Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County Super. Ct. No. SWF012204, Sherrill A. Ellsworth, Judge.
NARES, Acting P. J.
In August 2007 a jury convicted Ricardo Anthony Gomez of two counts of committing a lewd act upon a child under the age of 14 by means of force, violence, duress, menace or fear (Pen. Code, § 288, subd. (b)(1); counts 1 & 2). The jury also found true the allegation Gomez committed the crimes against more than one victim within the meaning of section 667.61, subdivision (e)(5). The court sentenced Gomez to a state prison term of 30 years, consisting of a 15-year-to-life sentence on count 1 and a consecutive 15-year-to-life sentence on count 2.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, Gomez asserts (1) there is no substantial evidence he committed the lewd acts by force or duress; (2) the court erred by (a) admitting hearsay statements of the victims contained in videotaped interviews with the victims, (b) requiring defense counsel to object to hearsay portions of the video while it was playing, and (c) instructing the jury to rely on redacted transcripts of the interviews and then not providing the jury with the redacted transcripts; (3) the court erred by admitting evidence of prior uncharged acts of molestation, and admission of such evidence violated his rights to due process and equal protection; (4) the court erred in instructing the jury under CALCRIM No. 330 concerning the testimony of child witnesses under the age of 10 and because (a) there was no witness at trial that was 10 years old or younger, and (b) that jury instruction is unconstitutional; (5) CALCRIM No. 375 concerning Evidence Code section 1108 evidence of uncharged offenses unconstitutionally lowered the burden of proof; (6) his trial counsel provided ineffective assistance of counsel by allowing the inadmissible hearsay statements of the victims and not ensuring the jury received redacted transcripts of their interviews; (7) the court erred in failing to give a unanimity instruction; and (8) the cumulative effect of the errors requires reversal. We affirm.
FACTUAL BACKGROUND
A. People's Case
Victim 1 and Victim 2 are sisters. Gomez's daughter was married to the victims' father, making Gomez the victims' stepgrandfather. The victims spent weekdays with their mother. They spent weekends at their father's house, which is where Gomez lived. At the time of trial, Victim 1 was 12 years old, and Victim 2 was 14 years old.
1. Victim 1
Victim 1 thought of Gomez as her grandfather. She had known him all her life and thought he was "a really fun guy." Gomez would take Victim 1 to do many fun activities, like horseback riding and frequent trips to McDonald's.
When Victim 1 was nine years old, Gomez sexually molested her over a three-month period. Gomez would drive her various places, and while driving he would touch her upper leg near her vagina. The touching made Victim 1 very uncomfortable. On another occasion, Gomez and Victim 1 were alone in a bedroom. Gomez touched her hip and told her that it was all right for him to be touching her, that there was "nothing wrong with it." He also told her that her mom and dad should not know about him touching her. Victim 1 believed Gomez because he was her elder.
Gomez taught Victim 1 to kiss him on the cheek when she greeted him. When no adults were around, he would turn his head and try to "French kiss" her. Gomez would open his mouth and stick his tongue out, and then tell her to open her mouth. Victim 1 thought this was "goopy and gross" so she refused to do it.
On another occasion, Victim 1 was on the toilet going to the bathroom when Gomez entered the room. Gomez told her he wanted to "lick [her] privates." Gomez bent down and licked her vagina. Victim 1 let him do this because she was "afraid of him," and she was "too afraid to say no." Gomez left and she pulled up her pants and left the bathroom.
Eventually, Victim 1 told her mother about what Gomez had been doing to her. At around the same time, Victim 2 told Victim 1 that Gomez had been touching her too. Victim 1 relayed this information to their mother.
2. Victim 2
Victim 2 called Gomez "Papa." She thought he was a "pretty cool" guy who was "a lot of fun" to spend time with. Gomez would take Victim 2 to do fun activities, such as going to Toys-R-Us and other places. Gomez would buy things for her such as Barbie dolls and video games.
Gomez started sexually molesting Victim 2 when she was seven or eight years old. Gomez would drive Victim 2 various places and, while driving, would touch her upper thigh. This happened many times and made her feel uncomfortable. Gomez also tried to "open-mouth" kiss Victim 2. Victim 2 would kiss Gomez on the cheek when adults were around. When no adults were around, Gomez would "force [her] mouth open." Victim 2 would clench her teeth together to try to stop Gomez from forcing her mouth open. This happened "a lot of times" and made here feel "weird" and "gross."
Gomez also touched her on her leg and "butt." On one occasion, Gomez demonstrated for her how to have sex standing up. Gomez came into her bedroom and picked her up to show her how to do a reverse "piggy-back" position. He then demonstrated the sexual position by "explain[ing] it physically."
Gomez would also buy her underwear. Afterward, he would have her model the underwear for him. This made her feel "weird" and uncomfortable.
Victim 2 told her sister about what Gomez was doing to her. Victim 1 had told her what Gomez was doing to her, so she responded by telling Victim 1 what he had done to her. Victim 1 then told an adult about what was happening.
3. Child Sexual Abuse Accommodation Syndrome testimony
Jody Ward, Ph.D., testified as an expert regarding Child Sexual Abuse Accommodation Syndrome (CSAAS). Dr. Ward discussed, among other things, why a child might acquiesce to sexual molestation from an adult who was not physically forceful. Dr. Ward opined that when a parent or grandparent sexually molests a child, there is an inherent sense of duress due to the child's dependence upon the adult.
4. Evidence Code section 1008 evidence
M. was Gomez's stepdaughter. In 1972, when she was eight years old, Gomez moved in with her family. He molested her on several occasions, starting when she was eight. Gomez would drive M. places, and while driving, would rub her leg and vagina. On a daily basis Gomez "French kissed" her. M. would try to get away but Gomez told her everything would be okay. Gomez would also come into her room at night and touch her breasts and vagina.
R. was also Gomez's stepdaughter. Gomez lived with her family when she was between eight and 10 years old. Gomez would drive R. places and while doing so would touch her inner leg near her vagina. R. would have to clench her legs together to stop him from touching her. When she did this, he would call her a baby or make some other derogatory remark.
R. would kiss Gomez on the cheek when she was saying hello or goodbye. However, when no one was around, Gomez would "French kiss" her by sticking his tongue in her mouth. This happened on many occasions.
John Beech was married to Angela Beech, another of Gomez's stepdaughters. In 1998 Gomez hand-delivered a letter to Angela Beech in his presence. Angela and John read the letter together. The letter discussed a pending lawsuit stemming from allegations that he had committed acts of molestation. In the letter, Gomez urged Angela not to "say the wrong thing" and to reconcile her story with the story her sisters and mother would tell. He then said that the letter should be destroyed after it was read.
B. Defense Case
Letticia Madueno, Gomez's niece, saw him on a daily basis from 1998 to 2001, and observed his physical condition. She testified as to various physical infirmities he had suffered that caused him to use a hospital bed, a neck and back brace and a walker.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE
Gomez asserts there is insufficient evidence to support his conviction on counts 1 and 2 because there is no evidence he used force, violence, duress, menace or fear when he molested Victim 1 and Victim 2. Specifically, Gomez challenges the People's theory at trial that he used duress to accomplish the molestations. Accordingly, Gomez asserts his convictions should be reduced to violations of section 228, subdivision (a). This contention is unavailing.
A. Standard of Review
The critical inquiry on review of the sufficiency of the evidence is whether the record reasonably supports a finding of guilt beyond a reasonable doubt. This inquiry does not require a court to " 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' [Citation, italics added.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Johnson (1980) 26 Cal.3d 557, 576.) Thus, " ' "[i]f the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" (People v. Bean (1988) 46 Cal.3d 919, 933; People v. Stanley (1995) 10 Cal.4th 764, 793.)
Moreover, "[t]he uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296.) Reviewing courts must accord deference to the jury and not substitute its evaluation of a witness's credibility for that of the fact finder. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
B. Analysis
Gomez was convicted in counts 1 and 2 of violating section 288, subdivision (b)(1), which applies to any person who commits a lewd act as described in section 288, subdivision (a), "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (§ 288, subd. (b)(1).)
As used in section 288, subdivision (b)(1), duress means " 'a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed, or (2) acquiesce in an act to which one otherwise would not have submitted.' " (People v. Leal (2004) 33 Cal.4th 999, 1004, 1009-1010, italics omitted.) " 'The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.'... [¶] The fact that the victim testifies the defendant did not use force or threats does not require a finding of no duress; the victim's testimony must be considered in light of her age and her relationship to the defendant." (People v. Cochran (2002) 103 Cal.App.4th 8, 13-14.) "[D]uress involves psychological coercion" and can arise from the "relative ages and sizes" of the perpetrator and the victim. (People v. Senior (1992) 3 Cal.App.4th 765, 775.) In addition to the threat of hardship, duress can also consist of the actual imposition of hardship; i.e., the creation of a highly stressful situation that weakens the resistance of the victim and in effect coerces compliance with the sexual activity. (See, e.g., People v. Cardenas (1994) 21 Cal.App.4th 927, 938-940.)
In People v. Sanchez (1989) 208 Cal.App.3d 721, criticized on other grounds in People v. Jones (1990) 51 Cal.3d 294, 307, the victim testified that during a three-year period starting when she was eight years old, the defendant, her grandfather, repeatedly molested her. The defendant would take her to his garage or bedroom, lock the doors, cover the windows, remove her clothes or tell her to do so, and then remove his own pants. (People v. Sanchez, supra, at p. 728.) He would then "make" or "require" her to orally copulate him. (Id. at p. 748.) When the defendant was finished molesting her, he would give her 25 cents or a dollar, and told her more than once not to tell anyone or her mother would hit her and he would go to jail. Afraid, the victim kept quiet. (Id. at p. 728.) The victim further testified that she considered the defendant a father figure. (Id. at pp. 747-748.) Based upon this evidence, the Court of Appeal rejected the defendant's argument there was insufficient evidence of duress to support his conviction under section 288, subdivision (b). (Id. at pp. 747-748.)
The Court of Appeal in People v. Pitmon (1985) 170 Cal.App.3d 38, 51,stated, "[A]t the time of the offenses, [the victim] was eight years old, an age when adults are commonly viewed as authority figures. The disparity in physical size between an eight-year-old and an adult also contributes to a youngster's sense of [her] relative physical vulnerability." (See also People v. Superior Court (Kneip)(1990) 219 Cal.App.3d 235, 239 ["Where the defendant is a family member and the victim is young,... the position of dominance and authority of the defendant and his continuous exploitation of the victim" are relevant to determining duress.].)
Here, there is ample evidence from which the jury could find the element of duress was satisfied. Victims 1 and 2 were eight and nine years old when Gomez molested them. He was an authority figure in the household whom Victim 1 thought of as her grandfather, and victim 2 called "Papa." The acts of molestation occurred either in the house in which they were living when no other adults were present or in Gomez's car when he was driving them places. Victim 2 testified he would force his tongue in her mouth. Victim 1 testified she allowed the incident in the bathroom to occur because she "was afraid of him,... too afraid to say no." Gomez told her not to tell anyone. Given the repeated molestations, Gomez's role as a parental figure, the age of the victims and their vulnerability, there is sufficient evidence of duress to support the convictions for violation of section 288, subdivision (b).
In arguing insufficiency of the evidence, Gomez relies on People v. Hecker (1990) 219 Cal.App.3d 1238, a decision by this court in which we held, " 'Psychological coercion' without more does not establish duress. At a minimum there must be an implied threat of 'force, violence, danger, hardship or retribution.' " (Id. at pp. 1250-1251, fn. omitted..) However, in People v. Cochran, supra, 103 Cal.App.4th at page 15, we later disapproved this holding in Hecker: "We believe this language in Hecker is overly broad. The very nature of duress is psychological coercion. A threat to a child of adverse consequences, such as suggesting the child will be breaking up the family or marriage if she reports or fails to acquiesce in the molestation, may constitute a threat of retribution and may be sufficient to establish duress, particularly if the child is young and the defendant is her parent." Other cases have also disapproved that holding in Hecker. (People v. Senior, supra, 3 Cal.App.4th at pp. 775, 776.) We again decline to follow Hecker's holding as an incorrect and overly broad statement of the law.
II. VIDEOTAPED INTERVIEWS OF VICTIMS
Gomez next asserts the court erred by (1) allowing inadmissible hearsay contained in videotaped interviews with the victims; (2) playing the entire tapes and requiring defense counsel to object to any inadmissible parts while a tape was playing; and (3) instructing the jury to rely on redacted transcripts of the interviews and then not providing the jury with redacted transcripts of the video. We reject these contentions.
A. Background
Prior to trial, the prosecutor filed an in limine motion seeking admission of two videotaped interviews of the victims. The prosecutor sought to admit the videos under Evidence Code section 1360 and asked permission to play them out of order, before the victims testified. Defense counsel indicated she had no opposition to the tapes being played out of order so long as the children subsequently testified. The court ruled the tapes admissible so long as the children testified.
Evidence Code section 1360 provides in part: "(a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another, or describing any attempted act of child abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule if all of the following apply: [¶] (1) The statement is not otherwise admissible by statute or court rule. [¶] (2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability. [¶] (3) The child either: [¶] (A) Testifies at the proceedings. [¶] (B) Is unavailable as a witness, in which case the statement may be admitted only if there is evidence of the child abuse or neglect that corroborates the statement made by the child. [¶] (b) A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement."
The prosecutor also indicated he had transcripts of the interviews that he would provide to opposing counsel and the court, but preferred not to give them to the jury while the tapes were playing. The court agreed, stating the jurors would be permitted to form their own impressions from the videotapes, and the transcripts would be available if the jury requested them. The court also noted the attorneys could stipulate to have the transcripts provided to the jury during deliberations.
The first evidence the prosecutor introduced was the videotaped interviews. The court asked the parties if they stipulated that the court reporter not transcribe the videos as there were already transcripts that could be provided to the jury during deliberations. Both attorneys stipulated to that procedure. The court then explained to the jury that while the court reporter would not transcribe the videos, they would have transcripts available during deliberations.
The videotape was then started. Defense counsel interrupted the playing of the videotape and requested a side bar conference outside the presence of the jury. Defense counsel at side bar then for the first time objected to statements as to what the victim's sister told her as hearsay, while acknowledging she should have raised the issue earlier: "I realize I should have stated this before, but I'd be remiss not to now. There's going to be continued reference to what her sister told her. I realize the difficulties that are presented now, but I have to object to that kind of testimony. It should have been raised earlier today, perhaps, but now that I've heard the─the transcript I had was, frankly, not as good." Defense counsel also admitted she had access to the videotapes prior to trial.
The court asked defense counsel to state her objection in front of the jury so it could sustain the objection on the record. In the presence of the jury, defense counsel stated her objection. The court sustained the objection, struck any mention of what the victim's sister told her, and instructed the jury to disregard that evidence.
Defense counsel then requested another side bar conference. During that side bar, defense counsel indicated her review of the transcript provided by the prosecutor revealed further hearsay statements, and speculative statements by the victims as to what other people were thinking. The court indicated its options were limited, given the timing of defense counsel's objections. The court suggested that defense counsel make her objections in open court as the videotape was playing, and it would sustain any proper objections, strike those portions of the videotape from the evidence, and give the jury an instruction to disregard those portions of the videotape. The court noted that was the best course of action, given the lateness of the objection, and also that defense counsel would be able to cross-examine both children during their testimony.
Defense counsel objected to the procedure and argued the objectionable material should be redacted from the video. The court reiterated its ruling, again citing the late timing of the objection.
The jury was brought back in and the videotape resumed. Defense counsel interposed several objections as the videotape was playing. After each objection, the court stopped the videotape and ruled on the objection. When an objection was sustained, the court struck the objectionable part of the videotape and instructed the jury it was not evidence and to disregard it. If the objection was overruled, the court would resume playing the videotape without striking any evidence.
During deliberations, the jury never requested copies of the transcripts of the videotapes or a read-back of the interviews. The jury never requested or received the videotapes themselves.
B. No Inadmissible Hearsay Was Admitted Into Evidence
As noted, ante, the court ruled that portions of the videotaped interviews contained inadmissible hearsay and struck those portions from the evidence. The court ruling and admonitions were clear and unambiguous.
Moreover, the jury was instructed under CALCRIM Nos. 104 and 222 that it was to disregard evidence the court ordered stricken from the evidence. A jury is presumed to follow the instructions it is given. (People v. Prince (2007) 40 Cal.4th 1179, 1295.)
Thus, contrary to Gomez's assertion that the court erred by "admitting the hearsay out of statements" of Victim 1 and 2, the court ordered the hearsay statements stricken from the evidence and not to be considered as evidence.
C. The Procedure Adopted by the Court Was Proper
Defense counsel asserts the procedure ordered by the court, allowing defense counsel to object to inadmissible portions of the videotapes, and thereafter the court ruling on the objections, violated his right to due process and unduly prejudiced his defense. This contention is unavailing.
" '[D]ue process is flexible and calls for such procedural protections as the particular situation demands.' " (Matthews v. Eldridge (1976) 424 U.S. 319, 334.) " 'The fundamental requisite of due process of law is the opportunity to be heard.' " (Goldberg v. Kelly (1970) 397 U.S. 254, 267.)
Here, the court was placed in an untenable situation given defense counsel's late objection to portions of the videotaped interviews. Defense counsel admitted that she had access to the videotapes before trial, and if counsel had reviewed the videotapes before trial and made a timely objection, they could have been redacted.
However, because defense counsel did not object until the videos were actually playing, the court took the most reasonable course open to it, allowing counsel to object to portions she thought inadmissible, stopping the videotape, ruling on the objection, and striking any inadmissible portions. Give the lateness of the objection, Gomez was not entitled to have the trial stopped while the videotapes were sent out to be edited. Further, Gomez did not suffer undue prejudice as the court instructed the jury, both orally at the time it struck the inadmissible portions, and in its written instructions, to disregard the stricken testimony.
D. There Was No Improper Reliance on Transcripts/Failure To Provide Transcripts
Gomez also contends the court improperly ordered the jury to rely on redacted transcripts of the videotapes, and then erred by failing to provide the jury with the transcripts. We reject these contentions.
First, the court did not order the jury to rely upon the transcripts. Rather, as detailed, ante, the court only told the jury the transcripts would be available, if needed, during deliberations.
Second, there is no evidence that the court refused to make the transcripts available. The court specified it would make them available if the jury wished to review them. The record reflects that during deliberations the jury never requested the transcripts or the videotapes themselves. Thus, there is no merit to this claim of error.
III. ADMISSION OF SECTION 1108 EVIDENCE
Gomez asserts the court erred in admitting evidence of prior acts of molestation under Evidence Code section 1108 as the incidents were remote and unduly prejudicial. Gomez also asserts admitting evidence of these acts under Evidence Code section 1108 violated his right to due process and equal protection. These contentions are unavailing.
A. Background
The prosecution filed a pretrial motion seeking to admit evidence of Gomez's uncharged molestations of three girls. The uncharged acts included his sexual molestation of his two stepdaughters (described, ante) and the molestation of his adopted daughter when she was 14. The defense opposed admission of the evidence.
During argument on the motion, the prosecutor asserted the evidence should be admitted because of its close similarity to the charged crimes. The prosecution also argued the evidence was admissible under Evidence Code section 1101, subdivision (b), to show intent.
Defense counsel argued that because the acts occurred 25 to 30 years ago they were too remote to be admissible and would be unduly prejudicial.
The court ruled that proposed evidence of past acts of digital penetration (alleged by M.) would be inadmissible because that was not an act alleged in the current case. The court ruled the remainder of the acts were admissible. The court found that although the acts were 25 years old, they were similar to the charged crimes and thus highly probative. Ultimately, the court found the probative value of the evidence outweighed any prejudice.
Thereafter, defense counsel asked the court to revisit its ruling as to any molestations that occurred after the girls were 14. The court agreed to exclude any alleged molestations that occurred when the girls were over the age of 14.
At trial, M. and R. testified as described, ante.
B. Analysis
1. Evidence Code Section 1108 is constitutional
Gomez contends the admission of his prior sexual offenses against M. and R. as propensity evidence pursuant to Evidence Code section 1108 violated his right to due process and equal protection. However, as Gomez acknowledges, his due process argument has been considered and rejected by the California Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903, 922, and we are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Moreover, in People v. Fitch (1997) 55 Cal.App.4th 172, 184-185, the Court of Appeal upheld Evidence Code section 1108 against an equal protection challenge. The Fitch court first held that Evidence Code section 1108 does not infringe upon the constitutional rights to due process, fair trial, and conviction only upon proof beyond a reasonable doubt. The court then concluded that an equal protection challenge to a criminal statute which, like Evidence Code section section 1108, "creates two classifications of accused or convicted defendants, without implicating such constitutional rights, is subject to a rational-basis analysis." (Fitch, supra, at p. 184, citing Estelle v. Dorrough (1975) 420 U.S. 534, 537-538 [95 S.Ct. 1173].) The Fitch court concluded that Evidence Code section 1108 easily withstood "this relaxed scrutiny." "The Legislature determined that the nature of sex offenses, both their seriousness and their secretive commission which results in trials that are primarily credibility contests, justified the admission of relevant evidence of a defendant's commission of other sex offenses. This reasoning provides a rational basis for the law.... In order to adopt a constitutionally sound statute, the Legislature need not extend it to all cases to which it might apply. The Legislature is free to address a problem one step at a time or even to apply the remedy to one area and neglect others." (Fitch, supra, at pp. 184-185; see also People v. Waples (2000) 79 Cal.App.4th 1389, 1394-1395.)
We agree with the Fitch court's analysis and also hold Evidence Code section 1108 does not violate equal protection principles.
2. No abuse of discretion in admission of evidence of prior molestations
Subject to Evidence Code section 352, Evidence Code section 1108 permits a jury to consider prior incidents of sexual misconduct for the purpose of showing a defendant's propensity to commit offenses of the same type and essentially permits such evidence to be used in determining whether the defendant is guilty of a current sexual offense charge. (Evid. Code, § 1108, subd. (a).) Although before Evidence Code section 1108 was enacted, prior bad acts were inadmissible when their sole relevance was to prove a defendant's propensity to engage in criminal conduct (see Evid. Code, § 1101; People v. Falsetta, supra, 21 Cal.4th at pp. 911, 913), its enactment created a statutory exception to the rule against the use of propensity evidence, allowing admission of evidence of other sexual offenses in cases charging such conduct to prove the defendant's disposition to commit the charged offense. (Falsetta, supra, at p. 911.)
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
However, because Evidence Code section 1108 conditions the introduction of uncharged sexual misconduct or offense evidence on whether it is admissible under Evidence Code section 352, any objection to such evidence, as well as any derivative due process assertion, necessarily depends on whether the trial court sufficiently and properly evaluated the proffered evidence under that section. "A careful weighing of prejudice against probative value under [Evidence Code section 352] is essential to protect a defendant's due process right to a fundamentally fair trial. [ Citations.]" (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) As our Supreme Court stated in People v. Falsetta, supra, 21 Cal.4th at page 917, in balancing such Evidence Code section 1108 evidence under Evidence Code section 352, "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... offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]" In evaluating such evidence, the court must determine "whether '[t]he testimony describing defendant's uncharged acts... was no stronger and no more inflammatory than the testimony concerning the charged offenses.' " (People v. Harris (1998) 60 Cal.App.4th 727, 737-738 (Harris).)
On appeal, we review the admission of other acts or crimes evidence under Evidence Code section 1108 for an abuse of the trial court's discretion. (People v. Kipp (1998) 18 Cal.4th 349, 371.) The determination as to whether the probative value of such evidence is substantially outweighed by the possibility of undue consumption of time, unfair prejudice or misleading the jury is "entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.]" (People v. Fitch, supra, 55 Cal.App.4th at p. 183.) "The weighing process under section 352 depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. [Citations.]" (People v. Jennings, supra, 81 Cal.App.4th at p. 1314.) " 'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Bolin (1998) 18 Cal.4th 297, 320.) We will not find that a court abuses its discretion in admitting such other sexual acts evidence unless its ruling " 'falls outside the bounds of reason.' [Citation.]" (Kipp, supra, 18 Cal.4th at p. 371.) In other words, we will only disturb a trial court's ruling under Evidence Code section 352 where the court has exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice. (People v. Frazier (2001) 89 Cal.App.4th 30, 42.)
The court did not abuse its considerable discretion in admitting evidence of Gomez's prior molestations. The prior acts were remarkably similar to the charged acts. The victims were of a similar age, and the molestations involved kissing and touching while in a car driving the girls around. The close similarity between the past and charged acts made the prior acts highly probative of a pattern of conduct on the part of Gomez. (See People v. Waples, supra, 79 Cal.App.4th at p. 1395 [factual similarities between prior and current conduct rendered the prior conduct evidence highly probative such that it outweighed any otherwise prejudicial impact of the evidence]; People v. Soto (1998) 64 Cal.App.4th 966, 991 [same].)
In arguing the court erred in admitting the evidence of past molestations, Gomez relies heavily on the remoteness in time. However, although remoteness is one factor for the court to consider, the similarities in the evidence counterbalanced the remoteness. (People v. Waples, supra, 79 Cal.App.4th at p. 1395 [because of similarities in conduct, past acts 18 to 25 years in past were not too remote in time]; People v. Branch (2001) 91 Cal.App.4th 274, 286-287 [allowing admission of acts occurring 30 years prior].)
Gomez relies on People v. Harris, supra, 60 Cal.App.4th 727, involving a prior act that occurred 23 years before the charged offenses, where the Court of Appral held the court erred in admitting evidence of the prior act. (Id. at p. 739.) However, Harris is easily distinguishable as the prior act there was "totally dissimilar" to the charged acts, and was highly inflammatory. (Id. at p. 740.) Here, by contrast, the prior acts were virtually identical to the charged conduct, making them highly probative, and they were not more inflammatory than the charged acts. Accordingly, the court did not abuse its discretion by admitting evidence of those past acts.
IV. INSTRUCTION UNDER CALCRIM NO. 330
Gomez asserts the court erred in instructing the jury under CALCRIM No. 330 ("Testimony of Child 10 Years of Age or Younger") because (1) there was no witness that testified at trial that was 10 years old or younger; and (2) CALCRIM No. 330 is unconstitutional. We conclude Gomez has forfeited this contention by failing to object to the instruction at trial. Further, even if these contentions have not been forfeited, they lack merit.
A. Background
The court instructed the jury under CALCRIM No. 330 as follows:
"You have heard testimony from a child who is age 10 or younger. As with any other witness, you must decide whether the child gave truthful and accurate testimony. [¶] In evaluating the child's testimony, you should consider all of the factors surrounding that testimony, including the child's age and level of cognitive development. [¶] When you evaluate the child's cognitive development, consider the child's ability to perceive, understand, remember, and communicate. [¶] While a child and an adult witness may behave differently, that difference does not mean that one is any more or less believable than the other. You should not discount or distrust the testimony of a witness just because he or she is a child."
Before reading the instruction to the jury, the court explained that the instruction was directed solely to the videotaped interview of Victim 2, who was under 10 years of age when interviewed:
"[D]o you remember the very first testimony you heard? At that time, one of the children was ten years or younger. That's why I'm reading this instruction. We know now that they're older, sixth grade and eighth grade, but, because of that, that was a witness, even though it was a tape. I'm going to read you this instruction, so don't be confused and get back into a dialogue about how old the kids were and those kinds of things. That's the only reason I'm reading you this instruction."
B. Forfeiture
Failure to object to instructional error forfeits the issue on appeal unless the error affects the defendant's substantial rights. (§ 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.) Gomez did not object to the court's instructing the jury under CALCRIM No. 330. As will be discussed, post, that instruction in no way affected Gomez's substantial rights. Accordingly, this claim of error has been forfeited.
Further, even if Gomez did not forfeit his challenge to the instruction under CALCRIM No. 330, his contentions lack merit.
C. Analysis
1. The court properly instructed the jury under CALCRIM No. 330
Gomez's contention the court erred in instructing the jury because "no witness 10 years or younger testified at trial" is misplaced. As explained, ante, the court explained that that instruction applied only to the videotaped interview of one of the victims, who was nine years old at the time of the interview. Further, as previously stated, the jury is presumed to follow the instructions as given. (People v. Prince, supra, 40 Cal.4th at p. 1295.) Gomez cites no authority for the proposition that the instruction cannot be directed at interviews of molestation victims, which are specifically made admissible at trial by statute. (Evid. Code, § 1360.) Thus, the court did not err in instructing the jury under CALCRIM No. 330.
2. CALCRIM No. 330 is constitutional
As Gomez acknowledges, several Courts of Appeal have rejected the same constitutional challenges Gomez makes here to CALCRIM No. 330's predecessor, CALJIC No. 2.20.1. (People v. McCoy (2005) 133 Cal.App.4th 974, 979-980; People v. Jones (1992) 10 Cal.App.4th 1566, 1572-1574; People v. Gilbert (1992) 5 Cal.App.4th 1372, 1393; People v. Harlan (1990) 222 Cal.App.3d 439, 455-457.)
These cases hold that the instruction does not excessively inflate a child's testimony. It does not impermissibly usurp the jury's role as arbiter of witness credibility. It does not violate the accused's right to confront the child witness. It does not require the jury to draw any particular inferences from the child's cognitive ability, age, and performance as a witness, but to consider these factors in evaluating the testimony. The instruction presupposes the jury must make a credibility determination after considering all factors related to the child's testimony, including his or her demeanor on the stand, without foreclosing independent jury consideration of the child witness's credibility. The instruction tells the jury not to make its credibility determination solely on the basis of the child's age and level of cognitive development but invites the jury to take these and all other factors surrounding the child's testimony into account. It provides sound and rational guidance to the jury for assessing the credibility of a class of witnesses as to whom traditional assumptions may have previously biased the factfinding process. (See People v. McCoy, supra, 133 Cal.App.4th at p. 979 .) " 'Obviously a criminal defendant is entitled to fairness, but just as obviously he or she cannot complain of an instruction the necessary effect of which is to increase the likelihood of a fair result.' [Citation.]" (Ibid.)
We find the collective holdings of these cases persuasive and reject appellant's constitutional challenge to CALCRIM No. 330.
V. INSTRUCTION UNDER CALCRIM NO. 375
Gomez challenges the constitutionality of CALCRIM No. 375, which states the prosecution must prove by a preponderance of the evidence that a defendant committed the uncharged offenses admitted under Evidence Code section 1108. However, as Gomez concedes, this same constitutional challenge to its predecessor, CALJIC No. 2.50.01, which contains substantially similar language, has been rejected by our high court. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016.) Gomez also concedes that we are bound to follow this holding. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) Accordingly, we reject Gomez's constitutional challenge to CALCRIM No. 375.
VI. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Gomez asserts his trial counsel rendered ineffective assistance of counsel by allowing the admission of hearsay statements in the videotaped interviews, and then not ensuring the jury received redacted transcripts of the videotaped interviews of the victims. He again contends the court ordered the jury to rely upon the redacted transcripts instead of the videotapes themselves, and therefore his trial counsel was deficient in failing to ensure the jury received the transcripts. This contention is unavailing.
A. Applicable Law
A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. In People v. Ledesma (1987) 43 Cal.3d 171, 215, our Supreme Court noted: "Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance. [Citations.] Specifically, it entitles him to 'the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.' [Citations.]" (Italics omitted.)
The burden of proving a claim of ineffective assistance of counsel is on Gomez. (People v. Pope (1979) 23 Cal.3d 412, 425.) To establish a prima facie case of ineffective assistance of counsel, a defendant must show (1) counsel performed at a level below an objective standard of reasonableness under prevailing professional norms, and (2) the defense was subjected to prejudice flowing from the deficient performance of counsel. (People v. Hamilton (1988) 45 Cal.3d 351, 377.) Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 694.)
Since failure of either prong is fatal to establishing ineffective assistance of counsel, we need not address both prongs if we find Gomez cannot prevail on one of them. (People v. Cox (1991) 53 Cal.3d 618, 656, quoting Strickland v. Washington, supra, 466 U.S. at p. 697 [" 'In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.' "].)
B. Analysis
Gomez cannot satisfy either prong of the Strickland test. As discussed, ante, counsel did not allow the admission of hearsay statements. Rather, he objected to the hearsay portions of the videotapes, the court sustained the objection as to inadmissible matters, and the court struck those portions from the record. Moreover, as already discussed, the court did not order the jury to rely on the redacted transcripts. Rather, it only advised them that if they wished to review the transcripts during deliberations, they would be available. The jury made no request to view the redacted transcripts or the videotaped interviews.
Further, trial counsel had a valid tactical reason not to request the transcripts be sent to the jury. The jury's reading of the transcripts would only highlight the damning evidence of the victims' description of Gomez's molestation, which was consistent with their trial testimony. Because Gomez cannot show his trial attorney's performance was deficient, we need not address the prejudice prong of the Strickland test.
VII. FAILURE TO GIVE UNANIMITY INSTRUCTION
Gomez asserts the court erred by failing to give a unanimity instruction because the prosecution presented evidence of multiple acts which could have supported a conviction on each count. We reject this contention.
"Defendants in criminal cases have a constitutional right to a unanimous jury verdict." (People v. Napoles (2002) 104 Cal.App.4th 108, 114.) When a defendant is charged with a single criminal act, but the evidence reveals more than one instance of the charged crime, either the prosecution must select the particular act upon which it relies to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) If the prosecution does not make a selection, the court has a sua sponte duty to give an instruction along the lines of CALCRIM No. 3500, stating that the jury must unanimously agree upon the act or acts constituting the crime. (People v. Russo, supra, at p. 1132.) CALCRIM No. 3500 provides in pertinent part: "The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed."
The purpose of the unanimity instruction is to prevent a verdict that results from some jurors believing the defendant committed one act and others believing the defendant committed a different act, without agreement on what conduct constituted the offense. (People v. Washington (1990) 220 Cal.App.3d 912, 915-916.)
Here, the court did not give a unanimity instruction, and the prosecutor did not select a particular act as the crime that was committed for each count. However, "no unanimity instruction is required when the acts alleged are so closely connected as to form part of one continuing transaction or course of criminal conduct. 'The "continuous conduct" rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.' [Citations.]" (People v. Dieguez (2001) 89 Cal.App.4th 266, 275.) Here, Gomez did not assert that one or more of the offenses did not occur. Rather, his sole defense to each and every count was that he did not use force, violence, menace or fear to accomplish the acts, or that the acts amounted to only a simple assault. Thus, no unanimity instruction was required in this case.
Moreover, assuming the court erred in failing to give a unanimity instruction, the error was harmless. Although some courts have recognized a split of authority on the standard of prejudice in failing to give a unanimity instruction (see People v. Smith (2005) 132 Cal.App.4th 1537, 1545), this court applies the standard under Chapman v. California (1967) 386 U.S. 18, 24. Based on the Chapman standard, "[w]here the record proves no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that [the] defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless." (People v. Thompson (1995) 36 Cal.App.4th 843, 853, citing People v. Deletto (1983) 147 Cal.App.3d 458, 473.) If the record shows the jury resolved a basic credibility dispute against the defendant, thus convicting him of any of the various acts shown by the evidence, the failure to give the unanimity instruction is harmless. (People v. Jones (1990) 51 Cal.3d 294, 307.)
Here, the jury resolved any credibility dispute as to the victims' testimony against Gomez and rejected his sole defense attempting to minimize the seriousness of his actions. Accordingly, the jury must have believed beyond a reasonable doubt that if Gomez committed any of the acts, he committed them all.
VII. CUMULATIVE ERROR
Gomez last asserts the combined effect of the claimed errors created prejudice sufficient to reverse the judgment. However, as we have concluded the claims of error lack merit, and that any error was not prejudicial, "there can be no cumulative effect warranting reversal." (People v. Lewis (2001) 25 Cal.4th 610, 635.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J., O'ROURKE, J.