Opinion
D074179
10-19-2018
THE PEOPLE, Plaintiff and Respondent, v. KEVIN EDWARD KAMACHI, Defendant and Appellant.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BAF1300027) APPEAL from a judgment of the Superior Court of Riverside County, Ronald L. Taylor, Judge. Affirmed. Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Kevin Edward Kamachi guilty on 20 counts of sex offenses arising from his molestation of his stepdaughter from the time she was ages eight through 13. The trial court sentenced him to prison for 240 years to life. Kamachi raises three issues on appeal. First, he contends the trial court erred prejudicially by failing to instruct the jury sua sponte regarding determining witness credibility. (See CALCRIM No. 226.) We agree the court erred in omitting the instruction, but conclude the error caused no prejudice. Second, Kamachi contends cumulative error compels reversal because his trial counsel ineffectively represented him by failing to request that the court instruct the jury to view with caution any out-of-court statement Kamachi made that tended to show his guilt. (See CALCRIM No. 358.) We conclude Kamachi has not met his burden of showing his counsel's representation was either deficient, or prejudicially so. Finally, Kamachi asks us to independently review the trial court's proceedings on his motion to discover law enforcement personnel records. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) We have done so, and find no error.
Finding no prejudicial error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2012, Kamachi's 13-year-old stepdaughter, Jane Doe, disclosed to her mother (Mother) that Kamachi had been sexually molesting her for several years. Kamachi was charged with 20 counts of sex offenses, covering the time Jane was ages eight through 13. After several continuances, Kamachi's trial commenced in 2016, when Jane was 17.
The trial court ordered that the victim be identified in the record as "Jane Doe." The reporter's transcripts on appeal conform to this order. We, too, will refer to the victim as Jane Doe (or variants thereof).
Prosecution Case
The prosecution presented five witnesses at trial: Jane, her older brother (Brother), a sexual assault response team (SART) nurse, the police officer who responded when Jane initially disclosed the molestation to Mother, and a DNA analyst from the state Department of Justice.
Jane's Testimony
Jane testified Kamachi began molesting her in about 2006, when she was eight years old. Although she did not remember the details of the first incident, she knew she was eight at the time because she remembered going to school and playing soccer. When the abuse began, the family lived in Yucaipa, and Jane shared a room with her sister, who was about four years younger. Kamachi would wake Jane in the middle of the night, take her to his bedroom, remove her pants and underwear, cover her face with a pillow or towel, touch her vagina (and sometimes her breasts) with his hand, and insert his penis into her vagina. Jane sometimes tried to resist by squeezing her legs together, but Kamachi would pry them apart. She was afraid to tell anyone what was happening because she feared Kamachi would hurt her (he sometimes physically disciplined her, and she knew he hit Brother), and because Kamachi said they "would both get in trouble" if she did. Jane said Kamachi molested her at least once per week.
Jane testified Kamachi engaged in the same conduct when she was nine. She thinks it probably occurred more than once per week, usually when Mother was out with a friend named Carrie.
Jane testified Kamachi engaged in the same conduct when she was 10. In addition, one time he inserted into her vagina a pink or purple vibrator or dildo that he retrieved from a closet drawer in his room. Around this time, Jane told Brother, who was about two years older (so 12 at the time), that Kamachi was touching her. They "came up with a stupid plan to run away, but it never happened." This disclosure occurred when they were riding scooters together at their grandparents' house in Yucaipa.
Jane testified Kamachi continued to have intercourse with her and insert his fingers into her vagina when she was 11. They had intercourse "a couple times a week"; he used his fingers less frequently than that.
Around the time Jane turned 12, at the end of her sixth-grade school year, the family moved from Yucaipa to Banning. She was angry about having to move, but she at least had her own bedroom in the new Banning house. After the move, Kamachi continued to have intercourse with Jane and insert his fingers into her vagina at least once per week. Now, however, the conduct was occurring in Jane's bedroom.
Kamachi engaged in the same conduct with Jane when she was 13. In addition, on at least one occasion, he used his mouth and tongue on her vagina.
In mid-April 2012, when Jane was 13, she texted her friend Abby and "spontaneous[ly]" told her what Kamachi had been doing to her. Abby said she would tell the police, unless Jane told Mother. The next morning, Jane texted Mother from school and disclosed that Kamachi had been molesting her. Mother picked up Jane from school and took her home. Mother called Kamachi and told him to meet them at the house.
At the house, Mother confronted Jane and Kamachi about what had been going on. Mother went outside to smoke, leaving Jane and Kamachi alone together in the living room. Then, according to Jane, Kamachi "got down on his knees and told me to tell my mom that I was lying because it would ruin his life." Kamachi added that Mother "would kill herself if she found out." Jane believed him.
When Mother returned, Kamachi left and Jane recanted. Mother "got mad at [Jane] and kept asking [her] why [she] would lie about something like that." Jane then told Mother she had not lied, and that she had told Brother about it before. Mother called Brother on his phone while he was at school. He initially denied that Jane had previously disclosed the abuse, but when he got home from school he told Mother that Jane had, in fact, done so.
The same day that Jane told Mother, Banning Police Officer Nissa Tammany interviewed Jane at the house. The officer also collected evidence, which included Jane's bedsheets, and the underwear and pajamas she wore when Kamachi last molested her a few days earlier. The officer retrieved the clothes from Jane's hamper, and Jane testified the sheets had not been washed since the most recent molestation. Jane then went to the hospital, where "[t]hey did a rape kit."
On cross-examination, Jane said she did not remember a social worker previously visiting the house on an unrelated matter. However, the parties stipulated that, if called, a child-protective-services social worker would testify that she visited Jane's home on an unrelated matter in February 2011 (when Jane was 12), and "[b]oth [Brother] and [Jane] denied any physical or sexual abuse occurring in the home."
Also on cross-examination, and even after reviewing Officer Tammany's police report, Jane denied reporting that Kamachi had been molesting her for only two years.
Finally, Jane acknowledged that, although she was now testifying Kamachi molested her about once per week, she had testified during the preliminary hearing that he had molested her "almost every night" since she was eight.
Brother's Testimony
Brother corroborated the details of Jane's disclosure of the abuse to him when she was 10. He did not tell Mother at the time because he was afraid of Kamachi because Kamachi physically abused him. When Jane disclosed the abuse to Mother in 2012, Brother confirmed to Mother that Jane had previously disclosed it to him. He denied telling Mother "no" when she first asked him by phone to confirm.
Brother testified he remembered a social worker visiting the family on an unrelated matter in 2011. He acknowledged he told the social worker he was not being physically abused.
Brother also acknowledged on cross-examination that Kamachi was strict with all the children, and Jane was "getting in trouble a lot at home" when things finally "came to a head in April 2012."
SART Nurse's Testimony
The SART nurse who examined Jane the night of her disclosure testified about the findings of the exam. The exam revealed Jane had abrasions and a small laceration near her genitals. The nurse described the injuries as abnormal findings indicative of sexual activity, and consistent with Jane's report of abuse.
On cross-examination, the nurse acknowledged the laceration could "possibly" have been the result of a nick from a fingernail while inserting a tampon or while washing.
Officer Tammany's Testimony
Officer Tammany testified about her role in responding to Jane's report of sexual abuse on April 18, 2012. Tammany was dispatched to Jane's home, where she interviewed Jane and collected evidence. In Jane's room, the officer collected the sheets from Jane's bed, and underwear and pajamas from the laundry hamper. In a dresser in Mother's room, Tammany located a "vibrator that [Jane] advised was used during one of the incidents." Tammany bagged the evidence, took it to the evidence locker at the station, and cataloged it. Nothing "struck [her] as unusual or out of place" about how the evidence was collected in the investigation.
On cross-examination, Officer Tammany explained that when she first interviewed Jane, Jane reported that Kamachi "had been molesting her every day for the last two years." When Tammany clarified, "Are you saying that your stepfather has molested you more than 300 times," Jane responded, "Yes."
Also on cross-examination, Officer Tammany acknowledged that when she collected Jane's underwear and pajamas from the hamper, there were other clothing items in the hamper.
On redirect, Officer Tammany clarified that the hamper from which she collected the evidence was located in Jane's bedroom closet, and she collected the sheets from the bed, not the hamper. Tammany also indicated Jane had stated during the interview that Kamachi had also molested her when they lived in Yucaipa.
DNA Analyst's Testimony
A DNA analyst from the California Department of Justice testified about analyses she conducted on DNA extracted from the evidence collected from Jane's room, and reference samples obtained from Kamachi and Jane. From Jane's bedsheets and underwear, the analyst extracted sperm cells that matched Kamachi's reference sample. The analyst determined that the probability of this happening by chance was one in 3.8 sextillion for Caucasians, one in 110 sextillion for Hispanics, and one in 390 sextillion for African-Americans. The analyst explained she determines probabilities for these three races because they are "the three main populations" in California. Although the analyst did not determine the probability for a random match among Asians (Kamachi is Asian), she expected the probability would be similarly rare in the comparatively smaller Asian population.
One sextillion is a one followed by 21 zeroes.
On cross-examination, when asked if semen could transfer from one item to another in a laundry hamper, the analyst explained it "is possible, but there are so many variables that go into transfer and how much gets transferred." She acknowledged "that some sperm can adhere to clothing and make it through a wash cycle."
Defense Case
The lone defense witness was Mother's "very close" friend, Carrie. Carrie met Mother and Kamachi in 2003 through Carrie's then-husband. Presumably addressing Jane's claims regarding when and how frequently Kamachi molested her, Carrie testified Mother worked a normal 40-hour week (so she was home during nights and evenings), and Carrie and Mother only went "out on the town" about "once every few months." Carrie said she never saw Kamachi abuse the children, and the children never told her he did so.
Mother called Carrie when Jane disclosed the abuse, and Carrie went to Mother's house, arriving before the police. Carrie testified Jane "didn't seem too upset," but acknowledged she saw Jane cry that day for the first time. Carrie waited at the hospital while Jane underwent the SART exam. On the drive home, Jane seemed like her "normal self."
On cross-examination, Carrie admitted she had no psychological training on which to base any conclusions about Jane's demeanor. Carrie unsolicitedly testified that she "feel[s] strongly" that Kamachi did not molest Jane, even though Carrie admitted she knew "nothing about the investigation that was done." Moreover, she stated it was merely possible her opinion of Kamachi's guilt would change if she "went through the investigation and . . . learned about some of the evidence against him, including things like DNA evidence."
Charges, Jury Verdicts, and Sentencing
Kamachi was charged with seven counts of sexual penetration by force, fear, or duress on a child under 14 (Pen. Code, § 269, subd. (a)(5)); seven counts of rape of a child under 14 (§ 269, subd. (a)(1)); three counts of sexual intercourse with a child who is 10 or younger (§ 288.7, subd. (a)); and three counts of sexual penetration of a child who is 10 or younger (§ 288.7, subd. (b)). The jury returned guilty verdicts on all 20 counts.
Undesignated statutory references are to the Penal Code unless otherwise noted.
The trial court sentenced Kamachi to prison for 240 years to life (even after staying many duplicative sentences under § 654).
DISCUSSION
I. Omission of Jury Instruction Regarding Witness Credibility Was Not Prejudicial
CALCRIM No. 226 instructs the jury regarding its role in determining the credibility of witnesses, and provides several factors the jury may consider when performing this function. Trial courts have a sua sponte duty to instruct juries with the substance of CALCRIM No. 226. (See People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884-885; People v. Horning (2004) 34 Cal.4th 871, 910; § 1127 ["The court shall inform the jury in all cases that the jurors are the exclusive judges of all questions of fact submitted to them and of the credibility of the witnesses."].)
It is undisputed the trial court did not instruct the jury with CALCRIM No. 226. Kamachi contends this error was prejudicial because "Jane's credibility (or lack thereof) was the cornerstone of both the prosecution and defense cases." The Attorney General maintains the error caused no prejudice because the prosecution case "did not hinge on Doe's credibility" and, in any event, the jury was unlikely to reach a more favorable result "because the physical evidence was so overwhelming."
As we will explain, based on our comprehensive review of the appellate record, we conclude the omission of CALCRIM No. 226 did not prejudice Kamachi.
A. Relevant Legal Principles
CALCRIM No. 226 reads:
"You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. You may believe all, part, or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe.
"In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are:
"• How well could the witness see, hear, or otherwise perceive the things about which the witness testified?
"• How well was the witness able to remember and describe what happened?
"• What was the witness's behavior while testifying?
"• Did the witness understand the questions and answer them directly?
"• Was the witness's testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided?
"• What was the witness's attitude about the case or about testifying?
"• Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony?
"• How reasonable is the testimony when you consider all the other evidence in the case?
"• [Did other evidence prove or disprove any fact about which the witness testified?]
"• [Did the witness admit to being untruthful?]
"• [What is the witness's character for truthfulness?]
"• [Has the witness been convicted of a felony?]
"• [Has the witness engaged in [other] conduct that reflects on his or her believability?]
"• [Was the witness promised immunity or leniency in exchange for his or her testimony?]
"Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently.
"[If the evidence establishes that a witness's character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witness's character for truthfulness is good.]
"[If you do not believe a witness's testimony that he or she no longer remembers something, that testimony is inconsistent with the witness's earlier statement on that subject.]
"[If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.]"
The Bench Notes accompanying CALCRIM No. 226 state in part, "Give all of the bracketed factors that are relevant based on the evidence."
Although the parties agree the trial court erred by omitting CALCRIM No. 226, they disagree on the applicable standard of prejudice. The Attorney General contends the error is one of state law subject to review under the standard set forth in People v. Watson (1956) 46 Cal.2d 818 (Watson), which requires reversal only if "it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error" (id. at p. 836).
Kamachi acknowledges that courts have applied the Watson standard to "the failure to give bracketed portions of CALCRIM No. 226." (Italics added; see People v. Galloway (1979) 100 Cal.App.3d 551, 568; see also People v. Murillo (1996) 47 Cal.App.4th 1104, 1108 [Watson standard applies to trial court's error in failing to instruct the jury regarding the evaluation of the testimony of a witness who provides willfully false testimony].) Nevertheless, he contends the failure "to give CALCRIM No. 226 at all" (italics added) constitutes federal constitutional error subject to review under the standard set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman), which requires reversal unless the reviewing court is "able to declare a belief that [the error] was harmless beyond a reasonable doubt" (id. at p. 24). He argues the failure to instruct regarding the evaluation of witness credibility is analogous to the failure to instruct regarding reasonable doubt, the presumption of innocence, a defendant's right not to testify, and the entitlement to a unanimous verdict.
We find Kamachi's analogies inapt. Although the jury's factfinding role is central to a criminal defendant's right to a fair trial, the instructional error here did not deprive Kamachi of that right. The omission merely left the jury uninstructed regarding the common-sense credibility factors enumerated in CALCRIM No. 226. "Mere instructional error under state law regarding how the jury should consider evidence does not violate the United States Constitution." (People v. Carpenter (1997) 15 Cal.4th 312, 393; see People v. Watt (2014) 229 Cal.App.4th 1215, 1219 (Watt) [holding Watson applies to failure to instruct regarding affirmative defenses, and collecting cases noting Watson applies to failure to instruct on a lesser included offense, mistake of fact, and self-defense].)
Accordingly, we conclude the Watson standard of prejudice applies to the trial court's failure to instruct with CALCRIM No. 226.
"In determining whether there was prejudice [under the Watson standard], the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict." (People v. Guiton (1993) 4 Cal.4th 1116, 1130 (Guiton).) We also consider "whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability that the error affected the result." (Watt, supra, 229 Cal.App.4th at p. 1220.)
B. Analysis
After examining the entire record, we conclude it is not reasonably probable that Kamachi would have obtained a more favorable result had the trial court instructed the jury with CALCRIM No. 226.
Although the trial court did not instruct the jury regarding the specific concepts and factors set forth in CALCRIM No. 226, the court did instruct the jury in other contexts regarding performance of its factfinding role. In explaining the duties of the judge and jury, the trial court instructed: "You must decide what the facts are. It is up to all of you, and you alone[,] to decide what happened, based only on the evidence that has been presented to you in this trial." (See CALCRIM No. 200.) The court also instructed the jury regarding the weight to accord a single witness's testimony: "The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence." (See CALCRIM No. 301.) And the court instructed the jury regarding its role in resolving conflicting evidence:
"If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of any witness without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point."
In the context of expert and lay opinion testimony, the trial court instructed the jury regarding several factors to consider when evaluating credibility. (See CALCRIM Nos. 332, 333.) For example, as to lay opinion, the court instructed the jury to "[c]onsider the extent of the witness's opportunity to perceive the matters on which his or her opinion is based, the reasons the witness gave for any opinion, and the facts or information on which the witness relied in forming that opinion." (See CALCRIM No. 333.)
Taken together, these instructions adequately alerted the jury to its role as factfinder and provided minimal guidance on how to fulfill that role.
The "arguments of counsel" (Guiton, supra, 4 Cal.4th at p. 1130) addressed several of the credibility factors specifically enumerated in CALCRIM No. 226. The prosecutor directly addressed Jane's "demeanor" and "mannerisms" while testifying. (See CALCRIM No. 226 ["What was the witness's behavior while testifying?"].) The prosecutor also asked the jury to consider whether Jane had a "motive to lie," such as being unhappy about moving houses after sixth grade. (See CALCRIM No. 226 ["Was the witness's testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided?"].) In asking, "[u]ltimately, does her story make sense," the prosecutor noted the many ways in which Jane's version of events was corroborated by other evidence, such as Brother's testimony about the disclosure when Jane was 10, the SART exam results, and the DNA evidence. (See CALCRIM No. 226 ["How reasonable is the testimony when you consider all the other evidence in the case? [¶] . . . [¶] [Did other evidence prove or disprove any fact about which the witness testified?]"].)
As to Jane's demeanor, the prosecutor argued the following: "What was her demeanor like? What were her mannerisms? Was she fidgety? Did she cry? We saw it all. She had her head down. How many times did she have her hands up in her face, actually on the same side you were sitting, to shield herself because it's hard to face a group of strangers and explain what happened? I saw it all." --------
Kamachi's trial counsel also addressed several of the credibility factors specifically enumerated in CALCRIM No. 226. Counsel first attacked Jane's credibility, citing alleged inconsistencies between Jane's initial statement to Officer Tammany and her trial testimony, and Jane's admission that she lied when she briefly recanted. (See CALCRIM No. 226 ["Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony? [¶] . . . [¶] [Did the witness admit to being untruthful?]"].) Defense counsel also challenged Jane's "faulty memory," asking the jury, "Why should you believe someone that doesn't remember?" (See CALCRIM No. 226 ["How well was the witness able to remember and describe what happened?"].) Defense counsel also argued Jane "ha[d] a motive to lie" because she blamed Kamachi for being too strict and for moving the family from Yucaipa to Banning.
In rebuttal, the prosecutor again focused jurors on factors relevant to determining Jane's credibility:
"When it comes to the questions and the doubts about whether or not the victim in this case, (Jane), was absolutely accurate, absolutely correct in her recall, yeah. Ask yourself not whether she said everything exactly the same each and every time or whether or not it is consistent by and large, whether or not it survives scrutiny. Does what she said make sense? Does it fit with the facts? Does it fit through the timeline that's corroborated through the other witnesses? The reality is, memory . . . , over time, becomes less clear. Becomes kind of a mosaic of certain memories."
These arguments show the jury was adequately informed of many of the credibility factors specifically enumerated in CALCRIM No. 226. (See People v. Blacksher (2011) 52 Cal.4th 769, 846 ["given that counsel for both parties strongly argued the credibility of certain witnesses . . . , defendant simply cannot argue that the jury was 'adrift' when it came to evaluating the credibility of the witnesses"].)
Turning to "communications from the jury during deliberations" (Guiton, supra, 4 Cal.4th at p. 1130), the only such communications were three requests for readbacks of trial testimony: Jane's testimony "regarding oral copulation," "Age 9 [Jane]'s testimony about use of fingers or other sexual acts," and the DNA analyst's testimony "regarding semen on the panties." Nothing about these requests suggests the jury was at a loss for how to evaluate witness credibility.
Finally, the evidence supporting Kamachi's convictions "is so relatively strong . . . that there is no reasonable probability that the error affected the result." (Watt, supra, 229 Cal.App.4th at p. 1220.) Jane's testimony about Kamachi's recent conduct was corroborated by compelling DNA evidence that established Kamachi's sperm cells were found in Jane's underwear and bedsheets. Kamachi's suggestion that his DNA could have transferred from other items in the laundry hamper is belied by Officer Tammany's testimony that she collected the unlaundered items from Jane's room, not a communal hamper. And although the DNA analyst testified "that some sperm can adhere to clothing and make it through a wash cycle," Kamachi offers no explanation (aside from his unlikely hamper-transfer theory) for how his sperm could innocently have ended up on Jane's underwear before they were laundered.
Similarly, the SART nurse testified her exam revealed abrasions and a laceration, which she characterized as abnormal findings indicative of sexual conduct consistent with Jane's disclosed history. Kamachi's fingernail-nick theory addressed, at most, the laceration—it did not address the abnormal abrasions.
Finally, although Kamachi noted at trial that the prosecution did not provide a witness to establish every link in the chain of custody for the DNA samples, Officer Tammany testified there was nothing unusual about the manner of evidence collection in this case, and the DNA analyst testified she reviewed records showing "every transfer is documented" from the time the DNA samples entered the Department of Justice's laboratory network. Kamachi offered no affirmative evidence suggesting anything was amiss with the chain of custody.
The strength of this physical evidence persuades us it is not reasonably probable that the jury would have reached a different result had the trial court given CALCRIM No. 226.
Kamachi argues the instructional error was nonetheless prejudicial as to those counts based on his conduct occurring more than two years before Jane's disclosure. He bases this on Officer Tammany's testimony that Jane told her Kamachi "had been molesting her every day for the last two years." (Italics added.) However, this excerpt lacked context, and Tammany testified Jane also reported she had been abused when she lived in Yucaipa, which could encompass conduct occurring more than two years earlier.
Even reading Officer Tammany's testimony as Kamachi suggests, Brother independently corroborated in detail the fact that Jane had previously disclosed the molestation to him when she was 10.
In sum, our comprehensive review of the entire record satisfies us that the jury was acutely aware of its role in evaluating Jane's credibility and of the factors to consider when doing so. It is not reasonably probable the jury would have reached verdicts more favorable to Kamachi had the trial court given CALCRIM No. 226.
II. No Cumulative Error From Counsel's Failure to Request Cautionary Instruction
"CALCRIM No. 358 instructs the jury to view with caution any out-of-court oral admissions made by a defendant." (People v. Miranda (2015) 236 Cal.App.4th 978, 990.) Kamachi argues his trial counsel was prejudicially ineffective for failing to request this cautionary instruction in light of Jane's testimony that Kamachi begged her to recant by telling her the accusation would ruin his life and cause Mother to kill herself. He contends this failure, in conjunction with the trial court's failure to give CALCRIM No. 226, constitute cumulative error warranting reversal of his conviction. We disagree.
A. Relevant Legal Principles
1. CALCRIM No. 358
CALCRIM No. 358 states: "You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statement[s]. [¶] [Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]" (Italics added.)
The " ' "purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made." ' " (People v. Diaz (2015) 60 Cal.4th 1176, 1186 (Diaz).) It "is concerned with the reliability and credibility of the witness who testifies about the defendant's statements." (Id. at p. 1187.)
Historically, trial courts had a sua sponte obligation to give the instruction. (Diaz, supra, 60 Cal.4th at pp. 1188-1189.) By the time of Kamachi's trial, however, the California Supreme Court had discarded this sua sponte duty. (Ibid.) The Diaz court reached this conclusion, in part, because trial courts now have a sua sponte duty to instruct regarding the substance of CALCRIM No. 226. (Diaz, at pp. 1189, 1191.) The Diaz court also noted a "defendant may not always want the instruction to be given" (id. at p. 1189), such as when the defendant's statement is "both exculpatory and inculpatory" (id. at p. 1192).
Thus, if Kamachi wanted the jury instructed with CALCRIM No. 358, his trial counsel had to request it.
2. Ineffective Assistance of Counsel
"The standard for determining ineffective assistance of counsel is well established. A defendant must demonstrate that (1) his attorney's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 . . . .) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Id. at p. 694.)" (People v. Dickey (2005) 35 Cal.4th 884, 907 (Dickey).)
" 'Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." ' " (People v. Centeno (2014) 60 Cal.4th 659, 674-675.)
B. Analysis
Kamachi has not met his burden of showing he received ineffective assistance from his trial counsel. As to the deficient-performance prong, he has not persuaded us that his trial counsel's failure to request the cautionary instruction was not a matter of sound trial strategy. To the contrary, as Kamachi acknowledges in his opening brief on appeal, his trial "counsel did not deny the statement, but rather argued it was evidence that Doe had made a false accusation and [Kamachi] had begged her to take it back before it ruined his life." In support of this assertion, Kamachi cites defense counsel's closing argument that Jane's reaction to the statement showed she was "a liar":
"(Jane), herself, is not believable. She gives inconsistent statements to Officer Tammany at the preliminary hearing and to you here in court. She changes her story, and she admits to lying. She admitted to you that she lied. She said, [']Well, he told me it would ruin his life, so I changed my story.['] Yes. False allegations do ruin people's lives. That is true. She discloses, she recants, then she rediscloses. She's a liar."
Kamachi advances a new theory on appeal: that his "trial counsel argued Doe was misrepresenting the nature of the statement—that [Kamachi] had not asked Doe to lie, rather he asked her to take back a false accusation and tell the truth." However, Kamachi does not support this with a citation to the appellate record, as required. (See In re S.C. (2006) 138 Cal.App.4th 396, 408 ["To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error."]; Cal. Rules of Court, rule 8.204(a)(1)(C) [an appellant must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears"].)
As for the prejudice prong, even assuming for the sake of argument that the performance of Kamachi's counsel, "in failing to request the cautionary instruction, fell below an objective standard of reasonableness, it is not reasonably probable that, but for counsel's failure, the result of the trial would have been different." (Dickey, supra, 35 Cal.4th at p. 907.) " 'Since the cautionary instruction is intended to help the jury to determine whether the statement attributed to the defendant was in fact made, courts examining the prejudice in failing to give the instruction examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the [statements] were repeated accurately.' " (Diaz, supra, 60 Cal.4th at p. 1195.)
First, there was no legitimate dispute at trial about whether Kamachi made the statement or whether Jane accurately recounted it. (See People v. Mungia (2008) 44 Cal.4th 1101, 1135 [no prejudice where there was "simply no dispute as to whether defendant made these statements, or whether [the witness] accurately recalled them"].) Indeed, defense counsel only briefly touched on the subject during cross-examination, and only then to confirm Jane's recounting of the statement:
"Q. Okay. And you said at this point [Kamachi] told you, [']Please tell your mom it's a lie[']; right?The defense presented no conflicting evidence regarding the conversation.
"A. Yes.
"Q. And you said he told you that your mom would kill herself if she knew this; right?
"A. Right."
Second, Kamachi's statement was an insignificant part of the prosecution case, which included Jane's substantive testimony, Brother's corroborative testimony, and compelling DNA and SART-exam evidence. (See People v. Padilla (1995) 11 Cal.4th 891, 923 [failure to give the cautionary instruction was harmless in light of the "comparatively marginal role defendant's statement must have played in the totality of the record"].) Indeed, the prosecutor's mention of the statement during his closing argument amounts to only one paragraph in the 28-page transcript of the closing argument. And although the statement was relevant to rebutting Jane's admitted recantation, which relates to her credibility, the DNA and SART-exam evidence was compelling evidence that she was telling the truth when she disclosed the abuse.
In sum, Kamachi has not shown that his trial counsel was ineffective for failing to request the cautionary instruction, or that the failure prejudiced Kamachi.
III. No Pitchess Error
Kamachi filed a Pitchess motion to determine whether the personnel file of the investigating detective (who did not testify at trial) contained any materials regarding "[f]abrication of charges"; "[f]abrication of factual scenarios and/or submission of inaccurate/false police reports"; "[d]estruction, concealment and/or manipulation of evidence"; [e]xclusion, concealment and/or manipulation of witnesses"; or "[d]ishonesty."
At the Pitchess hearing, the trial court indicated it had reviewed the detective's personnel file one day earlier in another case "where the same issue came up with the same detective because he is on multiple cases." The trial court ruled: "The Court had an in camera [hearing] yesterday, reviewed the entire contents of any issues, as to any disciplinary matters to [the detective] and will make a finding, as I did yesterday, there is no discoverable evidence. There is nothing that is relevant. So that will take care of the Pitchess."
Kamachi has asked us to independently review the sealed Pitchess proceedings to determine whether the trial court abused its discretion in concluding there are no discoverable materials in the detective's file. The Attorney General agrees we should.
We have independently reviewed the sealed Pitchess proceedings and find the trial court did not abuse its discretion in concluding there are no discoverable materials in the detective's file.
DISPOSITION
Affirmed.
HALLER, J. WE CONCUR: NARES, Acting P. J. IRION, J.