P. v. Sanchez CA2/5

Filed 7/11/13 P. v. Sanchez CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B241883

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA095889)
v.

ADRIAN P. SANCHEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of the County of Los Angeles,
Mike Camacho, Jr., Judge. Affirmed.
David H. Goodwin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, David E. Madeo, Deputy Attorney General, for
Plaintiff and Respondent.
 INTRODUCTION

Defendant and appellant Adrian P. Sanchez (defendant) was convicted of
two counts of a lewd act upon a child (Pen. Code, § 288, subd. (a)1), kidnapping (§ 207,
sub. (a)), unlawful sexual intercourse (§ 261.5, subd. (d)), aggravated sexual assault of a
child (rape) (§ 269, subd. (a)(1)), sodomy in violation of (§ 286, subd. (c)(2)(c)), and
sexual penetration upon a child (§ 289, subd. (a)(1)(C)(5)). On appeal, defendant
contends that the trial court erred in instructing the jury with CALCRIM Nos. 1111,
1000, 1030 and 1045; denied his constitutional right to due process and a fair trial by
refusing his request for a pinpoint instruction on his propensity to act in a certain manner;
and denied his constitutional due process rights by denying his motion for a new trial
because law enforcement officers interfered with defense efforts to contact witnesses
before trial. We affirm the judgment of conviction.

BACKGROUND

A. Factual Background

1. Prosecution Evidence
Patricia was 16 years old at the time of trial. She lived in El Monte with her sister,
M., her brother, Alejandro, and their mother. Defendant lived next door to Patricia’s
family for several years.
Defendant is about eight years older than M., who is almost seven years older
than Patricia. In or about 2002, defendant started dating M., and they dated for about 10
years. M. was 12 years old she and defendant would kiss, hold hands, and defendant may
have touched her breast. When M. was about 13 years old, she considered defendant her
boyfriend; defendant began having sexual relations with M. when she was 15 year old.

1
All statutory citations are to the Penal Code unless otherwise noted.

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 In about 2006, defendant moved in with Patricia and her family. Defendant did
not do so because the family was in need of financial assistance.
On July 1, 2009, when Patricia was 13 years old, her mother died. M. and
defendant both worked to pay the household bills, but because at that time M. was only
earning approximately 210 dollars per week, the rent was primarily paid by defendant.
M. gave the money she earned to defendant so that he could pay the bills. Defendant
rented two of the bedrooms in the house to his friends.
About a week after Patricia’s mother died, defendant touched Patricia
inappropriately on her breast, and pulled Patricia’s pajama bottoms down. She was
scared and told defendant to stop, but did not want to say it loudly because her brother
was sleeping in the same room and she was embarrassed. Defendant opened Patricia’s
legs with his hand, placed his penis in Patricia’s vagina, and eventually ejaculated outside
of her vagina. Defendant told Patricia that he loved her and she was not to tell anyone
what happened. Defendant said that if she told anyone, he would leave her and M. and
move out of the house. Defendant said that they would not be able to pay the rent and
would be homeless.
When Patricia was about 13 years old, defendant put his penis inside her anus for
the first time. Defendant did that a total of about five or six times.
When Patricia was 14 years old, defendant penetrated her vagina with his finger.
Multiple times defendant grabbed Patricia hand and made her touch his penis inside his
pajamas. Defendant would also tell Patricia to put her mouth on his penis, and she did so
because she was scared. Twice defendant ejaculated in Patricia’s mouth. Defendant also
put his mouth on Patricia’s vagina.
Patricia tried to push defendant away whenever he touched her. She told him to
stop, but he continued. Defendant regularly told Patricia that if she told anyone what he
did to her, defendant would move out, and her sister would not be able to support her
family.
In February or March 2011, outside her house, Patricia told defendant that she did
not want to have sex with him. Defendant was in the driver’s seat of his truck, and

3
Patricia was standing outside the passenger seat. Defendant became angry and forcibly
pulled Patricia into the truck. She tried to get out, but defendant pulled her shirt, ripping
it, and grabbed her hair. Defendant drove onto the freeway and said that, if she was not
going “to be his,” then she was not going to be with anyone else; defendant threatened to
drive into oncoming traffic to kill them both. Patricia was scared and opened the door to
jump out of the moving truck. Defendant grabbed her arm and held her. Defendant
exited the freeway, stopped the vehicle, started crying, and told Patricia that he loved
her. Patricia was still scared, but she agreed to have sex with him again because she was
afraid that he was going to leave.
Defendant had sex with Patricia over 70 times between 2009 and 2011. Patricia
estimated that it occurred approximately once a week. Patricia did not want to have sex
with defendant and did not want to be his girlfriend.
When Patricia was 15 years old, she told her school counselor that defendant was
abusing her, and the counselor called the police. On October 20, 2011, Patricia spoke to
the police about defendant’s sexual abuse over the last two years.
Defendant was arrested that month. The last time that defendant sexually abused Patricia
was the week before he was arrested.
On October 20, 2011, law enforcement officers interviewed defendant, and the
interview was recorded and played for the jury. Defendant said that he and Patricia were
boyfriend and girlfriend after her mother died. He admitted to touching Patricia sexually
and performing oral sex on her when she was 15 years old, and that he had sexual
intercourse with Patricia once or twice a week for a year and a half. He said he never
forced Patricia to have sex. Patricia performed oral sex on him at least ten times, and he
had anal sex with her several times. Defendant was also having sex with M. during this
time. Defendant said that M. was unable to give him children, so he had to find a way to
have a child with someone else.
Lucia is the aunt of Patricia and Alejandro, and in October 2011, Patricia and
Alejandro went to live with Lucia. Later, a defense investigator asked Lucia for

4
permission to speak with either Patricia or Alejandro, and Lucia refused to allow that.
Alejandro later refused to speak with the investigator.

2. Defendant’s Evidence
Defendant did not testify and presented no evidence.

B. Procedural Background
The District Attorney of Los Angeles County filed an information charging
defendant with lewd act upon a child, in violation of section 288, subdivision (a) (count
1), forcible lewd act upon a child in violation of section 288, subdivision (b)(1) (count 2),
kidnapping in violation of section 207, subdivision (a) (count 3), unlawful sexual
intercourse in violation of section 261.5, subdivision (d) (count 4), aggravated sexual
assault of a child (rape) in violation of sections 269, subdivision (a)(1) (count 5),
aggravated sexual assault of a child (sodomy) in violation of section 269, subdivision
(a)(3) (count 6), and aggravated sexual assault of a child (§ 289(a)) in violation of section
269, subdivision (a)(5) (count 7). Counts 6 and 7 were modified as sodomy in violation
of section 286, subdivision (c)(2)(c), and sexual penetration upon a child in violation of
section 289, subdivision (a)(1)(C), respectively.
Following a trial, on count two the jury found defendant guilty of lewd act upon a
child, in violation of section 288, subdivision (a), and guilty as charged on the remaining
counts. The trial court sentenced defendant to a total determinate term of 28 years, eight
months to life in state prison, plus 15 years to life in state prison. On count 5, the court
imposed a 15-years-to-life term. The court imposed a consecutive six-year term on count
1, a concurrent six-year term on count 2, a consecutive term of one year and eight months
on count 3, a concurrent three-year term on count 4, a consecutive 11-year term on count
6, and a consecutive 10-year term on count 7.

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 DISCUSSION

A. CALCRIM Nos. 1111, 1000, 1030 and 1045
Defendant contends that the trial court erred in instructing the jury with
CALCRIM Nos. 1111, 1000, 1030, and 1045. According to defendant, because
CALCRIM Nos. 1111, 1000, 1030, and 1045 provide that the relevant wrongful acts can
be accomplished by “fear” if the victim or another person “is actually and reasonably
afraid or she is actually but unreasonably afraid and the defendant knows of her fear and
takes advantage of it,” they “negate[d] the need for the offense[s] [set forth in counts 2, 5,
6, and 7, respectively] to have been accomplished by means of ‘fear of immediate and
unlawful bodily injury.’”
Defendant was not prejudiced as to his claim of instructional error as to
CALCRIM Nos. 1111, and he forfeited his claim of error as to CALCRIM Nos. 1000,
1030 and 1045. In any event, these instructions were proper statements of the law.

1. Standard of Review
We review defendant’s claims of instructional error de novo. (People v. Cole
(2004) 33 Cal.4th 1158, 1210; People v. Sweeney (2009) 175 Cal.App.4th 210, 223.)
“‘The proper test for judging the adequacy of instructions is to decide whether the trial
court “fully and fairly instructed on the applicable law . . . .” [Citation.] “‘In determining
whether error has been committed in giving or not giving jury instructions, we must
consider the instructions as a whole … [and] assume that the jurors are intelligent persons
and capable of understanding and correlating all jury instructions which are given.
[Citation.]’” [Citation.] “Instructions should be interpreted, if possible, so as to support
the judgment rather than defeat it if they are reasonably susceptible to such
interpretation.” [Citation.]’ (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112
[93 Cal.Rptr.2d 433].)” (People v. Johnson (2009) 180 Cal.App.4th 702, 707.)

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 2. Relevant Proceedings
The trial court discussed instructions on each offense. Regarding count 2—
forcible lewd act upon a child, in violation of section 288, subdivision (b)(1)—the trial
court discussed CALCRIM No. 1111, which states in part, “In committing the act, the
defendant used force, violence, duress, menace, or fear of immediate and unlawful bodily
injury to the child or someone else.” Defense counsel objected that violence, duress,
menace, and fear of bodily injury should be eliminated from the jury instruction. The
trial court agreed to eliminate from the jury instruction the element of defendant using
duress and menace, but that it would conduct additional research regarding the
instruction.
Regarding count 5—aggravated sexual assault of a child, in violation of section
269, subdivision (a)(1)—the trial court discussed CALCRIM No. 1000 concerning rape
by force, an element of count 5. CALCRIM No. 1000 states in part, “The defendant
accomplished the intercourse by force, violence, duress, menace, or fear of immediate
and unlawful bodily injury to the woman or to someone else.” The trial court stated that
it would eliminate from the jury instruction the reference to violence, duress and menace
as means that defendant used to commit the crime, leaving only force and fear of bodily
injury. Defense counsel stated that this modification was acceptable.
On count 6, sodomy, in violation of section 286, subdivision (c)(2)(C), defense
counsel suggested that the trial court utilize CALJIC No. 10.59.8 rather than CALCRIM
No. 1030 because the CALCRIM instruction did not include the age-range elements for
this particular crime. The trial court suggested modifying CALCRIM No. 1030 to
include the additional age-range elements. Defense counsel also requested that the trial
court instruct the jury with CALJIC No. 10.51, for count 7, sexual penetration upon a
child, in violation of section 289, subdivision (a)(1)(C), rather than with CALCRIM No.
1045, for the same reason. The trial court modified the CALCRIM instructions for counts
6 and 7 (CALCRIM Nos. 1030 and 1045, respectively) to include that “the other person,
a minor who was 14 years of age or older, did not consent to the act.” Defense counsel
agreed to this modification.

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 The trial court instructed the jury with the following modified jury instructions:
CALCRIM No. 1111 regarding count 2 for a forcible lewd act upon a child; CALCRIM
No. 1000 concerning rape by force, an element of count 5 for aggravated sexual assault
of a child (CALCRIM 1123); CALCRIM No. 1030 regarding count 6 for forcible
sodomy; and CALCRIM No. 1045 regarding count 7 for forcible sexual penetration.
Each of the jury instructions provided that defendant can accomplish the relevant
wrongful act by “fear of immediate and unlawful bodily injury” to the victim or another,
and the wrongful act can be accomplished by “fear” if the victim or another person “is
actually and reasonably afraid or she is actually but unreasonably afraid and the
defendant knows of her fear and takes advantage of it.”

3. Analysis

i. Prejudicial Error Regarding CALCRIM No. 1111
Defendant contends that the trial court erred in instructing the jury with
CALCRIM No. 1111. Defendant did not establish that he was prejudiced by such a
claimed error. (People v. Hines (1997) 15 Cal.4th 997, 1080 [“Absent prejudicial error or
legal insufficiency of evidence, this court must uphold the jury’s verdict”].)
The trial court instructed the jury with CALCRIM 1111, as modified, as to count 2
for “lewd or lascivious act by force or fear on a child under the age of 14 years in
violation of . . . section 288, subdivision (b), subdivision (1).” The jury, however, found
defendant not guilty of that charge, and instead convicted him under count 2 for the lesser
offense of performing a lewd act upon a child, in violation of section 288, subdivision (a).
Plaintiff has not established that even if the trial court erred in instructing the jury with
CALCRIM No. 1111, it was prejudicial error. Even if defendant would have been
prejudiced by a purported error in instructing the jury with CALCRIM No. 1111,
however, as discussed post, the trial court did not err.

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 ii. Forfeiture
The Attorney General contends that defendant has forfeited his instructional
claims of error regarding CALCRIM Nos. 1000, 1030 and 1045. We agree.
“Ordinarily, an appellate court will not consider a claim of error if an objection
could have been, but was not, made in the lower court. [Citation.] The reason for this
rule is that ‘[i]t is both unfair and inefficient to permit a claim of error on appeal that, if
timely brought to the attention of the trial court, could have been easily corrected or
avoided.’ [Citations.] ‘[T]he forfeiture rule ensures that the opposing party is given an
opportunity to address the objection, and it prevents a party from engaging in
gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.’
[Citation.]” (People v. French (2008) 43 Cal.4th 36, 46.) The forfeiture rule specifically
applies to a defendant who fails to object to a jury instruction on the grounds urged on
appeal. “Defendant’s failure to object to the instruction below . . . forfeits the claim on
appeal. [Citations.]” (People v. Virgil (2011) 51 Cal.4th 1210, 1260; People v. Stone
(2008) 160 Cal.App.4th 323, 331.)
On appeal, defendant contends that the trial court erred in instructing the jury with
CALCRIM Nos. 1111, 1000, 1030, and 1045, as modified, because they provide that
the relevant wrongful acts can be accomplished by “fear” if the victim or another person
was in reasonable fear, or was in unreasonable fear and the defendant knows that
unreasonable fear and takes advantage of it. Defendant, however, only objected to the
fear element remaining in CALCRIM 1111; he did not do so regarding CALCRIM Nos.
1000, 1030, and 1045. He therefore forfeited his claims that the trial court erred in
instructing the jury with those latter instructions.
An appellate court may review a jury instruction in the absence of objection if the
substantial rights of the defendant are affected. (§ 1259; People v. Flood (1998) 18
Cal.4th 470, 482, fn. 7; People v. Anderson (2007) 152 Cal.App.4th 919, 927.) Because,
as discussed below, the trial court did not err in instructing the jury with CALCRIM Nos.
1000, 1030 and 1045, as modified, defendant’s substantial rights were not affected.

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 iii. Instructing the Jury with CALCRIM Nos. 1111,
1000, 1030, and 1045
Defendant contends that CALCRIM Nos. 1111, 1000, 1030 and 1045, as given by
the trial court, “were constitutionally flawed because they removed an essential element
of the offense from the jury’s consideration, in violation of the Sixth Amendment right to
a jury trial and the Fifth and Fourteenth Amendment rights to due process of law.” We
disagree.
Each of the challenged jury instructions defines offenses that punish a defendant
who accomplishes the relevant wrongful act by “fear of immediate and unlawful bodily
injury” to the victim or another. Because the jury instructions state that the wrongful act
can be accomplished by “fear” if the victim or another person “is actually and reasonably
afraid or she is actually but unreasonably afraid and the defendant knows of her fear and
takes advantage of it,” according to defendant, they “negate[] the need for the offenses to
have been accomplished by means of ‘fear of immediate and unlawful bodily injury.’”
Defendant argues that the instructions allowed the jury to convict him based on a finding
that the victim (or the relevant other person) was simply afraid of something other than
immediate bodily injury, such as fear of financial hardship.
The jury was also instructed with CALCRIM 200 stating that they were to
consider the jury instructions as a whole, and that whether some instructions applied
would depend on what the jury found to be the facts. “We presume that the jury
understood and followed the instructions. (People v. Stitely [(2005)] 35 Cal.4th [514,]
559.)” (People v. Jablonski (2006) 37 Cal.4th 774, 834; People v. Cline (1998) 60
Cal.App.4th 1327, 1336.)
The element of fear of immediate and unlawful bodily injury has an objective as
well as a subjective component. The subjective component “asks whether a victim
genuinely entertained a fear of immediate and unlawful bodily injury sufficient to induce
her to submit to sexual intercourse against her will. In order to satisfy this component,
the extent or seriousness of the injury feared is immaterial.” (People v. Iniguez (1994) 7
Cal.4th 847, 856; People v. Barnes (1986) 42 Cal.3d 284, 304.)

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 Defendant erroneously reads the portion of the jury instruction that the victim (or
another person) is deemed to be in fear if she “is actually and reasonably afraid or she is
actually but unreasonably afraid and the defendant knows of her fear and takes advantage
of it,” in isolation from the remaining portions of the instructions. Defining that the fear
element can be satisfied by one either being objectively or subjectively fearful does not
“negate[]” the requirement, specified in each of the challenged jury instructions, that the
fear must be of an immediate and unlawful bodily injury. The trial court did not err in
instructing the jury with CALCRIM Nos. 1111, 1000, 1030 and 1045, as modified.

B. Pinpoint Instruction
Defendant contends that the trial court denied his constitutional right to due
process and a fair trial by refusing his request for a pinpoint instruction on his propensity
to act in a certain manner. We disagree.

1. Relevant Proceedings
Defendant’s counsel requested that the trial court instruct the jury with CALCRIM
No. 350 on the character of the defendant, which instruction states in relevant part, “You
have heard character testimony that the defendant (is a _________________ person/ [or] has a good reputation for
_________________ in the
community where (he/she) lives or works). [¶] . . . [¶] You may take that testimony into
consideration along with all the other evidence in deciding whether the People have
proved that the defendant is guilty beyond a reasonable doubt.”
M. testified that although she had sexual relations with defendant, if she did not
want to engage in any sexual acts, including sodomy, defendant would not force her to do
it. Defendant never threatened to leave her or her family if she did not engage in a sexual
act. Defendant’s counsel argued that this supported defendant having a character trait
that he would not force Patricia to have sex with him when she did not want to do so.

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The prosecutor argued that defendant’s acts with M. were not relevant because she was
an adult and was in a romantic relationship with defendant.
The trial court denied the requested instruction, finding that “although it is a
legitimate issue to argue [to the jury, that because defendant did not force M. to perform
sexual acts, he would not force Patricia to have sex with him when she did not want to]
but not in the sense of [it being a] character trait. . . . Force can be something implied.
That’s why we have issues of duress and coercion here, manipulation of a young child to
consent to certain acts that a child would not otherwise do had . . . she not been in that
environment. In this case, I’m thinking about the victim’s concern that if she didn’t
acquiesce to the defendant’s demands that she and her family would be left out on the
streets or something to that extent. I don’t think this is the type of character evidence I
need to instruct the jury on. I think it would be more confusing anyway.”

2. Analysis
“A trial court must instruct the jury . . . on all general principles of law . . . ‘“that
are necessary for the jury’s understanding of the case.” [Citation.] In addition, “a
defendant has a right to an instruction that pinpoints the theory of the defense . . . .”’
[Citation.] The court may, however, ‘properly refuse an instruction offered by the
defendant if it incorrectly states the law, is argumentative, duplicative, or potentially
confusing [citation], or if it is not supported by substantial evidence [citation].’
[Citation.]” (People v. Burney (2009) 47 Cal.4th 203, 246.)
A defendant may rebut with character evidence the evidence introduced by the
prosecution of defendant’s uncharged sexual offenses to show the defendant has a
disposition to commit sex offenses. (People v. Callahan (1999) 74 Cal.App.4th 356,
374-379.) Defendant was M.’s “boyfriend” commencing when she was 13 years old.
The prosecution introduced evidence that defendant began having sexual relations with
M. when she was about 15 years old. The jury was instructed with CALCRIM 1191

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regarding evidence of uncharged sex offenses.2 Defendant does not contend that the trial
court erred in instructing the jury with CALCRIM 1191.
“The term ‘character’ or ‘character evidence’ is not defined in the Evidence Code,
but the term ‘character’ has been described as ‘the tendency to act in a certain manner
under given circumstances.’” (People v. Callahan, supra, 74 Cal.App.4th at p. 375,
citing People v. Shoemaker (1982) 135 Cal.App.3d 442, 446, fn. 2.) “[C]haracter
evidence . . . is limited to evidence of the character or trait of character relevant to the
offense charged.” (People v. Taylor (1986) 180 Cal.App.3d 622, 629.)
The trial court had the discretion to determine that evidence defendant did not
force M. to have sexual intercourse is not relevant to whether he would force Patricia to
have sex with him. According to the prosecution, defendant coerced Patricia to acquiesce
to his sexual demands based on the threat that if she refused his demands he would leave
and she and her family would suffer a financial hardship. That defendant did not threaten
M. that he would leave her or her family if she did not engage in a sexual act is not
probative of whether defendant made that threat to Patricia. The circumstances were

2
The trial court instructed the jury with CALCRIM 1191, as modified, as follows:
“The People presented evidence that the defendant committed the crime of lewd act upon
a child, in violation of Penal Code section 288, subdivision (a) that was not charged in
this case. This crime is defined for you in these instructions. [¶] You may consider this
evidence only if the People have proved by a preponderance of the evidence that the
defendant, in fact, committed the uncharged offense. Proof by a preponderance of the
evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is
proved by a preponderance of the evidence if you conclude that it is more likely than not
that the fact is true. [¶] If the People have not met this burden of proof, you must
disregard this evidence entirely. [¶] If you decide that the defendant committed the
uncharged offense, you may but are not required to conclude from that evidence that the
defendant was disposed or inclined to commit sexual offenses, and based on that
decision, also conclude that the defendant was likely to commit and did commit the
offenses charged here. If you conclude that the defendant committed the uncharged
offense, that conclusion is only one factor to consider along with all the other evidence.
It is not sufficient by itself to prove that the defendant is guilty of the offenses. The
People must still prove each charge beyond a reasonable doubt. [¶] Do not consider this
evidence for any other purpose.”

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different. Had defendant threatened M. to leave her or her family, it would not be
equivalent to making such a threat to Patricia.
When defendant and M. began having sexual relations, M.’s mother was alive and
defendant was not supporting the family. M., almost seven years older than Patricia, was
20 years old when her mother passed away and defendant started helping to support the
family. By contrast, when defendant began to sexually abuse Patricia, Patricia was 13
years old, it was after the mother died, and defendant was helping to support the family.
Any threat by defendant to M. before her mother died would not impact the family’s
financial stability. Any threat by defendant to M. after her mother died would not have
the same impact as on a 13-year-old child because at the time M. was at least twenty
years old and, unlike a minor child, had some control over the family’s financial stability.
In addition, defendant’s sexual abuse of Patricia was based on fear and duress.
The fact that defendant did not physically force M., his adult girlfriend, to engage in
sexual acts did not support his defense that he never sexually abused Patricia, a minor, by
means of fear or duress.
The trial court did not err in refusing to instruct the jury with CALCRIM 350
because it was not relevant and was potentially confusing. (People v. Burney, supra, 47
Cal.4th at p. 246.)

C. Impeding Defendants Efforts to Contact Witnesses
Defendant contends that reversal is required because his state and federal
constitutional due process rights and right to effective counsel were violated by law
enforcement officers who interfered with defense efforts to contact witnesses before trial.
We disagree.

1. Standard of Review

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 “[W]e independently review orders denying a motion for new trial to determine if
prejudicial trial error occurred (People v. Ault (2004) 33 Cal.4th 1250, 1261 [17
Cal.Rptr.3d 302, 95 P.3d 523]).” (People v. Mayham (2013) 212 Cal.App.4th 847, 850.)

2. Relevant Proceedings
Lucia testified at trial utilizing the services of a Spanish-language interpreter. In
October 2011, Lucia’s niece, Patricia, and Lucia’s nephew, Alejandro, came to live with
Lucia. Before trial, a defense investigator contacted Lucia and asked to speak with
Patricia and Alejandro about the case. Lucia had her daughter call El Monte Police
Department Detective Carter, the investigator on defendant’s case, to ask if she should
allow defendant’s investigator to speak with Patricia and Alejandro. After speaking with
the detective, Lucia’s daughter told Lucia that “they shouldn’t talk to anyone.” Lucia
testified that she did not personally speak with Detective Carter and does not know if
those were his words. Based on what Lucia’s daughter told her after her conversation
with Detective Carter, Lucia did not allow the investigator to speak with Patricia.
Because Alejandro was an adult—then 18 years old—Lucia asked Alejandro if he wanted
to be interviewed, and he said no. Lucia also refused to be interviewed. On March 13,
2012, the defense investigator contacted Alejandro, and Alejandro declined to discuss
this matter with him.
Defendant filed a motion for new trial alleging, inter alia, police misconduct in
preventing Patricia and Alejandro from speaking to the defense investigator before trial
denied him his due process rights. The prosecutor opposed the motion stating,
“Following receipt of the defendant’s motion for a new trial, investigators from the
District Attorney’s Office contacted Marlin . . ., Lucia[’s] . . . daughter. Marlin told [one
of the investigator’s] that Det. Carter told her the children did not have to talk to the
defense investigator if they did not want to and they were not obligated to speak with the
investigator. Marlin interpreted this response to mean her mother should not allow the
children to be interviewed and instructed her accordingly, which is consistent with
Lucia’s trial testimony.” The trial court denied defendant’s motion.

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 3. Analysis
“‘The requirement of the Fourteenth Amendment is for a fair trial’; the due
process clause ‘prohibits the conviction and incarceration of one whose trial is offensive
to the common and fundamental ideas of fairness and right.’ Compliance with this
standard required that appellant, charged with a capital offense, be represented at trial by
counsel.” (Brubaker v. Dickson (9th Cir. 1962) 310 F.2d 30, 37; see People v. Staten
(2000) 24 Cal.4th 434, 450.) The due process right of effective counsel includes the right
to services necessary in the preparation of a defense. (Mason v. State of Arizona (9th Cir.
1974) 504 F.2d 1345, 1351; People v. Faxel (1979) 91 Cal.App.3d 327, 330.)
The due process clause of the Fourteenth Amendment includes the right of an
accused to have compulsory process for obtaining witnesses in his favor. (Washington v.
Texas (1967) 388 U.S. 14, 17-18.) “[A] defendant’s ‘constitutional right to compulsory
process is violated when the government interferes with the exercise of his right to
present witnesses on his own behalf . . . .’” (People v. Fuiava (2012) 53 Cal.4th 622,
691.) “‘“Whether rooted directly in the Due Process Clause of the Fourteenth
Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth
Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity
to present a complete defense.’” [Citation.]’” (People v. Gonzales (2012) 54 Cal.4th
1234, 1258.)
“[A] prosecutor has no right to instruct witnesses not to talk with a defendant or
defense counsel. [Citation.] A defendant, having the right to compulsory process for
obtaining witnesses to testify in his behalf, also has the right either personally or by
attorney, subject in certain instances to the proper exercise of judicial supervision, to
ascertain what their testimony will be. [Citation.] This does not mean, of course, that a
court has the authority to compel a witness to submit to an interview where the witness
objects. [Citation.] It simply means a defendant is free to interview a witness where the
witness is willing. [Citation.] Where the witness informs one party of his or her
knowledge of a case and refuses to speak to the other party’s representative, the remedy

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is impeachment of the witness’s testimony on the basis of bias. [Citation.]” (People v.
Pitts (1990) 223 Cal.App.3d 606, 872-873, superseded on other grounds as stated in
People v. Levesque (1995) 35 Cal.App.4th 530, 536-537.)
Defendant has failed to show that the prosecution, or any law enforcement officer,
committed misconduct, and there was substantial evidence that they did not commit
misconduct. Defendant contends that, “During trial, it was revealed that after the defense
investigator tried to contact Patricia and Alejandro, Lucia . . . , the guardian for Patricia
and Alejandro, called the police detective who told her it was not correct for them to
speak to the defense investigator. As a result, she did not allow them to speak to the
investigator.” However, the record reflects that Lucia testified that her daughter, after
speaking with Detective Carter, told her that Patricia and Alejandro “shouldn’t talk to
anyone.” Because Lucia did not personally speak with Detective Carter, she does not
know if those were his words. The prosecutor’s opposition to defendant’s motion for
new trial states that Lucia’s daughter told one of prosecution’s investigators that
Detective Carter told her that the children did not have to talk to the defense investigator
if they did not want to and they were not obligated to speak with the investigator; Lucia’s
daughter apparently interpreted this response to mean that Lucia should not allow the
children to be interviewed. In addition, Lucia testified that she asked Alejandro, who was
an adult by this time, if he wanted to talk to the investigator, and he declined.
Defendant’s investigator also contacted Alejandro directly, and Alejandro declined to
speak to the investigator.
In addition, defendant failed to explain how he was prejudiced by law enforcement
officers who purportedly told Lucia that “it was not correct [for Patricia and Alejandro] to
speak to the defense investigator.” Plaintiff has not established that Patricia and
Alejandro would have spoken to the defense investigator because they had a choice not to
do so. In addition, assuming that they would have spoken with the defense investigator,
defendant has failed to establish that the defense would have received any information it
did not already know or that was in any way exculpatory or impeaching. Also, both
Patricia and Alejandro testified at trial, and Patricia also testified at the preliminary

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hearing. Defendant, therefore, had ample opportunity to question them about the events
in this case. There was no prejudicial misconduct.

DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MOSK, J.

We concur:

TURNER, P. J.

O’NEILL, J. *

*
Judge of the Ventura Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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