Opinion
A144628
07-10-2018
THE PEOPLE, Plaintiff and Respondent, v. MARCO A. HERNANDEZ, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
The petition for rehearing, filed on July 23, 2018, is denied.
The opinion filed on July 10, 2018, is modified as follows:
On page 42, in the first full paragraph, delete the name "Janet" and replace it with "Jackson" to read:
"In a declaration in opposition to appellant's pretrial motion to exclude DNA evidence, Jackson, DNA unit supervisor stated . . . ."
There is no change in judgment. Dated: __________
/s/_________
Kline, P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. SCN22078)
Appellant Marco A. Hernandez was convicted, following a jury trial, of one count of sexual intercourse and one count of sodomy with a child age 10 or younger, one count of digital penetration of the vagina and one count of digital penetration of the anus with a child age 10 or younger, and one count of lewd and lascivious conduct with a child. On appeal, he contends (1) the trial court improperly denied his counsel's Batson/Wheeler motion challenging the prosecutor's peremptory challenges of three potential jurors; (2) the court abused its discretion and violated his constitutional right to present a defense when it foreclosed his testimony regarding his request for counsel during police questioning; (3) the court improperly admitted appellant's confession, obtained after he had invoked his right to remain silent; (4) the court should have excluded the victim's statements under Evidence Code section 1360 because the prosecutor did not inform the defense of her intention to offer the statements into evidence sufficiently in advance of trial; (5) the court erred when it allowed expert testimony regarding child sexual abuse accommodation syndrome (CSAAS); (6) the court improperly instructed the jury with CALCRIM No. 1193, which addressed the jury's consideration of evidence that had been presented regarding CSAAS, because that instruction contained an incorrect statement of the law; (7) the prosecutor improperly failed to promptly bring to light misstatements by her witnesses; and (8) the cumulative effect of the errors requires reversal. For the reasons discussed in this opinion, we shall affirm the judgment.
Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.
In an accompanying petition for writ of habeas corpus (Case No. A149894), appellant raises additional contentions, primarily related to the prosecution's (1) alleged presentation of false and misleading evidence and (2) alleged errors under Brady v. Maryland (1963) 373 U.S. 83. In a separate order, we deny the habeas petition.
PROCEDURAL BACKGROUND
Appellant was charged by information with nine counts of sexual misconduct against his stepdaughter Judith B., including one count of sexual intercourse with a child age 10 or younger (Pen. Code, § 288.7, subd. (a)—count I); one count of sodomy with a child age 10 or younger (§ 288.7, subd. (a)—count III); one count of sexual digital penetration of the vagina of a child age 10 or younger (§ 288.7, subd. (b)—count V); one count of sexual digital penetration of the anus of a child age 10 or younger (§ 288.7, subd. (b)—count VII); and five counts of lewd acts upon a child under age 14 (§ 288, subd. (a)—counts II [touching victim's vaginal area with penis], IV [touching victim's buttocks with penis], VI [touching victim's vaginal area with fingers], VIII [touching victim's buttocks with fingers], & IX [kissing victim's mouth and inserting tongue]). All acts were alleged to have occurred between July 1 and December 19, 2011.
All further statutory references are to the Penal Code unless otherwise indicated.
An allegation of substantial sexual conduct (§ 1203.066, subd.(a)(8)) as to counts I, III, V, and VII was subsequently dismissed.
On February 4, 2015, a jury found appellant guilty of counts I, III, V, VII, and IX.
On March 5, 2015, the court sentenced appellant to a total term of 58 years to life in state prison.
On March 9, 2015, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Prosecution Case
Silvia T., mother of Judith B., testified that appellant is her former husband. They married in 2008, and have a son together, A.H., who was born in 2008. They had been married for about six months when Judith, who had been living in Guatemala for two years, joined them in San Francisco. Silvia and appellant separated in November 2010. After they separated, appellant sometimes watched Judith and A.H. on Fridays while Silvia taught a class at her church. The children also stayed overnight with him on several occasions.
In late 2011, Silvia considered reconciling with appellant. During that period, Judith spent a Sunday night alone with appellant. Judith was not obeying Silvia, ignoring everything she said, and appellant suggested that Judith stay with him because "he was going to see that her behavior was going to be better." When Silvia told Judith that she was going to spend the night with appellant, Judith responded, " 'It's okay. I don't want to, but that's okay.' " The next day about noon, Silvia picked Judith up from appellant's house, where his father was watching her.
On cross-examination, Silvia said the problematic behavior included Judith lying "a lot."
Later that afternoon, Silvia received a text message from appellant, which said, " 'Did Judith tell you something?' " She thought the text "was very strange, very unusual." Silvia therefore asked Judith if there was something she had to say, that Silvia needed to know. At first, Judith did not want to say anything and claimed nothing had happened, but Silvia insisted. Eventually, after about 40 minutes of Silvia telling Judith to trust her and that she was there to help her, Judith said, " 'Okay. I'm going to tell you something, but you're not going to like what I'm going to tell you.' "
Judith then said, " 'He comes, he touches my private parts and he puts his private parts in my private parts.' " She pointed "to where she does pee-pee." She said it happened when they would go to sleep. Judith also said that appellant would pull down her panties, and he would take off his own underwear; she also said that she would remove her clothes and he would remove his. She would try to pull her panties back up, but he was too strong and would take her panties off completely. She said "she didn't like it" and "[i]t would hurt her a lot" because "he would put his part in her part." She described "his part" as "where he pees." She also said that he used his hand to "touch her parts," which also caused her pain. She said that appellant used his hands to pull down her panties and touch her private parts, where she goes pee-pee.
Silvia had Judith demonstrate what appellant did, using a bear pillow. Judith turned the bear around and pulled it toward her. She said that appellant's "part would go into her private parts in the back when he would push and pull her towards him." When saying "back" parts, Judith indicated her anus. The position Judith demonstrated "most impressed" Silvia "[b]ecause that's what he would do with me." Judith also said that it would hurt because the part where he pees was too hard. Silvia had never discussed erections with Judith before. The only places she remembered Judith saying appellant put his private part was in her anus and where she goes pee-pee.
Silvia asked Judith when the abuse had started, and Judith said the first time was when appellant lived in the house where there was a little dog. Silvia testified that appellant had lived in San Francisco with a little dog starting in around June 2011. When she asked how many times it had happened, Judith said three times. Judith said it had never happened while appellant and Silvia were living together. When she asked why Judith had not told her about this earlier, Judith told her it was because Silvia "was going to hit her" and "hit him." She also said appellant "had told her that she didn't want to see him sad." He said, " 'You don't want that to happen, right?' " And Judith said, " 'Yes, I don't want that to happen. I don't want you to be sad.' " Appellant also said that if she told Silvia, Silvia would not believe her.
On cross-examination, Silvia acknowledged that because Judith had lied to her in the past, she initially had her "doubts" about whether Judith was telling the truth when she said appellant had put his private part inside her. That was why she asked Judith about it several times.
This conversation with Judith lasted around 45 minutes. When Judith was describing what appellant did to her, she seemed sad, but "at the same time she felt very comfortable with telling me this. [¶] And she was very sure that this was not going to occur again, because she told me about it." Afterwards, Silvia "felt pretty bad," and like she needed support. She was in a state of shock and was not sure what to do. So she called her pastor. She did not call the police because she wanted to be sure that she was not misinterpreting what her daughter was saying and because she needed support.
Silvia met with her pastor that same day in his office. Appellant was also at the meeting, where she described what Judith had said about what he had done to her. The next day, after Silvia and Judith met with the pastor's wife, they called the police.
Silvia acknowledged that Child Protective Services had removed Judith and A.H. from her home in February 2014, after she hit Judith with a cloth belt and left the children unsupervised for two hours in the morning while she was at work. Silvia also acknowledged that Judith had told her teacher that Silvia had hit her with a hairbrush and a leather belt.
At trial Judith testified that Silvia sometimes punished her with a cloth belt, but not with a leather belt or a hairbrush.
Juana Rosa Marroquin de Campos, the pastor's wife, testified that on December 20, 2011, at the suggestion of her husband, she met with Silvia at the church. She then met with both Silvia and Judith. Silvia told Judith to tell Campos " 'everything you told me.' " Judith seemed nervous and initially did not want to speak. But she then told Campos that she had spent the night with her stepfather. Judith said that they were in appellant's bedroom when he first took off his own clothes and then removed her panties. He also told her to put cream on her entire body, including "in her private parts and in her buttocks." He then told her to turn around and not watch TV. When she continued to watch, he hit her on her legs and knee. While Judith was trying to look at the television, appellant was inserting his finger inside her buttocks. Judith told Campos that after appellant turned her around, he put his "pee-pee" first "in the back between her buttocks, and then in the front in between her legs." Because he "would perform this very strongly," she told him "that she was feeling a lot of pain and to please stop. [¶] But he didn't want to stop. He kept on going and suddenly he stopped."
On cross-examination, Campos clarified that Judith was speaking generally when she said that appellant would hit her with either his hand or a leather belt when she would stay at his house and did not obey him when he told her not to watch TV. She was not speaking specifically about what had happened two days earlier.
Judith told Campos the abuse had been going on for a long time, "[e]ver since she started staying at his house when her mother would go to work." But she only specifically talked about the abuse that had occurred the night before. Judith said appellant said that if she told her mother, her mother would hit her and also hit appellant. He also "promise[d] this is going to be the last time." Judith said that while appellant had his pee-pee between her legs, she asked him to stop. But he said "that this would be the last time he would do this. [¶] But since this had already occurred several times before, because he would be constantly saying it would be the last time." Judith said she had told her mother about the abuse the day before because Silvia had asked her several times about the phone call she received from appellant. She also said she told her mother about it because "she felt she was being lied to by [appellant], because he would continually say this would be the last time and that never happened."
Campos testified that she asked Judith to demonstrate how appellant would position her during the molestation. Judith went up to Campos, turned her back toward Campos, and said appellant would grab her arms while inserting his pee-pee in the middle of her buttocks.
After the meeting with Silvia and Judith, Campos reported the incident to police.
Cameron Coulter, a child welfare worker for the San Francisco County Human Services Agency, testified that he met briefly with Silvia and Judith in their apartment on the evening of December 20, 2011. Coulter determined there were grounds for Judith to be interviewed by a trained forensic interviewer at the Child and Adolescent Support Advocacy and Resource Center (CASARC) at San Francisco General Hospital. He therefore arranged an interview at CASARC for the following morning. He also instructed Silvia to keep all of the clothing Judith had been wearing at the time of the alleged abuse, unwashed, in a big bag.
Gloria Samayoa, a forensic social worker and coordinator of multidisciplinary interviews at CASARC, testified that she interviewed Judith on December 21, 2011, at which time Judith described the sexual abuse that had occurred, in part by answering questions, but also by writing words, drawing pictures, and circling body parts on a diagram of a body. She indicated that appellant had taken down her underwear and put his private part, i.e., " 'Where you go pee-pee from' " or his " 'tilin' " in her front part and her butt. She also indicated that he touched her with his finger and his mouth. She indicated through a picture that appellant was happy and she was sad. She explained that appellant had said "he wasn't going to do it again, because he felt bad. [¶] But then she went on to say, but he continued to do it, and he was happy." She also wrote " 'me' " in Spanish and drew an arrow from that word to the picture of a sad face. Judith also told Samayoa that appellant raised her leg during the abuse. The interview, which was videotaped, was played for the jury at trial.
After the interview with Samayoa, Judith was examined by Dr. Tonya Chaffee, a clinical professor at the University of California San Francisco and the medical director of CASARC. Dr. Chaffee testified that the vagina heals "very well, very quickly," sometimes within five hours after an injury and that a girl's hymen can remain intact after intercourse. In Judith's case, the findings from the examination of her vagina were normal; she did have a discharge, but that can be normal too. For a child of Judith's age, it was normal to have no injury when there were allegations of digital or penal penetration of the vagina.
Dr. Chaffee also performed a rectal exam because Judith had complained of pain in the rectal area. Her buttocks were within normal limits. However, the "perianal skin and anal verge folds, which are right before you go deep inside the rectum, were not normal. There was a yellow-greenish discharge" that was "dripping out" of the rectum, which "raised a lot of red flags" for Dr. Chaffee. It is very unusual to have any kind of rectal discharge in a child, and there are "very few explanations for why she could have that, without ruling out sexual abuse." Such a discharge could be caused by a sexually transmitted disease, by an injury that is healing, by ejaculate causing irritation, or by old ejaculate her body was reacting to. The discharge could also have been caused by a reaction to lotion or cream inside her rectum, although she did not "believe a seven-year-old would be applying lotions inside the rectum." Dr. Chaffee had only seen this type of discharge in men who were sexually active and engaged in anal sex. In Dr. Chaffee's opinion, the yellowish-greenish discharge from Judith's rectum was "very suspicious" with respect to sexual abuse. For that reason, her conclusion in this case was that the anal-genital findings were abnormal and that " '[s]exual abuse is highly suspected.' " Her findings were also consistent with Judith's report of pain in her anal area.
In this case, Judith tested negative for a sexually transmitted disease.
According to Dr. Chaffee, even if there were no claim of abuse leading to the examination, with symptoms of rectal pain and findings of a greenish discharge, "we would be suspecting abuse, obviously, and question the child."
Dr. Chaffee testified that, like the vagina, the anal cavity can heal quickly, within five hours. In addition, while anal dilation can be suspicious for recent penetration, the anus can return to its normal shape right away, and evidence of penetration may be gone within a day or so. Dr. Chaffee did not see any anal dilation in this case.
Judith, who was 10 years old at the time of trial, testified that whenever she spent the night at appellant's house, she slept in his bedroom, in his bed. Appellant's younger brother would also sleep in the bed.
Judith testified that the last time she stayed at appellant's house, he undressed himself and undressed her. He then put his "tilin," i.e., his penis, in her buttocks. When asked how that felt, Judith testified that "[i]t felt like terror" because "I didn't like it and . . . and I also know that that's not good. That's one of the rules . . . ." They were in appellant's bed at the time. She was lying on her side and appellant was behind her, hugging her. She was unable to move because appellant was holding onto her. It upset her and hurt her a lot when appellant put his penis in her bottom, but she did not tell him it hurt.
That night, appellant also used his finger to touch the front part of her body where she goes pee. He touched her on the inside, which hurt and felt "[v]ery ugly." She did not tell appellant that it hurt. She did not remember whether appellant put his penis in anything other than her bottom that night. Judith testified that her brother, A.H., was also in the bed, asleep. Appellant told her that she should not tell her mother about what he was doing. Judith did not like appellant doing this to her because "he did not follow the rules," and she knew that her mother would not like it for the same reason. Judith knew about the rules, which are "not to hit children and not to touch the private parts of the children."
Judith testified that appellant had touched her before that night. It happened when her mother had to work and did not have anyone else to leave the children with. She therefore left them with appellant, who was living at his parents' house. The first time, they were in bed and appellant pulled down Judith's underwear and pants. He then stuck his penis inside her buttocks. This happened on several occasions. Appellant would only touch her bottom with his penis, but would also touch her front part with his finger, always using his right index finger. When his penis was in her bottom, it was hard. She did not remember how old she was when this happened or exactly how many times because it was a long time ago. Appellant also asked her "[t]o look under the blankets, to look for his private parts. And then I should kiss his private parts." But she refused. Judith remembered appellant's finger moving up and down when he put it inside her, but did not remember how his body moved when he put his penis inside.
On being shown the transcript of her CARSAC interview with Samayoa, to refresh her recollection, Judith testified that the abuse started when she was seven years old, that appellant had kissed her and put his tongue in her mouth, that he had also touched her front private parts with his penis, and that he had put his finger in her anus.
Appellant twice promised that he would stop touching Judith in this way. When he would then do it again, she asked him if he remembered the promise he had made, and he said yes and "that he would never do it again," but it would happen again. Appellant also told her not to tell her mother because her mother would hit him. Judith wanted to tell her mother but she believed appellant when he said that her mother would hit him. The reason she believed him was because "when my brother and I do not behave or do not obey my mother, she punishes us." When her mother first asked her what had happened, Judith did not want to tell her because appellant had said, "Don't tell her, don't tell her" several times.
Judith had never seen appellant touch her mother's private parts with his penis or finger.
Dr. Anthony Urquiza, a licensed clinical psychologist and the director of a child abuse treatment program within the Department of Pediatrics at the University of California Davis, testified as an expert in child sexual abuse accommodation syndrome (CSAAS) and child cognitive development. Dr. Urquiza described the five components of CSAAS, which include secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and retraction or recantation, and discussed what they involve. Dr. Urquiza had not reviewed any police reports, transcripts, or other documents related to the present case. Nor had he interviewed the alleged victim.
San Francisco Police Sergeant Liza Tiffe testified that she was assigned to investigate the case involving appellant and Judith on December 21, 2011. On June 7, 2012, Tiffe obtained a court order to collect appellant's DNA. On June 11, as part of her investigation, Tiffe and another investigator, Inspector Tony Flores, met with appellant in a law enforcement interview room, both to interview him and to collect his DNA. Initially, in a recorded interview, appellant denied sexually abusing Judith. However, in a second interview after his DNA sample was collected, appellant admitted rubbing his penis between her buttocks and possibly inserting it into her anus. Both recorded interviews were played for the jury at trial.
Inspector Flores testified similarly regarding the interviews with appellant.
Mignon Dunbar, a criminalist in the San Francisco Police Department crime lab, testified that she performed a DNA analysis in this case on vaginal and rectal swabs from a sexual assault kit, as well as on "two oral reference samples," i.e., cuttings of Judith's underwear. The vaginal and rectal swabs from the sexual assault kit were both negative for semen. The underwear, however, tested presumptively positive for semen.
After cutting the underwear sample into two pieces, Dunbar performed a DNA analysis on each piece. On the first piece (item 1C-1/1 (2) SP), she found a mixture of DNA, including a major donor and a minor "sperm fraction" donor. In her analysis of this sample, Judith was the major donor and, "assuming one minor male donor, [appellant] is included as a possible contributor to the minor male DNA profile detected in the sperm fraction of the underwear cutting . . . ." In her analysis, "[t]here was no indication of a second minor male individual." Dunbar concluded that "the probability that a random, unrelated individual, by chance, would possess the same DNA profile as that of the minor contributor detected in the sperm fraction of the underwear cutting is approximately one in . . . 3,000 for California Hispanics . . . ."
Regarding the second underwear cutting (item 1C-3/3 (2) SP), Judith was a possible major donor and there was a minor male donor in the sperm fraction of the sample. Appellant was included as a possible contributor to the minor male sample. There was no indication of a second minor contributor in the sample because there were no other DNA types present. Dunbar concluded that "the probability that a random unrelated individual by chance would possess the same DNA profile as that of the minor contributor detected in the sperm fraction of the underwear cutting . . . is approximately one in . . . 278,000 for California Hispanic[s]."
Apparently due to the small amount of material to work with, Dunbar performed two separate CODIS (Combined DNA Index System) searches for the second underwear cutting (item 1C-3/3 (2) SP), with two separate, alternative profiles. The first search produced five possible hits, but ultimately none of them were matches. The second search returned 28 possible hits. Dunbar eventually ruled out all possible candidate matches except for appellant. There was a second candidate, later described as candidate 15, who shared some alleles with appellant, but Dunbar ultimately excluded him as a possible contributor because there were alleles that excluded him when comparing his profile to appellant's reference sample.
The parties stipulated as follows regarding this second search related to item 1C-3/3 (2) SP: "[Appellant's] profile was a candidate hit, along with others, after request number two submitted by the crime lab was searched in CODIS."
Eleanor Salmon, a DNA technical leader and supervisor at the San Francisco Police Department Crime Laboratory, testified that she was the technical reviewer for the DNA report Dunbar generated in this case. In reviewing the results, Salmon disagreed with Dunbar's conclusion that one of the possible DNA contributors to the tested sample, candidate 15, could be excluded as a contributor to the sample. Salmon did not believe that candidate 15 could be excluded. She therefore brought that sample to the CODIS administrator and alternate to ask if there was something she did not understand about the solved profiles versus unsolved profiles. Nonetheless, Salmon did not have any criticism regarding Dunbar's interpretation. She also concluded that Dunbar followed all of the lab's technical procedures, although she could not comment on whether Dunbar followed procedures in her CODIS upload of the underwear sample, since Salmon was fairly new to the CODIS operation, and therefore did not perform the technical review of the CODIS uploads. That would have been evaluated by the CODIS administrator.
In response to a subsequent question submitted by a juror, Salmon reaffirmed that in her opinion candidate 15 could not be excluded as a contributor to one of the samples Dunbar tested.
David Jackson, who was a supervisor in the Forensic Biology and DNA Unit of the San Francisco Crime Lab, as well as an alternate CODIS administrator, testified as an expert in DNA typing and analysis, technical review, and CODIS administration. He did not perform the technical review in this case, but had recently reviewed the documentation related to Dunbar's CODIS search, for "court purposes." When asked what his opinion would have been, had he done the technical review, Jackson responded that he "would quite honestly have a question about the suitability of this search." He believed that the problem was that the sample would return many potential hits because it was "a partial mixture."
Jackson testified that two CODIS search requests were done in this case. The first search initially produced five felony profiles, but they all were eliminated as non-matches. The second search initially produced 28 profiles, but ultimately returned only two profiles that "would match the assumptions given by Ms. Dunbar."
Defense Case
Marc Scott Taylor, director and president of a private laboratory, testified regarding the DNA evidence. He questioned Dunbar's assumption that there was only one minor donor in the underwear samples, which if wrong, would render the profiles inconclusive. In addition, there were problems due to the small amount of DNA available from the minor donor, which, together with erroneous assumptions on Dunbar's part, led Taylor to recalculate the random match possibility for the two samples as one in 352 California Hispanics (versus one in 3,000 in Dunbar's analysis) for item 1C-1/1 (2) SP, and one in 27,500 California Hispanics (versus one in 278,000 in Dunbar's analysis) for item 1C-3/3 (2) SP. Taylor found there was DNA from an unknown male in item IC-SCNS, Judith's "underwear cutting substrate control, non-sperm fraction," which suggested there was more than one minor contributor.
Richard Leo, a professor of law and psychology, also testified as a defense expert in the area of psychological coercion and police interrogation techniques and Diana Everstine, clinical psychologist testified as an expert in the area of child sexual abuse and child trauma.
Appellant testified in his own behalf. He never raped Judith or touched her inappropriately with his fingers or with his penis. After he and Silvia separated, he babysat Judith five times. A.H. was with them on each occasion, except for the one night Judith stayed with him at his father's house, on December 18, 2011. That night, appellant and Judith slept together in appellant's bed.
Appellant had told the pastor that he had not sexually abused Judith when he met with the pastor and Silvia in December. He told his parents and brothers the same thing. However, when he met with two officers—Flores and Tiffe—in an interview room on June 11, 2012, he told them that he had put his penis in Judith's "butt." He said this because he was afraid and did not think he could trust them. During a recorded interview, the officers told appellant about Judith's accusations and said they had appellant's DNA on Judith's underwear and butt, and that they had his sperm. He was scared because he "didn't know how that was possible it can be on her." At some point, the officers told appellant they had a search warrant to take his DNA. When appellant asked to go to the bathroom, Flores said no, and that he was going to hold appellant down. Appellant was afraid of Flores and feared Flores was going to "punch me in my face, kick me, throw me on the floor."
After the first recorded interview, Flores allowed appellant to go to the bathroom. When he returned to the interview room, appellant signed forms that he understood to be the court order for taking his DNA. As they prepared to take his DNA, the two officers were discussing people who were charged with the crimes appellant was accused of committing and said they ended up in prison, did not get to see their families or kids ever again, and were raped, stabbed, and beaten up. At that moment, appellant became very nervous and afraid of them. When Tiffe took his DNA, she grabbed his mouth hard, which made him very uncomfortable.
Appellant testified that he then told the officers he put his penis in Judith's butt even though he had not done so because he was afraid of them and felt hopeless. He went along with what they asked him, thinking it was okay "since they're making me promises. [¶] They told me they were going to help me." Specifically, Tiffe told him, " 'Maybe we can help you,' " which appellant thought meant "maybe some counseling, somehow to get my freedom." They also said they were willing to talk to a judge and make sure he was not charged in this matter. "So [he] was just trying to avoid all that," and that was why he made the decision to give them a confession. Appellant told the officers that he sexually abused Judith only one time because they had said to him when the recorder was off that they needed something for the judge to look at it: " 'We need at least one incident. So tell us at least one.' " Appellant told the inspectors the story about putting his penis in Judith's butt because "I thought that's what they wanted to hear."
Appellant testified on cross-examination that, after the first interview, as they gathered up their belongings, the officers gave him their business cards. When he asked why they would be giving him their business cards, Flores said that sometimes people might want to call and sometimes might want to make peace. As they were heading out the door, appellant asked them if they spoke Spanish and told them he wanted to make peace. The officers then sat back down and got out the tape recorder. Appellant said on the tape that no threats were made to him because, just before they turned the tape recorder on again, the officers told him he had to say this.
Rebuttal
Inspector Flores testified on rebuttal that when he told appellant that the officers were going to take his DNA, he did not say they were going to hold him down. Appellant was asking about the process and Flores said that the swab would be taken from appellant's mouth and that "it's not like we're going to hold you down." Flores denied that he and Tiffe discussed another case and what it was like in prison while the recorder was off. He also denied telling appellant that he would never see his family again, that he would get beat up in prison, that they could help him by talking to the judge, or that they would help him with the charges or get him out of jail if he spoke.
Sergeant Tiffe also testified on rebuttal. The only statement the officers made about helping appellant was during the first interview, when Flores said they were there to get the truth and to get Judith some help, and Tiffe added something like, " 'And to get you help, also, if you need it.' " Tiffe also denied that the officers said any of the things appellant claimed they had said in the break between the two interviews, including that he had to confess to at least one allegation for the judge or them to help him.
DISCUSSION
I. Batson/Wheeler Claim
Appellant contends the trial court improperly denied his counsel's Batson/Wheeler motion challenging the prosecutor's peremptory challenges of three potential jurors.
A. Trial Court Background
Late in the process of jury voir dire, defense counsel indicated that she wanted to make a motion because of a concern that the prosecution had used peremptory challenges to excuse three African-American prospective jurors. Counsel stated that she believed there were "maybe" five African-Americans in the venire; she had excused one of them and the prosecutor had excused three of them. Counsel did not believe that anything in their answers or demeanor during voir dire suggested they were "anything but quite neutral in this case."
The prosecutor immediately responded, stating that Juror 377940 "rolled her eyes at the time [Juror No. 1] one was talking about their opinions regarding confessions that were more favorable to the prosecution. [¶] Her husband was convicted of a crime; her mom had worked for the Public Defender's Office at one point."
The prosecutor said she had excused Juror 3629623 because "he had very strong opinions about racial profiling, and it might be difficult for him to ignore this. [¶] He also said that he would be fair unless he thought the arresting officers that were doing their interviews were biased. [¶] He also said that law enforcement started at a lower level, in regards to race, with the confession. [¶] He was hesitant when answering if he could weigh other things if the confession was biased. And he had been stopped for no reason."
Initially, the prosecutor confused Juror 3629623 with another African-American juror, excused by the defense. As to that juror, the prosecutor stated that he "was extremely verbose and very opinionated. And the People thought that he would not get along well with his fellow jurors and would be alienating to them. [¶] And it would be hard for people to have a voice . . . . He also talked about the fact DNA was rather new to this whole process, and his concerns about how the DNA testing would be done in this case. [¶] And he had some prior work as a technician in regards to drawing blood and [also] in some capacity in regards to DNA. [¶] But the People were not confident that he would put aside his opinion regarding that and judge solely on the witnesses' testimony in that case."
Defense counsel then pointed out that the prosecutor had confused Juror 3629623, who was a financial consultant, with the African-American juror excused by the defense, who drew blood in his job. Defense counsel also stated that Juror 3629623 had expressed concern about being emotional with child witnesses because he had daughters. Counsel believed that the prosecutor's confusion about which African-American juror was which proved her bias. The prosecutor responded that she had confused the names of the two jurors, and that she would have excused the prospective juror who drew blood if the defense had not done so.
Finally, Juror 3636426 had "stated that she was concerned she would have a hard time being comfortable making a decision. [¶] And it is important that all jurors feel comfortable that they should do it. [¶] And she expressed concerns regarding children. She writes in her thing [juror questionnaire], God willing, she would do her best. But she did express concerns being comfortable making a decision."
The court then addressed the relevant factors regarding whether appellant had made a prima facie showing of discrimination, including whether the defendant and the challenged jurors were members of the same cognizable group, which in this case they were not. As to the number of challenges and whether they were all made by the prosecution, the court found that "at least one African-American juror so far [3706334]" had been challenged by the defense, not the prosecution. Regarding whether the prosecutor had engaged in no more than cursory voir dire, the court found "no discernible difference between the degree of questioning by Ms. Cogan [the prosecutor] of these three African-American jurors, compared with all of her questioning of all of the other jurors." The court found, based on the totality of the circumstances, that the defense had failed to establish a prima facie showing of discrimination.
The court continued, "Even assuming a prima facie showing had been made, the court has allowed both sides to articulate the reasons for the challenge and further finds that the reasons were justified and acceptable to excuse the jurors." The court then observed that Juror 3629623 "stated that he had been pulled over at least six times for racial—and felt it was racial profiling. [¶] He was never cited on any of those occasions and he felt that was racial profiling by law enforcement."
The court then stated that it had observed aspects of Juror 3636426's "body language, including rolling her eyes at the time that another juror was asked about confessions, as well as her . . . statement that her mother had worked at the Public Defender's Office at sometime I believe." When the prosecutor said that the juror the court was describing was Juror 3773940, not Juror 3636426, the court said its notes were getting mixed up and asked the prosecutor to articulate again her reasons for excusing Juror 3636426. The prosecutor then repeated her reasons for excusing Juror 3636426, including the prospective juror's concern that she would have a hard time being comfortable making a decision in this case and that, "God willing, she would do her best to be fair and impartial. She was, you know, apprehensive at different times." The court then stated that it had "observed in her body language that she was, at times, hesitant in her answers that she gave."
The court then asked the prosecutor to reiterate her reasons for excusing Juror 3773940, and the prosecutor said she was the one who rolled her eyes, and the court affirmed that it had observed that. The prosecutor also said that the prospective juror's mother had worked or volunteered at the Public Defender's Office and her husband was convicted of a drug offense.
The court concluded that even "assuming, arguendo, a prima facie case had been established, that there were legitimate reasons to excuse each of these jurors." The court therefore denied the motion.
B. Legal Analysis
We review appellant's Batson/Wheeler contention under well-settled principles, set forth, for example, in People v. Manibusan (2013) 58 Cal.4th 40, 75:
"A three-step procedure applies at trial when a defendant alleges discriminatory use of peremptory challenges. First, the defendant must make a prima facie showing that the prosecution exercised a challenge based on impermissible criteria. Second, if the trial court finds a prima facie case, then the prosecution must offer nondiscriminatory reasons for the challenge. Third, the trial court must determine whether the prosecution's offered justification is credible and whether, in light of all relevant circumstances, the defendant has shown purposeful race discrimination. (People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).) 'The ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the [defendant].' (Id. at pp. 612-613.)" (People v. Manibusan, supra, 58 Cal.4th at p. 75.) "Review of a trial court's denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions." (Lenix, at p. 613.)
"[W]here (1) the trial court has determined that no prima facie case of discrimination exists, (2) the trial court allows or invites the prosecutor to state his or her reasons for excusing the juror for the record, (3) the prosecutor provides nondiscriminatory reasons, and (4) the trial court determines that the prosecutor's nondiscriminatory reasons are genuine, an appellate court should begin its analysis of the trial court's denial of the Batson/Wheeler motion with a review of the first-stage ruling. [Citations.]" (People v. Scott (2015) 61 Cal.4th 363, 391 (Scott).) A reviewing court, however, "may not rely on a prosecutor's statement of reasons to support a trial court's finding that the defendant failed to make out a prima facie case of discrimination. Although a court reviewing a first-stage ruling that no inference of discrimination exists 'may consider apparent reasons for the challenges discernible on the record' as part of its 'consideration of "all relevant circumstances" ' [citation], the fact that the prosecutor volunteered one or more nondiscriminatory reasons for excusing the juror is of no relevance at the first stage." (Id. at p. 390.)
In the present case, the trial court first found that defense counsel had failed to make a prima facie showing of discrimination based on the prosecutor's challenges to the three African-American prospective jurors in question. Only after making this finding did the court address the reasons offered by the prosecutor for excusing the jurors, finding that, even assuming a prima facie showing had been made, the prosecutor had "legitimate reasons to excuse each of these jurors." We will therefore review the totality of the circumstances as they existed when defense counsel made her motion, without consideration of any of the nondiscriminatory reasons the prosecutor articulated for excusing the three prospective jurors, to determine whether substantial evidence supports the court's finding that the defense did not make out a prima facie case of discrimination. (Scott, supra, 61 Cal.4th at pp. 390-391; People v. Garcia (2011) 52 Cal.4th 706, 746.)
"In this first stage of any Wheeler/Batson inquiry, the defendant must show that ' "the totality of the relevant facts gives rise to an inference of discriminatory purpose." ' [Citation.]" (People v. Garcia, supra, 52 Cal.4th at p. 746, quoting Johnson v. California (2005) 545 U.S. 162, 168 ].) Those relevant facts include "the relevant statistics and pattern of the excusals, or other facts, such as whether defendant is also a member of the group excused, the prosecutor engaged in desultory or no questioning of the prospective jurors in question and whether their only commonality is their membership in a cognizable group . . . ." (People v. Neuman (2009) 176 Cal.App.4th 571, 580 (Neuman), fn. omitted.) We also examine "the record for race-neutral grounds upon which the prosecutor might have challenged the prospective jurors in question." (Ibid.)
Here, in finding no prima facie showing of discrimination, the court first noted that appellant and the excused jurors were not members of the same cognizable group; appellant is Hispanic and the three prospective jurors were African-American. This is a valid factor for the court to consider. (See Neuman, supra, 176 Cal.App.4th at p. 581 [fact that defendant was Caucasian and thus not a member of any groups to which challenged jurors belonged supported trial court's finding of no prima facie case].)
Second, the court noted that the defense had exercised a peremptory challenge against at least one African-American juror. (See Lenix, supra, 44 Cal.4th at p. 629.) Although the record here is not completely clear regarding the total number of African-Americans in the venire, defense counsel stated, "I think in the venire, it appears to me that maybe we have five African-American jurors," including one excused by the defense and three excused by the prosecution. Appellant notes that a sixth member of the venire, whom the court described as African-American, was subsequently excused by stipulation because she had indicated she could not be fair and impartial. It is not clear from the record whether the remaining African-American juror—assuming there was in fact only one—served on the jury. (See Neuman, supra, 176 Cal.App.4th at p. 581 [defendant's "failure to make a record below deprives us of any opportunity to know how many members of a cognizable group were prospective jurors at the time of the challenge and how many ended up serving on the jury"].) According to appellant, however, one African-American juror remained on the panel at the time of the motion. (See, e.g., Lenix, supra, 44 Cal.4th at p. 629 ["prosecutor's acceptance of the panel containing a Black juror strongly suggests that race was not a motive in his challenge of" another Black prospective juror].) While it is not possible in this case to fully evaluate "the relevant statistics and pattern of excusals" in determining whether appellant made a prima facie showing of discrimination (Neuman, at p. 580), it does appear that when defense counsel made her Batson/Wheeler motion, only three of at least six African-American prospective jurors in the venire had been excused by the prosecution. (See Lenix, at p. 629.)
Third, the court also examined whether the prosecutor "engaged in desultory or no questioning of the prospective jurors in question" (Neuman, supra, 176 Cal.App.4th at p. 580), and found "no discernible difference between the degree of questioning" by the prosecutor of these three jurors, "compared with all of her questioning of all of the other jurors." Appellant challenges this finding, stating that the prosecutor questioned Juror 3629623 "substantially more than any other juror before excusing him." The jury voir dire record shows that the prosecutor engaged in relatively lengthy questioning of Juror 363623, which consumed some four pages of reporter's transcript.
The record also reflects, however, that the questioning involved follow up on Juror 3629623's answers to the jury questionnaire, in which he had stated that he "may not be able to ignore [his] experience with racial profiling in regards to evidence of interrogation, false confession." Juror 3629623 spent almost a page of reporter's transcript explaining how he had been improperly pulled over by police some six times, apparently based on his race. He further stated that if he heard testimony "to the fact that it feels to me like this confession was either coerced, or there was something along the away that didn't feel appropriate to me, based on what I'm hearing and based on the information, my past experience could be drawn into that, evaluating that confession . . . ." The prosecutor then asked a number of questions about the juror's willingness to follow the law and weigh all of the evidence, even if he thought the confession was "biased." Given Juror 3629623's questionnaire answers, the prosecutor was reasonable in attempting to understand his feelings and his ability to follow the law despite his history, rather than avoiding the issue by not engaging at all or merely engaging in desultory voir dire of the juror. (See Neuman, supra, 176 Cal.App.4th at p. 580.)
In addition to the factors discussed by the court, we may also consider " 'apparent reasons for the challenge discernable on the record' " that "clearly [establish] nondiscriminatory reasons for the [three] challenges and dispel any inference of bias." (People v. Sanchez (2016) 63 Cal.4th 411, 435-436 (Sanchez).)
First, as already noted, Juror 3629623 had stated in his questionnaire that he may not be able to ignore his experience with racial profiling when considering evidence of interrogation, or a false confession. During voir dire, he also described in detail the circumstances of repeatedly being improperly pulled over by police, due to racial profiling. Finally, he expressed concern that if he felt that the confession was coerced or that something else "inappropriate" had happened, his "past experience could be drawn into that, evaluating that confession." In light of these answers, it would not be unreasonable for the prosecutor to be concerned about Juror 3629623's ability to be objective in evaluating the evidence during trial. (See Sanchez, supra, 63 Cal.4th at pp. 436-437, 439.)
Second, as to Juror 3773940, the record shows that her husband had been convicted of a crime, about which the prosecutor asked her on voir dire, and her Mother had volunteered for the San Francisco Public Defender's Office many years earlier.
Third, Juror 3636426 wrote in her juror questionnaire, in response to the question whether she could "be a fair and impartial juror in this case": "God willing, I will do my best. Never served on a jury before." (See, e.g., People v. Rushing (2011) 197 Cal.App.4th 801, 812 ["juror's apparent uncertainty [about ability to be neutral] is a legitimate reason for exercising a peremptory challenge"].) She also wrote that her brother had been charged with a crime. (See People v. Arellano (2016) 245 Cal.App.4th 1139, 1161 [" '[T]he arrest or conviction of a juror's relative provides a legitimate, group-neutral basis for excluding a juror' "]; accord, People v. Garceau (1993) 6 Cal.4th 140, 172.)
For all of these reasons, we conclude substantial evidence supports the court's finding that appellant failed to make a prima facie showing of discrimination. (See Scott, supra, 61 Cal.4th at pp. 390-391; Lenix, supra, 44 Cal.4th at p. 613.)
Having found that substantial evidence supports the court's finding of no prima facie showing of discrimination, that ends our analysis. (See Scott, supra, 61 Cal.4th at p. 391.) Hence, we will not address appellant's request that we engage in comparative juror analysis, given that "such analysis is inappropriate in a first stage case such as this, where we do not evaluate the prosecution's stated reasons for the challenges." (Sanchez, supra, 63 Cal.4th at p. 440.)
II. Issues Related to Appellant's Confession
Appellant contends the court violated his constitutional right to present a defense when it foreclosed appellant's testimony regarding his request for counsel during police questioning. He also contends the court improperly admitted his confession, obtained after he had invoked his right to remain silent.
A. The Police Interviews
On June 11, 2012, while appellant was in jail on unrelated domestic violence charges, Officers Tiffe and Flores met with him regarding the present case, both to interview him and to obtain a DNA sample, for which they had a warrant. After the recorded interview began, at 12:35 p.m., Tiffe read appellant his Miranda rights, and appellant acknowledged that he understood each of his rights. Appellant then agreed to speak with the officers without an attorney present. Throughout the recorded interview, which was played for the jury at trial, appellant denied having ever touched Judith sexually, although he did state that on one occasion, he woke up to feel Judith next to him; "[h]er butt was kind of on my penis. And I think she, she kind of went backwards." He later said it was possible he did something to Judith while he was asleep, without knowing it.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
After appellant answered Flores's question, "Well, is there anything we don't know at this time?" in the negative, and denied that he had accidentally touched Judith sexually, appellant continued, "Because that's it . . . what I already say, that's what happened that night. That's, that's it." Then, just before ending the interview at approximately 3:10 p.m., the officers told appellant they were going to take a DNA sample and explained how it would be done. They then turned off the recorder.
Tiffe testified at trial that after the sample was taken, she gave appellant her contact information in case he wanted to contact her later. Appellant asked why someone would want to contact them, and Flores responded, "To make peace." Appellant then asked if both officers spoke Spanish, to which they responded in the affirmative. As the officers gathered up their things to leave, appellant asked them to wait and said "he wanted to make peace." The officers then sat down, turned the recorder back on, and resumed the interview. The recorder had been off for approximately 14 minutes at that point. At the conclusion of the interview, appellant was to be booked for the crime against Judith. The officers spoke with the law enforcement person with whom they were going to leave appellant because appellant said something that led them to believe he was thinking of committing suicide. At trial, the jury was played a recording of the second interview.
Inspector Flores also testified that in response to appellant's question as to why somebody would want to contact them, he said, "This could be if there were any other further questions or things that he forgot to tell us" and also that "sometimes individuals would call to make peace."
The transcript of the second interview reflects that Flores initially said, "Tell me what it is the peace you want to make." Appellant responded, "The peace I want to make is with myself," and also noted that Tiffe had told him "not just to think about myself, but think about Judith. You know, because she's, she's young. . . . But uh, that night really happened something, you know, because she was, uh, how can I say? She was kind of pushing too much. Like which I'm not saying it's, it's her fault." Appellant then told the officers that he and Judith were asleep, but he woke up and felt like "giving her some love. But like a father and . . . daughter, you know." Appellant then said that he grabbed her and pulled her close to him. He said he did not kiss her or put his finger in her vagina, but "I did put my penis in her butt." One of his arms was underneath her neck and the other one was on her thigh; they were lying side by side. He explained that he wanted to be a good Christian, but even as he heard God telling him to stop, there was also a devil that wanted to see him destroyed. Appellant said "I stopped and that's when I [came]." He then put his penis "[b]ack in Judith's butt. And that's, that's when I, uh, it's my DNA." He then told Judith to go to sleep and he went to sleep.
Appellant denied that his penis went inside of Judith's vagina. He also said that while his penis was in her "butt," she tried to kiss him, but he just kissed her on the cheek. Before she tried to kiss him, she had said, " 'What, what are you doing?' And then I said, 'Did you like? Did you like?' " He said that Judith "kind of liked it" and "started going [back to me] with her butt." Also, while he was rubbing his penis between her buttocks, he had an erection. When asked whether his penis went into her anus when he "went back in" after he ejaculated, appellant said, "I don't remember that. Like I said, maybe I did." Appellant said that he did not clean Judith or himself up afterwards. He said he was like an animal: "You know, when an animal finish eating, they don't worry about wipe themselves out or anything. They just walk away. And that was pretty much what I did."
Appellant told the officers that this was the first and only time anything like this had happened with Judith. He "wasn't really worried" that Judith would tell her mother, "because I mean it was one time, and you know, and I would have thought that Judith would never say anything. And she did, and, and she's right. You know? She, she did the right thing." Appellant said that, if he could, he would apologize to both Judith and Silvia and ask for their forgiveness.
That same day, Tiffe memorialized the officers' off-tape conversation with appellant, which took place between the two recorded interviews, in her chronological report in the case file. In that document, entitled, "San Francisco Police Department Chronological Report of Investigation Activity"—which apparently was not admitted into evidence—Tiffe described what was said during the period between that first and second interviews: "[Appellant] asked to use the restroom and Insp[ector] Flores escorted him to the bathroom. As I was preparing the Biological Evidence Collection materials [appellant] asked what was going to happen. We advised [appellant] that I would retrieve a DNA sample from him and the sample would be compared to the DNA from the VICTIM. We advised him that after the results came back with a match, we would speak with him again. [Appellant] asked if he would be able to get an attorney. I advised him that he can ask for an attorney at any time. I went on to explain to [appellant] that in the absence of a search warrant we would have asked his consent and that he could voluntarily provided [sic] a sample. I gave [appellant] the option of signing the form if he wanted to provide the sample voluntarily and [appellant] signed the form."
The court permitted testimony about what was said in between the two recorded interviews, with the exception of the question and answer about an attorney, a ruling that appellant challenges on appeal. (See pt. II.C., post.)
B. The Alleged Request for Counsel
1. Trial Court Background
Following an Evidence Code section 402 hearing on appellant's motion to suppress his statements to police on the ground that Tiffe and Flores had ignored his invocation of the right to counsel, the court denied the motion. The court summarized Tiffe's testimony that, between the first and second recorded interviews, in response to appellant's question, " 'What will happen?' " she advised him "that his sample would be compared to the DNA from the victim Judith. And depending on the results, she may want to speak to him again. [¶] It was at that point that the [appellant] asked, quote, 'Would I be able to have an attorney?' " to which Tiffe responded, "Yes, you can ask for an attorney at any time[.]' [¶] She testified that she understood at that point that [appellant] was inquiring whether he could have an attorney if the DNA results turned out to be a match and she would need to talk to him again." Both officers "further testified that at no point did [appellant] ever request the immediate presence of an attorney for any portion of the interrogation."
The court found, based on "the objective circumstances, at best, the defendant's statement or question was an ambiguous and clarifying inquiry about a lawyer in the future after the DNA results were compared. [¶] At the time . . . that the statement by [appellant] was made, the objective circumstances were that the interview had ended." The court found that "no reasonable officer would have concluded that the defendant was requesting the immediate presence of counsel at a custodial interrogation that, by all accounts, had ended at the time."
In denying appellant's motion to suppress, the court concluded "that Miranda warnings were properly given; that there was no invocation of Miranda rights at any time; and that there was—and that the statements by [appellant] were voluntary and, therefore, admissible by the preponderance of the evidence."
Subsequently, shortly before opening statements at trial, the court told the parties, "I don't want the defense or the prosecution revisiting my ruling on the confession. I want to be very clear—very clear about this. [¶] I ruled that, as a matter of law, there was a knowing waiver of Miranda rights. [¶] The only thing that the jury will be able to weigh is the voluntariness of the confession. I know it's obvious, but I just want to spell it out, here. Because there was a reference in voir dire to attorneys being present.
"There can be no challenge of the court's ruling that there was a knowing waiver of Miranda rights. So there can be no testimony in that regard as to whether or not there was a knowing waiver. I've ruled there was a knowing waiver. [¶] So in other words, Ms. Schenone [defense counsel], I don't want you getting up and starting talking [sic] about, 'My client's going to come in and testify that he asked for an attorney.' [¶] He's had a whole hearing on that. That was the whole purpose of the [Evidence Code section] 402 hearing. . . ."
In response to a question from defense counsel, the court clarified that "whatever words were spoken about an attorney [are] completely irrelevant now. I've already ruled on that. [¶] . . . . [¶] And I certainly think that whatever words were spoken that would affect the voluntariness of the confessions [are] absolutely relevant. That the jury can hear.
"But whatever words were or were not spoken about asking for an attorney, that is not something I will allow to be put in front of the jury. Because I've already ruled, as a matter of law, based on a very extensive hearing . . . that there was a knowing waiver and there was no invocation of counsel."
After defense counsel said that appellant's statement about counsel "does go directly to voluntariness, though," the court stated, "Voluntariness is whether or not the confession was coerced or whether improper techniques were used, investigative techniques. All of those things . . . are fair game. [¶] I draw the line, though, at any discussion about whether or not he asked for an attorney, because that was extensively ruled upon at the [Evidence Code section] 402 hearing. And that is a matter of law, and I ruled on it."
Later, during trial, the court addressed what it referred to as a defense motion for reconsideration of its prior ruling on the admissibility of evidence regarding whether or not appellant invoked his right to counsel during his conversation with police. Defense counsel told the court that appellant's question to the officers about an attorney "goes directly to the reliability of—and the credibility, if you will, of my client's statement." Counsel continued, "And that's part of what I want to argue is the psychological coercion, if you will, and this area of isolation where you want to have the person alone without any support person—and certainly alone without a lawyer there. [¶] And that's part of the psychological coercion that can lead to a false confession or increase the risk of a false confession." Counsel explained her belief that appellant's question about an attorney was relevant to whether the confession "might be false or is reliable," and whether appellant "might have felt backed into a corner." Counsel concluded that this "doesn't go to necessarily voluntariness as much as it might go to this area of psychological coercion . . . ."
The court responded, inter alia, "Whether or not [appellant] knowingly and voluntarily waived his Miranda rights, and whether or not he invoked his right to counsel do not relate to the issue of coercion. [¶] Neither side has been . . . able to cite any legal authority allowing a jury to hear evidence that relates to a possible invocation of counsel, or disputing a knowing waiver of Miranda rights after those issues have previously been heard and determined by a court . . . ." The court concluded, "Even assuming, arguendo, the issue of alleged statements made relating to invocation of counsel were relevant to coercion, which the court finds they are not, the court would, in any event exercise its discretion to exclude[] such evidence under Evidence Code section 352, since such testimony would surely confuse the jury as to their role, given that it is not for the jury to determine whether there was or was not an invocation of counsel."
During appellant's testimony at trial, in response to a jury question read by the court—" 'If you were afraid of the police, why do you think telling them a story that you now say is a lie would be a good idea?' "—appellant testified, "Well, since they offer me help and I thought, you know they were being truthful. [¶] And of course, I was being afraid to them. And since I asked them one question that I can't say it in front, here in court. [¶] So since I got no way out, I thought they were the only ones that can help me not to be charged and somehow get, you know, back to my house."
The court subsequently noted on the record that it had declined to read the following jury question, over the objection of defense counsel: " 'If you were nervous about speaking to the police, why did you not ask for a lawyer to help you?' "
2. Legal Analysis
"[T]he circumstances surrounding the taking of a confession can be highly relevant to two separate inquiries, one legal and one factual. The manner in which a statement was extracted is, of course, relevant to the purely legal question of its voluntariness, a question most, but not all, States assign to the trial judge alone to resolve. [Citation.] But the physical and psychological environment that yielded the confession can also be of substantial relevance to the ultimate factual issue of the defendant's guilt or innocence. Confessions, even those that have been found to be voluntary, are not conclusive of guilt. And, as with any other part of the prosecutor's case, a confession may be shown to be 'insufficiently corroborated or otherwise . . . unworthy of belief.' [Citation.]" (Crane v. Kentucky (1986) 476 U.S. 683, 688-689 (Crane); accord, People v. Jimenez (1978) 21 Cal.3d 595, 607 ["although the jury in California is not permitted to redetermine the issue of voluntariness, it may consider any evidence of coercion that may be presented by the defendant in order to determine the weight that the confession should be given"], overruled on another ground in People v. Cahill (1993) 5 Cal.4th 478, 510, fn. 17.)
Here, appellant does not argue that the court improperly found that his question to the officers regarding an attorney constituted an invocation of his Fifth Amendment right not to speak to police without an attorney present, or that it was for the jury to determine the voluntariness of the confession. Rather, he contends the court violated his constitutional rights to due process and to present a defense when it found that this evidence was not admissible to challenge the reliability of his confession and the weight the jury should give it. (See People v. Jimenez, supra, 21 Cal.3d 595 at p. 607.)
Regardless of appellant's quibble with the court's discussion of "voluntariness" during the initial hearings on this issue, we conclude the court ultimately addressed the correct questions: whether this evidence was relevant to and probative of the reliability of the confession.
Except as otherwise provided by statute, all relevant evidence is admissible. (Evid. Code, § 350.) " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Under Evidence Code section 352, a trial court may exclude relevant 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."
First, the court was correct that appellant's question about a lawyer was not particularly relevant to whether he felt coerced by Tiffe and Flores and therefore made a false confession. (See Evid. Code, §§ 210, 350; cf. People v. Anderson (2012) 208 Cal.App.4th 851, 880 (Anderson) ["For a defendant's constitutional rights to override the application of ordinary rules of evidence, ' "the proffered evidence must have more than 'slight-relevancy' to the issues presented. [Citation.] . . . [Citation.] The proffered evidence must be of some competent, substantial and significant value" ' "].) The question regarding whether he would "be able to have an attorney" came after the conclusion of the first interview and was a response to Tiffe's comment about returning to interview him after obtaining the results to the DNA testing. In context, as the court found at the conclusion of the Evidence Code section 402 hearing, the question plainly referred to whether he could have an attorney during that future interview. (Cf. People v. Turnage (1975) 45 Cal.App.3d 201, 210 [while "no particular form of words or conduct is necessary to an assertion of" a defendant's Miranda rights, "the attitude of the individual must be such as to show a present lack of willingness to discuss his case with the police"].) Moreover, Tiffe not only answered appellant's question in the affirmative, she emphasized his right to "ask for an attorney at any time."
Hence, the evidence in question would show not only that appellant had not asked for an attorney at the present time, but that Tiffe assured him that he could have an attorney with him not only in that future interview, but at any time he requested one. The evidence would also show that appellant did not then request an attorney during the remainder of the time he was with Tiffe and Flores. Certainly, this exchange about an attorney would not be relevant to showing that appellant felt coerced because the officers kept him isolated without the option of obtaining immediate legal support. If anything, it would be relevant to show the opposite: that appellant did not request an attorney at any point before confessing to police, even though the officers had just told him that he could ask for an attorney at any time. This evidence clearly would not have provided the answer to the question he claims in his briefing "every juror wanted to know, '[i]f the defendant is innocent, why did he previously admit his guilt?' [Citation.]" Thus, the short interaction in which appellant asked whether he could have an attorney with him during a future interview simply would not have assisted appellant in his effort to call into question the reliability of his confession. (See Evid. Code, § 210.)
Second, the court reasonably found that admission of this evidence would likely confuse or mislead the jury under Evidence Code section 352. (See Anderson, supra, 208 Cal.App.4th at p. 880 ["Evidence Code section 352 is part of a trial court's 'traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice' "].) The court had already found that the confession was voluntary and that appellant's question was not an invocation of the right to counsel. Particularly, given its lack of relevance to the question of coercion, the court was justifiably concerned that testimony about getting an attorney "would surely confuse the jury as to their role, given that it is not for the jury to determine whether there was or was not an invocation of counsel."
This case is distinguishable from Crane, supra, 476 U.S. at page 691, cited by appellant, in which the defendant was precluded from introducing any testimony at all "about the environment in which the police secured his confession." The United States Supreme Court explained: "Such evidence was especially relevant in the rather peculiar circumstances of this case. Petitioner's entire defense was that there was no physical evidence to link him to the crime and that, for a variety of reasons, his earlier admission of guilt was not to be believed. To support that defense, he sought to paint a picture of a young, uneducated boy who was kept against his will in a small, windowless room for a protracted period of time until he confessed to every unsolved crime in the county, including the one for which he now stands convicted. We do not, of course, pass on the strength or merits of that defense. We do, however, think it plain that introducing evidence of the physical circumstances that yielded the confession was all but indispensable to any chance of its succeeding. Especially since neither the Supreme Court of Kentucky in its opinion, nor respondent in its argument to this Court, has advanced any rational justification for the wholesale exclusion of this body of potentially exculpatory evidence, the decision below must be reversed." (Crane, at p. 691.)
In this case, on the other hand, there was no blanket exclusion of evidence regarding the circumstances of appellant's confession. The court admitted into evidence the entirety of both interviews of appellant. Defense counsel was permitted to extensively cross-examine Tiffe and Flores about the circumstances surrounding the interviews. Appellant was able to testify about everything that took place and why he felt coerced, with the exception of the question and answer about an attorney. The court also allowed the defense to present expert testimony regarding the use of suggestive investigative techniques, which could result in a false confession. As the court said to counsel during a discussion of this issue, through appellant's testimony and the testimony of the defense expert, the defense was permitted to "present evidence of the circumstances surrounding the confession including the isolation issue that counsel referred to, the length of the interview, the tactics used by the interviewer, such as psychological ploys, use of false evidence, the duration of interviews, breaks, et cetera, et cetera, relating to the circumstances surrounding the confession."
Thus, unlike the defendant in Crane, other than one brief, irrelevant and potentially confusing exchange with police, appellant was not precluded from presenting evidence supporting his claim that he falsely confessed because he felt cornered and isolated during the interviews with Tiffe and Flores. The court's exclusion of appellant's question about an attorney neither violated his constitutional right to present a defense nor constituted an abuse of discretion. (See Anderson, supra, 208 Cal.App.4th at p. 880.)
C. Appellant's Alleged Assertion of His Right to Remain Silent
As already described in part II.A., ante, near the conclusion of the first interview, appellant answered Inspector Flores's question, "Well, is there anything we don't know at this time?" in the negative, and again denied sexually abusing Judith. Appellant then said, "Because that's it . . . what I already say, that's what happened that night. That's, that's it." The officers then told appellant they were going to take a DNA sample and explained how it would be done, before turning off the recorder.
Appellant argues that his statement, "Because that's it . . . what I already say, that's what happened that night. That's, that's it," constituted an invocation of his right to remain silent and that the police therefore violated Miranda, supra, 384 U.S. 436 when they continued to question him thereafter. Appellant acknowledges that his trial counsel "never explicitly argued that appellant, after waiving Miranda, subsequently invoked his right to remain silent." He asserts that, to the extent the claim is therefore forfeited, his counsel was ineffective for failing to raise it below. (See Strickland v. Washington (1984) 466 U.S. 668, 688, 694 (Strickland).)
"To protect the Fifth Amendment privilege against self-incrimination, a person undergoing a custodial interrogation must first be advised of his right to remain silent, to the presence of counsel, and to appointed counsel, if indigent. (Miranda, supra, 384 U.S. [at pp.] 444, 467-473, 478-479.) As long as the suspect knowingly and intelligently waives these rights, the police are free to interrogate him. (Id. at pp. 444, 475, 479.) However, if, at any point in the interview, the suspect invokes his rights, questioning must cease. (Id. at pp. 444-445, 473-474; [citation].) Statements obtained in violation of these rules are inadmissible to prove guilt in a criminal case. ([Id.] at pp. 444, 476-477, 479; [citations].)
"In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect 'must unambiguously' assert his right to silence or counsel. (Davis v. United States (1994) 512 U.S. 452 (Davis), italics added.) It is not enough for a reasonable police officer to understand that the suspect might be invoking his rights. (Ibid.) Faced with an ambiguous or equivocal statement, law enforcement officers are not required under Miranda, . . . either to ask clarifying questions or to cease questioning altogether. (Davis, . . . at pp. 459-462.) Of course, such an approach may disadvantage suspects who, for emotional or intellectual reasons, have difficulty expressing themselves. (Id. at p. 460.) However, a rule requiring a clear invocation of rights from someone who has already received and waived them 'avoid[s] difficulties of proof' (id. at p. 458), and promotes 'effective law enforcement.' (Id. at p. 461.)" (People v. Stitely (2005) 35 Cal.4th 514, 535 (Stitely).)
In the present case, we find that appellant's statement did not unambiguously invoke his right to remain silent. (See Stitely, supra, 35 Cal.4th at p. 535.) In context, his statement was simply a reiteration of his earlier statements that no sexual assault had taken place on the night in question. The officers ended the interview shortly thereafter, likely because they did not believe they would get appellant to change his story, not because, as appellant asserts, they "scrupulously honored appellant's unequivocal assertion of his right to remain silent," only to improperly reinitiate questioning thereafter.
In sum, because there was no invocation of the right to remain silent, counsel's failure to raise the issue in the trial court does not constitute ineffective assistance of counsel. (See Strickland, supra, 466 U.S. at p. 688; Stitely, supra, 35 Cal.4th at p. 535.)
III. Admission of Judith's Statements Pursuant to Evidence Code Section 1360
Appellant contends the court should have excluded Judith's three out of court statements—to Gloria Samayoa of CASARC, her mother Silvia, and the pastor's wife Juana Campos—under Evidence Code section 1360 because the prosecutor did not inform the defense of her intention to offer the statements into evidence sufficiently in advance of trial.
A. Trial Court Background
On October 15, 2014, the parties stipulated that, "for all purposes," the trial was "starting today." The jury, however, was not sworn until December 8; the alternates were sworn the following day, on December 9.
B. Legal Analysis
Evidence Code "[s]ection 1360 creates a limited exception to the hearsay rule in criminal prosecutions for a child's statements describing acts of child abuse or neglect, including statements describing sexual abuse. [Citations.] Section 1360 safeguards the reliability of a child's hearsay statements by requiring that: (1) the court find, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances surrounding the statement(s) provide sufficient indicia of reliability; (2) the child either testifies at the proceedings, or, if the child is unavailable to testify, other evidence corroborates the out-of-court statements; and (3) the proponent of the statement gives notice to the adverse party sufficiently in advance of the proceeding to provide him or her with a fair opportunity to defend against the statement." (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1367 (Roberto V.), fn. omitted.)
Specifically, as relevant here, subdivision (b) of Evidence Code section 1360 requires the proponent of a statement to make "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."
In Roberto V., the appellate court construed the term "proceedings" in subdivision (b) of Evidence Code section 1360 to mean the defendant's trial. (Roberto V., supra, 93 Cal.App.4th at p. 1370.) The court also examined the policies underlying the statute and concluded "that, for purposes of section 1360, trial begins when the jury is sworn. The text of section 1360, subdivision (b) makes clear that the notice requirement was enacted to give a criminal defendant a fair opportunity to prepare his or her defense. Allowing the prosecution to disclose its intent to introduce such evidence after the jury has been sworn, when opening statements and the taking of evidence are imminent, would undermine this policy. As a practical matter, the parties need to know what evidence may be offered in order to make opening statements and to prepare for the examination of witnesses." (Id. at p. 1372.) We review a trial court's admission of evidence pursuant to Evidence Code section 1360 for an abuse of discretion. (Roberto V., at p. 1367.)
In the present case, appellant did not object on this ground in the trial court. He has therefore forfeited the issue on appeal. (See, e.g., People v. Seijas (2005) 36 Cal.4th 291, 301.) Appellant argues, however, that if the issue is forfeited, defense counsel was ineffective for failing to raise the issue below. (See Strickland, supra, 466 U.S. at pp. 688, 694.)
Appellant is correct that the prosecutor did not file the motion seeking admission of Judith's statements to Samayoa, Silvia, and Campos until the day after the parties had stipulated that trial had begun for all purposes. The prosecutor did, however, file the motion almost two months before the jury was sworn. Despite the expansive language of the stipulation, for purposes of notice under section 1360, subdivision (b), the prosecution was required to disclose its intent to present such evidence before the jury was sworn, to give appellant a fair opportunity to prepare his defense. (See Roberto V., supra, 93 Cal.App.4th at p. 1372.) Accordingly, because the prosecutor's motion was filed well before the jury was sworn, which gave the defense adequate time to prepare to address those statements at trial, the court's grant of that motion was not an abuse of discretion. (See id. at p. 1367; Evid. Code, § 1360, subd. (b).) Consequently, appellant cannot show that counsel was ineffective for failing to object to the admission of the challenged evidence on the ground that it violated the notice requirement of Evidence Code section 1360, subdivision (b). (See Strickland, supra, 466 U.S. at p. 688.)
IV. Admission of Expert Testimony Regarding CSAAS
Appellant contends the court erred when it allowed expert testimony over defense counsel's objection regarding CSAAS, particularly regarding a victim's delayed disclosure. According to appellant, the testimony was unnecessary because the jury would naturally understand that many people "will not immediately, and may never, report acts of violence that are perpetrated against [them] because of fear of some kind of reprisal."
"Although inadmissible to prove that a molestation occurred, CSAAS testimony has been held admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation. [Citations.] [¶] Identifying a 'myth' or 'misconception' has not been interpreted as requiring the prosecution to expressly state on the record the evidence which is inconsistent with the finding of molestation. It is sufficient if the victim's credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation. [Citations.]" (People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745.)
"[T]he decision of a trial court to admit expert testimony 'will not be disturbed on appeal unless a manifest abuse of discretion is shown.' [Citation.]" (People v. McAlpin (1991) 53 Cal.3d 1289, 1299 (McAlpin).)
Here, the trial court reasonably found that the CSAAS testimony was necessary to assist the jury in understanding issues related to, inter alia, Judith's delay in disclosing the sexual abuse. (See People v. Patino, supra, 26 Cal.App.4th at pp. 1744-1745.) Moreover, Dr. Urquiza made clear on cross-examination that his testimony was "purely educational" and that he had neither interviewed Judith nor read any police reports, transcripts, or other documents related to this case. The court did not abuse its discretion when it permitted Dr. Urquiza to testify regarding CSAAS generally "for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation." (Id. at p. 1744; see McAlpin, supra, 53 Cal.3d at p. 1299.)
V. CALCRIM No. 1193
Appellant contends the court improperly instructed the jury with CALCRIM No. 1193, which addressed the jury's consideration of the evidence that had been presented regarding CSAAS, because that instruction contained an incorrect statement of the law. According to appellant, the part of the instruction providing that the CSAAS evidence could be considered in evaluating Judith's believability incorrectly stated the law on this issue and violated his due process rights.
The trial court instructed the jury with CALCRIM No. 1193, as follows: "You have heard testimony from Dr. Anthony Urquiza and Dr. Diana Everstine [the defense expert] regarding child sexual abuse accommodation syndrome. [¶] Dr. Anthony Urquiza's and Dr. Diana Everstine's testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against him. [¶] You may consider this evidence only in deciding whether or not Judith B.'s conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony." (Italics added.)
We review the legal adequacy of an instruction de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210.)
Appellant acknowledges that he did not object to this instruction, but asserts that we should nonetheless address it because the instructional error affected his substantial rights. (See People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.) According to appellant, the language in CALCRIM No. 1193 instructing the jury that it could use the CSAAS evidence "in evaluating the believability of [Judith's] testimony" permitted the jury to rely on Dr. Urquiza's testimony to support the allegations against appellant and find him guilty of molesting Judith.
" 'Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' [Citation.] But that rule does not apply when . . . the trial court gives an instruction that is an incorrect statement of the law. [Citation.]" (People v. Hudson, supra, 38 Cal.4th at pp. 1011-1012; see also People v. Young (2005) 34 Cal.4th 1149, 1211 [no forfeiture for failing to object to erroneous instruction if error affected defendant's substantial rights].) Here, even assuming appellant's claim is cognizable on appeal, we find it to be without merit because, as discussed below, CALCRIM No. 1193 correctly states the law and the instruction did not violate appellant's due process rights.
First, CALCRIM No. 1193 expressly did not permit the jury to use Dr. Urquiza's testimony to find appellant guilty. The instruction specifically told the jury that it could not use either expert's "testimony about child sexual abuse accommodation syndrome [as] evidence that the defendant committed any of the crimes charged against him." (See CALCRIM No. 1193.) Moreover, our Supreme Court has stated that CSAAS expert testimony "is admissible to rehabilitate [a child] witness's credibility when the defendant suggests that the child's conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation. [Citations.]" (McAlpin, supra, 53 Cal.3d at pp. 1300-1301; accord, People v. Bowker (1988) 203 Cal.App.3d 385, 394 [CSAAS "evidence is admissible solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested"].) Because the challenged CSAAS evidence in this case was admissible to rehabilitate Judith's credibility, and the instruction made clear that it could not be used as evidence that appellant had "committed any of the crimes charged against him," the court did not err in instructing the jury that it could use that evidence "in evaluating the believability of her testimony." (See ibid.; CALCRIM No. 1193.)
For these reasons, we also reject appellant's assertion that the problems with CALCRIM No. 1193 were magnified by the court's instruction with CALCRIM No. 226, which provided that, in evaluating a witness's testimony, jurors may "consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony." (Italics added.)
VI. The Prosecutor's Alleged Presentation of False or Misleading Evidence
Appellant contends the prosecutor failed to promptly bring to light misstatements by the witnesses who testified about the DNA evidence. Specifically, appellant argues that the prosecution presented false evidence in the form of criminalist Mignon Dunbar's testimony at the Evidence Code section 402 hearing and at trial and DNA unit supervisor David Jackson's declaration in support of the prosecution's opposition to appellant's motion to exclude DNA evidence.
A. Trial Court Background
The allegedly false evidence presented regarding the admissibility of the DNA evidence and other relevant evidence include the following.
At the Evidence Code section 402 hearing on the admissibility of the DNA evidence, the prosecutor asked Dunbar what her present title and duties were. Dunbar responded, "As a criminalist in the San Francisco Police Department Criminalistics Laboratory, my duties are to analyze or examine evidence for biological material. [¶] And then once biological material is found, then take it through a DNA analysis process, and then write a report and testify in court."
At the start of Dunbar's trial testimony, the prosecutor asked her what her "present title and duties" were. Dunbar responded, "My present title is a Criminalist II. [¶] And the duties of a Criminalist II are to analyze biological evidence for biological materials and, if biological material is found, I then take it through a DNA analysis process. The prosecutor then asked about her participation in proficiency testing, including the results for her most recent test. Dunbar testified that in August 2014, she learned that a technical reviewer found that her proficiency test was unsatisfactory. Dunbar also answered in the affirmative the prosecutor's question, "As a result of this 'unsatisfactory,' have you temporarily been ceased from handling casework?"
During cross-examination, after defense counsel asked whether her current status at the lab was that she was not able to do casework, Dunbar responded, "Due to my pregnancy, I have temporary accommodations outside of the laboratory." She then responded in the affirmative when counsel asked if she was taken off of casework when she failed the proficiency test. Finally, Dunbar acknowledged that she was not performing casework both because of her pregnancy and because she had been temporarily suspended from casework. She was expected to do remedial training before taking another proficiency test.
Eleanor Salmon, the crime lab supervisor, also testified at trial about Dunbar's unsatisfactory proficiency test results. Part of Salmon's job was to oversee annual proficiency testing at the crime lab. Dunbar took a proficiency exam in May 2014, at the conclusion of which she returned an " 'inconclusive' " result. In August 2012, Salmon was involved in a review to determine whether Dunbar's inconclusive result was in compliance with laboratory guidelines. Salmon concluded it was not. As a result of Dunbar having an "unsatisfactory proficiency test," she had temporarily ceased handling casework while "we try to determine the root cause and suggestions for the remediation process that we will begin when she resumes her work in the laboratory." Salmon had not yet had a chance to discuss the specifics of Dunbar's remediation with her because she was not currently in the laboratory due to a reassignment based on accommodations because of her pregnancy; Dunbar did not want to be around the chemicals in the laboratory. When she completed remediation training successfully, she would be reinstated to perform her casework.
In a declaration in opposition to appellant's pretrial motion to exclude DNA evidence, Janet, DNA unit supervisor stated that, during manual review of the 28 profiles returned after Dunbar's search, "the analyst determined conclusively that all but one of the anonymous offender samples reported by the State were not matches. Only the profile corresponding to the [appellant] in this case was a match. All other 2 million offenders, including the final 27 reviewed and determined to be non-matches, have been excluded as the source of crime scene DNA in this case." Jackson did not mention in his declaration the first search that returned five hits or the fact that the second search returned two possible matching profiles.
Subsequently, at trial, Jackson testified that he had reviewed the lab records in preparation for testifying. He testified both about the first search and about the fact that the second search initially produced 28 profiles, and ultimately returned two profiles that "would match the assumptions given by Ms. Dunbar." He also testified that he "would quite honestly have had a question about the suitability of this search."
B. Legal Analysis
" 'In Napue v. Illinois [(1959)] 360 U.S. 264, the Supreme Court . . . [i]n commenting on the use of false testimony . . . stated that the principle that the state may not make knowing use thereof "does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend." (Id. at p. 269.)' [Citation.]" (People v. Adams (1993) 19 Cal.App.4th 412, 427 (Adams).)
"When the prosecution fails to correct testimony of a prosecution witness which it knows or should know is false and misleading, reversal is required if there is any reasonable likelihood the false testimony could have affected the judgment of the jury. This standard is functionally equivalent to the ' "harmless beyond a reasonable doubt" ' standard of Chapman v. California (1967) 386 U.S. 18. [Citation.]" (People v. Dickey (2005) 35 Cal.4th 884, 909; accord, Adams, supra, 19 Cal.App.4th at p. 427.)
In the present case, appellant argues that the prosecutor knew that Dunbar had failed a proficiency examination and had been suspended from work in the DNA lab, but allowed her to testify both at the Evidence Code section 402 hearing on the admissibility of the DNA evidence and subsequently at trial in a way that falsely implied that she had not failed the proficiency exam and was presently actively working as a criminalist in the DNA lab. Appellant further asserts that "because the prosecution failed to disclose to the court favorable information regarding Ms. Dunbar, failed to disclose her failure to conform to accepted laboratory procedures, failed to disclose the fact that two persons, not just one, could not be excluded as a potential donor of the material, failed to disclose that the laboratory did not follow appropriate procedures in uploading the sample into CODIS, and that the prosecutor and her team failed to correct false and misleading testimony, it is clear that the court's decision in admitting DNA evidence was faulty. [¶] Without this evidence it is reasonably likely that the jury decision could have been affected."
Although we have some doubt about the validity of appellant's claim that the prosecution failed to promptly bring to light material false statements by Dunbar and Jackson once it was aware of them, we need not definitively determine whether that claim is correct because we conclude there is no reasonable likelihood that the alleged failure to disclose false or misleading evidence could have affected the jury's judgment. (See People v. Dickey, supra, 35 Cal.4th at p. 909; Adams, supra, 19 Cal.App.4th at p. 427.) That is because, even without the DNA evidence, the evidence of appellant's guilt presented at trial was compelling. That evidence includes appellant's confession, in which he offered numerous details about at least one incident of abuse that he had committed. His confession largely matched Judith's testimony at trial and her earlier statements to others, as well as the testimony of her mother, the pastor's wife, and Gloria Samayoa from CASARC about what Judith told them shortly after the December 2011 incident. There was also very strong medical evidence, with Dr. Chaffee opining that the yellowish-greenish discharge from Judith's rectum, which she observed shortly after the alleged incident in December 2011, was "very suspicious" with respect to sexual abuse.
"Under these circumstances, with the massive array of evidence against appellant, we have no hesitation in declaring a belief that the [alleged] use of false testimony was harmless beyond a reasonable doubt." (Adams, supra, 19 Cal.App.4th at p. 432.)
VII. Cumulative Error
Appellant contends the cumulative effect of the errors in this case requires reversal. We have found that the prosecutor's alleged failure to disclose false or misleading evidence, even assuming it was in fact error, would be harmless beyond a reasonable doubt. (See pt. VI., ante.) Hence, appellant's cumulative error claim cannot succeed.
DISPOSITION
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.