Opinion
D073000
03-13-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHN PAUL SILVA, Defendant and Appellant.
Patrick Morgan Ford for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1408091) APPEAL from a judgment of the Superior Court of Riverside County, Mac R. Fisher, Judge. Affirmed. Patrick Morgan Ford for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted John Paul Silva of 24 counts of committing a lewd or lascivious act upon a child 14 or 15 years of age by a person at least 10 years older than the child. (Pen. Code, § 288, subd. (c)(1); counts 3-26.) The court sentenced Silva to an aggregate term of 17 years four months.
The jury acquitted Silva of two counts of committing a lewd or lascivious act upon a child under the age of 14.
Silva contends the court abused its discretion in a number of evidentiary rulings, namely (1) refusing a defense request to play the entire police interview of the victim that preceded the pretext call, (2) precluding introduction of Silva's recorded interview statement, (3) permitting three witnesses to testify under the fresh complaint doctrine, (4) allowing a witness to testify about Silva's comment about the Minor's vaginal odor, and (5) precluding the defense from impeaching Stepmother with evidence of a false kidnapping accusation. Silva further contends cumulative error deprived him of his right to a fair trial. We conclude the court did not abuse its discretion in making these evidentiary rulings and Silva was not deprived of a fair trial as a result of cumulative error. Accordingly, we affirm the judgment.
We use initials or generic terms to protect the privacy of the witnesses. We refer to the victim as Minor. We refer to Minor's stepmother as Stepmother. (See Cal. Rules of Court, rule 8.90(b)(4), (10).)
BACKGROUND
A
Witness D.S. testified she hung out with Silva and other friends at Silva's home when she was 15 or 16 years old and Silva was in his 20's. They would drink alcohol or smoke marijuana. D.S. had sex with Silva a handful of times when she was 15 years old.
Witness J.G. also hung out with Silva at his home when she was 14 years old and Silva was approximately 26 years old. They would drink alcohol, smoke marijuana, and ride off-road vehicles. J.G. had sexual intercourse with Silva a couple of times.
Stepmother was 14 years old when she met and started living with Silva. He was 25 years old. They married when Stepmother was 19 years old. Silva had custody of Minor, who was then seven years old.
B
Minor testified Silva touched her inappropriately when she was in ninth grade and she was 13 or 14 years old. The first time, she awoke to find Silva touching her vagina with his hand over her clothes and saying she was going to be okay. He rubbed her vaginal area until they heard Stepmother pull into the driveway.
Silva repeated these actions two weeks later between 10:00 p.m. and 11:00 p.m. when Stepmother was away from the home. About a week later, Silva touched Minor again when Stepmother was out getting food. This time Silva rubbed Minor underneath her clothes and underwear. He stopped when the Stepmother returned.
Minor stated Silva touched her inappropriately well over 150 times in a span of three and a-half years. Silva put his fingers in Minor's vagina. After Minor turned 14 years old, he began using his mouth on her vagina. He also rubbed his genitals against Minor's genitals underneath her clothing. During the last incident of touching, Silva rubbed his penis between Minor's breasts and ejaculated on her chest.
Minor believed Silva would send Stepmother out on errands at night. Every two to three days when Stepmother was away, Silva would come into Minor's room and start rubbing his fingers on her vagina. He then inserted his fingers in her vagina before he either used his mouth on her vagina or rubbed his penis against her vagina. He also touched her breasts with his hands. He left the room when the Stepmother returned.
C
Minor told a friend that Silva was doing something he should not have been doing. Minor's friend encouraged her to tell someone. Minor's friend testified that, during their junior year in high school, Minor started crying and Minor's friend asked what was wrong. Minor said it was "at-home stuff" and it involved Silva. After class, Minor told her friend Silva was doing things to her. Minor's friend told Minor to go to the police.
Shortly thereafter, a coworker (Coworker) of Silva and Minor noticed Minor jump and move away from Silva when Silva got close to Minor. Coworker testified Minor appeared disgusted when Silva came near her and she did not want anything to do with Silva. When Coworker asked if something was wrong, Minor said she could not talk about it at work. Coworker asked her to write a letter. Minor wrote a letter explaining what Silva did to her and gave it to Coworker. Coworker told Minor to tell her grandfather (Grandfather). Minor went to Grandfather's house that weekend and disclosed the inappropriate touching. Grandfather took Minor to report the incidents to law enforcement. Minor and Coworker denied having a dating relationship.
Grandfather testified Minor would not sleep with the lights off when she came to stay on weekends and she would stay up all night. She appeared closed off. This was different from her behavior when she was younger.
Grandfather kept asking Minor what was wrong. Minor broke down, started crying, and told Grandfather that Silva was touching her. She said Silva would come into her room at night, fondle her, and do things he should not have been doing. Minor said this occurred when Silva would send Stepmother to the store. She said it had been going on since she was in ninth grade and it last occurred a couple of nights before she told Grandfather.
D
Minor made two pretext calls to Silva. Silva could not talk long in the first call because he was at work. When Minor asked him to stop touching her and to stop coming in her room. He stated, "That's fine I have nothing to do with it. I won't even bother coming in your room, I won't even bother trying to talk to you about anything." When Minor said it made her uncomfortable and asked him to stop, he said "Okay." Silva then asked, "So what are you telling everybody all kinds of shit now too?" Minor said nobody knew. Minor asked Silva to tell her why he had done these things. Minor said she would tell Stepmother if he did not.
In the second pretext call, Silva asked, "Well, you understand the kinda trouble that you can get me into with all this?" He told Minor not to threaten him by saying she would tell Stepmother. When Minor said she would tell Stepmother if it did not stop, and asked if he would stop, Silva said, "I'm gonna stop, yeah, whatever."
Minor told Silva, "You know that's sexual assault right? And I hope you understand that." Silva responded saying, "Oh so now you're gonna try to get me on that?" Minor said, "If I really wanted to I could." Silva said, "So you wanna fucking screw your [siblings] and screw everybody because you wanna get all fucking emotional all the time?" Minor asked if he was doing it to her siblings. Silva said, "I ain't doing it to nobody." Minor responded saying, "Bullshit. You're doing it to me. I can't take the touching or anything anymore." Silva said, "I can't take a lot of things that you do but you know what? I have to deal with it."
Minor said, "I just want this to freaking stop." Silva responded, "Fine it will. You happy? I won't come in your room, I won't come around you, I won't touch you, I won't hug you, I won't do anything to you. Ever again. It's that simple."
When Minor asked why he did it, Silva said he did not know. Minor said, "I don't understand just why you do it. Like I mean shit you sent her away just to come and touch me? Like why?" When Silva asked, "You what now?" Minor reiterated, "I said I just don't understand it. Like I mean you freaking sent her away just to come and touch me or what? Like seriously." Silva responded, by saying Minor's name. Minor went on, "No, I wanna know. It's time to ..." Silva said, "I don't know."
Silva asked Minor what she was going to do. Minor said, "I don't know yet. But I'm done with it." Silva responded, "Right now you're sending me to jail." Minor said she was not, but then said, "If that's what it's gonna take, that's what it's gonna take, but I'm not—I don't ..." Silva responded saying, "Oh so you're willing to send me to jail for 25 fucking years and screw up everything in our world ..."
When Minor pressed Silva on why he did it, he said, "I don't know, .... It just happened." When Minor told Silva, "you know you did it," Silva responded, "Okay, fine. You want me to fucking admit that I did something?" Minor said, "Yeah." Silva said, "Fine, I did it. Okay? It won't happen again. I promise you that. Is that good enough?"
Silva asked Minor, "Exactly how do you plan to prove all this anyways?" Minor said, "I have no idea." Silva said, "You have a bad record of this shit. Nobody's gonna believe you anyway." Minor said, "I just want it to stop." Silva responded saying, "All I can say right now, [Minor], is you come home everything will be fucking sweet. I won't ask you to come to the shop with me. I won't ask you to be around me. I won't—nothing. Okay?"
Silva began worrying about being arrested saying, "I'm probably gonna get busted right now. Great. Now who's gonna pay for this ticket?" After an exchange about Minor helping with money, Silva said, "I am telling you right now everything's plain and straight. We're done. It's over with. No more fucking hanging out with you. No more fucking going into your room. No more talking to you. None of it, okay?" Minor said, "Fine." Silva went on to say if Minor wanted to talk, they can sit in the living room or at the kitchen table.
Later Silva said, "Like I said, I'm not even gonna come around you without somebody being around me anymore because I don't need this." Minor said, "Well if you didn't need it you wouldn't have done it in the first place." Silva responded, "Okay. All I can say, I'm sorry [Minor], and that's all I can say. I never intended to hurt you. I never meant to hurt you. Or any relationship before and I hope you can do that. And you can take it any way you want. I love you and I always will as my daughter." Silva worried about what would happen when Stepmother found out. He thought she would "freak out" at both of them.
E
On cross-examination, Minor acknowledged the detective told her how the pretext call was to be done and wrote down words he wanted her to use. She agreed she did not mention specific incidents. During the call, the detective pointed to the words on the paper, but she did not use specific terms. She said she did not ask those questions because she felt uncomfortable, not because she was lying.
Minor admitted she lied a lot, about who she was hanging out with and who she walked home with from school.
Minor agreed on cross-examination that she and Silva always had problems with communication and he had rules she did not agree with. Minor acknowledged Silva did not want her making posts on social media sites, but she did create accounts on a dating site and a social media site. She stated she did so because she was looking for her mother.
She also said Silva had a problem with the messiness of her room. She admitted she did not clean her room or do her laundry all the time.
F
Coworker worked for Silva and considered Silva a close friend. When Silva spoke about Minor, it was negative. He said she was a liar and a bad kid. Minor would say she was going to a friend's house and then not go to that friend's house. He also complained she did not clean her room. Silva had people follow Minor home from school. She was not allowed to leave her room often.
Silva complained about Minor's dirty room and the fact that she would leave her dirty and smelly underwear around. Silva said Minor's "pussy smells like shit." Coworker thought the comment was strange because "who in their right mind talks about their daughter like that?" Coworker agreed Silva was referring to Minor's laundry.
Coworker was present when Silva received a call at work. Coworker was standing within 10 feet of Silva during the call. Silva appeared very angry, which was out of the ordinary because Silva was normally upbeat. Coworker was in contact with Minor by text message and knew Minor was going to call Silva from the police station. Coworker observed and heard the call from Silva's side. Coworker described Silva's reactions during the call as surprised and distraught, saying: "It looked like he had seen a ghost. His jaw dropped, I saw fear in his eyes." Coworker heard Silva say, "That's going to ruin my life. Let's talk about this." Silva told Coworker that Minor had gone to the police and said Silva had raped her. Silva stopped working and appeared scared and upset. After the call, Silva said, "Dude, that's my daughter, I would never do anything like that."
G
Witness N.M. is best friends with Stepmother. N.M. and Stepmother were both 14 years old when they met Silva. N.M. stayed with Silva and Stepmother in their home for two months while N.M. recovered from a surgery. Minor was then approximately 16 years old.
N.M. testified she and Stepmother went out after 9:00 p.m. to get things at Silva's request. N.M. agreed she told an investigator that Silva did not send Stepmother out on errand runs at night. N.M. later testified Silva instructed her to say he did not send Stepmother out to run errands every night.
N.M. observed Silva and Minor were quiet with each other and did not interact much during the day. At night, Silva would go into Minor's room and N.M. would hear whispering. She thought Silva was going in Minor's room to say good night.
H
Stepmother testified she and Minor were close when Minor was young. As Minor got older, Silva began trying to spend more one-on-one time with Minor. He also seemed to play Minor and Stepmother against each other. Silva would take Minor to work with him. He would take Minor out for activities. He would also go in Minor's room in the evenings and talk to her.
Stepmother said Minor lied about small things, like a typical teenager. Minor wrote a friend a note saying she had sex with one of Silva's friends. When Stepmother and Silva confronted Minor about it, Minor admitted the allegation was not true. Minor said she was trying to fit in with her friends who were already sexually active and to make herself look cool.
Stepmother admitted she made a comment about being molested when she was a teenager. Stepmother stated at trial she never told Minor about this incident. She admitted she lied to an investigator when she said she told Minor about the incident. Silva told Stepmother to tell investigators that she had told Minor about her false allegations. He thought it would help with his case.
Stepmother testified Silva would send Stepmother out to get food or personal items when the children were asleep after 9:00 p.m. She would be out until 10:30 p.m. or 11:00 p.m.
Stepmother said she had a feeling something was going on, but could not pinpoint it at the time. She thought Minor's demeanor had changed. She also thought Silva acted strangely when Stepmother got home. She recounted an incident when Silva asked her to get razors because he wanted to shave. When she got home, she turned off the headlights on the car, turned the radio down, and coasted into the driveway. Stepmother found the front door deadbolted, which she thought was strange. She saw Silva coming down the hallway from the direction of Minor's room. He was adjusting his pajama pants. When she asked what he was doing, he said he was in Minor's room talking to her. Silva looked surprised. Stepmother thought they were talking about her or smoking marijuana together. Silva did not shave that night and when they went to bed, he did not want to have sex.
Stepmother testified the sexual acts described by Minor were consistent with Silva's sexual acts with Stepmother. When she questioned Silva about it, he stated "The only way [Minor] would know that, if she had seen us have sex." Stepmother stated Minor had not seen them having sex.
Stepmother acknowledged she supported Silva until their divorce proceedings commenced. She met with attorneys and brought documents to show Minor lied. Stepmother said Minor lied about normal teen things. Stepmother reached out to the district attorney's investigator after she moved out of Silva's home, and into the home of one of Silva's friends. She later began a romantic relationship with that friend.
Stepmother said she became suspicious because Silva wanted to spend more time alone with Minor. She confronted Silva about the suspicions before she left the home or contacted the investigator. When she questioned him, he would change his story. She began putting the case together and thought he was guilty. She left Silva when he attempted to kill himself.
An audiotape of an interview of Stepmother was played for the jury. Stepmother was initially supportive of Silva. She denied Silva sent her to the store at night, but later admitted she was out shopping at night sometimes. She also stated the sexual conduct Minor described in her interview was not anything like what Silva would do. Stepmother did express concern about the pretext calls and why Silva did not deny the conduct. By the end of the interview, Stepmother said she felt sick and Minor's statement was more believable than Silva's.
Stepmother admitted in her trial testimony she was not entirely truthful when she told the investigators she thought Silva was 110 percent innocent. That was not what she felt in her heart. She had spoken to Silva before meeting with the investigators and he suggested that her children could be taken away if she did not stick with her story. Stepmother later contacted the investigator and gave him the full truth. Stepmother said she told the truth at trial.
I
In the defense case, a friend of Silva's testified he stayed with Silva and Stepmother two nights a week, and sometimes more, from 2012 through 2014. The friend denied seeing Silva touch Minor inappropriately. The friend agreed he was not at Silva's house every day between 2010 and 2014.
Another friend and his son spent time off-roading with Silva and Minor at Silva's desert home on two occasions in 2013 and 2014 without the rest of Silva's family. The friend stated Minor was always smiling, having fun, laughing and joking around. The friend admitted he was not aware of what may have happened between Silva and Minor when the friend was not present.
Silva's father testified he lives near the home Silva shared with Stepmother. He drove by the home four to five days a week between 10:00 p.m. and 11:00 p.m. and would see Silva's friends at the home sitting outside smoking or talking. Silva's father admitted he did not sleep in Silva's home and usually did not stop at Silva's house when he was driving home.
Silva's father observed Silva take a call from Minor on the date of the pretext call. He stated Coworker was on the opposite side of the building, approximately 70 feet away, when Silva received the call.
Silva's father testified Minor's demeanor was mostly happy. He also testified Minor and Silva had a good relationship when he observed them at work and when they built a vehicle together. He thought Silva was a good father.
Silva's mother stated Minor is not a truthful person. She also testified Minor and Stepmother were distant. Silva's mother thought Silva wanted a better relationship with Minor, but Stepmother would put a wedge between them and thought Silva should spend more time with Minor's siblings.
DISCUSSION
I
Standard of Review
Silva challenges numerous evidentiary rulings. "We review claims regarding a trial court's ruling on the admissibility of evidence for abuse of discretion." (People v. Goldsmith (2014) 59 Cal.4th 258, 266.) This includes rulings under Evidence Code sections 352 and 356. " 'We will not reverse a court's ruling on such matters unless it is shown " 'the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' " ' " (People v. Jones (2017) 3 Cal.5th 583, 609; People v. Parrish (2007) 152 Cal.App.4th 263, 274.)
II
Interview Prior to Pretext call
Silva contends the court erred in denying the defense's request to play the entire recorded interview of Minor, or portions thereof, that occurred prior to the pretext calls. He contends the interview was necessary under the rule of completeness described in Evidence Code section 356. We disagree.
Evidence Code section 356 provides in pertinent part, "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; ... when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence." "The purpose of Evidence Code section 356 is to avoid creating a misleading impression." (People v. Samuels (2005) 36 Cal.4th 96, 130.)
The court and counsel discussed introduction of the interview. The court initially ruled the entire interview would not be admitted because, under an Evidence Code section 352 analysis, the probative value was substantially outweighed by the probability that the admission of the evidence would necessitate an undue consumption of time.
When defense counsel offered shorter clips of the interview to place the pretext call in context under Evidence Code section 356, the court indicated it might allow some of the clips after questioning Detective G. The court ruled that one or more of the clips could be played with proper foundation. The court explained effective examination of the detective could present the proper context for the pretext calls. If the detective agreed with the questioning, the defense would have effectively received his testimony in lieu of playing the videotape.
The defense called Detective G. and asked him about the pretext call placed by Minor as well as Detective G.'s discussion with Minor prior to the pretext calls. Detective G. and Minor discussed questions and things Minor would say on the call based upon information she provided in the interview. Minor collaborated in the discussion and provided suggestions.
Detective G. agreed he wanted Minor to use specific sexual terms to avoid ambiguity. Detective G. took notes of their discussion and wrote out things for Minor to talk about on the call. He included ideas of things to say to keep Silva on the phone. He underlined items on the paper or pointed to it during the call.
Between the first and second pretext call, Detective G. emphasized the importance of using specific words and wrote out new talking points. Nevertheless, Minor did not mention specific sexual conduct in the pretext calls.
Detective G. testified it is normal for victims to be nervous about participating in a pretext call. It is also normal for victims to feel embarrassed or scared to confront their abuser. It is common for victims not to use specific words.
After Detective G.'s testimony, defense counsel asked to show the jury only one clip of the interview, which the court allowed. The clip showed Detective G. and Minor discussing specific phrases as Detective G. wrote those down. Defense counsel further questioned Detective G. about what was seen in the clip.
Under the circumstances of this case, we conclude the court did not abuse its discretion. The court properly excluded the entire two-hour interview under Evidence Code section 352. With respect to the rule of completeness, as the court anticipated, defense counsel effectively introduced the contextual information necessary to avoid any misleading impression through examination of Detective G. and by showing the one clip defense counsel requested during the examination. Defense counsel also obtained an admission from Minor that she did not use specific terms even though Detective G. encouraged her to do so. There was no prejudicial abuse of discretion.
III
Silva's Interview
Silva contends the court violated his right to present evidence and his right to due process by denying his request to play for the jury the videotape of his own interrogation. We disagree.
Hearsay evidence, an out-of-court statement offered for the truth of the matter asserted, is generally inadmissible unless there is an exception. (Evid. Code, § 1200, subds. (a), (b).) Because Silva sought to introduce his own statements to support his defense, the party admission or declaration against interest exceptions do not apply. (Evid. Code, §§1220, 1230.) A defendant has "no federal constitutional right to the admission of evidence lacking trustworthiness, particularly when the defendant seeks to put his own self-serving statements before the jury without subjecting himself to cross-examination." (People v. Jurado (2006) 38 Cal.4th 72, 130.)
During the defense case, defense counsel asked Detective G. why he did not interview family members to corroborate Minor's story before arresting Silva, Detective G. stated, "I had your client to do that for me."
Defense counsel then questioned Detective G. about his interview with Silva. Detective G. stated Silva confirmed he went into Minor's room at night. Detective G. acknowledged Silva said he went into Minor's room to try to talk to Minor. Detective G. acknowledged Silva denied the accusations, but stated Silva made statements as well. Detective G. agreed Silva said he was having difficulty reaching Minor and that he went to her room to hug her to get her to open up. Detective G. said Silva admitted sexual conduct with Minor when he said he kissed her on the mouth in her room.
Defense counsel asked to play Silva's entire interrogation for the jury. The court denied the request. Out of the presence of the jury, in the context of whether the People wished to introduce Silva's interview statements, the court indicated it would entertain a stipulation to admit the entire interview. The court stated it would not admit portions of the interview pursuant to the completeness doctrine. Apparently, the People chose not to introduce the interview as rebuttal evidence because the court commenced with finalizing jury instructions the next morning.
The court did not abuse its discretion in excluding the interrogation. There was no applicable exception to the hearsay rule to permit admission of the self-serving statements of Silva during the interview in which he denied committing the offenses. Further, it is likely any probative value would have been outweighed by the undue consumption of time and prejudicial effect under Evidence Code section 352. Finally, defense counsel effectively cross-examined Detective G. regarding the interrogation and obtained testimony about Silva's statement.
IV
Fresh Complaint Witnesses
Silva next contends the court erred in allowing three people to testify as fresh complaint witnesses. Again, we disagree.
The fresh complaint doctrine allows "proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose—namely, to establish the fact of, and the circumstances surrounding, the victim's disclosure of the assault to others—whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact's determination as to whether the offense occurred. Under such generally applicable evidentiary rules, the timing of a complaint (e.g., whether it was made promptly after the incident or, rather, at a later date) and the circumstances under which it was made (e.g., whether it was volunteered spontaneously or, instead, was made only in response to the inquiry of another person) are not necessarily determinative of the admissibility of evidence of the complaint. Thus, the 'freshness' of a complaint, and the 'volunteered' nature of the complaint, should not be viewed as essential prerequisites to the admissibility of such evidence." (People v. Brown (1994) 8 Cal.4th 746, 749-750.)
Prior to trial, the court stated it would allow testimony from Grandfather regarding Minor's disclosure of Silva's conduct under the fresh complaint doctrine. The court questioned the need for three witnesses and whether it would be cumulative under Evidence Code section 352. The court stated the People could request permission to present testimony from two other witnesses after Grandfather testified.
After hearing evidence from Grandfather and Minor about the evolution of disclosures, the court permitted testimony from Minor's friend under the fresh complaint doctrine. Defense counsel agreed the admission of testimony from Minor's friend was appropriate given the sequence of testimony. The court also allowed testimony from Coworker about the disclosure to him for a limited purpose under the fresh complaint doctrine, in part because the credibility of the witnesses had been attacked.
The court admitted the testimony of these witnesses for the limited purpose of establishing the circumstances surrounding Minor's disclosures. The court did not permit testimony about the details related to these individuals. In this case, Minor disclosed sequentially, over the course of a month to three separate individuals. The fact of the disclosures and the circumstances under which the disclosures were made were relevant for the jury's determination of evaluating whether the offenses occurred and the credibility of the witnesses. Under these circumstances, we conclude there was no abuse of discretion in allowing the testimony under the fresh complaint doctrine or in determining the testimony was not unduly cumulative or prejudicial.
V
Odor Evidence
Silva contends the court abused its discretion in admitting testimony from Coworker regarding Silva's comment about the odor of Minor's vagina because it was more prejudicial than probative because it was so inflammatory. We disagree.
Coworker admitted the context of the statement had to do with Minor's dirty laundry and agreed Silva never stated he was in proximity to Minor's vagina. The comment was probative in that it was an unusual comment for a father to make about his daughter and had some tendency to support Minor's testimony about Silva's sexual interest in her. We conclude the comment was not so uniquely inflammatory so as to evoke an emotional bias against the defendant. (People v. Valdez (2012) 55 Cal.4th 82, 145; People v. Bolin (1998) 18 Cal.4th 297, 320.)
VI
Exclusion of Evidence of Stepmother's False Kidnapping Accusation
Silva next contends the court abused its discretion in precluding the defense from impeaching Stepmother with evidence she had made a false kidnapping accusation. Again, we disagree.
The court sustained an objection to a question about whether Stepmother had made false kidnapping allegations. The court allowed the defense to cross-examine Stepmother about a purported false allegation of sexual abuse she made when she was a teenager. However, the court stated whatever probative value the question about false kidnapping had was outweighed by the undue consumption of time and substantial prejudice.
The record shows the defense vigorously cross-examined and challenged the credibility of all witnesses, including Stepmother. The court allowed examination regarding Stepmother's own false allegations about molestation to undermine Stepmother's credibility and to suggest she may have planted the thought in Minor's mind of making a false claim. However, in what was already a lengthy trial, the court determined introduction of other types of false claims would be unduly time consuming and prejudicial. The court told defense counsel, "You've made your point. You've made it time and again with this witness ad nauseam here. A full and complete picture has been presented to this jury of your thoughts." Evidence Code section 352 "empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." (People v. Wheeler (1992) 4 Cal.4th 284, 296.) There was no abuse of discretion.
The court allowed defense counsel to question Stepmother about a photograph depicting her simulating a sex act with herself in a motor home as a child slept behind her. This evidence was introduced to challenge her assertion that Minor did not see Stepmother and Silva having sex. --------
VII
Silva finally contends the cumulative impact of the rulings he challenges herein denied him a fair trial. Having found no individual error, there can be no cumulative error. (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.)
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J. WE CONCUR: O'ROURKE, J. IRION, J.