Opinion
B293940
03-13-2020
THE PEOPLE, Plaintiff and Respondent, v. VICTOR LOPEZ, Defendant and Appellant.
The Innocence Legal Team, Asya Ovsepyan and Shep Zebberman for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Roberta L. Davis and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA440759) APPEAL from a judgment of the Superior Court of Los Angeles County, Craig J. Mitchell, Judge. Affirmed. The Innocence Legal Team, Asya Ovsepyan and Shep Zebberman for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Roberta L. Davis and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
A jury convicted Victor Lopez of sex offenses committed against his daughter when she was a child and an adult. On appeal, he raises numerous claims of error, including that the trial court made improper comments during voir dire and admitted hearsay evidence. We either reject or find harmless all claims of error and affirm the judgment.
BACKGROUND
I. The sexual abuse
At the time of trial in 2018 the victim was 41 years old. Lopez is her biological father. The victim's mother and Lopez divorced before the victim was five years old, with Lopez retaining custody of the victim while the victim's mother had custody of the victim's younger sister. When the victim was about five years old, Lopez married Regina. Lopez and Regina had two biological children together, Jessica and Victoria.
We use Regina Lopez's first name to avoid confusion.
On one occasion, when the victim was only eight years old, her father bounced her on his lap. She felt his erection, and it made her uncomfortable. When the victim was nine and 10 years old, Lopez would go into her bedroom at night, pull down her pajamas, and rub his hands and penis on her buttocks and genital areas, penetrating her labia and touching her clitoris. This happened multiple times.
When the victim was 10 years old, she told Regina about the abuse. Regina told Lopez about the victim's accusations, which he dismissed as lies. His late-night visits continued, occurring at least twice during the time the victim was 11 and 12 years old.
For financial reasons, the family moved to Guatemala without Lopez when the victim was 15 years old. While in Guatemala, the victim had sex with a boy. She did not want to have sex with him but let it happen because she liked him and did not want him to dislike her. The victim did not go home that night, and the next morning she told police that strangers raped her. The victim returned to the United States to live with Lopez. When they got home, Lopez wanted to know what happened in Guatemala. He asked where she had been touched, and he put his hand on her inner thigh. He moved his hand to her chest, pushed her onto the bed, removed her clothes, and inserted his penis in her vagina. He then positioned her head towards his penis and had her orally copulate him. All the while, Lopez demanded to know if these were the things the boy had done to her. Feeling that this was her consequence for lying, and not wanting to disappoint her father, the victim lay there without physically resisting.
The day the victim turned 18, she moved out but continued to see her family.
When the victim was 32, she went on a family camping trip to Pismo Beach. Lopez went as well. The victim and Lopez went to a private area to talk about why the victim grew up not knowing her birth mother and sister. Lopez hugged the victim and kissed her inappropriately. He pushed her to her knees and put his penis in her mouth. She felt paralyzed, like she had to do it. In later describing the incident to a detective, the victim did not describe force but said she was frozen with fear.
After the Pismo Beach incident, the victim continued to see her father at family functions. When the victim was involved in a domestic violence incident with her then boyfriend, she and her young daughter went to stay with Lopez and Regina. They had been staying with them for a couple of days when Lopez gave the victim an "everything-will-get-better hug" which made her uncomfortable. A day or two later, while the victim was in her room with her daughter, Lopez tried to kiss the victim on the mouth. For the first time, the victim backed away from him. She thought, "Now you're still doing it in front of my fricking daughter?" The victim immediately left with her daughter. II. The victim reports the abuse; the investigation
In June 2015, the victim told her sister Jessica about her experiences with their father. That same month, on June 26, 2015 the victim reported Lopez to the police.
Detectives arranged recorded phone calls between the victim and Lopez (the pretext calls). Two calls were made. During the first call, Lopez said, "you and me had sex at Pismo Beach." He then referred to what happened when the victim was 15 years old. He said, as "soon as you came back from Guatemala that—that night you wanted me to rub your back and all that in the middle of the night when I was drunk. Okay, what happened happened, okay. [¶] You know, I don't know what—what—the bad thing that happened and now I realize I know it's bad on my part to do that, I know. 'Cause I was the adult; right? You were still a teenager; I was [the] adult. But then, again, you know, we had it again in Pismo."
After referring to a time when the victim told Lopez "maybe" they could have sex, he commented that he was "so fucking stupid for asking [her]."
The victim explained to Lopez that when he put his penis between her legs when she was small, she pretended to be asleep and would not look at him because she didn't want him to feel disappointed and embarrassed. He did not deny what she said and instead responded, "Right." When she asked how he thought she felt about them having sex after she came back from Guatemala, he said, "Right. I know. I know. . . . I realize. I realize if you put it that way, okay. I don't know—even thought about it before or not." He said that it seemed like it was what she wanted, and it just happened. He had no explanation for why he did these things. When she asked Lopez if he knew how many times they had sex, he said he did not know, but a "dozen maybe, half a dozen. Ten times. Five times. I don't know."
During the call, the victim and Lopez talked about Jessica, referring to similar acts of molestation Lopez had committed against her.
Based on their investigation, detectives presented the case to the district attorney on October 20, 2015. III. Uncharged acts
Paula E. and Ana G., Lopez's nieces, testified about uncharged acts. Paula E. testified that Lopez touched her inappropriately. When Paula E. was young, she spent a lot of time at Lopez's house. When she was nine years old, he came into the room where she was sleeping. He pretended to trip, falling on top of her. He kissed Paula E.'s neck and rubbed his penis against her bottom. She told him no, but he covered her mouth and continued. Paula E. did not tell anyone what happened. At subsequent family functions, Lopez would try to feel Paula E.'s breasts when he hugged her or he would touch her buttocks. When Paula E. was 18 years old, she stayed at Lopez's house for two weeks. While there, he tried to kiss her. In 2004 or 2005, Paula E. told her cousin Ana G. and the victim about what happened to her. The victim then shared that Lopez had molested her as well.
Ana G. is also Lopez's niece. When she was a teenager, Lopez used to hug her in a way she found inappropriate, tight to his body so that her breasts were squished. He also tried to kiss her. IV. The defense case
In both the prosecution and defense cases, expert clinical psychologists testified about child sexual abuse accommodation syndrome. Because the testimony has little bearing on the issues before us, we do not summarize it further.
Lopez's older sister and sister-in-law testified that Lopez is not the type of person who would touch children inappropriately or molest young girls. The witnesses vouched for his good character.
Regina acknowledged that the victim told her Lopez molested her However, the victim had just watched a show about a father molesting a little girl, so she discounted her complaint. Regina has never seen Lopez do anything suspicious. V. Verdict and sentence
A jury found Lopez guilty of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2); count 1), lewd act on a child under 14 years old (§ 288, subd. (a); counts 3 & 4), forcible rape (§ 261, subd. (a)(2); count 5), and forcible oral copulation (§ 288a, subd. (c)(2); count 6).
All further statutory references are to the Penal Code unless otherwise indicated.
On November 6, 2018, the trial court sentenced Lopez to eight years on count 1, two years on each of counts 3 and 4, and eight years on each of counts 5 and 6, for a total of 28 years in prison.
DISCUSSION
I. Voir dire
Because the trial court told defense counsel not to voir dire specifically on the statute of limitations, Lopez contends that the trial court deprived him of his right to a fair trial. We disagree.
Voir dire plays a critical function in assuring a criminal defendant that his or her Sixth Amendment right to an impartial jury will be honored. (People v. Debose (2014) 59 Cal.4th 177, 194.) It does so by exposing biases, known and unknown, on the part of potential jurors. (In re Boyette (2013) 56 Cal.4th 866, 888.) Although parties are entitled "to ask prospective jurors questions that are specific enough to determine if those jurors harbor bias, as to some fact or circumstance shown by the trial evidence, that would cause them not to follow an instruction directing them to determine a penalty after considering aggravating and mitigating evidence" (People v. Cash (2002) 28 Cal.4th 703, 720-721), trial courts have broad discretion over the manner of conducting voir dire (Debose, at p. 194). We will find that a trial court has abused its discretion in how it conducted voir dire when questioning is not reasonably sufficient to test the jury for bias or partiality. (People v. Chapman (1993) 15 Cal.App.4th 136, 141.) Reversal is required if the trial court exercised its discretion in a manner that resulted in a miscarriage of justice (Code Civ. Proc., § 223), or the voir dire must be so inadequate as to result in a fundamentally unfair trial (People v. Asbury (2016) 4 Cal.App.5th 1222, 1230).
We cannot agree any limitation on voir dire here resulted in a miscarriage of justice or a fundamentally unfair trial. As an initial matter, Lopez did not object to the trial court's supposed limitation on his voir dire questions. Most errors in voir dire must be brought to the trial court's attention or they will be deemed waived on appeal. (People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648.)
In any event, Lopez voir dired the jury about its ability to follow the law. When the trial court told counsel not to delve into the concept of a statute of limitations, the trial court also said counsel could explore the issue in the context of jurors' ability to follow the law. Counsel then asked if jurors could follow an instruction to find defendant not guilty if certain facts were true, even though jurors believed that the case had otherwise been proven beyond a reasonable doubt. Would anyone not follow the judge's instruction to vote not guilty under those circumstances? No juror indicated an inability to vote to acquit under that scenario. Defense counsel later asked the same question of new panelists, none of whom indicated a problem with voting to acquit. Thus, the defense was able to question jurors about their ability to follow the law, which was adequate to test potential bias about any statute of limitations issue. II. Trial court's comments on witness credibility
During voir dire, the trial court improperly opined that strangers were more credible than someone related to a party. Lopez now contends that this improper comment deprived him of his right to a fair trial. As we explain, although improper, the comment did not deprive Lopez of a fair trial.
Lopez did not object to the trial court's comments. Nonetheless, this is an instance in which it would be improper to find forfeiture.
A trial court may comment on the evidence, including the credibility of witnesses, so long as its remarks are accurate, temperate, and scrupulously fair. (Cal. Const., art. VI, § 10; People v. Melton (1988) 44 Cal.3d 713, 735.) However, the trial court may not express a view on the ultimate issue of guilt or innocence or usurp the jury's exclusive function as arbiter of questions of fact and the credibility of witnesses. (People v. Cook (1983) 33 Cal.3d 400, 408.) "The trial court may not, in the guise of privileged comment, withdraw material evidence from the jury's consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury's ultimate factfinding power." (People v. Rodriguez (1986) 42 Cal.3d 730, 766.)
In People v. Tatum (2016) 4 Cal.App.5th 1125, 1128 (Tatum), the trial court told prospective jurors in a murder trial that they would judge witness credibility and should not automatically give someone more or less credit before a witness took the stand. To explain the concept, the trial court related an anecdote. (Id. at p. 1128.) Because the trial court had horrible experiences with plumbers, it would not think a plumber was telling the truth. The trial court thus said it would have prejudged a plumber-witness and would not be able to be fair. (Ibid.) Thereafter, the defendant's alibi witness testified that the defendant was with him at the time of the murder. (Id. at p. 1129.) The alibi witness was a plumber. (Ibid.) Tatum found that the trial court's comments allowed the jury to discredit a witness without determining credibility in accordance with the proper instructions. (Id. at p. 1131.) The comments exceeded the scope of proper judicial comment and interfered with the defendant's constitutional right to a jury trial, requiring reversal. (Ibid.) A dissenting justice indicated that the anecdote was improper but, when viewed in context, did not usurp jurors' function as judges of witness credibility. (Id. at p. 1132.)
Similar to Tatum, the trial court's comments here were improper. The trial court made them during voir dire, while discussing the instruction about how to evaluate witness credibility. The trial court accordingly told jurors to consider, " 'Was the witness' testimony influenced by a factor, such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case was decided?' " The trial court then asked a prospective juror whether the juror's "mother or a complete stranger" would be a better alibi witness? When the juror answered "[m]y mother," the trial court corrected, "Regrettably not. Mothers don't like to see bad things happen to their children, so they might fudge a little bit." Rather, a stranger would be the best alibi witness, as a stranger is not motivated to lie. Later, the trial court reminded another prospective juror about its "pointers" regarding whether "a stranger or your mother" would be a better alibi witness. Thereafter, the trial court asked, "If I need someone to vouch for me, let's say I'm accused of a particular crime, is my wife the ideal person to come in and testify?" A prospective juror answered, "No," because she was too "personally connected." The trial court agreed and said, she's "too close to me, okay?" Thus, jurors needed to look at the relationship between parties in a case and whether it gave a witness an incentive to fudge the truth.
These comments were also the subject of Lopez's new trial motion.
We understand the point the trial court was trying to make: whether a witness has a personal connection to a party is a factor jurors may consider in evaluating a witness's credibility. However, in trying to make this legitimate point of law, the trial court instead erroneously weighed in on how the jury should evaluate that factor. That is, a stranger is to be believed over a mother, a wife or family member. Telling jurors that a witness's personal connection to a party is a factor to consider in evaluating credibility is different than telling jurors that a witness's personal connection to a party renders them less credible. And, to make matters worse, the trial court specifically said that if he committed a crime, his wife would not be the ideal person to vouch for him. Although an unfortunate statement standing alone, it becomes all the more so given that Lopez's wife vouched for him, testifying that she never saw him behave inappropriately with the victim or others and that the victim was a liar.
Thus, we must consider whether the trial court's improper comments require reversal. Relying on Tatum, supra, 4 Cal.App.5th at page 1131, which found reversal "mandatory," Lopez contends such error is reversible per se. Tatum relied on People v. Cook, supra, 33 Cal.3d 400. In Cook, at pages 405 to 406, the jury indicated it was deadlocked. The trial court expressed its belief in the prosecution witnesses' testimony and in the defendant's guilt. The jury found the defendant guilty. Cook concluded that the jury did not function as the sole arbiter of witness credibility and of the defendant's guilt or innocence. The trial court thus interfered with the defendant's constitutional right to a jury trial. (Id. at pp. 411-412.) Hence, reversal was "mandatory." (Id. at p. 412.)
We do not read Cook as holding that reversal is mandatory in all cases involving improper judicial comment or that a reversible per se standard otherwise applies. Rather, the error is amenable to harmless error analysis. Our California Supreme Court has thus said that we judge the propriety and prejudicial effect of a comment on a case-by-case basis, noting whether the peculiar content and circumstances of the court's remarks deprived the accused of his or her right to a jury trial. (People v. Rodriguez, supra, 42 Cal.3d at p. 770; accord People v. Melton, supra, 44 Cal.3d at p. 735.) In People v. Flores (1971) 17 Cal.App.3d 579, 588, for example, the trial judge told deadlocked jurors that he believed the defendant was guilty. Noting that the evidence of guilt was not overwhelming and that the case could depend on one witness's testimony against another's, Flores engaged in a prejudice analysis, ultimately concluding that the error was prejudicial. (Ibid.)
Here, applying the more stringent test for prejudice under Chapman v. California (1967) 386 U.S. 18, 24—whether the error was harmless beyond a reasonable doubt—we conclude it was harmless.
First, the gist of the trial court's comments was that witnesses personally connected to the parties are less credible than strangers. This impacted both sides, equally. Other than expert and law enforcement witnesses, the witnesses for both sides were related to the parties. The victim's cousins testified that Lopez had also abused them, and that the victim had told them that Lopez abused her. On the other side, Lopez's wife, sister, and sister-in-law testified that they never saw him behave inappropriately and that he was of good moral character. Thus, the trial court's admonition that family members are less credible than strangers did not necessarily favor one side or the other. Also, unlike in Tatum, Regina was not a quintessential alibi witness, in that the jury could have believed her testimony that she never saw anything inappropriate and still convicted Lopez.
Second, the jury was otherwise properly instructed with CALCRIM Nos. 105 and 226 that it alone had to judge witnesses' credibility. The trial court also instructed the jury "not [to] take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be."
Finally, and most important, evidence of Lopez's guilt was overwhelming, as the most damning evidence against him came from his own mouth. During the pretext calls, the victim repeatedly referred to the rapes and molestations that occurred when she was a child. Lopez never denied any of the acts. Instead, he admitted he had sex with the victim at Pismo Beach. With respect to the post-Guatemala incident, he referred to the "bad thing that happened" and that it was his fault, and that it happened again at Pismo. He admitting being "fucking stupid" for asking the victim for sex. He also admitted having sex with the victim multiple times, including when she was a child. Notably, the statements were not made during an interrogation or other potentially coercive setting. As far as Lopez knew, he was just talking to his daughter. Thus, we cannot find beyond a reasonable doubt that a more favorable result to Lopez would have resulted in the absence of the trial court's comments during voir dire. III. Sufficiency of the evidence
Lopez contends there is insufficient evidence he committed the acts alleged in counts 1 and 6 (forcible oral copulation) and count 5 (forcible rape) by force, violence, duress, menace or fear of immediate and unlawful bodily injury. We disagree.
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.' " (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
As to count 1, forcible oral copulation at Pismo Beach, Lopez argues that the victim said Lopez merely guided her to her knees and she just opened her mouth when he pulled out his penis. Hence, presumably based on this euphemism, there was insufficient evidence of force. Lopez, however, acknowledges that the victim also said Lopez pushed her down by her shoulders and that she was frozen with fear. Any inconsistency in the victim's testimony was a matter for the jury to resolve. And, based on the victim's testimony that Lopez pushed her down, a jury could reasonably conclude Lopez used force sufficient to overcome her will. (See CALCRIM No. 1051; People v. Thomas (2017) 15 Cal.App.5th 1063, 1071.) Force "includes circumstances where the victim did not want to engage in the act and the evidence does not otherwise establish the victim's positive cooperation in act or attitude." (Thomas, at p. 1071.) It includes the force used to move and to position the victim's body. (See, e.g., In re Asencio (2008) 166 Cal.App.4th 1195, 1205-1206 [pulling down victim's underwear and rolling body onto victim is sufficient force].) Lopez's act of pushing the victim to her knees and positioning her so that she could orally copulate him was evidence sufficient to satisfy the force element.
Next, as to count 5, the forcible rape that occurred when the victim was 15 years old, Lopez similarly argues that the victim was already on the bed when he came in, and all he did was push her back with his palms. However, what the victim said was he pushed her down but did not shove her. As we have said, pushing the victim back onto the bed and removing her clothes constitutes force sufficient to satisfy the crime. (See In re Asencio, supra, 166 Cal.App.4th at pp. 1205-1206.)
For the same reason, moving the victim's head to his penis is force sufficient to support Lopez's conviction of count 6 for forcible oral copulation. Moreover, Lopez omits that during the events underlying counts 5 and 6 he repeatedly questioned the victim, demanding to know what the boy in Guatemala did to her. Did he touch her in the ways Lopez was touching her? Also, the victim was just 15 years old, and her assaulter was her father, whom the victim feared disappointing. Such factors evidence duress, which can arise from various circumstances, including the relationship between the defendant and the victim, their relative ages, the defendant's position of dominance and authority, and his continuous exploitation of the victim. (People v. Hale (2012) 204 Cal.App.4th 961, 979.) Thus, in addition to there being sufficient evidence Lopez used force, there was also sufficient evidence of duress. IV. Limitation of evidence
Lopez contends that the trial court erroneously precluded evidence relevant to his statutes of limitation defense. We disagree.
The prosecution theory of the case was that the statutes of limitation were extended per section 803, subdivision (f). Under that section, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under 18 years of age, was the victim of a crime described in, among others, section 288. To that point, the adult victim here reported the sexual abuse in June 2015. The case was given to the district attorney in October 2015, and the case was filed. This evidence established the timeliness of the case.
It is unclear when the case was filed but there is no argument it was more than a year after the June 2015 report.
To establish that the case was untimely, Lopez relied on Paula E.'s testimony that in 2004 or 2005 she told Mynor E., her brother, Lopez molested her and the victim. At a 402 hearing, Mynor E. testified that he became a sworn peace officer in 2008. The victim never told him that Lopez molested her. Rather, Paula E. told him about it. The victim did not want to talk to him but did say it was a close family member and she had been penetrated. Mynor E. could not remember when he talked to his sister and the victim. It could have been more than six years ago but he "really [couldn't] remember." He could not remember whether he was a sworn peace officer when he learned about the abuse. The victim may have been 24 or 25 years old when his conversation with her occurred.
The trial court found that Mynor E.'s testimony was too speculative about when his conversations with his sister and the victim occurred. But, assuming the victim was 20 or 25 when the conversation occurred, then the conversation occurred in the 1990's (as the victim was born in 1977), long before Mynor E. became a sworn peace officer in 2008. Also, telling a family member who happens to be a peace officer about abuse does not constitute reporting for the purposes of section 803, subdivision (f).
The trial court thus determined, first, that the witness lacked personal knowledge of when the so-called report to him about the abuse occurred. We review that determination for an abuse of discretion. (People v. Lopez (2018) 5 Cal.5th 339, 351-352.) Mynor E. repeatedly said he could not remember when he talked to his sister and the victim. Then, when he provided possible dates the conversation occurred, they were well before 2008, when he became a sworn peace officer. Paula E. corroborated that the conversation took place in 2004 or 2005, before her brother became a peace officer. Therefore, the trial court did not abuse its discretion by concluding that Mynor E.'s testimony was too speculative. Further, Mynor E. also said that the victim did not report the abuse to him. Paula E. told him about it, and the victim mentioned some details but otherwise did not name Lopez. Thus, as the trial court found, where a victim vaguely tells about abuse to a family member who then mentions it to another family member who might be a law enforcement officer, these circumstances do not implicate section 803, subdivision (f). V. Admission of pretext calls
In the pretext calls, references were made to the victim's younger half-sister Jessica, who did not testify at trial. Lopez contends that the statements concerning Jessica were inadmissible hearsay and that admitting them violated his confrontation rights. We disagree.
A. Additional background
The prosecutor informed the trial court before jury selection that Jessica would not be testifying. The trial court asked the parties if it needed to address the pretext calls, providing that its initial inclination was to deem the evidence admissible but that it would hear from defense counsel. Defense counsel referred to a motion he had previously filed on that issue but said it did not need to be addressed before voir dire. Thereafter, at the conclusion of voir dire, the trial court asked the parties to identify the motions in limine that remained open. The prosecutor said she wanted to make sure that the pretext calls were admissible in their entirety. The trial court found no legal basis to exclude the evidence. Defense counsel added nothing in response.
Then, during the victim's testimony, defense counsel objected to playing the first pretext call, saying it was the subject of a motion to exclude based on lack of foundation. The trial court overruled the foundation objection. The call was played and transcripts were given to jurors. After the call was played, defense counsel objected that portions of the transcript were hearsay. The trial court overruled the objection. Later, the prosecutor played the second pretext call. After a portion of it had been played, defense counsel again made a hearsay objection. The trial court responded that there had been no motion to exclude portions of the call, even though the trial court had concerns about it. The rest of the call was played for the jury.
The record does not contain a written motion regarding the pretext calls.
At the conclusion of evidence, the parties discussed the admission of exhibits, including the audio and transcripts of the calls. Defense counsel objected to the admission of those parts of the calls about Jessica because the victim's statements to Lopez about Jessica's allegations of abuse were hearsay. The trial court expressed its surprise that counsel did not raise the issue of Jessica's statements in a pretrial hearing when it would have been appropriate to go over the transcript line by line. Nonetheless, the trial court found that the safest course was to edit those statements from the transcript because they raised an inference that Jessica revealed that Lopez engaged in similar conduct with her. The prosecutor objected to the edits, saying that the statements about Jessica were relevant to the victim's state of mind as to why the victim finally reported the abuse, and also that the statements were adoptive admissions. Over the objections, the trial court edited the audio recordings and transcripts to omit statements about Jessica from evidence.
We now summarize the redacted statements.
Before making the first call, the victim told a detective she was upset about her "sister too. Like not knowing about her [sister. She is] going to bring it up if [Lopez] allows it." The detective advised that if Lopez seemed to want to talk, she should "start talking about the sister."
During the call with Lopez, the victim referred to a conversation she had with Jessica. The victim told Lopez that during that conversation "stuff came up with Jessica also—can you imagine how hurt I am of hearing her give me details. Dad, giving me details of when she used to sit on your lap. Come on. It's the same type of stuff that you did to me." Lopez told the victim that Jessica never talked to him about it, and he never thought he did anything wrong to Jessica. He vaguely suggested that Jessica now thought he had done something wrong, but he didn't "know anything about Jessica."
The victim told Lopez that Jessica is "destroyed," but "from what [Jessica told] me you didn't go as far as with [Jessica as] with me." The victim could not understand why, if Lopez "already had me, you already doing this to me, why would you do it to Jessica? That's what's pissing me off and what sent me away after knowing about Jessica." Lopez replied that he "did not realize to me myself. All I did was to Jessica—if she says that, that—that I did something to her I don't know what I did to her. Did she tell you?" The victim told Lopez that Jessica had said she could feel Lopez's hard-ons when Jessica sat on his lap. Lopez told the victim, "I don't know." "I think if I know that I did something intentionally to her I might feel pretty crappy about it." But Lopez did not think the victim would believe any reason he could give, but as "far as Jessica goes, I know that I was close to Jess and I just look [at] her as a regular daughter. . . . [¶] . . . So as far as Jessica goes I wish I would remember." He added, "I was with Jessica [inaudible]."
The victim asked Lopez if he thought she had forgotten about him molesting her at night when she was little. She said, "And then to hear that Jessica went through touching too."
Later, in the context of trying to explain his conduct, Lopez said he did not want to "bring this whole thing and throw it back out on" Jessica.
Lopez raised the admissibility of Jessica's statements in a new trial motion. In denying the motion, the trial court repeated that the defense failed to properly raise the issue in a pretrial hearing and found it disingenuous for the defense to wait until after the call was played before objecting, and then to claim prejudicial error. The trial court also referred to a limiting instruction it gave regarding the pretext calls and to a sidebar regarding whether the trial court should raise the issue in a "more visible" manner. We have not found the limiting instruction or the sidebar in the record.
B. No error occurred
This background demonstrates four reasons why no error occurred in admitting the statements about Jessica.
First, to the extent Lopez argues that the statements about Jessica should have been stricken, the trial court did strike them, as it gave jurors a redacted transcript and audio of the pretext calls. The redacted transcript and audio were the versions that were eventually admitted into evidence. Further, although not in the record, the parties do not dispute that the trial court gave an appropriate limiting instruction.
Second, Lopez forfeited his hearsay and confrontation objections. The rule is that a verdict or finding will not be set aside or reversed on appeal because evidence is erroneously admitted unless the appellant made a timely and specific objection during trial. (Evid. Code, § 353; People v. Boyette (2002) 29 Cal.4th 381, 423.) What happened here exemplifies the purpose for this rule. Before and after voir dire, and despite prompting by the trial court, defense counsel did not raise any issue as to the pretext calls, except to refer to a motion that is not in the record on appeal. Then, after the first call was played for the jury, counsel objected on hearsay grounds, although counsel had previously raised a foundation objection. Counsel again raised a hearsay objection after a portion of the second pretext call was played for the jury and, presumably, after the jury had already heard statements about Jessica. Then, and at subsequent proceedings, the trial court clarified that it overruled the objection because it was untimely. As the trial court said, any issue regarding references to Jessica should have been handled at a pretrial hearing. A trial court is not obligated to halt proceedings to go over lengthy transcripts, which contain mostly admissible material, and to redact them when the relevant witness is on the stand and after the jury has already heard some of the potentially objectionable material. Further, Lopez never objected to the pretext calls on confrontation grounds. His hearsay objection was insufficient to preserve an objection under the confrontation clause. (See People v. Rangel (2016) 62 Cal.4th 1192, 1216-1217 [confrontation objection invokes different legal standards than hearsay].)
Third, even if Lopez did not forfeit his hearsay objection, Jessica's statements to the victim were admissible for a nonhearsay purpose. Evidence offered to show its impact on the listener is not hearsay. (People v. Livingston (2012) 53 Cal.4th 1145, 1162.) Jessica's statements to the victim showed why the victim finally reported Lopez to the police. After talking to Jessica in early June 2015, the victim reported Lopez to the police later that month. Jessica's statements thus went to the victim's state of mind, motive or conduct. (See People v. Mendoza (2007) 42 Cal.4th 686, 697.)
Finally, the statements about Jessica were admissible as adoptive admissions. A statement is admissible as an adoptive admission if the evidence shows the defendant heard and understood the statement and that it would call for a denial if false, but by words or conduct the defendant adopted the statement as true. (People v. Davis (2005) 36 Cal.4th 510, 535; Evid. Code, § 1221.) Evasive or equivocal replies, as well as silence, may raise a reasonable inference the defendant believes the accusatory statement. (People v. Riel (2000) 22 Cal.4th 1153, 1189.) Adoptive admissions do not violate the Sixth Amendment right to confrontation. (People v. Cruz (2008) 44 Cal.4th 636, 672.)
Here, the victim directly accused Lopez of doing to Jessica what he had done to the victim. Lopez denied only the wrongfulness of the conduct, but he did not deny the conduct. He said, "I have never thought I did anything wrong to Jessica." Even if this could be interpreted as a denial he molested Jessica, at a minimum, it was an equivocal one. Then, when the victim told Lopez she had not forgotten how he molested her at night when she was little and that Jessica went through the same thing, he did not deny any of these accusations. Otherwise, Lopez gave equivocal responses to the victim's accusations about what he did to Jessica, at times dismissing the subject by claiming not to remember molesting her. These equivocal responses are quintessential adoptive admissions that raise a reasonable inference that Lopez believed the accusations the victim leveled at him. An innocent person falsely accused of molesting his own daughter is more likely to respond with "I didn't do it" rather than "I wish I could remember." VI. Admission of uncharged offenses
Over Lopez's objection, the trial court admitted evidence of uncharged acts, i.e., that Lopez molested Ana G. and Paula E. He now contends that admitting the evidence violated his constitutional right to a fair trial. (U.S. Const., 6th Amend.) We disagree.
Generally, evidence of prior criminal acts is inadmissible to show a defendant's disposition to commit such acts. (Evid. Code, § 1101, subd. (a).) Evidence Code section 1108 creates an exception to the rule. That section provides that evidence of other sex offenses in a sex crime prosecution is admissible so long as Evidence Code section 352 does not bar admission as unduly prejudicial. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 823.) Admissibility of uncharged acts depends on (1) whether the propensity evidence has probative value in that it is similar enough to the charged behavior to tend to show the defendant committed 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; and (5) whether admitting the propensity evidence will require an undue consumption of time. (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117.) A trial court balances the first factor of probative value against the prejudicial and time-consuming effects of the evidence, as measured by the second through fifth factors. (Ibid.)
Here, the charged and uncharged crimes were similar. Lopez's assaults were all against younger female family members. Paula E. and the victim were both about nine years old when Lopez first assaulted them. The assault against Paula E. and many of those against the victim occurred at night, when the children were sleeping or trying to go to sleep. The victim, Paula E., and Ana G. all testified about the inappropriate hugs Lopez gave them, which continued into adulthood. The uncharged acts were not more inflammatory than the charged acts, which included forcible oral copulation and forcible rape. While the uncharged acts were remote in time, this single factor does not render them inadmissible. (People v. Soto (1998) 64 Cal.App.4th 966, 991.) Finally, the uncharged evidence was a relatively minor part of trial testimony, and it was not likely to confuse or to mislead the jury.
For these reasons, we reject Lopez's argument that admitting the uncharged acts rendered his trial fundamentally unfair. (See People v. Partida (2005) 37 Cal.4th 428, 439.) VII. Prosecutorial misconduct
Lopez contends that the prosecutor committed misconduct by eliciting evidence of the consequences of acquitting Lopez. However, a prosecutor's intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) A prosecutor's conduct that does not render a criminal trial fundamentally unfair may be prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (Ibid.) When the claim focuses on the prosecutor's comments before the jury, the question is whether there is a reasonable likelihood the jury construed or applied any of the complained-of remarks in an objectionable fashion. (Ibid.)
Here, Lopez argues that the prosecutor elicited evidence of the consequences of acquitting him when she asked what the victim expected would happen when she reported Lopez to the police. The victim said she expected, at a minimum, that Lopez would have to report himself for sexual abuse so that he could not be near children. The trial court overruled defense counsel's motion to strike.
Even if we agreed that the victim's testimony alluded to the consequences of acquittal, we do not agree that the prosecutor elicited that testimony for a reprehensible or improper reason. Instead, as the victim did not report the abuse until years after it occurred, extension of the statute of limitations was an issue. The prosecutor's question went to that issue, but the witness, as witnesses sometimes do, answered in a way that was not necessarily responsive to the intent behind the question. Moreover, the isolated, brief comment does not evidence a pattern of conduct that would give rise to a denial of due process. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1344.) VIII. Cumulative error
As we have found any errors to be nonprejudicial, we reach the same conclusion with respect to the cumulative effect of any purported errors. (People v. Cole (2004) 33 Cal.4th 1158, 1235-1236; People v. Butler (2009) 46 Cal.4th 847, 885.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J. We concur:
EDMON, P. J.
LAVIN, J.