Opinion
F084463
11-16-2023
THE PEOPLE, Plaintiff and Respondent, v. FRANK ARTHUR LIND, Defendant and Appellant.
William I, Parks, 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 Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F18905856. Alvin M. Harrell III, Judge.
William I, Parks, 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 Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
INTRODUCTION
Stemming from the molestation of a child under the age of 14 years, defendant Frank Arthur Lind was charged and convicted by jury of two counts of committing a lewd and lascivious act on a child who is under 14 years of age (Pen. Code, § 288, subd. (a); counts 1-2), and one count of forcible oral copulation on a child who is under 14 years of age (§ 287, subd. (c)(2)(B); count 3). The jury also found true the special allegation that, as to each count, defendant had previously been convicted under section 288, subdivision (b), within the meaning of section 667.61, subdivision (d)(1). In a bifurcated proceeding, the court found true the additional special allegation that defendant had suffered two prior strike convictions under the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
All statutory references are to the Penal Code unless otherwise indicated.
On June 8, 2022, the trial court sentenced defendant to three consecutive terms of 25 years to life pursuant to the "One Strike" law (§ 667.61). On June 10, 2022, a second sentencing hearing was held to correct an error in the original sentencing. The trial court again sentenced defendant to three consecutive terms of 25 years to life under the One Strike law; however, because of the two prior strikes alleged and found true, the court tripled the term on each count to 75 years to life, for an aggregate total of 225 years to life under the Three Strikes law.
At both sentencing hearings, the trial court mistakenly referred to section 667.61, subdivision (d)(2), and to "section 667.61[, subdivision ](c)(2)(A)(i)."
Defendant makes multiple claims of error, including that the trial court improperly admitted prior acts testimony under Evidence Code sections 1108 and 1101; failed to instruct the jury on unanimity for count 2; erred by instructing the jury under both CALCRIM No. 375 and CALCRIM No. 1191A without proper tailoring of the instructions; improperly took the verdict in defendant's absence; and referenced an incorrect statute at the time of sentencing on June 10, 2022. Defendant also claims his counsel was constitutionally ineffective by failing to interpose sufficient objection to the prior acts testimony, for failing to object to the prosecutor's improper argument, and for failing to act as a conscientious advocate for defendant during examination of the victim.
With modification, as discussed below, we affirm the judgment.
FACTUAL BACKGROUND
I. The Current Offenses
The victim, John Doe, was living in Fresno County with his aunt, uncle and John's brother and two sisters between July 2017 and August 2018, the timeframe when the underlying events occurred. John was 13 years old in August 2018. Having met defendant through his aunt and uncle, John and his older brother R.O. would go to defendant's house to do various chores for which defendant would pay them. John remembered first meeting defendant around the time John needed money for a field trip and defendant offered to pay him if he would help defendant build a fence on defendant's property. After they were done working, defendant took John into the house, placed John on his lap, tickled John's stomach, and then reached down to touch John's penis over John's clothing. John told defendant to stop, but defendant did not stop until John began to cry. This first incident happened around July 2017.
A few months later, defendant took John to Squaw Valley in defendant's truck. Defendant stopped the truck before they arrived at Squaw Valley and touched John's penis underneath John's clothing. Defendant rubbed John's penis and touched John's buttocks. R.O. was not with them during this incident; R.O. was never around when defendant touched John sexually.
In a separate incident, when John was at defendant's house, he and defendant played a dice game where if John rolled a high number, he would have to take off some of his clothing. They played the game until John had only his underwear on, and defendant said he had to take those off, but John refused. They stopped playing the game, and defendant took John home.
John recalled three separate incidents when defendant orally copulated him. In one incident when John had finished working for defendant on his property, he and defendant were sitting on defendant's bed and defendant started touching John's penis with his hand underneath John's underwear. John had taken his pants off because defendant said he was going to "do something" but did not specify exactly what he was going to do, which worried John. After John's pants were off, defendant put his mouth on John's penis. John felt scared and worried, told defendant to stop, and tried to push away. At first, defendant refused to stop; John began to cry, asked defendant to stop a second time, and then defendant stopped.
In another incident a couple of weeks before defendant's arrest, John remembered being in defendant's truck in an orchard when defendant offered John money if he would allow defendant to orally copulate him. Defendant proceeded to orally copulate John, but then John asked defendant to stop. Defendant still paid John $80, but told John it wasn't worth the money.
Subsequently, on the evening of August 26, 2018, defendant started texting John and they agreed to meet at a corner store near John's house. John snuck out of the house around midnight, walked to the store, and defendant arrived about five minutes later. They picked up some fast food, sat in the car and ate, drove around for a bit and then went to defendant's house. They played some games on defendant's bed, and defendant started rubbing John's back with lotion, and then defendant orally copulated John. John later fell asleep, and when he woke up the next morning around 6:00 a.m., defendant drove him back to the store where they had met the night before, and John walked home.
When John walked into his house, his aunt confronted him about having snuck out, and eventually John told his uncle generally that there was "inappropriate stuff" going on between him and defendant. John felt badly about the prospect of defendant going to jail as defendant had told John previously that he could not be in jail, and that he would probably die in jail-that was why John never said anything to anyone until the morning after he snuck out in August 2018.
At trial, John recalled that defendant had purchased him things, including socks and a backpack. Defendant had also purchased John a cell phone, and had bought John's brother, R.O., a SIM card. The sexual incidents often started with tickling, and John and defendant had gone up to Squaw Valley more than once. John could not recall how many times defendant had touched him, but it was more than 30 times. John had snuck out of his house about three or four times to meet with defendant, and they had always met at the same store, usually around midnight.
When defendant was not touching him, John thought it was fun to work for defendant. Defendant was nice to John most of the time, and John had considered defendant a friend. He kept going to defendant's house because he didn't think the touching would happen-it was intermittent, and he never knew when or if it would occur; defendant made it all seem innocent. He also liked the money from the work.
According to John's older brother, R.O., they had met defendant through his uncle. R.O. would see defendant whenever he offered to pay them for work. R.O. remembered an incident where John and defendant were "horsing around," which R.O. found inappropriate: defendant and John were poking each other in the area of their penises. Other than this incident, however, R.O. did not see anything else inappropriate. R.O. confirmed defendant had purchased him a SIM card for his cell phone, and he would text with defendant on occasion. Defendant never tickled R.O. or touched him sexually. R.O. explained that defendant would hint about his criminal history, and his aunt found out defendant had previously been convicted of child molestation a few months before John revealed what was going on with defendant.
II. Police Investigation
After John was caught having snuck out, the police were called on August 27, 2018, and defendant was interviewed by Detective Avila; the interview was played for the jury at trial. Defendant denied John had been to his house the night before, he denied knowing whether John had a cell phone, and he denied ever touching John inappropriately. Later in the day, defendant asked to speak to Avila again and conceded that John had been to his house the night before, they had just fallen asleep after playing games, and he had taken John home in the morning. Defendant again denied inappropriately touching John. This second interview was also recorded and played for the jury.
John underwent a SART (sexual assault response team) exam on August 27, 2018. A swab taken from John's penis revealed DNA from defendant. The source of the DNA, such as whether it came from saliva, was not known-the criminologist testified the DNA could have come from anywhere on the contributor's body. The criminologist explained that a direct transfer (person to person contact) was more likely than a secondary transfer, such as DNA shed from a secondary transfer item, but both scenarios were possible.
On September 7, 2018, Avila interviewed John. He told Avila he had first met defendant when defendant had called John's aunt and asked if John could help defendant build a fence. John agreed because he needed money for a field trip. Although nothing happened on that occasion, when John helped defendant on subsequent occasions defendant started touching his penis. John estimated defendant had touched him at least 30 times. John described an occasion when they went into defendant's house, and defendant grabbed him and put John on his lap; he started touching John's penis and when John told him to stop, defendant held his arms so John could not fight, and John started crying.
John never told anyone what was happening because every time he became angry at what defendant was doing and would threaten to tell someone, defendant would make John feel guilty and tell John that he would not want defendant to go to jail, and he would promise to stop touching John.
John said defendant had purchased a cell phone for him sometime in May or June 2018, and he would send text messages to John on that phone. On the night of August 26, 2018, John had snuck out of the house around 11:00 p.m. after defendant had texted him. John thought defendant was just going to buy him something to eat, but he did not take John home right away after that. They went back to defendant's house where they played a game. John said his back was hurting, so defendant told him to take off his shirt and defendant rubbed lotion on his back. Defendant subsequently touched John's penis, John screamed and told him to stop and defendant stopped touching him and went to the other side of the bed and fell asleep. John fell asleep and woke up around 5:00 the next morning.
John described several occasions where defendant orally copulated him. For example, John recalled that when defendant purchased the cell phone for him, he told John it was "'gonna cost you to get you that phone.'" When defendant gave John the phone, John was excited and started to unpack it and turn it on, but defendant took away the phone and orally copulated him. He described things defendant would buy for him such as food, soda, chocolate milk, and energy drinks. John estimated he had snuck out to meet defendant about seven times, and it would usually be around midnight; he would meet defendant at a nearby convenience store.
Avila also interviewed R.O., who said he stopped helping defendant because he did not like defendant's attempts to tickle him, and he saw defendant and John poking each other's private parts inappropriately on a trip to Squaw Valley the three of them took.
III. Additional Trial Evidence A. Expert Testimony
Blake Carmichael, a clinical psychologist at the University of California, Davis testified about Child Sexual Abuse Accommodation Syndrome, which he described as an educational tool that helps people understand the myths and misconceptions about child sexual abuse victims, including why children might not tell anyone right away and why a child might not appear fearful of the perpetrator or would seem to enjoy the relationship with the perpetrator.
B. Cell Phone Data
Avila testified extensively about the text message communications between defendant and John. None of the text messages were sexual in nature, but they were frequent and indicated defendant had asked John to sneak out of the house late into the night on different occasions to meet with defendant. Messages confirmed defendant had purchased the cell phone for John, was encouraging John to seek legal emancipation from his aunt and uncle and was urging John to come live with defendant. There were nearly 700 text messages between defendant's and John's phones between August 5 and August 25, 2018.
C. Prior Acts Evidence
The prosecutor called several witnesses to testify about uncharged prior sexual offenses defendant had committed against two other young boys in the late 1980's.
1. J.L.
One of these two prior victims was J.L., who was 45 years old when he testified at this trial. He had first met defendant when defendant moved into a shack behind J.L.'s parents' house in 1981 or 1982. Later, defendant moved into a house next door. J.L. recalled an incident when he was about six years old; defendant showed him pornography and then came behind J.L., wrapped his arms around J.L., and touched J.L.'s genitalia outside his clothing. That incident occurred in the shack, and then J.L. went home. Defendant gave him chocolate milk and donuts.
J.L. testified defendant touched his penis approximately 50 times. One time, defendant threatened to chloroform J.L.; he used rubbing alcohol on a cloth and put it to J.L.'s face, causing J.L. to have an asthma attack, while then reaching inside J.L.'s pants and touching his penis. Another time when J.L. was about 10 years old, defendant used a knife and held it to J.L.'s throat and then proceeded to touch J.L.'s genitals. On another occasion, defendant tried to tie him up with something like an electrical cord. Defendant threatened J.L. repeatedly not to tell anyone.
J.L. recalled that defendant broke into his parents' house multiple times to assault J.L. sexually. There was a broken window that defendant would use to get into the house to get access to J.L., and when J.L. figured out how defendant was getting in, he started stacking things in front of the window to block it. Defendant had also tinkered with the lock on the front door so that it would not lock properly.
Defendant gave things to J.L. like baseball cards, but if J.L. asked for things like baseball cards or donuts, defendant told J.L. numerous times it was going to "cost" J.L., which J.L. understood to mean defendant was going to touch him. Defendant would tickle him sometimes, and he could remember one incident where defendant started tickling J.L. when they were in defendant's truck, and then defendant molested J.L. Defendant also took pictures of J.L. and then threatened to show them to J.L.'s school classmates; J.L. remembered asking an investigating deputy to please find the pictures.
J.L. recalled a separate incident when defendant was trying to pull J.L's pants down, and J.L. was struggling to keep them up. Defendant threatened J.L. not to tell anyone about the touching on many occasions, but, in particular, he threatened to kill J.L.'s parents and told J.L. that they would never find J.L.'s body if he told anyone. J.L. could not remember if defendant had ever orally copulated him, and while he could not recall telling an investigating officer that defendant had never done so, he thought there was no reason to believe that was incorrect.
2. B.N.
The second prior victim, B.N., was 46 years old when he testified at trial. He was a friend and neighbor of J.L. when they were kids. He could not remember how he met defendant, but he probably helped him with yard work. Defendant would often give B.N. things like a tape player, baseball cards, popsicles and sodas. B.N. remembered defendant holding him down and touching his penis and scrotum about five different times. The last time he recalled being touched, he was at defendant's house where defendant was making a baseball card box; defendant locked all the doors. B.N. remembered defendant took B.N.'s shorts down and started touching B.N.'s penis. Defendant also showed him pornography.
B.N. could not recall the first time something sexual happened with defendant; he could recall only the last time specifically. He could not remember any incident where defendant orally copulated him or threatened him.
3. Investigating Sheriff's Deputies
The deputies who interviewed J.L. and B.N. in 1987 also testified. Deputy Jose Flores testified he interviewed J.L. in August 1987, and J.L. told him that defendant had offered him some baseball cards if J.L. would remove his clothing. Defendant had threatened to bury J.L. and his parents alive, and J.L. was convinced the threats would be carried out, and that was why he had not revealed to his parents that defendant had been molesting him. J.L. relayed to Deputy Flores that defendant told J.L. it would be useless to tell anyone because there was no evidence. J.L. decided to report defendant when defendant left town for a few days on vacation.
Detective Linda Stark also interviewed J.L. in 1987. He told her that defendant had been touching him since defendant had lived in a shack behind J.L.'s parents' house; J.L. said that one time defendant had tried to tie him up because he did not want J.L. to fight him, but J.L. had gotten away. He was scared and he thought he could tell his parents because defendant was gone on vacation at that time.
Detective Stark also spoke with B.N. on September 1, 1987, who said that defendant had touched him two or three weeks before he left to visit his dad over the summer. At that time, defendant was making him a box for the baseball cards defendant had given him. B.N. told the officer that defendant would give him money sometimes if he came over to mow the lawn, and that defendant would show him pornography. When Stark interviewed defendant, he admitted to touching the boys, but said he was not trying to have sex with them. Defendant admitted the last time he touched B.N. was before he went to stay with his father in Kentucky. Defendant also admitted he had touched J.L. three or four times inside of his pants and touched him outside of his pants a number of times. Defendant denied threatening anyone, but he acknowledged he had told J.L. not to tell anyone.
D. Defendant's Prior Sex Offence Conviction
A section 969b packet of documents was admitted into evidence through a testifying witness. The documents in the packet showed that defendant pled guilty in 1988 to one count of committing a lewd and lascivious act, and one count of committing a lewd and lascivious act by force pursuant to section 288, subdivisions (a) and (b), respectively. Defendant's prison sentences for these offenses were fully served, and he was released from prison in July 1999.
E. Defendant's Testimony
Defendant testified in his own defense. He admitted he had committed the priors, but he had consistently registered as a sex offender since he was released from prison. He denied ever molesting or touching John, and he denied texting with John the evening before his arrest; he had seen John the evening before standing outside a convenience store, but he had not communicated with him ahead of time. John got into the truck, and they purchased fast food. They went to defendant's house, ate the food, and then John said his back was hurting. Defendant denied ever touching John inappropriately. They woke up at around 6:00 the next morning, and defendant took John back to the convenience store and wished him luck. He never showed John any type of pornography. He acknowledged taking John to Squaw Valley once with R.O. Defendant also testified he had purchased a cell phone for John and a backpack, but these were not bribes for sexual contact.
Defendant admitted lying to Avila during his first interview, but then he told the truth in the second interview. He reiterated he never touched John inappropriately.
IV. Jury Verdict, Bifurcated Proceeding and Sentencing
At the close of evidence, after both parties rested their cases, the jury was excused and directed to reconvene on the following Monday, May 2, 2022. On that Monday, defendant appeared telephonically outside the presence of the jury. He indicated he was in the hospital to have his blood sugar regulated, and he agreed to waive his appearance for closing arguments. After an instructional conference between counsel and the court, the jury reconvened and was instructed that defendant was not present because he was having medical issues and that jurors were not to allow his absence to factor into their determination as to the verdict in the case.
The jury was then instructed, and counsel presented their closing arguments. At approximately 2:45 that afternoon, the jury began their deliberations. At 4:00 p.m., the jury submitted a request to the court asking for copies of the text messages between defendant and John, a readback of R.O.'s testimony, and a readback of John's and defendant's testimony regarding the Squaw Valley incident. The court stood in recess until the next day, May 3, 2022.
The next morning, defendant remained absent. The court conferred with counsel regarding the first jury request as well as several others throughout the day. At 2:56 p.m., the jury informed the court it had reached a verdict. The court then took up the issue of defendant's continued absence due to hospitalization, and concluded the verdict could be read in his absence.
The jury found defendant guilty on all counts and found true the special allegation on each count that defendant had suffered a prior conviction under section 288, subdivision (b), within the meaning of section 667.61, subdivision (d)(1). The court then informed the jury they were to return to court on the following Monday, May 9, 2022, for a bifurcated proceeding.
On May 9, 2022, defendant was present and waived a jury trial as to factors in aggravation and the prior strike allegations, and the jury was discharged. A court trial proceeded on the prior strike allegations, which the trial court found true beyond a reasonable doubt.
On June 8, 2022, defendant was sentenced to three consecutive terms of 25 years to life pursuant to the One Strike law. On June 10, 2022, the court resentenced defendant to three consecutive terms of 75 years to life pursuant to the One Strike law and the Three Strikes law.
DISCUSSION
I. Prior Acts Evidence
Defendant argues that even though the prior acts evidence regarding J.L. and B.N. was not inadmissible under Evidence Code section 1108 or section 1101, subdivision (b), it was unduly prejudicial and inadmissible under Evidence Code section 352. According to defendant, the trial court failed to conduct a careful review of the prior acts evidence, and erred by failing to assess and recognize the appropriate factors under Evidence Code section 352.
A. Additional Background
Through motions in limine, the People sought to admit testimony about two separate prior incidents of sexual abuse committed by defendant against B.N. and J.L. for which defendant pled guilty in 1988.
In addressing admission of this evidence under Evidence Code section 1108, defense counsel explained he "originally thought about requesting the Court, at least under [Evidence Code section] 352, maybe examine or limit or preclude the prosecution from doing some excess [Evidence Code section] 1108 witnesses. |¶|... [¶] ... [T]he reason I didn't-I know the prosecution, they had a certain amount to begin with, but they have fewer now. [¶] . [¶] . So I'm not-I didn't feel like it was as urgent in light of that. [¶] . [¶] . But that's-that's just something I just would add, and I think the
Court can do that on its own anyway, but I'll just bring that up." Defense counsel did not expressly state an objection to admission under Evidence Code section 1108, and simply submitted the issue to the court.
After reviewing a written summary of the prior acts testimony the prosecutor expected to elicit from B.N. and J.L., the court explained its ruling as follows: "All right. Well the Court believes that-and it obviously it fits within [Evidence Code section] 1108, both incidents one and two, but the Court still needs to do the balancing test under [Evidence Code section] 352. The Court finds this information highly probative, highly probative, and the Court does not find that the probative value of incident one and two is substantially outweighed by either the prejudice effect, the likelihood that it will confuse the jury or an undue consumption of time, so the Court does not believe that [Evidence Code section] 352 should exclude the introduction of these incidents under California Evidence Code Section 1108, and they will be allowed under [section] 1108."
As for admission under Evidence Code section 1101, subdivision (b), the prosecutor sought to admit the evidence to prove intent and absence of mistake under a separate motion in limine. Defense counsel stated there was no objection, and the motion in limine as to admission under that provision was also granted.
B. Standard of Review
The trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101, 1108 and 352 are reviewed for abuse of discretion.
(People v. Fuiava (2012) 53 Cal.4th 622, 667-668; People v. Cordova (2015) 62 Cal.4th 104, 132 [applying abuse of discretion standard to evidence admitted under Evid. Code, § 1108]; People v. Davis (2009) 46 Cal.4th 539, 602 [applying abuse of discretion standard to evidence admitted under Evid. Code, § 1101, subd. (b)].)) "'[T]he trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] [The trial court's] exercise of that discretion "must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice."'" (People v. Williams (2013) 58 Cal.4th 197, 270-271.)
C. Trial Court Did Not Err In Admitting Prior Acts Evidence Under Evidence Code Sections 1108 and 352
Defendant argues the trial court failed to conduct a careful review of the prior acts evidence under Evidence Code section 352 because it did not expressly evaluate the salient factors, and it did not consider less prejudicial alternatives by excluding some of the more inflammatory details of the prior offenses. By failing to do so, defendant argues, the trial court's admission of evidence violated state and federal law.
Subdivision (a) of Evidence Code section 1101 prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. (People v. Johnson (2022) 12 Cal.5th 544, 610; Evid. Code, § 1101, subd. (a).) Evidence Code section 1108 creates a narrow exception applicable in sexual offense prosecutions. (People v. Falsetta (1999) 21 Cal.4th 903, 911.) Under Evidence Code section 1108, subdivision (a), "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." This provision "was intended in sex offense cases to relax the evidentiary restraints [Evidence Code] section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant's other sex offenses in evaluating the victim's and the defendant's credibility." (Falsetta, supra, at p. 911.)
Even if admissible under Evidence Code section 1108, the court must exclude prior acts evidence under Evidence Code section 352 "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) The factors to be considered under Evidence Code section 352 depend on the facts and circumstances of each case. (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1116.)
However, "five factors stand out as particularly significant in an Evidence Code section 1108 case." (People v. Nguyen, supra, 184 Cal.App.4th at p. 1117.) These factors are "(1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show the defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant's charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time." (Ibid.) The trial court balances the probative value established under the first factor against prejudice as measured by the second through fifth factors. (Ibid.; People v. Branch (2001) 91 Cal.App.4th 274, 282 (Branch).)
As an initial matter, we note the trial court is not required to make detailed factual findings when excluding or admitting evidence under Evidence Code section 352. (People v. Anderson (2012) 208 Cal.App.4th 851, 879.) "'All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under Evidence Code section 352.'" (Ibid.) Here, the court expressly acknowledged it was required to conduct the balancing test under Evidence Code section 352 before admitting prior acts evidence under Evidence Code section 1108, and the court concluded the probative value of the prior acts evidence substantially outweighed any prejudicial effect, including the likelihood that it would confuse the jury or the risk of unduly consuming trial time. While the trial court did not expressly consider the remoteness of the prior acts or whether certain aspects of the prior acts evidence were inflammatory, we presume the trial court took these relevant factors into consideration. (See People v. Ramirez (2021) 10 Cal.5th 983, 1042 ["Absent evidence to the contrary, [appellate courts] presume that the trial court knew the law and followed it."].) Thus, no abuse of discretion is demonstrated simply because the trial court did not make express findings as to each relevant factor under Evidence Code section 352.
Further, upon examination of the factors, there is no basis to conclude the trial court abused its discretion by admitting the evidence under Evidence Code sections 1108 and 352. The prior acts evidence was extremely similar to the charged offenses, and thus was very probative. The victims of the prior acts were both male and were the same approximate age as John (all the boys were approximately 9-13 years old when the offenses occurred, although J.L. remembered one incident when he was six years old); the prior offenses and the current offenses all involved defendant touching the victims' penises under and over their clothing and none involved defendant exposing himself to the boys or having the victims touch defendant; defendant offered the victims similar types of inducements to come to his house and spend time with him (e.g., baseball cards and junk food) and/or paid the victims to perform chores around his house; and defendant used various degrees of force or duress on occasion to accomplish the touching of J.L. and of John.
As defendant points out, the prior offenses did not involve any acts of oral copulation, and the current offenses did not involve any physical violence or threats against John to keep quiet like those J.L. testified about-e.g., J.L. described being tied up, suffocated with a rag doused in alcohol, and held at knifepoint by defendant. Yet, even the oral copulation that occurred with John was of a similar nature to the prior offenses: defendant sought to touch the victims, but he did not seek to have the victims touch him. Further, while the threats and the degree of physical force J.L. described were not a feature of the molestation of John, John still described defendant holding onto him while defendant touched or orally copulated him on certain occasions while refusing to stop. Thus, even the distinctions among the prior and current offenses shared some common features. Moreover, these few distinctions did not detract from the overall similarities of the offenses and the probative value of the evidence. (Branch, supra, 91 Cal.App.4th at pp. 282-283 ["evidence of a 'prior sexual offense is indisputably relevant in a prosecution for another sexual offense.' [Citation.] [T]he reason for excluding evidence of prior sexual offenses in such cases is not because that evidence lacks probative value; rather, it is because '"it has too much." [Citation.]'"].)
Defendant argues the probative value of the prior acts evidence was undermined because the prior offenses were committed at least 35 years (occurring prior to 1988) before the current offenses (occurring from approximately 2017 through 2018). "Remote prior conduct is, at least theoretically, less probative of propensity than more recent misconduct. [Citation.] This is especially true if the defendant has led a substantially blameless life in the interim [citation] ...." (People v. Johnson (2010) 185 Cal.App.4th 520, 534, fn. omitted.)
Yet, the diminishing effect that remoteness can have on probative value may be offset if the prior offense shares significant similarities with the current offense. (Branch, supra, 91 Cal.App.4th at p. 285.) For example, in Branch, the court concluded a prior sexual offense 30 years before was admissible in a current sex offense case because both the prior and the current case involved a 12-year-old girl who was staying at the defendant's home, and the defendant had tried to avoid detection in both cases by claiming each of the girls had done something wrong. (Ibid.) Likewise, in People v. Waples (2000) 79 Cal.App.4th 1389, sexual molestation conduct that had occurred 18-25 years before the current charges was admitted because of its similarities to the current molestation offenses against victims who were of the same gender, approximately the same age, and involved similar conduct. (Id. at p. 1395 ["similarities between the prior and current acts ... balanced out the remoteness"].) Differently, however, in People v. Harris (1998) 60 Cal.App.4th 727 (Harris), a 23-year-old prior offense involving a brutal and violent rape was held inadmissible in a current case where the defendant was charged with using a position of trust as a mental health nurse to engage in sex with two patients who were vulnerable due to their mental condition. (Id. at pp. 730, 740-741.)
Here, as noted ante, the similarity of the prior offenses to the current offenses is striking, much like in Branch and Waples. As noted, the prior offenses both involved male victims around the same age as John; the type of lewd and lascivious acts were very similar-defendant touched the victims' penises, and he did not ask or demand that the victims touch him; and defendant offered all the victims gifts and/or inducements of a similar nature. While there were differences between the prior and current offenses, the nature of the offenses and how they were accomplished was largely the same, which was unlike Harris. Given this, the trial court here could reasonably conclude the similarities between the prior and current offenses offset the remoteness of the prior offenses.
Defendant argues the trial court did not thoroughly examine whether the prior offense evidence would confuse the jury. Confusion of the issues in terms of prejudice in admitting prior acts evidence centers on whether the defendant was convicted of the prior offense-if the prior offense did not result in a conviction, that fact increases the danger the jury may wish to punish the defendant for the uncharged offenses and increases the likelihood of confusion because the jury has to determine whether the prior uncharged act occurred. (People v. Ewoldt (1994) 7 Cal.4th 380, 405 (Ewoldt); Harris, supra, 60 Cal.App.4th at pp. 738-739 [adopting Ewoldt in the context of Evid. Code, § 1108].) Here, evidence was admitted that defendant had pled guilty to, and served a sentence for, the commission of the prior offenses. Although the trial court did not elaborate on why it determined there was no significant risk of jury confusion, there was a sufficient and reasonable basis to support that conclusion.
Defendant also argues the prior acts evidence related to J.L. was highly inflammatory and certain details should have been excluded. Defendant highlights J.L.'s testimony that defendant held him at knifepoint while molesting him on one occasion, that he placed a cloth with alcohol on it over J.L.'s face causing him to have an asthma attack during another episode, and defendant threatened to bury J.L. and his parents alive if J.L. told anyone. J.L. also testified defendant tied him up on at least one occasion so that J.L. could not get away. These acts of restraining J.L. were different by degree than the acts of minimal restraint John testified about. John indicated defendant restrained him by holding him around the waist on one occasion, and that once when defendant was touching his penis, John unzipped his pants because defendant said he was "going to do something." Although John was unsure what defendant meant, John was worried because he did not know what might happen.
Despite that J.L. was subjected to additional degrees of force, physical coercion and threats, these were not excessively violent uses of force, and J.L. did not suffer any particular physical injury as a result such that these details might encourage the jury towards irrationality or an emotional response untethered to the facts of the case. As the People point out, in certain respects, the oral copulation of John was more inflammatory than what J.L. described. While the details of J.L.'s molestation differed somewhat from that of John, those details were not especially violent or shocking in comparison to the current offenses nor did they involve bodily injury to J.L. The trial court did not err by failing to exclude some details of J.L.'s testimony based on its inflammatory nature.
Defendant also contends the prior acts evidence took up a significant amount of trial time, which should have weighed against its admission. On April 27, 2022, J.L. testified for about an hour and 50 minutes total, and B.N. testified for 30 minutes. The following day, Jose Flores testified for nine minutes, while Linda Stark's testimony was interrupted almost immediately from poor video sound quality, and she was recalled later in the morning for a total of approximately 35 minutes. The aggregate total devoted to presenting this evidence was just over three hours. The time for John's testimony alone eclipsed all of the prior acts testimony by an hour, as did Detective Avila's testimony. Moreover, the witnesses presenting testimony on the prior acts evidence were only four of the 20 witnesses on the People's witness list. The time necessary to present prior acts testimony was not unreasonable in the context of the trial as a whole, and it was reasonable for the trial court to conclude it would not consume a prejudicial amount of trial time.
In sum, the trial court's ruling that the prior acts evidence was probative and not outweighed by the other relevant factors was reasonable and supported by the record. Even if another court might balance the factors differently, this does not establish an abuse of discretion. (People v. Stewart (1985) 171 Cal.App.3d 59, 65; see People v. Clair (1992) 2 Cal.4th 629, 655 [reasonable difference of opinion does not establish abuse of discretion].) Finding no state law error, we also reject defendant's contention the trial court's admission of the evidence violated his federal constitutional rights. (People v. Mendoza (2011) 52 Cal.4th 1056, 1094.)
As defendant's claim fails on the merits, we do not reach the People's claim of forfeiture.
D. Ineffective Assistance of Counsel (IAC)
Relatedly, defendant maintains his counsel was constitutionally ineffective for failing to raise any specific objection to the prior acts evidence under Evidence Code section 352 when the court admitted the evidence under Evidence Code sections 1101 and 1108.
Defendant makes no argument the prior acts evidence was inadmissible under Evidence Code sections 1101 or 1108-his argument is directed to the trial court's weighing of the relevant factors under Evidence Code section 352.
The standard for measuring whether trial counsel rendered prejudicially ineffective assistance is well established. "'"'In assessing claims of [IAC], we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome.'"'" (People v. Johnson (2016) 62 Cal.4th 600, 653.)
Defendant notes the trial court had no duty to conduct an Evidence Code section 352 analysis of prior acts evidence proffered for admission under Evidence Code section 1101, subdivision (b), absent an objection.
We find no decisional law holding the trial court was not obligated to consider Evidence Code section 352. Rather, just like admission under Evidence Code section 1108, before admitting prior acts evidence under Evidence Code section 1101, subdivision (b), a trial court must consider its prejudicial effect under Evidence Code section 352 before the evidence may be admitted. (Ewoldt, supra, 7 Cal.4th at p. 404, accord, People v. Chhoun (2021) 11 Cal.5th 1, 26 ["Even if evidence of the uncharged conduct is sufficiently similar to the charged crimes to be relevant for a nonpropensity purpose, the trial court must next determine whether the evidence's 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.'"].) Here, to make a decision on the People's motion in limine for admission of this evidence under Evidence Code section 1101, the trial court had to consider the prejudicial impact of the evidence; the trial court had already conducted this analysis when it ruled the evidence was admissible under Evidence Code section 1108.
Any objection to the prior acts evidence admitted under Evidence Code section 1101 would have been similarly overruled-there is no basis to believe the trial court would analyze the same prior acts any differently than it had under Evidence Code sections 1108 and 352. (Cf. People v. Soto (1998) 64 Cal.App.4th 966, 992 [where the court properly admitted evidence of prior sexual conduct under Evid. Code, §§ 1108 and 352, there was no need to reach the trial court's conclusion the evidence was also admissible under Evid. Code, § 1101].) In light of the trial court's ruling under Evidence Code sections 1108 and 352, defense counsel's failure to subsequently object to the admission of the same prior acts evidence under Evidence Code sections 1101 and 352 does not fall below an objective standard of reasonableness. (See People v. Peterson (2020) 10 Cal.5th 409, 465 [counsel's performance was not deficient for failing to object where "any such objection would have been meritless and properly overruled"].)
Moreover, although defendant also argues his counsel was ineffective in failing to raise a specific objection when the court considered admission of the evidence under Evidence Code section 1108, any specific objection would have been properly overruled, as discussed ante. The trial court had all the relevant information necessary to weigh the prejudicial effect of the prior acts evidence-a specific objection would not have directed the trial court to information it did not already have an obligation to weigh and consider.
Finally, because the prior acts evidence was admissible under Evidence Code sections 1108 and 352, defendant cannot demonstrate his counsel's failure to object to its admission under Evidence Code section 1101, subdivision (b), or the failure to raise any specific objection with respect to Evidence Code sections 1108 or 352, resulted in any prejudice to a reasonable probability. (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1450 [counsel not prejudicially ineffective in failing to object to introduction of gang evidence likely to be admissible in any event].)
II. Instructional Errors A. Unanimity Instruction
Defendant argues the trial court had a sua sponte duty to give a unanimity instruction to the jury on count 2, but the unanimity instruction given expressly encompassed only counts 1 and 3.
1. Additional Background
The second amended information charged defendant with two counts of lewd and lascivious acts under section 288, subdivision (a), and one count of forcible oral copulation under section 287, subdivision (c)(2)(B). As to count 1, the information specified it related to defendant touching John's penis at defendant's house; as to count 2, the information specified it related to defendant massaging John's buttocks in defendant's car. During trial, John very briefly testified to only one instance when defendant touched his buttocks, which occurred in defendant's truck during a trip to Squaw Valley.
The jury was instructed on the elements necessary to convict on counts 1 and 2 under section 288, subdivision (a), but neither these instructions nor the verdict forms reiterated the charging document's language with respect to the conduct constituting the offense in count 2. The jury was instructed on unanimity under CALCRIM No. 3501, but that instruction expressly excluded any unanimity requirement for count 2. When the trial court read the unanimity instruction to the jury, it commented the unanimity instruction should extend to all counts. The prosecutor corrected the court and indicated "[t]he reason only Count 1 and Count 3 are there is there were multiple acts of the kind of Count 1 and Count 3 and there was only one act of Count 2."
In closing argument, after instructions were given, the prosecutor discussed the single act that formed the basis of count 2 and reiterated it several times.
"The defendant-now let's move on to Count 2. This is the touching the buttocks, all right. Count 1 had to do with touching [John] on his penis. [¶] The defendant is charged in Count 2 with engaging in lewd and lascivious conduct in touching [John]'s buttocks, a child under the age of 14 years old, in violation of ... [section] 288[, subdivision ](a). [¶] So what do we have to find? We have to find that the defendant touched or [John]'s buttocks either on the bare skin again or through his clothing. [¶] So what incident are we talking about? We're talking about the incident in Squaw Valley, all right, where they were in defendant's truck and they were going to go up and do some work up there, but the defendant pulled off into a parking lot and touched [John]'s buttocks inside of the truck. Defendant touched [John]'s buttocks with the intent of arousing, this is again intent to arouse, appeal to or gratify the lusts, passions or sexual desires of the defendant or [John]."
Soon after, the prosecutor circled back to the distinction between count 1 and count 2:
"So the People must prove not only that the defendant did the act charged, but also that he acted with a particular intent or mental state, all right. So the two counts that deal with mental state or intent are Count 1 and Count 2. They're both [section] 288[, subdivision ](a)[']s. One is for touching [John]'s penis and one is for touching [John]'s butt, all right, because on those charges you have to have the intent to gratify yourself or the lust, passions of yourself or someone else. [¶] . . . [¶]
"So for Count 2, same thing, but we're talking about the buttocks now. Again, no direct evidence. Defendant didn't say how's that feel or I want to touch your butt so I can get off, so you can get off. However, the fact that defendant was rubbing [John]'s penis inside of his pants, and this was the events up in Squaw Valley in his truck, that Avila indicated Squaw Valley was in Fresno County. So his defendant's rubbing [John]'s penis inside his pants but outside of his boxer shorts causing [John] to have an erection and then at the same time touching his butt."
The prosecutor reiterated subsequently that count 1 and count 2, respectively, were "for touching [John's] penis" and "for touching [John's] butt."
During deliberations, the jury made numerous requests. In its first and second requests, the jury asked for readbacks of R.O.'s testimony, of John's and defendant's testimony as it related to the Squaw Valley incident, and for copies of the text messages between defendant and John that Detective Avila testified about. Outside the presence of the jury, counsel agreed to the court's response to the jury requests. When the issue was addressed before the jury, the court asked if there was anything else, and the following interchange occurred:
"JUROR NO. 3: For the second charge, is solely referring to just the time that [John] stated that they went to Squaw Valley?
"THE COURT: Um, that's something that-Counsel, I'll let each of you address that.
"[DEFENSE COUNSEL]: Your Honor, I would just request anything to do with Squaw Valley itself within that parameter, get readback.
"THE COURT: Yeah, they get read-back, but what the question is whether or not the charge in Count Two pertains solely to the Squaw Valley incident or some other incident. That's the question.
"JUROR NO. 3: Yes.
"[PROSECUTOR]: Your Honor, uh, I know this is odd, but is there any way that we can have a sidebar, um, with [defense counsel] and yourself just briefly in the hallway
"THE COURT: Yes." The court and counsel continued their discussion outside the presence of the jury:
"[PROSECUTOR]: Um, when I, uh, talked in my closing regarding what I wanted them to focus on, um, it was the Squaw Valley incident regarding the touching of the buttocks.
"THE COURT: Okay.
"[PROSECUTOR]: Um, however, just with that said-I mean, that was-that was my intention. With that said, we also have the jury instruction on unanimity.
"THE COURT: Right.
"[PROSECUTOR]: So I don't know if the best thing-I'm not trying to throw a [curveball] here yet. I just don't know if we can tell them anything. I don't know if we just say, 'Listen to the evidence that you heard,' that closing statements aren't evidence, and, 'look at the jury instructions that have been provided.' I don't know if we point them to the unanimity. I don't want to lead them anywhere, so I'll leave it up to you, Judge.
"THE COURT: I'm going to read the instruction real quick. I'm looking at the second amended information, and clearly, Count Two talks about the buttocks and his car. So it would seem to me that that is the incident that you're alleging. Um, and then the other one deals with penis.
"[PROSECUTOR]: That's correct. And that's the only testimony that came in about his buttocks.
"THE COURT: Okay. And was that the only testimony pertaining to Squaw Valley?
"[DEFENSE COUNSEL]: I think that's the only buttocks in the case that was pertaining to Squaw Valley.
"THE COURT: Okay. Was there anything else cooking at Squaw Valley except for the buttocks?
"[PROSECUTOR]: Well, the-he touched his penis. He masturbated him, and then he touched his buttocks. So I don't know if they're overlooking, 'Buttocks.'
"THE COURT: Well, let me take a look at the instruction for that. I don't think the instruction limits it to buttocks.
"[PROSECUTOR]: It didn't.
"THE COURT: Count One and Two, any part, so it could be any part. I think the way-it can go either way. Um, the instruction clearly says, 'Any body part, on the bare skin, through clothing.' There's nothing in [Evidence Code section] 1110 to suggest to them that it's limited to the buttocks. So I think the proper instruction, because it's not the information that controls their verdict. What controls the verdict is the instructions and the verdict forms. It just simply says-the verdict form does not incorporate the term, 'Buttocks;' does it? ... [¶] ... [¶]
"[PROSECUTOR]: I'm looking at it right now. No.
"THE COURT: Okay. Then I think what we have to do is tell them to simply use the instructions and go back to the evidence to determine what, if any, crime occurred and if it was involving a buttocks or penis, the time frame, that's for them to decide. And I don't think you can limit them to buttocks as to Squaw Valley. They have the time frames, and so long as they're able to articulate, um, that they agree upon what the act was, and it occurred during that time frame, that's all they're required to do.
"[PROSECUTOR]: Yeah, I think the safest thing here is less information, you know.
"THE COURT: Right.
"[PROSECUTOR]: Like you said, 'Please refer to the jury instructions and the evidence that you heard,' um, and that's what I've done previously, but you've been doing this a lot longer than me, obviously.
"THE COURT: That doesn't mean anything. Hang on a second.
"[DEFENSE COUNSEL]: I would agree with [the prosecutor] on that. "THE COURT: Okay. So you want me to do what?
"[DEFENSE COUNSEL]: Just keep it simple.
"THE COURT: And tell them simply, 'If you make the determination based upon the evidence you heard, apply that evidence to the jury instructions,' period.
"[DEFENSE COUNSEL]: There you go.
"THE COURT: Does that sound good?
"[PROSECUTOR]: Yes.
"THE COURT: Let's bring them back in."
In the presence of the jury, the court explained as follows: "All right. The question was whether or not Count Two-well, first of all, we're back on the record. All Counsel's present. [Defendant] is currently not present for reasons previously stated. [¶] The question was as to Count Two, whether or not that pertains to the incident that allegedly occurred in Squaw Valley. What I can tell you is this: You heard the evidence. It's your job to apply the evidence and the facts as you believe them to be to the instructions as for each charge. Um, and that's as much information as I can give you. Hopefully that's helpful. We'll see."
Subsequently, the court received a third jury request as follows: "Readback of juror instructions from judge &[the prosecutor]-specifically regarding count 2 (page 3501)." The court explained to the jury, "Count 1 and 2 have the same jury instructions and that's [CALCRIM No.] 1110, [CALCRIM No.] 3501 deals with unanimity. [¶] What I will do is read both of those instructions and then I'll instruct you to go back and apply the evidence, the facts as you find them to those instructions." The court then read the instructions formulated under CALCRIM Nos. 1110 and 3501.
After resuming deliberations, the jury submitted a fourth request: "[P]lease explain the difference between Count 1 and Count 2 and why are they separate?" The court met with counsel outside the presence of the jury and suggested the jury be directed as follows: "They are separate incidents as alleged by the People, Count 1 being defendant allegedly touching John Doe's penis at defendant's house and Count 2 allegedly defendant touching John Doe's buttocks in defendant's car. [¶] [Defense counsel]?"
The following exchange occurred:
"[DEFENSE COUNSEL]: Yes. I think the jury should just be told the allegations are to two different incidents and leave it at that. But I'll submit it.
"THE COURT: People wish to be heard?
"[PROSECUTOR]: I believe that [defense counsel]'s assertion would be the safest, at least due to [CALCRIM No.] 3105, 3105, the unanimity instruction
"THE COURT: I'll just say each alleged as separate act of lewd act upon a child, leave it at that. That's for you to decide.
"[PROSECUTOR]: Yeah. I mean, I think that's probably even better to go with that.
"THE COURT: Each alleged a separate lewd act upon a child. The act is for you to decide. [¶] That sound good?
"[PROSECUTOR]: Say that again.
"THE COURT: Each count, 1 and 2, allege a separate lewd act upon a child and that act is for you to decide.
"[PROSECUTOR]: Yes.
"THE COURT: [Defense counsel]?
"[DEFENSE COUNSEL]: That's fine."
In the presence of the jury, and in response to its question, the court directed the jury as follows: "Okay. Both Count 1 and Count 2 both allege a violation of .. Section 288[,subdivision ](a), lewd act upon a child. Each of those addressed a separate incident and that is for you to decide as to which incident applies to Count 1, if any, and what incident applies to Count 2, if any."
2. Prosecutor Made a Clear Election As to Which Incident Formed the Basis For Count 2
"In a criminal case, 'the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.' (People v. Russo (2001) 25 Cal.4th 1124, 1132.)" (People v. Covarrubias (2016) 1 Cal.5th 838, 877-878.) "This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.'" (People v. Russo (2001) 25 Cal.4th 1124, 1132.) "The prosecution can make an election by 'tying each specific count to specific criminal acts elicited from the victims' testimony'-typically in opening statement and/or closing argument. [Citations.] ... [Citation.] [¶] Under these principles, there is an implicit presumption that the jury will rely on the prosecution's election and, indeed, is bound by it." (People v. Brown (2017) 11 Cal.App.5th 332, 341.)
There are several exceptions to this rule. "For example, no unanimity instruction is required if the case falls within the continuous-course-of-conduct exception, which arises 'when the acts are so closely connected in time as to form part of one transaction' [citation], or 'when ... the statute contemplates a continuous course of conduct of a series of acts over a period of time' [citation]. There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime." (People v. Jennings (2010) 50 Cal.4th 616, 679.)
As the question of "whether the trial court should have given a particular jury instruction involves a mixed question of law and fact which is '"predominantly legal,"' we review de novo whether the specific instruction was required." (People v. Sorden (2021) 65 Cal.App.5th 582, 616.)
As the People contend, the prosecution clearly and repeatedly communicated to the jury during closing arguments its election as to the only conduct that comprised the count 2 offense-i.e., defendant touching John's buttocks in his truck during one trip to Squaw Valley. Given this clear, repeated and unequivocal election, the trial court did not err by not giving a unanimity instruction that encompassed count 2. (People v. Brown, supra, 11 Cal.App.5th at p. 341.) Notably, too, defendant offered the same defense to all the acts of touching-that none of it had ever occurred. Although John testified defendant touched his penis and his buttocks while in the truck on the way to Squaw Valley, there was no separate defense to these different acts-no juror would have believed defendant committed one act in the truck but disbelieved that he committed the other. (People v. Covarrubias, supra, 1 Cal.5th at pp. 879-880.)
In substance, defendant's claim of error is directed at how the trial court responded to the jury's subsequent questions during deliberations and its apparent difficulty understanding the distinction between count 1 and count 2. In responding to these questions, the trial court likely should have reiterated the prosecutor's clear election on count 2, which was binding on the jury. (People v. Brown, supra, 11 Cal.App.5th at p. 341 ["there is an implicit presumption that the jury will rely on the prosecutor's election and, indeed, is bound by it"].) The trial court indicated it planned to do so in response to the jury's question about the difference between count 1 and count 2, but defense counsel stated a desire to have the trial court tell the jury only that "the allegations are two different incidents and leave it at that," a request the prosecutor joined. The parties also agreed to the court's responses to the jury's other questions. In light of the prosecutor's election in closing arguments (which was also expressly reflected in the charging document, but not referenced in the jury instructions or the verdict forms), and the parties' requests that the trial court not reiterate that election in responding to the jury's questions, defendant presents no authority, and we are aware of none, which obligated the trial court to respond sua sponte to the jury's questions by giving an amended unanimity instruction that encompassed count 2.
Without a duty to respond to the jury's questions with an amended unanimity instruction and in the absence of an objection to the court's responses to the jury, any argument the trial court erred in responding to the jury's questions is forfeited. "A defendant may forfeit an objection to the court's response to a jury inquiry through counsel's consent, or invitation or tacit approval of, that response." (People v. Ross (2007) 155 Cal.App.4th 1033, 1048.) Moreover, "counsel's affirmative agreement with the court's reply to a note from the jury forfeits a claim of error" even where "the court's answer was not responsive to the jury's question." (People v. Salazar (2016) 63 Cal.4th 214, 248.) The parties agreed to the trial court's answers to all of the jury questions, and defense counsel affirmatively asserted the court should not explain which conduct the prosecutor had elected as the basis for count 2.
B. CALCRIM Nos. 375 and 1191A
Defendant argues the trial court's instructions to the jury under CALCRIM Nos. 375 and 1191A were inherently contradictory. This is so, defendant argues, because CALCRIM No. 375 instructed the jury to consider the prior offenses only for intent or absence of mistake and no other purpose. The instruction further told the jury it was not to conclude from the prior acts evidence that the defendant has a bad character or is disposed to commit the crime. However, under CALCRIM No. 1191A, the jury was instructed to consider the prior uncharged acts for another purpose and indicated the jury could conclude from the prior acts evidence that defendant was disposed or inclined to commit the current offenses.
The trial court instructed the jury with the pattern instructions for prior acts evidence admitted under Evidence Code sections 1101 and 1108. Under CALCRIM No. 375, the court instructed the jury as follows:
"The People presented evidence that the defendant committed the offenses of a lewd and lascivious act with a minor under 14 and a lewd and lascivious act by force with a minor under 14 that were not charged in this case.
"You may consider this evidence only if the People have proved by a preponderance of evidence that the defendant in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
"If the People have not met this burden, you must disregard this evidence entirely.
"If you decide that the defendant committed the uncharged offenses, you may but are not required to, consider that ... evidence for the limited purpose of deciding whether:
"A. Intent [¶] The defendant acted with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of himself or of the child.
"B. Absence of Mistake [¶] The defendant's alleged actions were not the result of mistake or accident.
"In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offenses and the charged offenses.
"Do not consider this evidence for any other purpose.
"Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.
"If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of Counts 1-2, a lewd o[r] lascivious act with a child under 14 years of age, or Count 3, Oral Copulation by Force or Fear. The People must still prove each charge beyond a reasonable doubt." (Italics added)
The jury was also instructed under CALCRIM No. 1191A regarding the same prior acts evidence admitted under Evidence Code section 1108:
"The People presented evidence that the defendant previously committed the crimes of lewd and lascivious act with a child and lewd and lascivious act by force, that were not charged in this case. Th[ese] crimes are defined for you in these instructions.
"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
"If the People have not met this burden, you must disregard this evidence entirely.
"If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit the charged offenses in this case, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of [the] lewd act upon a child and/or forcible oral copulation. The People must still prove each charge beyond a reasonable doubt." (Italics added.)
Defendant observes CALCRIM No. 375 provides optional language to avoid an instructional conflict with CALCRIM No. 1191A about how this evidence may be considered by the jury: "[Do not consider this evidence for any other purpose [except for the limited purpose of <insert other permitted purpose, e.g., determining the defendant's credibility>].]" (CALCRIM No. 375 (2023).) Without some type of clarification like that suggested by CALCRIM No. 375's use options, defendant argues, the two instructions were hopelessly confusing and conflicting in addressing the limitations for which the evidence could be considered.
The People first argue the claim is forfeited because defendant failed to object or request a clarification to these instructions at trial. On the merits, the People dispute the jury would have understood the instructions to be inconsistent and argue the jury was fully capable of correlating them. The People maintain a reasonable and intelligent jury would conclude the evidence could be considered for the reasons specified in both instructions, but not for other purposes.
An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law. (People v. Lewis (2023) 14 Cal.5th 876, 900.) The correctness of the instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. (People v. Thomas (2023) 14 Cal.5th 327, 382.) Viewing the challenged instruction in the context of the instructions as a whole and the trial record, the appellate court determines whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner. (People v. Lewis, supra, at p. 900; People v. Tran (2022) 13 Cal.5th 1169, 1199 ["'In assessing a claim of instructional error or ambiguity, we consider the instructions as a whole to determine whether there is a reasonable likelihood the jury was misled.'"].) "'Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions.'" (People v. Thomas, supra, at p. 382.)
As an initial matter, the issue was forfeited because defense counsel did not object or request any clarification to the instructions. (People v. Valdez (2004) 32 Cal.4th 73, 113 [failure to object or propose clarification to instruction forfeits claim on appeal].) However, even on the merits, the claim fails.
Defendant does not argue these instructions are incorrect statements of the law. Rather, defendant's argument is that these two instructions were not properly tailored to be used together. We agree CALCRIM No. 375 and CALCRIM No. 1191A could have been more precisely tailored. The bench notes under CALCRIM No. 375 direct that the "bracketed sentence beginning with 'Do not conclude from this evidence that'" be given on request "if the evidence is admitted only under Evidence Code section 1101[, subdivision ](b). Do not give this sentence if the court is also instructing under Evidence Code section 1108 or 1109." (Judicial Council of Cal., Crim. Jury Instns. (2023) Bench Note to CALCRIM No. 375, italics added.) This bench note was not followed.
Optional language under CALCRIM No. 1191A also provides as follows: "[Do not consider this evidence for any other purpose [except for the limited purpose of <insert other permitted purpose, e.g., determining the defendant's credibility> ].]" (CALCRIM No. 1191A.) The bench notes instruct that this bracketed sentence should be given on request. (Judicial Council of Cal., Crim Jury Instns. (2023) Bench Note to CALCRIM No. 1191A.) Here, this bracketed sentence was not given.
As a result, the instruction under CALCRIM No. 375 directed the jury not to consider the prior acts evidence for any other purpose besides intent or absence of mistake, but CALCRIM No. 1191A permitted the jury to consider the same evidence for another purpose, including that defendant was disposed or inclined to commit the crime.
Despite this seeming facial inconsistency, we presume jurors are intelligent and capable of understanding and correlating all instructions given. (People v. Thomas, supra, 14 Cal.5th at p. 382.) Indeed, the jury was instructed to "[p]ay careful attention to all of these instructions and consider them together." Further, the jury was instructed that it was required to follow the law as the court gave it. To follow both instructions, the jury was required to correlate CALCRIM No. 375 and CALCRIM No. 1191A. The straightforward way to accomplish this was to read CALCRIM No. 375's prohibition on considering the prior acts evidence for any purpose beside what the instruction allowed as being subject to any other instruction indicating the jury could consider that evidence for another purpose. Having been directed to read the instructions together and to follow them, it is highly unlikely the jury would have disregarded an instruction that might facially conflict with another rather than read the instructions together in a consistent manner.
Nothing in the trial record suggests the jury struggled to correlate these instructions: although it asked several other questions on different topics, including an instructional question, the jury did not ask the court any questions about the prior acts evidence or the instructions thereon. In closing argument, the prosecutor went through both instructions, explaining the jury could consider the evidence for intent and absence of mistake under CALCRIM No. 375 if it found the prior acts had been proven to the required standard and that the jury could also consider the prior acts evidence, if proven to the required standard, as indicative of defendant's disposition or inclination to commit the crime. The prosecutor reinforced that the instructions could be read together and that both could be followed. (People v. Bedolla (2018) 28 Cal.App.5th 535, 548 ["it was not reasonably likely that the jury misunderstood or misapplied the challenged instructions" where "the prosecutor's closing argument ... reinforced a correct understanding of the instructions"].)
To reach a different conclusion, we would have to presume the jury did not correlate the instructions and, as a remedy for the seeming contradiction in the two instructions, refused to follow one of them. Not only would this be contrary to governing presumptions, but it would contradict the court's express admonitions to the jury to consider the instructions together and to follow the law as given. It is not reasonably likely the jury refused to correlate the instructions and elected simply not to follow one of them.
III. IAC
Defendant argues he was denied effective assistance of counsel due to his trial counsel's cumulative errors and omissions during the trial.
1. Applicable Law
The Sixth Amendment of the federal Constitution and article I, section 15 of the California Constitution guarantee the right to the assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 685; People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma).) The standard to show IAC is well established: defendant must show both that counsel's performance was deficient and that the performance prejudiced him. (Strickland, supra, at pp. 688, 693.) "To establish deficient performance, a person challenging a conviction must show that 'counsel's representation fell below an objective standard of reasonableness.' [Citation.] A court considering a claim of [IAC] must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance. [Citation.] The challenger's burden is to show 'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" (Harrington v. Richter (2011) 562 U.S. 86, 104.)
Review of trial counsel's performance "must be highly deferential" and include a "strong presumption" that the defendant received reasonable professional assistance of counsel. (Strickland, supra, 466 U.S. at p. 689.) The alleged deficiency must also be assessed "'under the circumstances as they stood at the time that counsel acted or failed to act.'" (People v. Scott (1997) 15 Cal.4th 1188, 1212.) "Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." (Ibid.; accord, Ledesma, supra, 43 Cal.3d at p. 217.)
In addition to showing counsel's performance was deficient, a criminal defendant must also establish prejudice before he can obtain relief on an IAC claim. (Ledesma, supra, 43 Cal.3d at p. 217.) To establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694.)
2. Analysis
Defendant first argues his counsel failed to act as a competent advocate for defendant during the prosecutor's examination of John. Defendant specifically takes issue with defense counsel's failure to object to the prosecutor's leading questions of John on direct examination. Pointing to one specific example, the prosecutor questioned John as follows:
"Q. And was he rubbing [your penis] in a certain way?
"A. Yes.
"Q. Can you tell us that certain way? So up and down? Was he using just one finger?
"A. Yes."
Pursuant to a pretrial motion, the court had ruled in limine that leading questions of John would be generally permitted: "the Court will provide guidance with respect to ruling on an objection based upon what I see if [John] is having difficulty. I just have to wait and see. But for the most part, I'm going to allow you to use leading questions, but like I said, I'm going to factor in [John]'s age, because they're on the outside limit of being a minor."
Under the circumstances presented, defense counsel's failure to object to the prosecutor's leading questions may have been tactical. The leading nature of the questions, particularly the one highlighted, could have been easily corrected upon objection, and defense counsel might have felt that interposing objections to force the prosecutor to ask questions of John in a different way would only serve to highlight John's damaging testimony. (People v. Arredondo (2019) 8 Cal.5th 694, 711 [on direct appeal, IAC shown only if record affirmatively discloses no rational tactical purpose for the challenged act, counsel was asked and failed to provide one, or there could be no satisfactory explanation].)
Defendant also contends his counsel was ineffective during the cross-examination of John, and he highlights a portion where defense counsel asked John how many times defendant had touched him. In full context, defense counsel had asked John why he kept going to defendant's house after defendant first touched him, and John responded, "[b]ecause he would make it seem so innocent." The defense then asked how many different times John believed defendant had touched him to make the point that if John had been touched by defendant, especially so many times, he never would have kept going over to defendant's house. Considered in context, there was a viable tactical reason for questioning John about how many times he thought defendant had touched him. (People v. Johnsen (2021) 10 Cal.5th 1116, 1165 ["'[W]here counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find [IAC] on appeal unless there could be no conceivable reason for counsel's acts or omissions.'"].)
Defendant additionally argues his counsel was ineffective in failing to object to the prosecutor's statement during closing argument that the uncharged acts evidence "[s]hows a common plan. It's the same thing he's doing over and over again." Defendant points out the prior acts evidence was not admitted for the purpose of establishing a common plan, and by failing to object, the jury was never admonished not to consider the evidence for that purpose.
Here, the prosecutor made a single reference to a common plan in discussing how the prior acts could be considered to show intent. Specifically, the prosecutor argued "defendant had the intent due to defendant using his finger to rub up and down [on] [John's] penis the same way the defendant did with [J.L.] and [B.N.] All right. Shows a common plan. It's the same thing he's doing over and over again." This sole reference to a "common plan" was made in the broader context of explaining to the jury that under CALCRIM No. 375, it could consider the prior acts evidence as relevant to establishing intent and absence of mistake. While the prosecutor's single reference to a common plan was not artful or correct in that the phrase common plan is a term of art in this context, the prosecutor did not argue the prior acts evidence established a common plan that could be used as proof the molestation of John was, in fact, done. (See Ewoldt, supra, 7 Cal.4th at p. 394 [evidence of a common plan or design is not used to prove the defendant's identity or intent, but to prove that the defendant engaged in the conduct alleged to constitute the charged offense].)
This single reference to a common plan was not so egregious as to infect the trial with unfairness such that the conviction constitutes a denial of due process (People v. Hill (1998) 17 Cal.4th 800, 819), nor did it constitute a deceptive or reprehensible method to attempt to persuade either the court or the jury for purposes of state law (ibid.). Due to the limited nature of the comment, defense counsel may have had a tactical reason for not objecting-e.g., not wanting to highlight or focus the jury's attention on the prior acts evidence. (People v. Johnsen, supra, 10 Cal.5th at p. 1165.)
In sum, because there were possible tactical reasons counsel may have had for charting the course taken with respect to each of these matters, we are unable to conclude defendant's trial counsel was prejudicially ineffective in any individual circumstances highlighted or cumulatively.
IV. Verdict Entered In Defendant's Involuntary Absence
Defendant argues the trial court's decision to receive the verdict in defendant's absence was prejudicial error violating both state statutory law and defendant's federal constitutional rights. Specifically, defendant argues the trial court failed to exercise reasonable diligence in finding that the verdict could be read in defendant's absence under section 1148 and, by doing so, violated defendant's constitutional right to be present for the verdict.
A. Additional Background
Evidence in the trial closed on Thursday, April 28, 2022, after both parties rested.
When trial resumed the following Monday, May 2, 2022, defendant appeared telephonically and explained he was hospitalized. He waived his right to be present for the court's instruction to the jury and closing arguments.
"THE COURT: ... [Defendant] is on the phone. He is currently at Community Regional Medical Center and we have him on the phone. [¶]
[Defendant], are you there?
"[DEFENDANT]: Yes, I am.
"THE COURT: Sir, I'm sorry that you're in the hospital. I'm sorry to hear about that. Are you doing okay?
"[DEFENDANT]: My blood sugar was way too low.
"THE COURT: Okay. So they're going to get that squared away. [¶] And [defense counsel], why don't you go ahead and make a record.
"[DEFENSE COUNSEL]: [Defendant], he's on speaker phone right now. I did ask him if he was willing to waive his personal presence for the closing arguments. Understanding he does wish he could be here, he is okay with us going forward with closing arguments in his absence.
"THE COURT: You agree to that, [defendant]?
"[DEFENDANT]: Yes I do.
"THE COURT: Okay. We'll go ahead and do that and we'll keep updated on your condition and advise you as to the trial as it proceeds and we wish you the very best, sir. [¶] ... [¶]
"[DEFENSE COUNSEL]: One last thing. [¶] I know we did the jury instruction informal conference the other day, but as far as just finalizing those and putting them on the record, which you saw everything that had happened, are you okay with not being personally present for that as well?
"[DEFENDANT]: Yes.
"THE COURT: Thank you, [defendant]."
After defendant's waiver, the court informed the jury that defendant "wanted to be here today, however he is having a medical issue with very low blood sugar. So he is having that addressed as we speak and we hope he'll be with us shortly. But we are authorized to proceed in his absence. You are not to in any way allow his absence to factor into your determination as to the verdict in this case."
After the jury was instructed and closing arguments were completed, the case was given to the jury for deliberation. The jury did not reach a verdict that day, and continued their deliberations the next day, May 3, 2022. In the afternoon of May 3, the jury informed the court it had reached a verdict, and the court reconvened outside the jury's presence; it was noted the prosecutor had tested positive for Covid-19 and was appearing via video. The following exchange occurred about defendant's continued absence.
"THE COURT: ... [Defendant] is not present. [¶] It's my understanding the jury has reached verdicts on all three counts at this time. The defendant is required to be present for the verdict. [¶] It's my understanding, [bailiff], that [defendant] is not at the Fresno County Jail. He is at the Community Medical Regional Center in the emergency room being treated, is that correct?
"THE BAILIFF: Yes, he's currently in ER.
"THE COURT: And he's been there since Monday?
"THE BAILIFF: Yes, Monday morning.
"THE COURT: And that's Monday, May the 2nd?
"THE BAILIFF: Yes.
"THE COURT: And did you have occasion to call within minutes of receiving the verdict, a notice of the verdict, to try to obtain his presence at this hearing?
"THE BAILIFF: Yes.
"THE COURT: Okay, and did you speak with anyone to confirm that he is still in the emergency room and unable to be brought here at this time?
"THE BAILIFF: Yeah, I confirmed with the jail sergeant and they told me he's currently still housed in the ER, unknown of his condition in the ER.
"THE COURT: All right. Well, pursuant to ... section 977[, subdivision ](b)(1) he's required to be here, however, if the Court cannot procure the defendant's presence after exercising reasonable due diligence, the verdict can be received in the defendant's absence in the interest of justice pursuant to . Section 1148. The Court at this time is going to declare it's in the interest of justice to receive the verdict in so much as we have the jury present, we have no idea as to when [defendant] will be available to come physically to, court so that's the Court's finding at this time."
The jury then proceeded into the courtroom and was informed that defendant was unavailable due to a medical condition, and the court had found good cause to take the verdict in his absence. After the verdict, the jurors were polled individually at defense counsel's request.
B. Standard of Review and Applicable Law
A criminal defendant has a right to be personally present at trial under the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment to the United States Constitution, section 15 of article I of the California Constitution, and sections 977 and 1043. (People v. Suarez (2020) 10 Cal.5th 116, 145 (Suarez).)
However, "'[u]nder the Sixth Amendment's confrontation clause, a criminal defendant does not have a right to be personally present at a particular proceeding unless his appearance is necessary to prevent "interference with [his] opportunity for effective cross-examination." [Citations.] [¶] Similarly, under the Fourteenth Amendment's due process clause, a criminal defendant does not have a right to be personally present at a particular proceeding unless he finds himself at a "stage . that is critical to [the] outcome" and "his presence would contribute to the fairness of the procedure." [Citation.] [¶] Under section 15 of article I of the California Constitution, a criminal defendant does not have a right to be personally present "either in chambers or at bench discussions that occur outside of the jury's presence on questions of law or other matters as to which [his] presence does not bear a '"'reasonably substantial relation to the fullness of his opportunity to defend against the charge.'"'"'" (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1039 (Lewis and Oliver); accord, Suarez, supra, 10 Cal.5th at pp. 145-146.)
Section 977, subdivision (b)(1), provides in relevant part, that in all cases in which a felony is charged the accused shall be physically present "during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be physically or remotely present at all other proceedings unless they waive their right to be physically or remotely present, with leave of court and with approval by defendant's counsel." Section 1043 further provides in relevant part that the defendant in a felony case "shall be personally present at the trial." (Id., subd. (a).) Section 1148 states, "If charged with a felony the defendant must, before the verdict is received, appear in person, unless, after the exercise of reasonable diligence to procure the presence of the defendant, the court shall find that it will be in the interest of justice that the verdict be received in his absence...."
The California Supreme Court has held "[e]rroneous exclusion of the defendant is not structural error that is reversible per se, but trial error that is reversible only if the defendant proves prejudice." (People v. Perry (2006) 38 Cal.4th 302, 312; see People v. Perez (2018) 4 Cal.5th 421, 438 ["Although the exclusion of the defendant from a critical proceeding constitutes error, it is not structural error."]; People v. Bradford (1997) 15 Cal.4th 1229, 1357 ["[The d]efendant has the burden of demonstrating that his absence prejudiced his case or denied him a fair trial."].) Under the federal Constitution, error pertaining to a defendant's presence is evaluated under the harmless beyond a reasonable doubt standard set forth in Chapman v. California (1967) 386 U.S. 18, 23 (Chapman). (People v. Davis (2005) 36 Cal.4th 510, 532.)
We review de novo "'a trial court's exclusion of a criminal defendant from pretrial and trial proceedings, either in whole or in part, "insofar as the trial court's decision entails a measurement of the facts against the law." [Citation.]'" (People v. Virgil (2011) 51 Cal.4th 1210, 1235.)
C. Analysis
Defendant argues the trial court did not exercise reasonable diligence to procure his presence because the hospital was not contacted nor was defendant, there was no attempt to obtain an update on his condition, and no efforts were made to determine whether defendant could appear remotely. As a result, defendant argues, his involuntary absence for the reading of the verdict constituted an error of state law because no reasonable diligence was exercised to procure his presence, and it violated his federal constitutional rights because the verdict was a stage critical to the outcome.
Even assuming defendant's involuntary absence for the verdict was an error of constitutional magnitude (see Lewis and Oliver, supra, 39 Cal.4th at p. 1040 [assuming without deciding a defendant has a constitutional right to presence at the reading of the guilty verdict]), any error was harmless beyond a reasonable doubt. (People v. Davis, supra, 36 Cal.4th at p. 532 [Chapman applies to constitutional error pertaining to the defendant's presence at trial].) Defendant does not point to any specific tangible way he could have assisted his attorney during the rendition of the verdict, but he refers to the significance of a defendant's presence when a verdict is delivered and when the jurors are polled.
There are cases that have emphasized the impact of a defendant's presence when a verdict is delivered and concluded, in specific circumstances, that a defendant's absence was not harmless. For example, in Wade v. United States (D.C. Cir. 1971) 441 F.2d 1046, 1050 (Wade), the appellate court held it was error under rule 43 of the Federal Rules of Criminal Procedure (18 U.S.C.), when the court addressed and re-instructed a reportedly deadlocked jury and took the jury's verdict outside the defendant's presence. In considering prejudice, the appellate court observed "we must keep in mind the importance of a defendant's presence at all stages of his trial. Indeed, this aspect of a trial has constitutional prestige in the Sixth Amendment guarantee of the right to confront adverse witnesses-in good part a constitutional recognition of a psychological influence. Though perhaps to a lesser degree, the same influence pertains to the right of confrontation of defendant and jury, aside from the usefulness the accused may be to his counsel. This is especially so when as here a deadlocked jury is reinstructed at some length, is later given an Allen charge, and subsequently renders its verdicts." (Wade, supra, at p. 1050.) The court went on to note that because the defendant's absence was not explained to the jury, there was a reasonable possibility the jury speculated adversely to the defendant in his absence. (Ibid.) Moreover, the court observed the case was obviously a close one, given that the jury deadlocked during deliberations. (Ibid.) The court concluded the defendant's absence occurred when judge and jury were engaged in open-court proceedings that directly bore on the decisional process of the jury, and holding the defendant's absence harmless under those circumstances would be too speculative. (Id. at p. 1051.)
Allen v. United States (1896) 164 U.S. 492.
In Lee v. State (1973) 509 P.2d 1088 (Lee), the defendant was absent when the jury returned its verdict, which the Supreme Court of Alaska found prejudicially violated state law because the defendant was deprived of his right to confront the jury, and had he been present he could have insisted on a poll of the jury being taken. (Id. at p. 1094.) The court pointed out the jury had difficulty reaching a decision, no poll had been taken and under these circumstances the defendant's absence could not be regarded as harmless. (Ibid.)
These cases are distinguishable on the two primary grounds the courts referenced in concluding the errors were prejudicial. Unlike Wade, where the defendant's absence was not explained to the jury, the jury here knew defendant was absent because he was hospitalized and had been instructed it was not to consider his absence for any purpose. Also, unlike both Wade and Lee, nothing in the record suggests the jury struggled to reach a unanimous verdict, and the jury was polled at defense counsel's request. (Wade, supra, 441 F.2d at pp. 1047-1048, 1050; Lee, supra, 509 P.2d at pp. 1089, 1094.)
In addition to being distinct from these cases, there is nothing indicating defendant's mere presence would have caused any juror to change his or her mind when the verdict was read or during polling, especially when there was no evidence the jury had been deadlocked or struggled to reach a verdict. "In two centuries of state and federal case law, remarkably few opinions even mention the possibility that [a] defendant's presence may cause jurors to have second thoughts when they return the verdict. Experience, too, shows that jurors seldom have a change of heart when polled, and there is absolutely no evidence for the proposition that, when this does occur, it is influenced by [the] defendant's presence." (Rice v. Wood (9th Cir. 1996) 77 F.3d 1138, 1143, fns. omitted.)
Moreover, the jury was polled individually at defense counsel's request. Nothing suggests defense counsel could have done anything differently had he been able to consult with defendant upon the jury's verdict, and defendant could not have argued or attempted to convince the jury.
Defendant also argues he had a right to be present when, after the verdict, the parties discussed scheduling the trial on his prior convictions and on additional posttrial proceedings. The scheduling issues that were taken up after the verdict were not critical to the outcome, and when defendant returned the following Monday, May 9, 2022, the parties revisited the bifurcated trial issue, and defendant was able to participate in making decisions about the next stage of the proceedings, including waiving a jury trial on the prior convictions and agreeing to discharge the jury.
Under the specific circumstances here, any error in rendering the verdict in defendant's absence was harmless beyond a reasonable doubt.
As there was no prejudice under the stricter Chapman standard, any error of state law due to defendant's absence was also harmless. (See generally People v. Trujeque (2015) 61 Cal.4th 227, 280 ["Because we conclude there was no prejudice under the stricter Chapman standard, there can be no prejudice under the [People v.] Watson [(1956) 46 Cal.2d 818, 836] standard."].)
V. Sentencing Error
At the second sentencing hearing on June 10, 2022, defendant argues the trial court erroneously referred to two incorrect statutory provisions in imposing sentence- i.e., section 667.61, subdivision (d)(2) (which was not a provision at issue in this case) and section 667, subdivision (c)(2)(A)(i) (which does not exist).
To place this in context, in addition to the charges under counts 1, 2 and 3, the second amended information alleged an aggravating circumstance under the One Strike law: "It is further alleged, within the meaning of ... section 667.61 [, subdivision ](a), as to [defendant], in counts 1, 2, and 3 that the following circumstances apply: the defendant has been previously convicted of an offense specified in subdivision (c)- [section] [667.61[, subdivision ](d)(1)]." The second amended information also included two prior strike allegations under the Three Strike law.
When the jury convicted defendant on counts 1, 2 and 3, it also found true the One Strike aggravating circumstance allegation under section 667.61, subdivision (d)(1). Under the One Strike law, if a defendant commits a qualifying offense enumerated under section 661.61, subdivision (c), and the government pleads and proves one or more aggravating circumstance identified under section 661.61, subdivisions (d) and/or (e), as it did here, the defendant will be subject to the harsher sentences provided in section 661.61, subdivisions (a), (b), (j), (l), or (m). (§ 667.61, subds. (a), (b).)
Specific to this case, section 667.61, subdivision (a), provides, "Except as provided in subdivision (j), (l), or (m), a person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 25 years to life." Defendant's convictions for lewd and lascivious acts in violation of section 288, subdivision (a) (counts 1-2), and oral copulation by force in violation of section 287, subdivision (c)(2)(B) (count 3), are qualifying offenses under section 667.61, subdivision (c) (§ 667.61, subd. (c)(7), (8)). As such, the jury's true finding under section 667.61, subdivision (d)(1), that defendant had been previously convicted of an offense specified in section 667.61, subdivision (c), subjected defendant to an indeterminate term of 25 years to life on each count under section 667.61, subdivision (a).
Further, by virtue of the trial court's findings in the bifurcated proceeding that defendant had suffered two prior strike convictions as alleged in the second amended information, defendant was also subject to third-strike sentencing under section 667, subdivision (e)(2)(A)(i). (See People v. Acosta (2002) 29 Cal.4th 105, 128 [rejecting claim that One Strike law applies to the exclusion of the Three Strikes law].) This statute provides that "Except as provided in subparagraph (C), if a defendant has two or more prior serious or violent felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greatest of: [¶] (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior serious or violent felony convictions." (§ 667, subd. (e)(2)(A) &(e)(2)(A)(i).)
With that background, we turn to the oral pronouncement of judgment. At the second sentencing hearing, the prosecutor argued the probation report mistakenly referenced section 667.61, subdivision (j)(1), with respect to the aggravating circumstance allegation under the One Strike law and that this provision should be replaced by reference to section 667.61, subdivision (d)(2). As a result, the court sentenced defendant to three consecutive indeterminate terms of 25 years to life "pursuant to ... section 667.61 [, subdivision ](d)(2), which is further tripled pursuant to ... [section] 667[, subdivision ](c)(2)(A)(i) to an indeterminate term of 75 years to life as to" each count.
However, section 667.61, subdivision (d)(2), relates to the aggravating circumstance of kidnapping, which was not a circumstance alleged or proven in this case-the second amended information alleged, and the jury found true, an aggravating circumstance under section 667.61, subdivision (d)(1). This error was noted after the sentencing hearing, and, on the prosecutor's motion, the probation report's reference to section 667.61, subdivision (d)(2), was modified to refer to section 667.61, subdivision (d)(1). Additionally, section 667, subdivision (c)(2)(A)(i), as referred to by the trial court at sentencing, does not exist and was likely either a transcription error whereby the court actually referred to section 667, subdivision (e)(2)(A)(i), or it was a mistaken reference to section 1170.12, subdivision (c)(2)(A)(i), which is a mirror image of section 667, subdivision (e)(2)(A)(i).
That motion was heard on June 24, 2022, and defendant was present.
In any event, while mistaken, neither the reference to section 667.61, subdivision (d)(2), nor to section 667, subdivision (c)(2)(A)(i), resulted in any miscalculation of defendant's sentence. Notably, neither party argues imposition of three consecutive terms of 75 years to life was incorrect, and modifying the mistaken statutory references during the oral pronouncement of judgment to accurately reflect the sentencing provisions does not alter anything with respect to the calculation of defendant's sentence. When a sentencing error does not require additional evidence, further factfinding, or a further exercise of discretion, the appellate court may modify the judgment appropriately and affirm it as modified. (People v. Harbison (2014) 230 Cal.App.4th 975, 986; People v. Haskin (1992) 4 Cal.App.4th 1434, 1441.)
As such, the oral pronouncement of judgment is modified to reflect that defendant was sentenced to three consecutive terms of 75 years to life under the One Strike law pursuant to section 667.61, subdivision (a), based on the jury's true finding under section 667.61, subdivision (d)(1), and that defendant was also sentenced under the Three Strikes law pursuant to section 667, subdivision (e)(2)(A)(i). (§ 1260.) Nothing in the calculation of defendant's sentence as to any count is modified.
Further, as the People note, the June 20, 2022, abstract of judgment indicates defendant was sentenced to 25 years to life on all three counts under box 6a rather than 75 years to life on each of the three counts; relatedly, it is not marked that defendant was sentenced pursuant to the Three Strikes law at box 8. On remand, the trial court is directed to issue an amended abstract of judgment reflecting defendant was sentenced to three consecutive terms of 75 years to life pursuant to both the One Strike law and the Three Strikes law. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [court has inherent power to correct clerical errors and order correction of abstracts of judgment that do not accurately reflect the oral judgment of the sentencing court].)
DISPOSITION
As modified above, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment as indicated in this opinion and submit it to the appropriate authorities.
WE CONCUR: PENA, Acting P. J. SNAUFFER, J.