Opinion
C089356
06-17-2020
THE PEOPLE, Plaintiff and Respondent, v. MELVIN LOUIS LOVE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18F5354)
Defendant Melvin Love was convicted of four counts of lewd acts with a child under 14 years old and one count of lewd acts with a child 14 years old. The jury found he committed substantial sexual conduct as to one count of the lewd acts with a child under 14 years of age, and defendant admitted he was previously convicted of committing lewd acts. The court sentenced defendant to 100 years to life plus three years. On appeal, he contends the court made several evidentiary errors and an instructional error, as well as cumulative error. We affirm.
FACTUAL AND PROCEDURAL HISTORY
When S. was half way through seventh grade, her father, defendant, moved in with her and her mother and the group moved to Round Mountain, where S. eventually started homeschool. For a short time, S.'s half sister, C., lived with them in Round Mountain. C. is defendant's daughter. S. had not lived with defendant previously because he was serving time in prison for committing lewd and lascivious acts against his stepdaughter, L., C.'s half sister. S.'s mother worked all day and defendant worked in the early morning, leaving him home alone with her for several hours a day. At first, everything was "great" but soon defendant started physically abusing S.'s mother.
When living in Round Mountain, S. initially slept on the couch while her parents slept in the bedroom. When her brother was born, however, her mother slept on the couch with the baby while S. slept in the bedroom with her father. During that time, S. woke up three times to defendant rubbing her vagina underneath her clothes. The first time, defendant told her he thought she was her mother, but the other times he did not make such a claim. The last time, defendant inserted a finger inside S.'s vagina and touched her breasts underneath her clothes.
During testimony, S. had a difficult time describing what had happened to her and coming up with the words to describe where defendant touched her. She explained the topic was difficult for her.
After a year, the family moved to Anderson and S. returned to a traditional school. In Anderson, S. had her own room, as did her parents. C. also came to live with them for over a year. One day, when S. was home with her father and the baby, defendant removed S.'s clothes while the two sat on the couch in the living room. Defendant touched S.'s breasts before getting on top of her and putting his penis in her vagina. He moved around but S. began crying from pain and defendant stopped. He did not ejaculate.
S. told her mother about the abuse but she was not specific about what defendant had done to her. Her father moved out of the home and S. gave a statement to police. She was very uncomfortable during the statement and was not as forthcoming and detailed as she was at trial. In the days and months to follow, S. would make inconsistent statements about whether defendant had sexually assaulted her. S.'s mother checked on the case with the district attorney's office and learned there was no record of the prosecution. Thereafter, S.'s mother allowed defendant to move back into the family home.
This is the second trial in this case. During the first trial, S. testified she told her mother about the abuse following the third incident.
One day, after defendant moved back in, S. went into her parents' room to get clothes she had stored there. Defendant also came into the room. Without saying anything he moved S. onto the bed and removed her pants. He touched her vagina with his hands and her breasts with his hands and mouth, before putting his penis in her vagina and moving around. He did not ejaculate.
At the prior trial, S. testified the first rape occurred on her parent's bed while the second rape occurred on the couch.
The next day, S. ran away to C.'s mother's house and reported defendant's conduct. She was later able to give a complete statement to police and defendant was eventually arrested.
At the prior trial, S. testified a week went by before she reported defendant's conduct to C.'s mother.
At trial, defendant pointed to the many inconsistent and incomplete statements S. made as evidence of her lack of credibility. Additionally, he introduced evidence he was the disciplinarian in the house and he and S. did not get along. S.'s mother testified that each of S.'s disclosures of sexual abuse occurred after defendant had taken away her cell phone, something she was particularly attached to, as punishment. Before S.'s first disclosure, her phone was taken away because a missing phone she said she did not take was found in her room. Before S.'s second disclosure, her phone was taken away because she posted inappropriate things on social media. C. testified S. had a reputation for lying, specifically with regard to her chores and would regularly get out of doing the dishes by complaining and crying to her mother.
A jury found defendant guilty of four counts of lewd and lascivious acts with a child under 14 years of age and one count of lewd and lascivious acts with a child 14 years of age. The jury also found defendant committed substantial sexual conduct during the first sexual assault in Anderson. Defendant admitted he had previously been convicted of a lewd and lascivious act within the meaning of Penal Code section 288, subdivision (a).
The court sentenced defendant pursuant to Penal Code section 667.61 and imposed 25 years to life for each conviction for lewd acts with a child under 14 years old and three years for his lewd act with a 14 year old, for a total of 100 years to life plus three years.
DISCUSSION
I
The Court Did Not Abuse Its Discretion By
Admitting Evidence Of Defendant's Prior Acts
Defendant argues the court abused its discretion by admitting the evidence underlying his prior conviction for lewd acts under both Evidence Code sections 1101 and 1108, arguing in both instances the evidence was more prejudicial than probative. We disagree.
Further section references are to the Evidence Code, unless otherwise indicated.
A
Background
The prosecution moved in limine to admit evidence of defendant's prior conviction for lewd acts under both sections 1101 and 1108. Stating, defendant "was convicted of molesting [L.], a child whose mother he was in a romantic relationship with, in 2005. The Defendant pled to a violation of [lewd and lascivious acts] and was sentenced to 6 years in state prison. . . . The defendant began touching [L.'s] breasts and vagina, skin-to-skin. He progressed to forcing her to have sexual intercourse with him, sometimes shooting her with a BB gun if she did not comply." Defendant moved to exclude the evidence arguing the facts underlying the conviction were subject to credibility issues and its admission would result in a trial within a trial. Further, he asserted, the evidence was more prejudicial than probative.
During oral argument on the motion, the prosecutor argued the events were similar to the charged crime as follows: "[e]ach of these individuals were girls with whom the defendant had a fatherly relationship: one as his biological daughter and one as essentially a stepdaughter. The pattern that the defendant engaged in in getting them in homeschooling, isolating them from family members, creating a toxic environment where people were walking on eggshells around him, and fearful to stand up to him, and the pattern that he then engaged in with each girl in progressing from touching to raping them, I think, is unique to this offender and it shows his pattern of conduct with each girl."
The trial court admitted the evidence under both sections 1101 and 1108. The prosecution assured the court it would not inquire of physical abuse unrelated to the sexual acts.
L. testified that when she first moved to Anderson with her mother, defendant, and siblings, she went to public school but defendant transitioned her and her siblings to homeschool. Her mother worked at night and defendant worked in the early morning, leaving defendant alone with L. for several hours a day.
When L. was 11 or 12 years old, defendant started touching her in ways that made her uncomfortable. The first time, defendant called her into the house from outside. He was heating up a knife on the stove and pretended to touch her with it before he actually touched her with the knife. It hurt. He told her to go into the bedroom and get on the bed. She complied. Defendant came into the room, removed L.'s pants, and put his finger in L.'s vagina. After, L. put her clothes back on and went outside. She did not tell anybody because she was scared. Defendant touched her this way a couple of times. He soon began regularly raping her until she was 17 years old. He would usually call her into the house and do "evil things." When she resisted, he would shoot the back of her leg with a BB gun or poke her with a safety pin all over her body until she stopped fighting him.
When L. initially reported defendant's conduct, she told her mother and a police officer the abuse had only recently started. She also did not say anything about weapons being used.
After L. disclosed defendant had been inappropriately touching her to her mother, L.'s mother called defendant and demanded he move out of the home. Defendant admitted misconduct and apologized to L.'s mother. He claimed L. had made sexual advances toward him.
The jury was instructed it could use this evidence to show defendant acted with the intent required of the charged crimes or had a common scheme or plan when committing the crimes. That instruction also charged the jury not to "conclude from the evidence that the defendant has a bad character or is disposed to commit crime." The jury was later instructed, however, it could use this same evidence to conclude "defendant was disposed or inclined to commit sexual offenses."
B
Analysis
Admissibility under both sections 1101 and 1108 is conditioned on the evidence also passing muster under section 352. (§ 1108; People v. Leon (2015) 61 Cal.4th 569, 599.) It is with this condition, defendant contends the court erred. To that end, section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
"Evidence has probative value if it 'ha[s] a "tendency in reason to prove or disprove any disputed fact" [citation].' [Citation.] ' " ' "Prejudice" as contemplated by [Evidence Code] section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant.' " ' [Citation.] The prejudice referred to in Evidence Code section 352 is characterized as ' " 'evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.' " ' [Citation.] ' " 'The prejudice that section 352 " 'is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' [Citations.] 'Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors. [Citation.]' [Citation.]" [Citation.] In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.' [Citation.]" [Citation.]' [Citation.]" (People v. Rivera (2011) 201 Cal.App.4th 353, 362.) We review a trial court's admission of evidence for abuse of discretion. (People v. Loy (2011) 52 Cal.4th 46, 61.)
Relying on Harris, defendant argues the probative value of his prior conduct was outweighed by the prejudicial effect for purposes of admitting propensity evidence under section 1108. (People v. Harris (1998) 60 Cal.App.4th 727.) In Harris, the defendant was a mental health nurse who took sexual advantage of two female patients at the center where he worked. (Id. at pp. 730-732.) He "licked and fondled an incapacitated woman and a former sexual partner, both of whom were thereafter on speaking terms with him." (Id. at p. 738.) The appellate court described the charged offenses as "breach of trust by a caregiver . . . ." (Ibid.) The propensity evidence in contrast described a vicious sexual assault years earlier on a woman who was attacked in her apartment and the defendant's subsequent conviction for burglary with the infliction of great bodily injury. (Id. at pp. 733-735.) The appellate court decided not only that the uncharged act was remote, but that extreme differences between the prior and charged offenses negated any probative value. (Id. at pp. 741-742.) It found the "23-year-old act of inexplicable sexual violence" (id. at p. 740) was not probative of the defendant's predisposition to commit the charged " 'breach of trust' sex crimes" (id. at p. 741), in part because the charged offenses were "of a significantly different nature and quality than the violent and perverse attack on a stranger that was described to the jury" (id. at p. 738). The court concluded the propensity evidence should have been excluded under section 352, reasoning in part that "[t]he evidence that [the] defendant committed a violent rape of a stranger, as the jury was led to believe, did not bolster [the mental health victims'] credibility nor detract from the evidence impeaching their stories." (Harris, at p. 740.)
Defendant acknowledges his prior conviction was more similar to the current charges than the case in Harris. Still, he argues the evidence provided limited probative value. Specifically, defendant points to his lack of gratuitous violence toward S., the limited number of encounters with S. compared to L., the age difference between defendant and his victims at the time the crimes occurred, and the amount of time between the two offenses. We believe the similarities are far greater than those presented in Harris.
Defendant's prior act demonstrated how he isolated his victim from peers and progressed his conduct from vaginal touching to genital penetration. These are traits common to the charged crimes. The crimes were further similar in that defendant targeted daughter figures with whom he had tense relationships and was uninvolved in their early development. Even though defendant had aged considerably between the time of the offenses, his targeted victims remained the same -- 11- or 12-year-old girls living in the home. And while a considerable amount of time elapsed between the commission of the offenses, defendant was in prison for a majority of that time. (People v. Balcom (1994) 7 Cal.4th 414, 427 ["close proximity in time of the uncharged offenses to the charged offenses increases the probative value of this evidence"].) In whole, the evidence demonstrated defendant's particular process of isolation and repeated sexual violence against his live-in victims. L.'s testimony served as an example of defendant's conduct when allowed to continue over the course of six years as opposed to the two-year period testified to by S, which only ceased upon defendant's arrest.
While the assaults against S. did not involve gratuitous violence like the assaults against L., defendant still made violence part of S.'s life making her fear him and reporting his conduct. S. and her mother testified S. had seen defendant be violent toward S.'s mother. The violence started in Round Mountain where defendant also began sexually assaulting S. Thus, while defendant did not specifically target S. with violence as he had L., violence was still used to gain submission of his victim. Accordingly, we do not believe evidence of defendant's prior lewd act and the violence that accompanied it is so dissimilar from his charged offenses as to justify exclusion, as was the case in Harris.
The testimony was also short and interwoven with evidence of defendant's sexual assaults, thus not amounting to an undue consumption of time. Defendant argues evidence of the sexual assaults against L. was much more inflammatory than the charged offenses. We agree the evidence as testified to by L. included inflammatory aspects not present in S.'s case. These aspects, coupled with the fact that defendant was convicted of only one count of lewd acts against L., created a risk of prejudice in that the jury might seek to punish defendant for crimes it perceived he got away with instead of solely for the charged offenses. (See People v. Poplar (1999) 70 Cal.App.4th 1129, 1139.) The court, however, protected from this risk by instructing the jury the limited purposes for which it may use the evidence. Specifically, it instructed the jury it was to use defendant's prior conduct as "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 through 5 in this case. The People must still prove each charge and each allegation beyond a reasonable doubt." The court also instructed the jury of its duty to decide the facts based on evidence presented, not sympathy or bias. It is presumed the jury followed these instructions. (People v. Edwards (2013) 57 Cal.4th 658, 746.) Accordingly, we do not believe the probative value of defendant's prior conduct was substantially outweighed by its potential prejudice.
Still, defendant argues the prejudice should have been reduced because the court could have easily excluded evidence of defendant's gratuitous violence. We disagree. Evidence of defendant's use of a knife to gain L.'s compliance during the first sexual assault was interwoven with the facts of the assault and could not be easily excluded from L.'s testimony. While it would have been more favorable to defendant had the prosecutor not asked about defendant's conduct when L. resisted him, which included defendant shooting her with a BB gun and poking her with safety pins, the evidence was not irrelevant and fell within the court's in limine ruling. Defense counsel did not object to this line of questioning, even though an objection would have highlighted to the court an appropriate point to cut off questioning on section 352 grounds. Instead, defense counsel opted to introduce L.'s inconsistent statements wherein she stated defendant's sexual abuse occurred for a short time and was not accompanied by physical violence. Given defense counsel's apparent tactical decision to permit evidence of gratuitous violence for purposes of impeachment and the prosecutor's adherence to the in limine order, we cannot fault the court for failing to interject and stop the prosecutor's inquiry into defendant's response to L.'s resistance. Thus, to the extent defendant argues the court should have mitigated the danger of prejudice by excluding the gratuitous violence, that argument is forfeited.
Accordingly, the court did not abuse its discretion by admitting evidence of defendant's prior lewd act against L. as propensity evidence under section 1108. For similar reasons, defendant's due process rights were not violated. (See People v. Kraft (2000) 23 Cal.4th 978, 1035 ["Application of the ordinary rules of evidence generally does not impermissibly infringe on a capital defendant's constitutional rights"].)
Further, because the jury was permitted to use the evidence as propensity evidence, we need not consider whether the jury was precluded from considering the same evidence for purposes of determining defendant's intent and his common scheme or plan. Indeed, admission under section 1101 still bars the jury from considering the evidence as propensity evidence. (See People v. Hendrix (2013) 214 Cal.App.4th 216, 248.) Here, the jury was permitted to use the evidence as propensity evidence, thus any prejudice resulting from an alleged error would be harmless. (See ibid.)
II
The Court Did Not Abuse Its Discretion By Excluding
Credibility Evidence Related To The Victim
Defendant argues the trial court abused its discretion and violated his right to due process and to present a defense by excluding S.'s prior statements of a sexual nature and by excluding evidence S. impersonated C. on social media, both of which the defense offered to impeach S.'s credibility. We disagree.
A
Background
Defendant sought admission of the victim's prior sexual conduct that undermined her credibility. Specifically, that the victim had previously described "romantic and sexual encounters" to C. and was capable of articulating in detail the sexual conduct that had occurred and the body parts involved, contrary to her claim she did not know how to describe sexual acts. The defense did not seek to introduce specific sex acts but instead sought evidence S. could describe them. The court denied defendant's request because it did not believe the evidence was sufficiently probative on the issue of credibility and because the defense had already had ample opportunity to impeach S.
Defendant also sought admission of a cell phone incident where S. allegedly stole C.'s identity and impersonated her on social media to communicate with men, then lied about it. The prosecutor argued there was no evidence of this incident. C. testified at a section 402 hearing she knew S. took pictures of her (C.) and pretended to be her on social media because when S.'s phone was confiscated, C. saw the relevant pictures on the phone. The court denied defendant's request because C. lacked first-hand knowledge of the events she testified about and because the evidence treaded too closely to evidence of S.'s sexual history.
B
Analysis
The thrust of defendant's arguments regarding S.'s prior statements and her alleged impersonation of C. is that, although both involve S.'s sexual history, the evidence should have been admitted to impeach S.'s credibility.
Evidence of the prior sexual conduct of a molestation or sexual assault victim is generally excluded at trial. (People v. Woodward (2004) 116 Cal.App.4th 821, 831.) Section 782, subdivision (a), provides a limited exception that allows the admission of evidence for impeachment purposes if movants follow certain procedures and courts make certain findings. If the court finds the proposed evidence is relevant for impeachment purposes and not inadmissible pursuant to section 352, the court may then make an order "stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted." (§ 782, subd. (a)(4).) As used in section 782, sexual conduct "encompasses any behavior that reflects the actor's or speaker's willingness to engage in sexual activity. The term should not be narrowly construed." (People v. Franklin (1994) 25 Cal.App.4th 328, 334.) "[S]ection 782 is designed to protect victims . . . from 'embarrassing personal disclosures' unless the defense is able to show in advance that the victim's sexual conduct is relevant to the victim's credibility." (People v. Bautista (2008) 163 Cal.App.4th 762, 782.)
Section 782, "vests broad discretion in the trial court to weigh the defendant's proffered evidence prior to its submission to the jury and to resolve the conflicting interests of the victim and the defendant." (People v. Casas (1986) 181 Cal.App.3d 889, 895-896.) We will overturn a trial court's ruling as to the admissibility of prior sexual conduct evidence only if a defendant can show the trial court abused its discretion. (People v. Chandler (1997) 56 Cal.App.4th 703, 711.)
Additionally, the United States Constitution gives a criminal defendant the right to present a defense. "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, [citation], or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, [citation], the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.' " (Crane v. Kentucky (1986) 476 U.S. 683, 690 [90 L.Ed.2d 636, 645].) A defendant " 'does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.' " (Montana v. Egelhoff (1996) 518 U.S. 37, 42 [135 L.Ed.2d 361, 367].)
1
The Victim's Prior Sexual Statements
Defendant contends S.'s prior sexual statements were relevant to impeach her credibility because she painted herself as a sexually naive victim, who was unaware of the terms to use when referencing sex acts and body parts. Because the evidence was relevant and did not violate section 352, defendant argues the court abused its discretion and unconstitutionally prohibited him from presenting a defense and receiving a fair trial.
The problem with defendant's argument is that it rests on a faulty premise -- that there was any evidence that S.'s failure to articulate words and openly discuss her sexual assault was a product of her sexual naivete. Other than S.'s age, no evidence was admitted demonstrating S.'s sexual naivete. Instead, the evidence suggested her hesitancy was because of her trauma. During S.'s testimony, she had a hard time articulating where defendant touched her and what had happened during the assaults. This was particularly true during S.'s description of the first assault. She explained the topic was difficult for her to talk about. Indeed, S.'s mother testified S. had a hard time talking about the subject with her after the first disclosure, as did multiple officers tasked with taking S.'s statement. Prior to trial, S.'s general reaction to questions regarding the assaults was to shut down and not speak at all. This was the explanation provided by the prosecution for S.'s demeanor on the witness stand, which included her frustration in addition to her difficulty articulating the sexual assaults. Because S.'s difficulty articulating the assaults was attributed to her trauma, not her naivete, there was little relevance to S.'s prior sexual statements made to a close confidant about consensual sexual encounters.
Defendant sought to attribute S.'s difficulty to her dishonesty. To that end, he was permitted to question S. and others extensively about S.'s inconsistent statements and behavior. S. reported defendant had assaulted her four times in Round Mountain and three times in Anderson. She failed to say one of the Anderson assaults occurred in her parents' bedroom. In a prior trial on the matter, S. made several inconsistent statements about when and where the prior assaults occurred as well as when she reported the assaults to her mother and C.'s mother.
Defendant also introduced evidence of S.'s motive to lie about the assaults. S. grew up without defendant and with a mother who provided little discipline over her and gave her everything she wanted. Once defendant began living with them, he disciplined S., sometimes by taking her phone, and the two did not get along. S. was particularly attached to her phone and would become hysterical when it was taken away. S.'s initial disclosure occurred after defendant took away S.'s phone, as did her second disclosure. The fact that S. also made statements of a sexual nature to her sister added nothing to the defense that S.'s statements about the assaults were false and motivated by resentment for defendant.
In sum, very little weighed in favor of the evidence's admission. There was limited impeachment value to the evidence, given that S.'s naivete was not at issue, and defendant's defense was not advanced by introduction of the evidence. With this in mind, we reject defendant's reliance on King. (People v. King (2010) 183 Cal.App.4th 1281.) There, a victim said she did not call 911 to report a police officer who groped her because she was " 'a little bit naive.' " (Id. at p. 1315.) The appellate court concluded the defendant was given ample opportunity to cross-examine about the victim's naivete and even asked the victim to explain her characterization of herself. (Ibid,) In contrast, defendant argues the entire subject of the victim's naivete was foreclosed to him. But as discussed, S.'s naivete was not at issue. What was at issue was whether S.'s demeanor was the product of trauma or fabrication. Defendant was permitted to question broadly in this regard and introduced evidence regarding S.'s tense relationship with defendant and her many inconsistent statements.
Accordingly, the trial court did not abuse its discretion by excluding evidence of S.'s prior sexual statements. Nor were defendant's constitutional rights violated by the evidence's admission. "As a general matter, the '[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense' " or the right to due process. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103; see People v. Kraft, supra, 23 Cal.4th at p. 1035.)
2
The Victim's Social Media Post
Defendant contends S.'s impersonation of C. for the purposes of communicating with men on social media and then lying about it should have been admitted to impeach S.'s credibility. Defendant spends much time arguing the court erred by viewing the evidence as evidence of S.'s sexual conduct instead of evidence of specific acts of dishonesty. Defendant, however, does not address the court's conclusion his proffer was not based on personal knowledge. (§ 702.) Indeed, C. believed S. had lied to her about impersonating her identity to communicate with men on social media because C. found a relevant photograph on S.'s cell phone. C.'s testimony does not establish S. impersonated her on social media for the purpose of communicating with men, thus cannot establish that S. lied about it when confronted by C. It was for this reason the court excluded the evidence, and we see no abuse of discretion in that decision. Similarly, defendant's rights to present a defense and to due process were not violated. (People v. Fudge, supra, 7 Cal.4th at pp. 1102-1103; see People v. Kraft, supra, 23 Cal.4th at p. 1035.)
III
The Court's Failure To Give Defendant's Requested
Pinpoint Instruction Was Harmless
Defendant contends the trial court erred by failing to instruct the jury with his proposed pinpoint instruction. The instruction read: "When a defendant pleads guilty to a crime, he admits every element of that crime but no more. When a defendant pleads guilty to a crime, he does not admit any additional facts beyond the elements of the offense." The court denied the pinpoint instruction finding it irrelevant and misleading. The judge reasoned that defendants he sentences, including this defendant, plead to a factual basis amounting to an admission beyond the elements of a crime. And because there was no evidence indicating how defendant's plea was taken, there was nothing before the court to determine whether the proposed pinpoint was an accurate factual statement. The court also reasoned the jury was instructed it could use evidence of defendant's prior acts, beyond his conviction to assess his guilt; also making defendant's pinpoint instruction misleading.
"A defendant is entitled to a pinpoint instruction, upon request, only when appropriate. [Citation.] 'Such instructions relate particular facts to a legal issue in the case or "pinpoint" the crux of a defendant's case, such as mistaken identification or alibi. [Citation.] They are required to be given upon request when there is evidence supportive of the theory, but they are not required to be given sua sponte.' " (People v. Gutierrez (2009) 45 Cal.4th 789, 824.) For a pinpoint instruction to be appropriate, it must be accurate, nonargumentative, nonduplicative, and supported by substantial evidence. (People v. Bolden (2002) 29 Cal.4th 515, 558-559.) We independently review whether a pinpoint instruction should have been given. (People v. Manriquez (2005) 37 Cal.4th 547, 584.)
Defendant's requested instruction is an accurate statement of the law. (People v. Saez (2015) 237 Cal.App.4th 1177, 1206, citing People v. Wallace (2004) 33 Cal.4th 738, 749.) Assuming error, it was harmless under either standard. (See People v. Watson (1956) 46 Cal.2d 818, 836 ["a 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error"]; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711] ["before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt"].)
In Saez, the court applied the principle " '[a] guilty plea "admits every element of the crime charged . . . ," ' but no more," to conclude a defendant's admission to the elements of false imprisonment while armed and of reckless use of a dangerous weapon by pleading guilty to those crimes did not admit, or waive his Sixth Amendment right to a jury trial regarding the additional facts on which a strike finding was contingent -- that he personally used a firearm and that the reckless use of a firearm occurred in the course of the false imprisonment. (People v. Saez, supra, 237 Cal.App.4th at p. 1206.) Nor did his stipulation to the complaint as the factual basis of his plea constitute a waiver of Sixth Amendment rights or an admission as to those additional facts. (Ibid.) Here, the additional facts not pled to by defendant were left to a jury's determination. Thus, while defendant's plea itself admitted only the elements of the crime, the jury was not restricted to that admission when determining defendant's conduct against L.
Indeed, the jury was instructed it could consider all the evidence presented on that point. This evidence included defendant's guilty plea to one count of lewd acts, as well as his admission to L.'s mother when she confronted him with L.'s allegations of inappropriate touching. Defendant blamed L. for his conduct and accused L. of making sexual advances toward him. While it heard the story from L. herself, it also heard her inconsistent statements to her mother and the responding officer. With this evidence, the jury knew the facts of defendant's lewd act against L. were contested. Defense counsel reinforced this concept to the jury during closing argument.
With this evidence and argument in mind, and the instruction the jury could consider all evidence of L.'s allegations to determine defendant's culpability, we conclude the failure to instruct the jury of the legal significance of defendant's guilty plea was harmless.
IV
There Was No Cumulative Error
Defendant argues cumulative error. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Because we concluded the only error that did occur was harmless, there was no cumulative error.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Duarte, J. /s/_________
Hoch, J.