Opinion
F085965
07-19-2024
THE PEOPLE, Plaintiff and Respondent, v. RAUL PACHECO, Defendant and Appellant.
Jennifer A. Mannix, 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, R. Todd Marshall and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County, No. 19CR-05309 Carol K. Ash, Judge.
Jennifer A. Mannix, 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, R. Todd Marshall and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, Acting P. J.
Appellant Raul Pacheco sexually abused A.B. for many years. On December 15, 2022, appellant was convicted by a jury of 10 felonies based on the sexual abuse. Appellant was sentenced to an aggregate term of 25 years to life, plus 11 years four months. On appeal, appellant argues that (1) the trial court erred in excluding expert witness testimony by a nurse practitioner / physician's assistant regarding likely trauma resulting from sexual assault; and (2) the trial court violated appellant's right to due process when it instructed the jury with CALCRIM No. 1191A. The People disagree. We affirm.
PROCEDURAL HISTORY
On August 16, 2021, the Merced County District Attorney filed a first amended information charging appellant with sodomy of a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a); count 1); lewd or lascivious acts against a child under 14 years of age (§ 288, subd. (a); counts 2-6); and lewd or lascivious acts on a child 14 or 15 years of age while at least 10 years older than the child (§ 288, subd. (c)(1); counts 7-10).
All further undesignated statutory references are to the Penal Code.
On November 29, 2022, the Merced County District Attorney filed a second amended information. This information was not included in the record on appeal. However, it appears that it only made minor changes that are not relevant to the appeal.
On December 15, 2022, appellant was found guilty by a jury on all counts.
Appellant was sentenced on March 3, 2023. The trial court imposed an aggregate term of 25 years to life, plus 11 years four months, consisting of the following: on count 1, 25 years to life; on count 2, six years (the midterm); on counts 3 and 5, two years (one-third the midterm); and on counts 7 and 9, eight months (one-third the midterm). The trial court also imposed the following terms, to be served concurrently: on counts 4 and 6, six years (the midterm); and on counts 8 and 10, two years (the midterm).
On March 3, 2023, an abstract of judgment was filed that included the sentences on each count. On April 6, 2023, an amended abstract of judgment was filed. The amended abstract did not include the attachment page that listed the sentences for counts 8, 9, and 10. We may correct a clerical error in the recording of a lower court's pronouncement. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We will therefore order that an amended abstract be filed that includes this page.
On March 20, 2023, appellant filed a notice of appeal.
FACTUAL SUMMARY
I. The Prosecution's Case
In or around 2009, appellant and R.S. (A.B.'s mother) reconnected and began dating. At the time, R.S. had two children, I.B. and A.B. Appellant had three children.
Appellant and R.S. got married in July of 2010. At the time, A.B. had recently finished second grade.
Before the wedding, R.S., I.B., and A.B. moved into an apartment in San Jose with appellant. Appellant's three children also stayed with them periodically.
While they were living in the apartment, appellant asked A.B. to come into his bedroom and she did. A.B. was between eight and 10 years old. Appellant told A.B. that her mother asked her to do him a favor. He asked A.B. to take a picture of him, which he wanted to send to A.B.'s mother. A.B. agreed, and appellant removed all his clothes. A.B. took a picture of appellant with his cell phone, and she thought she was done.
However, appellant told A.B. that her mother wanted her to do him another favor. Appellant wanted A.B. to grab his penis and move her hand up and down. He showed her what to do. A.B. was uncomfortable, but at the direction of appellant, she moved her hand up and down on his penis.
Approximately two weeks later, appellant asked A.B. to come into his bedroom and she did. He told A.B. to do him a favor. He removed his pants and underwear and told A.B. to put her hand on his penis. A.B. put her hand on his penis and moved her hand up and down. Appellant also asked A.B. to put his penis in her mouth. A.B. said she did not want to. Appellant told her to do it because her mother was asking for another favor. A.B. could not remember if it was this occasion or a different one, but she eventually put appellant's penis in her mouth.
This happened approximately five or six times while they lived in the apartment, and it followed the same pattern. Appellant would come to A.B. and ask her to help him or do a favor for him. After a few occurrences, A.B. understood that when he asked, she had to masturbate him or orally copulate him.
In or around 2012, the family moved into appellant's sister's house in San Jose. The sexual abuse continued, and it followed the same pattern. Appellant would ask A.B. to do him a favor or help him in the bedroom, and A.B. would masturbate him or orally copulate him. This happened approximately 10 to 15 times at this house.
On one occasion, when A.B. was 10 years old, appellant asked if he could put his penis inside her anus. A.B. said no, but appellant kept asking. Eventually, A.B. agreed.
Appellant bent A.B. over the bed and put his penis inside her anus. It hurt A.B. badly, and she was crying and screaming. However, appellant kept moving his penis in and out of her anus. A.B. tried to get appellant to stop by grabbing his thighs and pushing. She also pinched him.
Eventually, appellant stopped. Her anus hurt badly, and after she felt it, she saw a "smudge" of blood on her hand. She told appellant, and he told her that she was fine and to put ointment on it.
In addition to the sexual abuse, A.B. noticed that there was a hole in her closet wall that seemed to have been drilled. A.B.'s closet shared a wall with a closet that was connected to appellant's room. The hole was not there when A.B. moved into the room. A.B. thought someone was watching her. On one occasion, A.B. looked through the hole and saw an eye looking back. A.B. thought it was appellant's eye. On another occasion, A.B. made sure the hole was covered and then went to take a shower. When she came back, the hole was uncovered.
In or around March of 2015, appellant, R.S., A.B., and I.B. moved to a house in Los Banos. The sexual abuse continued at this house, and it followed the same pattern. Appellant would ask A.B. in person or via text message to help him or for a favor, by which he meant he wanted her to masturbate him or orally copulate him. However, the frequency of the abuse increased. A.B. usually masturbated or orally copulated appellant three to four times a week.
On one occasion at this house, A.B. went into the upstairs bathroom to shower. Inside the bathroom there was a small door. A.B. did not know where the door led, but inside there was "white cotton stuff." The door had a handle, but that day the handle was gone and there was a hole there instead. A.B. plugged the hole and started to shower. While she was showering, she peeked out and saw that the hole was unplugged. After she finished showering, she looked through the hole and saw hairy legs. A.B. thought it was appellant because he was the only other person home.
In spring of 2019, I.B.'s girlfriend, B.S., moved into the house.
On July 4, 2019, appellant asked B.S., who was intoxicated, if she could help him feed the dogs in the backyard. B.S. agreed to help, and she went outside. After she put the dog bowls down, appellant pushed her against a wall and pressed his entire body against her. Appellant started kissing her face. She tried to step away, but she fell. Appellant began pulling down on her pants. He then put his hand into her pants and touched her buttocks and vagina. B.S. pulled appellant's hand out of her pants while loudly and repeatedly telling him to stop. When B.S. reached her hand back, she felt appellant's penis on her arm and her hand. Before she stood up all the way, she felt his penis touch her buttocks. Appellant covered her mouth with his hand. B.S. eventually pushed away from appellant and ran back inside. Before she left, she saw that appellant's penis was exposed.
Additionally, appellant would send B.S. messages through social media, asking her to meet him in the garage. B.S. never met appellant in the garage, but in September of 2019 she asked A.B. if appellant ever asked A.B. to meet him in the garage. At the time, A.B. was 17 years old. A.B. looked very scared and told B.S. not to meet appellant in the garage and not to reply to him, but she would not tell B.S. why.
B.S. was concerned by A.B.'s reaction. B.S. began bringing A.B. into her bedroom as often as she could. A few days later, A.B. told B.S. that appellant would force her to masturbate and orally copulate him.
B.S. told I.B. what A.B. told her. I.B. made a post on social media that R.S. saw, and after speaking with A.B., R.S. confronted defendant. Ultimately, I.B. called the police and appellant was arrested.
II. Appellant's Case
J.V., appellant's brother-in-law, owned the house in San Jose where appellant and A.B. had lived. After appellant and his family moved out, J.V. painted the closet in A.B.'s room. He did not see any enlarged holes. J.V. also painted the closet in appellant's room, and he did not see any holes in that closet either.
A.Z., one of appellant's sisters, moved into the house in San Jose in 2013. A.Z. lived in the house at the same time as appellant and his family. A.Z. shared a room with A.B. and appellant's daughter. A.Z. did not see anything "out of place" happen between appellant and A.B.
On February 13, 2020, Adam Tacheira, a defense investigator, went to the house in San Jose where appellant and A.B. had lived. He inspected the wall of the closet in A.B.'s room and the wall of the closet in appellant's room. He did not see any repairs or patches.
On July 15, 2021, Tacheira went to the house in Los Banos where appellant and A.B. had lived. Tacheira inspected the upstairs bathroom and examined blueprints of the house. There was a door to the attic crawl space in the bathroom. The insulation in the attic was bright pink. Additionally, access to the attic was blocked by the roof trusses, the wood framing of the house, and air-conditioning vents.
On July 10, 2020, Fausto Lopez, an investigator for the Merced County District Attorney's Office, interviewed A.B. A.B. told Lopez that the incident in the upstairs bathroom of the house in Los Banos occurred in the summer of 2019. A.B. also told Lopez that the hole was located in the insulation.
DISCUSSION
I. The Trial Court Did Not Err in Excluding the Testimony of P.A. Juliette Tamagni, and even if it did, any Error was Harmless
A. Evidence Code Section 402 Hearing
On December 7, 2022, the trial court held an Evidence Code section 402 hearing to determine the admissibility of the testimony of Juliette Tamagni, a nurse practitioner and physician's assistant. Specifically, appellant wanted to call P.A. Tamagni to testify regarding the injuries she would expect to see to a child between the ages of eight and 10 who was forcibly sodomized by an adult male.
P.A. Tamagni got her Registered Nursing degree from Hartnell College. She attended the Stanford University School of Medicine Physician's Assistant Program, where she also got her nurse practitioner license. She had 32 years of experience working in pediatrics, women's health, and adolescent care. She received training regarding human physiology, as well as recognizing physical indicators of child sexual abuse. Throughout her career, P.A. Tamagni examined 30 children who reported that they had been sexually abused. In approximately half of these cases, the patient's chief complaint was rectal penetration.
However, P.A. Tamagni did not have a certification in sexual assault examinations and she had not taken any specific courses on these examinations. Additionally, she had no training regarding expected anal injuries to a child between eight to 10 years old who had been sodomized.
Further, after examining a child who reported sexual abuse, P.A. Tamagni's practice was to refer them to a specialized clinic for a more extensive exam, and providers at that clinic would generally take over care. Moreover, of the cases she had where sodomy was suspected, her patients were generally 10 years of age and older.
At the hearing, defense counsel posed the following hypothetical to P.A. Tamagni:
"If you have a ten-year-old child who is standing with her feet on the floor, bent over a bed, who is penetrated by an adult male penis with no lubrication, with a child whose body is tense, who's effectively completely unprepared for the intrusion for more than just one brief moment but a continuous anal penetration by the penis and with the penis going all the way inside the rectum, with the individual child who is scared, crying, screaming, struggling; effectively, fighting back, and with penetration continuing, would you expect there to be any kind of injury on a child that suffered ... such an incident?"
P.A. Tamagni testified that she "would expect bruising, possibly rectal tears." If there was a rectal tear, it is possible that it would require surgery to repair. As to the amount of blood, it is possible for it to be either a small or large amount. Depending on the severity of the injury, it could be managed with an ointment like Neosporin.
P.A. Tamagni also testified she would expect the child to experience consistent pain and discomfort for at least a couple of days after the injury, and to have difficulty defecating for at least a week.
On recross-examination, P.A. Tamagni testified that a child between the ages of eight and 10 could be sodomized and have no injuries, but it is not possible for a child to be sodomized and have no trauma. She also testified that "[a] lot of [injuries to a child's anus] heal spontaneously on their own."
After hearing arguments from the parties, the trial court ruled that P.A. Tamagni did not qualify as a sexual assault expert and that her testimony would be speculative. While not specifically mentioned, it appears that the trial court also excluded the testimony pursuant to Evidence Code section 352.
Appellant also wanted to call P.A. Tamagni as a percipient witness because she conducted a physical examination of A.B. when A.B. was 14 and 16. The trial court excluded this testimony. Appellant does not argue that this was a separate error that requires reversal.
B. Applicable Law
"A person is qualified to testify as an expert if [s]he has special knowledge, skill, experience, training, or education sufficient to qualify [her] as an expert on the subject to which [her] testimony relates." (Evid. Code, § 720, subd. (a).) "Whether a person qualifies as an expert in a particular case, however, depends upon the facts of the case and the witness's qualifications." (People v. Bloyd (1987) 43 Cal.3d 333, 357.)" '[T]he trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative.'" (People v. Lund (2021) 64 Cal.App.5th 1119, 1138.)
" 'The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion.'" (People v. Duong (2020) 10 Cal.5th 36, 60.)" '[A]" 'decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." '" [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.'" (People v McDowell (2012) 54 Cal.4th 395, 429-430.)
Appellant argues that de novo review is appropriate here because the trial court's ruling depended on the proper interpretation of the Evidence Code. However, appellant does not identify any interpretation mistake made by the trial court, nor are we aware of any. Accordingly, the abuse of discretion standard applies.
Even if the trial court abuses its discretion in excluding expert testimony, reversal is not required unless it is reasonably probable that the defendant would have obtained a more favorable result had the error not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Jones (2012) 54 Cal.4th 1, 67-68.)
Appellant argues that in erroneously excluding P.A. Tamagni's testimony, the trial court violated the United States Constitution and the California Constitution. Appellant did not raise this argument below. And even if it was not forfeited, it is not persuasive. (People v. McNeal (2009) 46 Cal.4th 1183, 1203 ["Because the trial court merely rejected some evidence concerning a defense, and did not preclude defendant from presenting a defense, any error is one of state law and is properly reviewed under People v. Watson, supra, 46 Cal.2d at page 836"]; People v. Jones, supra, 54 Cal.4th at pp. 67-68.) In any event, as discussed in this opinion, the trial court did not err in excluding P.A. Tamagni's testimony. Additionally, her testimony had minimal relevance, and there was a valid purpose in excluding her testimony because she did not qualify as an expert on the relevant topic. Accordingly, the trial court did not violate the United States Constitution or the California Constitution by excluding P.A. Tamagni's testimony. (Jones v. Davis (9th Cir. 2021) 8 F.4th 1027, 1036 ["A trial court ... may, consistent with the Constitution, exclude defense evidence through the proper application of evidentiary rules that serve a valid purpose in a given case, including when proposed evidence is 'only marginally relevant or poses an undue risk of harassment, prejudice, or confusion of the issues' "]; People v. Castaneda-Prado (2023) 94 Cal.App.5th 1260, 1279, fn. 7.)
C. Analysis
According to appellant, P.A. Tamagni "would have offered expert testimony regarding the physical symptoms a child would exhibit if they had been subject to a forcible sodomy, particularly given the details of the injury [A.B.] stated during her testimony." Appellant wanted to use this testimony to impeach A.B., because "there were no indications she suffered from the medical problems that would have resulted from appellant's actions."
Appellant argues that P.A. Tamagni "was qualified as an expert and her testimony was highly relevant to the defense." We disagree on both counts.
According to appellant, P.A. Tamagni qualified as an expert because she had 32 years of experience, had examined 30 child sexual assault victims, and had received training and education on how to examine such patients.
While P.A. Tamagni may well qualify as an expert in certain areas of medicine, the trial court did not abuse its discretion in finding that she did not qualify as an expert for purposes of testifying as to the physical symptoms a child would exhibit if that child were subjected to forcible sodomy.
P.A. Tamagni was not certified in sexual assault examinations, she had not taken any specific courses on these examinations, and she had no training regarding expected anal injuries to a child between eight to 10 years old who had been sodomized. There is also nothing in the record suggesting that she had reviewed research related to injuries victims suffer after being forcibly sodomized.
Moreover, while P.A. Tamagni had 32 years of experience practicing medicine, she practiced pediatrics, women's health, and adolescent care. In all her years of experience she only examined approximately 30 children who reported that they had been sexually abused, and only about half of those involved sodomy. And of that half, her patients were generally 10 years of age and older.
Finally, when examining children who reported they had been sexually abused, P.A. Tamagni's involvement was limited to an initial examination. She generally did not treat the patient or conduct follow-up appointments. Instead, she referred them to a specialty clinic and that clinic took over care. Thus, she generally did not have an opportunity to observe how an injury responded to treatment or to track how long it took for an injury to heal.
Given her lack of experience, training, and education regarding expected anal injuries to a child between eight to 10 years old who had been sodomized, the trial court did not abuse its discretion in finding that P.A. Tamagni was not sufficiently qualified to opine as to the injuries a child would likely sustain if that child were subjected to forcible sodomy. (See also San Antonio Regional Hospital v. Superior Court (2024) 102 Cal.App.5th 346, 352 ["Expert testimony is properly excluded as speculative where the expert lacks expertise over the subject matter"]; Olive v. General Nutrition Centers, Inc. (2018) 30 Cal.App.5th 804, 817 ["The court's gatekeeper function allows it to conclude there is simply too great an analytical gap between an expert's data and the opinion proffered, and thus exclude it as speculative or irrelevant"].)
Even if the trial court erred, the error was harmless. Appellant wanted to call P.A. Tamagni to testify that, "[g]enerally speaking, a child that suffered an assault described by [A.B.] would show signs of the injury, including tearing of the rectum, constant pain, and bleeding." Appellant wanted to argue at trial that, as A.B. did not show these signs of injury, the testimony would have impeached A.B. and supported appellant's theory that he did not sodomize A.B.
However, P.A. Tamagni's testimony had little to no relevance. At most, it would have shown that a victim of sodomy could suffer an injury. P.A. Tamagni did not testify as to how likely it would be for a sodomy victim to experience an injury, and in fact testified that a victim may not experience an injury at all.
And even if a victim of sodomy is likely to experience pain and discomfort for days, and likely have trouble defecting for at least a week, this does not directly impeach A.B.'s testimony or support appellant's theory that he did not sodomize A.B. According to P.A. Tamagni, A.B. likely would not have suffered long and the injury likely would have healed on its own, meaning there was only a small window of time for anyone to notice. Moreover, the injuries described by P.A. Tamagni do not necessarily manifest in an observable way. Nothing in P.A. Tamagni's proposed testimony suggests that a child would be in so much pain or discomfort that it would be physically observable. There is also nothing in evidence suggesting that anyone would have been in a position to observe whether A.B. had trouble defecting.
Further, at least some of P.A. Tamagni's proffered testimony supported, rather than impeached, A.B.'s testimony. A.B. testified that after the incident she had a cut or tear in her rectum, and that her anus hurt. This is consistent with P.A. Tamagni's proffered testimony that she "would expect bruising, possibly rectal tears," and for the child to experience pain. A.B. also testified that, after the incident, she felt her anus and she saw a "smudge" of blood on her hand. This is consistent with P.A. Tamagni's proffered testimony that, after sustaining such an injury, it is possible for there to be only a small amount of blood. Finally, A.B. testified that, at appellant's direction, she treated the injury with ointment. This is consistent with P.A. Tamagni's proffered testimony that, depending on the extent of the injury, it could be "managed with something, like, simple Neosporin ointment."
Thus, at best, P.A. Tamagni's proffered testimony would have created a weak inference that because no one noticed A.B. suffering from pain, discomfort, or trouble defecting after the sodomy incident, she was not sodomized. Given the evidence in this case and the overall weakness of P.A. Tamagni's testimony, it is not reasonably probable that appellant would have obtained a more favorable result had P.A. Tamagni been allowed to testify at trial.
We note that, based on the record, no one noticed any of the incidents of sexual abuse that A.B. suffered over the years. This was so even though, according to A.B., there were periods when she was abused three to four times per week, and up to 15 people were staying at one of the houses where sexual abuse occurred. Despite the evidence that no one noticed sexual abuse occurring, the jury convicted appellant on all 10 counts. Given this, it is not reasonably probable that the jury would have even drawn this weak inference from P.A. Tamagni's testimony or that it would have been sufficient to overcome the evidence of appellant's guilt.
II. The Trial Court Did Not Violate Appellant's Right to Due Process When It Instructed the Jury With CALCRIM No. 1191A
A. Applicable Law
In determining whether a trial court erred in giving a jury instruction "we ... view [the] challenged [instruction] 'in the context of the instructions as a whole and the trial record' to determine' "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.' " (People v. Reliford (2003) 29 Cal.4th 1007, 1013 (Reliford); People v. Franco (2009) 180 Cal.App.4th 713, 720.)
B. CALCRIM No. 1191A
The trial court instructed the jury with the following modified version of CALCRIM No. 1191A:
"The People presented evidence that the defendant committed the crime of PC 243.4, Sexual Battery, that was not charged in this case. This crime is 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 offense. 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 of proof, you must disregard this evidence entirely.
"If you decide that the defendant committed the uncharged offense, 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 crimes as charged here. If you conclude that the defendant committed the uncharged offense, 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 crimes as charged in Count 1 and as charged in Counts 2 [through] 10. The People must still prove the charge beyond a reasonable doubt.
"Do not consider this evidence for any other purpose."
C. Analysis
Appellant argues that the trial court violated his right to due process when it read CALCRIM No. 1191A. CALCRIM No. 1191A instructed the jury that it only needed to find that appellant committed the uncharged offense by a preponderance of the evidence, a different standard than beyond a reasonable doubt. According to appellant, this created a risk that "the jury was confused by which standard applied to the various charged and uncharged offenses and may have found appellant guilty under the lower preponderance standard rather than beyond a reasonable doubt." Appellant argues confusion was particularly likely here because B.S.'s testimony was introduced to prove an uncharged offense as well as the charged offenses. That is, the jury was required to apply two different standards to the testimony of B.S.
Defense counsel did not object to the trial court reading CALCRIM No. 1191A to the jury. Accordingly, appellant argues, in the alternative, that defense counsel "committed ineffective assistance when he failed to object to this instruction." Even if the claim that the trial court violated appellant's right to due process when it read CALCRIM No. 1191A was forfeited, we exercise our discretion to consider it on the merits. (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6 ["An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party"].) As we consider the claim on the merits, we do not address appellant's alternative argument that defense counsel provided ineffective assistance.
In arguing risk of confusion, instead of relying on a majority (or even a plurality) decision, appellant largely relies on a concurring and dissenting opinion by Justice Corrigan (People v. Villatoro (2012) 54 Cal.4th 1152, 1179-1182) and a concurring opinion by Justice Perren (People v. Gonzales (2017) 16 Cal.App.5th 494, 505-507). However, in People v. Reliford, supra, 29 Cal.4th 1007, 1012, our Supreme Court addressed the argument that a jury instruction similar in all material respects to CALCRIM No. 1191A was" 'likely to mislead the jury concerning ... the prosecution's burden of proof.'" And, our Supreme Court rejected this argument: "We do not find it reasonably likely a jury could interpret the instructions to authorize conviction of the charged offenses based on a lowered standard of proof. Nothing in the instructions authorized the jury to use the preponderance-of-the-evidence standard for anything other than the preliminary determination whether [the] defendant committed a prior sexual offense .... The instructions instead explained that, in all other respects, the People had the burden of proving [the] defendant guilty 'beyond a reasonable doubt.'" (Reliford, at p. 1016.) Our Supreme Court also rejected the contention that, even if the instruction is correct, it "is too 'complicated' for jurors to apply." (Ibid.) Our Supreme Court "presume[d] . that jurors can grasp their duty-as stated in the instructions-to apply the preponderance-of-the-evidence standard to the preliminary fact identified in the instruction and to apply the reasonable-doubt standard for all other determinations." (Ibid.)
"The version of CALJIC No. 2.50.01 considered in Reliford [, supra, 29 Cal.4th 1007] is similar in all material respects to CALCRIM No. 1191A in its explanation of the law on permissive inferences and the burden of proof." (People v. Panighetti (2023) 95 Cal App.5th 978, 997, petn. for cert. pending.)
Appellant does not argue that Reliford is no longer good law, it ruled on the issue presented here, and we see no reason to deviate from its holding. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [holding that the decisions of the California Supreme Court "are binding upon and must be followed by all the state courts of California"].) Accordingly, like our Supreme Court in Reliford, we presume that the jurors grasped their duty to apply the preponderance standard for the limited purpose described in CALCRIM No. 1191A and the reasonable doubt standard for all other determinations. (Reliford, supra, 29 Cal.4th at p. 1016; see also People v. Panighetti, supra, 95 Cal.App.5th at p. 998 ["the focus in Reliford was whether use of a different standard of proof for uncharged offenses negatively interfered with the People's ultimate burden of proof for the charged offenses. The existence of that problem is dependent on the instructions themselves, not the source of the evidence"].)
Even if appellant is correct that Reliford is not controlling, we would reach the same result. Based on the record there is no reasonable likelihood that the jury found appellant guilty under the lower preponderance standard. We assume that jurors are"' "intelligent persons and capable of understanding and correlating all jury instructions which are given." '" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) And here, the trial court repeatedly instructed the jury that the charged offenses had to be proved beyond a reasonable doubt. Conversely, the trial court only told the jury to apply the preponderance of the evidence standard once, and when doing so, it informed the jury of the limited situation where it was to apply that standard and that "[t]he People must still prove each charge beyond a reasonable doubt." Moreover, both defense counsel and the prosecutor told the jury that the charges had to be proved beyond a reasonable doubt. There is nothing in the record suggesting that these instructions or the arguments from the parties confused the jury.
There is a safeguard against confusion that appellant does not address in this appeal. Evidence Code section 1108, subdivision (a), states: "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." And, pursuant to Evidence Code section 352, a trial court may exclude evidence "if its probative value is substantially outweighed by the probability that its admission" will confuse the issues or mislead the jury. However, appellant does not argue that the trial court abused its discretion in admitting evidence of the uncharged offense.
Accordingly, the trial court did not err in instructing the jury with CALCRIM No. 1191A.
III. Appellant's Cumulative Errors Argument Fails
Finally, appellant argues that even if reversal is not required by any error standing alone, "[w]hen the errors are viewed together, it also becomes clear that each individual error was amplified by every other error, so that the cumulative effect was greater than the sum of the parts."
This argument fails." 'We have found no error, and where we assumed error, we have found no prejudice. Nor do we discern cumulative prejudice.'" (People v. Duong, supra, 10 Cal.5th 36, 75; People v. Westerfield (2019) 6 Cal.5th 632, 728.)
DISPOSITION
The judgment is affirmed. The trial court is ordered to prepare an amended abstract of judgment that includes the attachment page that listed the sentences for counts 8, 9, and 10.
WE CONCUR: DETJEN, J. DE SANTOS, J.