Opinion
F083400
03-29-2023
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO HICHAM KASSAZ, Defendant and Appellant.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County, No. VCF365333 Nathan G. Leedy, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
INTRODUCTION
Defendant Armando Hicham Kassaz was charged with 75 counts of lewd acts on a child under 14 years of age in violation of Penal Code section 288, subdivision (a). Each count contained a special allegation that defendant committed the lewd act on multiple victims within the meaning of section 667.61, subdivision (e)(4) and that he engaged in substantial sexual conduct within the meaning of section 1203.066, subdivision (a)(8).
All further statutory references are to the Penal Code unless otherwise indicated.
Under section 1203.066, subdivision (a)(8), "probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provisions of this section be stricken pursuant to section 1385 for, ... [¶] [a] person who, in violating Section 228 or 288.5, has substantial sexual conduct with a victim who is under 14 years of age." Section 1203.066, subdivision (b), defines "'[s]ubstantial sexual conduct'" as the "penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender."
Prior to a verdict, the prosecution moved for dismissal of 11 counts (counts 13, 23-24, 29, 50-52, 63-64, 73, and 75), which was granted. The jury subsequently found defendant guilty of the remaining 64 counts and found true all special allegations. The trial court sentenced defendant to an aggregate term of 960 years to life (15 years to life on all 64 convictions imposed consecutively). (§ 667.61, subd. (b).) Among other fines and fees, the trial court ordered defendant to pay a $1,000 fine under section 294, subdivision (b), and awarded defendant 1,408 days of presentence credits.
Defendant argues the trial court prejudicially erred by allowing the prosecution to admit defendant's police interrogation because defendant had not knowingly and intelligently waive his constitutional rights under Miranda because they were read to him in English rather than Spanish, which is defendant's native language. Defendant also maintains a portion of N.K.'s testimony constituted impermissible character evidence that was admitted in violation of Evidence Code section 1101, subdivision (a). The error in admitting this evidence was so prejudicial it resulted in a due process violation under the Fourteenth Amendment of the federal Constitution. Finally, defendant argues the trial court miscalculated his presentence credits and imposed an unauthorized fine under section 294, subdivision (b).
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
We affirm. The totality of the circumstances indicate defendant was proficient in English and could understand his rights and appreciate the consequences of waiving them. Moreover, any error in admitting a portion of N.K.'s testimony in violation of Evidence Code section 1101 did not constitute a federal due process violation and was harmless under the standard articulated in People v. Watson (1956) 46 Cal.2d 818 (Watson). The parties agree, and we concur, that defendant's presentence credits were miscalculated and that the fine imposed under section 294, subdivision (b), was unauthorized and must be stricken.
FACTUAL BACKGROUND
I. Prosecution's Case
Defendant was charged with committing lewd and lascivious acts with three of his children when they were under the age of 14 years old. The abuse was reported to the police in March 2018 by defendant's daughter, Ge., who was 31 years old at the time. Her older sister, Gi., and her younger brother, G.K., were subsequently interviewed by police and detailed how defendant had sexually abused them.
According to Ge.'s trial testimony, her parents moved to the United States from Bolivia when she was three years old. They settled near Los Angeles and then relocated to Visalia before Ge. started grade school. They first lived at a house on Harvard Street and then later moved to a house on Tracy Street. Her father owned a liquor store where both of her parents worked. Defendant worked during day, and Ge.'s mother, N.K., worked from the late afternoon until about 9:00-10:00 p.m. Defendant started molesting Ge. when she was nine years old during times when N.K. was working. She remembered him telling her he had to teach her things about her body. This began a routine where she would have to go into his bedroom every Wednesday, and each time more clothing would come off or more touching or rubbing of her private areas would occur. Between the ages of 9, 10 and 11 years old, Ge. described multiple episodes of her father asking her to touch his penis with her hands and her mouth. He also orally copulated her genitals. She estimated this abuse happened hundreds of times; he would frequently ejaculate during their encounters and she experienced orgasms, which he asked if she liked.
When she was 12 years old, she told defendant she wanted to stop. He stopped touching her, but then started ignoring her altogether and said he could not be her father anymore. Ge. felt the sexual aspect of their relationship was the condition to having any type of relationship with him. So, when she was 13 years old, Ge. acquiesced to continuing the sexual relationship, and he then attempted to insert his penis into her vagina. She asked him to stop due to pain. On a subsequent occasion, he fully inserted his penis into her vagina. Afterward he inspected the sheets for blood and commented that when he had done this to her sister, there was blood on the sheets. She also recounted incidents where he sodomized her with his penis, which happened the first time when she was 13 years old and occurred less than five times total. Ge. detailed an incident where defendant engaged her and Gi. in sexual acts at the same time. Ge. also recounted an incident inside the family's liquor store when she was 14 or 15 years old where defendant touched her vagina. Additionally, Ge. described having intercourse with defendant in a Las Vegas hotel room when Ge. was 15 years old. Ge. thought some of the abuse was videotaped because defendant had a tripod in the bedroom, and she had seen the red light illuminated on it and had assumed it was recording. Although she never saw a recording of herself on a videotape, she saw several of her parents having sex.
Before she was 12 years old, Ge. knew defendant was engaging her older sister Gi. in sexual acts because defendant would comment on things he did with Gi. and compare her to Ge. The two sisters never talked about what was happening to them until Ge. was 15 years old. Their mother, N.K., asked Ge. if defendant was touching her, and Ge. confirmed it. N.K. went to confront defendant at the store, and the abuse stopped and never resumed. Ge. and N.K. discussed the abuse regularly after N.K. found out; sometimes N.K. would blame Ge. and say it was her fault she had attracted him; other times she would say she could not believe it and said divorce was not an option.
When she was 18 or 19 years old, Ge. told defendant's brother about the abuse. Instead of being upset for her, he wanted Ge. to describe how it felt, which made Ge. feel violated and betrayed. The next day, the uncle told Ge. that if she ever told anyone about the abuse he would be on defendant's side. Ge. knew then that she had to stay silent, and she would not have the support of her extended family. She also was not a citizen and was concerned that if she reported the abuse she would be deported.
Ge. graduated from college in 2010 and got married in 2013; defendant paid for her college expenses. She did not have permission to move out of the house until she was married; her parents wanted her at home, so she stayed. Ge. pursued mental health therapy and kept journals in 2009 and 2010 where she documented some of the abuse from her childhood; she gave these to the investigator officer, and they were admitted at trial. Ge. has children, and she has maintained contact with defendant. Ge. claimed defendant has not been allowed to acknowledge or say hello to her daughter, nor has he been allowed to touch, hold or be alone with her daughter. In March 2018, Ge. told a group of family members about the abuse, including some cousins on defendant's side of the family and defendant's sister. Ge. was encouraged by this group to go to the police, and she decided to report because she was concerned for other children in the family. When she reported the abuse, she knew defendant had filed for divorce in Bolivia in October 2016.
Gi., defendant's oldest child, was 36 years old when she testified at trial. The family came to the United States when she was five years old. Her parents worked at a liquor store they owed in Visalia. Defendant worked in the morning, N.K. worked in the afternoon, and then defendant would go back at night to help N.K. close the store. N.K. never closed on her own, and they would come home at night together. Thus, defendant would be at home with the kids in the evening while N.K. was at work. At first, defendant's brother had also worked at the store, but there was "some drama between them," and apparently her uncle did not remain involved with the store.
Gi. was five or six years old when she first had sexual contact with defendant. They were at her grandparents' house in Bakersfield; she was sleeping and when she woke up, her hand was on defendant's penis with his hand over hers to keep it there. Gi. pretended to be asleep, and nothing else happened. When she was 9 and 10 years old, defendant elicited her to touch his penis on multiple occasions. When she was 10 years old, defendant introduced her to oral sex. The first time he had her perform oral sex on him, it was at his brother's apartment. By the time she was 11 years old, she was touching his penis multiple times per week, which continued when she was 12 years old. The touching mostly occurred in his bedroom. He told her the sex acts were meant to educate her so that she would know how to be with other "guys." She felt obligated to touch him because otherwise he would be moody or would mistreat her siblings.
When she was 13 years old, she and defendant took a trip to Los Angeles, he got a hotel room, and they engaged in vaginal intercourse. The intercourse continued after they got home and occurred a couple of times a week thereafter. On one occasion, her younger brother, Ged., was in the bedroom watching television while they were having sex. She did not recall any incident where she and her sister performed sex acts with defendant at the same time. She described that defendant digitally penetrated her anus on occasions, and there were times when he wanted her to insert her middle finger into his anus for better pleasure, which happened more than once. She grew out her fingernails so that she would not have to do it anymore, but then defendant had her put her finger in a cigar case and insert that into his anus. Defendant videorecorded some of his sex acts with Gi.; he put them in a safe. There was also a pornography tape in the house labeled "Cinderella," but it was a home-recording of her parents having sex. She was 14 or 15 years old when she saw that. The abuse continued until she was 16 or 17 years old and she told him she wanted to stop. After that, he treated her poorly: she was not allowed to go anywhere, she lost her allowance and was not allowed to visit family.
She was too scared to report the abuse, and she was afraid the family would fall apart. They had no legal documentation. N.K. found out about the abuse when Gi. was in high school, and although N.K. confronted defendant, she did not call the police. Gi. was dependent on defendant financially, and she did not move out of the house until she was 26 or 27 years old. She has two children with whom defendant has interacted.
She maintained contact with defendant after she left the home; he attended her graduation, and he came to the hospital to visit her when her daughter was born. Her father suggested the name she gave her oldest daughter. Between 2011 and 2016, N.K. babysat Gi.'s oldest daughter even though N.K. was still living with defendant. She worried when she left the kids there, but she did not have anyone else, and she knew N.K. would not let them out of her sight. She has spoken to her youngest brother, Ged., that she does not want the kids alone with her dad. Gi. and Ge. met with some family members in 2018 and told them about the abuse. She had never planned to report to the police because of how embarrassing it was, and also because of her undocumented status. She knew defendant had been unfaithful to N.K. during their marriage; she had found panties in his jacket in the past, which upset her. She was aware that he had filed for divorce in Bolivia at some point before his arrest. She was upset to discover that he had represented in the divorce filing that he had only three children and that there were no assets.
G.K., defendant's third child, was 32 years old when he testified at trial. G.K. was less than a year old when the family moved from Bolivia to the Los Angeles area, and they moved to Visalia before he started kindergarten. Defendant and N.K. purchased and worked at a liquor store in Visalia; defendant would open the store in the morning, and N.K. would go to the store in the afternoon. At the end of the evening, defendant would go back and help N.K. close the store. After closing the store, defendant and N.K. would come home.
Defendant started abusing G.K. around the time he started middle school. Defendant started asking him a lot of nuanced questions about masturbation and gave verbal explanations. One day defendant asked G.K. if he had ever ejaculated; after he asked G.K. about masturbation, defendant dropped his pants, laid down on the bed, and masturbated in front of G.K. Defendant wanted G.K. to touch defendant, which he did. When G.K. was 12 or 13 years old, defendant started putting his mouth on G.K.'s penis. G.K. also described episodes of giving and receiving anal sex from defendant and estimated this happened on five or six separate occasions. All of the abuse occurred in defendant's bedroom, which had a lock on the door. Defendant also had a lot of pornography around the house. One day, G.K. told defendant he did not want to continue, and it never happened again.
At one point around 2009, N.K. asked G.K. if defendant had "'done things to'" him; G.K. knew what she was referring to, confirmed that defendant had done things, and asked her to drop it. G.K. was scared of what defendant would do to him-he had been threatened to be kicked out of the house by his dad before. G.K. also told a cousin about the abuse in 2010. He did not get a green card until 2012. He moved out of the family home when he was 27 years old. He suspected what was happening with his sisters because they would go into defendant's bedroom for hours. Once, Ge. had confronted G.K. by asking him what was happening to G.K. when he went into defendant's bedroom, but he refused to tell her anything, and she told him not to go back into the bedroom. One day in 2018, Ge. randomly came to G.K.'s house to tell him defendant had been arrested; before this, G.K. had not known Ge. reported the abuse to the police. G.K. decided to talk to the police, too.
Ged., the youngest child of N.K. and defendant, was 25 years old when he testified. He was six or seven years old when his parents sold the liquor store and purchased the sporting goods store. He spoke English with defendant growing up. He remembered an incident when defendant took him to the Amazon when he was about eight years old; for reasons he could not understand at the time, his sisters were upset that he was going. Over the years, Ged. could not remember any time Gi. had avoided defendant at family gatherings; all the children were happy to be around their father at times because they loved him. However, he felt defendant's character was not particularly good. He remembered that N.K. had looked after both Gi.'s and Ge.'s children at the family home, and defendant would be around throughout that time once he was home from work.
In about 2014, Ge. talked to him about the abuse she had suffered. She told him that she, Gi., and she suspected G.K., had been sexually abused by defendant while growing up. As they talked, Ged. said he had suspected this because he had a memory when he was about three years old of being in defendant's bedroom and watching a movie on the television when defendant and Gi. walked in, and he was asked to leave. Although he left the room, he came back in and saw his sister completely naked while his father was naked but for socks, and they were on the bed. He did not know what he was seeing, but the memory had stayed with him.
He has since spoken with Gi. about that incident. He was babysitting Gi.'s daughter at their parents' house, and Gi. reminded Ged. that her daughter was never to be left alone with defendant. When Gi. came back to the house, she discovered that Ged. had become distracted; she was visibly frustrated and asked where her daughter was- they found Gi.'s daughter in the backyard with defendant. When Gi. got her daughter, she asked Ged. to take a ride with her and she told him on the drive that she did not want her daughter around defendant because defendant had abused her while she was growing up. She did not give details, but the implication was that the abuse was sexual in nature. Ged. felt there were subtle signs of the abuse of all his siblings while he was growing up. G.K. had hinted at some things, and years later there were more explicit conversations between them.
Ged. sought mental health therapy from the same group where Ge. received therapy because he was depressed and traumatized. When he agreed to be interviewed by police in 2018, his therapist accompanied him because he was too scared to go alone.
N.K. testified she had married defendant in Bolivia when she was 25 or 26 years old; he is the father of all four of her children. He moved to the United States first, and N.K. and their three children followed in August 1989. After she arrived in the United States, N.K. discovered defendant had a girlfriend; he introduced his girlfriend to the whole family. They moved to Visalia around 1991 and rented a house for about two years on Harvard Street. A couple of years later, they bought a house on Tracy Street. They were living on Tracy Street when their youngest child, Ged., was born. Defendant's girlfriend also moved to Visalia when the family moved; eventually, they "got past" the girlfriends and things were better. N.K.'s parents would send her money, which she would give to defendant.
When they moved to Visalia, they first purchased a liquor store; she helped defendant every day of the year in the store; she would do all of the home duties during the day, pick the kids up at school, and then she would go to the business from 4:30 p.m. until about 10:00 p.m. Defendant never let her close the business herself. That business was sold around 2003 or 2005 and they bought a new sporting goods store. After they bought that business, she stayed home with the children full-time.
When she was told defendant had been arrested, she knew why. She had discovered the abuse years before when Gi. and Ge. were 15 and 16 years old; Gi. had panicked about a note she had received from a boy that N.K. was going to tell defendant about. Gi. was in such fear of telling her father about the note that N.K. became suspicious, and it was then that Gi. confirmed her father had touched her. When N.K. discovered that, she was shocked. She confronted him about what the girls told her, but he denied it. She had asked G.K. years later about whether defendant had ever touched him, and he admitted defendant had. She told an extended family member, who advised N.K. not to tell anyone and to just continue with life. She never thought about reporting defendant to the police because she did not have any support or legal status.
N.K. confirmed the primary bedroom at the Tracy house had a lock on it; there was pornography hidden in the bedroom closet, and defendant would play pornography videos sometimes. In 2016, defendant told her he wanted a divorce. They had been sleeping in separate rooms for a while. Defendant filed for divorce in Bolivia without telling her in 2017, a few months before her father passed away. She had told Ge. about the divorce. N.K. was upset because his petition for divorce in Bolivia listed only three children and no assets. N.K. ended up hiring her brother's lawyer in Bolivia, and she had retained a lawyer in the United States, and she filed for divorce here. After her father passed away, N.K. went to Bolivia for a few months. When she arrived home in May 2018, Gehdan drove her to her house and she discovered defendant's family had changed all of the locks and refused to let N.K. inside.
Detective Grant testified that during a search of defendant's home in 2018, a pornographic video labeled "Cinderella" was located. The first part of the videotape, however, featured four seconds of video showing defendant sitting on the couch with his wife in his underwear. No videotapes that depicted the children were found. He testified about his interrogation of defendant, and the recording of it was played for the jury.
In the interrogation, defendant first denied doing anything to hurt his children. As the interrogation progressed, defendant stated he was concerned about his children's sexual education; he never raped them, but he wanted to show them "how it's done right." He claimed that "90 percent" of that education was just talking. He admitted to showering with the children, and he showered with Ge. until she was 14 years old, but indicated this was acceptable in his culture. He adamantly maintained during the interview he had never forced his children to do anything, and that the sexual education of his daughters did not begin until they were 13 years old.
Specific to Ge., defendant could not remember if he had "real, real oral sex [with her] or just explain[ed] to her how it works." He could not recall because it was mostly "superficial." Defendant conceded that he "probably did" engage in oral sex with Ge., although he maintained it was just for educational purposes. When Grant told defendant that Ge. claimed she was 10 years old when defendant taught her about masturbation, he responded that she was not that young.
Defendant denied having sexual intercourse with Ge., but he later said they did not engage in "full penetration," and that Ge. had not bled nor was she forced. When asked how many times he engaged in vaginal intercourse, defendant said it was one or two times with both Ge. and Gi. He admitted to having a camera on a tripod in his bedroom, but he never turned it on. When, as part of a ruse, Grant said that he had seen the tapes of the girls that had been recorded, defendant indicated the girls must have recorded him. When Grant told defendant the tapes showed him having "full on" penetration sex, defendant responded that he "always thought [he] didn't have full sex."
Defendant denied that he ever engaged in anal sex with Ge., that he ever told Gi. that he wanted to have a child with her, or that he had ejaculated inside Gi.'s vagina-he made sure to ejaculate outside to prevent her from getting pregnant. He had used a condom once, but could not remember with which daughter. He denied having any sexual relationship with G.K.
II. Defense Case
Two of defendant's nieces testified on defendant's behalf. L.D. testified she had seen defendant interact with his children at family functions and they never appeared reluctant to be around him. She had been alone with defendant while she was growing up and never felt he ever did anything inappropriate. She became aware that Ge. and Gi. were making accusations against him in 2018. The sisters came over to L.D.'s mother's house and they talked about the situation. Both sisters claimed defendant abused them, which was shocking to hear. L.D. felt their stories conflicted. For example, Gi. claimed the abuse was on a different schedule than claimed by Ge. When asked why they let their children be near defendant, the sisters claimed they did not think anything would happen to any other children.
Defendant's other testifying niece, D.S., was 19 years old at the time of trial. She had gotten to know defendant and his children when she was growing up. She never saw anything inappropriate, and she never saw defendant's children ever try to avoid him. D.S. has been alone with defendant frequently during her childhood, and he has never done anything inappropriate. Gi. has let defendant babysit her children. According to her, defendant is not the type of person who would molest a child.
Defendant's sister, S.K., testified she knows defendant and his children; she would see them on weekends and at family events. She saw his children grow up and she has been around them since they were young; she never saw them show fear of defendant or avoid him. They seemed close to him. Although defendant was often alone with children, no one had ever complained about anything sexual defendant ever did. He never raped or abused S.K. when she was a child or as an adult. She also knows N.K., defendant's wife, and she had a conversation with N.K. in 2018 in which N.K. claimed defendant had abused the children. She told S.K. to tell defendant that he had better change his mind about the divorce or N.K. would make defendant end up under a bridge and everyone was "gonna end up crying tears of blood." S.K. then talked to defendant and told him what N.K. had said; he had the ability to leave the country at that time, but did not do so. Defendant gave S.K. power of attorney, so she has taken care of his assets. After his arrest, she changed the locks on the house while N.K. was in Bolivia.
Dr. Gary Longwith, a clinical psychologist, administered an array of psychological tests on defendant. From those tests, there was no indication defendant was malingering. Dr. Longwith also administered a test that was designed to evaluate a person's suggestibility in the context of police interrogation. Defendant performed about average compared to the general population, suggesting he was as prone to suggestibility as anyone else would be in the context of interrogation. Other tests indicated defendant was at low risk of committing violence or sexual violence. Nothing suggested defendant has any mental health issues or pathologies. He tested as at low risk for committing a sexual offense. Defendant also did not meet the diagnostic criteria for pedophilia, and defendant did not fit the profile of the typical pedophiliac.
Dr. Longwith recounted difficulties communicating with defendant in English. He had to talk very slow and repeat himself for defendant to understand what he was trying to say. It got to the point that Dr. Longwith did not trust defendant to read the test instructions and narratives himself, so he read them to defendant to make sure he understood each question.
Dr. Longwith also testified about the development of police interrogation techniques, including the Reid technique which is a two-step interview process. First, an interrogator meets a suspect and conducts a nonaccusatory interview. During this portion, the interrogator will decide if the person is guilty. If not, the interview is over. If the interrogator believes the suspect is guilty, then the interrogator moves into the second part of the interview. In this portion, the suspect is not allowed to deny the crime-the interrogator will not accept a denial. The purpose is to increase the suspect's anxiety and make it easier for the suspect to give a confession. This includes methods like placing the suspect in a small room with no windows, leaving them alone for a while to increase anxiety, and the interrogator will often place himself between the suspect and the door. The interrogator might minimize conduct such as offering excuses or accidents as the explanation. This also helps to move a defendant into the position where he or she doubts things and starts to feel helpless. The interrogator will guide the suspect to feeling forced to make a choice between appearing more guilty or less guilty. Research has shown one of the problems with this interview technique is that it inadvertently leads defendants to particular details; once a person confesses, they may simply be repeating details they were given by the interrogator. He was unfamiliar with Grant's interrogation tactic of telling defendant there were three sides to every story.
Dr. Longwith explained that memories can change over time, and medication, trauma, leading questions, and learning new information from other people can all color how memories are perceived. Adults who are depressed with trauma are vulnerable to therapy-induced memories where the therapist suggests something happened in the past. While it is possible for a child as young as three and one-half years old to retain memories, this is rare.
Defense counsel also introduced several photographs of defendant with Gi. and Ge. at various functions throughout their lives, including Ge.'s wedding and graduation. Ge. was smiling in some of the photographs. One photograph showed defendant holding Ge. and Gi.'s children.
DISCUSSION
I. Admissibility of Defendant's Interrogation Statements
Defendant contends the court erred in admitting his interrogation statements because he did not knowingly and intelligently waive his Miranda rights.
A. Relevant Background
Defendant was arrested and interviewed in a police interview room by Detective Grant on May 10, 2018. During the interrogation, defendant made several incriminating statements regarding sexual incidents with Ge. and Gi. Prior to trial, defendant filed a motion to suppress the interview statements on the ground the Miranda waiver was not valid. Defendant argued he did not knowingly and intelligently waive his rights because the Miranda warnings were given in English of which defendant has a limited understanding as a native Spanish speaker.
At the hearing on the motion, Detective Grant testified defendant had been arrested around 5:30 a.m., and Grant contacted defendant at the police station around 7:30 a.m. for an interrogation, which was both audio- and video-recorded. Grant testified he started the interview with about 15 minutes of "small-talk," which included general rapport-building discussions. Just before reading the Miranda advisement to defendant, Grant told defendant there are three sides to a story, and then read defendant his Miranda rights from a department-issued card. After the rights were read, defendant was asked whether he understood those rights and he responded "'[y]eah.'" Defendant never indicated he did not want to speak with Grant, and he never said he was confused about his rights or asked for an interpreter. The interview was conducted in English, and it appeared to Grant that defendant spoke English well and understood it.
Dr. Longwith also testified during the suppression hearing that he had interviewed defendant for psychological purposes and had concerns about defendant's English language abilities. For that reason, Dr. Longwith's evaluation of defendant took a long time, and when Dr. Longwith read through the police interview, he noted that Detective Grant and defendant appeared not to communicate well on many occasions during the interview. More specifically, Grant would say one thing and defendant's interpretation was something different based on defendant's response to what Grant had said.
The trial court concluded defendant's waiver of his Miranda rights was knowing, intelligent and voluntary. After reading the transcript and watching the lengthy interview, the court concluded defendant had a "sufficient command" of English to understand and knowingly and intelligently waive his rights. The court observed defendant's interview went on "for some time," during which there were points where defendant had difficulty understanding and asked questions, yet defendant responded appropriately and intelligently to questions he was asked. While defendant was identifiable as someone who spoke English as a second language, and the court observed defendant's grammar was not perfect, the court concluded that, overall, defendant presented as someone who clearly understands English well and "is able to speak it well and understand it." The trial court pointed out defendant had been running his own business in this country, he told Detective Grant he understood his rights, he continued to speak with Grant once the rights were read and questions began, and defendant explicitly told Grant he did not know exactly what Grant wanted to know but to "'go ahead and ask me the questions.'" Later in the interrogation, the court noted, Grant reminded defendant that he did not have to talk to Grant if he did not want to; in response, defendant made clear he was voluntarily speaking with Grant. The court concluded the interrogation statements were admissible.
B. Analysis
"'To safeguard a suspect's Fifth Amendment privilege against self-incrimination from the "inherently compelling pressures" of custodial interrogation (Miranda, supra, 384 U.S. at p. 467), the high court adopted a set of prophylactic measures requiring law enforcement officers to advise an accused of his right to remain silent and to have counsel present prior to any custodial interrogation (id. at pp. 444-445).' (People v. Jackson (2016) 1 Cal.5th 269, 338-339.)" (People v. Leon (2020) 8 Cal.5th 831, 842843.) A suspect who hears and understands these rights may waive them. (Id. at p. 843, citing Maryland v. Shatzer (2010) 559 U.S. 98, 104; accord, People v. Tate (2010) 49 Cal.4th 635, 683.) "The waiver must be 'voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception' (Moran v. Burbine (1986) 475 U.S. 412, 421), and knowing in the sense that it was 'made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.' (Ibid.)" (People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 219.)
"Although there is a threshold presumption against finding a waiver of Miranda rights [citation], ultimately the question becomes whether the Miranda waiver was knowing and intelligent under the totality of the circumstances surrounding the interrogation." (People v. Cruz (2008) 44 Cal.4th 636, 668.) The prosecution has the burden of proving by a preponderance of the evidence that the waiver was knowing, intelligent and voluntary under the totality of the circumstances. (People v. Leon, supra, 8 Cal.5th at p. 843 .) "This analysis requires an evaluation of both the defendant's state of mind and circumstances surrounding the questioning. [Citations.] On appeal, we accept the trial court's factual findings and credibility assessments if supported by substantial evidence. [Citations.] '"'"We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained."'" [Citations.] Where, as was the case here, an interview is recorded, the facts surrounding the admission or confession are undisputed and we may apply independent review.'" (Ibid.)
As he did before the trial court, defendant argues that he did not knowingly and intelligently waive his Miranda rights because, as a native Spanish speaker, he did not speak English well enough to understand his rights when they were read, and his one-word response ("'[y]eah'") that he understood the Miranda advisements should have indicated to Grant that defendant did not understand his rights or wish to waive them.Defendant contends that even if he could carry on a basic conversation with Grant in English, this does not mean he understood his rights when they were read to him. Defendant points out he had no prior experience with the legal system and that Dr. Longwith raised concerns about defendant's language abilities within a legal setting.
Defendant does not contend the waiver was involuntary.
The People maintain the interview recording demonstrates defendant had a sufficient grasp of English to understand his rights and the consequences of waiving them. Defendant engaged well in about 12 minutes of conversation in English before his rights were read to him; he expressed no confusion, answered questions appropriately, did not voice a preference for Spanish nor did he speak any words in Spanish in talking with Grant. After his rights were read, defendant told Grant he was unsure what Grant wanted to know, but invited Grant to "go ahead, ask me the questions." Grant reminded defendant during the interview he did not have to talk to Grant if he did not want to, and defendant said he did not mind "saying something very simple" because Grant had "been nice" to defendant. Further, defendant described in detail some of the events with his daughters leading to the current charges. Finally, while defendant's acknowledgment that he understood his rights was unemotional and soft-spoken, the People assert that describes defendant's conversation style throughout the interview and does not meaningfully suggest he did not understand his rights.
Even when a defendant has limited English skills, he or she may knowingly, intelligently and voluntarily waive Miranda rights, provided the totality of the circumstances indicate that he or she understood those rights when they were waived. (People v. Salcido (2008) 44 Cal.4th 93, 127-129; United States v. Amano (9th Cir. 2000) 229 F.3d 801, 804-805; see United States v. Bernard S. (9th Cir. 1986) 795 F.2d 749, 752 [while the defendant clearly had difficulties with English and required an interpreter at trial, his waiver was nonetheless valid; notably after police explained each of his rights to him in English, and the defendant stated in English that he understood his rights].)
In determining the knowing and intelligent nature of a waiver, the totality of the circumstances include factors such as (1) the defendant's mental capacity; (2) whether the defendant signed a written waiver; (3) whether the defendant was advised in his native language or had a translator; (4) whether the defendant appeared to understand his rights; (5) whether the defendant's rights were individually and repeatedly explained to him; and (6) whether the defendant had prior experience with the criminal justice system. (United States v. Price (9th Cir. 2019) 980 F.3d 1211, 1226; People v. Suarez (2020) 10 Cal.5th 116, 160.)
Language issues are a significant factor to be considered in assessing the adequacy of Miranda advisements and the validity of waivers in every case. Defendant is not a native English speaker, and the video of his interrogation demonstrates defendant's English-speaking abilities are imperfect. For example, sometimes defendant incorrectly conjugated verbs, left out certain words, and/or spoke in fragmented sentences. Despite the imperfection of his English language abilities, however, the totality of the circumstances sufficiently demonstrate defendant understood his Miranda rights and knowingly, voluntarily and intelligently chose not to exercise his right to remain silent. (See, e.g., People v. Parker (2017) 2 Cal.5th 1184, 1216 [valid waiver of rights may be implied from the defendant's words and actions].)
As a matter of context, at the time of his arrest defendant had been in the United States more than 25 years, he purchased and ran a business in the United States for almost all of those years, and, as his children all testified at trial, defendant spoke English with them at home. The interrogation recording demonstrates defendant is proficient in English and understood his rights when they were explained to him. Specifically, defendant was able to communicate effectively with Grant in English for approximately 12 minutes before his rights were read. Although Grant picked up his speaking cadence when reading the Miranda advisement, defendant expressly answered he understood.
While defendant argues his answer was "muted," and he did not nod his head or give any other physical gesture he really comprehended his rights, by itself this is not evidence of his lack of understanding. Looking at the interaction in context, defendant expressly stated he understood his rights and Grant followed up by asking him if he wanted to talk to clear up some of what was being said about him. Although defendant did not respond immediately, once Grant told defendant he had talked to Ge. and Gi., defendant said he did not know exactly what Grant wanted to know but to "go ahead, ask me the questions."
Given defendant's already-demonstrated English proficiency, coupled with his express acknowledgement he understood his rights, there was nothing about his tone or demeanor that signaled he did not understand his rights or the consequences of waiving them. (See United States v. Guay (4th Cir. 1997) 108 F.3d 545, 549 [finding waiver valid even though the defendants were French-speaking because officers read the Miranda rights aloud, asked the defendants if they understood their rights, and the defendants responded affirmatively]; see also United States v. Rodriguez-Preciado (9th Cir. 2005) 399 F.3d 1118, 1127-1128 [Spanish-speaking defendant's waiver of rights voluntary, knowing and intelligent because the defendant indicated he understood his rights after they were read to him and there was no indication the defendant had trouble understanding English].)
Defendant interacted with Grant for three hours in English during the interrogation; he answered questions appropriately and indicated a conceptual understanding of what was being asked. For example, when questioned whether he was "strict as a father," defendant answered he had "never been extremely mean to [the children]... [he] don't treat them bad or never beat .." Defendant also navigated English phrases that were more figurative than literal in meaning. For example, when Grant asked if defendant would "ground" the children, defendant explained he would "ground them" with something they liked, such as "not watch movie or not play game and something like that .."
Defendant also introduced contextually appropriate and accurate English words or phrases into the interrogation that had not been used by Grant. When asked if he had ever "had any sexual touch with any of your girls," defendant said, "Extreme sexual, I never have. Like, rape something like that, I never did that." Rape was not a word Grant had used. When subsequently asked to define "rape," defendant described it as forcing people to have "sex or penetration." When Grant used the word "heritage" in referencing cultural differences between the United States and Bolivia, defendant knew how Grant was using the word "heritage" and explained it was not against his "culture" to teach his daughter anything for which she asks. Defendant also introduced the word "masturbation" when describing the types of questions his children might ask. Further, defendant comprehended more colloquial English phrasing. When asked whether he "licked [Ge.'s] vagina," defendant responded that he "thought [he] never went down on her." Although he could not remember that happening, defendant claimed that if that had happened it was "for education and never forced."
Defendant exhibited no delays in comprehending questions; his answers were responsive and articulate and sometimes given at length. When he did not understand a word, he demonstrated a willingness to ask questions. For example, when Grant said he was investigating defendant for "possibly some lewd acts," defendant asked what that meant. Grant explained it meant sex with a minor, which defendant confirmed he understood. Defendant also understood why Grant continued circling back to certain questions: when Grant confronted defendant about when defendant had sex with Ge., defendant responded "I know you go around, you tell me I have sex with her because you want me to confirm that. But sex is when you have full penetration." Defendant went on to explain he never went that far; he never saw any blood as a product of the slight penetration that may have occurred. All of this indicates defendant had a good understanding of English and spoke proficiently.
Defendant points out that Dr. Longwith testified that his own interview of defendant was difficult because of language issues, and after review of the interrogation transcript, he felt that Grant and defendant often did not understand each other well during the interview. Moreover, defendant argues, just because he might have been sufficiently proficient in English to talk to Grant about what occurred with his children does not mean he understood the technical advisement under Miranda and his attendant legal rights. He notes Dr. Longwith thought defendant's grasp of English would make it difficult for him to navigate in a legal setting.
As it pertains to Dr. Longwith, he is a forensic expert in psychology with about 18 years of experience as a law enforcement officer. However, the record does not indicate he has any specialized expertise in assessing English proficiency to apply to his review of the interrogation transcript; his opinion of defendant's English proficiency is not entitled to any special deference. Indeed, we are better situated than Dr. Longwith to evaluate defendant's English abilities exhibited during the interrogation because we have an undisputedly accurate video of the interrogation, which reveals cadence, flow, and response time between the questions posed and answers given, which Dr. Longwith did not have the opportunity to consider as he reviewed only the transcript.
Further, while Dr. Longwith conducted his own interview with defendant to formulate a psychological evaluation, and he struggled to administer the various tests because of what he perceived to be defendant's difficulties with English, the contents of those evaluations are not in the record. In other words, we do not have the length of the questions posed or the words employed to evaluate whether defendant's struggles with Dr. Longwith's evaluation were due exclusively to limited English abilities or to the complexities of the questions/tests administered by Dr. Longwith. The interrogation reflects defendant does not speak perfect English, but he was able to effectively communicate for three hours over a range of topics. This was sufficient to demonstrate an ability to understand in English the basic concepts articulated in the Miranda advisement. While defendant had no prior criminal history that would indicate familiarity with the Miranda advisement, the advisement itself contained no specialized or technical language-it was designed for lay people.
There was one point that defendant said he might "mis-explain" something because of his English, and that he did not really like to talk about these things, but he was being forced to do so. At this point, Grant interrupted him and reminded defendant that he did not have to talk to Grant if he did not want to-defendant repeated he was willing to talk with Grant and continued to do so, saying he was "trying to be the most clear as possible." Defendant never once asked for an interpreter, lapsed into Spanish while giving his answers, or indicated he would have been more comfortable speaking Spanish.
Although defendant analogizes the situation here to the circumstances in United States v. Garibay (9th Cir. 1998) 143 F.3d 534 (Garibay), that case is readily distinguishable. In Garibay, the defendant was arrested attempting to drive marijuana into the United States at a port of entry along the United States-Mexico border. (Id. at p. 536.) About an hour after his detention, the defendant was interrogated by two customs officers who spoke to him in English, which the defendant indicated he understood, and they read him his rights in English. (Ibid.) Subsequently, the defendant made incriminating statements, which he later sought to suppress on the ground his waiver had not been knowingly and intelligently given due to his limited English-language skills and his low intellectual functioning. (Id. at pp. 536, 539.)
The trial court denied the motion to suppress, finding the defendant's waiver was valid. On appeal, the circuit court reversed. (Garibay, supra, 143 F.3d. at p. 536.) First, the circuit court pointed out the trial court had erroneously relied on the fact that the customs officers had offered the defendant the option of conducting the interview in Spanish and that he declined-in fact, however, neither finding was substantiated by the record. (Id. at p. 537.) Second, the court observed, the defendant understood only a few things in English; he had attended a United States high school, but did not graduate, and his passing grade in English did not reflect he was proficient because it was taught in Spanish. (Ibid.) Indeed, the probation officer learned from independent sources in the community that they believed the defendant could not speak English except for a couple of words. (Id. at pp. 537-538.) Every eyewitness who testified at the suppression hearing on the defendant's behalf testified they would always communicate with him in Spanish. (Id. at p. 538.) And, while a testifying customs officer indicated it was his impression the defendant understood English, the defendant's high school football coach testified that when under stress and interacting with persons of authority, the defendant often claimed to understand English and gave the appearance of comprehending when in fact he did not understand what was being said to him. (Ibid.) In addition to his fairly profound English language difficulties, the defendant also had "borderline retarded" intelligence. (Ibid.) Given all of these circumstances, the circuit court concluded the defendant did not knowingly and intelligently waive his rights read to him in English and the suppression motion should have been granted. (Id. at p. 539.)
While defendant concedes he does not have the same intellectual functioning issues the defendant had in Garibay, there are many other critical differences between Garibay and the circumstances here. In this case, there is a video and audio recording of defendant's interrogation; unlike in Garibay, where only the unsupported testimony of the interrogating officer was offered to prove the defendant understood English. Moreover, there were multiple witnesses in Garibay who testified the defendant knew only a few words of English and they always communicated with him in Spanish-which is not the case here. Defendant's grasp of English is far superior to the defendant in Garibay. While Dr. Longwith detailed his concerns about defendant's English abilities, the recording demonstrates defendant was able to communicate effectively with Grant in English at length and is sufficiently proficient in English to understand his rights and the consequences of waiving them.
In sum, defendant had a sufficient understanding of English and could speak it effectively. He navigated the three-hour interview answering questions appropriately and sometimes at length. His vocabulary was fairly robust, and he understood and could use colloquial phrasing that indicated a good grasp of conversational English. He expressly indicated he understood his rights when they were read to him, and he never asked for an interpreter or said he would have been more comfortable speaking Spanish. The totality of circumstances indicates defendant's implied waiver of rights was voluntary, knowing and intelligent.
II. Admissibility of Prior Acts Evidence
Defendant argues N.K.'s testimony about their sexual relationship was impermissible character evidence, and its admission here was erroneous under state law and so prejudicial it resulted in a fundamentally unfair trial, thereby violating defendant's federal constitutional right to due process.
A. Additional Background
Among other things, defendant's wife, N.K., testified about her sexual relationship with defendant. She testified defendant liked sex in "every way you can think about," including oral, anal and vaginal sex; they used Vaseline as a lubricant; and he always had some available. He liked to videotape their sex acts. In the early years of their marriage, he would use a cucumber to penetrate her vagina and she would use her fingers or a cucumber to penetrate his anus on occasion.
Defense counsel objected twice on relevance grounds-once when the prosecutor asked about the use of lubrication and once when the prosecutor asked whether food items were ever used during sexual activity with defendant. Both objections were overruled.
B. Legal Principles
Character evidence is generally inadmissible to prove a defendant's conduct on a specific occasion. (Evid. Code, § 1101, subd. (a).) With certain exceptions not relevant here, evidence of a person's character or trait of his character (whether in the form of opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. However, specific acts of prior conduct may be offered for a noncharacter purpose, such as "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, ...." (Id., subd. (b).)
When other acts evidence is introduced under Evidence Code section 1101, subdivision (b), the degree of similarity required with the charged offense necessary to establish probative value depends on the purpose for which it is offered. (People v. Merchant (2019) 40 Cal.App.5th 1179, 1191-1192.) "'The least degree of similarity between the uncharged act and the charged offense is required to support a rational inference of intent ....'" (Id. at p. 1192; see People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) "[T]o be admissible to prove intent, the uncharged [act] must be sufficiently similar to support the inference that the defendant '"probably harbor[ed] the same intent in each instance." [Citations.]'" (Ewoldt, supra, at p. 402.) While prior acts evidence may be relevant for a noncharacter purpose, the evidence may still be excluded under Evidence Code section 352 if its probative value is "substantially outweighed by the probability that its admission [would] ... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Ibid.)
We review a trial court's ruling under Evidence Code sections 1101 and 352 for an abuse of discretion. (People v. Thompson (2016) 1 Cal.5th 1043, 1114.) Under this standard, "'"a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice."'" (People v. Jones (2013) 57 Cal.4th 899, 924; accord, People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.)
C. Analysis
1. Forfeiture
As an initial matter, this claim was not preserved for appeal. Defendant never objected to N.K.'s testimony about prior sex acts with defendant as inadmissible character evidence under Evidence Code section 1101. Rather, defendant's two objections to this portion of N.K.'s testimony were for relevance, which is insufficient to preserve a claim under Evidence Code section 1101. (People v. Doolin (2009) 45 Cal.4th 390, 437 [relevance objection did not preserve claim of error under Evid. Code, § 1101]; People v. Valdez (2012) 55 Cal.4th 82, 130 [objections that evidence was irrelevant, cumulative, lacking in foundation, and prejudicial did not preserve for appeal claim that evidence was inadmissible under Evid. Code, § 1101, subd. (a)]; see People v. Pineda (2022) 13 Cal.5th 186, 234 [objection as lacking foundation did not preserve distinct argument testimony was inadmissible under Evid. Code, § 1101].)
Evidence Code section 353, subdivision (a), provides that a court may not reverse a judgment based on error in admitting evidence unless "'an objection to or a motion to exclude or to strike the evidence ... was timely made and so stated as to make clear the specific ground of the objection or motion.' 'In accordance with this statute, [the California Supreme Court has] consistently held that the "defendant's failure to make a timely and specific objection" on the ground asserted on appeal makes that ground not cognizable.'" (People v. Valdez, supra, 55 Cal.4th at p. 130.) Defendant has forfeited a claim under Evidence Code section 1101.
2. No Due Process Violation
Even considered on the merits, however, the claim fails. Defendant highlights four specific portions of N.K.'s testimony he claims were admitted erroneously: (1) that defendant "liked sex every way, every way that you can think about"; (2) that defendant likes "oral sex. He likes anal sex, [and] the regular sex"; (3) in past sexual encounters, defendant had used objects to penetrate N.K.'s vagina, and he had asked her to penetrate his anus with a foreign object and with her fingers; and (4) he had recorded their sex acts with a video camera on occasions.
Even if we assume arguendo these statements were admitted in violation of Evidence Code section 1101, this portion of N.K.'s testimony was harmless under the standard set forth in Watson, supra, 46 Cal.2d 818, 836, as discussed post. (See People v. Malone (1988) 47 Cal.3d 1, 22 [even "error in admitting other-crimes evidence" is subject to harmless error standard set forth in Watson].)
Defendant, however, contends that the admission of this portion of N.K.'s testimony violated his constitutional right to due process and, thus, the Chapman standard of prejudice applies. (See Chapman v. California (1967) 386 U.S. 18, 24 ["before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt"].) We disagree.
"Ordinarily, even erroneous admission of evidence does not offend due process unless it is so prejudicial as to render the proceeding fundamentally unfair." (People v. Esayian (2003) 112 Cal.App.4th 1031, 1042; see People v. Partida (2005) 37 Cal.4th 428, 436 ["the admission of evidence, even if error under state law, violates due process only if it makes the trial fundamentally unfair"].) "[E]ven the improper admission of evidence of uncharged crimes committed by the defendant does not ordinarily amount to constitutional error." (People v. Covarrubias (2011) 202 Cal.App.4th 1, 20, citing People v. Felix (1993) 14 Cal.App.4th 997, 1007-1008.) "To prove a deprivation of federal due process rights, [a defendant] must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial." (People v. Albarran (2007) 149 Cal.App.4th 214, 229 (Albarran).) "'The dispositive issue is . _ whether the trial court committed an error which rendered the trial "so 'arbitrary and fundamentally unfair' that it violated federal due process." [Citation.]'" (Id. at pp. 229230.)
This portion of N.K.'s testimony constituted an extremely minor piece of the prosecutor's case, and it was not particularly detailed or lengthy. Moreover, N.K.'s testimony was not inflammatory-none of the acts she described were criminal or connoted sinister behavior. (Cf. Albarran, supra, 149 Cal.App.4th at p. 230, fn. omitted [holding admission of entirely irrelevant gang evidence was "extremely and uniquely inflammatory" and violated due process].) Instead, she testified about consensual sex acts between spouses that was not violent or shocking; nor did it involve facts that invited or posed a particular risk that the jury would decide the case based on prejudice or animus. And, importantly, the prosecutor did not even mention this portion of N.K.'s testimony during closing arguments, let alone urge the jury to conclude that because defendant engaged in specific sex acts with his wife, he had the propensity to engage in those acts with his children. (Cf. People v. Garcia (2014) 229 Cal.App.4th 302, 310-319 [linking irrelevant evidence of the defendant's sexual orientation to the issue of motive to molest the child she was babysitting, the prosecutor essentially told the jury in closing argument the reason the defendant chose to victimize the child was because she is gay, inviting the jury to link homosexuality with pedophilia and thus causing a due process violation].) Viewing the effect of this evidence on the trial as a whole, it was not "'of such quality as necessarily prevents a fair trial.'" (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.) In other words, this was not "one of those rare and unusual occasions where the admission of evidence ... violated federal due process and rendered the defendant's trial fundamentally unfair." (Albarran, supra, at p. 232.)
3. Any Error Was Harmless Under Watson
The prosecution case was otherwise very strong, and this portion of N.K.'s testimony was an extremely insubstantial part of it. The victims testified when they were adults-their testimony was specific and articulate; they extensively detailed years' long abuse they had suffered from the approximate ages of nine to 16 years old, although Gi. had memories of an incident when she was about five years old. Their testimony was consistent in salient respects-each victim was corroborative of the others. The age range of the abuse was fairly uniform, and the abuse similarly ended when the victims individually told defendant they did not want to participate. The victims described similar sexual acts occurring primarily in the same place (defendant's bedroom of the family home) and at similar times (when N.K. was out of the house working at the store). Undercutting the defense theory that the victims fabricated the abuse years after it occurred because they were upset about defendant filing for divorce, the abuse was revealed years before to N.K. when the children were still in school, which N.K. confirmed. Ge. had also documented some of the abuse in her journals years before reporting, and those journal entries were introduced at trial. The victims testified they did not report the abuse to authorities sooner because they were embarrassed, feared reprisal from defendant, had worries about tearing the family apart, and were concerned it would cause immigration issues. Moreover, defendant made extremely damaging admissions during his police interrogation by acknowledging he engaged in vaginal intercourse with Ge. and Gi., which markedly reduced the efficacy of his defense that his children had fabricated the abuse.
As for the specific intent element that defendant committed the lewd acts with the intent to sexually gratify himself or the child as required under section 288, subdivision (a), N.K.'s testimony, even if relevant on this issue, was redundant of other evidence. The acts the victims testified about were inherently sexual in nature and, standing alone, strongly suggest defendant solicited or engaged in the acts with the intent of obtaining the sexual gratification of himself or the victim. Beyond this, the prosecutor elicited testimony from the victims about the sexual gratification component of the offenses: they detailed instances when defendant ejaculated during the acts. The absence of N.K.'s testimony that defendant enjoyed particular sex acts or engaged in particular sex acts for the purposes of gratification would not have undercut the prosecution case in any meaningful way. It is also extremely unlikely the jury drew an unreasonable and impermissible inference that because defendant engaged in various sex acts with his consenting wife, he had the propensity to engage in those kinds of sexual acts with his children. The prosecutor never invited or even suggested the jury make such an inference-this portion of N.K.'s testimony was not even mentioned in closing arguments, and N.K.'s testimony regarding her sexual relationship with defendant was extremely brief and limited.
Further, N.K.'s testimony that defendant had videotaped their sex acts in the past had some limited corroborative value as to Gi.'s and Ge.'s testimony that defendant had videotaped sex acts he performed with each of them. While this may have bolstered the victims' credibility on this issue, this was only a tangential detail. There is no reasonable probability the exclusion of N.K.'s statement would have resulted in a more favorable verdict.
On balance, the case against defendant was extremely strong-three victim witnesses testified at length about the abuse they suffered over a course of years, and defendant made key admissions during his interrogation regarding Ge. and Gi. There is no reasonable probability that, but for N.K.'s testimony about their sexual relationship, the jury would have reached a more favorable verdict.
III. Cumulative Error Doctrine
Defendant claims the cumulative effect of the asserted Miranda violation and the admission of evidence in violation of Evidence Code section 1101, even if harmless individually, were cumulatively prejudicial and deprived him of his federal due process right to a fair trial.
Under the cumulative error doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236-1245, disapproved on another ground in People v. Diaz (2015) 60 Cal.4th 1176, 1190.) As we have assumed only one error with respect to the admission of prior acts evidence, which was not prejudicial, there is no additional error to cumulate, and the doctrine is inapplicable.
IV. Sentencing Issues
A. Fine Imposed Under Section 294
Section 294, subdivision (b), provides that, "[u]pon conviction of any person for a violation of Section 261, 264.1, 285, 286, 287, or 289 or former Section 288a, where the violation is with a minor under the age of 14 years, the court may, ... order the defendant to pay a restitution fine based on the defendant's ability to pay not to exceed five thousand dollars ($5,000), upon a felony conviction, or one thousand dollars ($1,000), upon a misdemeanor conviction ._"
Here, the trial court imposed a $1,000 fine under section 294, subdivision (b), but defendant argues, and the People concede, that section 294, subdivision (b), does not authorize such a fine for violations of section 288. The parties agree this fine under section 294, subdivision (b), is unauthorized and must be stricken. We concur. All 64 of defendant's convictions are for violations of section 288, and the statute does not authorize a fine for convictions under that section. Accordingly, the $1,000 fine assessed under section 294, subdivision (b), is stricken.
B. Presentence Credit Calculation
The trial court awarded 1,408 total days of presentence credits, which consisted of 1,225 days of actual credit plus 183 days of conduct credit. Defendant contends, and the People agree, this award of presentence credits miscalculates the actual credit he should have received for the days he spent in custody.
Under section 2900.5, a defendant accrues actual custody credits for each day spent in custody prior to sentencing. Actual custody credits are calculated by adding together "all days of custody" the defendant has served. (Id., subd. (a).)
Defendant was arrested on May 10, 2018, and remained continuously in custody until he was sentenced on October 1, 2021. This totals 1,241 days, not the 1,225 days of actual credit the trial court awarded. The conduct credits must likewise be adjusted to reflect 15 percent of the modified actual credits-i.e., 186 days. (§ 2933.1, subd. (c) [notwithstanding § 4019, a defendant convicted of a violent felony under § 667.5, subd. (c), shall not earn conduct credits exceeding 15 percent of the actual period of confinement].) The judgment shall be modified to show 1,427 days of presentence credit comprised of 1,241 days of actual credit plus 186 days of conduct credits (15 percent of 1,241 days).
DISPOSITION
The unauthorized $1,000 fine under section 294, subdivision (b), is stricken. The judgment is also modified to reflect 1,241 days of actual days' credit plus 186 days of conduct credits for total presentence credit of 1,427 days. The judgment is otherwise affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting these modifications and forward a certified copy to the appropriate authorities.
WE CONCUR: DETJEN, Acting P. J. SNAUFFER, J.