Opinion
B322764
11-21-2024
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY COOPER, Defendant and Appellant.
Nancy Haydt, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and David F. Glassman, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA464633 Alan K. Schneider, Judge. Affirmed.
Nancy Haydt, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and David F. Glassman, Deputy Attorney General, for Plaintiff and Respondent.
HOFFSTADT, J. [*]
Jeffrey Cooper (defendant) stands convicted of three counts of committing lewd acts against a child under the age of 14. (Pen. Code, § 288, subd. (a).) On appeal, he raises a plethora of arguments challenging the grand jury's indictment, his convictions, and his sentence. Because none of defendant's arguments warrants reversal individually or cumulatively, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Acts toward victim Ruthy F.
Between 2005 and 2007, Ruthy F. was 12 and 13 years old, and lived in Calabasas, California, with her parents and brother. During that period, her parents belonged to a Modern Orthodox Jewish synagogue known as the Calabasas Shul (the Shul). She and her parents knew defendant through the Shul.
At that time, defendant was "the head of the Jewish community congregation" at the Shul. He was a main "founding" member of the Shul. He served as President of the Shul's Board of Directors, which controlled the Shul's finances; defendant thus "had control over some of the decision-making" regarding those finances. He would also regularly host Shabbat dinners at his home (that is, dinners on Friday nights observing the Jewish Sabbath), where he would invite some of the Shul's congregants. By virtue of being "very involved" in the Shul and its community, defendant was a "very highly respected man" in that community and "looked up to . . . as a leader" of that community.
As Ruthy's family attended services at the Shul and dinners at defendant's home, defendant became a friend and "mentor" to Ruthy. Because of defendant's esteemed role in the Shul community, Ruthy's parents "completely trusted" defendant and would permit Ruthy to spend time alone with defendant in the music studio he designed in the basement of his home.
One evening while Ruthy-12 or 13 years old at the time- was finishing up a music lesson with defendant in his music studio, she expressed she was tired. Defendant offered to give her a massage. Ruthy laid down on her stomach on a sofa, and defendant climbed atop her back, straddling her with his legs. Although he started the massage by rubbing her shoulders and back, defendant subsequently (1) slipped his hands under Ruthy's shirt, unclasped her bra, and massaged her bare breasts; (2) ran his fingers over her vagina through the leggings she was wearing; and (3) eventually "hump[ed]" her buttocks by thrusting his pelvis against her so that Ruthy could feel his erect penis through her leggings and his pants.
After 20 minutes, Ruthy "finally found [her] voice," sat up, and told defendant he needed to take her home. Just as defendant was dropping her off at her home in his car, he told her, "I'm sorry, and I hope we can still be friends."
Ruthy told her mother a few details of the incident that night, but urged her not to report it to police because she was "deeply embarrass[ed]" and wanted to forget it had happened. Ruthy's mother told the Shul's rabbi about the incident "a few years later," but the rabbi took no further action.
Ruthy finally reported the incident in 2018, when contacted by law enforcement after defendant was alleged to have committed similar acts against another girl. Ruthy felt "guilt" for not speaking up earlier.
Defendant denied touching Ruthy in a sexual manner, denied ever being alone with Ruthy, and testified that he continued to attend social events with Ruthy's family members.
B. Acts toward victim Sam Y.
Between 2013 and 2016, Sam Y. was six to 10 years old, and lived in or near Calabasas, California, with her mother and her stepfather.
Because Sam's grandparents and parents belonged to the Shul and because Sam's grandparents were long-time friends with defendant and his wife, Sam would attend "religious events" at defendant's house with her grandparents, including Shabbat dinners. Sam's mother believed that defendant was someone who had "so much to share," including his "knowledge of music" and "knowledge of Judaism."
Sam testified that, between 2013 and 2016, defendant "touched [her] inappropriately" on five occasions. Sam testified that, on all five occasions, defendant rubbed his hand against her vagina through her clothing and then skin-to-skin, always while she was alone with him in the basement music room. Sam testified that defendant finished each such session with a warning that "no one [would] ever believe [her]" if she reported what happened and that he would "do bad things" to her or her family if she tried. Sam testified that, prior to the first incident of touching, defendant locked her in the music room for 30 minutes before touching her; she testified that she had screamed and pounded on the walls while locked in, but no one upstairs in the house came to help her. Sam also testified that defendant put his finger inside her vagina on that first occasion.
Sam testified that she never reported the incidents out of fear that defendant would act on his threats. She was accordingly still required to attend events at his home. When she did, Sam testified to being "horrified" and to acting "stoic" to conceal her horror.
Sam did not report any of the incidents until April 2018.
Sam's testimony was substantially impeached at trial. A locksmith narrated a video showing that the music room could not be locked from the inside, thereby refuting Sam's testimony that she was locked in that room for 30 minutes on the first occasion. Photos taken at defendant's house after 2013 show Sam smiling and acting silly with defendant nearby, thereby refuting Sam's testimony that she was "horrified." And it was suggested that Sam's accusations were coached by her mother, who was also substantially impeached by evidence that during divorce proceedings between 2009 and 2012, she had accused Sam's father of domestic violence, inappropriate sexual behavior with Sam, and "licking" the penis of Sam's younger brother, all of which were later deemed to be unfounded.
Defendant testified that his music room was not soundproof and that the door to that room could not lock from the inside, denied ever being alone with Sam, and denied touching her inappropriately.
II. Procedural Background
In late 2018, a grand jury indicted defendant. As to Ruthy, the grand jury charged defendant with three counts of committing a lewd act against a child under the age of 14. (§ 288, subd. (a).) As to Sam, the grand jury charged defendant with four counts of committing a lewd act against a child under the age of 14 (ibid.), and one count of oral copulation or sexual penetration of a child under the age of 10. (§ 288.7, subd. (b)).
Although the date range alleged in the indictment covered only the dates when Ruthy was 13 years old, the court amended the indictment to conform to proof and thus to cover the dates when Ruthy was 12 and 13 years old after Ruthy testified at trial that the incidents occurred when she was 12 or 13.
The matter proceeded to a six-day jury trial in May 2022.
The jury found defendant guilty of the three counts regarding Ruthy, but hung (seven to five in favor of acquittal) on the counts regarding Sam.
Defendant moved for a new trial. After considering the People's opposition and following a hearing, the trial court denied the motion.
The trial court imposed a sentence of eight years in state prison. Specifically, the court imposed a mid-term six-year sentence on the first count involving Ruthy. The court then imposed a consecutive, two-year sentence for the second count involving Ruthy, calculated as one-third of the mid-term sentence of six years. The court then imposed a six-year sentence for the third count involving Ruthy, but ran it concurrently. In imposing this sentence, the court explained that it selected the mid-term sentence on the first count because it was going to run the third count concurrently. The court also noted that the testimony at trial revealed that defendant's conduct in grabbing Ruthy's breasts, touching her through her clothes, and grinding his penis against her buttocks in a humping fashion was "not an insignificant or minor violation" of the lewd act statute, and expressed its view that defendant had "groomed" Ruthy.
Defendant filed this timely appeal.
DISCUSSION
I. Prosecutorial Misconduct During Grand Jury
Proceedings
Defendant argues that the indictment against him is invalid because (1) the expert who testified to the grand jury regarding Child Sexual Abuse Accommodation Syndrome (CSAAS) "construct[ed] a false scientific framework for evaluating the facts of the case"; (2) the prosecutor violated her duty to present exculpatory evidence to the grand jury by reporting that Sam's mother had falsely reported an "attempted molestation" by Sam's father (instead of a "molestation") and by not disclosing to the grand jury that Sam's mother had been the first person to report any sexual abuse by defendant; and (3) the prosecutor lied to the grand jury when she stated that Ruthy and Sam were "not related." Because each claim is framed in terms of asserted prosecutorial misconduct, we review them for abuse of discretion (People v. Alvarez (1996) 14 Cal.4th 155, 213), bearing in mind that we review any subsidiary factual findings for substantial evidence (People v. Franco (2024) 99 Cal.App.5th 184, 192) and independently review the application of the law to undisputed facts (Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898, 912).
A. CSAAS expert
1. Pertinent background
During the grand jury proceedings, the prosecutor called as a witness a developmental psychologist experienced in "identification, the reporting process, and treatment referrals for abused children." The expert explained how CSAAS catalogues the "possible misconceptions [people have] about how a [sexual abuse] victim might behave." In addressing the misconceptions that people should always report crimes soon after they happen, the expert explained that children who are sexually abused often do not "cry out immediately for help," particularly if the perpetrator is "well respected" and "has won the trust of the community" because the child-victim may fear they will not be believed.
When a grand juror asked the expert, "How often does a child make up stories about child abuse?", the expert responded that (1) "[t]here is no figure that one can put on that"; (2) "in [her] experience over the past . . . almost 40 years[,] there was one person, one adolescent who told a friend that actually her father didn't use a knife or pull her pants down, . . . so in that context it was difficult to know"; (3) "[w]e don't have exact numbers of like what's a false-because it's difficult to prove what a false allegation is"; and (4) false claims "might" exist," and that "if that occurs, what you will see is that a child can't give the details and the follow-up information as they get questioned by the authorities or therapists and typically can't describe it in any further ongoing kind of detail."
Before trial, defendant moved to dismiss the indictment on the ground that the CSAAS expert's answer to the grand juror's question effectively vouched for the truth of Ruthy's and Sam's testimony. The trial court denied the motion. Specifically, the court rejected the notion that the expert's answer lent any credibility to Ruthy's or Sam's subsequent testimony because the expert "wasn't specifically asked about the facts of this case" and "hadn't spoken with the victims," and because the expert "indicated [that CSAAS] was not a diagnostic" tool. The court also found that, even if the expert's testimony somehow constituted vouching, it did not "unduly prejudice[]" defendant because there was "ample evidence to support the" jury's "probable cause"-based finding.
2. Analysis
The admissibility of expert testimony on CSAAS turns on why it is being admitted. Such testimony is admissible to dispel "widely held misconceptions" and "myths" about how sexual abuse victims react to abuse (as a means of "neutraliz[ing] the victim's apparently self-impeaching behavior" such as delays in reporting abuse) as long as the testimony is "tailored to address the specific myth[s] or misconception[s] suggested by the evidence" in a particular case. (People v. Gonzales (2017) 16 Cal.App.5th 494, 504; People v. Wells (2004) 118 Cal.App.4th 179, 188; People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin); People v. Bowker (1988) 203 Cal.App.3d 385, 393-394.) However, testimony on CSAAS is not admissible to prove that sexual abuse occurred in a particular case. (Bowker, at pp. 391-394; see People v. Jeff (1988) 204 Cal.App.3d 309, 338-339 [expert testimony not admissible to show sexual abuse occurred on the logic that the victim in a particular case acted "how typical child molest [sic] victims act"].) This prohibition necessarily precludes testimony that makes "predictive conclusions" by offering statistics on how often child-victims who report sexual abuse are being truthful. (E.g., People v. Julian (2019) 34 Cal.App.5th 878, 885-886.)
The trial court did not err in rejecting defendant's challenge to the expert testimony on CSAAS before the grand jury for two reasons. First, the expert chiefly testified that a significant delay in reporting is not uncommon among child victims of sexual abuse-no doubt to explain why Ruthy and Sam waited 11 years and two years, respectively, to report any abuse. This was appropriate. The expert's answer to the grand juror's question did not cross the line into offering a "predictive conclusion" about how often child victims make false claims of sexual abuse because the expert indicated that there was "no figure that one can put on [it]," explained that "we don't have exact numbers" on what's false, noted that false claims "might" exist, and offered criteria to use in evaluating whether a claim might be false. In light of these answers, the expert's indication that she had personally seen only one false claim did not amount to a statistics-based proffer about how often children generally make false claims of sexual abuse. Second, errors and misconduct before the grand jury warrant dismissal of an indictment only if those errors or misconduct "'prejudice[] the defendant[].'" (People v. Uribe (2011) 199 Cal.App.4th 836, 880 (Uribe); Jackson v. Superior Court (2018) 25 Cal.App.5th 515, 542 (Jackson) ["to obtain dismissal of the indictment, [a defendant] is required to show prejudice"].) Because the CSAAS expert's testimony was supplemental to the testimony of Ruthy and Sam, and because the testimony of a single witness can establish sexual abuse beyond a reasonable doubt (People v. Adames (1997) 54 Cal.App.4th 198, 210; CALCRIM No. 1190), the expert's relaying of her personal experience with false claims in conjunction with explaining that there are no generalized statistics on false claims did not make it reasonably probable that the grand jurors abandoned their role in independently evaluating the credibility of the victims in this case, and hence did not make it reasonably probable, absent the expert's testimony, they would not have found probable cause to indict defendant.
B. Failure to present exculpatory evidence
1. Pertinent background
During the grand jury proceedings, the prosecutor explained to the grand jurors that she was going to read "potentially exculpatory evidence" into the record, and then stated that, in September 2012, "allegations were made [by Sam's mother] that Sam['s] biological father . . . attempted to inappropriately touch his four-year-old son.... The allegations were investigated by both the Department of Children and Family Services, DCFS, and the Los Angeles Sheriff's Department. DCFS concluded those allegations to be unfounded . . . [and] [n]o criminal charges were filed."
Defendant moved to dismiss the indictment in part on the ground that the prosecutor did not fully comply with her duty to present exculpatory evidence to the grand jury because the prosecutor did not also disclose that (1) Sam's mother reported inappropriate touching, not "attempt[ed]" inappropriate touching, and (2) Sam's mother was the first person to report any sexual misconduct related to this case. The trial court denied the motion, reasoning in part that the prosecutor had "presented [the report regarding Sam's mother's unfounded claim] in the manner in which [the prosecution] had it from those records, which is their obligation."
2. Analysis
In California, the People have the option of initiating criminal charges by presenting them to a grand jury, which is tasked with assessing whether the evidence presented establishes probable cause to believe a crime has been committed; if so, the grand jury issues an indictment setting forth those charges. (§ 889; Berardi v. Superior Court (2007) 149 Cal.App.4th 476, 489-490 (Berardi); Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026.) For these purposes, "probable cause" exists when the evidence establishes a "fair probability" or "strong suspicion" of the proposed defendant's guilt. (Kaley v. United States (2014) 571 U.S. 320, 338; Berardi, at p. 490.) Because a grand jury proceeding is conducted ex parte (that is, without the presence of a judge or defense counsel), and to ensure that the grand jury's finding of probable cause is an informed one, the People are statutorily required to present to the grand jury any exculpatory evidence of which they are aware. (§ 939.71; see also Johnson v. Superior Court (1975) 15 Cal.3d 248, 255.)
Before an indictment will be dismissed, it is not enough to show that the People failed to present exculpatory evidence. Dismissal also requires a showing that the failure to present the evidence "result[ed] in substantial prejudice." (§ 939.71.) "Substantial prejudice" means a showing of a reasonable probability that a grand jury presented with the additional information would have declined to find probable cause to indict-that is, a reasonable probability that, if the omitted information had been in the mix, the grand jury would not have a strong suspicion of the proposed defendant's guilt. (Berardi, supra, 149 Cal.App.4th at p. 495.) In making this determination, the court must evaluate the record as a whole, including the strength and nature of the exculpatory evidence that was not presented as well as the strength and nature of the evidence that was presented. (People v. Becerra (2008) 165 Cal.App.4th 1064, 1070.) We independently review the existence or nonexistence of substantial prejudice. (People v. Johnsen (2021) 10 Cal.5th 1116, 1146.)
A defendant need not show that probable cause did not exist without the omitted exculpatory evidence. (Berardi, at p. 497.)
The trial court did not err in refusing to dismiss the indictment due to the prosecutor's failure to disclose exculpatory evidence. As a threshold matter, the prosecutor's failure to report that the first person to report abuse in this case to law enforcement was Sam's mother is not exculpatory, as it does not exonerate defendant and as such could not have impeached Sam's mother because Sam's mother did not testify before the grand jury. But even if it were exculpatory, and even if we assume that the prosecutor failed to disclose exculpatory evidence when she stated that Sam's mother's prior unfounded claim was for "attempt[ed]" molestation of her son by Sam's father rather than completed molestation, these omissions did not result in substantial prejudice. The identity of the first person to report the abuse bears only tangentially on the credibility of Ruthy's and Sam's testimony, and, if introduced, would not have created a reasonable probability that the jury would not have found a strong suspicion of defendant's guilt given the substance of their testimony. Further, the impact of Sam's mother's false claim of sexual abuse in 2012 is nearly the same whether the claim is of molestation or attempted molestation; in either case, it indicates her willingness to fabricate. The added impeachment value from the claim being one of completed versus attempted molestation does not create a reasonable probability of a different outcome before the grand jury.
C. Misstatement to the grand jury regarding relationship of the parties
1. Pertinent background
At the outset of the grand jury proceeding, the foreperson of the grand jury (not, as defendant suggests, the prosecutor) informed the grand jurors that the two victims (Ruthy and Sam) "are not related."
In a pre-trial motion to dismiss, defendant argued that this was inaccurate because the dictionary defines "related" to mean "connect[ed]," and the two victims in this case were connected. The trial court rejected the argument, finding that the foreperson's statement was accurate because the two victims "are unrelated by blood. They're not related to one another, and they did not know one another. They are different in their ages.... They're also living in different cities at the time of the disclosure." The court reasoned that the fact that the victims' families knew each other "is, in and of itself, [not] exculpatory" and that any inaccuracy in stating the victims were "not related" did not substantially prejudice defendant because "[w]hile there is [a] connection amongst their circles and families, there is no connection even, much less blood relationship, between the two girls."
2. Analysis
Prosecutors may not manipulate the grand jury in a way that "substantially impairs the grand jury's ability to reject charges which it may believe unfounded." (People v. Backus (1979) 23 Cal.3d 360, 392.) As noted above, prosecutors must also disclose exculpatory evidence to the grand jury. (§ 939.71.) Either violation requires a showing of prejudice before dismissal of an indictment is appropriate. (Jackson, supra, 25 Cal.App.5th at p. 542; § 939.71.)
The trial court did not err in ruling that the grand jury foreperson's statement that Ruthy and Sam are "not related" was neither manipulative nor an omission of exculpatory information. The statement was accurate insofar as Ruthy and Sam are not related by blood and did not have any direct connection or communication. That the two victims' families knew each other through the Shul, and that certain members of their families communicated with one another or with one of the victims does not make them "related" (although those communications, as they did at trial, may provide a basis for impeachment). But even if we assume that the foreperson's statement was inaccurate- and, by extension, manipulative and exculpatory-it was so tangential and misleading to such a minor degree that that it did not substantially prejudice defendant because it is not reasonably probable the grand jury would have reached a different result had the statement been clarified or omitted entirely.
II. Wrongful Exclusion of Evidence
Defendant argues that the trial court erred in excluding evidence of a financial motive on the part of Sam's family. We review evidentiary rulings for an abuse of discretion. (People v. Flores (2020) 9 Cal.5th 371, 409.)
A. Pertinent facts
Prior to trial, defendant sought to admit evidence that (1) Sam's mother, around the time Sam's grandparents filed for bankruptcy in 1998, filed a civil lawsuit alleging sexual abuse she suffered in 1991 and seeking $10 million in damages, but which she settled for $60,000; and (2) Sam's biological father filed for bankruptcy in 2017, one year prior to the disclosure of sexual abuse by defendant. Defendant maintained that this evidence proved that Sam's family has a "demonstrable, multi-generational pattern of abusing the legal process for financial gain by making false allegations of sexual abuse resembling those at issue in this case." After further briefing and a hearing, the trial court excluded this evidence after finding, pursuant to Evidence Code section 352, that the "probative value [of the evidence] is substantially outweighed by [its] prejudicial effect." More specifically, the court reasoned that the 1998 lawsuit had minimal probative value because it was unclear that Sam's mother's allegations were "false" (because the case did result in a monetary settlement) and because the lawsuit was "extremely remote in time." The court also found that the evidence was "extremely inflammatory," especially when Sam's grandparent's bankruptcy was also disclosed as part of that evidence. The court's order did not specifically address Sam's father's 2017 bankruptcy, but defendant did not seek to elicit any evidence regarding the bankruptcy during the trial.
B. Analysis
We need not reach the merits of defendant's challenge to the admission of this evidence because, at most, that evidence impeached the prosecution's case as to Sam. However, the jury acquitted defendant of all of the counts as to Sam. What is more, the jury instructions prohibited the jury from using defendant's conduct against one alleged victim as evidence of a propensity to engage in such acts against the other alleged victim unless the jury first found him guilty beyond a reasonable doubt as to the first victim. Thus, there is no reasonable probability that the exclusion of this evidence affected the jury's analysis of the counts involving Ruthy. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Defendant's argument also lacks merit. Although a witness's prior misconduct in falsely reporting a prior crime is relevant to impeach (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457-1458; People v. Miranda (2011) 199 Cal.App.4th 1403, 1424-1425), the trial court acted well within its discretion in excluding this evidence under Evidence Code section 352 given that its minimal probative value was substantially outweighed by the dangers of prejudice as well as the time it would take to probe the validity of Sam's mother's prior claims (for which there was some recovery) as well as the reasons for Sam's father's bankruptcy.
III. Prominence of Judaism During The Trial
Defendant argues that the fact that he and both victims were Jewish played an inappropriate role during the trial, and that the prosecutor invoked "anti-Jewish tropes and stereotypes" throughout the trial, thereby resulting in the wrongful admission of evidence, prosecutorial misconduct, and violation of the California Racial Justice Act of 2020 (Racial Justice Act) (§ 745).
A. Pertinent facts
1. The context of this case in the Calabasas Jewish community
During the trial, the trial court allowed the parties to mention defendant's and the victims' Jewish faith "because of the nature of [its] relationships to the parties." Thus, as noted above, the parties elicited evidence that defendant was Jewish, that he was a founder and prominent member of the Shul as well as the Jewish community that attended the Shul, that the victims delayed reporting the abuse they suffered due to defendant's prominent role in that community, and that "sexual abuse . . . by a faith leader . . . adds one more layer of difficulty or barrier sometimes to disclos[ure]." During opening statements, the prosecutor stated that defendant's role in the Shul and surrounding community was how "he managed to gain [the] trust" of Ruthy, Sam and their families. During closing arguments, the prosecutor argued that defendant "knew he was so revered in the community, so in control of everyone and everything around him" because he "control[ed] the finances at his home," "control[led] . . . the design of his music room," "control[led]" "the finances at the Shul" due to his role as "president of [its] Board of Directors," and "control[led] [an] architectural board and [a] homeowner's association [on] which he served"; the prosecutor also argued that defendant used his "control[ in] his community" to gain the "trust" of the victims, so that "there was no way they were going to say anything to their families." Defendant did not object to any of these arguments.
To ensure that the jury used this evidence solely to understand the context in which the alleged crimes occurred- and not for any impermissible purpose-the court instructed the jury that it "must not be biased in favor of or against any party, witness, attorney, defendant, or alleged victim because [of] his [or] her disability, gender, nationality, national original, race, or ethnicity, religion, gender identity, sexual orientation, age or socioeconomic status."
In his motion for a new trial, defendant essentially argued that the prosecutor improperly referred to his Jewish faith and ethnicity as a means of appealing to the jury's implicit bias against people of the Jewish faith and culture. The trial court rejected this argument, explaining that "this entire case arose out of . . . defendant, his family, being-he being one of the founders of the Calabasas Modern Orthodox Shul. The witnesses, the victims, their families, everybody attended that Shul. Both sides were participants in this community, and it wasn't used as derision against . . . defendant, and it wasn't used as derision against the victims in this case."
2. Degree of defendant's adherence to the tenets of the Modern Orthodox Jewish faith
During the cross-examination of Ruthy, defendant asked Ruthy if she was "aware that [defendant's] household is an observant Jewish family." Ruthy explained that she was aware, and that this meant that on Fridays, in observance of the Sabbath, they would not use electricity from sundown on Friday to sundown on Saturday.
During his case-in-chief, defendant called Victor Lindenheim (Lindenheim) to offer an opinion about defendant's "character and reputation in the community." Lindenheim responded:
"The thing that stands out, he's a religious man and he is very literal about how he lives his life according to the Bible. Always keeps the Sabbath, keeps kosher, he's Jewish, and out of that there's a kindness and compassion. He's very, very kind, compassionate person."
In cross-examining Lindenheim about which Jewish denomination defendant observed, the prosecutor elicited from Lindenheim that the Shul followed "Modern Orthodox" Judaism. The following exchanges occurred:
[Prosecutor:] "In Modern Orthodox Judaism, do men wear head coverings also known as kippah . . . ?"
[Lindenheim:] "Yes."
[Prosecutor:] "You would agree with me that the defendant is not wearing a kippah today?" ...
[Lindenheim:] "Yes. This is not a Shul." ...
[Prosecutor:] "Sir, would you agree with me in Modern Orthodox Judaism, a man is not permitted to touch another woman who is not his wife after that woman has had her bat mitzvah; is that correct?"
[Lindenheim:] "Sounds right." ...
[Prosecutor:] "So if a man were to, say, to touch his female attorney on the shoulder, that is actually not permitted by nonorthodox [sic] Judaism; is that correct?"
...
[Lindenheim:] "I don't know."
...
[Prosecutor:] "You're not permitted to touch another woman who's not your wife; correct?"
[Lindenheim:] "Generally...."
Although defendant did not object to these questions, after this examination and outside the jury's presence, the trial court articulated why it allowed the prosecutor's line of questioning. The court noted that "[t]he jury will be instructed that they are not to consider race, religion, socioeconomic, [etc.,] [b]ut the fact that [Lindenheim] testified that the defendant was a very religious man, kept the Sabbath, didn't drive, went to Shul every week, opens the door to [defendant's] practice." The court went on to note that, because "the fact that [defendant's] religion was placed by the defense witness being observant[,] it's fair comment . . . for the prosecution to point out that he's not as observant as perhaps was being elicited."
While cross-examining defendant's wife, the prosecutor asked whether it was "a rule of Modern Orthodox Judaism that a . . . grown, an adult man is not allowed to touch a woman who's not his wife." The wife answered, "I don't know - I don't think that's a definitive rule." The wife also explained that the "rule" the prosecutor asked about applied to a more "ultra Orthodox" denomination that she and defendant did not observe.
Prior to closing arguments, the trial court instructed the jury about how to use the character evidence proffered by Lindenheim, explaining that "[e]vidence of . . . defendant's good character can by itself create a reasonable doubt whether . . . defendant committed [the charged] sexual" crimes.
During closing argument, the prosecutor argued: "Lindenheim also told you that . . . defendant is a, quote, religious man. His words[,] not mine. He goes to temple. Doesn't turn on the lights for Sabbath. Keeps kosher[,] everything that a religious man would do. . . Well, . . . defendant doesn't follow all the rules because, as Mr. Lindenheim told you, Mr. Lindenheim who went to the Shul, the temple, the place of worship, . . . in the Modern Orthodox temple, . . . Jewish men are not allowed to touch another woman to whom they're not married, that's a rule, and . . . defendant broke it every time he touched [his female attorney's] shoulder here in court."
Defendant moved for a mistrial following closing argument, contending it was "highly inappropriate" for counsel to "mention" "[t]he fact that [defendant is] an observant Jew," and that the prosecutor "intend[ed] . . . to vilify [him] for not only being Jewish, but for the nature of his Jewish practice." The trial court denied the motion for a mistrial, but gave the jury an additional "curative instruction":
"I have previously instructed you that you must not be biased in favor of or against any party, witness, attorney, defendant or alleged victim because of, among other things, their religion. In this case, you have heard about the Calabasas Shul, i.e., synagog[ue], i.e, temple[,] because the evidence demonstrated that many of the parties knew each other due to their involvement with the Calabasas Shul. Every person has an absolute constitutional First Amendment right to practice the religion of his or her choice. You may not consider the tenets of any religion or how an individual, particularly . . . defendant, adhered to the tenets of that religion as it is irrelevant and may not be considered by you for any purpose."
In his new trial motion, defendant renewed his objection to the inquiry into his adherence to Modern Orthodox practices. The trial court denied the motion on this ground, reasoning that it was "not prosecutorial misconduct because" the defense "open[ed] the doors" to the prosecutor's line of questioning by calling Lindenheim to opine that defendant was a "religious man" who was "very literal about how he lives his life according to the [Torah]," and hence did not have the "character to commit th[e charged] crime[s]." The court further explained that any misconduct was also not prejudicial in light of the curative instruction the court gave in an "abundance of caution" because that instruction "overemphasized to the jury that it should not hold anything about the way . . . defendant practiced his religion against him."
3. Uses of Jewish phrases and tropes
On three occasions, the prosecutor congratulated a witness that the jury already knew was Jewish by using the phrase "Mazel Tov" (the Hebrew phrase for "good luck" that is used conversationally to express congratulation)-namely, (1) when Lindenheim testified that he had "retired in December of last year," (2) when defendant's wife testified that she will soon have been "married for 40 years," and (3) when defendant testified he had been "voted to be a lifetime member of the Motion Picture Academy" due to his "achievements in acoustics in theater and design."
At the outset of the prosecutor's cross-examination of defendant, she and defendant had the following exchange:
[Prosecutor:] "I want to make sure I get it right. It's Mr., not Dr., I'm not missing any titles, right?"
[Defendant:] "My mother wanted me to be a doctor but I disappointed her. I'm not a doctor."
[Prosecutor:] "Typical Jewish mother, yeah? Is that a 'yes'?"
[Defendant:] "That's a 'yes.'"
Defendant did not object to any of these exchanges.
B. Analysis
1. Wrongful admission of evidence
Defendant argues that the trial court erred in allowing the prosecutor to elicit from Lindenheim any testimony regarding defendant's adherence to the tenets of the Modern Orthodox Jewish faith because (1) such evidence was inadmissible under Evidence Code section 789 and the First Amendment, and (2) Lindenheim was not qualified as an expert to opine on the tenets of the Modern Orthodox Jewish faith. Defendant has forfeited these arguments by failing to make contemporaneous objections. (Evid. Code, § 353.) However, we elect to reach the merits of these arguments. As noted above, we review these evidentiary objections for an abuse of discretion.
Neither Evidence Code section 789 nor the First Amendment pose a bar to the prosecutor's elicitation of evidence from Lindenheim. Evidence Code section 789 provides that "[e]vidence of [a witness's] religious belief or lack thereof is inadmissible to attack or support the credibility of [that] witness." (Evid. Code, § 789; accord, Drake v. Dean (1993) 15 Cal.App.4th 915, 933.) But section 789 does not bar the introduction of evidence regarding a witness's religion or adherence to that religion's tenets if offered for some other relevant purpose aside from bolstering or attacking the witness's credibility. (People v. King (2010) 183 Cal.App.4th 1281, 13111312 [victim's religious belief relevant to show "context" as to why she did not resist aggressive groping by law enforcement]; People v. Bautista (2008) 163 Cal.App.4th 762, 783-784 ["church's beliefs and defendant's role in the church" admissible to "provide[] a context for defendant's actions and the [victims'] delayed reporting of the incidents"].) A defendant can make his own character an issue in the case by offering a character witness's testimony that the defendant has "high moral character" to show he would not commit sex crimes (e.g., McAlpin, supra, 53 Cal.3d at p. 1311; Evid. Code, § 1102, subd. (a)), and our Supreme Court has held that, once such testimony is introduced, "the prosecution [can] impeach [the character witness's] testimony [by eliciting] acts tending to contradict th[e] impression" that the defendant has a strong "religious []commitment" (People v. Ramos (1997) 15 Cal.4th 1133, 1173 (Ramos)). The First Amendment similarly "erect[s no] per se barrier to the admission of evidence concerning one's beliefs and associations" and permits the introduction of evidence regarding religion "if [it is] relevant to some issue that is being tried." (People v. Quartermain (1997) 16 Cal.4th 600, 629.) Here, the prosecutor's cross-examination of Lindenheim regarding how assiduously defendant adhered to the tenets of the Modern Orthodox Jewish faith served two relevant and permissible purposes-namely, (1) to show that Lindenheim was wrong to say defendant was "a religious man" who was "very literal about . . . liv[ing] his life according to the" Modern Orthodox tenets, which was the very premise for Lindenheim's opinion that defendant did not have the character of a person who would sexually abuse young children, and (2) to suggest that Lindenheim did not really know defendant very well, which undermines the force of his opinion testimony (e.g., People v. Hempstead (1983) 148 Cal.App.3d 949, 954 [cross-examination to test a character witness's knowledge of defendant's reputation or basis for an opinion is permissible]).
Lindenheim was also sufficiently qualified to testify about the tenets of the Modern Orthodox Jewish faith. Although some of those tenets are "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact" (Evid. Code, § 801, subd. (a)), a witness may be "qualified to testify as an expert" based on their "special knowledge" and "experience" (id., § 720). Here, Lindenheim testified that he had been an associate member of the Shul, had attended religious events at defendant's home, and never evinced any hesitation in delineating between different Jewish orthodoxies or explaining the tenets of the Shul's Modern Orthodoxy. To the extent defendant suggests Lindenheim first had to be "tendered" as an expert, there is no formal tendering requirement in California.
2. Prosecutorial misconduct
Defendant argues that the prosecutor committed misconduct in (1) eliciting testimony regarding defendant's adherence to the tenets of Modern Orthodox Judaism, and thereby suggesting that he was-in defendant's own words-a "bad Jew" for not adhering to them; (2) implying that Jewish people-again in defendant's own words-"s[eek] power" and "control[] everything," including "the motion picture industry"; and (3) congratulating three witnesses on their personal achievements with the Hebrew phrase "Mazel Tov" and asking defendant if his "Jewish mother" was disappointed he did not become a doctor. Defendant has forfeited these arguments by not making contemporaneous objections. We nevertheless reach the merits of these arguments in the alternative.
Conduct by a prosecutor may violate a defendant's right to due process under either the federal or state Constitutions. Conduct violates federal due process if it "'"'infects the trial with such unfairness as to make the conviction a denial of due process.'"'" (People v. Adams (2014) 60 Cal.4th 541, 568.) Conduct violates state due process if it renders the trial fundamentally unfair or "'"'involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.'"'" (Ibid.) To obtain reversal, the prosecutorial misconduct must also be "prejudicial." (People v. Alvarado (2006) 141 Cal.App.4th 1577, 1585; Uribe, supra, 199 Cal.App.4th at p. 873; People v. Arias (1996) 13 Cal.4th 92, 161.) We independently review whether a prosecutor's conduct constitutes misconduct and whether it was prejudicial. (Uribe, at p. 860.)
Defendant is not entitled to reversal on the ground that the prosecutor elicited evidence on whether defendant adhered to the tenets of Modern Orthodox Judaism. As explained above, that testimony was proper under the law. Indeed, in Ramos, supra, 15 Cal.4th at pp. 1172-1773, our Supreme Court held that it was appropriate for a prosecutor to "impeach" a witness who testified that the defendant had a "religious recommitment" by eliciting evidence about "acts tending to contradict" that recommitment. (Ibid.; cf. People v. Young (2019) 7 Cal.5th 905, 950-951 [improper to elicit evidence that a defendant had neo-Nazi beliefs when those beliefs were not "connected [with the defendant's] past acts of violence or even his propensity for violence"].) What is more, any misconduct was not prejudicial in light of the trial court's curative instruction that explicitly told the jury it was "not [to] consider . . . how an individual, particularly the defendant, adhered to the tenets of [his] religion . . . for any purpose."
The prosecutor did not commit misconduct by pointing to the evidence that defendant had stature among, and in some respects, control over, those around him to argue that defendant could use that stature and control to gain the trust and compliance of his alleged victims. Because evidence of a defendant's stature and control of the community is admissible to explain why his victims delayed in reporting their victimization, a prosecutor's elicitation of that admissible evidence is not misconduct. What is more, all of the evidence about defendant's association with the motion picture industry was elicited by defendant: Defense counsel asked Ruthy on cross-examination whether defendant had "literally designed the Academy Awards building" and whether he had "deep connections to Hollywood," and defendant offered during his direct testimony that he had "gotten to know some pretty heavy hitters in Hollywood." The prosecutor did not highlight defendant's ties to the entertainment industry or allude, explicitly or implicitly, to denigrating tropes. To the extent that the prosecutor mentioned defendant's "control" and "power," it was simply to highlight the influence he had on his immediate community and the barrier that influence posed to the victims coming forward.
Indeed, it was defendant who suggested that a text message from one of Ruthy's family members referred to defendant trying to help her with her acting and musical career; Ruthy denied this suggestion and insisted the messages were about someone other than defendant.
The prosecutor also did not commit any prejudicial misconduct in congratulating three witnesses with the Hebrew phrase "Mazel Tov" rather than the word congratulations, or by asking defendant whether his mother's "disappoint[ment]" that he was "not a doctor" was because she was a "[t]ypical Jewish mother." Although the prosecution would have done better to avoid these few references entirely, doing so was not prejudicial misconduct in this case because the jury already knew each of these witnesses was Jewish (and hence this case did not present the scenario where such comments would have possibly placed the witness's faith and ethnicity before the jury for the first time) and because the comments were not intended or interpreted in a way that branded any of the witnesses less worthy of belief or credence for being Jewish (since the alleged victims were also Jewish). Indeed, the fact that defendant did not make any contemporaneous objections to any of the comments supports the notion that these comments were not contemporaneously viewed as inappropriate. Defendant likens this case to People v. Cudjo (1993) 6 Cal.4th 585, 625, but there the prosecutor appealed to negative racial bias by arguing that the jury should not believe the defendant in suggesting that the victim was "going to have intercourse with a strange man-frankly any man-a black man." (Ibid.) The comments defendant now challenges were not denigrating.
3. The Racial Justice Act
Defendant argues that the cumulative effect of all of the prosecutor's references during trial to his Jewish faith and ethnicity set forth above violated the Racial Justice Act.
a. Forfeiture and waiver
Although a claim under the Racial Justice Act "based on the trial record" may be "raise[d] . . . on direct appeal from the conviction or sentence" (§ 745, subd. (b)), a defendant's failure to "timely raise [a Racial Justice Act claim] at trial" amounts to a forfeiture of that claim. (People v. Singh (2024) 103 Cal.App.5th 76, 114-115 (Singh); People v. Lashon (2024) 98 Cal.App.5th 804, 810; see § 745, subd. (c) ["A motion that is not timely may be deemed waived"].) Because defendant's trial occurred in May 2022, defendant had the opportunity to object to the 2020-enacted Racial Justice Act during his trial; his failure to do so amounts to a forfeiture. What is more, defendant has waived his Racial Justice Act claim on appeal by waiting until his reply brief to raise it for the first time, thereby denying the People any opportunity to respond. (Raceway Ford Cases (2016) 2 Cal.5th 161, 178.)
b. Merits
Even if we choose to reach the merits of this claim in the alternative, we conclude there was no violation.
Because defendant is raising his Racial Justice Act claim for the first time on appeal and has sought neither an evidentiary hearing nor discovery, our task is to evaluate whether-on the trial record-he has established his entitlement to relief under the Act by a preponderance of the evidence. (§ 745, subd. (a) [claims must be established "by a preponderance of the evidence"]; id., subd. (c) [motions "filed in the trial court" require an initial "prima facie showing" before a "hearing" is held].)
As pertinent here, the Act is violated if either (1) "[t]he judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror exhibited bias or animus towards the defendant because of the defendant's race, ethnicity, or national origin" (§ 745, subd. (a)(1)); or (2) "[d]uring the defendant's trial, in court and during the proceedings, the judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror" (a) "used racially discriminatory language about the defendant's race, ethnicity, or national origin," or (b) "otherwise exhibited bias or animus towards the defendant because of the defendant's race, ethnicity or national origin, whether or not purposeful" (id., subd. (a)(2)). The Act defines "racially discriminatory language" as "language that, to an objective observer, explicitly or implicitly appeals to racial bias, including, but not limited to, racially charged or racially coded language, language that compares the defendant to an animal, or language that references the defendant's physical appearance, culture, ethnicity, or national origin." (Id., subd. (h)(4).)
This definition has a safe harbor that applies when "the person speaking is relating language used by another that is relevant to the case or if the person speaking is giving a racially neutral and unbiased physical description of the suspect." (§ 745, subd. (a)(2).)
The central thread woven into the definition of each of these violations is the exhibition of, or appeal to, "bias or animus towards the defendant because of the defendant's race, ethnicity, or national origin." Defining this term is no doubt "a difficult task." (People v. Coleman (2024) 98 Cal.App.5th 709, 721.) Because the Racial Justice Act is aimed at rooting out implicit bias, violations need not be intentional; "unintentional and unconscious" exhibitions of and appeals to race, ethnicity or national origin can still violate the Act. (Bonds v. Superior Court (2024) 99 Cal.App.5th 821, 828-829, italics omitted.) However, the implicit bias sufficient to violate the Racial Justice Act must invoke race, ethnicity or national origin in a way that denigrates, disparages or otherwise invokes a negative stereotype against a person on one or more of the protected bases. (People v. Simmons (2023) 96 Cal.App.5th 323, 335-336 [prosecutor argued that defendant "admitted to having an ambiguous ethnic presentation and that people that don't know him think he's something other than Black"; conceded violation, as argument "equate[d] defendant's skin tone and 'ethnic presentation' with deception"]; Bonds, at p. 830 [officer's reliance on fact that suspects were wearing "hoodies" evinced disparaging bias due to "assumption that the hoodie means something about criminality when it's connected to . . . people of color"; violation]; People v. Howard (2024) 104 Cal.App.5th 625, 641-642, 644, 655-656 [prosecutor questioned defendant about his city of origin, where city was "a proxy for race"; prima facie showing of violation]; cf. Coleman, at pp. 717, 721-723 [defense attorney advised him to testify "us[ing] Ebonics, slang, and to sound ghetto"; no violation].)
Although the Act's definition of "racially discriminatory language"-because it includes "language that references the defendant's physical appearance, culture, ethnicity, or national origin"-could be read in isolation to prohibit any mention of race or ethnicity during a trial, courts have not given the Act that reading because the overarching definition of "racially discriminatory language" still requires that the language "explicitly or implicitly appeal[] to racial bias." (§ 745, subd. (h)(4).) Thus, in Singh, supra, 103 Cal.App.5th at p. 119, the court upheld questioning of a Punjabi defendant about whether the killing at issue had been an "honor killing" under Punjabi culture because that questioning "was a valid investigative inquiry related to understanding defendant's motive and state of mind" and "put the events leading up to the shooting in context based upon his culture." (Ibid.)
Applying these standards, defendant did not establish by a preponderance of the evidence that the many references to Judaism in this case constituted an exhibition of, or appeal to, "bias or animus towards the defendant because of the defendant's" "ethnicity." That is because those references did not invoke defendant's Jewish ethnicity in a way that denigrated, disparaged, or otherwise invoked a negative stereotype against Jews. The testimony about the Shul as well as defendant's prominent role at the Shul and in the community that worshipped at the Shul was integral to explaining how defendant came to know Ruthy and Sam, how he was able to gain their trust, and why they delayed in reporting sexual abuse.
It is unclear whether "a Jewish background" qualifies as an "ethnic classification" under equal protection principles (People v. Schmeck (2005) 37 Cal.4th 240, 266, fn. 5), or under the Racial Justice Act. We will assume that it is for purposes of our analysis.
Defendant's adherence to the tenets of Modern Orthodox Judaism was, as noted above, relevant to impeach the very basis for Lindenheim's opinion that defendant lacked the character to commit the charged crimes. Neither defendant's level of adherence to those tenets nor the prosecutor's use of the phrase "Mazel Tov" and single question whether defendant's mother was disappointed that he was not a doctor because she was a "typical Jewish mother" denigrated or disparaged any witness- particularly when the jury already knew all of them, as well as the alleged victims, were Jewish. Given the factual context of the charged crimes in this case, the Racial Justice Act does not prevent the prosecution from responding to evidence related to defendant's Judaism that defendant elicited. (See People v. Eubanks (2011) 53 Cal.4th 110, 145 ["a 'defendant has no right to mislead the jury through one-sided character testimony'"], quoting People v. Siripongs (1988) 45 Cal.3d 548, 578.) Having independently reviewed the entire transcript from the multi-day jury trial, the record does not reveal that the prosecutor exhibited or appealed to any "bias or animus towards the defendant because" of his Jewish faith. Defendant did not prove a violation of the Act.
IV. Other Prosecutorial Misconduct
Defendant makes three further clusters of claims of prosecutorial misconduct unrelated to his ethnicity.
A. Improper statements of law
Defendant called Rita Herscovici as a witness. Herscovici testified that she was a digital media and privacy lawyer, and she authenticated several photos of Sam taken at various social gatherings at defendant's home that showed Sam smiling (thereby impeaching Sam's testimony that she was "horrified" to be around defendant). On cross-examination, Herscovici admitted that she had posted these photographs of Sam onto her own Facebook account and never asked Sam's parents for permission to do so. The following exchange ensued:
[Prosecutor:] "You know it's not allowed to post a picture of a child who's not your own without asking a parent first; isn't that right?"
[Herscovici:] "I guess."
[Prosecutor:] "'Yes?'"
[Herscovic:] "Yes."
In closing argument, the prosecutor argued that Herscovici was a "biased" and "tainted" witness because she posted photos of Sam on Facebook without her parents' permission, which was "absolutely not allowed." Defendant did not object to the exchange during Herscovici's testimony nor to this snippet of closing argument.
Defendant argues on appeal that the prosecutor engaged in misstating the law because it is not unlawful to post photos of minors on Facebook without parental permission, and that this misstatement of law also violates due process, a prosecutor's ethical rules, and constitutes slander. Although a prosecutor cannot misstate the law (e.g., People v. Lloyd (2015) 236 Cal.App.4th 49, 62), neither party has pointed to any law authorizing or prohibiting such postings. Indeed, Herscovici agreed with the prosecutor that she was "not allowed" to post photographs of minors without their parents' permission. Moreover, even if the prosecutor misstated the law, that misstatement was not prejudicial, as it was only relevant to impeach Hersovici, Herscovici's testimony was only relevant to the counts against Sam, and the jury did not convict defendant of those counts.
The People on appeal suggest that it is unlawful to post such a photograph under 16 C.F.R. § 312.1 et seq., but those regulations apply to "operator[s]" of internet websites, not "third parties."
B. Improper argument
In her rebuttal argument, the prosecutor ended her argument by purporting to leave the jury with "three . . . C words." First, defendant was "charming." Second, defendant was "controlling." Third, defendant was "a child molester. He molested Sam. He molested Ruthy, and the abuse that he inflicted upon them continues to haunt them....He's a child molester. He is guilty. When you go back to that jury room, do your job, find him guilty."
Defendant argues that calling defendant a "child molester" amounts to prosecutorial misconduct. It does not. Defendant was charged with committing lewd acts against minors-in other words, of molesting children. The prosecutor's argument did no more than argue that the evidence at trial established defendant's guilt, and used a slang word to refer to what persons found guilty of the charged crimes are called. This is not inappropriate. (People v. Mitcham (1992) 1 Cal.4th 1027, 1052 (Mitcham) ["The prosecution has broad discretion to state its views as to what the evidence shows and what inferences may be drawn therefrom"].)
C. Arguing facts not in evidence
In her closing argument, as noted above, the prosecutor highlighted that Jewish men in the Modern Orthodox Jewish faith are "not allowed to touch another woman to whom they're not married" and argued that "defendant broke [that rule] every time he touched [his female defense counsel's] shoulder here in court." The prosecutor argued that defendant "paid a witness, . . . actually . . . paid many of the witnesses who testified on the defendant's behalf over the years to ensure that he is not convicted." The prosecutor also argued that defendant "control[led]" "the finances at the Shul" due to his role as "president of [its] Board of Directors," and "controll[ed] [an] architectural board and [a homeowner's association on] which he served."
Defendant argues that the prosecutor committed misconduct in making these arguments. "It is misconduct for a prosecutor to argue facts that are not in the evidence." (People v. Johnson (2022) 12 Cal.5th 544, 612.)
Even if we assume the prosecutor should not have referred to defendant's in-courtroom conduct, this was not prejudicial because the key issue at trial was the credibility of the alleged victims-not the credibility of defendant's character witness. What is more, the jury was instructed that the prosecutor's arguments are not evidence, and we presume the jury disregarded whatever the prosecutor said in this regard. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 861-862 ["we presume that jurors follow instructions"].)
Defendant did pay the locksmith witness as well as his expert witness on memory, so there was no misstatement when the prosecutor argued that defendant paid witnesses.
Lastly, the prosecutor did not misrepresent the control defendant possessed in various spheres in the community which provided the backdrop for the charges in this case. With regard to the Shul, defendant admitted that he was President of the Board of Directors and, in that capacity, had "control over some of the decision-making of the Shul." Although defendant said he "had no control" over the architectural board, he also testified that he was chairperson and "head" of that board for 16 years. Although defendant said he had "no control" over the homeowner's association and had one vote among 21, he also testified that he was the association's "vice president" and "on the board of directors"-and was also "a leader" on that board. Because prosecutors can draw reasonable inferences from the evidence when arguing, the prosecutor did not engage in misconduct in arguing that defendant had control over-and hence stature within-these various endeavors. (Mitcham, supra, 1 Cal.4th at p. 1052.)
V. Cumulative Error
Defendant argues that the cumulative effect of all the errors he has identified at trial entitles him to relief, even if each does not individually entitle him to reversal. Although error can cumulate, it does not here because most of his claims show no error, and any prejudice from any errors we have assumed does not warrant reversal of his convictions even if viewed cumulatively. (Accord, People v. Carpenter (1999) 21 Cal.4th 1016, 1064.)
VI. Sentencing Error
Defendant argues that the trial court erred in running his second lewd act sentence (for two years) consecutively to his first sentence (for six years). While we review any errors of law de novo, the decision whether to run sentences consecutively or concurrently is entrusted to the discretion of the trial court and reviewed solely for an abuse of that discretion. (People v. Giminez (1975) 14 Cal.3d 68, 71.)
The trial court did not abuse its discretion. A trial court may run a subordinate sentence consecutively to a principal sentence under section 1170 as long as the court identifies "one criterion or factor in aggravation." (People v. Davis (1995) 10 Cal.4th 463, 552.) "Any circumstances in aggravation or mitigation . . . may be considered," unless it is a fact used to impose the upper term, to enhance the sentence, or that is an element of the crime. (Cal. Rules of Court, rule 4.425(b).) Here, the trial court noted that defendant's lewd act convictions were neither "insignificant nor minor" given their aggressiveness and that defendant had "groomed" Ruthy (which implies advanced planning). Either is sufficient to constitute a qualifying factor in aggravation that would justify running the second lewd act sentence consecutively.
Defendant makes two arguments. First, he argues that the court did not meet the more stringent requirements set forth in the One Strike Law (§ 667.6) for running sentences consecutively. The One Strike Law is irrelevant because its requirements apply when a court runs a full-term sentence consecutively (id., subd. (d)(1)); here, none of defendant's convictions were sentenced under the One Strike Law and the sentence the trial court ran consecutively was not a full-term sentence but rather a sentence that was one-third of the middle term. Second, defendant argues for the first time in his reply brief that the trial court did not state its reasons for running the second lewd act sentence consecutively. This argument is forfeited for not raising it before the trial court (People v. Boyce (2014) 59 Cal.4th 672, 730-731), and waived for not raising it in the opening brief (Raceway Ford Cases, supra, 2 Cal.5th at p. 178). It is also without merit because, as noted above, the trial court cited valid aggravating factors that justify the imposition of a consecutive sentence.
DISPOSITION
The judgment is affirmed.
I concur: MOOR, J.
BAKER, Acting P. J.-Concurring I join the opinion of the court with the following qualifications.
First, I do not join Part III.B.3.b of the opinion for the court. The Racial Justice Act contention was raised for the first time in defendant and appellant's reply brief and "[i]t is axiomatic that arguments made for the first time in a reply brief will not be entertained ...." (People v. Tully (2012) 54 Cal.4th 952, 1075.)
Second, I wish to underscore the reason for our repeated holding that many of defendant and appellant's arguments are forfeited for failure to raise them in the trial court. A contemporaneous objection helps document how a comment or remark was understood by trial participants at the time it was made and provides an immediate avenue for redress or opportunity for clarification. In light of the claims being made by defendant and appellant only now without any contemporaneous objection below, our application of the forfeiture doctrine is particularly appropriate.
[*]Associate Justice of the Court of Appeal, Second Appellate District, Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.