time of trial, R.Y. was seeing a therapist who helped her remember things through meditation.
Victim C.R.
C.R. testified that she was defendant's niece and visited defendant's home almost every day. C.R. testified that defendant committed different acts of abuse, including licking and rubbing her vagina, touching her buttocks, and making her touch his penis. C.R. also testified that defendant often showed her pornography. C.R. estimated that defendant began abusing her when she was six or seven years old and stopped abusing her around the time she started middle school. C.R. explained that she did not tell anyone about the abuse because she was nervous, scared, and did not want people to think that she was bad for doing those things with defendant.
Victim S.R.
S.R. testified that she would visit defendant's house a lot. S.R. testified to two instances of abuse when she was around five or six years old. Both instances took place in defendant's house, but in S.R.'s grandmother's room. In both instances, defendant took off S.R.'s pants and underwear and licked her vagina. S.R. did not tell anyone about the abuse because she was too young to truly comprehend how bad the things were that defendant was doing to her.
Victim J.F.
J.F. was defendant's cousin and would visit defendant and his parents during the holidays. J.F. testified to three incidents when she was six, seven or eight, and 10 years old. In all three incidents, defendant invited J.F. to his room to play with clay. Once in his room, defendant touched J.J.'s buttocks over her cloths, then placed his hand down her pants underneath her underwear and touched her vagina. J.F. also testified that defendant showed her pornography. J.F. also described an incident in which defendant sat next to her, had his penis out of his pants, and asked J.F. if she wanted to touch it. J.F. did not tell anyone about the abuse because she was "little" and "scared."
Victim J.J.
J.J. testified that she befriended C.R. when she was 10 or 11 years old and would play with C.R. at defendant's house almost daily. J.J. testified to an incident that occurred when she was 10 years old. Defendant sat next to J.J. on a couch in defendant's living room. Defendant showed J.J. pornography on his phone and then touched J.J.'s thigh with his hand close to her vagina while the pornography was playing. J.J. also testified to two other incidents when she was 10 years old when defendant displayed pornographic magazines and a pornographic video to J.J. and C.R. J.J. did not tell anyone about the incidents because she felt disgusted with herself.
DISCUSSION
I. Ineffective Assistance of Counsel - Closing Argument
A. Parties' Arguments
Defendant argues that his counsel's closing argument improperly diluted the beyond a reasonable doubt standard. Counsel compared an "abiding conviction" to not having buyer's remorse over an electronics purchase and argued that the jury had to determine merely whether it believed the charges were true. Since this argument allowed the jury to find guilt while still having a reasonable doubt, defendant suffered prejudice.
The People argue that defense counsel was not deficient. Defense counsel informed the jury that it must have an abiding conviction that the charges were true and referenced CALCRIM 220, the reasonable doubt instruction. Counsel's comparison to buyer's remorse over an electronics purchase was an attempt to show that an abiding conviction was not fleeting and brief and it did not allow the jury to convict by simply believing the allegations were true.
We agree with the People that no constitutional error has been demonstrated. B. Additional Background
1. Jury Instructions
Both before opening statements at the beginning of the trial and before closing statements at the end of trial, the trial court instructed the jury with CALCRIM 220, which reads:
"A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant is guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt."
"Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt."
2. Closing Arguments
Defense counsel discussed CALCRIM 220 and the burden of proof. In relevant part, counsel argued:
"Now, as everybody knows from watching crime dramas and court shows, the burden of proof that must be satisfied is contained in [CALCRIM No.] 220. You'll notice the numbers at the top [of the written instructions], all right. [CALCRIM No.] 220, as the court read, is that before you can make a finding of guilt or of a conviction, you must have an abiding conviction that the allegation is true, and it's kind of a correct way to say things.
"And I always kind of considered an abiding conviction is not having buyer's remorse. How many of you are like me buy an electronic device; oh, I wish I could take it back. Having an abiding conviction not to have that remorse, is to feel good about your purchase, okay.
"And so if you reached a level in your analysis that you feel like yeah, what's being alleged is true, all right, well that's having an abiding conviction and being satisfied beyond a reasonable doubt that what is alleged is true.
"So [CALCRIM No.] 220 gives you the standard by which to measure your belief in the validity of the charges."
C. Legal Standard
1. Ineffective Assistance of Counsel
The Sixth Amendment guarantees the" 'right to the effective assistance of counsel.'" (Strickland v. Washington (1984) 466 U.S. 668, 686 (Strickland).) "A defendant who claims to have been denied effective assistance must show both that counsel performed deficiently and that counsel's deficient performance caused him prejudice." (Buck v. Davis (2017) 580 U.S. 100, 118; see also People v. Johnsen (2021) 10 Cal.5th 1116, 1165 (Johnsen).) A deficient performance is one in which counsel fell below an objective standard of reasonableness under prevailing professional norms. (People v. Arredondo (2019) 8 Cal.5th 694, 711.) There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. (Woods v. Donald (2015) 575 U.S 312, 315 (Woods); People v. Stanley (2006) 39 Cal.4th 913, 954 (Stanley).) There is a corresponding strong presumption that counsel made all significant decisions in the exercise of reasonable professional judgment. (Cullen v. Pinholster (2011) 563 U.S. 170, 196 (Cullen); People v. Padilla (1995) 11 Cal.4th 891, 935.) Courts will defer to counsel's reasonable tactical decisions. (Arredondo, at p. 711; see also Cullen, at p. 195.) Prejudice occurs where there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been more favorable to the defendant. (Strickland, at p. 694; Stanley, at p. 954.) In turn, a "reasonable probability" is a probability sufficient to undermine confidence in the outcome. (Strickland, at p. 694; Stanley, at p. 954.)
Ineffective assistance of counsel claims should generally be pursued through habeas corpus proceedings. (People v. Mai (2013) 57 Cal.4th 986, 1009; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268.) This is because on direct appeal, a court may find deficient performance only if: (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. (Johnsen, supra, 10 Cal.5th at p. 1165; Mai, at p. 1009.) If counsel's tactics or strategic reasons for challenged decisions do not appear on the record, courts will not find ineffective assistance of counsel unless there could be no conceivable reason for counsel's acts or omissions. (Johnsen, at p. 1165). Given this framework, "[r]arely is ineffective assistance of counsel established on [direct] appeal since the record usually sheds no light on counsel's reasons for action or inaction." (People v. Woodruff (2018) 5 Cal.5th 697, 736.)
2. Ineffective Assistance of Counsel in Closing Argument
A defense counsel may not make arguments that are against the interests of his client. (See People v. Gurule (2002) 28 Cal.4th 557, 627; People v. Mincey (1992) 2 Cal.4th 408, 450.) Attorneys are also prohibited from making arguments that lower or dilute the prosecution's burden of proof. (People v. Centeno (2014) 60 Cal.4th 659, 673; see also People v. Potts (2019) 6 Cal.5th 1012, 1036.) Attorneys should avoid drawing comparisons that risk confusing, undermining, or trivializing the reasonable doubt standard, particularly by equating the standard to everyday decision making in the jury's own lives. (See People v. Dalton (2019) 7 Cal.5th 166, 260; People v. Bell (2019) 7 Cal.5th 70, 111-112.) However," '[t]he effectiveness of an advocate's oral presentation is difficult to judge accurately from a written transcript ...." (People v. Williams (1997) 16 Cal.4th 153, 219.) Reviewing courts will not lightly infer the jury drew the most damaging meaning, as opposed to the least damaging meaning, from the attorney's statements. (Bell, at p. 111.) "Reversals for ineffective assistance of counsel during closing argument rarely occur; when they do, it is due to an argument against the client which concedes guilt, withdraws a crucial defense, or relies on an illegal defense." (People v. Moore (1988) 201 Cal.App.3d 51, 57; see Williams, at p. 265.)
D. Analysis
Defendant's argument rests on the contention that defense counsel trivialized the burden of proof and lowered it from beyond a reasonable doubt to a mere belief. However, we do not agree with defendant's assessment.
Courts have described "an abiding conviction" as one that is "settled and fixed" (Hopt v. Utah (1887) 120 U.S. 430, 439; People v. Pierce (2009) 172 Cal.App.4th 567, 573 (Pierce)), and one that is "lasting [and] permanent." (People v. Brigham (1979) 25 Cal.3d 283, 290; Pierce, at p. 573.) This is consistent with Merriam-Webster's online dictionary, which defines "abiding" as "continuing for a long time: enduring." (https://www.merriam-webster.com/dictionary/abiding?src=search-dict-box.) Courts have recognized that the concept of an "abiding conviction" is sufficiently well understood that additional definitions or instructions from the trial court are unnecessary. (People v. Andrade (2015) 238 Cal.App.4th 1274, 1303-1304; Pierce, at p. 573; People v. Campos (2007) 156 Cal.App.4th 1228, 1238-1239 (Campos).) Although examples that reflect an "abiding conviction" may be unnecessary, it is not per se deficient for defense counsel to try and provide relatable examples of an abiding conviction for the jury. Any example, however, must be substantially consistent with something that is settled and fixed and/or lasting and permanent. (Cf. People v. Cudjo (1993) 6 Cal.4th 585, 634 (Cudjo) [finding that defense counsel's argument during the penalty phase did not lower the prosecution's burden because the argument was substantially consistent with the court's instruction/the law]; Pierce, at p. 573 [explaining that an abiding conviction is fixed and settled as well as lasting and permanent].)
Here, counsel compared an abiding conviction to "buyer's remorse," which he in turn described as not wanting to take something back and feeling good about a purchase. Counsel was in effect warning the jury that they did not want to have lingering doubts that would make them regretful and want to take back their legal decisions. This is substantially consistent with the "lasting and permanent" aspect of an "abiding conviction." Counsel did not ask the jury to think of this case like they were making an electronics purchase or to decide the case in the same way they would decide which piece of electronic equipment to buy. Further, while counsel did discuss reaching the point in which the jury "believed" that what was alleged was true, that sentence needs to be read in relation to the entirety of counsel's statement. (People v. Adanandus (2007) 157 Cal.App.4th 496, 513 [courts do not view counsel's "remarks in isolation but rather 'in the context of the argument as a whole' "].) The entirety of counsel's statement indicated that once the jury felt good about its decision, did not feel like it might want to take the decision back, and had reached the point that they believed the allegations were true, then they had an abiding conviction. Taken together, this is substantially consistent with a settled, fixed, lasting, and permanent belief. (Cf. Cudjo, supra, 6 Cal.4th at p. 634; Pierce, supra, 172 Cal.App.4th at p. 573.)
We acknowledge that counsel's example is imperfect and comes close to trivializing the beyond a reasonable doubt standard through its treatment of an abiding conviction. Nevertheless, the concept of an abiding conviction is one that is understood by juries and requires no further clarification or amplification through court instruction or examples by counsel (People v. Andrade, supra, 238 Cal.App.4th at pp. 1303-1304; Pierce, supra, 172 Cal.App.4th at p. 573; Campos, supra, 156 Cal.App.4th at pp. 12381239), and counsel's argument remained substantially consistent with a determination that is fixed and settled as well as lasting and permanent. To the extent that counsel's example is imperfect, it is not so imperfect that it diluted the burden of proof by causing the jury to abandon their natural understanding of an "abiding conviction." Therefore, defense counsel's "buyer's remorse" example is not so objectively unreasonable as to render counsel's performance deficient. (Cf. Cudjo, supra, 6 Cal.4th at p. 634.) Without a deficient performance, there is no ineffective assistance of counsel. (Strickland, supra, 466 U.S. at p. 697; People v. Camino (2010) 188 Cal.App.4th 1359, 1377 (Camino).)
II. Uncharged and Undisclosed Prior Bad Acts
A. Parties' Arguments
Defendant contends that although the prosecution filed an Evidence Code section 1108 (section 1108) motion to consider charged sexual offenses, the motion did not address uncharged sexual offenses. At trial, uncharged sexual offenses were admitted without objection to the nondisclosure required by section 1108, or under Evidence Code sections 1101 (section 1101). The uncharged offenses were: (1) C.R., N.Y., R.Y., J.F., and J.J. testified that defendant showed them pornography; (2) J.F. testified defendant had his penis out of his pants and was touching it while J.F. was sitting next to him on the couch; (3) C.R. testified about defendant commenting on and then touching or slapping her buttocks; (4) defendant's brother described defendant being alone with C.R. and S.R. in a locked room, taking three to four minutes to unlock the door, and then appearing sweaty; (5) defendant told N.Y. that she was too small for sex, but that Vaseline might help; and (6) N.Y. testified that defendant told her he wanted to try sex as depicted in pornography. Defendant argues there could be no strategic reason to fail to object to this evidence and counsel's failure was prejudicial.
The People argue in part that much of the evidence was elicited at the preliminary hearing, and thus was previously produced during discovery. The People also aver that the evidence was admissible to prove the crimes charged in the information.
Much of the People's response does not actually address the arguments being made by defendant. Under this point, defendant focuses on admission of uncharged sexual acts, while the People's opposition focuses almost entirely on charged acts.
B. Additional Background
Defendant's brother testified at trial that, during the time when his daughters C.R. and S.R. were molested by defendant, he did not notice anything that alerted him to possible abuse. However, in retrospect, an incident "stood out" to him as odd. Defendant's brother described an instance where he and his wife went over to defendant's house to pick up C.R. and S.R. Defendant was in a room with C.R. and S.R. and the door was locked. It took three or four minutes after they knocked for defendant to open the door. Defendant was sweaty when he opened the door. Defendant's brother did not remember C.R. and S.R. being sweaty or looking scared.
C. Legal Standards
1. Section 1101
Subject to certain exceptions, "evidence of a person's character or a trait of his or her character ... is inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a); People v. Pineda (2022) 13 Cal.5th 186, 221.) This character evidence is"' "sometimes described as evidence of propensity or disposition to engage in a specific conduct ...." '" (People v. Holmes, McClain, and Newborn (2022) 12 Cal.5th 719, 770 (Holmes, McClain).) However, section 1101 also clarifies that prohibition against propensity evidence" 'does not prohibit admission of evidence of uncharged misconduct [or other crimes or acts] when such evidence is relevant to establish some fact other than the person's character or disposition' . . . with permissible purposes including but not limited to proving 'motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident.'" (Pineda, at p. 221; see Evid. Code, § 1101, subd. (b).)
2. Section 1108
Section 1108 "carves out an exception to Evidence Code section 1101, subdivision (a)'s ban on character evidence to prove a person's conduct on a particular occasion." (People v. Molano (2019) 7 Cal.5th 620, 663.) In a criminal "sexual offense" case, "evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] section 352." (Evid. Code, § 1108, subd. (a).) Thus, if evidence meets the requirements of section 1108, "admission of that evidence to prove propensity is permitted." (Molano, at p. 664.) As a statute of admission, section 1108 expressly does not limit the admission of evidence through other provisions of the Evidence Code. (Evid. Code, § 1108, subd. (c); People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) However, section 1108 is limited to the admission of prior "sex offenses" in a criminal action where the defendant is charged with committing a "sex offense." (Falsetta, at p. 916.) The other sex offenses may be charged or uncharged. (People v. Loy (2011) 52 Cal.4th 46, 63.) Section 1108 defines the term "sex offense" through citation to specific sections of the Penal Code and through identification of four specific types of acts (including attempt to perform the described acts) not expressly linked to the Penal Code. (Evid. Code, § 1108, subd. (d)(1)(A)-(F); see also People v Miramontes (2010) 189 Cal.App.4th 1085, 1098-1099.) Evidence of charged or uncharged sex offenses is presumed admissible under section 1108, and exclusion is appropriate only if the prejudicial effect of the prior sex offenses substantially outweighs its probative value. (Loy, at p. 62.)
In order to utilize section 1108, the prosecution is required to disclose at least 30 days before trial the evidence of prior sex offenses that it expects to offer at trial. (§ 1108, subd. (b); People v. Wesson (2006) 138 Cal.App.4th 959, 968; People v. Soto (1998) 64 Cal.App.4th 966, 979-980 (Soto).) This notice and disclosure requirement is designed to protect a defendant against unfair surprise and to allow the defendant sufficient time to prepare to rebut or address the evidence at trial. (See Falsetta, supra, 21 Cal.4th at p. 916; Soto, at p. 980.)
D. Analysis
"' "Whether to object to inadmissible evidence is a tactical decision: because trial counsel's tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel's incompetence." '" (People v. Rices (2017) 4 Cal.5th 49, 80; see People v. Riel (2000) 22 Cal.4th 1153, 1202 (Riel) [explaining that the decision whether to object is a "minute to minute and second to second strategic and tactical decisions which must be made by the trial lawyer during the heat of battle."].) Because the failure to object is a matter of trial tactics, reviewing courts will not exercise" 'judicial hindsight'" or" 'second-guess trial counsel's reasonable tactical decisions.'" (Riel, at p. 1185.) Here, defense counsel was not asked why he failed to object about nondisclosure under section 1108 of the identified uncharged sexual offenses, nor was counsel asked why he failed to object under section 1101, and the record does not otherwise reflect why he did not do so. Therefore, we will find a deficient performance only if there is no satisfactory conceivable reason for counsel's failure to object. (Johnsen, supra, 10 Cal.5th at p. 1165.) Because we can conceive of several reasons why defense counsel did not object under section 1101 or section 1108, defendant has not shown deficient performance or ineffective assistance of counsel. (Johnsen, at p. 1165.)
1. Failure to Object Under Section 1101
a. Locked Room Incident
The prosecutor's closing argument did not mention the incident in which defendant's brother found C.R., S.R., and defendant together in a locked room. Thus, there was no argument or clear attempt by the prosecutor to use this incident for an improper propensity purpose. Further, defendant's brother did not describe any actual conduct or contact by defendant against C.R. and S.R., nor did he indicate that C.R. or S.R. appeared to have any physical injuries or were behaving in an odd, fearful, or traumatized manner. Therefore, the testimony appears to reflect an instance in which defendant had the opportunity to molest C.R. and S.R. Opportunity is an admissible section 1101, subdivision (b) purpose. (Evid. Code, § 1101, subd. (b).)
Given these considerations, defense counsel could have reasonably concluded that the prosecutor did not and was not attempting to utilize the testimony of defendant's brother as improper propensity evidence. (See Woods, supra, 575 U.S at p. 315 [counsel is presumed to act reasonably]; Cullen, supra, 563 U.S. at p. 196 [counsel is presumed to have made all significant decisions in the exercise of reasonable professional judgment].) Under this view of the evidence, counsel was not obligated to object under section 1101, subdivision (a). (Riel, supra, 22 Cal.4th at pp. 1185, 1202; see also People v. Caro (2019) 7 Cal.5th 463, 488 (Caro) ["For example, '[c]ounsel is not ineffective for failing to make frivolous or futile motions' "].) Since this is a conceivable satisfactory explanation for the failure to object, defendant has failed to show a deficient performance, (Johnsen, supra, 10 Cal.5th at p. 1165), and thus, ineffective assistance of counsel. (Camino, supra, 188 Cal.App.4th at p. 1359.)
b. Other Uncharged Acts
It is not apparent that the identified uncharged incidents were meant to show defendant had a propensity to commit sex offenses in contravention of section 1101, subdivision (a). The prosecutor's closing argument (including slides) show that she relied on the prior acts of exhibiting pornography to five of the six victims, the sex related statements to N.Y., and defendant exhibiting his penis to J.F. on the couch all to show that defendant had the intent of sexual gratification. Section 288 requires that a defendant must have" 'the intent to arouse or gratify the sexual desires of the [defendant] or the victim.'" (People v. Shockley (2013) 58 Cal.4th 400, 404; see § 288, subd. (a).) Additionally, it appears that the prosecutor argued during closing argument that some of the uncharged conduct was indicative of a common design or plan by defendant. The prosecutor explained that the defendant engaged in similar behavior with the victims (including where he would touch them) and specifically noted that defendant showed pornography to all of the victims except for S.R.
The prosecutor's use of these prior uncharged acts to show a common plan or design by defendant and to meet the intent element of section 288 are valid nonpropensity purposes under section 1101. (Evid. Code, § 1101, subd. (b); People v. Kipp (1998) 18 Cal.4th 349, 369; People v. Ewoldt (1994) 7 Cal.4th 380, 403 [holding testimony of uncharged offenses by defendant against his stepdaughters was admissible to show a plan where the stepdaughters were of a similar age, the molestation occurred at night in the stepdaughters' beds, and when discovered defendant claimed each time that he was straightening up the covers].) Considering the nature of the uncharged sexual offenses, and that defendant was charged with violating section 288 as to all six of the victims, defense counsel could have reasonably concluded that section 1101, subdivision (a) would not have excluded the acts because they were admissible to show intent and common design or plan under section 1101, subdivision (b). (See Woods, supra, 575 U.S at p. 315; Cullen, supra, 563 U.S. at p. 196.) Under this view of the evidence, counsel was not obligated to object. (Riel, supra, 22 Cal.4th at pp. 1185, 1202; see also Caro, supra, 7 Cal.5th at p. 488.)
Defendant argues that intent was not at issue because he only denied that the acts of molestation occurred. To be sure, defendant testified that he did not perform any acts of molestation, and his testimony did not expressly address intent. Nevertheless, defendant never stipulated or agreed that an intent for sexual arousal or gratification accompanied any act of molestation. Moreover, defendant cites no authority, and we are aware of none, that indicates his denial of the acts of molestation relieved the prosecutor of demonstrating an improper sexual intent under section 288, subdivision (a). Therefore, the prosecutor was still required to produce evidence that met every element of section 288, subdivision (a), including that section's intent element. (People v. Chhoun (2021) 11 Cal.5th 1, 29.)
Accordingly, because it is conceivable that counsel reasonably concluded the uncharged acts were admissible for at least two section 1101, subdivision (b) purposes, defendant has failed to show a deficient performance. (Johnsen, supra, 10 Cal.5th at p. 1165.) Without a deficient performance, there is no ineffective assistance of counsel. (Camino, supra, 188 Cal.App.4th at p. 1359.)
2. Failure to Object Under Section 1108
First, not all of the six prior acts identified by defendant constitute "sex offenses" under section 1108. As discussed above, the testimony of defendant's brother about defendant and C.R. and S.R. being alone in a locked room did not include a description of any contact or attempted contact between defendant and C.R. and S.R. Thus, the testimony of defendant's brother described an opportunity to engage in a sex offense, but it did not actually describe a "sex offense" as defined by section 1108. Because this incident does not fit section 1108's definition of a "sex offense," section 1108 does not apply (Falsetta, supra, 21 Cal.4th at p. 916), and counsel was not deficient for failing to object to that incident on section 1108 grounds. (Caro, supra, 7 Cal.5th at p. 488.)
Second, section 1108 carves out an exception to section 1101, subdivision (a). (People v. Molano, supra, 7 Cal.5th at p. 663.) As discussed above, counsel reasonably could have concluded that the exception of section 1108 was not implicated because the uncharged incidents were admissible through section 1101, subdivision (b) to demonstrate an intent for sexual arousal or gratification, as well as a common plan or design, but not to demonstrate a propensity to commit sex offenses. (Cf. Falsetta, supra, 21 Cal.4th at p. 911 [noting that § 1108, subd. (c) does not limit admissibility through other provisions of the Evid. Code].) That is how most of the uncharged acts were used by the prosecutor during her closing argument. Moreover, during motions in limine, the prosecutor explained that she intended to use charged acts as propensity evidence (and thus, the CALCRIM 1191B instruction). The prosecutor indicated that she did not intend to argue or use any uncharged acts as propensity evidence. Because the prosecutor had a legitimate section 1101, subdivision (b) purpose, and did not attempt to utilize the uncharged acts as propensity evidence, counsel could have reasonably concluded that there was not a basis to object under section 1108. (See Woods, supra, 575 U.S at p. 315; Cullen, supra, 563 U.S. at p. 196.) Under this view of the evidence, counsel was not obligated to object. (Riel, supra, 22 Cal.4th at pp. 1185, 1202; see also Caro, supra, 7 Cal.5th at p. 488.)
Third, C.R.'s description of defendant touching or slapping her buttocks for one or two seconds over clothes could be lewd conduct under section 288, but not necessarily so. Again, section 288 requires that a defendant engage in lewd conduct with the intent to arouse, appeal to, or gratify sexual lust or desires. (§ 288, subd. (a); People v. Shockley, supra, 58 Cal.4th at p. 404.) Although she did not view the touching as playful because of the defendant's other inappropriate conduct towards her, C.R. nevertheless described the touching as done in a playful manner. A playful one or two second touch does not necessarily reflect an intent for sexual gratification or arousal. While other conclusions could be reached, defense counsel could have reasonably concluded that C.R.'s testimony did not demonstrate another uncharged lewd act on C.R. by touching her buttocks for one or two seconds in a playful manner. (Cf. Woods, supra, 575 U.S at p. 315; Cullen, supra, 563 U.S. at p. 196.) Such a conclusion would mean that section 1108 would not apply (Falsetta, supra, 21 Cal.4th at p. 916), and counsel would not be deficient for failing object under section 1108. (Riel, supra, 22 Cal.4th at pp. 1185, 1202; see also Caro, supra, 7 Cal.5th at p. 488.)
Finally, it appears unlikely that defense counsel was surprised by the identified uncharged acts. The posttrial probation report describes pretrial interviews of the victims and pretrial reports by law enforcement. Defendant's sex-related statements to N.Y., i.e. Defendant wanting to try sex and that N.Y. was too small, and defendant exposing his penis to J.F. on the couch are incidents that the probation report describes as statements that N.Y. and J.F. made to law enforcement. Further, defense counsel demonstrated at trial an awareness and understanding of the contents of Detective Martinez's report as well as the victims' interviews and statements to law enforcement. Moreover, J.F.'s CART interview was played to the jury. Considering that reports were generated, and interviews were conducted well before trial, counsel was familiar with the reports and the victims' statements, and a CART interview was actually played for the jury, it is a virtual certainty that defense counsel was provided with the reports and interviews before trial. Therefore, counsel was likely aware of the uncharged offenses for many months before the trial and could have surmised that the People would attempt to admit the uncharged acts as described by the victims in their interviews. Therefore, counsel could have reasonably concluded that he would be unable to argue surprise or prejudice due to any nondisclosure under section 1108 (see Woods, supra, 575 U.S at p. 315; Cullen, supra, 563 U.S. at p. 196), which are the two perils that section 1108's disclosure requirement is meant to prevent. (Falsetta, supra, 21 Cal.4th at p. 916; Soto, supra, 64 Cal.App.4th at p. 980.)
Given these considerations, it is conceivable that counsel reasonably concluded that an objection under section 1108 was unwarranted. Thus, defendant has failed to show a deficient performance (Johnsen, supra, 10 Cal.5th at p. 1165; see also Riel, supra, 22 Cal.4th at pp. 1185, 1202) or ineffective assistance of counsel. (Strickland, supra, 466 U.S. at p. 697; Camino, supra, 188 Cal.App.4th at p. 1359.)
III. Sufficiency of the Evidence on Counts 2 and 3
A. Parties' Arguments
Defendant argues that counts 2 and 3 for lewd acts against C.R. were only supported by insufficient generic evidence from C.R. herself. C.R. was unable to explain exactly when defendant's actions against her began or when they ended and was not 100 percent certain about defendant's molesting conduct after the first time he engaged in oral copulation. Because C.R.'s generic testimony did not adequately describe the number of acts committed or the general time period in which the lewd acts occurred, there insufficient evidence to support a conviction on counts 2 and 3.
The People argue that C.R.'s testimony was sufficient to support the conviction because C.R. adequately testified to multiple molestations that occurred over a period of years in defendant's bedroom.
We agree with the People that C.R.'s testimony was sufficient under People v. Jones (1990) 51 Cal.3d 294 (Jones) to support the convictions under counts 2 and 3.
B. Additional Background
Counts 2 and 3 alleged lewd conduct by defendant against C.R., each involving contact between defendant's mouth and C.R.'s vagina. The information alleged that counts 2 and 3 occurred "on or about between June 14, 2008, and December 31, 2015," and more specifically described count 2 as the "next time" and count 3 as the "last time."
At trial, C.R. testified that she was born in June 2002. C.R. described the first time that defendant engaged in oral copulation with her. C.R. explained that she and defendant went to defendant's bedroom, where he had an air mattress leaning against the wall. They were between the air mattress and wall when defendant removed C.R. pants and underwear and began licking her vagina. C.R. initially testified that she did not know how old she was during this incident, but later testified that she thought she was between six and seven years old and thought defendant stopped orally touching her when she started middle school. C.R. testified that she remembered other instances of defendant licking or touching her vagina with his mouth and that he had done so more than one time. However, C.R. also testified that she thought that there were other instances that defendant did this to her after the first incident, but she was not "one hundred percent certain." C.R. subsequently agreed with the prosecutor that she could try and estimate the number of additional molestations. C.R. testified that defendant definitely engaged in this activity more than five times but was uncertain whether he did so more than 10 times. C.R. testified that defendant engaged in this activity on separate days and while they were in his bedroom.
C. Legal Standard
When considering a challenge to the sufficiency of the evidence to support a conviction, reviewing courts determine whether the record contains substantial evidence, which is evidence that is reasonable, credible, and of solid value, from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Morales (2020) 10 Cal.5th 76, 88.) Reviewing courts determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319; Morales, at p. 88.) Reviewing courts "view the evidence in the light most favorable to the jury verdict and presume the existence of every fact that the jury could reasonably have deduced from the evidence." (People v. Reed (2018) 4 Cal.5th 989, 1006; see also Morales, at p. 88.) Because of the peculiar challenges in cases involving sexual molestation of children and repeated identical offenses, a jury may find a defendant guilty of more than one indistinguishable act of molestation based on generic evidence if the generic evidence describes: (1) the kind of acts committed with sufficient specificity to assure that unlawful conduct occurred; (2) the number of acts committed with sufficient certainty to support the alleged counts; and (3) the general time period in which the acts occurred to assure the acts were committed within the applicable limitations period. (Jones, supra, 51 Cal.3d at pp. 315-316; People v. Garcia (2016) 247 Cal.App.4th 1013, 1020 (Garcia); People v. Fernandez (2013) 216 Cal.App.4th 540, 556-557.) In other words, "in child molestation cases, as long as the victim specifies the type of conduct involved, its frequency, and that the conduct occurred during the limitation period, nothing more is required to establish the substantiality of the victim's testimony." (People v. Matute (2002) 103 Cal.App.4th 1437, 1446.) A child victim's testimony does not need to be corroborated in order to support a conviction under section 288. (People v. Rios (1992) 9 Cal.App.4th 692, 705, fn. 3.)
Specifically, "the victim typically testifies to repeated acts of molestation occurring over a substantial period of time but, lacking any meaningful point of reference, is unable to furnish may specific details, dates, or distinguishing characteristics as to individual acts or assaults." (Jones, supra, 51 Cal.3d at p. 299.)
D. Analysis
C.R. described acts by defendant in which he licked her vagina when she was six or seven years old. This conduct is indisputably unlawful and fulfills the third amended information's allegation that defendant engaged in lewd conduct through mouth to vagina contact. Therefore, the first Jones factor is met. (Jones, supra, 51 Cal.3d at p. 316; Garcia, supra, 247 Cal.App.4th at p. 1020.)
For purposes of this section (III.D.) only, a reference to or discussion of other "lewd acts" by defendant means instances in which defendant licked and/or put his mouth on C.R.'s vagina.
C.R.'s testimony also shows that she believed defendant first molested her when she was six or seven years old and that the molestation ended before she began middle school, which was before she moved in 2015. Assuming that the molestation began when she was six, C.R.'s testimony fits within the time period alleged in the third amended information. The third amended information alleged that the molestations occurred between June 14, 2008, which was C.R.'s sixth birthday, and December 31, 2015, which was the last day that C.R. could have moved to a different home. There is no argument that this time frame was outside the applicable limitations period. Therefore, the third Jones factor is met. (Jones, supra, 51 Cal.3d at p. 316; Garcia, supra, 247 Cal.App.4th at pp. 1020, 1023.)
Finally, in counts 2 and 3, the information alleged two separate specific acts of lewd conduct: count 2 being the "next time" defendant molested C.R. after the initial oral copulation and count 3 being the "last time" defendant engaged in lewd conduct against C.R. Through the estimation process, C.R. testified that defendant "definitely" engaged in subsequent acts of lewd conduct more than five times on separate days, but she was unsure if he did so more than 10 times. Because only two additional acts of lewd conduct were alleged, C.R.'s testimony that there were definitely more than five additional times was sufficiently certain to meet the allegations of counts 2 and 3. Thus, the second Jones factor is met. (Jones, supra, 51 Cal.3d at p. 316; Garcia, supra, 247 Cal.App.4th at pp. 1020, 1023.)
Defendant correctly points out that at one point, C.R. testified that she believed, but was not one hundred percent certain, there were other instances of lewd conduct after the first instance of oral copulation. However, at other times and without equivocation, C.R. testified that there were subsequent instances of lewd conduct. The jury was entitled to resolve any tensions or inconsistencies in C.R.'s testimony and to credit her unequivocal testimony that defendant "definitely" engaged in subsequent lewd acts more than five times, each time on a separate day and each time in defendant's bedroom. (People v. Tompkins (2010) 185 Cal.App.4th 1253, 1261; see also People v. Oliver (1961) 55 Cal.2d 761, 764.)
Defendant also argues that C.R.'s testimony is based on an estimation and three California cases (People v. Tompkins, People v. Matute, and People v. Moore (1989) 211 Cal.App.3d 1400) indicate that estimates about the number of molestations are insufficient to meet the second Jones factor. However, Matute involved definite testimony about rapes occurring on a weekly basis, and the Court of Appeal did not discuss estimates or concerns about estimates. (People v. Matute, supra, 103 Cal.App.4th at pp. 1440-1441, 1449.) Similarly, although aspects of the victim's testimony in Tompkins were uncertain (including providing a range of between one and 50 for the number of instances of molestation), the victim's prior statements to an investigator were more definite and specific. (People v. Tompkins, supra, 185 Cal.App.4th at pp. 12611262.) Importantly, as in Matute, the Tompkins court did not discuss the significance of or concerns with estimates. (Tompkins, at pp. 1261-1262.) Instead, the testimony of the investigator and the victim (as well as extrajudicial admissions by the molester) were sufficient to support convictions for 13 acts of molestation. (Ibid.)
With respect to Moore, the victim in that case was asked" '[a]bout how many times'" acts of sodomy were performed, to which the victim answered simply," 'Three.'" (People v. Moore, supra, 211 Cal.App.3d at p. 1409.) In responding to arguments that the question called for speculation and was insufficient to support convictions for three counts of sodomy under section 286, the Moore court explained: "To be sure, the form of the prosecutor's question is regrettable. However, [the victim] did not answer with an approximation or state she thought it was three times. Thus, there is a reasonable basis from which the jury could have concluded there were three separate acts." (Ibid.)
We agree with defendant that Moore indicates that uncertain responses or estimates may raise sufficiency concerns, depending on the nature of the estimate or the uncertainty expressed. In this case, however, there is no concern. C.R. was initially asked if she could attempt to provide an estimate and later agreed with the prosecutor that she [C.R.] was testifying that defendant "definitely" molested her more than five times. There was no equivocation or uncertainty as to the "more than five" statement. While C.R. clearly expressed uncertainty for incidents of lewd acts that were greater than 10, the uncertainty is immaterial because C.R. was definite and certain over a number that exceeded the acts which were needed to sustain counts 2 and 3.
In sum, because C.R.'s testimony satisfies the three Jones factors for generic evidence in a child molestation case, the evidence was sufficient to support the jury's guilty verdict on counts 2 and 3. (Jones, supra, 51 Cal.3d at p. 316.)
Defendant cites several nonbinding out of state cases for the proposition that a victim's estimate about the number of molestations is too speculative to support multiple convictions. (E.g. Valentine v. Konteh (6th Cir. 2005) 395 F.3d 626, 633.) We agree that, depending on the questions asked, the responses given, and the number of molestations charged, uncertain testimony, an estimate, or a guess by the victim may alone be insufficient under Jones to sustain multiple convictions. However, as explained above, even though part of an estimation process, C.R. testified unequivocally that defendant "definitely" committed more than five subsequent lewd acts on her. We detect no reason why this unequivocal response should be classified as insubstantial and insufficient to support the two lewd acts necessary for counts 2 and 3. To the extent that these cases may be read to hold that estimates, or the use of an estimation process, will never be sufficient to support multiple molestation convictions, we disagree.
IV. Admission of RY's Observation of Blood
A. Parties' Arguments
Defendant argues that the trial court abused its discretion and violated his federal due process rights when it allowed R.Y. to testify about observing blood on N.Y.'s underwear. R.Y. did not know the cause of the blood, had no expertise identifying blood or its causes, N.Y. did not remember the event, and R.Y. recalled the event during a therapy session which used an unreliable memory recall technique.
The People argue the trial court did not abuse its discretion because R.Y.'s testimony circumstantially showed that defendant had touched N.Y.'s vagina, as alleged in the information. Considering the passage of time and the child victims, the court correctly found that the probative value of R.Y.'s testimony was substantial. To the extent there may be error, the People argue that any error was harmless.
We agree with the People.
B. Additional Background
1. Evidence Code section 402 Hearing
R.Y. testified at an Evidence Code section 402 hearing outside the presence of the jury. R.Y. testified that one day when N.Y. was five or six years old, N.Y. came home from defendant's house and called R.Y. to the bathroom. R.Y. saw blood on N.Y.'s underwear. N.Y. was scared about the blood, and R.Y. initially thought it was unusual for N.Y. (who was five or six years younger than R.Y.) to be starting her period before she (R.Y.) did. R.Y. did not see defendant alone with N.Y. that day. R.Y. did not, and still does not, know what the blood was from. R.Y. did not talk to Detective Martinez about the incident because she did not remember it at the time, rather, she remembered it after meeting with her therapist. The therapist had R.Y. sit down, close her eyes, either listen to or think about ocean waves (R.Y.'s testimony was unclear), and see if she could remember anything.
Defense counsel argued to the trial court that memory recall techniques were unreliable, there was no evidence to show what happened, and to allow the testimony and then draw connections to unlawful conduct was too tenuous. The prosecutor argued that R.Y.'s testimony was more information about what was happening to N.Y. because N.Y. had testified that defendant digitally penetrated her vagina at least once, and also testified defendant had talked about trying to have sex with N.Y., but N.Y. could not remember if defendant made an actual attempt.
The trial court overruled defense counsel's objection that R.Y.'s testimony was unduly prejudicial, speculative, and without adequate foundation. The court found that R.Y.'s testimony was prejudicial but was also relevant as it circumstantially evidenced wrongdoing. After finding that there was no risk of an undue consumption of time or of confusing issues, the court explained:
"I think that this is a situation where ... the jury can assess this evidence and make a determination on their own what type of weight they want to give it, but when you're dealing with allegations of child molestation that have happened years ago and the witnesses have aged since that time, and these things are alleged to have happened in private, I think the probative value is substantial.
"I think in a prosecution of this type, much of the evidence is graphic and prejudicial. I don't think that this particular bit of evidence given the context is unduly prejudicial on balance given the circumstances that [R.Y.] described. It's going to be limited to her observations, have to be connected to her seeing [N.Y.] coming back across the street from the defendant's house immediately prior."
2. R.Y.'s Trial Testimony
At trial, R.Y. testified consistently with her testimony at the Evidence Code section 402 hearing. R.Y. testified that she was in defendant's yard and N.Y. was inside defendant's house. N.Y. came out of defendant's house, she and N.Y. went back to their own home, and then N.Y. went to the bathroom. N.Y. called R.Y. into the bathroom. N.Y. had blood on the crotch area of her underwear and was scared. R.Y. at first thought that N.Y. had started her period, but then R.Y. realized that could not be the case because N.Y. was too young. R.Y. testified that she did not discuss seeing blood on N.Y.'s underwear to Detective Martinez because she did not remember the event at that time, rather, she remembered the event later while meditating with her therapist. R.Y. did not testify as to the cause of the blood or to seeing defendant do anything inappropriate to N.Y.
C. Legal Standards
"Only relevant evidence is admissible. (Evid. Code, § 350.)" (People v. Helzer (2024) 15 Cal.5th 622, 667 (Helzer); People v. Miles (2020) 9 Cal.5th 513, 587 (Miles).) Relevant evidence is evidence that has a "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210; Helzer, at p. 667; Miles, at p. 587.) "[E]vidence leading only to speculative inferences is irrelevant." (People v. Kraft (2000) 23 Cal.4th 978, 1035.)" 'The trial court has broad discretion to determine the relevance of evidence ...'" (Helzer, at p. 667.) Further, although relevant, a trial court has the discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352; Helzer, at p. 667; Miles, at p. 587.) Under Evidence Code section 352, "prejudice" is not the same as "damaging;" rather, "prejudice" means" 'evidence that uniquely tends to evoke an emotional bias against the defendant as an individual, and has little to do with the legal issues raised in the trial.'" (Miles, at p. 587; see also Helzer, at p. 667.)
Trial courts enjoy broad discretion to determine relevancy and undue prejudicial. (See Helzer, supra, 15 Cal.5th at p. 667; Miles, supra, 9 Cal.5th at p. 587.) As such, a trial court's decisions under section Evidence Code sections 350 and 352 are reviewed under the abuse of discretion standard. (Helzer, at p. 667; Miles, p. 587.) The abuse of discretion standard has been described as involving a decision "that was so erroneous that it 'falls outside the bounds of reason.'" (People v. Johnson (2022) 12 Cal.5th 544, 605.) The abuse of discretion standard has also been described as involving a decision that was so" '"' "arbitrary, capricious, or patently absurd . . . that [it] resulted in a manifest miscarriage ofjustice." '" '" (Miles, at pp. 587-588.) Under either formulation, however," '[a] merely debatable ruling cannot be deemed an abuse of discretion.'" (Johnson, at p. 605.) If a trial court's Evidence Code section 352 ruling is an abuse of discretion, reversal is not warranted unless there is a reasonable probability that the jury would have reached a different result had the court ruled otherwise. (People v. Thomas (2023) 14 Cal.5th 327, 373-374.)
A trial court's Evidence Code section 352 ruling admitting evidence may amount to a violation of the federal constitutional right to due process if the admitted evidence renders the trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428, 439; Falsetta, supra, 21 Cal.4th at p. 913.) If the trial court's Evidence Code section 352 ruling violates due process, reversal is required unless the admission of the evidence was harmless beyond a reasonable doubt. (People v. Wright (2005) 35 Cal.4th 964, 975.)
D. Analysis
1. No Abuse of Discretion
R.Y.'s observation of blood was admitted to circumstantially show that defendant had touched N.Y.'s vagina, thereby corroborating N.Y.'s testimony. N.Y. had previously testified that defendant had rubbed the inside of her vagina with his finger, but she could not remember the specific dates or times that defendant had done so. R.Y. explained that she observed the blood when N.Y. called to her from the bathroom, which was almost immediately after they had returned home from defendant's house. The court noted the probative value was particularly significant because R.Y.'s testimony involved an incident that occurred a number of years prior when both R.Y. and N.Y. were children.
Blood near the vaginal area of a six-year-old child's underwear is not something that one would ordinarily expect to see. Indeed, R.Y.'s testimony indicates that she and N.Y. did not know why there would be blood on that part of N.Y.'s underwear and N.Y. was scared. The nature of R.Y.'s testimony tends to confirm that blood had not been on N.Y.'s underwear before. Although N.Y. did not tell R.Y. why there was blood, considering N.Y.'s testimony of molestation, we agree with the trial court that R.Y.'s testimony circumstantially indicates that defendant had touched N.Y.'s vagina, which would be consistent with N.Y.'s testimony.
Defendant's argument that there was no evidence that R.Y. knew how to identify blood was forfeited because no objection on that basis was made. (People v. Gutierrez (2009) 45 Cal.4th 789, 819.) The argument is also contrary to common life experience, considering that it is far from unusual for people to see blood (from scrapes, cuts, bloody noses, etc.) and to see it on clothing.
We also agree with the trial court that the testimony has more significance given the relevant temporal considerations. A number of years had passed from the time R.Y. saw the blood to the time of trial, and both N.Y. and R.Y. were children (with N.Y. being particularly young) at the time. Importantly, at trial, N.Y. was unable to identify a specific date or time in which defendant molested her, which is typical of minors who are the victims of molestation. (Jones, supra, 51 Cal.3d at p. 299.) While R.Y.'s testimony did not point to a specific date or time, it was consistent with the general timeframe given by N.Y. and pointed to an age range of between five and six.
Defense counsel argued that R.Y.'s testimony was too speculative. We are cognizant of the fact that R.Y. did not testify that she saw defendant do anything to N.Y. that day, let alone an act of molestation. We are also cognizant that there may be other reasons for the blood on N.Y.'s underwear that have nothing at all to do with defendant. However, R.Y.'s testimony was clear, unequivocal, and limited to events that she remembered seeing. While R.Y. did not expressly state that defendant caused N.Y. to bleed through acts of molestation, that is a permissible circumstantial inference under the totality of the circumstances. Other inferences may be possible, but that is the nature of circumstantial evidence - it allows a jury to infer the existence of one fact based on testimony of other facts. (CALCRIM 223.) Circumstantial evidence is not required to eliminate all other possible inferences or explanations. Thus, while other inferences may be possible, the fact remains that R.Y.'s testimony can reasonably be viewed as circumstantially corroborating N.Y.'s testimony. (See People v. Yeoman, supra, 31 Cal.4th at p. 142 [explaining that a jury instruction need not be given if circumstantial evidence is used to corroborate other evidence].)
If the prosecutor substantially relies on circumstantial evidence to find a defendant guilty, a trial judge must instruct the jury under CALCRIM 224 that they may find guilt if the only reasonable conclusion supported by the circumstantial evidence is guilt. (See People v. Yeoman (2003) 31 Cal.4th 93, 142; CALCRIM No. 224.) Although the prosecutor's closing argument does not necessarily show that she relied on R.Y.'s testimony to establish guilt, the trial court still gave the CALCRIM 224 instruction. We presume that the jury followed this instruction. (People v. Hamilton (2009) 45 Cal.4th 863, 957.)
Defendant also argues that R.Y.'s testimony was akin to hypnotism and thus, unreliable. We disagree. To be sure, some recall techniques pose special concerns regarding reliability and false memories. (See Ramona v. Superior Court (1997) 57 Cal.App.4th 107, 122-123 [discussing hypnotism and sodium amytal].) However, at the 402 hearing, R.Y. did not describe hypnotism, the use of any substance, or even some kind of proactive involvement from the therapist. Instead, R.Y. explained that the therapist had her sit down, close her eyes, and try to remember, which is a technique that R.Y. described as meditating. We detect nothing suggestive or particularly scientific about this technique. It is tantamount to being quiet or away from distractions and simply trying to remember, which is something that people commonly do outside of the therapy context when they try to remember events, occurrences, or specific details. Defendant cites no authority that either equates the meditation described by R.Y. with hypnosis or otherwise suggests that anything remembered through such a technique is inadmissible. Therefore, defendant has not demonstrated that R.Y.'s testimony was inadmissible based on the described meditation technique. (Cf. Miles, supra, 9 Cal.5th at p. 587 [trial court has broad discretion under Evid. Code, §§ 350 and 352].)
In sum, the trial court considered the matter, made a reasoned ruling, and did not find R.Y.'s testimony to be too speculative or prejudicial. Considering the unusual nature of R.Y. seeing blood on her sister's underwear, the ages of N.Y. and R.Y., the passage of time, and N.Y.'s difficulty in providing specific details, overruling defendant's Evidence Code sections 350 and 352 objections was not beyond reason or so arbitrary, capricious, or patently absurd that it was an abuse of discretion. (People v. Johnson, supra, 12 Cal.5th at p. 605.) At best, defendant has demonstrated that the court made a debatable ruling, which necessarily means that the ruling was not an abuse of discretion. (Ibid.)
2. Harmless Error
Even if we found that the trial court abused its discretion, we would not find harm. Defense counsel explored with R.Y. that she only recently recalled the memory as part of a therapy session. R.Y. also did not expressly testify that defendant had touched N.Y. or was responsible for the blood on N.Y.'s underwear. The jury was not required to believe R.Y.'s testimony, nor was the jury necessarily required to conclude that defendant caused the blood on N.Y. Moreover, R.Y.'s testimony about seeing blood was short and was not any more graphic or inflammatory than other properly admitted direct evidence of molestations committed by defendant. The fact remains that six young girls testified to numerous lewd acts that were perpetrated against them by the defendant over a period of years, separate and apart from R.Y. seeing blood on her sister's underwear. Therefore, we conclude under state law that it was not reasonably probable that the jury would have reached a different result had R.Y.'s testimony been excluded. For the same reasons, we conclude under federal law that admission of R.Y.'s testimony was harmless beyond a reasonable doubt. Therefore, admission of R.Y.'s testimony about viewing blood on N.Y.'s underwear was harmless. (People v. Thomas, supra, 14 Cal.5th at pp. 373-374; People v. Wright, supra, 35 Cal.4th at p. 975.)
For these reasons, we cannot conclude that the admission of R.Y.'s testimony rendered the trial fundamentally unfair. (People v. Partida, supra, 37 Cal.4th at p. 439.)
V. Prosecutorial Misconduct - Improper Questions
A. Parties' Arguments
Defendant argues that the prosecutor committed misconduct by asking the victims leading questions and suggesting figures for the number of times that molestation occurred without a reasonable basis for the figure. Counsel was ineffective for failing to object to these questions, and defendant argues he was harmed because the prosecutor created critical testimony. Defendant also argues that his counsel was ineffective for failing object to the admission of testimony from R.Y. and N.Y that was based on therapy recall and for failing to obtain discovery regarding the therapy sessions.
Defendant cites numerous excerpts from the reporter's record of what he contends are improper questions by the prosecutor. However, we will address only those excerpts to which defendant provided a reasoned argument. (People v. Williams, supra, 16 Cal.4th at p. 206; People v. Clayburg (2012) 211 Cal.App.4th 86, 93.)
The People contend defendant forfeited any misconduct claims by failing to object. Alternatively, the People argue that there was no misconduct because the cited excerpts demonstrate proper questions. The People also argue that, if there was misconduct, the instances were minor and harmless.
We agree with the People.
B. Legal Standards
1. Prosecutorial Misconduct
Prosecutorial misconduct will violate the federal Constitution if it" 'so infects the trial with unfairness to make the resulting conviction a denial of due process,'" but will violate California law only if it involves" '" 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'" '" (People v. Camacho (2022) 14 Cal.5th 77, 126.) However, prosecutors are given wide latitude to comment on the evidence and make vigorous arguments, so long as the arguments are a fair comment on the evidence or constitute a reasonable inference from the evidence. (Holmes, McClain, supra, 12 Cal.5th at p. 788.)" 'A defendant asserting prosecutorial misconduct must ... establish a reasonable likelihood the jury construed the remarks in an objectionable fashion.'" (People v. Fayed (2020) 9 Cal.5th 147, 204.) To preserver a claim of prosecutorial misconduct for appellate review, the defense"' "must make a timely and specific objection and ask the trial court to admonish the jury to disregard the impropriety." '" (People v. Powell (2018) 6 Cal.5th 136, 171 (Powell).)
2. Improper Questions
a. Leading Questions
The general rule is that a "leading question may not be asked of a witness on direct or redirect examination." (Evid. Code, § 767, subd. (a)(1); People v. Gonzalez (2021) 12 Cal.5th 367, 401; People v. Williams, supra, 16 Cal.4th at p. 672.) A "leading question" is one that suggests to the witness the answer desired by the examining attorney; questions calling for a "yes" or "no" response"' "are not leading unless they are unduly suggestive under the circumstances." '" (Gonzalez, at p. 401; Williams, at p. 672.) However, leading questions are permissible "under special circumstances where the interests of justice otherwise require[s]," (Evid. Code, § 767, subd. (a)), such as when the questions serve to"' "stimulate or revive [the witness's] recollection"' ...." (Gonzalez, at pp. 401-402; see Williams, at p. 672.) "Trial courts have broad discretion to decide when such special circumstances are present." (Gonzalez, at p. 402; see Williams, at p. 672.) Generally, leading questions by the prosecutor constitute misconduct only if there is a "showing that such examination had the effect of deliberately producing inadmissible evidence or called for inadmissible and prejudicial answers." (People v. Hayes (1971) 19 Cal.App.3d 459, 470 (Hayes).)
b. Questions Without a Good Faith Basis
It is improper for a prosecutor to ask questions which clearly suggest"' "the existence of facts which would have been harmful to defendant, in the absence of a good faith belief by the prosecutor that the questions would be answered in the affirmative, or with a belief on his part that the facts could be proved, and a purpose to prove them, if their existence should be denied." '" (People v. Mooc (2001) 26 Cal.4th 1216, 1233 (Mooc).) That is, "[i]t is improper for a prosecutor to ask questions of a witness that suggest facts harmful to a defendant, absent a good faith belief that such facts exist." (People v. Warren (1988) 45 Cal.3d 471, 481.) However, "[t]he problem in applying this rule is that it makes the issue turn on the prosecutor's good faith, and the record will rarely contain evidence bearing on that matter." (People v. Bittaker (1989) 48 Cal.3d 1046, 1098 (Bittaker), disapproved on other grounds by People v. Black (2014) 58 Cal.4th 912.) If the record permits a reviewing court to surmise a good faith basis for a prosecutor's question, there generally will not be misconduct. (Mooc, at p. 1234; Bittaker, at p. 1098.)
C. Analysis
Defendant forfeited any direct claims of prosecutorial misconduct by failing to object during trial. (Powell, supra, 6 Cal.5th at p. 171.) Nevertheless, we will address the issue of prosecutorial misconduct through Defendant's coextensive claim of ineffective assistance of counsel.
1. J.F.
a. Number of Instances of Molestation
J.F. testified about the first time defendant molested her, which occurred when she was six years old, as well as the last time that he touched her, which was when she was 10 years old. J.F. also described a time in which defendant was molesting her and she told defendant, "[N]o" or "[S]top." J.F. had difficulty remembering this time, but eventually testified it occurred when she was seven or eight years old. J.F. generally had difficulty remembering how many times defendant molested her. J.F. told the prosecutor that she could not estimate how many times it happened, but the prosecutor nevertheless asked J.F. if it happened more than five times. J.F. responded, "I don't think so. I don't know."
Although defendant criticizes the prosecutor's actions with respect to the above testimony, there was no improper conduct. In the cited portions of the record, the questions generally did not suggest to J.F. what answers the prosecutor was trying to obtain. Therefore, the questions were not leading. (People v. Gonzalez, supra, 12 Cal.5th at p. 401.) Also, J.F. clearly had difficulty remembering the incidents of molestation. Thus, to the extent any leading questions were asked, the leading questions were appropriate to help revive J.F.'s recollection. (Id. at pp. 401-402.)
Additionally, there was nothing improper about the prosecutor attempting to discover how many instances of lewd conduct may have occurred, particularly since J.F.'s testimony was uncertain. J.F. indicated defendant molested her when she visited his house for holidays but did not know how many times he did so. J.F. later appeared to indicate that at least three incidents occurred, i.e., the first time she was six years old, the last time she was 10 years old, and a time she told defendant "no" when she was seven or eight years old. The prosecutor was entitled to attempt to obtain further clarity regarding the molestations at issue. The prosecutor did so by focusing on J.F.'s testimony, as the prosecutor understood it, and by attempting an estimation process. Witnesses are often initially reluctant, or say they are unable, to provide precise figures. Using an estimation process may help the witness to focus, remember, and provide clarification. The prosecutor's technique is neither uncommon nor leading since a desired answer is not apparent. Defendant cites no authority that actually prohibits the prosecutor's estimation technique or classifies it as a form of misconduct, and we are aware of none.
Because J.F. testified to being molested between ages six and 10 years old, and that the molestations occurred during holiday visits at defendant's home, the prosecutor also had a reasonable basis for asking whether there were more than five instances of molestation. (See Mooc, supra, 26 Cal.4th at p. 1234; Bittaker, supra, 48 Cal.3d at p. 1098.)
For these reasons, there was no prosecutorial misconduct as to this aspect of J.F.'s testimony. Because there was no prosecutorial misconduct, defendant has failed to demonstrate a deficient performance (Caro, supra, 7 Cal.5th at p. 488; People v. Dickey (2005) 35 Cal.4th 884, 915 (Dickey)) or ineffective assistance of counsel. (Camino, supra, 188 Cal.App.4th at p. 1377.)
Alternatively, there was no harm. J.F.'s response to the "more than five times" question was more uncertainty. J.F.'s answer could do nothing to harm defendant. Moreover, defendant points to no inadmissible information that was provided to the jury as a result of the prosecutor's allegedly improper questions. Defendant could not be prejudicially harmed through the admission of admissible testimony. (Hayes, supra, 19 Cal.App.3d at p. 470.) Without harm or prejudice, there can be no ineffective assistance counsel. (People v. Wharton (1991) 53 Cal.3d 522, 576 (Wharton).)
b. Defendant's Location
J.F. testified to an incident in which defendant exposed his penis. J.F. testified that she was in the living room of defendant's house and two of her cousins were playing video games there. J.F. first testified that defendant was standing behind the couch with his penis out. After attempting to determine which cousins were present, the prosecutor asked who was behind the couch, and J.F. testified that she did not remember who was behind the couch. The prosecutor asked for clarification about whether someone was behind the couch, and J.F. testified that she did not remember. The prosecutor then asked whether someone was sitting on the couch or if she just misheard J.F. J.F. responded that she and defendant were on the couch together. J.F. also testified that she had not previously testified that someone was behind the couch. J.F. explained that she looked over at defendant and he had his penis out and was touching it. J.F. testified that defendant was silent and not touching her.
Defendant argues that the prosecutor improperly "repaired" J.F.'s testimony. We agree that the prosecutor's questioning could be described as "repairing," but it can also be described as clarifying. Under either description, there is no misconduct. J.F. clearly testified that defendant exhibited his penis while he was in the living room and others were present. Because J.F. had testified that others were in the room, it was entirely appropriate for the prosecutor to attempt to discover who was present and where and how defendant was exposing his penis. Such information is necessary to assess the credibility of J.F. Moreover, J.F.'s testimony was inconsistent as to defendant's location. J.F. first testified that defendant was behind the couch, but then denied that anyone was behind the couch, and that defendant was instead sitting on the couch next to her. Once J.F. had essentially repudiated her testimony that someone was behind the couch, it was logical and reasonable to make sure of J.F.'s testimony regarding the presence of someone behind the couch. In other words, the prosecutor had a reasonable basis for her questions. (Mooc, supra, 26 Cal.4th at p. 1234.) Further, in the process of clarifying and obtaining additional information from J.F., the prosecutor did not utilize leading questions because no particular answers to the questions were clearly apparent. (People v. Gonzalez, supra, 12 Cal.5th at p. 401.) Accordingly, there was no prosecutorial misconduct with respect to this aspect of J.F.'s testimony, and defendant has not demonstrated a deficient performance (Caro, supra, 7 Cal.5th at p. 488; Dickey, supra, 35 Cal.4th at p. 915) or ineffective assistance of counsel. (Camino, supra, 188 Cal.App.4th at p. 1377.)
Alternatively, there was no harm from the prosecutor's questions. J.F. testified to defendant exhibiting his penis, which was relevant to show his intent under section 288. Defendant could not be prejudicially harmed through the admission of admissible testimony. (Hayes, supra, 19 Cal.App.3d at p. 470.) Second, J.F.'s testimony was not extensive, nor was it as graphic or inflammatory as other evidence of molestation. The fact remains that six young girls testified to numerous lewd acts that were perpetrated against them by the defendant over a period of years. Because there is not a reasonable probability the result of the proceeding would have been more favorable to the defendant, there was no prejudice (Strickland, supra, 466 U.S. at p. 694; Stanley, 39 Cal.4th at p. 954) or ineffective assistance of counsel. (Wharton, supra, 53 Cal.3d at p. 576.)
2. C.R.
As described previously, C.R. testified that she thought there were other times that defendant licked or made oral contact with her vagina, but she was not "a hundred percent certain." C.R. agreed with the prosecutor to try and estimate. C.R. then agreed that she remembered defendant engaging in that conduct more than five times but was not sure whether he did so more than ten times.
For several reasons, there is no misconduct. First, the prosecutor did not ask any question to which a desired answer was clearly apparent. Therefore, the record does not reveal leading questions. (Gonzalez, supra, 12 Cal.5th at p. 401.) Second, C.R.'s testimony was not always clear about other instances of molestation. To the extent that leading questions were asked, they were appropriate to help C.R. revive her recollection. (Id. at pp. 401-402.) The prosecutor was not required to simply accept uncertain testimony without attempting to achieve more clarity. Finally, the amended information charged defendant with three separate offenses whereby his mouth came into contact with C.R.'s vagina. C.R. testified that he began molesting her when she was six or seven years old and ended when she was 12 or 13 years old. Considering the period of years the abuse occurred, as well as the number of charged offenses involving C.R., beginning an estimation at "five or more times" is not unreasonable (particularly since C.R. testified that defendant definitely molested her more than five times). (See Mooc, supra, 26 Cal.4th at p. 1234; Bittaker, supra, 48 Cal.3d at p. 1098.) Accordingly, defendant has failed to show prosecutorial misconduct, a deficient performance (Dickey, supra, 35 Cal.4th at p. 915; see also Caro, supra, 7 Cal.5th at p. 488) or ineffective assistance of counsel. (Camino, supra, 188 Cal.App.4th at p. 1377.)
To the extent that the prosecutor's questioning technique may have been improper, there was no harm. Defendant has not shown that any inadmissible information was presented to the jury as a result of the prosecutor's questions. Defendant could not be prejudicially harmed through the admission of admissible testimony (Hayes, supra, 19 Cal.App.3d at p. 470.)
3. N.Y.
Defendant contends the prosecutor improperly led N.Y. when she asked, "[O]n that time specifically, he touched your private area with his hand?", to which N.Y. responded affirmatively. In isolation, the question may appear to be leading. In context, however, we detect no misconduct.
In context, the question identified by defendant simply reiterated and clarified that N.Y. was attempting to describe the first time that defendant touched her vagina with his hand. Prior to the question at issue, N.Y. had said that defendant had touched her inappropriately by touching her vagina/private area with his hand. The questions that followed were all an attempt to obtain testimony about the first instance of inappropriate touching because N.Y. did not have a "vivid memory" of what exactly happened. To the extent that the refocusing or reiterating question was leading, it was an appropriate attempt to revive N.Y.'s memory or to ensure that N.Y. understood the prosecutor's questions were directed at the first instance of oral copulation. (Gonzalez, supra, 12 Cal.5th at p. 401.) Accordingly, defendant has not demonstrated prosecutorial misconduct, a deficient performance for failing to object to prosecutorial misconduct (Caro, supra, 7 Cal.5th at p. 488; Dickey, supra, 35 Cal.4th at p. 915) or ineffective assistance of counsel. (Camino, supra, 188 Cal.App.4th at p. 1377.)
We note that since count 8 alleged defendant placed his hand on N.Y.'s vagina, the prosecutor had a reasonable basis for the question. (Mooc, supra, 26 Cal.4th at pp. 1233-1234.)
4. Therapy
With respect to R.Y., as discussed above, R.Y.'s remembered seeing blood on N.Y.'s underwear during meditation at a therapy session. R.Y.'s testimony does not indicate that the meditation was suggestive or unreliable, rather, it was consistent with a common lay practice of simply being quiet and concentrating/trying to remember. The trial court heard the parties' arguments regarding the admissibility of R.Y.'s testimony and allowed the testimony to be admitted. The prosecutor's questioning of R.Y. on this point was consistent with the trial court's ruling. Because the prosecutor followed the court's ruling, there can be no prosecutorial misconduct, a deficient performance for failing to object to prosecutorial misconduct (Caro, supra, 7 Cal.5th at p. 488; Dickey, supra, 35 Cal.4th at p. 915) or ineffective assistance of counsel. (Camino, supra, 188 Cal.App.4th at p. 1377.)
With respect to N.Y., she testified that she has been in therapy since she reported abuse in the 7th grade and currently talks with two therapists about what the defendant did to her. N.Y. explained that therapy helps her to understand that what defendant did to her was wrong, helps her to process, deal with, and control her emotions, and helps her to express and articulate her feelings. Notably, N.Y. did not testify that she engages in any type of memory recall techniques, attempts to recover memories of the acts or details of the molestations, or that therapy helped her to provide any details of the molestations that she conveyed at trial. Thus, N.Y.'s testimony does not show that any part of her evidence was the product memory recall techniques, let alone techniques that may be substantially akin to hypnosis. Because N.Y.'s testimony does not implicate the concerns associated with some memory recall techniques (Ramona v. Superior Court, supra, 57 Cal.App.4th at pp. 122-123), there was no prosecutorial misconduct, a basis to object to misconduct, or ineffective assistance for failing to object to misconduct. (Caro, supra, 7 Cal.5th at p. 488; Dickey, supra, 35 Cal.4th at p. 915; Camino, supra, 188 Cal.App.4th at p. 1377.)
When asked whether it was hard to remember details, N.Y. answered, "I mean, it's been a while, and I've done a lot of things in therapy to kind of help process those so yeah." As can be seen, N.Y.'s answer does not actually say that therapy helped her to recover memories and details, rather, it said that therapy helped her to process those things. In the context of N.Y.'s previous answers, we read this testimony as meaning that therapy helped N.Y. to understand, process, and express feelings relating to the memories and specific aspects of the molestation.
With respect to failing to obtain discovery of therapeutic records, defendant has not shown that he is entitled to relief. While Evidence Code section 1035.4 provides a mechanism to discover "information received by [a] sexual assault counselor," the term "sexual assault counselor" is a statutorily defined term. (Evid. Code, § 1035.2.) There is nothing in the record before us that shows any therapist who was treating or had treated any of the victims meets that statutory definition. In the absence of both an explanation from defense counsel on the record and a sufficient indication that Evidence Code section 1035.4 would apply, it is possible that defense counsel did not seek discovery because he concluded he would be unable to utilize section 1035.4. (Woods, supra, 575 U.S. at p. 329; Cullen, supra, 563 U.S. at p. 196.) It is further possible that, given the nature of the victims' testimony and rather limited innocuous descriptions of their therapy, counsel could have concluded that there was an insufficient likelihood of obtaining information that would have led to a more beneficial trial result. (Woods, at p. 329; Cullen, at p. 196.) Since these are satisfactory conceivable reasons for counsel's actions, defendant has failed to demonstrate a deficient performance (Johnsen, supra, 10 Cal.5th at p. 1165) or ineffective assistance of counsel. (Camino, supra, 188 Cal.App.4th at p. 1377.)
VI. Prosecutorial Misconduct - Evidence Mischaracterization and Burden Shifting
A. Parties' Arguments
Defendant argues that the prosecutor mischaracterized his testimony by claiming he testified that all the victims were lying about him, even though defendant was not asked directly if the victims were lying, and by claiming that defendant himself had no reasons for the victims' accusations, even though defendant was not permitted to answer a question about the victims' possible motives. The prosecutor's characterization of defendant's testimony and her arguments before the jury effectively and improperly shifted the burden to defendant. Defense counsel was ineffective for failing to object to any of the improper arguments by the prosecutor.
The People argue that defendant waived any misconduct by failing to object. Alternatively, the People argue that there was no misconduct. Because the defendant testified that the victims' testimony was not true, the People aver that the prosecutor's characterization of his testimony was reasonable and a fair interpretation of the evidence.
We agree with the People.
B. Additional Background
1. Trial Testimony
Defendant testified on direct examination that he never invited or lured anyone into his bedroom, that he did nothing "inappropriate" with any of the victims, that he heard the victims' testimony, and that the victims' testimony was not accurate or true.
On cross-examination, after stating that he was not alone in his room with the victims and had not touched S.R. or J.J., defendant testified that he did not have a falling out with the victims and did not get into any fights with them. When the prosecutor asked if the victims had any reason to make anything up, defense counsel objected that the question called for speculation, and the judge sustained the objection. Defendant then testified that he had been on good terms with the victims. When asked, "So then just out of the blue they make up this horrible thing saying that you licked their vagina[s] when they were six, seven, eight years old?", defendant responded, "Well, yeah." Crossexamination concluded with defendant answering that he was never alone with the victims.
2. Closing Argument
As part of her closing argument, the prosecutor attempted to identify some of the problems with defendant's case. In relevant part, the prosecutor stated:
"Believability. The defendant is the only person in this case that has a motivation to lie."
"The [d]efendant took the stand and he basically said that everybody except for him is lying. Every single girl is lying. Everybody's lying except for him, and that's just not believable."
"He even said and admitted that the girls don't have a reason to make this up. That's why I was asking him, like, was there a falling out, any kind of disagreement, anything like that, and he said no, not at all. There's absolutely no reasonable explanation for why all six girls independent of each other would say these - say the same things, the same acts, the same location, the same details."
"We know that the defendant was the one who had access and opportunity to them, and he is the only person with something to lose."
C. Legal Standard
Although a prosecutor may comment that a defendant has not produced any evidence, it is misconduct for the prosecutor to shift the burden to defendant by arguing or implying that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his innocence. (See People v. Steskal (2021) 11 Cal.5th 332, 352; People v. Bradford (1997) 15 Cal.4th 1229, 1340.) Additionally, it is prosecutorial misconduct to misstate the law or misstate the evidence. (People v. Fayed, supra, 9 Cal.5th at p. 204.) "A prosecutor's 'vigorous' presentation of facts favorable to his or her side 'does not excuse either the deliberate or mistaken misstatements of facts.'" (People v. Hill (1998) 17 Cal.4th 800, 823.) However," '[p]rosecutors may attack the defense case and argument,'" and may do so through "pungent language" (People v. Krebs (2019) 8 Cal.5th 265, 342.) as well as"' "harsh and colorful attacks on the credibility of opposing witnesses .." '" (Id. at p. 343.) Prosecutor's may" 'comment upon the credibility of witnesses based on facts contained in the record, and any reasonable inferences that can be drawn from them ...J" (People v. Peoples (2016) 62 Cal.4th 718, 796.)
D. Analysis
1. Forfeiture
Defendant forfeited any direct claims of prosecutorial misconduct by failing to object during trial. (Powell, supra, 6 Cal.5th at p. 171.) Nevertheless, we will address the issue of prosecutorial misconduct through Defendant's coextensive claim of ineffective assistance of counsel.
2. Burden Shifting
In People v. Chatman (2006) 38 Cal.4th 344, our Supreme Court addressed the issue of a prosecutor asking a defendant on cross-examination whether another witness was lying, i.e.," 'were they lying questions.'" (Id. at p. 381.) Chatman rejected legal positions that found such questions either always admissible or always inadmissible. (Id. at pp. 381-382.) Instead, Chatman found that questions along the lines of" 'were they lying'" could be admissible depending on the context of the case. (Id. at p. 384.) Generally, such questions are permissible: (1) as a means of clarifying the testimony of a witness that is contrary to another witness; (2) when a witness is a percipient witness and gives testimony that is contrary to another witness; or (3) when a witness knows another witness well and has knowledge of why the other witness may be lying. (Id. at p. 382.) In terms of a defendant who testifies in essence that he should be believed and that other witnesses should not, the defendant may be asked if he knows of "facts that would show a witness's testimony might be inaccurate or mistaken, or whether he knew of any bias, interest, or motive for a witness to be untruthful." (Id. at p. 383.) The defendant may be "asked to clarify his own position and whether he had any information about whether other witnesses had a bias, interest, or motive to be untruthful." (Ibid.) Chatman noted the significance of the defendant's response to such "were they lying" type of questions: if the defendant "provided a reason for one of [the witnesses] to have testified inaccurately, the jury could consider that reason for whatever value it believed it had. If he provided no reason, the jury might also consider the fact that not even defendant, who, as the prosecutor pointed out, knew the witnesses better than anyone else in the courtroom, could think of any reason why their testimony should not be credited." (Ibid.)
Here, defendant elected to testify. By taking the stand, defendant placed his own veracity and credibility at issue. (People v. Chatman, supra, 38 Cal.4th at pp. 382-383; see also People v. Riggs (2008) 44 Cal.4th 248, 318.) During his direct examination, defendant clearly testified that he did nothing inappropriate with the victims. That is, defendant completely denied that the allegations and testimony of the six victims were true and accurate. Consistent with Chatman, the prosecutor on cross examination asked about reasons for the victims' allegations, including a falling-out or a fight. When such events or reasons were denied, the prosecutor appropriately sought other reasons by asking whether the allegations just came out of the blue. (See Chatman, at pp. 382-383; People v. Lund (2021) 64 Cal.App.5th 1119, 1150.) Also consistent with Chatman, the prosecutor took the answers to her questions and used those answers during closing argument to attack the defendant's position that his testimony should be believed over the testimony of the six victims. The prosecutor was entitled to rely on the defendant's testimony and the inferences therefrom to attack his defense. (See People v. Krebs, supra, 8 Cal.5th at pp. 342-343; People v. Peoples, supra, 62 Cal.4th at p. 796.) Pointing out reasons to doubt the defendant's veracity is not the same as requiring defendant to provide evidence or prove his innocence.
Accordingly, because defendant has identified no conduct by the prosecutor that is inconsistent with Chatman, we cannot conclude that the prosecutor shifted the burden on defendant to either produce evidence or prove his own innocence. Thus, there was no prosecutorial misconduct, a basis to object to prosecutorial misconduct, or ineffective assistance for failing to object to misconduct. (Caro, supra, 7 Cal.5th at p. 488; Dickey, supra, 35 Cal.4th at p. 915; Camino, supra, 188 Cal.App.4th at p. 1377.)
3. Mischaracterization of Testimony
a. Lying Victims
We agree with defendant that he did not expressly testify that all the victims were lying about being molested. Nevertheless, defendant testified that the molestations never happened, denied a falling out, denied a fight, and agreed that the accusations simply came out of the blue. The prosecutor could reasonably infer from this testimony that defendant was essentially contending that the victims were lying. (People v. Peoples, supra, 62 Cal.4th at p. 796.) While the prosecutor could have used a different word than "lying," she is permitted to use "pungent" language. (Krebs, supra, 8 Cal.5th at p. 343.) Therefore, there was no prosecutorial misconduct, a basis to object to misconduct, or ineffective assistance for failing to object to misconduct. (Caro, supra, 7 Cal.5th at p. 488; Dickey, supra, 35 Cal.4th at p. 915; Camino, supra, 188 Cal.App.4th at p. 1377.)
b. Admission by Defendant
During direct examination, when asked whether the victims had any reason to make up the allegations of molestation, defense counsel objected, the objection was sustained, and defendant appropriately did not answer. Nevertheless, during closing argument, the prosecutor stated that defendant "even said and admitted that the girls don't have a reason to make this up." It therefore appears that the prosecutor relied on the excluded question to falsely assert that defendant admitted there was no reason for the victims to make up the allegations of molestation. The false assertion is misconduct. (People v. Hill, supra, 17 Cal.4th at p. 823.)
Even though there was prosecutorial misconduct, we conclude that defense counsel's failure to object was harmless for several reasons. First, it is defendant's burden to show prejudice. Defendant's brief simply requests reversal without adequately explaining how the single statement was so prejudicial as to warrant reversal. Second, the offending statement was a single sentence and was not repeated. Thus, the "admission" was not central to the prosecutor's closing argument. Third, the jury was instructed that they were to consider the evidence and that nothing the attorneys said was evidence. We presume the jury followed the trial court's instructions. (People v. Hamilton (2009) 45 Cal.4th 863, 957.) Finally, the single statement is not so confusing, misleading, or inflammatory that it would sufficiently undermine the testimony of the six victims. As noted above, six victims gave similar testimony to a practice of molestation that span several years while the victims were young children. Because there is not a reasonable probability that the result of the trial would have been more favorable to the defendant, there was no prejudice (Strickland, supra, 466 U.S. at p. 694; Stanley, supra, 39 Cal.4th at p. 954) or ineffective assistance of counsel. (Wharton, supra, 53 Cal.3d at p. 576.)
VII. Prosecutorial Misconduct - Improper Vouching
A. Parties' Arguments
Appellant argues that the prosecutor made repeated assurances that the victims were telling the truth and blurred the ability of the jury to make their own credibility determinations. Defendant contends that this improper vouching was harmful and defense counsel was ineffective for failing to object.
The People respond that any prosecutorial misconduct has been forfeited because defendant did not object at trial. Alternatively, the People contend that there was no vouching or misconduct because the prosecutor's statements were based on reasonable inferences from the evidence presented.
We agree that the prosecutor did not engage in improper vouching.
B. Additional Background
During closing argument, the prosecutor as part of her actual argument and as part of a Power Point/computer slideshow discussed witness credibility. Before addressing specific witnesses, the prosecutor addressed the victims' recollections in general:
"Okay. Now, one of the things that the judge instructed you about is about some of the details. I know that some of the things were hard for the girls to remember, and they were just being honest in their -- recollections. When I asked them something, if they didn't know, they said they didn't know.
"Compare that to defense witnesses, what we're gonna talk about later, but do not automatically reject testimony just because of some inconsistencies or conflicts. Consider whether the differences are important or not, and remember that people sometimes honestly forget things or forget details, especially when you consider how much time has past in this case and the age of the girls, how young they were."
The prosecutor then discussed the six victims. The prosecutor's arguments regarding each victim, as well as the corresponding computer slides, were similar. For each victim, the prosecutor asked why the jury should believe that victim. The prosecutor explained that the victim was believable based on the circumstances of the victim reporting molestation, the victim's demeanor while testifying, and the reasons why the victim had nothing to gain by reporting or testifying and thus, no motive to lie. With respect to the circumstances of reporting, all the victims except N.Y. disclosed the molestation for the first time to either Detective Martinez in the course of his investigation or to a family member as a result of Martinez's investigation. With respect to a motive to lie, the prosecutor pointed out that there was no apparent reason for the six victims to make up the stories, rhetorically asked that if the victims were lying then why did they not make up more instances of molestation, and, with respect to C.R., S.R., and J.F., pointed out that they were family with the defendant (nieces and cousin). Typical of the prosecutor's closing argument was her discussion of C.R.:
"Now, why believe [C.R.]? Let's talk about the circumstances of her report. [C.R.] did not report for six years. [C.R.] was not going to report. The only reason [C.R.] reported was because the detective found out that she witnessed something, and he asked her. [C.R.] even said on the stand he asked me. [C.R.] was not going to report.
"The first disclosure was to the detective. She did not report her own acts or what she saw with [N.Y.], and I think she just said I didn't want to deal with what was happening, like, this was her uncle. She was thinking about the ramifications, and she didn't want to talk about it. She said she felt ashamed. She felt disgusted. She felt nasty. She didn't want to talk about what was happening.
"[C.R.] has absolutely nothing to gain by testifying or talking to the police. She has absolutely no motive to lie about anything that happened. The defendant is her family, why would she make this up? Even the defendant said he never had any argument with [C.R.]. There was no falling out. There was no disagreement between them that would make her make up these allegations out of the blue.
"And why would she make up more? When I asked her did the defendant touch you on your vagina with his hand more than one time? She said I don't know. She was being honest. She couldn't remember. She remembers that it happened one time, but she couldn't remember more.
"So if she had some type of motive to lie, why wouldn't she make up more incidents? Why wouldn't she remember more details about what happened, or why wouldn't she make up the details? It was a long time ago, I'm telling you the details I remember.
"Also, consider [C.R.]'s demeanor during reporting and testimony. She did become a little bit emotional on the stand when she had to look at the defendant and identify who he was, and we heard from Detective Martinez about her demeanor while she was actually disclosing the incidents."
C. Legal Standard
Improper vouching may constitute a form of prosecutorial misconduct. (People v. Bloom (2022) 12 Cal.5th 1008, 1051.) "Improper vouching occurs when the prosecutor either (1) suggests that evidence not available to the jury supports the argument, or (2) invokes his or her personal prestige or depth of experience, or the prestige and reputation of the office, in support of the argument." (People v. Anderson (2018) 5 Cal.5th 372, 415.) However,"' "[a] prosecutor is given wide latitude to vigorously argue his or her case,"' [citation] and' "may make 'assurances regarding the apparent honesty or reliability' of a witness 'based on the "facts of [the] record and the inferences reasonably drawn therefrom.'" '" (People v. Rodriguez (2020) 9 Cal.5th 474, 480 (Rodriguez).) In other words, "a prosecutor may properly argue a witness is telling the truth based on the circumstances of the case." (People v. Boyette (2002) 29 Cal.4th 381, 433 (Boyette).) This includes appropriately pointing out the absence of a motive to lie. (Ibid.)
D. Analysis
1. Forfeiture
Defendant forfeited any direct claims of prosecutorial misconduct by failing to object during trial. (Powell, supra, 6 Cal.5th at p. 171.) Nevertheless, we will address the issue of prosecutorial misconduct through Defendant's coextensive claim of ineffective assistance of counsel.
2. Vouching
With respect to the prosecutor's general statements about the victims' honesty, the prosecutor was specifically addressing the victims' inability to remember various aspects of the molestation. The prosecutor pointed out that if the victims did not remember something, they answered that they did not remember. The unstated implication is that the victims could have made up the details, but instead they honestly responded that they could not remember. Further, the prosecutor asked the jury to consider the passage of time between trial and the molestations and to consider the victims' young ages at the time of molestation. These considerations are a part of the case and would certainly help to explain why the victims could not remember certain actions, occurrences, or dates. Therefore, in context, the prosecutor focused on the evidence and the circumstances of the case to explain that the victims' inability to remember was understandable, reasonable, and an expression of honesty. Because these are inferences that could have reasonably been made from the evidence presented, this aspect of the prosecutor's closing argument did not constitute misconduct. (See Rodriguez, supra, 9 Cal.5th at p. 480; Boyette, supra, 29 Cal.4th at p. 433.)
With respect to the prosecutor's arguments regarding the victims' credibility, each of the prosecutor's arguments was tied to evidence in, and reasonable inferences from, the record. Specifically, in making her credibility arguments, the prosecutor relied on family connections to the defendant, the victims' demeanor, limited allegations of wrongdoing, keeping the molestations secret for years, independently disclosing the molestations only after being asked about being molested, no apparent improper motive for disclosing the molestations, no apparent motive to lie about the molestations, and responding "I don't remember." The prosecutor did not assure the jury that the victims were all truthful based on her own experiences in trying cases, nor did the prosecutor simply tell the jury that each victim was truthful without referencing evidence or the record. Since these credibility arguments were based on the evidence and reasonable inferences from the record, this aspect of the prosecutor's closing argument did not constitute misconduct. (Rodriguez, supra, 9 Cal.5th at p. 480; Boyette, supra, 29 Cal.4th at p. 433.)
It is on this basis that defendant's reliance on U.S. v. Kerr (9th Cir. 1992) 981 F.2d 1050 is misplaced. Kerr involved the prosecutor saying little more than an opinion that a witness was being honest. (Id. at p. 1053.)
In sum, there was no improper vouching by the prosecutor. Because there was no prosecutorial misconduct, there was no deficient performance for failing to object (Caro, supra, 7 Cal.5th at p. 488; Dickey, supra, 35 Cal.4th at p. 915) or ineffective assistance of counsel. (Camino, supra, 188 Cal.App.4th at p. 1377.)
VIII. Cumulative Ineffective Assistance of Counsel
Defendant argues that, even if the individual instances of ineffective assistance were not prejudicial in isolation, their cumulative effects were. However, as discussed above, at best defendant has demonstrated unreasonably deficient conduct with respect to the prosecutor's false characterization of defendant's cross-examination testimony. With only one deficient act that was not prejudicial, there can be no cumulative prejudice. (People v. Wall (2017) 3 Cal.5th 1048, 1072.)
IX. CALCRIM No. 1191B
A. Parties' Arguments
Defendant argues that, except for victims R.Y and J.J., CALCRIM No. 1191B improperly allowed each victim to corroborate her own accusations. This is contrary to People v. Stanley (1967) 67 Cal.2d 812 which recognized that uncorroborated testimony as to other offenses by the same witness is of no substantial aid to the trier of fact, and my result in great prejudice to the accused.
The People contend that defendant forfeited any issue regarding CALCRIM No. 1191B because he made no objection to the trial court. Alternatively, the People argue that Supreme Court precedent has affirmed an instruction materially similar to CALCRIM No. 1191B and published appellate cases have rejected defendant's argument.
We conclude that the trial court properly gave the CALCRIM 1191B instruction.
B. Additional Background
Without objection, the jury was given CALCRIM No. 1191B, which read:
"The People presented evidence that the defendant committed the crimes of oral copulation with a child who is ten years of age or younger and lewd acts upon a child under 14 years of age.
"If the People have proved beyond a reasonable doubt that defendant committed one or more of these crimes, you may, but are not required to, conclude form that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit the other sex offenses charged in this case.
"If you find that the defendant committed one or more of these crimes, the at conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of another crime. The People must still prove each charge and allegation beyond a reasonable doubt."
"[A]n appellate court is generally not prohibited from reaching questions that have not been preserved for review by a party." (People v. Smith (2003) 31 Cal.4th 1207, 1215.) Assuming the People's forfeiture argument is correct, we choose to exercise our discretion and will address the merits of defendant's argument. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; People v. Gutierrez (2009) 174 Cal.App.4th 515, 520.)
The substance of CALCRIM No. 1191B has been approved and upheld in the context of a challenge to the standard of proof necessary to support a propensity inference. (People v. Villatoro (2012) 54 Cal.4th 1152, 1167-1169.) In the course of upholding the trial court's instruction, Villatoro determined section 1108 applied to charged and uncharged sexual offenses because charged offenses were just as relevant as uncharged offenses to circumstantially demonstrate a defendant's propensity to engage in sex offenses. (Villatoro, at p. 1164.) One appellate court has held that Villatoro's reasoning forecloses arguments that CALCRIM No. 1191B improperly allows "the jury to rely on currently charged offenses to find that [the defendant] had committed other currently charged offenses ...." (People v. Meneses (2019) 41 Cal.App.5th 63, 67.)
Similarly, the Second District Court of Appeal rejected an argument that former CALCRIM No. 1191 (which dealt only with uncharged sexual offenses) should not be given where evidence of the uncharged sexual offenses comes only from the victim herself because a victim's own testimony adds nothing to her credibility. (People v. Gonzales (2017) 16 Cal.App.5th 494, 501.) Gonzales explained that the argument, in actuality, related to the admissibility of the victim's testimony, not to the instruction. (Ibid.) Since the victim's testimony had been admitted pursuant to section 1108, and CALCRIM No. 1191 was consistent with section 1108, CALCRIM No. 1191 was properly given. (Gonzales, at p. 501.) Gonzales acknowledged that Stanley and People v. Scott (1978) 21 Cal.3d 284 (which followed Stanley) indicated that a victim's testimony of uncharged crimes by the defendant against herself presented special problems and could be excluded. However, Gonzales noted that Stanley did not adopt "a rigid rule for the admission or exclusion of such evidence," but instead required courts to weigh the probative value of such evidence against the harm it was likely to cause. (Gonzales, at p. 501 [citing People v. Stanley, supra, 67 Cal.2d at p. 818].) Gonzales further explained that Stanley and Scott had been decided prior to section 1108's enactment. (Gonzales, at p. 501.) Before section 1108, evidence of a defendant's disposition to commit sex offenses was generally excluded. (Gonzales, at p. 501.) However, section 1108 no longer permits courts to exclude as per se prejudicial past offenses to demonstrate a propensity to engage in sexual offenses, and nothing in section 1108 prohibits the victim from testifying to the defendant's other sexual offenses against her. (Gonzales, at p. 502.) Relying on Stanley's refusal to adopt a rigid rule excluding a victim's evidence of prior sexual offenses and People v. Ennis (2010) 190 Cal.App.4th 721, which upheld a trial court's admission of such evidence, Gonzales held that a victim's own testimony had probative value and did not irrationally permit a victim to corroborate her own testimony. (Gonzales, at p. 502.)
In this case, defendant's arguments are essentially the same as the arguments rejected in Gonzales and Meneses. Defendant cites no cases post-section 1108 in which Stanley has been applied to prevent a victim from establishing a defendant's propensity to commit sex offenses, and essentially corroborating herself, by testifying to other instances of sexual offenses by the defendant. In light of Villatoro, which approved an instruction that essentially became CALCRIM No. 1191B, as well as the analysis in Gonzales concerning section 1108 and Stanley, we conclude that CALCRIM No. 1191B is consistent with California law. Therefore, the trial court the properly charged the jury with CALCRIM No. 1191B. (See People v. Villatoro, supra, 54 Cal.4th at pp. 1167- 1169; People v. Meneses, supra, 41 Cal.App.5th at pp. 67-68; People v. Gonzales, supra, 16 Cal.App.5th at pp. 501-502). Consequently, defense counsel did not act deficiently by failing to object to the CACLRIM No. 1191B instruction (Caro, supra, 7 Cal.5th at p. 488) and did not render ineffective assistance. (Camino, supra, 188 Cal.App.4th at p. 1377.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HILL, P. J. FRANSON, J.