Opinion
E071500
02-28-2020
THE PEOPLE, Plaintiff and Respondent, v. DANA LEON WILBER, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall D. Einhorn and James M. Toohey, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1707727) OPINION APPEAL from the Superior Court of Riverside County. Elaine M. Kiefer, Judge. Affirmed. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall D. Einhorn and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Dana Leon Wilber guilty of (1) two counts of oral copulation with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)); and (2) two counts of committing a lewd or lascivious act with a child who is less than 14 years old (§ 288, subd. (a)). The trial court sentenced defendant to prison for a term of 30 years to life.
All subsequent statutory references will be to the Penal Code unless otherwise indicated.
Defendant raises eight issues on appeal. First, defendant contends the trial court erred by admitting the recording of a pretext telephone call. Second, defendant asserts the trial court erred by allowing the prosecution to use an inaccurate transcript of the pretext call. Third, defendant contends the prosecutor committed misconduct in closing argument, related to the transcript of the pretext call. Fourth, defendant asserts the trial court erred by excluding evidence of the victim's mother's former employment as an exotic dancer. Fifth, defendant contends the trial court erred by allowing the investigating officer to offer opinions about defendant's and the victim's veracity. Sixth, defendant asserts the trial court erred by failing to instruct the jury that expert testimony about common behaviors of sexual abuse victims was not evidence of defendant's guilt. Seventh, defendant contends the trial court erred by denying his motion for a mistrial due to the prosecution's improper cross-examination of defendant. Eighth, defendant asserts the foregoing alleged errors were cumulatively prejudicial. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
The victim is female and was born in March 2011. Defendant is male and was born in December 1966. The victim's mother (Mother) met defendant in Bible study, in November 2016, when defendant was 49 years old and the victim was five years old. Mother and defendant married in March 2017. Mother, defendant, and the victim began living together in March 2017.
Defendant spoke about his penis with the victim. Defendant told the victim it was okay for him to show his penis to his family members. One day, defendant and the victim were at home while Mother was at work. The victim asked defendant if he would show her his penis. Defendant said he would show the victim his penis in the upstairs bedroom. Defendant and the victim went upstairs. Defendant laid on the bed and lowered his pants and underwear. The victim sat on the bed. Defendant told the victim to kiss and lick his penis, which the victim did.
The victim could not recall precisely how many times similar events occurred between her and defendant, but she said it happened "a lot," and estimated there were 12 or 13 instances in which she had contact with defendant's penis. Mother was at work or in the bathroom when the sexual contact took place. On one occasion, either defendant or the victim suggested that defendant put honey on his penis. Defendant went downstairs, retrieved the honey, and put it on his penis so the victim could lick it off. When describing the various incidents, the victim said, "[S]o first he just showed it to me. Then he made me kiss it. Then lick it. Then suck it like a Popsicle. Then he made me put honey on it and then lemon spray." Defendant instructed the victim to not tell Mother about the sexual incidents. Nevertheless, the victim told Mother that defendant showed his penis to the victim. Mother reported defendant's actions to the police.
At the direction of police officers, Mother telephoned defendant. The telephone call was recorded. During the call, Mother asked defendant for his "side of the story." Defendant said there was an incident in which the victim opened the shower door while he was showering. The following exchange took place:
Mother: "[O]f course she should not open the shower door if you're in the shower. Absolutely not. This is wrong. But tha—that's not as much of a concern as the explicit things that she told me about. And I was wondering what your like, uh, what your thought of, you know, how the honey got onto your body. And then why did she lick it like a lollipop. This is what I'm more concerned of . . . . I mean I need to know your side . . .
"[Defendant]: It's—that's not—there's nothing like that. It's—well first of all I did—I did share some honey with her and—and during that she was putting it on my penis or what have you and . . .
"[Mother]: Wait. She was putting it where?
"[Defendant]: She was—she was trying to put it on me. And . . .
"[Mother]: Okay. But how was she having access to . . .
"[Defendant]: I told her . . .
"[Mother]: How was she having access to that area of you in the kitchen where the honey is? This is what I'm confused of because I don't understand. I—I mean I just don't understand. I'm confused.
"[Defendant]: But she didn't have access to that area of me for very long. She just yanked my—my shorts out and I pulled them back. But, um . . .
"[Mother]: But then how'd she get honey there?
"[Defendant]: She didn't.
"[Mother]: Then how did the honey get there?
"[Defendant]: Now there was—it was just on her hands. So . . .
"[Mother]: What? Her hands?
"[Defendant]: No, I mean, uh, she had it on her finger and she just thought it was funny to put it on me.
"[Mother]: On your penis?
"[Defendant]: No, she put it—she like tried to smear it on my—in that area but she didn't, like, get it there—she just got it on my shorts and on my, um, belly above that area. I did have to rinse it off.
"[Mother]: So then why would she say that she—you told her to lick it like a lollipop?
"[Defendant]: I never said that."
The prosecutor played the recording of the pretext call during Mother's testimony. Prior to playing the recording, the prosecutor gave Mother a pen and said, "So if there is a point during the transcript where you notice something that's different or that you need to call our attention to from what was actually said during the conversation, mark it down, and at the end I will ask you about it." After playing the recording, the prosecutor asked Mother, "[W]ere there any parts that you wanted to call our attention to?" Mother replied, "No."
During the cross-examination of Mother, defendant's trial counsel referred Mother to the portion of the pretext call transcript reflecting that defendant said, "It's—that's not—there's nothing like that. It's—well first of all I did—I did share some honey with her and—and during that she was putting it on my penis or what have you and." Defense counsel asked Mother if was clear to her that defendant used the word "penis" in that sentence. Mother said it was unclear what word defendant said, but, at the time of the phone call, she thought he said "penis." Mother testified that, in listening to the tape in the courtroom, that particular word was unintelligible because "it was kind of mumbled." Defense counsel asked if defendant may have said "pants." Mother said it did not sound like "pants," and that she could not understand what word defendant said.
Defendant testified at the trial. Defendant said, "The pretext phone call, okay, I—I started talking about the honey that way. But then as—as the question indicated, how did it get on my private area, I had a thought of, well—and then there was the second incident involving not necessarily honey but something sticky from—similar to honey but possibly syrupy. I don't know exactly what it was." Defendant explained that, when defendant laid on the sofa or reclined in a chair, the victim would sometimes take something cold from the refrigerator and place it under his shirt and then run away. In one incident, the victim had a jar of jam or a bottle of syrup with a lid that was askew and she "shove[d] [it] in [his] shorts." Defendant explained, "And when I was talking on the pretext, I kind of slid from one end to the other as I'm explaining how it might have gotten in my private area." Defendant said that, in the pretext call, he did not say there was honey on his penis. Rather, defendant said there was honey on his pants.
During motions in limine, the prosecutor moved "the court [to] permit evidence of Defendant's statements to Witnesses be admitted . . . under Evidence Code section 1220," which concerns the hearsay exception for party admissions. Also during motions in limine, defendant moved the trial court to "exclude statements made by [defendant]. The statements are more prejudicial than probative."
In regard to the prosecution's motion, the trial court explained that it did not know what defendant's statements were, which made it difficult to rule on the motion. The trial court asked if there were specific statements by defendant that defendant wanted excluded. Defendant's trial counsel responded, "There is not. I'm just asking generally to exclude it." The trial court denied defendant's motion. The trial court said, "I'm assuming that the statements that the defendant has made are—statements that the People are seeking to introduce are statements made either to law enforcement or a pretext call. There aren't any statements that would be irrelevant."
DISCUSSION
A. RECORDING
Defendant contends the trial court erred by admitting the recording of the pretext telephone call because it was "too unintelligible to be relevant."
The People assert defendant forfeited this issue by failing to raise a specific objection in the trial court. Defendant asserts that, if the issue were forfeited, then his trial counsel rendered ineffective assistance. We choose to address the merits of the issue rather than delve into the matter of forfeiture.
" 'A trial court has "considerable discretion" in determining the relevance of evidence. [Citation.] Similarly, the court has broad discretion under Evidence Code section 352 to exclude even relevant evidence if it determines the probative value of the evidence is substantially outweighed by its possible prejudicial effects. [Citation.] An appellate court reviews a court's rulings regarding relevancy and admissibility under Evidence Code section 352 for abuse of discretion. [Citation.] 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.)
" '[A] tape recording may be admissible even if substantial portions of it are unintelligible." ' [Citation.] " ' " ' "[T]o be admissible, tape recordings need not be completely intelligible for the entire conversation as long as enough is intelligible to be relevant without creating an inference of speculation or unfairness." [Citations.]' [Citation.] [¶] Thus, a partially unintelligible tape is admissible unless the audible portions of the tape are so incomplete the tape's relevance is destroyed." ' " (People v. Jones, supra, 3 Cal.5th at p. 611.) "The fact [that] a tape recording 'may not be clear in its entirety does not of itself require its exclusion from evidence "since a witness may testify to part of a conversation if that is all he heard and it appears to be intelligible." ' " (People v. Polk (1996) 47 Cal.App.4th 944, 953.)
At issue is one word in a recording that lasted for approximately 28 minutes. The sentence at issue is: "It's—well first of all I did—I did share some honey with her and—and during that she was putting it on my [(unintelligible)] or what have you and."
The victim testified that defendant placed honey on his penis and that she licked the honey off of his penis. When defendant testified, he said, "And when I was talking on the pretext, I kind of slid from one end to the other as I'm explaining how it might have gotten in my private area." Thus, in testifying, defendant confirmed he "might have gotten [honey] in [his] private area." The recording was relevant because it provided confirmation of defendant's and the victim's testimonies, in that the recorded sentence reflected (1) defendant and the victim shared honey, and (2) the honey was somewhere on defendant's person or possessions, e.g., "she was putting it on my [(unintelligible)]." Therefore, the recorded sentence, even if partially unintelligible, had relevance because it aided in confirming that something occurred between defendant and the victim involving honey.
In regard to the evidence being prejudicial, the missing word did not affect one's ability to understand the remainder of the recording. In the recording, Mother tried to clarify the unintelligible word by asking, "Wait. She was putting it where?" Thus, the unintelligible word was discussed in the recording and it did not detract from one's ability to understand the conversation because the unintelligible word was a topic within the conversation. Because (1) the missing word was discussed within the conversation, and (2) the sentence could be fairly understood despite the unintelligible word, a trier of fact would not have reason to unfairly speculate about the recording. (See People v. Polk, supra, 47 Cal.App.4th at p. 952 [" ' "relevant without creating an inference of speculation or unfairness" ' "].) In sum, because the recording was relevant and any prejudice was minimal, we conclude the trial court did not abuse its discretion.
Defendant contends the trial court erred by admitting the recording because "the portion of the recording that was unintelligible was also the only portion that would have been relevant to the prosecution's case." As set forth ante, the portion of the recording wherein defendant confirmed that he shared honey with the victim had relevance because it aided in confirming the victim's and defendant's testimonies. Therefore, we are not persuaded that the unintelligible word was the only portion of the recording with evidentiary value.
Defendant contends that the alleged evidentiary error resulted in a violation of his federal due process rights. We have found no evidentiary error, therefore, we conclude defendant's constitutional right of due process was not violated. (See People v. Williams (2009) 170 Cal.App.4th 587, 612 (Williams) [evidentiary error must prevent a fair trial to rise to a constitutional violation].)
B. TRANSCRIPT
Defendant contends the trial court erred by allowing the prosecutor to use an inaccurate transcript of the pretext call.
The People assert defendant forfeited this issue by failing to raise a specific objection in the trial court. Defendant asserts that if the issue were forfeited then his trial counsel rendered ineffective assistance. We choose to address the merits of the issue rather than delve into the matter of forfeiture.
"Transcripts of admissible tape recordings are only prejudicial if it is shown they are so inaccurate that the jury might be misled into convicting an innocent man." (People v. Brown (1990) 225 Cal.App.3d 585, 599.) The two people who were part of the transcribed call testified at trial. Mother testified that, at the time of the call she thought defendant said "penis," but, that in listening to the recording, she was unsure what word defendant said. Defendant testified that, during the telephone call, he was "explaining how [honey] might have gotten in my private area."
Because both people who participated in the phone call testified at trial and both testified about the unintelligible word in the recording, it is unlikely that an inaccurately transcribed word in the transcript would have misled the jury. There was plain and open testimony about the possible inaccuracy in the transcript, and testimony concerning Mother's and defendant's recollections of the conversation. Further, the trial court instructed the jury that, despite receiving a transcript, it was for the jurors "to make the final determination of what is said and by whom."
In sum because, (1) there was testimony about the possible inaccuracy in the transcript; (2) there was testimony from Mother and defendant about their recollections of the telephone conversation; and (3) the trial court instructed the jury that it was their duty to decide "what is said and by whom," we conclude that any inaccuracy in the transcript would not have misled the jury.
Defendant contends that the alleged error concerning the transcript resulted in a violation of his federal due process rights. The use of the transcript did not render defendant's trial fundamentally unfair. Therefore, we conclude defendant's right of due process was not violated. (See Williams, supra, 170 Cal.App.4th at p. 612 [error must prevent a fair trial to rise to a constitutional violation].)
C. PROSECUTORIAL MISCONDUCT
1. PROCEDURAL HISTORY
a. Prosecutor's Closing Argument
During closing argument, the prosecutor said, "Let's look quickly at that pretext call. [¶] Now, this is People's Exhibit 5, and you will have People's Exhibit 5 with you in the jury deliberation room. You'll have the opportunity to listen to it yourself. And that's ultimately what needs to happen for you guys to make your determination as to what was said. But it's really cumbersome. I tried to figure out a way to switch over to audio and switch back. It's actually very cumbersome to do it in here. Also, the audio in here is not very strong. So it's something that you'll have an easier time doing, and you can go back as many times as you need to, or if you choose to. You obviously don't have to do this. This is your deliberations.
"But if you look at the bottom of page 2, this is the area that I'm talking about where it indicates that—this is now [defendant] . . . who is talking, the defendant. He 13 said, 'I did share some honey with her, and, during that, she was putting it on my penis or what-have-you.' [¶] And, remember, her reaction was strong. [Mother] was like, 'Wait. She put it where?' And she said it kind of like that. [¶] Now, the defendant said, 'No, no, no. What I actually said was pants.' But what—let's look just a little bit further to see. [¶] And so, remember, she asks, 'Wait. Where was it put?' [¶] Now, the defendant at this point, at the top of page 3, he's not, like, really forthcoming. He's kind of, like, couches it a little bit. He says, 'She was trying to put it on me.' [¶] And then [Mother] responds, 'Okay. But how was she having access to'
"Now this is where it's very clear that both people in this conversation understand this is a private area that they're talking about. This isn't his arm or his knee or his foot. She's saying she had access to an inappropriate part of your body, and his response isn't, 'She had access because it was my arm' or something like that. He knows she's talking about a private area of his body and how this child had access and honey in that private area.
"I told her—and if you look, it goes on. I'm not going to read the whole thing, but I do want to call attention to they're just talking about the same thing. [¶] Here, she again is saying, 'Wait a minute. We were talking about it was on your penis?' That is what she was understanding. That is why it totally fits in the context that the word that is unclear is 'penis.' But even it if it's not, he's still guilty. [¶] 'On your penis?' [¶] And then he says, 'No. She tried to smear it on my—in that area.' So he's referring to the penis. He's not saying, 'Hey, yes, it got on my penis.' He's saying, 'She was trying to put it on my penis, but she wasn't able to get it. She just—it was right there on my belly and on my shorts right above that area.' That area, the defendant even on the stand, was, like, 'No, when I said that area there, I'm talking about my penis.' So he's saying here, 'It was right around my penis.'
"Do you see how he's couching it? Do you see how he's trying to say, "Okay. I'm not going to say what really happened. I'm just going to kind of give the information around it.' He does that a lot."
b. Defendant's Closing Argument
During closing argument, defendant's trial counsel said, "[T]he most concrete thing that jumps out at me, and I try not to show my emotion when I'm sitting there listening to evidence, but something that I thought just seemed crazy to me was that the prosecutor's—I think argument to you and inference, that what [defendant] said initially to [Mother] on the transcript was that '[The victim] put the honey on my penis,' and that the transcript says 'penis' and [Mother] heard 'penis,' and he said ultimately it's up to you to decide whether he says 'penis.'
"Well, I've listened to that tape. We all listened to the tape. You'll get a chance to listen to it again. And I don't think I'm crazy. I've listened to it over and over, and I hear 'pants.' And I suppose the prosecutor is not—I'm not saying he's crazy. I mean, reasonable people can differ about what we hear and what we see and what it means. I don't hear what he hears.
"And I point this out to you, sort of an opening thought. That if you're going to view everything from the prism of guilt, that everything is—every word that comes out points to guilt, here's sort of a concrete area where you can play the tape and say, 'No, you know, I see that he's viewing things in a biased way and presenting this case in this way.' And actually about this, I have no dispute. I'm speaking from your point of view, if that is how you feel after listening to it. That what you hear is 'pants.' And that [defendant] is not lying or retracting his information, because that's essentially what the prosecutor is trying to say is that he said 'penis' and then immediately started backtracking and suddenly it's 'shorts' and 'arm' and other things."
c. Prosecutor's Rebuttal Argument
In the prosecutor's rebuttal argument, the prosecutor said, "Now, one of the things he did, and he did it frequently, is that defense counsel would say things like the D.A. said that it was 'penis' in that transcript. He said—the defense attorney said that [Mother] told you it says 'penis' in that transcript. So, now, if it doesn't say the word 'penis' there, he's not guilty. Did you see that kind of shift-around that he did?
"I never told you that it says 'penis' in there. I said you need to listen to that recording. But [Mother] listened to it, both when she was listening on the phone and here in court, and she said, 'I didn't hear the word "penis." ' But that doesn't mean—if he said 'pants' or 'arm' or 'my back' or whatever he's claiming he actually said there, if it says some other word there, clearly he was talking about that area. And that area was the area around his penis, so that's what he was talking about. And even if it said 'pants' or something else, given all of the evidence in this case, he is still guilty."
2. ANALYSIS
Defendant contends the prosecutor committed misconduct in the rebuttal closing argument by saying, "I never told you that it says 'penis' in there." Defendant asserts, "[T]he prosecutor suggested to the jury that [defendant] had confessed when, as even the prosecutor acknowledged, there was no evidence to support such an inference." Defendant contends, "Things might be different if the prosecutor had stood by the words in the transcript that he prepared and gave to the jury, and argued to the jury that he believed that this is what [defendant] said in the pretext call." Defendant asserts, "[T]he prosecutor was effectively telling the jury that [defendant] had confessed when the prosecutor's subsequent comments make it clear that he didn't actually believe that this was the case."
The People assert defendant forfeited the misconduct issue by failing to raise a specific objection in the trial court. Defendant asserts that forfeiture does not apply because an objection would have been futile. If forfeiture does apply, then defendant contends his trial counsel was ineffective. We choose to address the merits of the issue rather than delve into the matter of forfeiture.
" 'Advocates are given significant leeway in discussing the legal and factual merits of a case during argument.' " (People v. Meneses (2019) 41 Cal.App.5th 63, 70.) " 'Although it is misconduct to misstate facts, the prosecutor "enjoys wide latitude in commenting on the evidence, including the reasonable inferences and deductions that can be drawn therefrom." ' " (People v. Powell (2018) 6 Cal.5th 136, 183-184.)
In the prosecutor's initial closing argument, the prosecutor started from a point wherein he impliedly conceded that the recording was unintelligible in regard to the sentence, "I did share some honey with her and—and during that she was putting it on my [(unintelligible)] or what have you and . . ." The implied concession is evident from the prosecutor explaining how, from context, the jury could conclude that the unintelligible word was "penis."
The prosecutor explained "why it totally fits in the context that the word that is unclear is 'penis.' " The prosecutor explained that the word "penis" could be inferred from Mother saying the victim "had access to an inappropriate part of [defendant's] body, and his response isn't, 'She had access because it was my arm' or something like that. He knows she's talking about a private area of his body and how this child had access and honey in that private area." The prosecutor continued, "Here, she again is saying, 'What a minute. We were talking about it was on your penis?' That is what she was understanding. That is why it totally fits in the context that the word that is unclear is 'penis.' "
Thus, in the initial closing argument, the prosecutor explained to the jury why it should conclude, from context, that the unintelligible word on the recording was penis. Defendant's trial counsel understood that the prosecutor was arguing for the jury to make such an inference, as shown by defense counsel's statement, "[S]omething that I thought just seemed crazy to me was that the prosecutor's—I think argument to you and inference, that what [defendant] said initially to [Mother] on the transcript was that '[The victim] put the honey on my penis,' . . . ." The argument made by the prosecutor was proper because a prosecutor is allowed to urge the jury to make reasonable inferences and deductions from the evidence.
In rebuttal, when the prosecutor asserted, "I never told you that it says 'penis' in there," that statement was accurate. The prosecutor did not say that the unintelligible word was penis. Rather, the prosecutor argued that the jury should infer from context that the unintelligible word was penis. Because the prosecutor's statement—"I never told you that it says 'penis'"—was accurate, we conclude it does not constitute misconduct.
Defendant interprets the prosecutor's statement as the prosecutor disavowing any representation that defendant said the word "penis." Thus, defendant concludes that the prosecutor spent the trial enforcing the belief that defendant said "penis" only to deny any such assertion during the rebuttal closing argument. We do not interpret the prosecutor's statement in such a sweeping manner. The prosecutor's statement—"I never told you that it says 'penis' in there"—can be understood as the prosecutor reaffirming his prior argument that (1) impliedly conceded that the word is unintelligible on the recording, and (2) urged the jury to infer from context that the unintelligible word was "penis." Therefore, we are not persuaded that the prosecutor committed misconduct.
D. MOTHER'S FORMER EMPLOYMENT
1. PROCEDURAL HISTORY
a. Motions In Limine
In the People's motions in limine, they wrote, "The defendant's prior attorney expressed an interest in asking [the victim's] mother about her past employment as an exotic dancer over a decade ago. This has not [sic] relevance in the case at bar. The People therefore ask [that] any discussion of her prior employment be excluded. Evidence Code section 350, 352."
At the hearing on the motions in limine, the following exchange took place:
"[Prosecutor]: Your Honor, on this particular issue, the defendant's current attorney has never expressed any interest in delving into this. I actually haven't spoken to [defendant's current attorney] about this. [¶] His prior attorney would bring this up. His prior attorney never said she would intend to use it at trial, but it was something she would point out.
"The Court: [Defense counsel], is there any issue with the alleged victim's mother's past employment?
"[Defense counsel]: On the face of it, I would say no. In general, whether a person was a stripper, exotic dancer, doesn't generally matter as to their truthfulness. I think that applies in this case as to truthfulness. [¶] If we can just reserve on this also, I would like to—I haven't thought of this, but I would like to check with [defendant]. There are some issues not related to truthfulness or trying to impugn her, but reasons why there might have been arguments or trouble in the marriage to bring it in for a different purpose. I'd just like a few minutes to talk to him about it.
"The Court: I'm going to rule on it but subject to your renewing; okay?
"[Defense counsel]: Fair enough.
"The Court: The Court will grant Number 11. There will be no mention about the mother's past employment as an exotic dancer. There is no relevancy at this point that the Court can see, and it would be unduly prejudicial. [¶] So that will be excluded, but I'm going to allow [defendant's trial counsel] to ask the Court to look at that again if you have some other reason why you believe it's relevant; okay?
"[Defense counsel]: Thanks."
b. Victim's Testimony
During the direct examination of the victim, the following exchange took place:
"[Prosecutor]: When he would be in bed, would he have been up doing a whole bunch of stuff and then go get in bed, or would he still be in bed?
"[The victim]: So, like, when it was bedtime and everyone went to bed, then he would just go to bed. Sometimes him and my mom would watch movies. And yeah. Like adult movies. And I came and watched them too. [¶] Every night I was sleeping in my own bed, and then I just dragged the blanket to their room. I was, like, 'I'm going to go snuggle you.' And I just went in the bed and laid with them. It was kind of weird.
"[Prosecutor]: You just said several things. I want to break them down a little bit. One of the things you said is that sometimes your mom and dad would watch a movie; right?
"[The victim]: Yes, they would watch adult movies.
"[Prosecutor]: When you say 'adult movies,' can you give me an example, like the name of one of the movies?
"[The victim]: They would sometimes do—I don't know, like, the names of movies. I think I just, like, remembered one. I don't know what the name of the movies, though [sic].
"[Prosecutor]: It's okay. The name of the movie is not that important. Can you tell us what the people would be doing on the movie?
"[The victim]: Well, they weren't doing inappropriate stuff, but they were doing, like—it was mostly godly movies, godly adult movies, because they were godly. Well, [defendant] isn't godly, but my mom was and he was acting like it, so yes. It was very horrible.
"[Prosecutor]: I just want to make sure. It wasn't that there was something inappropriate in the movie. It was just not a cartoon movie. Is that what you mean by an adult movie?
"[The victim]: Yes, it wasn't a cartoon movie at all. It was a real movie with real people in it. You know those kind of movies that have real people in them, like real, adult movies, but they were just godly."
c. Trial Motion
During trial, outside the presence of the jury, the following exchange occurred:
Defense counsel: "The other area of inquiry that I think the prosecutor—well, I know the prosecutor has objected to is [Mother's] prior work in the sex industry. This isn't—I don't think the fact of the work is disputed. She told law enforcement that she had worked as a stripper for a number of years. The defense wants to get into it—into that area of inquiry because it's relevant.
"The Court: I've already ruled on that.
"[Defense counsel]: Right.
"The Court: So we're not going to revisit that.
"[Defense counsel]: Okay."
d. Closing Argument
During closing argument, the prosecutor said, "[The victim's] description of oral copulation is evident. She first described that when she's a six-year-old kid. She did it again as a seven-year-old kid. This is a kid who is not watching lots of porn or—this is a kid who has lived a fairly sheltered life. And yet she knows something very graphic about human—adult usually—human sexual interaction. And she knows it because he put her through it."
2. ANALYSIS
a. Evidentiary Error
Defendant contends the trial court erred by excluding evidence that Mother worked as an exotic dancer.
The prosecutor's motion in limine reflects Mother worked "as an exotic dancer over a decade ago." The motion in limine was filed in August 2018. That means Mother stopped working as an exotic dancer in 2008. The victim was born in March 2011. The trial court could reasonably conclude that Mother's employment as an exotic dancer, which ended more than two years before the victim was born, was not relevant in the instant case. There was nothing indicating that Mother worked as an exotic dancer after the victim was born or that Mother spoke with the victim about being an exotic dancer. Therefore, the trial court could reasonably conclude the evidence of Mother's former employment as an exotic dancer had little relevance.
The evidence of Mother's former employer as an exotic dancer would be prejudicial primarily due to its lack of relevance. Because Mother's work as an exotic dancer ceased before the victim was born, there would have been little reason to discuss it, which would mean the evidence would consume time during trial for little purpose. In sum, because (1) the evidence had little relevance, and (2) would have consumed time at trial, the trial court could reasonably exclude the evidence. (Evid. Code, § 352.) We conclude the trial court did not abuse its discretion.
b. Constitutional Violation
Defendant contends the alleged evidentiary error resulted in a violation of his constitutional right to present a defense. Defendant contends the evidence would have "explain[ed] how [the victim] could have known about these subjects matters [sic] even if her allegations against [defendant] were untrue."
"[T]he general rule [is] that the application of the ordinary rules of evidence under state law do[es] not violate a criminal defendant's federal constitutional right to present a defense, because trial courts retain the intrinsic power under state law to exercise discretion to control the admission of evidence at trial. [Citation.] . . . [¶] This general rule will give way in extraordinary and unusual circumstances." (People v. Abilez (2007) 41 Cal.4th 472, 503.) Extraordinary and unusual circumstances exist when "the excluded evidence was 'so vital to the defense that due process principles required its admission.' " (Ibid.)
In the instant case, if defendant wanted to explore the victim's familiarity with adult sexual interactions, he could have done so due to the prosecutor opening the door on that topic with questions about "adult movies." The victim could have been questioned about her personal knowledge of adult sexual interactions without raising the topic of Mother's former employment. Accordingly, we are not persuaded that the exclusion of evidence concerning Mother's former employment prevented defendant from presenting a defense that demonstrated the victim had personal knowledge of adult sexual interactions. We conclude the trial court did not deprive defendant of his constitutional right to present a defense.
E. INVESTIGATING OFFICER
1. PROCEDURAL HISTORY
In defendant's motions in limine, he moved the trial court to exclude "any witness from offering testimony at [sic] to their opinion about whether the complaining witness reported a crime truthfully." At the hearing on the motions in limine, the trial court said, "Number 6, that is granted. No witnesses may provide any opinions regarding the veracity of any witnesses or conduct."
Riverside County Sheriff's Detective Gerald Franchville testified at defendant's trial. The prosecutor asked Franchville "about the different ways in which children respond to or the way they act during their disclosure of sexual molestation." Franchville responded, "Every situation is kind of unique. Some children disclose right after something happened to them. Some will wait in their disclosure. They vary in age. And they vary in behavior. Some children may feel angry or regret. Some don't know any better. They don't realize what they participated in was wrong or against the law. And, you know, personalities, there's just difference[s]. Some children are kind of happy-go-lucky and some are very shy and timid. It's just a wide range."
Franchville explained how child molesters may groom a child, in order to gain the child's trust before introducing sexual behaviors. Franchville further explained that it is common for child molesters to deny having molested a child or to minimize the events that occurred, such as by omitting sexual activities or blaming the victim. Franchville said he monitored a police interview with defendant on October 19, 2017. During the interview defendant said honey had been on his arm.
2. ANALYSIS
Defendant contends Detective Franchville offered improper opinion testimony about the victim's and defendant's veracity.
The People contend defendant forfeited this issue by failing to object in the trial court. Defendant asserts that if the issue were forfeited then his trial counsel rendered ineffective assistance. We choose to address the merits of the issue, rather than delve into the issue of forfeiture.
"The general rule is that an expert may not give an opinion whether a witness is telling the truth, for the determination of credibility is not a subject sufficiently beyond common experience that the expert's opinion would assist the trier of fact; in other words, the jury generally as well equipped as the expert to discern whether a witness is being truthful." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82.)
Franchville discussed common behaviors of child molesters and molested children. Franchville also said that defendant told police honey had been on his arm. None of that information constitutes an opinion about the victim's or defendant's veracity. Accordingly, we conclude there was no error related to improper opinion testimony.
Defendant contends the alleged evidentiary error resulted in a violation of his federal right of due process. Because there was not improper opinion testimony, defendant's trial was not fundamentally unfair. Therefore, defendant's right of due process was not violated. (See Williams, supra, 170 Cal.App.4th at p. 612 [error must prevent a fair trial to rise to a constitutional violation].)
F. INSTRUCTION
Defendant contends the trial court erred by not instructing the jury that testimony about child sexual abuse accommodation syndrome (CSAAS) is to be used for the limited purposes of deciding whether the victim's conduct was consistent with a person who has been molested, and in evaluating the victim's veracity, but that it is not evidence of defendant's guilt (CALCRIM No. 1193).
The People contend defendant forfeited this issue by failing to raise the matter in the trial court. Defendant asserts that, if the issue were forfeited, then his trial counsel rendered ineffective assistance. We choose to address the merits of the issue, rather than delve into the topic of forfeiture. --------
CALCRIM No. 1193 provides: "You have heard testimony from __________ <insert name of expert> regarding child sexual abuse accommodation syndrome. [¶] __________'s <insert name of expert> testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against (him/her). [¶] You may consider this evidence in deciding whether or not __________ <Insert name of alleged victim of abuse> conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of (his/her) testimony."
One reviewing court has held trial courts have a sua sponte duty to give CALCRIM No. 1193 when a case includes testimony about CSAAS. (People v. Housley (1992) 6 Cal.App.4th 947, 958-959 [First Dist., Div. Two].) Two reviewing courts, in published opinions, have concluded there is not a sua sponte duty to instruct the jury with CALCRIM No. 1193. (People v. Mateo (2016) 243 Cal.App.4th 1063, 1074 [Second Dist., Div. Five]; People v. Stark (1989) 213 Cal.App.3d 107, 116 [instruction required only on request] [Fourth Dist., Div. One].) This court, in an unpublished opinion, has agreed with the conclusion that there is not a sua sponte duty to instruct the jury with CALCRIM No. 1193. (People v. Manning (Feb. 16, 2017, E063997) 2017 Cal. App. Unpub. LEXIS 1396, *18-19 [Fourth Dist., Div. Two].)
CSAAS "has five components: secrecy, helplessness, accommodation, disclosure, and recantation." (People v. Mateo (2016) 243 Cal.App.4th at p. 1069.) Detective Franchville did not offer complete testimony on CSAAS. Franchville testified only about disclosure. Franchville explained that children sometimes delay disclosing molestation events and sometimes they do not cry when disclosing abuse. Franchville discussed victims' disclosures in the limited context of his experience of investigating sexual abuse allegations.
Given that Franchville provided minimal information concerning victims' behavior, the general limiting instruction on expert witness testimony, CALCRIM No. 332, was sufficient. Per that instruction, the jury was told, "Witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert's knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence." Nothing more than this instruction was required. Accordingly, we conclude the trial court did not err.
Defendant contends the failure to instruct the jury with CALCRIM No. 1193 violated his federal right of due process. We have concluded ante that CALCRIM No. 1193 was not required in this case. Therefore, we are not persuaded that defendant's trial was rendered fundamentally unfair due to the jury not being instructed with CALCRIM No. 1193. (See Williams, supra, 170 Cal.App.4th at p. 612 [error must prevent a fair trial to rise to a constitutional violation].) In sum, defendant's right of due process was not violated.
G. MISTRIAL MOTION
1. PROCEDURAL HISTORY
a. Pretrial
In the information, the prosecution charged defendant with a fifth count, which concerned a second victim, John Doe. The fifth count was omitted from the amended information. In motions in limine, the prosecution moved to admit propensity evidence, which included defendant's alleged molestation of John Doe. (Evid. Code, § 1108.) During the hearing on motions in limine, defendant's trial counsel conceded the evidence was admissible under Evidence Code section 1108. The trial court ruled, "So that evidence will be admissible—all of these rulings are, of course, subject to laying your proper foundations but admissible under 1108, the testimony of (John Doe) regarding this incident. [¶] And again, defense acknowledges that it is proper 1108 evidence. And the Court finds that it is probative and not unduly prejudicial under 352."
b. Trial
i. Opening Statement
John Doe's mother, Nicole, was Mother's cousin. In defense counsel's opening statement, at the start of trial, he said, "And so [Mother] and Nicole fabricated allegations that he touched their children, that he touched [the victim] and did things to [the victim], and that he touched Nicole's child, (John Doe), [a] two-and-a-half-year-old boy, and did things to him. But it wasn't true."
ii. Direct Examination
During defense counsel's direct examination of defendant, the following exchange occurred:
"[Defense counsel]: Let me ask you generally your experience around kids. Do you have experience in your life where you've had access or control of children in various situations?
"[Defendant]: Yeah. I mean, I've got my sister with her nephews and one niece and my younger brother with two nieces. And a fairly recent addition of a nephew that's two now.
"[Defense counsel]: What about at summer camps or other church functions?
"[Defendant]: Certainly, yeah. I've been a volunteer at many different functions that benefit youth and kids. One of the things that I did was—well, a family kids' camp. I did that three years, I believe. And that's a camp that we take foster kids, ages 7 to 11, and we take them to summer camp for a week. And we spend time with them and we do crafts and activities and basically just love on them. They're foster kids, so a lot of times it starts off early in the week with a lot of—there's a lot of guarded anxiety and whatnot, but by Wednesday, about midweek, you start to see kids really take to it.
"[Defense counsel]: Have you ever had—about how many years have you done that?
"[Defendant]: About three years.
"[Defense counsel]: And has there ever been any allegation or complaint of any kind—
"[Defendant]: None.
"[Defense counsel]: —relating to you and children?
"[Defendant]: No."
iii. Cross-Examination
During the prosecutor's cross-examination of defendant, the following exchange occurred:
"[Prosecutor]: Now, I also want to talk to you about—have you had other children disclose that you had molested them besides [the victim]?
"[Defendant]: Not until this case.
"[Prosecutor]: Other than [the victim], has anyone accused you of molesting them?
"[Defendant]: As I said, not until this case. And then during this case, there was another one that was suddenly related to this case that came forward and accused me of—fake claim of molestation.
"[Prosecutor]: So when previously they talked about how—when you had worked with children at volunteer opportunities, there was no disclosures of molest then; correct?
"[Defendant]: None.
"[Prosecutor]: But it's been more than one now; is that correct?
"[Defendant]: Well, there's still only one that I'm up here explaining, but I think you've got one in your back pocket, but it didn't happen.
"[Prosecutor]: When you say I've got one in my back pocket, what do you mean by that?
"[Defendant]: I think you're waiting to pull it out. It's your—it's what you've brought against me. Not anybody else.
"[Prosecutor]: Let me ask you this question. Has another child besides [the victim] disclosed that you molested them?
"[Defendant]: Not to me.
"[Prosecutor]: Are you aware of any disclosures other than [the victim]?
"[Defendant]: I don't know. I can't answer that.
"[Prosecutor]: Did you hear your own lawyer's opening statement?
"[Defendant]: No, I—I'm familiar with the opening statement. I don't know what—I don't know if it's part of a record or if there is any legitimacy to it.
"[Prosecutor]: So you heard your attorney talk about it; correct?
"[Defendant]: Yeah, we've talked about it.
"[Prosecutor]: So you're aware that
"The Court: In the opening statement. [¶] Let me see counsel [at] sidebar. [¶] (Off-the-record sidebar.)
"The Court: Please continue.
"[Prosecutor]: So are you or are you not aware of an additional disclosure?
"[Defendant]: I'm aware of there—of an item that is—as far as I'm concerned, it's off—it's not being charged.
"[Prosecutor]: This is just really a—
"The Court: Next question, Counsel.
"[Prosecutor]: Are you or are you not aware of another disclosure?
"The Court: Next question, Counsel. Rephrase it or next question."
At that point, the prosecutor switched to questioning defendant about the pretext call.
c. Motion for Mistrial
Defendant moved the trial court for a mistrial. In the motion, defendant asserted that, in July 2018, the trial had been continued to allow John Doe to travel to Riverside County to testify. The defense understood that John Doe would testify as a rebuttal witness, in the event defendant testified. As a result, defendant had a good faith belief that John Doe would be a witness at trial, which started in August 2018.
In the motion for mistrial, defendant wrote, "The prosecution then tried to impeach the defendant with the now dismissed, uncharged allegations of [John Doe], to imply that the defendant was lying when he said he had never been charged with another molestation. Given the context of the case, including defense counsel's opening statement discussing the allegations, the dismissal of allegations, and the prosecutor's representation to the intended to call [sic] this witness as an 1108 evidence [sic], the prosecution is intentionally misleading the jury by suggesting that it is the defendant who is a liar for claiming to be allegation-free. [¶] The prosecutor unfairly sandbagged the defense through false representations, and now has an uncharged allegation floating half-formed as a lie through the minds of the jurors of this panel."
Defendant continued, "By forging ahead with this misleading impeachment evidence, without first clearing it in a 402 motion, the prosecution has unfairly painted the defendant as a multiple victim molester without actually having to put on a shred of evidence—simply by playing games with the judicial process." Defendant asserted a mistrial was the only adequate remedy. Nevertheless, in the alternative, defendant requested a curative instruction informing the jury that (1) Nicole alleged defendant abused John Doe; (2) the prosecution dismissed the charge concerning John Doe; (3) the prosecution decided not to call John Doe as a witness; and (4) the jury should disregard the portion of the cross-examination related to other accusations of molestation against defendant. As a second alternative, defendant offered to withdraw his motion for a mistrial, if the prosecutor called John Doe as a witness.
The trial court held a hearing on defendant's motion, noting it had been filed "two minutes" prior to the hearing but that the trial court had reviewed it. The prosecutor asserted that when defendant testified during the direct examination, he "created this perception that, 'Hey, look, I have a great character. Nobody is saying I'm a child molester except for this one kid.' [¶] What the People asked is, 'Wait. That's not true. It isn't just this one kid,' and the defendant answered that question." The prosecutor asserted the cross-examination constituted "an appropriate rebuttal to what the defense was attempting to do by repeatedly asking their witnesses, 'Hey, there's no disclosures on this guy; right?' "
The trial court asked if, at the point of the cross-examination of defendant, the prosecutor had decided not to call John Doe as a witness. The trial court explained, "You have to have a good-faith basis for being able to prove your impeachment." The prosecutor said, "Essentially by the time the defendant took the stand and I heard his evidence, I had made a decision that the 1108 witness would not be called." The prosecutor said he could call Detective Franchville to testify about the accusation involving John Doe, in order to provide evidence of the accusation. However, the prosecutor believed "defendant himself confirmed that there was another disclosure."
The trial court replied, "Right. But the problem is you're putting evidence in front of the jury that there was another accusation without anything to it." The prosecutor responded, "But what the defense had put forward is that there weren't other accusations. And so all we were doing was saying, 'Wait, that's not true. There have been other accusations.' " Defense counsel said, "We were saying up until he met [Mother], there were no other accusations. After that, false accusations came forward."
The trial court said, "Seems to me both sides have been making some calculated decisions, and when you skate close to the edge, sometimes you fall in." The trial court disagreed with defendant's assertion that the prosecutor was obligated to call John Doe as witness due to defendant choosing to testify. However, the trial court also concluded the prosecutor "took advantage of throwing out an accusation" when the prosecutor knew evidence concerning John Doe would not be presented. The trial court explained, "That's the kind of thing counsel should always bring up to the Court either at sidebar, at 402 hearing. That wasn't done. [¶] So now the question is what do we do."
The trial court denied the motion for mistrial. The trial court said, "[D]efendant put his character for not being—having the propensity or character trait to molest children, he certainly put that at issue. And the People can rebut that. [¶] But the problem is you have to have a good-faith belief when you make your cross-examination that you're going to be able to back that up with some evidence."
Defense counsel requested the trial court give the jury the instruction that it requested in the motion for mistrial, which would inform the jury about John Doe's accusation against defendant and that the People chose not to call John Doe as a witness. The trial court continued the matter until the discussion about jury instructions.
During the jury instruction discussion, the trial court and parties had an off-the-record discussion about the impeachment of defendant. When the trial court and parties went back on-the-record, the trial court said, "Both sides agree that no evidence has come in about the underlying accusation, and so neither side will make any argument about any underlying—any argument regarding the underlying facts, because they're not before the jury and there was no evidence introduced about that."
Further, the trial court said that the defense was still requesting the jury instruction, but the prosecution was opposed to the requested instruction because it included factual inaccuracies and evidence that had not been presented. The trial court said, "And so the proposed instruction does not appear appropriate to the Court. It's misleading. It states facts that are not in evidence. The Court would be creating huge error in reading such instruction. But there is no other instruction that the Court believes it could fashion at this point that could address the evidence as it stands that would be helpful to either side, other than the instructions you already have in your packet of instructions. [¶] So both sides will not argue about—that any—well, they will not argue or mention anything about that there was a fifth charge, or fifth count, and it was dismissed. That will not be mentioned by either side. Or the underlying facts involving (John Doe)."
Defense counsel explained that he did not intend to include inaccuracies in the proposed instruction. The trial court explained that the problem with the proposed instruction is that "none of that evidence came out. . . . You can't instruct the jury and give them facts." The trial court asked if either party was requesting any other instruction. Both parties said they had no further requests.
2. ANALYSIS
Defendant contends the trial court erred by denying his motion for a mistrial because the prosecutor's cross-examination of defendant "left the jury with the incorrect impression that [defendant] had lied when he said that he had never been accused of these types of crimes before."
"The trial court should grant a mistrial if it is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] It is 'vested with considerable discretion' to determine whether the incident is incurably prejudicial. [Citation.] It should grant a mistrial only when a party's chance of receiving a fair trial has been irreparably damaged. [Citation.] We review an order denying a motion for mistrial for abuse of discretion." (People v. Campbell (2017) 12 Cal.App.5th 666, 672.)
"In a criminal action, evidence of the defendant's character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by [Evidence Code] Section 1101 if such evidence is: [¶] (a) Offered by the defendant to prove his conduct in conformity with such character or trait of character. [¶] (b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a)." (Evid. Code, § 1102.) Thus, the prosecution can present "evidence regarding a defendant's character, but only when the defendant has first offered evidence placing his character in issue." (People v. McFarland (2000) 78 Cal.App.4th 489, 494.)
Courts have "imposed safeguards to cross-examination of defense reputation witnesses, to prevent prosecutorial abuse" of Evidence Code section 1102, subdivision (b). (People v. Hempstead (1983) 148 Cal.App.3d 949, 953.) "The Supreme Court held in People v. Eli (1967) 66 Cal.2d 63, 79 . . . , that the 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. The court subsequently explained in People v. Gonzales (1967) 66 Cal.2d 482, 502 . . . that 'One of the dangers sought to be minimized by Eli was that of the question, based upon a paucity or a total lack of factual support, which is asked with little or no hope of affirmative response and with the basic purpose of creating through innuendo that which cannot be established by proof.'
"The rule set forth in Eli and Gonzales was expanded in People v. Kramer [(1968)] 259 Cal.App.2d [452,] 466-468 . . . . The Kramer court characterized the Eli-Gonzales rule as one requiring the prosecutor 'to show that the questions are asked in good faith' [citation], and held that 'good faith requires, in addition to factual support for the matters inferred in the question, that the question be asked in anticipation of an affirmative response and not simply for the purpose of getting an innuendo before the jury.' " (People v. Hempstead, supra, 148 Cal.App.3d at p. 953, italics omitted.)
Prior to trial, defense counsel conceded that the propensity evidence involving John Doe would be admissible under Evidence Code section 1108. In defense counsel's opening statement, he said, "And so [Mother] and Nicole fabricated allegations that he touched their children, that he touched [the victim] and did things to [the victim], and that he touched Nicole's child, (John Doe), [a] two-and-a-half-year-old boy, and did things to him. But it wasn't true." Thus, the record reflects that defense counsel conceded there were allegations against defendant of sexual abuse involving John Doe. As a result, it would have been reasonable for the prosecutor to have a good faith belief that there were allegations against defendant of sexual abuse involving John Doe.
On cross-examination, the prosecutor asked defendant, (1) "[H]ave you had other children disclose that you had molested them besides [the victim]?"; (2) "Other than [the victim], has anyone accused you of molesting them?"; (3) "Has another child besides [the victim] disclosed that you molested them?"; (4) "Are you aware of any disclosures other than [the victim]?"; and (5) "So are you or are you not aware of an additional disclosure?"
The prosecutor's questions focused on whether another child had accused defendant of sexual abuse. The prosecutor did not ask if the John Doe accusation was true or false. The prosecutor only asked if defendant had been accused of sexual abuse by a child other than the victim. As explained ante, it was reasonable to conclude the prosecutor had a good faith belief that defendant would answer affirmatively to such a question, especially in light of defense counsel's theory during opening statement that Mother and Nicole colluded to create the false allegations involving the victim and John Doe. Because it was reasonable to conclude that the prosecutor had a good faith belief that he would receive an affirmative response to his questions, it was reasonable for the trial court to conclude that defendant's right to a fair trial had not been irreparably damaged. In sum, we conclude the trial court did not err by denying defendant's motion for a mistrial.
Defendant contends his trial was rendered unfair because the prosecutor's questions left the jury with the impression that defendant lied on direct examination when defendant said there had not been any other allegations involving himself and children. The exchange on direct examination was as follows: "[Defense counsel]: And has there ever been any allegation or complaint of any kind
"[Defendant]: None.
"[Defense counsel]: —relating to you and children?
"[Defendant]: No."
On cross-examination, the prosecutor asked, "Other than [the victim], has anyone accused you of molesting them?" Defendant responded, "As I said, not until this case. And then during this case, there was another one that was suddenly related to this case that came forward and accused me of—fake claim of molestation."
Thus, on direct examination defendant said there had not "ever been any allegation or complain of any kind" involving himself and children. However, on cross-examination, defendant said the victim and another child had accused him of sexual molestation. Thus, it was defendant's contradictory answers—not the prosecutor's questions—that might have given the impression that defendant was less than forthright on direct exam.
Next, defendant contends the cross-examination rendered his trial unfair because the prosecutor elicited information about an allegation of sexual abuse involving John Doe, but then the prosecutor did not provide any further information concerning John Doe's accusation, which "left the jury with the impression that there were other outstanding allegations against appellant." Defendant does not explain what prevented defendant from providing further testimony about the allegations involving John Doe or from calling Detective Franchville to testify about the allegations. Defendant fails to indicate what law supports a theory that the prosecutor was legally required to provide further evidence concerning John Doe. Accordingly, we are not persuaded that the cross-examination rendered defendant's trial unfair, and thus we are not persuaded that the trial court erred by denying defendant's motion for a mistrial.
H. CUMULATIVE PREJUDICE
Defendant contends the cumulative effect of the foregoing alleged errors requires the judgment against him be reversed. We have found no errors. Therefore, we have nothing to cumulate. (See People v. Duff (2014) 58 Cal.4th 527, 562 ["In the absence of error, there is nothing to cumulate"].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.