Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F08903401, W. Kent Hamlin, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Rogelio Padilla Casillas was convicted of committing lewd or lascivious acts against two young sisters. On appeal, he contends (1) the trial court abused its discretion and violated his right to due process by admitting evidence of his prior sexual offenses, (2) defense counsel was ineffective because he “opened the door” to a prosecution argument the court had otherwise forbidden, and (3) the trial court imposed an unauthorized fine. We will strike the fine and affirm in all other respects.
PROCEDURAL SUMMARY
On April 13, 2009, the Fresno County District Attorney charged defendant with three counts of committing a lewd or lascivious act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)). The information also contained various special allegations. A jury found defendant guilty of all three counts, and found true the prior conviction allegations.
The trial court sentenced defendant to a total of 55 years to life in prison, as follows: a 25-year-to-life term on count 1, a concurrent 25-year-to-life term on count 2, a consecutive 25-year-to-life term on count 3, and a consecutive five-year term for the prior serious felony. The court also imposed a $200 sex offense fine pursuant to Penal Code section 290.3.
FACTS
Ten-year-old B. and eight-year-old A. (collectively the girls) were sisters. On March 30, 2008, they went with their grandmother (grandmother) to the home of defendant and his wife, who were godparents to the girls’ father (father). The girls, who had been to defendant’s house three to five times before, went into the backyard to see some puppies. Defendant followed them out. The girls tried to hold and pet the puppies, but they kept running away. Defendant, who was watching the girls, motioned to B. to come over to him. B. went to him and stood facing away, watching A. trying to pet the puppies. As B. stood in front of defendant, he touched her breast over her clothing and softly squeezed it several times. Then he grabbed her right hand, put it on his pants over his penis, and moved her hand around. B. looked up at defendant’s face. Defendant looked at her, closed his eyes, and nodded, as if to say it was okay. He never said anything. When he let go of B.’s hand, she walked away from him and went back to her sister and the puppies. But B. felt nervous and scared, so she went inside the house and into the bathroom. She looked in the mirror and started to cry a little. She washed her face with cold water.
Meanwhile, defendant approached A. and stood behind her. He told her he was going to show her how to pet puppies. He put his hand into her pants against her skin and petted her vaginal area by moving his hand around. When he took his hand out, A. left and went into the house.
While B. was still in the bathroom, A. came in. B. thought A. was about to cry so she asked her what had happened. A. told her and then started to cry. The girls both washed their faces and went out to where grandmother was sitting with defendant’s wife in the kitchen. After dinner, B. kissed defendant’s wife, but not defendant, and the sisters left with grandmother.
B. testified that A. started to cry, but A. testified she did not cry that day.
B. did not tell grandmother what had happened because she was scared and did not know what to do. Furthermore, grandmother spoke mostly Spanish and B.’s Spanish was not very good. Similarly, A. did not tell grandmother what had happened because A. could not speak Spanish and she thought grandmother would not understand. But when the girls got home that evening, they told their parents what had happened and their parents called the police.
Officer Vu responded to the girls’ home at about 10:30 p.m. and took statements from the girls.
Evidence of Prior Offenses
Twenty-seven-year-old X., who did not know the girls or their parents, testified that defendant was her brother’s godfather. In 1992, when X. was 10 or 11 years old, defendant touched her two times. He first touched her while she was on an exercise machine in his garage. He told her not to move and he touched her vaginal area. X. could not remember whether he touched her over or under her underwear. Then, later the same day, defendant and X. went to the store in defendant’s car. Defendant pulled the car into an alley and told X. to get into the back seat. Defendant put his penis into X.’s vagina. A police officer found them in the alley and shined his light into the back seat. X. was taken to the hospital. She never saw defendant again and she did not know that he had been sent to prison for what he did to her.
Twenty-eight-year-old Y., who also did not know the girls or their parents, testified that defendant was a family friend and a godfather. In 1997, when Y. was 17 years old and five months pregnant, defendant gave her a ride to adult school one evening. After she got in defendant’s car, they chatted as defendant drove away. Then defendant reached over and rubbed Y.’s belly over her clothes. He started at the top of her belly and continued down to her vaginal area. Defendant was still talking and laughing, so Y. wondered if he realized how far his hand had gone. But then he said something about lingerie and squeezed Y.’s breast over her clothes, while he continued to talk and laugh. Y. flinched and defendant pulled his hand away. When Y. got home from school that night, she called the police. She was later involved in court proceedings regarding the incident, and she was aware that defendant had been sent to prison for what he had done to her.
She did not specify whose godfather he was.
Defense Evidence
Grandmother was the only defense witness. She testified that she met defendant and his wife many years ago when they all had young children. Defendant was the godfather of grandmother’s son, father. Grandmother had taken the girls to defendant’s house about five times. Grandmother knew defendant had been in jail, but she did not know why and she never asked his wife.
On March 30, 2008, when grandmother was babysitting the girls, she took them to defendant’s house. The girls went outside to see the dogs. Grandmother did not remember seeing defendant go outside and she did not think he did. In fact, he was in the house with her. Grandmother could see the girls chasing the puppies. She called the girls in and told them to wash their hands. The girls were not crying and they did not act differently. They had dinner and then grandmother took the girls back to her house and father came to pick them up.
On cross-examination, grandmother said she was talking to defendant at his house, so that meant he did not go outside. Grandmother watched defendant inside the house the entire time the girls were outside. Grandmother could either see or hear the girls the entire time. She still did not know that defendant had gone to prison for committing a sexual offense.
The prosecutor asked grandmother about the investigative telephone calls she had received, as follows:
“[PROSECUTOR]: Isn’t it true that you told [Detective Lopez] that you did not know where the defendant was located since you were in the kitchen?
“[GRANDMOTHER:] Well, it’s like I tell you, I was with so many people there, and he was asking so many questions.
“[PROSECUTOR:] You don’t recall that statement?
“[GRANDMOTHER:] I don’t remember having said-like I say
“[PROSECUTOR:] Could you have said it?
“[GRANDMOTHER:] Well, I don’t remember.
“[PROSECUTOR:] Let me ask you about when … [Investigator Sweeton] talked to you. Didn’t a … District Attorney Investigator Shelly Sweeton, with the help of [Investigative Assistant] Toquillas, call you?
“[GRANDMOTHER:] A person called me.
“[PROSECUTOR:] And when they called you and explained the reason for their call, didn’t you immediately tell them that the [girls] never told you anything bad had happened, and they never cried or acted differently?
“[GRANDMOTHER:] Yes. I do remember.
“[PROSECUTOR:] That was the first thing you told them?
“[GRANDMOTHER:] I remember that I told them that [the girls] were the same, like all the time. They had not cried. They were the same.
“[PROSECUTOR:] Didn’t you initially tell the investigator that you were certain that the defendant didn’t go into the backyard because you saw the girls in the yard and you saw the defendant in the living room during the same time?
“[GRANDMOTHER:] Yes. I remember that I said that. That’s the same thing that I’m telling you.
“[PROSECUTOR:] And then didn’t the … [i]nvestigator confront you with your prior statement to [Detective Lopez] that you didn’t know where the defendant was?
“[GRANDMOTHER:] Well, it’s like I say, I don’t remember.
“[PROSECUTOR:] And didn’t you tell them when confronted with that statement, that [Detective Lopez] caught you off guard, so you told [him], the first time, the first thing that came to mind?
“[GRANDMOTHER:] When-it’s that-well, I remember that the woman that called me, I remember that I said-I’m sorry. The question escaped me. [¶] … [¶] Well, I don’t remember. It’s-like I said, I was asked so many questions, and when you’re there at work and they’re talking to you and everybody’s looking at you
“[PROSECUTOR:] So the first-so the first thing that came to [your] mind was that you didn’t know where the defendant was; isn’t that true? [¶] … [¶]
“[GRANDMOTHER:] Well, the first thing that came to my mind-it’s like I say, I don’t know exactly what I said. I don’t remember.
“[PROSECUTOR:] And then when the investigators talked to you some more, didn’t you admit that you couldn’t see the girls the entire time?
“[GRANDMOTHER:] No, I told them-him, that I was seeing them the whole time.
“[PROSECUTOR:] And didn’t you also tell them, when asked about the defendant being in the living room, you admitted that you did not know if he left the living room, and were not certain whether or not he went to the backyard?
“[GRANDMOTHER:] I remember that I told [them] that [defendant] was there speaking with us, and we were there talking, and logically if he was there talking he wasn’t outside.
“[PROSECUTOR:] Didn’t you tell them you weren’t certain whether or not he went into the backyard?
“[GRANDMOTHER:] I didn’t tell them. I don’t remember that I told them that.
“[PROSECUTOR:] Didn’t you also tell them that because you never heard the defendant out there you assumed he wasn’t out there with them?
“[GRANDMOTHER:] I told them that he was there talking to us. He was there.
“[PROSECUTOR:] Isn’t it true that you just don’t want to be blamed for what happened?
“[GRANDMOTHER:] No, because it’s like I tell you, if something-[the girls] were the same. If they-if anything had happened to them, they would have said something to me. They didn’t say anything.
“[PROSECUTOR:] Ma’am, what do you do for a living?
“[GRANDMOTHER:] I’m a seamstress.
“[PROSECUTOR:] Do you have a degree in psychology?
“[GRANDMOTHER:] No.
“[PROSECUTOR:] Do you-ever done any work in child psychology?
“[GRANDMOTHER:] Why are you asking me that kind of a question?
“[PROSECUTOR:] Please answer the question. ‘Yes’ or ‘no’?
“[GRANDMOTHER:] Well, no.
“[PROSECUTOR:] And afterwards, when you ate dinner, wasn’t the defendant seated there in the kitchen with you?
“[GRANDMOTHER:] We were in the dining room.
“[PROSECUTOR:] And the defendant was there?
“[GRANDMOTHER:] We were all seated there.”
On redirect examination, grandmother testified that when they left defendant’s house, the girls said goodbye to defendant and his wife. Grandmother saw the girls hug defendant’s wife, but she did not know if they hugged defendant because they were walking away and it was dark.
On recross-examination, grandmother said she did not remember what she and defendant were talking about when they were seated in the living room because the conversation occurred over one year ago. She and defendant’s wife were heating the food in the kitchen, but the house was small and “you can see everything, you can hear everything.” Grandmother again explained her prior inconsistent statements: “It’s like I said, when [Detective Lopez] called me at work, the thing is they are asking me questions at work and everybody’s standing around me and they’re looking at me and I was frightened, and so I just answered whatever I answered suddenly.”
Defense counsel read into the record portions of the preliminary hearing transcript in this case. B. testified that she was in the bathroom washing her hands and then A. came into the bathroom crying. A. testified that she did not think she and B. talked about what had happened when they went into the house. B. was crying when A. entered the bathroom, but A. was not crying.
Rebuttal
Detective Lopez testified that he spoke to grandmother in Spanish on the telephone on March 21, 2008, in the course of his investigation. Lopez grew up speaking both Spanish and English. Grandmother told Lopez that she and defendant’s wife were in the kitchen making dinner and she did not know where defendant was. She said she did not know what had happened to the girls until someone told her later. Grandmother was short with Lopez and did not want to answer many questions. When she said she was at work, Lopez asked if he could contact her later, but she refused.
On cross-examination, Lopez said his employer did not compensate him for being bilingual because he had not taken the test.
Investigative Assistant Toquillas, who worked for the district attorney’s office, assisted Investigator Sweeton in this case. Toquillas was fluent in Spanish, her native language, and she was compensated for being bilingual. She assisted Sweeton in making two calls to grandmother. In the first call, Toquillas took only basic information. In the second call, Toquillas told grandmother that Sweeton had some additional questions about statements grandmother made in the first call. Grandmother immediately responded that the girls did not cry or seem afraid; they showed no difference in personality from when they first arrived at defendant’s house and when they left.
On cross-examination, Toquillas stated that in the second telephone call, grandmother also told her that defendant did not go into the backyard with the girls. He was in the living room while the girls were in the backyard. Grandmother said she could either see or hear the girls at all times while they were outside.
On redirect examination, Toquillas testified that when she confronted grandmother about the inconsistencies between her current statements and her prior statements to the police, grandmother became defensive and wanted to make sure Toquillas understood that she either saw or heard the girls the entire time and that she was certain defendant was not outside with them.
On recross-examination, Toquillas said she knew grandmother was becoming defensive because her tone of voice was angry. Toquillas did not know how well Lopez spoke Spanish.
Sweeton testified that she investigated the case for the district attorney’s office with the assistance of Toquillas. Sweeton directed Toquillas to conduct the telephone interviews with grandmother in Spanish. At one point during an interview, grandmother told them she was certain defendant did not go into the backyard because she could see the girls the entire time and she could see defendant in the living room the entire time. Sweeton, with Toquillas acting as interpreter, confronted grandmother with her prior statement to Lopez that she did not know where defendant was at that time. Grandmother said she made that statement because Lopez caught her off guard at work and that was the first thing she could think of to say. Sweeton continued to confront grandmother with the inconsistency, until she admitted she could not see the girls the entire time. She said she could hear them playing in the backyard. And when Sweeton continued to confront grandmother about defendant’s location, she admitted she did not know if he left the living room or if he went into the backyard. Because grandmother heard the girls outside the entire time, and never heard defendant outside, she just assumed he was not with them.
On cross-examination, Sweeton testified that grandmother said she did not leave the girls unattended and therefore defendant could not have done anything to them. Grandmother said she could hear the girls if she could not see them. She said the girls did not act differently after playing in the backyard; they did not cry or show any signs of being afraid.
On redirect examination, Sweeton said grandmother made the statement about not leaving the girls unattended after she admitted she could not see the girls the entire time they were outside and did not know where defendant was or whether he went into the backyard.
On both recross-examination and redirect, Sweeton repeated that grandmother said she assumed defendant was not outside because she could not hear him out there.
The girls’ mother (mother), testified that she was acquainted with defendant as a family friend. Grandmother had taken the family to defendant’s house for dinner a few times. Mother did not associate with defendant much; she had seen him only about three times and she had not known about his prior convictions. On the night of the incident, the girls told her what had happened.
On cross-examination, mother said she believed defendant’s wife was godmother to father. Father called defendant his uncle. Mother had not known that defendant had gone to prison in 1997.
Father testified that defendant was his godfather. Father knew defendant had prior convictions. Although father had heard as a teenager that defendant had been in prison, father never knew why. He had assumed defendant’s convictions were based on gun charges. When father was younger, he saw defendant more frequently, but in the last five to ten years, father had not seen him much, although there had been no falling out between them. On the night of the incident, the girls told father what had happened with defendant.
On cross-examination, father said he still did not know why defendant had gone to prison.
DISCUSSION
I. Evidence of Prior Sexual Offenses
A. Admission of Evidence Under Section 352
Defendant contends the trial court abused its discretion when it admitted evidence of the prior sexual offenses he committed against X. and Y.
As a general rule, evidence of a defendant’s other bad acts is not admissible to prove his propensity or disposition to commit bad acts. (Evid. Code, § 1101.) However, section 1108 creates an exception in cases of sexual offenses, allowing admission of evidence of the defendant’s other sexual offenses to show he has a disposition to commit sexual offenses.
All statutory references are to the Evidence Code unless otherwise noted.
“Evidence of a prior sexual offense is indisputably relevant in a prosecution for another sexual offense. ‘In the determination of probabilities of guilt, evidence of character is relevant. [Citations.]’ [Citation.] Indeed, the rationale for excluding such evidence is not that it lacks probative value, but that it is too relevant. ‘It may almost be said that it is because of the indubitable relevancy of specific bad acts showing the character of the accused that such evidence is excluded. It is objectionable not because it has no appreciable probative value but because it has too much.’ [Citation.]” (People v. Fitch (1997) 55 Cal.App.4th 172, 179; see People v. Falsetta (1999) 21 Cal.4th 903, 915 (Falsetta).) But our Legislature has determined that in sexual offense cases, the policy considerations favoring the exclusion of evidence of other sexual offenses are outweighed by the policy considerations favoring its admission, and that “the need for this evidence is ‘critical’ given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial.” (People v. Fitch, supra, at pp. 181-182.)
Admission of evidence under section 1108 remains subject to a section 352 analysis, which permits the trial court, in its discretion, to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (§ 352.) “The prejudice which exclusion of evidence under … section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” (People v. Karis (1988) 46 Cal.3d 612, 638; People v. Yu (1983) 143 Cal.App.3d 358, 377.) “Rather, the statute uses the word in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors. [Citation.]” (People v. Farmer (1989) 47 Cal.3d 888, 912, overruled on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) An exercise of trial court discretion is reviewable only for abuse and “will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Thus, on one side of the balance is the probative value of the evidence, which is increased by the relative similarity between the prior offenses and the charged offenses. (Falsetta, supra, 21 Cal.4th at p. 917.) In the present case, there was considerable similarity between the prior offenses committed against X. and Y. and the charged offenses committed against B. and A. In each case, defendant took advantage of and sexually touched girls who were connected to him through close family ties and who were at his home or in his car. Thus, the prior offenses were highly probative of defendant’s propensity to commit sexual offenses under these circumstances.
On the other side of the balance are the inflammatory nature of the evidence, the probability of confusion, the remoteness of the offenses, and the consumption of time. (People v. Harris (1998) 60 Cal.App.4th 727, 737-741 (Harris).) “Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Falsetta, supra, 21 Cal.4th at p. 917.)
1. Prior Sexual Intercourse Offense
Defendant argues that evidence of his act of sexual intercourse with X. was highly inflammatory. It is “important in evaluating prior uncharged acts pursuant to section 352, whether ‘[t]he testimony describing defendant’s uncharged acts … was no stronger and no more inflammatory than the testimony concerning the charged offenses.’” (Harris, supra, 60 Cal.App.4th at pp. 737-738; People v. Ewoldt (1994) 7 Cal.4th 380, 404-406 (Ewoldt).) We agree with defendant that X.’s testimony regarding the sexual intercourse was more inflammatory than B.’s or A.’s testimony. However, even if we assume, without deciding, that X.’s testimony regarding the sexual intercourse was more prejudicial than probative, and therefore inadmissible, we nevertheless conclude any error in the admission of that testimony was harmless because there is no reasonable probability a more favorable decision would have been obtained had the testimony not been admitted. (See People v. Mullens (2004) 119 Cal.App.4th 648, 659; People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Carter (2005) 36 Cal.4th 1114, 1170.) This conclusion is based on the remaining overwhelming evidence against defendant. The testimony of B. and A. was very strong, and there was no evidence they were biased or motivated to lie. Defendant argues that the girls’ testimony was uncorroborated and that grandmother, the only eyewitness to testify, claimed defendant was inside the house and could not have been in the backyard when the girls were. We disagree that grandmother was the only eyewitness to testify. The girls, despite their youth, were eyewitnesses to defendant’s whereabouts and his conduct. Furthermore, grandmother’s stories were inconsistent and riddled with improbable explanations and memory lapses. In addition, the highly incriminating evidence of the remaining prior offenses defendant committed against X. and Y. was properly admitted, as we will explain.
2. Prior Fondling Offenses
The prior fondling offenses-the touching of X.’s vaginal area when she was in defendant’s garage, the touching of Y.’s vaginal area in defendant’s car, and the touching of Y.’s breast in defendant’s car-were no more inflammatory than the acts of fondling against B. and A.
Further, contrary to defendant’s urging, there was little chance the jurors confused the issues and punished defendant because they believed he was not punished severely enough for the prior offenses. Defendant argues that although the trial court considered that he had been convicted for the offenses, the court failed to consider that he had received only probation in 1992 and a two-year sentence in 1997-punishment the jurors might have viewed as inadequate. But the record demonstrates the jurors were informed that defendant had been punished for his past offenses against X. and Y. In addition to the testimony of X. and Y., the prosecutor’s argument touched on the fact. In his argument, the prosecutor stated that defendant had been convicted for his prior offenses against X. and Y. in 1992 and 1997. The prosecutor informed the jury it could examine the packet containing proof of defendant’s prior convictions, including the crimes and the dates of the convictions. When defense counsel referred to the prior offenses in argument, he argued that when defendant “did it before[, ] he acknowledged wrongdoing. He’s already been punished.” And later, defense counsel argued: “These exhibits, we brought them in to show you that he’s paid for his crimes. You have the abstract.” Under these circumstances, we believe that the jurors, assuming they recognized from the exhibit that defendant received probation and a two-year sentence, would not have felt compelled to punish defendant further for those prior offenses. There was no suggestion by either party that the punishment was inadequate, and we see no likelihood that the jurors lost sight of the current issues and focused instead on defendant’s escape from proper punishment for his prior offenses.
Defendant criticizes the trial court’s consideration of the lack of corroborating evidence to support B.’s and A.’s testimony as a reason to admit evidence of the prior offenses. But defendant has identified the precise reason for admission of section 1108 evidence. As discussed above, “sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence.” (Falsetta, supra, 21 Cal.4th at p. 915.) Thus, the intent of section 1108 is “to assure that the trier of fact would be made aware of the defendant’s other sex offenses in evaluating the victim’s and the defendant’s credibility.” (Falsetta, supra, at p. 911.)
Finally, defendant contends the prior offenses were too remote in time and were separated from the current offenses by years of good behavior that further reduced their probative value. “No specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible.” (People v. Branch (2001) 91 Cal.App.4th 274, 284 [30 years not too remote; remoteness balanced by similarity]; Ewoldt, supra, 7 Cal.4th at p. 405 [same; 12 years]; People v. Pierce (2002) 104 Cal.App.4th 893, 900 [same; 23 years].) “Remoteness of prior offenses relates to ‘the question of predisposition to commit the charged sexual offenses.’ [Citation.] In theory, a substantial gap between the prior offenses and the charged offenses means that it is less likely that the defendant had the propensity to commit the charged offenses. However, … significant similarities between the prior and the charged offenses may ‘balance[ ] out the remoteness.’ [Citation.] Put differently, if the prior offenses are very similar in nature to the charged offenses, the prior offenses have greater probative value in proving propensity to commit the charged offenses.” (People v. Branch, supra, at p. 285.) Here, despite the passage of 16 and 11 years between the prior and the current offenses, the propensity evidence was extremely probative of defendant’s sexual misconduct when left alone in his home or car with young females connected to his family, and is exactly the type of evidence contemplated by the enactment of section 1108. Given the similarities among the acts, the prior offenses were not too remote.
In sum, we conclude the trial court did not abuse its discretion by admitting evidence of the prior fondling sexual offenses against X. and Y. And, if the court abused its discretion by admitting evidence of the prior sexual intercourse offense against X., the error was harmless in light of the other overwhelming evidence against defendant.
B. Due Process
Defendant contends the admission of propensity evidence under section 1108 violates due process. He acknowledges we are bound by the Supreme Court’s decision upholding section 1108 against a facial due process claim (Falsetta, supra, 21 Cal.4th at p. 917; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), but he raises the challenge to preserve it for federal review.
Defendant also contends the prior offense evidence violated his right to due process in this case because it rendered his trial fundamentally unfair. He reasons that the trial court’s abuse of discretion under section 352 eliminated the safeguard that ensured section 1108’s constitutionality. We need not address this particular constitutional argument because we have found no reversible error in the trial court’s admission of the evidence of defendant’s prior acts against X. and Y. Application of section 1108 to defendant’s case did not result in a violation of his due process rights.
II. Ineffective Assistance of Counsel
Defendant argues that defense counsel was ineffective because he opened the door to an argument by the prosecutor that the trial court had prohibited. We disagree that any such error prejudiced defendant.
A. Facts
Prior to closing arguments, the court stated it would not permit the prosecutor to argue that defendant had not called his wife (wife) to testify because her testimony would have been damning to his case. The court believed the jurors already suspected that wife would have been called if she had any exculpatory evidence, but the court thought it would be dangerous to allow the prosecutor to urge the jurors to consider this against defendant. The court warned defense counsel, however, that the ruling would not stand if counsel argued the opposite version-that the prosecution did not call wife to testify because she would have testified in defendant’s favor, saying defendant was in the house and not in the backyard. The court stated that as long as defense counsel steered clear of that topic, they all “ought to leave that stone unturned here.”
Defense counsel then said he was trying to formulate his argument that wife had not been called because she could be perceived as biased in favor of defendant and therefore unbelievable. The court interrupted counsel and reiterated that he would not be permitted to comment on wife’s absence at all; otherwise, the prosecutor would be permitted to argue that the defense would have called wife if she possessed exculpatory testimony.
Nevertheless, defense counsel brought up wife in his argument. He argued that defendant was not required to testify and could simply rely on the state of the evidence. Counsel continued, as follows:
“Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant. Some of you may go back there and say, Hey, why wasn’t the wife called? Neither side is required to produce [her] even though she may have had some relevant evidence. The defendant can rely on the state of the evidence as submitted and basically can step back and say the People have not proven their case. So you have all the evidence in this case. Make your decision based upon the evidence you have in this case or the lack of evidence in this case.”
Defense counsel again mentioned wife in the context of grandmother’s lack of bias, as follows: “[The prosecutor] says, Well, [grandmother] doesn’t want to be blamed for it. There’s no evidence anybody’s trying to blame her. She’s not a criminal defendant in this case. She has no axe to grind. She’s not here trying to-trying to save the defendant. That’s not-that’s not his wife. That’s not nobody-nobody with a personal relationship with the defendant other than being a family friend. That’s it. But-she has more bias and interest to testify on behalf of the [girls] than anybody else, than for the-than for the defendant. She has no interest in how this case is decided.”
Following defense counsel’s argument, the court stated, out of the jury’s presence, that counsel’s statement that wife might possess relevant evidence permitted the prosecutor to argue that the defense would have called wife if she had any exculpatory evidence.
Defense counsel explained to the court that he just wanted to address the instruction that neither side is required to produce all evidence. He felt that it had to be said because wife was the only person missing from the trial. Counsel argued that the burden should not be shifted to defendant to produce wife.
The court responded that counsel’s statement suggested to the jurors that the prosecutor would have called wife if she could incriminate defendant, when, in fact, the prosecutor could not have compelled wife to testify against defendant if she asserted the spousal privilege.
Defense counsel suggested wife had waived any privilege and the prosecution therefore could have compelled her to testify against defendant if she had incriminating evidence.
The court stated it would permit the prosecutor to argue in closing only that the defense would have called wife if she possessed any evidence that would help defendant’s case.
In his closing argument, the prosecutor stated:
“First of all, there was a portion where Defense Counsel mentioned that neither side has to call all the witnesses. He mentioned the defendant’s wife, and there could have been an inference there that she might have had some relevant evidence that wasn’t heard. Now this was the defendant’s wife. [The d]efense has the power to call witnesses and they knew where she was. If there was relevant evidence, they could have called her. They would have called her.”
At this point, defense counsel objected: “Objection. Your Honor, shifting the burden.” The court overruled the objection and the prosecutor proceeded with his closing argument.
B. Analysis
Defendant asserts that there was no conceivable tactical reason for counsel’s choice to disregard the court’s favorable ruling and bring up wife in his argument. Defendant asserts that wife’s absence could only hurt his defense because she was the only adult other than grandmother who could have testified to his whereabouts when the girls were in the backyard. Defendant explains that the only assumption the jurors could have drawn from her absence was that her testimony would have harmed defendant’s case. The prosecutor’s comment, defendant complains, spotlighted this very point and encouraged the jurors to infer that wife’s testimony would have been incriminating.
A defendant claiming ineffective assistance of counsel has the burden of establishing that his counsel’s performance fell below professional norms, and that he was prejudiced by his counsel’s performance. (Strickland v. Washington (1984) 466 U.S. 668, 687.) If the defendant makes an insufficient showing on one of these components, the reviewing court need not address both. (Id. at p. 697.)
Here, defendant makes an insufficient showing of prejudice. Prejudice exists when “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Strickland v. Washington, supra, 466 U.S. at p. 686.) “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Id. at p. 694.)
Assuming defense counsel was ineffective when he disregarded the trial court’s favorable ruling and opened the door to an unfavorable argument by the prosecutor, we still cannot say there is a reasonable probability that, had counsel not opened that door and the prosecutor not made that argument, the result of the trial would have been any better for defendant. As defendant must concede, wife’s absence was already highly conspicuous, which is probably why defense counsel felt compelled to mention it. We have no doubt, as the trial court acknowledged, that the jurors were already suspicious of wife’s absence. She was the one witness who should have wanted to clear defendant if she could, and she was the only witness missing from trial. We believe the comment by the prosecutor that defendant would have called wife if she had helpful evidence simply stated the obvious. For this reason and because of the overwhelming evidence against defendant, we are confident he would have fared no better had the error not been made.
Defendant, however, maintains that this was a close case and we should not find harmless error. He argues that the girls’ testimony was sometimes conflicting (for example, as to whether they cried), and that grandmother testified defendant was inside with her the entire time the girls were outside. Defendant points out that, other than the testimony of B., A., X., and Y., there was no evidence defendant was guilty of the charged crimes.
First, the inconsistencies in the girls’ stories were very minor, relating more to young age and lapsed time, rather than poor credibility. Grandmother’s story, on the other hand, changed so dramatically that she became defendant’s alibi witness. Finally, this was not a close case, and the testimony of B., A., X., and Y. that defendant minimizes was more than enough to constitute overwhelming evidence of his guilt.
III. Penal Code Section 290.3 Fine
Lastly, defendant contends, and the People concede, that the trial court erred in imposing a $200 sex offense fine.
Penal Code section 290.3 requires that the trial court impose a fine in sexual offense cases, unless the court finds that the defendant does not have the ability to pay the fine. The court is required to impose the fine in full (here, $500) or not at all. (People v. Walz (2008) 160 Cal.App.4th 1364, 1369-1370[statute does not authorize a fine of $200, and the language of § 290.3, subd. (a) is not amenable to an interpretation granting trial court discretion to impose a fine of less than prescribed amount if it determines defendant does not have ability to pay full amount of fine].)
Penal Code section 290.3, subdivision (a) provides: “Every person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine.”
In this case, the court expressly found that defendant was unable to pay a $500 fine and, for that reason, the court imposed the $200 fine. Considering the court’s finding of defendant’s inability to pay, we will strike the unauthorized fine.
DISPOSITION
The trial court is directed to amend the abstract of judgment by deleting the imposition of the $200 fine and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
WE CONCUR: Dawson, Acting P. J. Hill, J.