People v. Regalado

Full title: THE PEOPLE, Plaintiff and Respondent, v. BULMARO REGALADO, Defendant and…

Court: California Court of Appeals, Fourth District, Third Division

Date published: Apr 29, 2008

No. G037656 (Cal. Ct. App. Apr. 29, 2008)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No. 02NF3033, Gregg L. Prickett, Judge.

Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda

Cartwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

O’LEARY, J.

Bulmaro Regalado appeals from a judgment after a jury convicted him of multiple counts of committing lewd acts upon a child. He argues: (1) the trial judge failed to disclose his leadership position at the same church three jurors attended; (2) insufficient evidence supported some of his convictions; (3) he was denied his Sixth Amendment confrontation right; (4) the trial court erroneously excluded evidence; (5) the trial judge committed misconduct; (6) the prosecutor committed misconduct; (7) there was cumulative error; and (8) the court erroneously sentenced him to consecutive sentences. None of his contentions have merit, and we affirm the judgment.

FACTS

Prologue

For context, we provide a brief summary before detailing the facts of the case. Regalado’s daughter, V.R., reported to her school principal that Regalado had hit her on the mouth. Officer Michael Kendrick investigated. V.R.’s report of physical abuse evolved into a sexual abuse investigation, and soon Kendrick was investigating whether Regalado sexually abused four other young girls, S.R., E.R., J.R., and C.C. S.R. was another of Regalado’s daughters with “Betty,” and was V.R.’s stepsister. E.R. was his niece—his brother, “Mario,” and his wife, “Maria’s,” daughter. J.R. and C.C. were a former girlfriend’s¹ daughters. Ultimately, charges were filed against Regalado naming V.R. and the other four girls as victims. At trial, Regalado’s defense was he was falsely accused by a troubled daughter, and an inexperienced officer violated standard investigatory guidelines in interviewing alleged victims and referred the matter to the Child Abuse Services Team (CAST), a pro-child agency that did not completely investigate the claims.

1 Regalado’s former girlfriend was Emily H. J.R.’s father was Mario. C.C.’s father was Regalado’s uncle.

The Charges

The second amended information charged Regalado with the following: forcible lewd act upon a child, V.R. (Pen. Code, § 288, subd. (b))² (count 1); lewd act upon a child, V.R. (§ 288, subd. (a)) (count 2); oral copulation of a person under 14 years of age, E.R. (§ 288a, subd. (c)) (count 3); sodomy of a person under 14 years of age, E.R. (§ 286, subd. (c)(1)) (count 4); sodomy by force, E.R. (§ 286, subd. (c)(2)) (count 5); lewd act upon a child, E.R. (§ 288, subd. (a)) (count 6); three counts of lewd act upon a child, S.R. (§ 288, subd. (a)) (counts 7, 8 & 9); three counts of lewd act upon a child, J.R. (§ 288, subd. (a)) (counts 10, 11 & 12); and lewd act upon a child, C.C. (§ 288, subd. (a)) (count 13). As to counts 2, 6, 8, 9, 10, 11, 12, and 13, the information alleged he committed a lewd act on multiple children (§ 1203.066, subd. (a)(7)). The information also alleged he committed substantial sexual conduct with a child as to counts 2, 6, 7, 9, 10, 11, 12, and 13 (§ 1203.066, subd. (a)(8)). The information alleged sentencing enhancements pursuant to section 667.61, subdivisions (b), and (e)(5), as to all counts except counts 3 and 7, and jurisdictional allegations pursuant to section 803, subdivision (g)(1), with respect to counts 10, 11, 12, and 13.

2 All further statutory references are to the Penal Code, unless otherwise indicated.

The Evidence

The Prosecution’s Evidence V.R. (counts 1 & 2)

V.R. was 13 years old when she went to her school principal and reported her father, Regalado, had hit her on the mouth and cut her lip and described recurring physical abuse to her siblings. After the principal reported the incident, a police officer and social worker arrived, and interviewed V.R. When the officer asked whether Regalado had ever touched her, she cried and said, “Yes.”

On direct examination, 16-year-old V.R. explained how Regalado touched her upper leg, kissed her, touched her breasts over her clothes, and sodomized her in the closet. She saw him lying on top of her older sister, M.R. V.R. testified she saw Regalado touch her cousin, E.R., but V.R. said she did not remember telling a CAST social worker about E.R. V.R. testified she told the truth during her CAST interview when she described the things her father did to her. Later, V.R. admitted she lied when she told the CAST social worker her father had put his tongue on her vagina. As direct examination continued, V.R. repeatedly stated she did not want to answer further questions, and the trial court declared a recess. Two days later, V.R. returned to the stand to continue with direct examination. She again refused to answer questions, and the district attorney concluded his examination and cross-examination began.

On cross-examination, V.R. admitted she frequently argued with her parents over her hair and clothes and that in hindsight, she was “stupid” to do so. She also stated that it was not Regalado who had hit her. V.R. said she got into a fight with her sister, M.R., and Regalado “grounded” them. V.R. stated she was mad at Regalado for punishing her and she told the principal her father had hit her when it was really M.R. who had hit her. She also said that when the officer and social worker interviewed her at school, she lied because she wanted to live with her aunt and uncle, who were less strict than Regalado and Betty. V.R. also stated that after she and S.R. had both been removed from their home, she told S.R. that if she told her social worker Regalado touched her, she could “go back home[.]” When defense counsel questioned her concerning the children’s showering habits, V.R. testified she occasionally left the bathroom door open by accident or one of her siblings left it open after using the restroom, and she occasionally showered in her underwear if she was showering with her sibling. She stated Regalado never told her to shower with the door open.

On redirect examination, V.R. admitted she lied about her father hitting her when she went to the principal, but explained he had hit her other times. She testified that when she told the social worker at school about her dad touching her in a sexual way, she was telling the truth. She also said she lied to a CAST social worker when she said Regalado put his tongue on her vagina because she was mad at him.

On recross-examination, V.R. testified she lied when she told the CAST social worker about seeing her father lying on top of M.R. because she was mad at him. V.R. also admitted threatening her parents with calling social services.

E.R. (counts 3 through 6)

During V.R.’s CAST interview with the social worker, V.R. mentioned her cousin, E.R.’s name, and Kendrick then widened the scope of his investigation to include E.R. The day after V.R.’s interview, Kendrick interviewed E.R. A CAST social worker also interviewed E.R. Months later, in November 2002, at a court proceeding, E.R. testified regarding Regalado touching her in a sexual way.

At trial, the prosecutor offered the testimony of then 12-year-old E.R., who identified Regalado as her uncle, and stated she calls him “Uncle Mayo.” E.R. stated she previously lived next door to Regalado. When the prosecutor asked her whether Regalado’s attorney interviewed her, she said he had and she understood the attorney to be “someone that’s trying to help Mayo.” She admitted that during the interview she told the defense attorney that Regalado had “[done] stuff to me.” When the prosecutor asked her if she told the defense attorney she saw Regalado “touching [E.R.,] [sic]” she said, “Yes, but it was a lie.” E.R. explained she lied because she thought if she told the defense attorney it was not true, he would get mad at her.

E.R. testified she told Kendrick that Regalado tried to touch her private parts at his apartment and that she saw Regalado taking V.R.’s clothes off in the closet while she was looking through a hole in the door, “but it was a lie.” E.R. explained she thought telling the police Regalado had touched her and V.R. would bring her cousin back.

E.R. testified she told the CAST social worker Regalado had touched her. But she could not remember whether she told the social worker Regalado had “put[] his privates in parts of [her] body[.]” After refreshing her recollection with the transcript of the interview, E.R. confirmed she had told the social worker Regalado had “put[] his private part in [her] private part” and she would try to scream, but he would cover her mouth. The prosecutor then confronted E.R. with various other statements she had allegedly made to the social worker about Regalado engaging in improper touching. E.R. agreed she had told the social worker about Regalado asking to lick her private parts and licking her private parts. E.R. had said she saw Regalado touching V.R.’s private parts, and she saw him calling M.R. into the bedroom. E.R. also agreed she had told the social worker that Regalado had “put his privates in the back private area of [her][,]” and when he was doing that, he would hold on to her so she could not get away. When the prosecutor asked her if she had told the social worker that Regalado had told her not to tell her mother about these things, E.R. said she had made that statement. Although E.R. admitted she had made all of these statements to the social worker, she repeatedly testified she had been lying when she talked to the social worker.

The prosecutor then asked E.R. about going to a courtroom in June 2002 and talking about Regalado there. After having her recollection refreshed by the transcript from the hearing, E.R. confirmed she had testified in detail about Regalado touching her private parts in various ways. As to her prior statements in court under oath, E.R. testified she was lying when she said those things.

On cross-examination, E.R. testified the defense attorney had been nice to her, did not raise his voice, and never asked her to say something she did not want to say. She agreed the defense attorney did not encourage her to say Regalado never touched her. E.R. testified she felt bad about what was going on in court and she felt it was her fault Regalado was in jail. She acknowledged Kendrick interviewed her at her home in her room alone. Before she said anything, E.R. said Kendrick told her that V.R. had told him that she had seen Regalado touching E.R. She stated Kendrick told her if she said Regalado touched her, “like make up something,” her cousins could return and live with their parents. E.R. also testified she threatened to report her parents to social services, but they did nothing wrong.

On counts 3 through 6, in which E.R. was the alleged victim, the district attorney also offered the testimony of Dr. Claire Sheridan-Matney, CAST medical director. Sheridan-Matney examined E.R. and found no signs of sexual abuse, but she explained that did not mean sexual abuse did not occur.

S.R. (counts 7 through 9)

On direct examination, 13-year-old S.R. testified that when the police first came to her house to talk to her, she did not tell them about Regalado touching her because she was scared. She stated that when a social worker came to her foster home, she told her the truth, and the following day, she went to a place called CAST, spoke with a social worker, and told her the truth. S.R. said she spoke with a lady from CAST when she was 10 years old and talked about her “privacy.” When the prosecutor asked her if Regalado had ever touched her privacy, S.R. recounted an incident when her mother told her to go to the garage and tell Regalado to come inside. As they sat in a car parked in the garage, he reached inside her clothes and put his finger inside her vagina. She also testified that on another occasion inside the house, Regalado pulled up her shirt and sucked her breasts. And on another occasion, he pulled down her pants and put his penis inside her butt and it hurt her. She indicated that all of these incidents occurred when she was 10 years old.

On cross-examination, S.R. testified she remembered V.R. telling her that if she told her social worker that Regalado had touched her in a sexual way, she would get to go home with her mom and dad. S.R. also testified that before she ever said her father had touched her, she remembered V.R. telling her that Regalado had touched her and that V.R. had seen Regalado touching M.R.

On counts 7 through 9, the district attorney also offered the testimony of Jeanie Ming, a pediatric nurse practitioner stationed with CAST. Ming examined S.R. six months to one year after the reported sexual abuse. She said the exam was normal meaning the sexual abuse report could be neither proven nor disproven. Ming stated a normal examination is consistent with a child having been sexually abused.

J.R. (counts 10 through 12)

On direct examination, 17-year-old J.R. identified Regalado as “Mayo,” her half-uncle on her dad’s side. J.R. confirmed that in December 2002, a lady took her to the police department, and she told her about the things Regalado had done to her. J.R. indicated she knew it was important when she talked to the lady and she told her the truth. J.R. said that when she was eight or nine, she asked Regalado to take her to a store, and he said, “yes,” but he asked her to leave her sister at home. Once inside the car, he asked her if she wanted to drive, and when she said she did, “he sat [her] on his lap[.]” He put his hand inside her shorts and underwear and touched her vagina. J.R. stated she had previously told a police officer Regalado had touched her two or three times, but she could only remember the one time.

On cross-examination, J.R. admitted she was not certain of her age when the car incident occurred, but she believed she was probably between eight and nine years old. J.R. testified she was sure the police officer never told her “anything at any time about what [Regalado] did to anybody else[,]” but she said after her interview with the police, Maria, E.R.’s mother, told her Regalado had raped E.R. J.R. said she became aware at sometime that Regalado had touched V.R., but she could not remember when or how she received that information. As to S.R., J.R. stated she heard Regalado had touched her and C.C., but she could not recall the specifics of what she had been told or when it happened. On redirect examination, the prosecutor asked E.R. if anything she had told the police officer was made up because of things she had heard from her sisters, and she said, “No.” Later on recross-examination, E.R. testified V.C. had also told her Regalado had done something to her, but again she could not remember the details.

C.C. (count 13)

On direct examination, 19-year-old C.C. testified Regalado was her father’s nephew and she called him “Mayo.” She testified that when she was five or six years old, she was at Regalado’s mother’s house and she went into a bedroom. Regalado was in the bedroom sitting on the bed with his legs spread. He asked her to sit between his legs. When she did, he put his hand down her underwear and put his finger inside her vagina. C.C. testified that after Regalado was arrested, a woman, Alma Buis, from the police department picked her up at her home and drove her to the police department for an interview. She testified that on the way to the police department, Buis never said anything to her about what Regalado had done to anybody else. She said Buis told her there were a lot of children coming forward, including his daughters, but Buis did not give her any details. Buis told her she had to help her as much as she could, and she should tell the truth. C.C. testified Buis told her not to be scared and to tell the truth. Buis also said that she wanted to put Regalado away so he would not harm more kids.

Section 1108-Prior Sexual Offense Witnesses

The district attorney offered the testimony of three witnesses, V.C., G.G., and M.R., to demonstrate Regalado’s disposition or propensity to commit sexual offenses. V.C., 21 years old at the time of trial, was C.C. and J.R.’s older sister. V.C. testified that when she was five or six years old, she was in a bedroom with Regalado and he tried to unbutton her pants. When someone knocked on the closed door, he stopped.

G.G., 18 years old at the time of trial, testified she was a neighbor of Regalado and would help his children with their homework. G.G. stated she was at their house watching a movie when Regalado asked her and V.R. to sit next to him, but they refused. With his wife, and M.R.’s step-mother, Betty present, he asked M.R. to sit with him. He laid M.R. back on top of his chest and put a blanket over them. He was rubbing his hand in her vagina and breast area. She stated E.R. told her Regalado put his penis inside her anus and she bled. She also said V.R. told her Regalado touched her, but did not have time to explain the details. Finally, G.G. explained how she went to their house to help the children with homework, and when she was leaving Regalado asked her to sit down next to him and he sat her down on his lap. He put his hand down her shirt and touched her breast and she tried to leave, but he held her. He unbuttoned and unzipped her pants, and tried to put his hand down her pants, when she stood up and ran. She admitted she only told Kendrick that he touched her breast because she was scared and ashamed. On cross-examination, when defense counsel asked her whether when she was ever at Regalado’s house when the girls were showering, G.G. stated she walked in when two of the girls were showering, but the trial court sustained the prosecutor’s objection when counsel asked her which two girls.

M.R., 17 years old at the time of trial, testified Regalado never touched her. On cross-examination, she repeated Regalado never touched her, and insisted that she has consistently told everyone who asked her that he did not touch her.

Emily H.

Emily H. testified that many years ago, they were at Regalado’s mother’s house and C.C. told her that Regalado put his hand in her underwear. She explained that when she confronted him about it later the same day, he denied touching C.C. She also stated C.C. told her that Regalado touched J.R. She said she did not call the police until years later because she was afraid no one would believe her daughters. On cross-examination, Emily H. could not recall the specifics of her discussions with the police or the district attorney.

Dr. Veronica Thomas

The district attorney offered the testimony of Dr. Veronica Thomas, a psychologist. Thomas testified concerning child sexual abuse accommodation syndrome (CSAAS), “a common language for people treating” children who have been sexually abused by relatives. CSAAS’s five aspects are secrecy, helplessness or depression, entrapment, disclosure, and recantation. On cross-examination, Thomas testified children lie as much as adults and are prone to being influenced and their recollections and beliefs manipulated by adults or older siblings. She opined a police officer generally should not begin an interview with a child by stating another person stated the child was a victim.

Kendrick

On direct examination, Kendrick testified his formal training consisted of a 40-hour sexual assault training course at the Los Angeles Police Department. He explained the course included techniques for interviewing children. He said generally it is preferable to interview children alone because they are ashamed, and “you never try to lead children into suggestive questions.” He said he interviewed E.R. at her home, alone with the permission of her mother. He never asked her to “invent” something about Regalado touching her. He also spoke with G.G. at her home and at the police station. Finally, he contacted Emily H., and arranged for Spanish speaking community liaison officer, Buis, to interview her children, J.R., C.C., and V.C.

On cross-examination, Kendrick testified that when he interviewed E.R., he told her that he knew Regalado touched V.R. Kendrick believed it to be an appropriate interview technique. He admitted he was trained to not ask suggestive questions, could not explain why he began his interview with E.R. in that manner, and a little later agreed it was an improper technique for interviewing children witnesses. On redirect examination, Kendrick stated he never told E.R. “that if she invented stories about [Regalado] touching her, . . . the [children] . . . would get to [go] home with Betty[.]”

Regalado’s Evidence Betty

Betty testified her stepdaughter, V.R., was rebellious and liked to wear revealing clothes. She and Regalado wanted V.R. to wear her hair in braids to school because there was a problem with lice, but she did not want to and would take them out. V.R. would get angry concerning her clothes and hair, and frequently threaten to call social services to report she was being physically abused. Betty did not see any signs Regalado touched his daughters inappropriately.

Maria

Regalado offered the testimony of his sister-in-law and E.R.’s mother, Maria. She testified E.R. did not like to be disciplined and would frequently threaten to call social services on her parents. She also lied. On cross-examination, she testified E.R. told her that Regalado touched her vagina.

Regalado

Regalado testified on his own behalf. He described V.R. as a problem child who did not like to be disciplined. She did not want to wear the clothes Betty chose for her or wear her hair in braids, and she would get angry at them. V.R. threatened to call social services many times. He denied touching the alleged victims in this case, V.R., E.R., S.R., J.R., and C.C. He also denied touching V.C., G.G., and M.R., the prior sexual offense witnesses. On cross-examination, he testified he told Kendrick that he thought the charges were a conspiracy involving Maria, E.R.’s mother. He added that he had no idea why the children accused him of sexually molesting them.

Additional Defense Witnesses

Regalado also offered the testimony of other witnesses who were involved in the investigation. We find it unnecessary to describe in detail their testimony.

The Jury’s Verdict and Trial Court’s Sentence

The jury acquitted Regalado of counts 1 through 5 (V.R. & E.R.), but convicted him of counts 6 through 10 and 13 (E.R., S.R., J.R. & C.C.), and found true the sentencing enhancements pursuant to section 667.61, subdivisions (b), and (e)(5), with respect to counts 6, 8, 9, and 10, and the jurisdictional allegations pursuant to section 803, subdivision (g)(1), as to counts 10 and 13.³ The trial court denied Regalado’s motion for a new trial. The court sentenced Regalado to 15 years to life on count 6 plus two consecutive 15 years to life terms on counts 7 and 10; the court sentenced him to two concurrent 15 years to life terms on counts 8 and 9. The court also sentenced him to the middle term of six years on count 13 to be served consecutively.

3 During trial, upon the district attorney’s motion, the trial court dismissed counts 11 and 12, and all the section 1203.066 allegations. The court also dismissed the section 667.61 allegation as to count 13.

DISCUSSION

I. Judicial Disclosure

Regalado argues he was denied his federal and state constitutional rights to a fair and impartial jury before an unbiased judge because the trial judge did not disclose during voir dire that he was a lay pastor at the same church three of the jurors attended. He claims the judge’s leadership position “unduly influenced” the jurors because they “looked up to [him] spiritually.” Although Regalado acknowledges the judge disclosed he attended the same church as three jurors, Regalado claims the judge’s failure to disclose his position denied him “his right to a full and fair voir dire . . . .” He contends defense counsel’s ignorance of the judge’s position within the church caused him to leave the three prospective jurors who were members of the same church on the jury. Regalado argues the trial judge’s failure to reveal his status as a lay pastor was “prejudicial error of constitutional dimension” requiring reversal. None of these contentions have merit.

Regalado asserts that if defense counsel had known of the trial judge’s position, counsel “would have asked for an in-chambers voir dire of the three jurors so it would not look like [counsel] was bringing religion into the case.” Regalado suggests that had defense counsel been aware of the role the trial judge and his family played in the jurors’ church, he would have removed the jurors who attended the judge’s church. We are not persuaded a more detailed description by the judge of his position in the church would have significantly assisted Regalado during jury selection.

Defense counsel’s voir dire reveals that prior to the jury being sworn, counsel knew the trial judge held a position in his church. Defense counsel demonstrated that knowledge when he asked Juror No. 3 whether she could be fair, despite the trial judge’s “position in [her] church.” Counsel had the opportunity to explore the nature of the judge’s position, but chose not to do so.

Juror No. 17, who later became Juror No. 5, also clearly indicated he attended the same church as the trial judge and that fact would not affect his ability to be fair and impartial. Later, defense counsel followed up on the issue and asked Juror No. 17 whether if he irritated the judge and the judge appeared frustrated, would the juror “take hints or signals[]” from the judge because they went to the same church. Juror No. 17 stated he would not.

Finally, Alternate Juror No. 13, who from our review of the record was eventually seated as a juror, also stated he would not let the fact the trial judge attended the same church affect his or her ability to be impartial and fair. When defense counsel asked Juror No. 13 if the judge admonished counsel during trial would the fact they belonged to the same church affect him, Juror No. 13 responded he would not take it out on Regalado.

“A criminal defendant is entitled to a trial by jurors who are impartial and unbiased.” The pretrial procedure known as voir dire assures a criminal defendant of his right to an impartial jury by allowing defense counsel to examine prospective jurors to expose possible biases. (People v. Roldan (2005) 35 Cal.4th 646, 689.) Civil Procedure Code section 223 requires the court to conduct an initial examination of the prospective jurors. Then each party shall be allowed to examine any or all of the prospective jurors.

Here, the trial judge examined the prospective jurors regarding the church relationships, and defense counsel was allowed to examine the prospective jurors on those relationships. Defense could have inquired further regarding the judge’s position at the church, but chose not to. We find there was no error.

Regalado also suggests the trial judge’s disclosure was inadequate, and as a result, he was deprived of an unbiased judge. He does not present a developed argument as to why this is so, but points to defense counsel’s comments during the hearing on the new trial motion to support his claim the judge was antagonistic towards him.⁴ We read those comments as simply a recitation of rulings adverse to the defense. We are apparently to presume that the trial judge unduly influenced the church jurors by these adverse rulings. We will not make this leap of faith.

4 Throughout his briefs, Regalado continually cites to his motion for new trial to support his factual assertions. Arguments of counsel are not evidence. (Cal. Rules of Court, rule 8.204(a)(1)(C); Brown v. Boren (1999) 74 Cal.App.4th 1303, 1319.)

The trial judge instructed the jury with CALJIC 17.30, “Jury Not To Take Cue From The Judge,” which stated: “I have not intended by anything I may have said or done, or by any questions that I may have asked, or by any ruling I have made, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness. [¶] If anything I have done or said has seemed to so indicate, you will disregard it and form your own conclusion.” We presume jurors follow the instructions they are given. (People v. Yeoman (2003) 31 Cal.4th 93, 139.) Here, all the jurors agreed they would follow the law.

In apparent support of his bias argument, Regalado cites Canon 3E(2) of the California Code of Judicial Ethics, which provides: “In all trial court proceedings, a judge shall disclose on the record information that [1] is reasonably relevant to the question of disqualification under Code of Civil Procedure section 170.1, even if the judge believes there is no actual basis for disqualification.” Here, the trial judge disclosed he attended the same church as some of the prospective jurors and identified those jurors. In so disclosing, he fulfilled his ethical obligations. Once the church relationships were disclosed, it was defense counsel’s responsibility to inquire further into the relationship if he deemed it relevant.

Regalado was not deprived of a fair and impartial jury because the trial judge did not volunteer extensive details regarding his participation in his church. We find no evidence the trial judge was biased.

II. Sufficiency of Evidence

Regalado raises numerous claims of insufficient evidence. We will address each in turn, after we provide the applicable standard of review.

“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.] [¶] The insistence of some cases on greater specificity of a child victim’s testimony may reflect persistent doubts about the general credibility of that testimony. [Citations.] Yet, as explained above, it is not a proper appellate function to reassess the credibility of the witnesses. Moreover, it is now well established that a child’s testimony cannot be deemed insubstantial merely because of his or her youth. Thus, ‘under present law, no distinction is made between the competence of young children and that of other witnesses [citations].’ [Citations.]” (People v. Jones (1990) 51 Cal.3d 294, 314-315 (Jones).)

Section 288, subdivision (a), prohibits any person from “willfully and lewdly commit[ting] any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child . . . .” In sexual offense cases involving children, “The victim, of course, must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation[,] or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., ‘twice a month’ or ‘every time we went camping’). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., ‘the summer before my fourth grade,’ or ‘during each Sunday morning after he came to live with us’), to assure the acts were committed within the applicable limitation period. Additional details regarding the time, place[,] or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim’s testimony, but are not essential to sustain a conviction.” (Jones, supra, 51 Cal.3d at p. 316.)

A. V.R.

Relying on V.R.’s teenage angst, her untruthfulness during the investigation, and her newfound honesty at trial, Regalado claims that because “[V.R.] was responsible for the house of cards . . . Kendrick and the social workers built that produced the conviction on other counts[,]” insufficient evidence supports his convictions on the other counts. Nonsense.

As we explain more fully anon, there was sufficient evidence to support each of Regalado’s convictions. The fact the jury concluded the prosecutor did not establish Regalado committed counts 1 and 2 against V.R. does not establish the prosecutor failed to establish the offenses against the other girls. The jury’s verdicts illustrate that it carefully considered the evidence and concluded V.R.’s testimony at trial created a reasonable doubt Regalado sexually abused her. The fact her accusations, which she later said were lies, prompted the investigation does not diminish the weight of the other victims’ testimony, which we detail below.

B. E.R.-Count 6

Regalado contends insufficient evidence supports his conviction on count 6. He relies on the following to support his claim: (1) E.R. testified she lied to Kendrick, to the CAST social worker, and at the November 2002 court proceeding about Regalado touching her, V.R., and S.R.; (2) Camarena testified E.R. is dishonest and on the day she was to testify, E.R. told her that she lied about Regalado touching her;

(3) Sheridan-Matney testified she found no signs of physical abuse; and (4) the jury acquitted him of three of the four counts involving E.R.⁵ As we explain below, there was sufficient evidence Regalado committed count 6, and his contention is nothing more than an attempt to have us assess the credibility of the witnesses, reweigh the evidence, and substitute our judgment for the jury’s. That we cannot do. (Jones, supra, 51 Cal.3d at pp. 314-315.)

5 Regalado erroneously states the jury acquitted him of two of the three counts.

Despite the testimony E.R. lied about Regalado touching her, and concerning her general dishonesty, E.R. also testified she told Kendrick that Regalado “tried to touch [her] private parts[.]” (People v. Nwafor (1996) 46 Cal.App.4th 39, 44-45 [victim’s previous statements to law enforcement officers concerning sexual offenses are sufficient evidence to support a conviction when victim cannot remember the specifics of the offenses at trial].) And, Camarena testified E.R. told her that Regalado touched her vagina. This was sufficient evidence from which the jury could conclude he committed a lewd act upon E.R.

Sheridan-Matney did testify she found no signs of physical abuse, but she also said that did not mean sexual abuse did not occur. Thomas testified it is common for children to recant when they do not want to disclose additional information, and children recant for a number of reasons, including family pressure and fear of meeting with law enforcement officers. There was evidence E.R. did not change her story until after defense counsel and an investigator met with her, and on the day she was to testify, she told her mother she lied about Regalado touching her vagina. Based on this evidence, the jury could reasonably conclude E.R. changed her story based on the pressure of testifying.

Finally, the fact the jury acquitted him of counts 3, 4, and 5 against E.R. does not mean insufficient evidence supports his conviction for count 6 against E.R. An acquittal does not indicate rejection of a key witness’s testimony. It indicates only that the testimony was deemed inadequate to convince beyond a reasonable doubt. There is no contradiction involved in a jury determination a witness was credible but not convincing beyond a reasonable doubt on three counts and a determination the witness was convincing beyond a reasonable doubt on the fourth. The jury’s individual verdicts indicate thoughtful and careful deliberations. There was sufficient evidence from which the jury could conclude Regalado committed count 6 against E.R.

C. S.R.-Counts 7-9

Regalado argues insufficient evidence supports his conviction on counts 7, 8, and 9. Specifically, he relies on the following: (1) prior to her January 2003 CAST interview, S.R. repeatedly denied Regalado inappropriately touched her; (2) V.R. manipulated S.R. to say anything V.R. wanted her to say; and (3) Ming testified her examination revealed no medical evidence of sexual abuse. Again, Regalado asks we reweigh the evidence, which we cannot do.

Despite S.R.’s early denials of inappropriate touching, there was sufficient evidence Regalado committed counts 7, 8, and 9. At trial, S.R. testified that as she and Regalado sat in a car in the garage, Regalado reached inside S.R.’s clothes and put his finger inside her vagina. She also stated that on another occasion, he pulled up her shirt and sucked her breasts. On another occasion, he pulled down her pants and put his penis inside her butt. S.R.’s testimony established Regalado committed three separate lewd acts upon her.

S.R. explained she lied initially about him touching her, but she told the truth at the CAST interview. S.R. said she lied because she was scared and that after she was in the foster home, she told the truth because V.R. told the “truth and [she] wanted to say it, too.” She denied changing her story because V.R. told her to. Although S.R.’s testimony did not need corroboration (People v. Gammage (1992) 2 Cal.4th 693, 700-701 (Gammage) [CALCRIM No. 10.60 correctly states the law]; CALJIC No. 10.60, “Sexual Crimes—Corroboration Not Necessary”), Thomas testified children disclose sexual abuse “at any time[] . . . depending on the developmental level of the child.” Finally, Ming’s examination revealed no signs of physical abuse, but she testified that because of the passage of time, a normal examination was not uncommon, and it did not mean S.R. had not been sexually abused. Thus, there was sufficient evidence for the jury to convict Regalado of counts 7, 8, and 9.

D. J.R.-Count 10

Regalado complains “the prosecution presented no witnesses and no physical evidence to corroborate [J.R.’s] tale.” It does not have to. J.R. testified that when she was in the car with Regalado, “he sat [her] on his lap[,]” and put his hand inside her shorts and underwear and touched her vagina. This was sufficient evidence for the jury to conclude Regalado committed a lewd act upon J.R. as charged in count 10. One witness alone, if believed, is sufficient to prove a fact if the law does not require corroboration. (People v. Box (2000) 23 Cal.4th 1153, 1208.) As we explain above, J.R.’s testimony did not need to be corroborated. (Gammage, supra, 2 Cal.4th at pp. 700-701.)

E. C.C.-Count 13

Relying on Emily H.’s forgetfulness about who she spoke with concerning the details of her daughters’ molestation, and C.C.’s testimony she wanted Regalado punished for what he did, Regalado contends insufficient evidence supports his conviction on count 13. Not so.

C.C. testified that when she was a young girl she went into a bedroom at Regalado’s mother’s house. She explained Regalado asked her to sit between his legs, and after she did, he put his hand down her underwear and put his finger inside her vagina. This was sufficient evidence for the jury to conclude he committed a lewd act upon C.C. And, the fact Emily H. could not remember details about the investigation does not detract from the weight of the evidence on this count. Finally, C.C.’s desire to see that Regalado was punished for his actions is not surprising considering the severity of his violation. The jury heard this testimony, considered it, and rejected any possible bias on C.C.’s part. There was sufficient evidence supporting Regalado’s conviction on count 13.

F. Evidence Code section 1108 Witnesses

Other than M.R., who he asserts was completely truthful in her denials of sexual abuse by her father, Regalado contends the other Evidence Code section 1108 witnesses, G.G. and V.C. were not “credible.” We will not address each of his claims as to how G.G. and V.C., were untruthful. As we explain above, it is the sole province of the jury to determine the credibility of witnesses. (Jones, supra, 51 Cal.3d at pp. 314-315.) The jury heard G.G.’s, V.C.’s, and the alleged victims’ testimony, and concluded the prosecutor satisfied his burden as to some of the counts, but not others. The jury’s verdicts demonstrate it carefully and thoughtfully weighed the evidence on the separate counts. The trial court instructed the jury with CALJIC No. 2.50.01, “Evidence Of Other Sexual Offenses,” that if it found by a preponderance of the evidence that Regalado committed prior sexual offenses that was insufficient by itself to prove beyond a reasonable doubt he committed the offenses charged here. Thus, the jury knew it could not convict him of the charged offenses based solely on the prior sexual offenses evidence. Additionally, as we explain above, there was sufficient evidence to support his convictions on each of the counts on which the jury convicted him.

III. Sixth Amendment Right to Confront Witnesses

Regalado claims the trial court violated his Sixth Amendment confrontation rights on numerous grounds. None of his contentions have merit.

The Sixth Amendment confrontation clause guarantees a criminal defendant the right to be confronted with the witnesses against him and the opportunity to cross-examination. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679.) “‘“[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, ‘to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.’” [Citations.] However, not every restriction on a defendant’s desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citation.] . . . California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced “a significantly different impression of [the witnesses’] credibility” [citation], the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.’ [Citation.]” (People v. Chatman (2006) 38 Cal.4th 344, 372.)

A. Ming

Regalado asserts the trial court erroneously restricted his right to cross-examine Ming because (1) the court did not allow him to explore Ming’s bias through her professional associations, and (2) the court did not allow him to recall Ming to impeach her after she changed her testimony and produced only a portion of related subpoenaed documents. We will address each in turn.

1. Bias

During Ming’s cross-examination, defense counsel asked her whether she was affiliated with the National Children’s Alliance (Alliance), an advocacy group for child abuse victims. Ming responded she was a board member, and the county’s CAST program was a member organization. Ming did not believe either she or the Alliance was biased. When defense counsel asked Ming what the Alliance’s founder’s occupation was, the trial court sustained a relevance objection. Later, defense counsel’s offer of proof was the Alliance was a quasi-law enforcement organization whose founder was a district attorney. Based on the Alliance’s mission, CAST’s membership in the Alliance, and Ming’s association with the Alliance, defense counsel wanted to explore Ming’s bias. The trial court sustained the objection ruling the founder’s occupation was collateral impeachment that would require an undue consumption of time.

The trial court properly excluded testimony concerning the Alliance’s founder’s occupation, which was irrelevant to whether Ming was biased. The fact the Alliance’s founder was a district attorney did not tend to establish Ming was pro-prosecution. Additionally, defense counsel elicited information that was relevant to bias, i.e., the Alliance was a child abuse advocacy group of which Ming was a board member and CAST was a member, she never testified for the defense, she never opined sexual abuse did not occur, and she testified 13 years earlier she was biased in favor of children. The court properly excluded the testimony.

In a footnote, Regalado asserts Sheridan-Matney was also a member of the Alliance, and the court forbade defense counsel from inquiring about her biases. Because he does not explain how this assertion differs from his claim concerning Ming, we will not address it further.

2. Changed Testimony

On direct examination, Ming testified she examined S.R. who told her Regalado forcefully abused her. Ming explained that when a person penetrates a sexually undeveloped girl’s vagina, she would expect to find the hymen torn or separated. Ming said her examination of S.R. was normal, but that result was consistent with a child having been sexually abused. On cross-examination, defense counsel elicited that Ming was not aware of any verifiable history of a sexually undeveloped girl being forcibly raped without any physical findings. When cross-examination continued the next day, Ming testified there were two instances where sexually undeveloped girls were forcibly raped and there were no physical findings. On redirect examination, Ming testified she had learned of similar cases in “chat rooms,” but they were part of online discussions that had not been published.

Although it is not in the record, defense counsel filed a subpoena duces tecum requesting records from the two cases and documents corroborating Ming participated in “chat room” discussions. County counsel produced documents concerning one of the cases. The trial judge refused to provide defense counsel with the documents, but instead provided a redacted summary of the documents. Counsel inquired whether videotape showed the child was awake or asleep during the vaginal penetration. After the prosecutor consulted Ming off the record, he stated the child was “apparently drugged and moaning” during the vaginal penetration. Defense counsel’s offer of proof was he wanted to recall Ming to impeach her prior testimony because the videotape did not show sexual intercourse occurred. The trial court denied counsel’s request.

The trial court properly denied Regalado’s request to recall Ming because defense counsel was afforded an opportunity for appropriate cross-examination to impeach Ming on the issue of whether she changed her testimony. Defense counsel inquired why she did not mention the two cases the previous day, and Ming responded she probably “blocked” it out. Counsel asked her if it would be fair to say she changed her testimony. When she started to answer, counsel objected on the grounds her answer was nonresponsive after she said, “Yes.” Although the reporter’s transcript does not indicate she said, “Yes,” the court sustained the objection. Counsel asked her if she believed she was testifying objectively, and she said, “Yes.” Counsel cross-examined Ming on the cases she learned of in the “chat room,” which included approximately 250 doctors from across the country. On recross-examination, counsel again asked her if she changed her testimony, and after the court overruled the prosecutor’s objection, Ming responded she did not think she changed her testimony, but that she simply forgot. Counsel also cross-examined her concerning the “chat room” quality controls.

Defense counsel questioned Ming about why she did not mention the cases during her prior testimony, whether she changed her testimony, whether she was biased in favor of children, and the “chat room’s” members and protocols. Based on counsel’s offer of proof, we would expect similar questions if the court allowed counsel to recall her to lay a foundation to impeach her. And, Regalado fails to indicate what new questions defense counsel would have asked. With respect to the documents, Regalado did not include the subpoena duces tecum in the clerk’s transcript, and any suggestion the court erroneously failed to provide documents is not supported by the record. Other than the unsupported assertion the documents that Ming did not produce must have impeached her testimony, Regalado does not point to anything in the record to support the conclusion Ming willfully withheld any documents.

Finally, Regalado claims the matter Ming relied on in forming her opinion was unreliable and her opinion was unsubstantiated. He points to no place in the record where he objected on these grounds, and therefore, they are waived. (People v. Demetrulias (2006) 39 Cal.4th 1, 20-21; Evid. Code, § 353, subd. (a).) In any event, his claim has no merit. Ming’s opinion was based on her specialized knowledge, skill, experience, and training when she observed the videotape in the other case, and the other doctors’ examinations. Regalado’s objection to Ming’s testimony goes to the weight, not the admissibility, of her testimony. (People v. Fulcher (2006) 136 Cal.App.4th 41, 54.)

B. G.G.

Regalado asserts the trial court erroneously restricted his right to cross-examine G.G. because it did not permit defense counsel to question her concerning whether she told Kendrick that Regalado forced the girls to shower with the bathroom door open. We disagree.

On cross-examination, defense counsel asked G.G. whether she was ever at Regalado’s house when the girls were showering. G.G. stated she walked in when two of the girls were showering. When counsel asked her which girls, the prosecutor objected on relevancy grounds. Counsel asked to be heard at sidebar. Counsel stated G.G. told Kendrick “on tape” that she saw M.R. and V.R. showering with the door open because Regalado made them shower with the door open. He added that V.R. said she left the door open, and he expected M.R. to testify similarly. Counsel wanted to examine G.G. on this matter to test her credibility and capacity to remember events because she originally told Kendrick that Regalado only touched her breast, but at trial, claimed he put his hand down her pants. The trial court sustained the prosecutor’s objection based on relevancy and Evidence Code section 352 grounds.

Regalado does not provide us with any record reference to support his assertion G.G. told Kendrick “on tape” that Regalado forced the girls to shower with the bathroom door open. We have reviewed the transcript of Kendrick’s interview with G.G., and she did not mention anything about the girls showering. On that basis alone, the argument fails.

Assuming she did tell Kendrick that Regalado forced the girls to shower with the bathroom door open, the trial court did not restrict his right to cross-examine G.G. because the matter was of marginal relevance and would have necessitated an undue consumption of time. Such testimony was of marginal relevance to the charges against Regalado, and to G.G.’s credibility, because there was no evidence G.G. changed her testimony on this collateral point. This was not a situation where she made a prior inconsistent statement, but where two different witnesses gave conflicting stories on a matter of marginal relevance. And, the fact the jury asked the trial judge for a read back of G.G.’s testimony concerning her conversation with E.R. does not mean the evidence regarding the girls’ showering habits was relevant.

Defense counsel had an ample opportunity to cross-examine G.G. to demonstrate to the jury that what she testified to at trial was different and more severe than what she told Kendrick. Counsel thoroughly cross-examined G.G. about her interview with Kendrick when she told him Regalado touched her breast, and her testimony at trial when she said he put his hand down her pants. And counsel continually asked G.G. if she was sure of her testimony. The trial court properly excluded G.G.’s testimony concerning the children’s showering habits as it was of marginal relevance and further questioning of G.G. concerning her interview with Kendrick would have necessitated an undue consumption of time.

C. Children’s Therapy Records and CAST Therapist Lorena Perez

Regalado asserts “the trial court erred in denying the defense access to the children’s therapy records and deprived [him] of his right to cross-examine . . . Perez[.]” Specifically, he claims the court erroneously denied his request to review M.R.’s, V.R.’s, and S.R.’s therapy records, depriving him of his right to explore their credibility. He also asserts the court erroneously denied his request to voir dire Perez concerning her background and training. Neither of his contentions has merit.

Once again, Regalado cites to his motion for new trial. He served a subpoena duces tecum on Perez before trial, and during trial filed a copy with the court. A male identifying himself as Perez’s husband appeared in court and gave the trial judge an unsealed envelope containing therapy records for M.R., V.R., and S.R. Defense counsel asked the judge to review the records in camera to determine whether they were discoverable. The judge requested counsel file a declaration and statement of materiality pursuant to People v. Hammon (1997) 15 Cal.4th 1117 (Hammon).

Approximately one week later at an in chambers hearing concerning the therapy records, defense counsel asked the trial judge whether there was anything in the therapy records concerning what happened to M.R., V.R., and S.R. in Regalado’s home. The trial judge said there was nothing in the therapy records that was “not 100 percent consistent” with what the children had already talked about other than a lice issue with M.R. Defense counsel stated he wanted S.R.’s therapy records because she had between 16 and 20 therapy sessions before she disclosed Regalado touched her. Counsel stated he wanted M.R.’s therapy records because he wanted to see if there was any information concerning Perez’s statement to a social worker that M.R. was close to a “breakthrough.” The trial court said there was nothing in the records concerning either matter, and he would not release the records. Defense counsel concluded he believed the records were discoverable and he thought Perez was “odd.”

At a later hearing when discussing potential witnesses (the children’s foster parent and social workers), defense counsel stated he assumed he could not ask them about Perez because the trial court would sustain a hearsay objection. The court stated if counsel asked the two witnesses about what Perez told them, he would sustain such an objection. Counsel said he could not call Perez and question her concerning the records, and that “she is a little odd[]” and “a little off.” The court ruled counsel’s offer of proof was insufficient to pierce the privilege. Counsel said that based on the fact the court would sustain a hearsay objection, and he “can’t call . . . Perez based upon [his] offer of proof,” he was unable to fully explain to the jury what made M.R. make vague statements to her foster patents and the social workers. The court responded, “Those are your words and I don’t know what you are asking the court to rule on.”

With respect to his first claim, Regalado has not demonstrated the trial court erroneously refused to disclose the children’s therapy records. Generally, confidential communications between a psychotherapist and a patient are privileged. (Evid. Code, § 1014.) “When a defendant proposes to impeach a critical prosecution witness with questions that call for privileged information, the trial court may be called upon . . . to balance the defendant’s need for cross-examination and the state policies the privilege is intended to serve.” (Hammon, supra, 15 Cal.4th at p. 1127.)

Here, the trial court reviewed the therapy records in camera and determined the therapy records were “privileged and confidential,” there were no relevant records, and the records would not be disclosed. The court explained there was no evidence in the therapy records that had not been heard by the jury. The court properly balanced the competing interests. Additionally, the prosecutor did not call Perez to testify, and therefore, any claim nondisclosure of the records unconstitutionally infringed Regalado’s right to cross-examine Perez is without merit. Moreover, defense counsel had ample opportunity to cross-examine M.R., V.R., and S.R. to explore their credibility. The jury also heard testimony V.R. influenced S.R., and S.R. disclosed Regalado abused her after talking to V.R. M.R. was not a charged victim, and the jury heard testimony Regalado never touched M.R., and Perez’s testimony she told the children’s foster parent that Perez was trying to get M.R. to disclose Regalado sexually abused her.

Finally, we have independently reviewed the therapy records, and have concluded they do not include any relevant information that was not already heard by the jury. Specifically, the records do not include any information concerning S.R. changing her story or that M.R. was ready to disclose Regalado touched her. In sum, the therapy records do not provide any new, relevant evidence that would have assisted the jury in determining whether V.R. influenced her sisters to falsely accuse Regalado of committing sexual offenses.

As to his second claim, Regalado does not cite to any place in the record where he requested the trial court allow him to voir dire Perez. Defense counsel stated he could not call Perez as a witness because she was “odd,” and “a little off[,]” and he did not think he would be able to question her concerning her conversations with the children. This is a wholly inadequate showing. Apparently, having failed to pierce the privilege, counsel decided not to pursue the matter. Regalado cannot now complain the court denied him the opportunity to voir dire Perez, after failing to satisfy the burden of proof.

IV. Discovery-Training Manual

Regalado argues the trial court erroneously refused to release Kendrick’s training manual and it restricted his right to cross-examine him. We disagree.

“‘The defendant generally is entitled to discovery of information that will assist in his defense or be useful for impeachment or cross-examination of adverse witnesses. [Citation.] A motion for discovery must describe the information sought with some specificity and provide a plausible justification for disclosure. [Citation.] The court’s ruling on a discovery motion is subject to review for abuse of discretion. [Citation.]’ [Citation.]” (People v. Prince (2007) 40 Cal.4th 1179, 1232 (Prince).)

Here, defense counsel requested the trial court order Kendrick to produce the manual from the training course he attended at the Los Angeles Police Department. Kendrick produced the manual, and the court excused Kendrick as a witness though he was subject to recall through the prosecutor’s office. After an in camera review, the trial court disclosed that portion of the manual concerning child molestation investigations. The court explained those 36 pages were the only pages relevant to Kendrick’s investigation of the allegations here. The court opined the pages regarding adult rape investigations were not relevant.⁶

6 When and how many pages the trial court disclosed to defense counsel is unclear. The parties cite to the discussion on May 23, 2005, where the court stated the majority of the document it reviewed was irrelevant, and that it stopped reviewing the records when Kendrick stopped testifying, but that it would continue reviewing it. The parties next cite to the hearing on the motion for new trial. Needless to say, this is of little help in addressing the merits of this issue.

Regalado contends the trial court disclosed only 36 pages of the manual, and withheld the portion of the manual concerning rape investigations despite the fact “the case at bar involved allegations of forcible rape[.]” Not so. Here, Regalado was not charged with rape, and all of the victims were children. Although there was testimony E.R. claimed she was raped, evidence concerning law enforcement investigation of adult rape cases was not relevant in a case concerning allegations of lewd conduct against children. The court properly disclosed those portions of the manual that were relevant here.

Regalado also suggests the trial court had an adequate opportunity to review the manual while Kendrick was on the stand, but did not, and the delay prevented him from an opportunity to effectively cross-examine Kendrick concerning asking the children suggestive questions and lying to witnesses. Again, we disagree. First, a defendant’s confrontation right is not violated by a trial court’s denial of a request for discovery. (Prince, supra, 40 Cal.4th at p. 1232.) Second, defense counsel fully explored Kendrick’s credibility on cross-examination including why he did not ask witnesses certain questions or further investigate certain matters. Indeed, on cross-examination, Kendrick admitted he was trained to not tell a potential sexual abuse victim what another person said, but he did so with E.R. and G.G. Finally, to the extent Regalado suggests the trial court’s delay in releasing the manual until after the court excused Kendrick somehow prejudiced him, defense counsel could have recalled Kendrick to cross-examine him further.

V. Judicial Misconduct

Regalado claims the trial judge committed misconduct when he said within earshot of the jury that he thought defense counsel was going to play CAST tapes for the jury. He claims the comment was hostile.

“[J]udicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. . . . Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge’s ordinary efforts at courtroom administration—even a stern and short-tempered judge’s ordinary efforts at courtroom administration—remain immune.” (Liteky v. U.S. (1994) 510 U.S. 540, 555-556 (Liteky).)

At the onset of trial, the prosecutor stated he did not intend to introduce into evidence the CAST tapes unless they became relevant during trial. Defense counsel said he intended to use certain questions and responses for impeachment. During recross-examination, defense counsel asked Kendrick questions concerning G.G.’s statements on her CAST videotape. The trial judge sustained his own objection, explaining the jury saw the videotape and counsel did not need to go back over it. A little later, defense counsel asked Kendrick whether he had an opportunity to watch the videotape of E.R.’s CAST interview, and Kendrick responded, “Yes.” Counsel asked him if E.R. cried during the interview, and Kendrick responded he did not remember. When counsel asked him if he would watch the videotape during lunch, Kendrick responded, “No.” Counsel said, “You won’t have the time to watch [E.R.’s CAST] interview if we have an hour and a half lunch?” The trial judge stated, “Next question, sir.” Counsel said he did not respond. The trial judge said he answered, “No.” Counsel asked Kendrick if he knew how long the lunch break was. The trial judge said, “What’s your next question, sir. Come on.” Counsel asked Kendrick why he did not have the time to watch the videotape. The trial judge stated, “Sir, next area.” Counsel asked Kendrick if he would have the “opportunity to watch [E.R.’s CAST] interview [that] []night or over the weekend[.]” The trial judge said, “‘Next area’ means ‘area,’ sir.” Counsel then asked if he could be heard. The trial judge stated, “Did you not – well, yes, you may.”

In chambers, defense counsel stated, “While we were at sidebar I was trying to get into an area about what I was talking to—what . . . Kendrick was saying. The court then, I believe in a tone that was very easily able to be heard by the jurors had they chosen to listen, the court said, ‘didn’t you just tell me that you were going to play all of the CAST interviews?’” After discussing the videotape, the trial judge told defense counsel asking Kendrick how long the lunch break was in front of the jury was irrelevant. Defense counsel stated that at sidebar, he felt “hostility” from the trial judge. The trial judge responded that it was not his intention, and that he was frustrated because they were keeping the jury longer than expected. The trial judge apologized and asked counsel if he wanted the trial judge to speak with the jury. Counsel declined the offer.

The Attorney General argues Regalado waived appellate review of this issue because he failed to object on the grounds the trial judge committed misconduct. Regalado counters his “objection took the form of a plea to the judge to keep his voice down[,]” and he rejected the judge’s belated offer to admonish the jury to avoid further prejudice. We agree with the Attorney General.

“Defendant has not preserved the issue for appeal because he made no objection to any of the trial court’s allegedly improper actions. [Citations.]” (People v. Hines (1997) 15 Cal.4th 997, 1041.) Here, defense counsel did not object to the trial judge’s comment on the grounds it was judicial misconduct. Although we conclude he waived appellate review of this claim, we will address the merits to forego a claim of ineffective assistance of counsel. (People v. Marshall (1996) 13 Cal.4th 799, 831 (Marshall).)

The trial judge did not commit misconduct. First, assuming the jury even heard the trial judge’s comments, we cannot conclude the judge’s statement was inappropriate. The comment came during a particularly frustrating exchange where defense counsel repeatedly asked Kendrick about whether he had time to watch the videotape of E.R.’s CAST interview while the trial judge reputedly asked him to move on to the next area. Defense counsel essentially ignored the trial judge’s order. “‘[I]t is well within [a trial court’s] discretion to rebuke an attorney, sometimes harshly, when that attorney asks inappropriate questions, ignores the court’s instructions, or otherwise engages in improper or delaying behavior.’” (People v. Snow (2003) 30 Cal.4th 43, 78.) Additionally, even if the jury heard the comment, not all judicial comments demonstrating frustration are misconduct. “[J]udicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.” (Liteky, supra, 510 U.S. At p. 555.) Here, when defense counsel confronted the trial judge with his statement, he said he was frustrated they were keeping the jury longer than expected, he apologized, and he asked counsel if he wanted the judge to admonish the jury. The judge’s comment was not misconduct, but instead was an expression of impatience that is “within the bounds of what imperfect men and women sometimes . . . display.” (Ibid.) Moreover, the trial court instructed the “jury not to take cue from the judge.” (CALJIC No. 17.30.)

Finally, Regalado suggests because of the trial judge’s pastoral relationship with three of the jurors, his comment improperly influenced the jury. We have already dismissed his claim concerning the trial judge’s disclosure of his church membership, and it is equally unpersuasive here as the judge’s comment was not improper.

VI. Prosecutorial Misconduct

Regalado argues the prosecutor committed three instances of misconduct during closing argument. He claims the prosecutor committed misconduct when he: analogized to the events on September 11, 2001, argued Regalado did not tell a police officer or a social worker V.R. fabricated the allegations, and appealed to the jury’s sympathy by asking them to raise their swords in defense of the children who were betrayed by a person they trusted. None of his contentions have merit.

“A prosecutor’s misconduct violates the Fourteenth Amendment to the federal Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.] In other words, the misconduct must be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ [Citation.] A prosecutor’s misconduct ‘that does not render a criminal trial fundamentally unfair’ violates California law ‘only if it involves “‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citations.]” (People v. Harrison (2005) 35 Cal.4th 208, 242.)

“Regarding the scope of permissible prosecutorial argument, ‘“‘a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.’ [Citation.] ‘A prosecutor may “vigorously argue his case and is not limited to ‘Chesterfieldian politeness’” [citation], and he may “use appropriate epithets . . . .”’” [Citation.]’ [Citation.]” (People v. Stanley (2006) 39 Cal.4th 913, 951-952 (Stanley).)

“To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 970.)

A. Waiver

The Attorney General argues Regalado waived appellate review of these claims because he did not object on the grounds of misconduct, request an assignment of error on these grounds, and request the jury be admonished to disregard the impropriety. Regalado asserts a trial court’s admonition would not have cured the prosecutor’s September 11, 2001, comments. He also contends he did object to the prosecutor’s comments by asking the trial judge to approach the bench. Finally, he suggested he did not have time to object to the prosecutor’s comments concerning swords because the prosecutor ended his argument.

“As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety.” (People v. Ayala (2000) 23 Cal.4th 225, 284.) “A defendant will be excused from the requirement of making a timely objection and/or a request for admonition if either would have been futile. [Citation.] In addition, the failure to request that the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct or the trial court immediately overrules an objection to alleged misconduct such that the defendant has no opportunity to make such a request. [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1201.)

We agree with the Attorney General that Regalado waived appellate review of these claims because he did not object on the grounds the prosecutor committed misconduct, request an assignment of misconduct, or ask the court to admonish the jury. Although we conclude he waived appellate review of these claims, we will address the merits to forego a claim of ineffective assistance of counsel. (Marshall, supra, 13 Cal.4th at p. 831.)

B. September 11, 2001

During rebuttal argument, the prosecutor addressed defense counsel’s contention the truth was in the details and the children could not remember the details of the incidents. The prosecutor stated he grew up in New York and had a family member who worked in the World Trade Center, and a boyhood friend who was a fireman on September 11, 2001, who died. He said that when he spoke to his mother on the telephone, he did not know where his family members were, but he knew they were safe. He said traumatic events sometimes have a way of making even adults forget details.

In People v. Zurinaga (2007) 148 Cal.App.4th 1248, 1250 (Zurinaga), the prosecutor, during closing argument, analogized the events of September 11, 2001, to defendants’ home invasion robbery of nine college students in their residence, displaying a chart with flight numbers, and the number of passengers and crew who died. The court held the prosecutor committed misconduct because his reference to September 11, 2001, was not brief, he referred to facts not in evidence, and his analogy was inapt. (Id. at pp. 1258-1259.) Nevertheless, the court concluded the misconduct did not prejudice defendant. (Id. at p. 1260.)

Here, the prosecutor did not commit misconduct. During trial, defense counsel argued the prosecution witnesses were not credible because they could not remember details of the incidents. The prosecutor used the tragic events of September 11, 2001, to demonstrate that even adults forget the details of tragic events in our lives, and therefore, it was not unusual for children to forget tragic events in their lives. As we explain above, prosecutors are afforded wide latitude during closing argument. The prosecutor’s comments were brief, and he did not refer to specific facts that were not in evidence. Most importantly, his analogy, unlike the one in Zurinaga, was apt. The prosecutor relied on historical events to contradict defense counsel’s argument the children’s inability to recall details made them less credible.

C. Facts Not in Evidence

Regalado argues the prosecutor committed misconduct when he argued facts not in evidence. To support this proposition, he cites to the following portion of the reporter’s transcript where the prosecutor argued the first time Regalado suggested V.R. falsely accused him was at trial.

During rebuttal argument, the prosecutor stated, “During that whole time that [Regalado] was gone, he had plenty of time to think. When the law finally catches up to [him], what [is he] going to say? And of course, it’s such a simple case, [V.R.] is the one who started this whole thing and it all falls on [her], of course that’s what he said. Does he mention one thing about [V.R.] being a liar? No. Does he mention one thing about [her] calling social services and doing all these terrible things and making up all these fake allegations about him before? No. He says is this a conspiracy started by Maria, [E.R.’s] mom. That’s what he says.”

After this portion of the prosecutor’s argument, defense counsel asked to approach the bench. Defense counsel argued the prosecutor knew Regalado gave a lengthy statement to Kendrick where he did say these things about V.R., and the trial court previously sustained the prosecutor’s objection to admission of those statements. The court stated it was inclined to sustain the objection and ask the prosecutor to move on. Pursuant to defense counsel’s request it do so in front of the jury, the trial court sustained defense counsel’s objection, and told the prosecutor to move on in the presence of the jury.

We assume the trial court properly sustained defense counsel’s objection. Although counsel requested the trial court sustain the objection in the presence of the jury, counsel did not request the court strike the argument from the record. In any event, we find nothing egregious about the prosecutor’s comments. We find no prejudice.

D. Jury’s Sympathy

During closing argument, defense counsel opined on the historical basis of our criminal justice system. He stated, in relevant part, “So what they did is they started sending runners up to the countryside to bring men down to act as the earliest forms of jurors. And when the system was first set up, they sent the runners out and asked the men to come and bring swords with them, not because they were going to ask them to use them against anybody but because they were going to ask them to symbolically surround the person who the king has charged with a crime. And it wouldn’t be until the king convinced each of those people to lower their swords that the government would be able to get the person that they charged.”

During rebuttal, the prosecutor stated: “And [defense counsel] talked about way back in the history of the criminal justice system when the 12 people would gather around and they would hold their swords up around the person that was accused and they couldn’t take that person until they would all lower their swords. Well, there are [two] swords that need to be raised around these victims, ladies and gentlemen. These eight girls were victimized. The worst possible thing a girl could have happen. Her father, the man she trusted most, the one guy who really should protect her, taking advantage of her and touching under these ways. And the cousins and the friends. This is a horrible, horrible thing to have happen to a little girl, and it’s a terrible ordeal for a little girl to have to come in here and talk about this. [¶] And that’s what we had here. These girls came in and told you their story. And the people ask you to look at those girls, consider their testimony, and convict [Regalado] as charged of all the counts.”

Again, the prosecutor’s comments were proper. The prosecutor had wide latitude during closing argument, could vigorously argue his case, and was not limited to “Chesterfieldian politeness.” Further, “Arguments by the prosecutor that otherwise might be deemed improper do not constitute misconduct if they fall within the proper limits of rebuttal to the arguments of defense counsel. [Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1026.) The prosecutor’s argument was in response to defense counsel’s historical reference to kings and swords. Although he referred to the girls who were Regalado’s victims, “‘[I]solated, brief references to retribution or community vengeance such as occurred here, although potentially inflammatory, do not constitute misconduct so long as such arguments do not form the principal basis for advocating the imposition of the death penalty.’ [Citation.]” (People v. Sanders (1995) 11 Cal.4th 475, 550, fn. 33.) The prosecutor did not commit misconduct.

VII. Cumulative Error

Regalado contends the cumulative effect of the alleged errors requires reversal. We have concluded there were no errors, and therefore, his claim has no merit.

VIII. Blakely

In his opening brief, Regalado contends that pursuant to Blakely v. Washington (2004) 542 U.S. 296, and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 860], the trial court erroneously sentenced him to consecutive sentences on counts 6, 7, 10, and 13. In his reply brief, he acknowledges the California Supreme Court in People v. Black (2007) 41 Cal.4th 799, 821, rejected the same claim. He does not abandon this claim to preserve any federal claim he might have.

DISPOSITION

The judgment is affirmed.

WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.

Our review of the record revealed that on May 24, 2005, the court stated there was an additional portion of the document it was going to disclose. The court also stated that it would go through on the record and state what it was not disclosing. We are unable to find that disclosure, and the parties do not cite to it. We are in possession of a sealed confidential envelope from the trial court labeled, “Disclosed Lecture Outline of Seminar Detective Kendrick Attended.” But this outline is 32 pages and includes information on adults and rape.

Defense counsel claims the court disclosed 36 pages, excluding the material on rape. Because it is the defendant’s burden to demonstrate prejudicial error (People v. Akins (2005) 128 Cal.App.4th 1376, 1385), we will proceed on the basis of Regalado’s representations the court disclosed everything it requested, except the rape materials.