People v. West

Full title: THE PEOPLE, Plaintiff and Respondent, v. THOMAS LEE WEST, Defendant and…

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

Date published: Apr 7, 2008

No. E041559 (Cal. Ct. App. Apr. 7, 2008)

Opinion

THE PEOPLE, Plaintiff and Respondent, v. THOMAS LEE WEST, Defendant and Appellant. E041559 California Court of Appeal, Fourth District, Second Division April 7, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge, Super.Ct.No. RIF 117098

Robert E. Boyce, 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, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Garrett Beaumont, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

Gaut, J.

Defendant Thomas Lee West, Jr. appeals from judgment entered following jury convictions for committing lewd acts on B. (counts 1, 3, 4, 5 & 6; Pen. Code, § 288, subd. (a));¹ committing lewd acts on J. (counts 7, 8, 9 & 10; Pen. Code, § 288, subd. (a)); and committing oral copulation on J. by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or another person (count 2; §§ 269, subd. (a)(4), 288a).

1 Unless otherwise noted, all statutory references are to the Penal Code.

The trial court sentenced defendant to a total term of 52 years to life, consisting of an eight-year upper term for count 3; two consecutive 15 years to life terms for counts 1 and 2; and consecutive two-year terms (one-third the mid-term) for each of counts 4 through 10.

Defendant raises numerous contentions. He argues (1) the trial court erred in allowing the prosecution to amend the indictment; (2) the evidence was insufficient to support defendant’s count 2 conviction; (3) the court erred in allowing evidence of defendant’s 1993 guilty plea to child endangerment (§ 273a); (4) the prosecutor committed numerous acts of misconduct; (5) defendant’s trial attorney committed ineffective assistance of council by failing to request redactions of remarks made by the interrogating officer during defendant’s recorded statement; (6) the court erred in allowing evidence of defendant’s prior uncharged sexual offenses; (7) cumulative error requires reversal; (8) the trial court erred in failing to inquire into potential juror bias; and (9) imposition of the upper term on count 3 and consecutive sentencing on counts 2 through 10 violated Cunningham v. California (2007) __ U.S. __, 127 S.Ct. 856, 860 (Cunningham).

We conclude there was no prejudicial error or cumulative error requiring reversal, with the exception of Cunningham sentencing error on count 3.

1. Factual Background

This case concerns defendant’s acts of molesting two boys, J. and B., during the 1996/1997 school year, when the boys were in the 6th grade. Defendant was J.’s 6th grade teacher. Defendant team taught with B.’s father, R., who was also a 6th grade teacher.

J.

J. first met defendant when defendant was his sixth grade teacher. J. was living with his mother, L. and an older brother in Mansfield. J.’s parents were separated.

Since J. could not pay for his 6th grade trip to Catalina Island, defendant offered to pay if J. would help edit the Catalina trip video. After the trip, defendant became friends with J.’s parents and began dating J.’s mother, L.

Defendant first molested J. around the middle of J.’s 6th grade school year, when J. was 11 years old. Defendant had begun dating L. but had not yet moved in with her. While L. was at work, on J.’s day off from school, defendant went over to J.’s house to take him fishing. Defendant told J. he wanted to lay down with J. before going fishing. He then put his hand down J.’s pants and fondled J.’s genitalia. Defendant told J. not to tell anyone about the incident.

After the first molest incident, J. frequently went to defendant’s house after school and defendant routinely lay down with J. on defendant’s bed while kissing him and fondling J.’s penis. Defendant persuaded J. to take off his clothes. Defendant masturbated himself and ejaculated.

J. testified at trial that defendant had sexual relations with J. more than 300 times during the next three years, just about every other night. J. did not disclose the molestation because he feared losing defendant as a father figure. J. also feared that people would think he was gay and he was afraid of what defendant would do if he told. Defendant had a bad temper. When J. did not comply with defendant’s sexual requests, defendant would yell at J. and get physically violent.

On approximately 12 occasions at defendant’s home, defendant showered with J. after the two lay naked together on defendant’s bed. On one occasion defendant told J. he had previously had a foster child named Damion who had died. In actuality, Damion had not died. Defendant later told J. and L. that Damion had accused defendant of molesting Damion and, as a consequence, defendant was convicted of child endangerment in 1992. Defendant claimed Damion was a liar, and told J. that defendant had mafia ties and could have Damion killed. J. feared the same thing could happen to him.

Defendant also told J. he had another foster child, Jason, who had challenged defendant to a fight. Defendant said he put Jason in his place by “clotheslining” him (tying him up).

Defendant continued taking showers with J., stroking J.’s penis, and masturbating himself. Eventually, defendant succeeded in pressuring J. to masturbate defendant.

While J. was still in the 6th grade, defendant moved in with J., L., and J.’s brother. The four moved from Mansfield to another home during the summer of 1997.

During that same summer, defendant first orally copulated J. when the two of them went alone on a trip together to Sequoia National Park. J. was 12 years old. From then on, until J. was in the 8th or 9th grade, almost every other night defendant would masturbate J. and then orally copulate him. On J.’s 13th birthday, at an Anaheim motel, defendant orally copulated J. while J.’s mother and brother slept in another bed in the same room.

When defendant and L. began talking about getting married, J. moved back with his father. He did not want L. to marry defendant but felt he could not tell her why. He also wanted to get away from the molestation. About the same time he moved away, defendant left L.

Defendant then became good friends with J.’s father and over an additional six-month period engaged J. a few more times in mutual masturbation and oral copulation. Defendant bad-mouthed J.’s father. J. moved back with L. after a fight with his father. Defendant then also moved back in with L.

After defendant and L. again separated in 2000, J. first disclosed the molestation to his girlfriend. But, when contacted by police detectives, he denied he was molested because he was afraid of what people would think of him. He also did not want to go through a court proceeding against defendant, and feared defendant would get angry at him and defendant’s family would kill him. A little later, when J. read in the newspaper that defendant had been arrested for molesting someone else, he decided to tell the truth about defendant molesting him, if asked. Shortly thereafter the police contacted him and J. told the police defendant had molested him.

B.

B. was nine or 10 years old when he first met defendant in 1996 or 1997. B., his father, and defendant went on several trips together, including the school Catalina trip. During the Catalina trip, B. overheard J. sobbing in the tent J. shared with defendant. He also heard what sounded like someone being shaken and thrown onto a cot to force the person to comply with something.

When B. was in the 6th grade, B. began spending the night at defendant’s home. B. also started arguing with his father, became uncontrollable, and ran away from home. B.’s mother and father divorced. B.’s relationship with his father deteriorated. Defendant meanwhile told B. he could stay with him and suggested adopting him.

Defendant told B. he had other foster children, including Damion. Defendant said Damion was “a piece of shit” because he had accused defendant of molesting children. If Damion accused him again, defendant said Damion would be killed.

When B. spent the night with defendant, they slept together. Defendant often held B. when B. fell asleep and assured B. he loved him. B. confided in defendant about his deteriorating relationship with his parents. Defendant said B.’s father was a “dip shit” and “dumb ass.”

In 1996, when B. was 11 years old and in the 6th grade, defendant showed B. how to talk with naked people in sexually provocative chat rooms, using a camera hooked up to the computer. On several occasions, defendant told B. to act like a girl on the camera. Then defendant would grab and reveal B.’s penis. Defendant and B. continued to engage in similar chat room conduct after defendant moved in with J. and his mother. J. and his mother were not home at the time. B. testified that J. had shown him a picture on the Internet of J. touching defendant’s erect penis.

Defendant first masturbated B. in defendant’s bed when B. was about 12 years old, while J. was away visiting his father. Defendant masturbated B. three to 10 times when B. was 12. Defendant and B. also engaged in mutual masturbation up to 20 times, beginning when B. was 12 years old, until he was 15. When B. was 12 or 13 years old, defendant penetrated or attempted to penetrate B.

Defendant first had oral sex with B. when B. was 13 years old. The second time occurred while they watched the Blair Witch Project, when B. was 14 years old. This was the last night they spent together.

Defendant told B. that it was okay for kids to experiment sexually with others of the same sex because it got it out of their systems, and if boys did not get homosexual activities out of their systems before they were 20 years old, they would become homosexuals and molesters. Several times, defendant told B. not to tell anyone about their sexual activities.

In 1999, at defendant’s request, B. wrote a letter to the Teacher Credentialing Committee stating that Damion’s molestation accusations were false.

It was not until B. graduated from high school and was living in Orange County that he told anyone about the molestation. After B. told his father, his father contacted the police in August 2003. B. told his father because he was concerned about his younger brothers who were in defendant’s class and spending time with defendant.

At the request of the police, on August 19, 2003, B. made a pretext phone call to defendant. During the call, defendant told B. that if B. told his therapist about their sexual activities, the therapist would have to report it. Defendant also told B. that defendant would go to jail if B. told anyone about the online photos.

Defendant stated during the call that the first night they engaged in inappropriate activities, defendant told B. they should not have been doing them. Then the activities happened a couple more times. Defendant said that it felt like love but it was wrong because defendant was an adult and B. was 14 or 15 at the time. Defendant added that when he first woke up and B. was fondling him, defendant should have told B. to stop. Defendant denied having sex with J. even though he was very close to J. He also denied molesting Damion. Defendant ended the call by telling B. not to tell anyone about their sexual acts or he would go to jail.

Defendant’s Interview and Trial Testimony

The same day as the pretext call, District Attorney Investigator Bruce Moore interviewed defendant at the sheriff’s station. Initially, defendant denied committing any sexual misconduct but, after Moore told defendant he had a recording of B.’s pretext call, defendant apologized for lying. Defendant stated that during the night, B. had awakened him and tried to do some things to defendant that defendant should have stopped. Defendant said he was to blame and would take the punishment. Defendant also admitted being in bed with J. and B. when the boys were 13 years old and defendant had a “wet dream.”

Defendant testified at trial that in 1985, Chase, a student of defendant’s, moved in with him because of problems in Chase’s home. Defendant denied ever touching Chase inappropriately.

In 1986, defendant got a foster license so he could have foster children live with him. Damion moved into defendant’s home as a foster child and lived with defendant from1987 until August 1991. Defendant admitted that Damion slept with defendant. Defendant claimed this was because Damion had nightmares. Defendant denied molesting Damion.

In 1988 or 1989, Jason was placed in defendant’s home as a foster child. Defendant denied molesting him as well. In 1991, after defendant and Damion had an argument, Damion ran away and accused defendant of molesting him. As a consequence, Jason was temporarily removed from defendant. After defendant pled guilty to child endangerment as to Damion, Jason was returned to defendant.

In the fall of 1996, defendant met J. in his 6th grade class. In February 1997, defendant began a sexual relationship with L., and moved in with her and J. Defendant denied ever touching J. sexually. About the time defendant moved in with L., defendant started taking medication for neck pain and became addicted to it. Defendant and L. separated in the summer of 2000.

Defendant met B. when B. was eight years old. In September 1999, B. spent the night at defendant’s house. When defendant was asleep, B. touched defendant’s penis. Defendant became sexually excited and fell back to sleep. When defendant awoke the following morning, B. was lying next to defendant. Defendant denied touching B. Another time when B. spent the night, B. claimed defendant and B. had touched each other. Defendant had taken medication that night and admitted it was possible he may have touched B. Although he did not believe he had ever molested B., defendant admitted he might have because he was on prescription medications. Defendant later denied molesting B.

The school district director of certified services testified he reviewed defendant’s personnel file and found no evidence that defendant disclosed to the school district his child endangerment conviction or that he served 120 days in jail while continuing to teach.

2. Indictment Amendment

Defendant contends the trial court committed reversible error by allowing the prosecution to amend the indictment after presentation of the prosecution’s case in chief. Defendant argues the trial court did not have jurisdiction over the amended offenses because they were not presented to the grand jury or included in the original indictment. Defendant also asserts that by allowing the indictment amendments, the court violated defendant’s constitutional rights to due process and effective assistance of counsel. Furthermore, defendant claims the error is a structural constitutional error requiring automatic reversal. We reject these contentions because J. and B.’s grand jury testimony encompassed the crimes charged in the amended indictment.

In order to conform the indictment charges to the evidence presented at trial, the trial court permitted the following indictment amendments: (1) as to counts 1, 3, 4, 5, and 6, concerning B., the dates of the alleged offenses were changed from “[i]n or about January 1997, through and including December 1997” to “9/17/98 through and including 9/16/99”; and (2) as to counts 9 and 10, concerning J., “[i]n or about January 1996, through and including December 1997” to “2/14/97 through 2/13/98” regarding count 9, and “[i]n or about January 1996, through and including December 1997” to “2/14/98 through and including 2/13/99” regarding count 10. The dates at the end of each new time period were changed to reflect the last day before the victims’ 14th birthdays in order for the offenses to fall within sections 288, subdivision (a) and 288a.

An indictment or information may be amended by the district attorney at any time before defendant pleads, and the court may allow amendment of the accusatory pleading “for any defect or insufficiency, at any stage of the proceedings.” (§ 1009; People v. Burnett (1999) 71 Cal.App.4th 151, 165.) The question of whether the prosecution should be permitted to amend the information is a matter within the sound discretion of the trial court. (People v. Winters (1990) 221 Cal.App.3d 997, 1005.)

An indictment or accusation, however, “. . . cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination.” (§ 1009; People v. Burnett, supra, 71 Cal.App.4th at p. 165; People v. Winters, supra, 221 Cal.App.3d at p. 1007.)

B.

In the present case, B.’s grand jury testimony encompassed the charges alleged in the amended indictment. B. testified during the grand jury proceedings that the first and second instances in which defendant molested him occurred in 1997, when he was 11 or 12 years old and in sixth grade. Those incidents involved defendant molesting B. while using the computer. The next incidents, also involving the computer and lying in bed with defendant, occurred up to a year later, in 1997 or 1998, when B. was 12 or 13, and in 7th grade. There were several more molestation incidents, including a couple incidents of anal intercourse. The last incidents occurred around 2000 and involved oral sex. B. was 14 or 15 years old at the time, which meant the incidents occurred in 1999 or 2000. The very last incident occurred when defendant showed B. the Blair Witch Project and had oral and anal sex with B.

This testimony included molestation committed during the amended time frame of 1998 through 1999. Defendant thus was on notice of molestation charges during this time frame. In turn the trial court did not commit reversible error by granting the prosecution’s motion to amend the indictment to add the period of September 1998 to September 1999, to the time frame during which defendant was charged with molesting B.

J.

During J.’s grand jury testimony, he testified that defendant first molested him in April or May 1997, near the end of sixth grade. The second incident occurred about a month later, at defendant’s apartment. J. was just turning 12 or 13. Defendant molested J. every other night or every three nights, for three years. Defendant molested J. over 200 times. After sixth grade or during a vacation break in seventh grade, defendant took J. to Sequoia for three nights. For the first time, defendant orally copulated J. After this, defendant continued to perform oral sex on J. every other night until J. was in eighth or ninth grade.

There was ample evidence supporting the amended indictment, in which the trial court permitted the prosecution to add allegations that defendant molested J. from February 1997, to February 1999.

In addition, under section 955, “[t]he precise time at which the offense was committed need not be stated in the accusatory pleading, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material ingredient in the offense.” (§ 955; see also People v. Jennings (1991) 53 Cal.3d 334, 358.) There was no violation of defendant’s rights to effective assistance of counsel or due process, nor any structural error infecting the trial process since time is not a material ingredient of the offenses and the grand jury testimony described the offenses charged in the amended indictment. (§§ 269, subd. (a)(4), 288, subd. (a), 288a.) Defendant was sufficiently informed of the nature and cause of the accusation so that defendant had a reasonable opportunity to prepare and present his defense without undue surprise.

3. Sufficiency of Evidence of Force, Fear or Duress

Defendant contends there was insufficient evidence to support his count 2 conviction for committing oral copulation on J. by use of force, fear or duress (§§ 269, subd. (a)(4), 288a). Specifically, defendant argues there was no evidence he used force, fear or duress.

Our review of any claim of insufficiency of the evidence is limited. “In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331; see also People v. Hill (1998) 17 Cal.4th 800, 848-849.)

Given this court’s limited role on appeal, defendant bears an enormous burden in claiming there is insufficient evidence to sustain his molestation convictions. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Applying this standard of review, we conclude the record discloses sufficient evidence to support defendant’s count 2 conviction.

Under section 269, subdivision (a)(4), “[a]ny person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child: [¶] . . . [¶] (4) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a.” (§ 269, subd. (a)(4).) The People asserted at trial that defendant violated paragraph (2) of section 288a, subdivision (c), through the use of force, fear or duress.

Section 288a, subdivision (c)(2) provides that “Any person who commits an act of oral copulation when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person” is guilty of violating 288a, subdivision (c)(2).

“Force,” in the context of sections 288a and 269, means “‘physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.’ [Citation.] A number of cases have held that if the defendant grabs or holds a victim who is trying to pull away, that is the use of physical force above and beyond that needed to accomplish the act. [Citations.]” (People v. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran).)

“Duress,” under sections 288a and 269, means “‘a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.’ [Citations.]” (Cochran, supra, 103 Cal.App.4th at p. 13; italics added.) “‘The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.’ [Citation.]” (Id. at pp. 13-14, quoting People v. Pitmon (1985) 170 Cal.App.3d 38, 51 (Pitmon); see also People v. Cardenas (1994) 21 Cal.App.4th 927, 940.) “Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family.” (Cochran, supra, at p. 14, citing People v. Senior (1992) 3 Cal.App.4th 765, 775, and People v. Schulz (1992) 2 Cal.App.4th 999, 1005.)

Here there was ample evidence defendant used force, fear or duress. Defendant’s size, age, relationship with J., and acts of intimidating, invoking fear, and threatening J. supported a finding that defendant committed oral copulation against J.’s will “by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.” (§ 288a, subd. (c)(2).) When defendant began molesting J., defendant was 6 feet 4 inches tall, weighed over 200 pounds, and was 41 years old. J. was 4 feet 11 inches tall, weighed 90 pounds, was in the sixth grade, and was 11 years old.

In addition, according to J., his relationship with defendant had become very close. Initially, as J.’s sixth grade teacher, defendant befriended J. and his parents. Defendant began dating J.’s mother and moved in with her and J. As J.’s relationship with his father deteriorated, defendant began treating J. like a son, taking him fun places, spending time with him, and assuming an authoritative role over J.

J. said he had trusted defendant “100 percent.” J. continued to comply with defendant’s sexual demands and did not reveal the molestation because J. did not want to lose defendant as a father figure. He also feared defendant. J. said he agreed to masturbate defendant because of “[f]ear of him getting mad, fear of losing that father figure that I had, no matter how horrible it seemed.” When J. told defendant he did not want to comply, defendant would make J. feel guilty by becoming angry with J., yelling at him, and not taking him places. When J. complied with defendant’s demands, their relationship improved and defendant would take J. places again.

J. testified that defendant intimidated and scared him because of defendant’s size and temper. When defendant lost his temper, “he was pretty over bearing and scary, especially for a young kid.” J. stated that “he often resorted to grabbing you and holding you down and pinning you down so you couldn’t – you couldn’t talk or couldn’t – couldn’t do anything to respond to him.”

Defendant told J. many times that he was angry at Damion for accusing him of molestation. Defendant often told J. he had ties to the Italian Mafia and, if defendant ever wanted to, he could have Damion killed “execution style,” and no one would know who killed him. When defendant told J. this, J. was scared because J. believed that if he ever reported that defendant was molesting him, J. would be killed. Defendant also told J. he had “clotheslined” Jason and “put him in his place” when Jason had challenged defendant to a fight.

Many times defendant used physical force when disciplining J. J. testified that a few times when defendant was mad at him, defendant grabbed J. by the chest or shoulders and held him down or pinned him up against the wall. One or two times defendant “smacked” J. in the face when J. was arguing with defendant.

Defendant was also verbally abusive to J. Many times defendant belittled J. in front of friends, family, and fellow students at school. Defendant caused J. to cry at school quite a few times. B. testified that during the Catalina trip, he saw defendant slap, push and punch J. He also called J. names.

Although defendant never said he would hurt J., J. always feared he would if defendant got angry at him, because whenever defendant had been mad at J., he always used force. There were many instances in which J. got tired masturbating defendant. When J. told defendant he was tired and did not want to continue, defendant would get very angry, yell at J., and tell J. that J. did not love him. J. testified that defendant forced him to continue masturbating him. If J. got tired and persisted in saying he did not want to do it, defendant would grab J.’s hand and use it to continue masturbating him. Defendant used fear and guilt to intimidate and coerce J. into complying with defendant’s sexual demands.

The first time defendant orally copulated J., J. finally gave in because in the past, when J. had said no, defendant would then get angry at J. for everything he said and did and would yell at J.

Citing People v. Hecker (1990) 219 Cal.App.3d 1238 (Hecker) and People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza), defendant argues there was no evidence of duress because defendant did not threaten J. when he orally copulated J. Hecker and Espinoza are distinguishable. Here, there is overwhelming evidence defendant used implied threats of force, violence, danger and retribution to coerce J. into engaging in oral copulation. J. testified he feared defendant and was afraid to refuse to engage in sexual activities with him because of defendant’s temper, size, past acts of violence against J., and representations that he had harmed other boys who had challenged him or reported that defendant had molested them.

In Cochran, supra, 103 Cal.App.4th 8, in which the court found the language in Hecker defining “duress” as “overly broad,” the court stated: “The very nature of duress is psychological coercion.” (Id. at p. 15.) Likewise, in People v. Schulz, supra, 2 Cal.App.4th at p. 1005, the court explained: “[D]uress involves psychological coercion. [Citation.] Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. [Citations.] ‘Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant and his continuous exploitation of the victim’ [are] relevant to the existence of duress.” (Schulz, supra, at p. 1005.)

Here, there was evidence that defendant’s 300 or more instances of orally copulating J. were accompanied by continually invoking fear in J. through implied threats of physical and psychological abuse. There was also ample evidence supporting a finding that J.’s fear was well-founded and that defendant intended to invoke this fear as a means of molesting J.

Viewing the evidence in its totality and assuming the trier of fact resolved all conflicting inferences in favor of the prosecution (People v. Johnson (1980) 26 Cal.3d 557, 576), we conclude there was sufficient evidence to support defendant’s count 2 conviction for oral copulation against J. by use of force, fear and duress.

4. Defendant’s 1993 Guilty Plea

Defendant contends the trial court erred in allowing the prosecution to introduce into evidence defendant’s 1993 guilty plea to child endangerment of Damion. (§ 273a.)

At trial, defendant objected to evidence of his guilty plea, asserting that his misdemeanor conviction was inadmissible under People v. West (1970) 3 Cal.3d 595, 604 (West). Defendant also objected, citing Evidence Code sections 1101, subdivision (a) and 352, and the Due Process Clause of the United States Constitution.

The trial court overruled defendant’s objections on the ground the evidence was admissible as part and parcel of proof of defendant’s prior sexual misconduct against Damion under Evidence Code section 1108. In the jury’s presence, the court took judicial notice that “on September the 16th, 1993, the defendant entered a plea of guilty to a violation of [section] 273a(2), misdemeanor child endangerment involving Damion M.”

Defendant acknowledges in his appellate reply brief that under People v. Wesson (2006) 138 Cal.App.4th 959, 968, and Evidence Code section 452.5, subdivision (b), evidence of a misdemeanor conviction is admissible if used to impeach a witness’s credibility. Relying on West, supra, 3 Cal.3d at page 604, defendant argues, however, that the conviction was introduced pursuant to Evidence Code section 1108 to prove sexual conduct and such evidence should have been excluded as unduly prejudicial under Evidence Code section 352.

There was no abuse of discretion or due process violation in taking judicial notice of defendant’s 1993 guilty plea because the conviction arose from defendant’s sexual misconduct with Damion, which Damion described in detail during his trial testimony. The jury could have reasonably inferred that defendant’s sexual misconduct involving Damion was the basis of the 1993 guilty plea. Evidence of defendant’s prior sexual misconduct involving Damion, including his misdemeanor conviction, was admissible under Evidence Code section 1108 and the conviction was not more prejudicial than probative under Evidence Code section 352 since Damion testified in detail to the misconduct upon which the conviction was based.

5. Prosecutorial Misconduct

Defendant contends the prosecutor committed the following misconduct: (1) The prosecutor urged the jury to convict defendant of uncharged offenses, (2) the prosecutor, in bad faith, asked defense witness Chris Caruso if he had sex with defendant, and speculated that Caruso was a likely victim, (3) the prosecutor asked defense character witnesses if their opinions would change if they had learned of defendant’s charged and uncharged offenses, and (4) the prosecutor improperly vouched for the prosecution’s witnesses. Defendant additionally asserts that his trial attorney was ineffective in failing to object to this misconduct.

A. Applicable Law

In order to prove misconduct, defendant must establish that the prosecution’s behavior at trial was below the standard of behavior for prosecutors. Prosecutors are generally given wide latitude in arguing a case, and “‘“‘[a] prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.]”’” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’” [Citation.]’ [Citations.]” (People v. Hill, supra, 17 Cal.4th at p. 819.) The prosecution may generally be given wide latitude in argument, so long as the argument “‘“‘amounts to fair comment on the evidence, . . .’”’” (Ibid.) Prosecutors also have “‘“broad discretion to state [their] views as to what the evidence shows . . . .”’” (People v. Welch (1999) 20 Cal.4th 701, 752.) However, prosecutors are held to a high standard at trial “because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. [Citation.]” (Hill, supra, at p. 820.)

If prosecutors overstep the latitude given them, they are guilty of misconduct. For misconduct to cause a case to be overturned on review, it must have been prejudicial. In order for misconduct by the prosecutor to be prejudicial under the federal standard, it must “‘“so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.”’ [Citations.] Under state law, a prosecutor who uses deceptive or reprehensible methods to persuade either the court or the jury has committed misconduct, even if the action does not render the trial fundamentally unfair. [Citations.] [¶] Nevertheless, as a general rule, to preserve a claim of prosecutorial misconduct, the defense must make a timely objection and request an admonition to cure any harm.” (People v. Frye (1998) 18 Cal.4th 894, 969.) However, an objection need not be made if an admonition would not have cured the harm caused by the misconduct. (People v. Bradford (1997) 15 Cal.4th 1229, 1333.)

B. Urging the Jury to Convict Defendant for Uncharged Offenses

Defendant contends that during closing argument the prosecutor committed misconduct by appealing to the jurors’ emotions and suggesting that the jury protect children and punish defendant for his prior uncharged offenses. Defendant complains that the prosecutor used defendant’s misdemeanor child endangerment conviction and evidence that defendant had committed uncharged sexual abuse of other victims to suggest that defendant had not been adequately punished in the past for molesting young boys.

During closing argument, the prosecutor stated that the jury could use the uncharged misconduct “to show his intent, his motive, his plan. Because what he started doing back in 1985 didn’t end until at least 2002 with his last attempt with Daniel. This man has a history of getting away with this. Even with two prior police reports. It’s unbelievable how long he went. Unbelievable. [¶] And two of our kids did come forward. And the system failed them. And he still got to teach. While he did his 120 days weekends – doing time on the weekends, he got to go to our schools and teach our children. And kept it a secret from the system.”

The prosecutor also noted that, when Chase reported he was molested in 1988, “we failed him. Nothing happened. And, unfortunately, this was a very horrible thing that allowed Damion to be molested, from 1987 until 1991. Five years. That young man probably got it the worst. That young man was the defendant’s wife. He was placed with the defendant at a young 10 years old.”

Defendant also complains that the prosecutor stated that when Damion ran away, “what happened? Not much. This defendant got to admit to a misdemeanor child endangerment charge. Big whoop! Some probation time and 120 days on the weekend. [¶] And he kept it a secret. And he got to continue to teach and continue to foster and continue to molest.” During rebuttal, the prosecutor added, “Over 20 years of abuse, you would expect to have at least one report of abuse. That is exactly what I heard in the closing argument. You got two reports. 1988 and 1991. We failed. The State of California failed.”

First, we note that any prosecutorial misconduct must be prejudicial for the case to be overturned. (People v. Frye, supra, 18 Cal.4th at p. 969.) The misconduct also must have been objected to in order to be considered on appeal, unless the misconduct was so prejudicial that it could not have been cured by an admonition at trial. (People v. Bradford, supra, 15 Cal.4th at p. 1333.)

Here, defendant forfeited his objection because he failed to raise it in the lower court. (People v. Bradford, supra, 15 Cal.4th at p. 1333; People v. Huggins (2006) 38 Cal.4th 175, 205.) Had defendant objected, the court could have admonished the jury not to be swayed by emotion and not to convict defendant based solely on evidence that defendant committed prior uncharged misconduct.

Furthermore, even if the prosecutor’s statements constituted misconduct, it was not sufficiently prejudicial to require reversal. (People v. Frye, supra, 18 Cal.4th at p. 969; People v. Bradford, supra, 15 Cal.4th at p. 1333.) The court appropriately instructed the jury on the use of evidence of prior uncharged conduct; the need to find each element of the charged crime beyond a reasonable doubt in order to convict; and not to be influenced by mere sentiment, sympathy, or passion. It is presumed the jury properly followed the court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852; People v. Bonin (1988) 46 Cal.3d 659, 699, overruled on other grounds in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1; People v. Billings (1981) 124 Cal.App.3d 422, 428, disapproved on other grounds in People v. Karis (1988) 46 Cal.3d 612, 642, fn. 22.)

Furthermore, the prosecutor argued to the jury that she had proven the charged crimes beyond a reasonable doubt, and explained to the jury that to find defendant guilty, the jury must find she proved the charged crimes beyond a reasonable doubt. In addition, evidence of defendant’s guilt was overwhelming.

C. Improper Questioning of Caruso and Speculative Inferences

Defendant contends the prosecutor committed misconduct by asking defense witness, Chris Caruso, during cross-examination if Caruso had had sex with defendant. Defendant claims the prosecutor compounded this error by stating during closing argument facts not in evidence: “He too [Caruso] is probably a victim.”

Citing People v. Mooc (2001) 26 Cal.4th 1216, defendant argues “‘“It was improper to ask questions which clearly suggested the existence of facts which would have been harmful to defendant, in the absence of a good faith belief by the prosecutor that the questions would be answered in the affirmative, or with a belief on his part that the facts could be proved, and a purpose to prove them, if their existence should be denied.”’” (Mooc, supra, at p. 1233, quoting People v. Perez (1962) 58 Cal.2d 229, 241 and People v. Lo Cigno (1961) 193 Cal.App.2d 360, 388.) Caruso testified on direct examination that he had lived with defendant for 15 years, since Caruso was 13 or 14 years old. Caruso claimed defendant had never touched Caruso inappropriately. While living with defendant, Caruso also had never seen defendant touch any of the boys who had lived with defendant in an inappropriate manner.

Again, we note misconduct must have been objected to in order to be considered on appeal, unless the misconduct was so prejudicial that it could not have been cured by an admonition at trial. (People v. Bradford, supra, 15 Cal.4th at p. 1333.) Here, defendant did not object to either of the statements concerning Caruso, and such statements were not so prejudicial that they could not have been cured by an admonition at trial. (Ibid.)

Even if defendant did not forfeit his objections, the prosecutor’s questions and argument as to Caruso were proper. The prosecutor had a good faith basis for asking Caruso if he had had sex with defendant, and arguing that Caruso probably was also a victim. The prosecutor’s inquiry as to whether Caruso had had sex with defendant was asked in the context of cross-examining Caruso concerning whether defendant had molested him while living with defendant as a teen. Howard Lyon, who was friends with defendant and had lived with defendant from 1984 to 1989, had testified that, after defendant took Damion in as a foster child, Caruso, who was between 14 and 16 years old, had arguments with Damion and another young foster boy living with defendant over who would sleep with defendant. Lyon further stated that Caruso had the closest relationship with defendant and Caruso had been adamant about sleeping with defendant. The prosecutor’s question as to whether defendant had sex with Caruso was well founded and proper.

As to the prosecutor’s comment during closing argument that Caruso was probably also a sexual abuse victim of defendant, there was ample evidence to support this. Such an inference was relevant to Caruso’s credibility as a defense witness and under Evidence Code section 1108, as to defendant’s prior uncharged acts of sexual misconduct.

Additionally, such statements concerning Caruso were not sufficiently prejudicial to require reversal. (People v. Frye, supra, 18 Cal.4th at p. 969; People v. Bradford, supra, 15 Cal.4th at p. 1333.)

D. Asking If Character Witnesses Would Change Their Opinions If Aware of Defendant’s Misconduct

Defendant contends the prosecutor committed misconduct by asking defense character witnesses, Kevin Kirschner, Caruso, Thomas West, Sr. (defendant’s father), and Kenneth Allen if their opinions would change if they had learned of defendant’s charged and uncharged offenses.

(1) Examination by Prosecutor Challenged on Appeal

The following is a summary of the prosecutor’s questioning of defendant’s character witnesses which defendant argues constitutes improper, prejudicial misconduct requiring reversal.

(a) Cross-Examination of Kirschner

On cross-examination, the prosecutor asked Kevin Kirschner, who was one of defendant’s foster sons living with him in 1985, whether knowing that Chase, Damion, and Jason each slept in bed with defendant would have any bearing on Kirschner’s opinion that defendant was not attracted to boys. As to Chase, Kirschner responded over defendant’s objection that it would “[i]f it was proven to be true.” When asked this question regarding Damion and Jason, there was no objection and Kirschner responded that he would have to know what the circumstances were.

The prosecutor further asked Kirschner if he learned that J., B., and Daniel slept in the same bed with defendant, and that each boy testified this had occurred and that sexual conduct occurred, would this affect Kirschner’s opinion that defendant was not attracted to boys? Defendant did not object and Kirschner responded that it would not alter his opinion because he knew defendant. Kirschner also stated that he would have to know what the circumstances were and would have to know it was true. As to Damion and Jason there was no objection to the same question, and Kirschner responded that he would have to know what the circumstances were.

Defendant later objected to the prosecutor’s question as to whether Kirschner’s opinion that defendant was not attracted to boys would be affected if he learned that each of the boys mentioned they had slept in the same bed with defendant, and that each of the boys testified they had. Over defendant’s objection, Kirschner stated that he would have to be certain as to the truth of the allegations. If he was certain the allegations were true, it would change his opinion.

Defendant also contends the prosecutor committed misconduct by asking Kirschner whether his opinion as to defendant’s honesty would change if he learned that defendant was not “exactly accurate” and that defendant had not reported the molestation charges to the Teacher Credentialing Committee. Kirschner said it would change his opinion “[t]o a degree” and “[s]omewhat.”

Defendant complains that the prosecutor asked if Kirschner’s opinion regarding defendant’s propensity to become angry and violent would change if he knew defendant’s roommate described defendant as violent. Kirschner responded that he would have to know the person was telling the truth.

Finally, defendant complains that the prosecutor asked Kirschner, over defendant’s objection, whether his opinion would change if he heard evidence during the trial in which defendant admitted to having sex with the boys. In response, Kirschner said it would.

(b) Cross-Examination of Caruso

Defendant challenges the prosecutor’s similar cross-examination of Caruso. Caruso testified he did not believe defendant would molest anyone. Over defendant’s objections, the prosecutor asked Caruso if his opinion would change if Caruso listened to a tape recorded phone call in which defendant admitted having a sexual relationship with B. The prosecutor also asked Caruso if he would listen to the tape to see if it would change his opinion. The court overruled defendant’s objection. When Caruso responded by asking if he needed to listen to the tape, the court responded that Evidence Code section 352 applied and told the prosecutor to move on. When the prosecutor asked the court to allow her to play the tape, defense counsel again objected on the grounds of “improper questioning in the area of character” and prejudice. Under Evidence Code section 352, the trial court sustained defendant’s objection to playing the tape of the phone call, since the prosecutor had already impeached the witness.

The prosecutor then told Caruso she was not going to play the tape but asked if he even wanted to hear it. The court overruled defendant’s objection, and Caruso stated he did not want to hear the tape.

(c) Cross-Examination of Thomas West, Sr.

Defendant claims the prosecutor committed misconduct during the following questioning of Thomas West, Sr., defendant’s father (Mr. West). Mr. West testified he believed defendant would not molest children. The prosecutor asked Mr. West if his opinion would change if Daniel said defendant had molested him or that defendant had taken showers and slept every night with 11- to 14-year-old boys. Mr. West said his opinion would not change. The prosecutor asked Mr. West, over defendant’s objections, if his opinion would change if he listened to a taped admission by defendant admitting he had sexual relations with B. Over defendant’s objection, Mr. West said “[h]ypothetically, it could.”

(d) Cross-Examination of Kenneth Allen

Kenneth Allen lived with defendant from February 2001 to June 2003. Defendant and Allen taught at the same school and were friends. While Allen was living with defendant, J. spent the night at their apartment. Allen testified that defendant was very good with children. When asked if defendant was the type of person who would molest children, Allen stated he could not say because he had not been around defendant recently. But prior to the current allegations against defendant, Allen’s opinion would have been that he would not molest children since Allen tended to believe people were innocent until proven guilty.

Defendant objects to the prosecutor’s cross-examination of Allen in which the prosecutor asked Allen if he would change his opinion that defendant would not molest boys, if there was a tape recording of defendant admitting he had a sexual relationship with B. and told B. not to report it to the police. Allen said his opinion would change.

(2) Discussion

The prosecutor argued during closing argument that all of defendant’s witnesses, except Caruso, said they would change their opinions as to defendant’s character if they had known the information presented to them during cross-examination. The prosecutor further claimed defense counsel had allowed them to testify as uninformed witnesses by not informing them of such information.

Defendant argues that the above-summarized examination by the prosecutor constituted misconduct because the prosecutor asked defendant’s character witnesses whether their opinions would change if they were provided with certain evidence in the case or if they assumed hypothetical facts similar to the facts of the charged and uncharged offenses. Defendant asserts that the court should have restricted the prosecutor’s cross-examination to testing the sufficiency of the foundation for the witnesses’ direct testimony, and should not have permitted questioning them on whether their opinions would change if they had additional information.

The People argue defendant forfeited his objections to the prosecutor’s cross-examination by not raising specific, appropriate objections in the trial court. The record indicates that on most occasions defense counsel did object. Also, on several occasions defendant did not object to additional questions after the court had already overruled defense counsel’s objections to similar questions. In most instances, defendant thus did not forfeit his objections.

Furthermore, regardless of whether defendant forfeited his objections, we conclude on the merits they have no merit. The prosecutor was entitled to cross-examine defendant’s character witnesses concerning their knowledge of defendant’s misconduct to determine their credibility, as well as the basis and validity of their opinions. (People v. Clair (1992) 2 Cal.4th 629, 682-683; People v. Lopez (2005) 129 Cal.App.4th 1508, 1528; People v. Hempstead (1983) 148 Cal.App.4th 949, 954.)

Defendant’s character witnesses testified to defendant’s good reputation and their belief he would not molest young boys. Under such circumstances, “the prosecutor is entitled to ask in good faith if the witness has heard of misconduct by the defendant. [Citations.] . . . [¶] . . . When a witness offers an opinion of a defendant’s good character, it is often based on personal knowledge as well as reputation. [Citation.] This opens the door for the prosecutor to offer rebuttal evidence of defendant’s character. (Evid. Code, § 1102, subd. (b).) Character evidence includes opinions, reputation, and specific instances of the person’s conduct. (Evid. Code, § 1100.) The prosecutor can test the witness’s opinion by asking about his or her knowledge of the defendant’s misconduct [citation], even if the witness professes ignorance.” (People v. Lopez, supra, 129 Cal.App.4th at p. 1528, citing People v. Clair, supra, 2 Cal.4th at pp. 682-683, and People v. Hempstead, supra, 148 Cal.App.3d at p. 954.)

Such cross-examination is, however, subject to the trial court’s determination as to whether the cross-examination is unduly prejudicial under Evidence Code section 352: “Courts . . . have imposed safeguards to cross-examination of defense reputation witnesses, to prevent prosecutorial abuse of this rule. . . . [T]he trial court must exercise its discretion to prevent cross-examination of defense reputation witnesses ‘based upon mere fantasy’ by first ascertaining outside the presence of the jury that the subject of cross-examination was an event that actually occurred.” (People v. Hempstead, supra, 148 Cal.App.3d at p. 953.)

Accordingly, when “a witness is called to express an opinion as to the good character of the defendant, the prosecution must have the opportunity to let the jury test the validity of the opinion or the weight to be given to it by asking whether the holder of the opinion has knowledge of events or acts which have indisputably occurred. If allowing these questions and answers would create a substantial danger of undue prejudice to the defendant, the trial judge has the discretion to preclude them under Evidence Code section 352.” (People v. Hempstead, supra, 148 Cal.App.3d at p. 954; see also People v. Clair, supra, 2 Cal.4th at pp. 683-685.)

Here, the trial court, in a few instances sustained defendant’s objections to the testimony under Evidence Code section 352, but for the most part overruled defendant’s objections. Such evidentiary rulings allowing the cross-examination were not an abuse of discretion since the cross-examination related directly to the charges and evidence presented and was not unduly prejudicial since the cross-examination was founded on evidence that had already been presented.

In addition, the trial court instructed the jury that questions, asking defendant’s character witnesses if they had heard that defendant had engaged in certain conduct, were not evidence, and only the witnesses’ answers could be considered in evaluating the weight to be given to the character witnesses’ opinion testimony. (Judicial Council of Cal., Crim. Jury Instns. (2007-2008), CALCRIM No. 351.)

Furthermore, if there was any prosecutorial misconduct due to the prosecutor, it was harmless and does not require reversal since it did not infect the trial with unfairness to such an extent as to violate defendant’s due process rights. (People v. Neal (1948) 85 Cal.App.2d 765, 771.) Nor did the prosecutor use deceptive or reprehensible methods to persuade the jury. (People v. Frye, supra, 18 Cal.4th at p. 969.) Also, it is not reasonably probable that the outcome would have been any different had the cross-examination in question not occurred. (People v. Watson (1956) 46 Cal.2d 818, 835-836.)

E. Vouching for Prosecution Witnesses

Defendant complains that the prosecutor improperly vouched for the credibility of the prosecution witnesses by stating: “As far as the prosecution’s witnesses, I put forward to you that not one witness up on that stand on behalf of the prosecution misled you, lied.”

We agree this statement was improper. The prosecution is prohibited from vouching for witnesses, “or otherwise bolstering the veracity of their testimony . . . .” (People v. Frye, supra, 18 Cal.4th at p. 971.) However, once again we note that the misconduct by the prosecutor must be prejudicial for the case to be overturned. (Id. at p. 969.) The misconduct also must have been objected to in order to be considered on appeal, unless the misconduct was so prejudicial that it could not have been cured by an admonition at trial. (People v. Bradford, supra, 15 Cal.4th at p. 1333.)

The prosecutor committed misconduct by vouching for the prosecution’s witnesses, claiming none of them lied or misled the jury. The prosecutor was acting as the representative of the government, and in vouching for the witnesses she essentially put the backing of the government behind the witnesses’ honesty. (People v. Frye, supra, 18 Cal.4th at p. 971.) Such testimony, “‘although worthless as a matter of law, can be “dynamite” to the jury because of the special regard the jury has for the prosecutor, . . .’” (People v. Bolton (1979) 23 Cal.3d 208, 213.) The jury could have had their belief in the credibility of the prosecution witnesses bolstered by the misconduct of the prosecutor.

Although the prosecutor committed misconduct, we cannot say that such misconduct prejudiced defendant. There is no evidence in the record to indicate that defendant’s due process rights were impugned. (People v. Bell (1989) 49 Cal.3d 502, 534.) Evidence of defendant’s guilt was overwhelming. The victims of the charged offenses testified defendant repeatedly molested them, and numerous other witnesses testified defendant molested them as well. There was also a taped police interview, during which defendant admitted sexual conduct with B., as well as a recorded pretext telephone call, in which defendant told B. not to tell anyone about the molestation and essentially acknowledged he had molested B. It was reasonable for the jury to conclude from the totality of the evidence, and not from the prosecutor’s improper comment that defendant was guilty of the charged molestation offenses.

Although we find that the prosecutor’s statement regarding the honesty of the prosecution witnesses improper, we cannot say that it was prejudicial error requiring reversal.

F. Ineffective Assistance of Counsel

Defendant asserts that his trial attorney’s failure to object to the prosecutorial misconduct raised in this appeal constituted ineffective assistance of counsel (IAC) requiring reversal of his convictions. We disagree because, as discussed above, in most instances there was no prosecutorial misconduct and, even if there was, it was not sufficiently prejudicial.

The Sixth Amendment to the United States Constitution provides that defendants will be given counsel for their defense. The Supreme Court defined the level of adequate counsel to be “that of reasonably effective assistance.” (Strickland v. Washington (1984) 466 U.S. 668, 687.) In order to demonstrate defense counsel has fallen below this level of effective assistance, it must be established that: one, counsel was deficient; and two, the deficient performance of counsel caused the defendant prejudice. (Ibid.) Prejudice is demonstrated when “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Id. at p. 694; see also People v. Burgener (2003) 29 Cal.4th 833, 880.)

As stated by the Supreme Court in Strickland, the standard of an attorney’s performance is highly subjective and dependent on the facts of a case. (Strickland v. Washington, supra, 466 U.S. at p. 689.) The decision on whether to object to the misconduct rested solely within the discretion of defendant’ counsel in this case. It is not obvious from the trial record as to why defense counsel chose not to object, but the decision could be seen as a matter of strategy. “He could reasonably have determined that the risks of raising the objection and offending or annoying the jury outweighed whatever benefit might have been obtained from prosecutorial remarks that were little likely to prejudice his client.” (People v. Welch, supra, 20 Cal.4th at p. 754.) Defense counsel also could have determined that further objection was futile. In order for a request to be seen as futile, the trial court must have been so biased against defendant “as evidenced by prior rulings,” that any objection would have been seen as pointless. (People v. Boyette (2002) 29 Cal.4th 381, 432.)

We also cannot say that counsel’s failure to object prejudiced defendant’s case. Here, there is no indication in the record that counsel’s failure to object resulted in defendant being prejudiced. As stated previously, the evidence against defendant was overwhelming. Even if defense counsel had objected, we cannot say that “the result of the proceeding would have been more favorable to the defendant. [Citation.]” (People v. Burgener, supra, 29 Cal.4th at p. 880.)

6. Redaction of Defendant’s Taped Interview

Defendant contends his trial attorney committed IAC by failing to request redaction of certain statements by Detective Moore made during defendant’s transcribed video-taped police interview. After transcripts of the videotape were provided to the jury, the videotape was shown to the jury.

Defendant asserts that his trial attorney should have requested redaction of Moore’s following comments made during the interview: (1) Defendant was a preferential child molester; (2) Moore had expertise in molestation and had learned that substance abuse, some sort of stressor, and low self-esteem lead preferential molesters to focus on children who will not reject them; (3) Moore knew, based on defendant’s tape recorded conversation with B., that defendant molested him, as well as Damion; and (4) defendant’s denial that any of the molestation occurred “would be a lie.”

Defendant argues that these statements and opinions were tantamount to improper, prejudicial testimony by Moore that defendant was guilty of the charged offenses. Defendant thus asserts his trial attorney’s failure to request redaction of the statements constituted IAC because a non-percipient witness may not express opinions regarding defendant’s guilt, the veracity of child sexual assault victims, or the credibility of witnesses.

We reject this IAC contention. There was a plausible tactical reason for defendant’s attorney not requesting redaction. It was unlikely such a request would be granted since the statements were not made by a trial witness. They were made out of court during a police interrogation and were part of an interrogation tactic used to extract a confession from defendant.

Furthermore, there was no prejudice. Prejudice is demonstrated when “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington, supra, 466 U.S. at p. 694.) Even if Moore’s statements in question were redacted, the trial outcome would not have been any different. Defendant admitted several times during the recorded interview that he initially lied to Moore during the interview and admitted, contrary to what he initially told Moore, that he had had sexual contact with B. and J. It is also unlikely the jury would give much credence to Moore’s statements since it was apparent Moore made the remarks as a tactic to persuade defendant to tell the truth and confess his crimes.

7. Admission of Uncharged Sexual Offenses

Defendant contends the trial court violated defendant’s federal and state due process and fair trial rights, and committed prejudicial error in allowing the prosecution to introduce evidence of defendant’s uncharged sexual offenses pursuant to Evidence Code sections 1108 and 1101, subdivision (b). The uncharged sexual offenses included sexual misconduct by defendant against Chase, Damion, Jason, and Daniel.

Over defendant’s due process objection and objection to the evidence under Evidence Code sections 1108 and 1101, the trial court permitted evidence of the prior uncharged offenses on the grounds the evidence was highly relevant and more probative than prejudicial because it showed defendant had a consistent pattern of abnormal sexual interest in boys, beginning in 1988 and continuing up to the time of the charged offenses in 1997. The court noted the evidence was not any more inflammatory than the conduct alleged and therefore the highly probative value of the evidence outweighed any prejudicial effect.

Defendant acknowledges on appeal that under People v. Falsetta (1999) 21 Cal.4th 903, 917-918 (Falsetta), his due process challenge to Evidence Code section 1108 lacks merit. Nevertheless, defendant asserts the argument for purposes of issue preservation. We thus reject defendant’s due process challenge to Evidence Code section 1108 in accordance with Falsetta. In Falsetta, the California Supreme Court rejected the due process challenge to use of uncharged sex crimes as propensity evidence under Evidence Code section 1108. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.) We likewise reject defendant’s contention he was deprived of a fair trial.

We also reject defendant’s contention that the evidence of defendant’s uncharged sexual offenses should have been excluded under Evidence Code section 352 as more prejudicial than probative. Defendant argues there was substantial danger the evidence would result in undue consumption of time and confuse the jury by suggesting defendant escaped punishment for the uncharged offenses.

Evidence Code section 1108 provides for admission of evidence of sexual offenses so long as such evidence is not subject to exclusion pursuant to section 352. Under Evidence Code section 352, the trial court has discretion to exclude evidence “‘. . . if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ The trial court’s exercise of discretion in admitting evidence under Evidence Code section 352 will not be disturbed unless the court acted in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]” (People v. Yovanov (1999) 69 Cal.App.4th 392, 406.) The prejudice which exclusion of evidence under section 352 is designed to avoid is not the prejudice “to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.’” (People v. Karis, supra, 46 Cal.3d at p. 638.) In concluding whether to admit or exclude prior crimes evidence under section 352, the trial court need not expressly weigh prejudice against probative value; all that is required is that the record demonstrate that the trial court understood its responsibilities and fulfilled them under section 352. (People v. Jennings, supra, 81 Cal.App.4th at p. 1315.)

Here, the trial court understood its duty under Evidence Code section 352 and expressly found that Evidence Code section 1108 applied, that the prior acts of sexual misconduct were relevant, and that the probative value was substantially outweighed by its prejudicial effect. We agree with these findings. There is no question that the prior incidents of sexual misconduct were relevant. The evidence was admissible not only to show defendant’s disposition to commit the charged offenses but also to show his motive, opportunity, intent, plan, preparation, knowledge, and absence of mistake or accident in committing the charged crimes. (Evid. Code, § 1101, subd. (b).)

We reject defendant’s contention that the evidence was unduly prejudicial because it was likely to inflame the jury. Defendant fails to show how admission of the challenged evidence inflamed the jury any more than the evidence of the charged sexual offenses against B. and J.

We also reject defendant’s contention that the evidence would result in the jury convicting defendant based on the desire to punish defendant for his uncharged sexual misconduct. The court instructed the jury that unless the prosecution has proven each element of the charged offenses beyond a reasonable doubt, the jury cannot find the defendant guilty. (CALCRIM No. 220.) The court also instructed the jury that it could use evidence of prior uncharged offenses as only one factor along with all the other evidence in determining whether defendant was guilty of the charged offenses. “It is not sufficient by itself to prove that the defendant is guilty of the charged offenses. The People must still prove each element of every charge beyond a reasonable doubt.” (CALCRIM No. 1191.) It is presumed the jury properly followed the court’s instructions. (People v. Sanchez, supra, 26 Cal.4th 834, 852; People v. Bonin, supra, 46 Cal.3d at p. 699, overruled on other grounds in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1; People v. Billings, supra, 124 Cal.App.3d at p. 428, disapproved on other grounds in People v. Karis, supra, 46 Cal.3d at p. 642, fn. 22.)

Moreover, the consumption of trial time in presenting the evidence of the prior uncharged offenses was not unreasonable under the circumstances. The prior incidents were highly relevant; not remote in time; similar to the charged offenses; and unlikely to confuse, mislead, inflame, or distract the jury. (Falsetta, supra, 21 Cal.4th at pp. 916-917.) We thus conclude the trial court did not abuse its discretion in admitting evidence of defendant’s prior sexual conduct under Evidence Code sections 1101, subdivision (b), 1108 and 352.

8. Juror Bias

Defendant complains of two incidents which he claims indicate prejudicial juror bias requiring a new trial. First, during closing argument, Juror No. 7 assisted the prosecutor during closing argument as follows:

“[Prosecutor, Ms. Paradise:] It’s like pro-active effort. What do you call it? Psychological manipulation? There’s another word for it. . . .

“JUROR NO. 7: Reverse psychology.

“MS. PARADISE: Yes, reverse psychology. [¶] What defendants do a lot of times. . . .”

Second, defendant complains that the trial court failed to inquire concerning the jury’s concern that defendant’s witness, Chris Caruso, appeared to be taking down jurors’ personal information on his laptop computer during voir dire. On August 1, 2006, after the jury indicated it had reached verdicts but before announcing them, the jury foreperson sent a note to the court stating, “The entire jury has concerns of possible personal information taken\written by witness Chris Carusco [sic] on his lap top computer. This was witnessed by several jurors during juror selection on 7-17-06.”

Upon receiving the note, the court did not respond to it, other than telling the jury after receiving the verdicts, and right before dismissing the jury: “I would like to address one issue concerning confidentiality. As far as juror information is concerned, it is kept confidential with the court. And information cannot be released unless I order it. And in the last 20 years I have been a judge, I have never ordered any information released on any juror. [¶] If a transcript is made of this case, then all of your names are stricken and you are referred to by number to maintain your confidentiality.” The court then dismissed the jury.

Defendant argues the note established jury misconduct and potential juror bias since one or more jurors concealed that they felt threatened by Caruso taking down jurors’ personal information. The note also indicated the jurors discussed the matter with each other during deliberations. Defendant claims the court should have held an evidentiary hearing to inquire into juror bias, and the failure to do so constituted reversible error.

We disagree. We apply the fundamental principle that, “The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court. [Citation.]” (People v. Ray (1996) 13 Cal.4th 313, 343.) “The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial. [¶] [A] hearing is required only where the court possesses information which, if proven to be true, would constitute ‘good cause’ to doubt a juror’s ability to perform his duties and would justify his removal from the case. [Citations.]” (Ibid.; People v. Keenan (1988) 46 Cal.3d 478, 532; People v. Cleveland (2001) 25 Cal.4th 466, 477.)

Here, the trial court did not abuse its discretion by not investigating the jurors’ concern that Caruso was taking down their personal information. The note was provided after the jury had already reached verdicts in the case and there was no indication the jurors’ concern resulted in any bias or inability to decide the case fairly. We cannot say the note provided by the jury foreperson conveyed “information which, if proven to be true, would constitute ‘good cause’ to doubt a juror’s ability to perform his duties and would justify his removal from the case.” (People v. Ray, supra, 13 Cal.4th at p. 343.)

Likewise, defendant’s contention the court had a sua sponte duty to hold an evidentiary hearing due to a juror interjecting the words, “reverse psychology,” when the prosecutor was at a loss for words, also has no merit. Such conduct by no means indicated any bias and does not constitute “‘good cause’ to doubt a juror’s ability to perform his duties and would justify his removal from the case.” (People v. Ray, supra, 13 Cal.4th at p. 343; People v. Keenan, supra, 46 Cal.3d at p. 532; People v. Cleveland, supra, 25 Cal.4th at p. 477.)

9. Imposition of the Upper Term and Consecutive Sentence

The trial court sentenced defendant to 52 years to life. On counts 1 and 2, the court imposed consecutive indeterminate terms of 15 years to life for each count. As to count 3, the court imposed a consecutive, upper term of eight years, and as to each of the remaining counts, 4 through 10, the court imposed consecutive two-year determinate terms of one-third the middle term.

Defendant contends that the upper term sentence for count 3, and imposition of consecutive sentences for counts 4 through 10 deprived him of his right to a jury determination beyond a reasonable doubt of all facts necessary to increase his sentence beyond the statutory maximum and to due process, as set forth in Blakely v. Washington (2004) 542 U.S. 296. He argues that those factors found by the trial court to support the imposition of the upper term sentence and consecutive sentences were neither found by the jury nor admitted by defendant.

During sentencing, the court stated it imposed the upper term on count 3 based on numerous aggravating factors, but was only going to mention a few. Those factors mentioned included: (1) defendant used his teaching position as a means of cultivating contacts and developing relationships with young boys to satisfy his sexual desires; (2) defendant used planning and sophistication in committing the sexual offenses; and (3) defendant violated his position of trust and confidence as a teacher and foster parent. The court added that it was shocking that defendant continued to be a foster parent and teacher, and continued to molest children, following his misdemeanor conviction involving Damion. He apparently believed he never would be caught. The court stated that there were no mitigating factors and the aggravating factors were overwhelming. The court further stated that it intended to sentence defendant to the longest term possible to protect society.

A. Upper Term Sentence on Count

Defendant contends the trial court committed reversible error by imposing an upper term for count 3 (committing a lewd act on B. (§ 288, subd. (a)) by relying on aggravating sentencing factors that were not tried by a jury. When the sentence was imposed, California law provided that the presumptive sentence was the middle term. Defendant therefore had the right to have a jury decide the aggravating sentencing factors. (Cunningham, supra, 127 S.Ct. 856.) There are two exceptions to this rule. “First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury's verdict. [Citation.] Second, the right to a jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.]” (People v. Sandoval (2007) 41 Cal.4th 825, 836-837.) Here these two exceptions do not apply.

The People contend that any error in imposing the upper term is harmless. Trial court error is harmless where, “the jury . . . unquestionably would have found true at least a single aggravating circumstance had it been submitted” to it. (People v. Sandoval, supra, 41 Cal.4th at p. 839.) The “imposition of an upper term sentence [does] not violate [a] defendant’s right to a jury trial [where] at least one aggravating circumstance was established by means that satisfy Sixth Amendment requirements and thus made [the defendant] eligible for the upper term.” (People v. Black (2007) 41 Cal.4th 799, 806 (Black II).)

Here it is speculation as to what the jury would have done had they been requested to make findings on the factors relied on by the court in imposing the aggravated sentence on count 3. Aggravated means, “distinctly worse than the ordinary.” (People v. Moreno (1982) 128 Cal.App.3d 103, 110.) But here “ordinary” refers to the offense charged in count 3, committing a lewd act on B. (§ 288, subd. (a)). Generally, such crimes involve reprehensible sexual misconduct including developing relationships with children to satisfy the defendant’s sexual desires and breaching the child’s trust.

It is also unclear as to what other factors the trial court relied on, since the court indicated it did not mention all of them. The court relied heavily on the factors it enumerated, and those factors involved a conclusion based on “an imprecise quantitative or comparative evaluation of the facts.” (People v. Sandoval, supra, 41 Cal.4th at p. 840.) Such findings were “not part of the charge” and the court’s findings were not derived from any finding by the jury. (Id. at p. 839.) The court’s findings included that defendant used his teaching position as a means of cultivating contacts and developing relationships with young boys to satisfy his sexual desires; defendant used planning and sophistication in committing the sexual offenses; and defendant violated his position of trust and confidence as a teacher and foster parent. These are either not findings, but rather subjective conclusions or, if they were findings, the jury did not make any actual findings on these factors.

Where aggravating circumstances rest on “somewhat vague or subjective standard[s], it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.” (People v. Sandoval, supra, 41 Cal.4th at p. 840.) Such is the case here. Furthermore, we “cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury.” (Id. at p. 839.) We therefore cannot conclude from this record that the sentencing error was harmless beyond a reasonable doubt. As a consequence, the aggravated sentence on count 3 must be vacated, and the matter remanded for resentencing.

B. Consecutive sentencing

Defendant contends the court’s imposition of consecutive sentences as to counts 4 through 10 violated his right to a jury trial as guaranteed by the Sixth Amendment to the United States Constitution. (Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington, supra, 542 U.S. 296; Cunningham, supra, 127 S.Ct. 856.) This argument was rejected in Black II, supra, 41 Cal.4th 799.

In Black II, supra, 41 Cal.4th 799, the California Supreme Court held for a second time that the determination whether two or more sentences should be served consecutively is a “‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’” (Id. at p. 823, quoting from People v. Black (2005) 35 Cal.4th 1238, 1264.)

In Black II, the Supreme Court stated: “Accordingly, we again conclude that defendant’s constitutional right to jury trial was not violated by the trial court’s imposition of consecutive sentences on all three counts.” (Black II, supra, 41 Cal.4th at p. 823.) Thus, the California Supreme Court has rejected defendant’s notion that under Cunningham imposition of consecutive sentences in the absence of jury findings is unconstitutional. In light of Black II, defendant’s challenge to consecutive sentencing is without merit.

10. Disposition

The judgment is affirmed, with the exception of defendant’s sentence on count 3, which is reversed. This case is remanded to the superior court with directions to vacate the sentence on count 3 and resentence defendant consistent with this opinion.

We concur: McKinster, Acting P. J., Richli, J.