People v. Holmes CA4/1

Filed 1/21/14 P. v. Holmes CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D062866

Plaintiff and Respondent,

v. (Super. Ct. No. SCD185143)

TAMIR BILAL HOLMES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Frederick

L. Link, Judge. Affirmed with directions.

Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Laura A.

Glennon, Deputy Attorneys General, for Plaintiff and Respondent.
 Tamir Bilal Holmes appeals a judgment following his jury conviction on three

counts of committing a lewd act on a child under the age of 14 years (Pen. Code, § 288,

subd. (a)).1 On appeal, Holmes contends: (1) the trial court prejudicially erred by

instructing with CALCRIM No. 318 that evidence of a witness's statements before trial

could be used as evidence of the truth of the information in those statements; and (2) the

abstract of judgment must be corrected to show his sentence is to run concurrently with

his West Virginia prison term.2 Because we conclude the trial court's instructional error

was not prejudicial, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Kimberly was born in September 1990.3 In May 2004, she was 13 years old and

in the eighth grade. At that time, her parents were in divorce proceedings and she was

living with her mother, Laura.4 Because Laura worked full-time and attended evening

classes, Kimberly was often left unsupervised.

On an afternoon in May 2004, Kimberly was standing at a bus stop when Holmes,

then 26 years old, approached her. They conversed and exchanged names. When

1 All statutory references are to the Penal Code unless otherwise specified.

2 In his reply brief, Holmes, citing Salinas v. Texas (2013) ___ U.S. ___ [133 S.Ct.
2174, 186 L.Ed.2d 376], withdrew the contention in his opening brief that admission of
his pre-arrest, noncustodial silence violated his Fifth Amendment privilege against self-
incrimination. We do not consider the merits of that withdrawn contention.

3 To protect the victim's privacy, we use only her first name.

4 To protect Kimberly's privacy, we also use only the first names of her parents.

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Holmes asked her how old she was, Kimberly replied she was 15 years old. At trial,

Kimberly testified that she lied about her age because she wanted to feel a little older and

did not want to appear to be "some stupid little kid." When she asked him how old he

was, Holmes replied he was 17 or 18 years old. When he asked her where she lived, she

told him she lived a few blocks away and pointed in the direction of her home. Holmes

asked her for her telephone number and she gave it to him. Holmes told her he would

call her. She then told him she had to leave.

Count 1. About one week later, after Kimberly returned from Florida for her

father's graduation, Holmes called her and they agreed to meet at a nearby park on a later

day. On that day, Holmes walked up to Kimberly at the park and gave her a hug. They

walked to his car, a black Cadillac, got in, and drove to his apartment. They went into his

bedroom, sat on his bed, and watched television. They talked and then kissed. Kimberly

was really nervous because she had never kissed a boy before and was a virgin. Holmes

grabbed her stomach and pulled her closer to him. He touched her breast. He fiddled

around with the button on her pants and asked her if she wanted to have sex. She replied,

"No." However, he kept kissing her and trying to take off her pants. She continued

telling him she did not want to have sex, but he insisted. She finally said yes because she

did not know what else to do. Holmes then put on a condom, took off Kimberly's pants,

and got on top of her. When she told him she was a virgin, he told her he would go slow.

He then put his penis in her vagina. Kimberly felt a lot of pain and told him so. Holmes

replied that he would slow down. When the pain continued, she again told him about the

pain. Holmes got off of her, they dressed, and he drove her home. On the way home,

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Holmes told her he would call her. He also told her she should not tell anyone because

he was 18 years old and could get in a lot of trouble.

Count 2. A few days later, Holmes called Kimberly again. They met and drove in

his car back to his apartment. They went to his bedroom and kissed. When Holmes

asked her if she wanted to have sex, she agreed and they had sexual intercourse.

Afterward, he asked her if she was hungry and she said, "Yes." Holmes went out and

returned with a burrito, of which she ate a little bit. She then asked him to take her home,

which he apparently did.

Count 3. After Kimberly did not hear from Holmes for a while, she called him but

no one answered. She then went to his apartment and Holmes's mother came out and told

her he was at a dentist appointment. Kimberly went home. Later, Holmes called her and

they agreed to meet again. He picked her up in his car and then drove to his apartment.

They went to his bedroom and had sexual intercourse. Afterward, Holmes told her he did

not want her to get pregnant and that she should go on birth control. She replied that she

did not know and would have to speak with her mother. Holmes then drove her home.

Subsequent events and statements. On May 28, 2004, during a birthday party for

her brother, Kimberly told her maternal aunt she was having sex with someone older than

her. She told her aunt about it because she did not like it, wanted it to stop, was too

scared to say anything, and did not know how to stop it. Her aunt started crying. Later,

Kimberly's aunt apparently told her mother (Laura) about it. When her mother asked her

about it, Kimberly told her everything. Her mother started crying and just hugged her.

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 At trial, Laura testified she learned of Kimberly's relationship with Holmes in a

different way. She testified that, while driving, she saw Kimberly walking with Holmes

and yelled out, "What is going on?" Laura was concerned because Holmes looked about

24 years old. When she turned her car around, Kimberly was then walking by herself.

She got in her mother's car and they went home. When her mother asked her about

Holmes, Kimberly began to cry and told her that she had been going out with him and he

had taken advantage of her sexually. Kimberly told her she did not tell her earlier

because she was too frightened of her.

Laura told Kimberly's father, J., about the situation. He told Kimberly he wanted

to meet Holmes. When she asked Holmes to meet her father he initially declined, but

agreed when she said he could not see her again unless he met her father. J. met

Kimberly and Holmes in a mall parking garage. J. estimated Holmes was about 30 years

old. J. became angry, and told Holmes how old he appeared. Holmes told him he was 25

years old. When J. asked him whether he knew Kimberly's age, Holmes replied he

believed she was 15 years old. J. told him she was 13 years old. Holmes admitted to J.

that he had sex with Kimberly. J. apparently told him to never speak to his daughter

again.

In June 2004, J. took Kimberly to Planned Parenthood, where she spoke with a

registered nurse, Diana Glasner, about birth control. Kimberly told Glasner she was 13

years old and had been sexually active with a 17-year-old male for one month. As a

mandated reporter, Glasner later wrote a report regarding suspected child abuse based on

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the information Kimberly gave her and faxed the report to Child Protective Services

(CPS).

San Diego Police Detective Thomas Levenberg eventually received Glasner's CPS

report and began an investigation. On June 16, 2004, he interviewed Kimberly in person.

Kimberly told Levenberg how her relationship with Holmes began and what transpired.

She told him she had a sexual relationship with an older male, but was not seeing him

anymore. Viewing a "six-pack" photographic lineup Levenberg presented, Kimberly

positively identified Holmes as the male with whom she had sex. Kimberly also showed

Levenberg the location of Holmes's apartment, only about eight to 10 blocks from her

home.

On August 3, 2004, Levenberg and another detective, Dan Schmitt, went to

Holmes's apartment. Holmes answered the door and invited them inside. However,

when they introduced themselves as police, he stated he would be more comfortable

speaking with them outside. Once outside, Levenberg told Holmes they were there to

speak to him about Kimberly and what went on between the two of them. Holmes stated

he knew why and that he had already talked with her father and learned she was actually

13 years old. Holmes stated Kimberly had told him she was, or was almost, 18 years old.

Holmes asked the detectives whether he was in trouble. In a ruse, Levenberg stated

Kimberly was pregnant and he wanted a DNA sample from him. Holmes replied that he

wanted to talk to Kimberly or to her parents. He stated he did not know she was

pregnant. He never denied having sex with Kimberly or asserted that the baby was not

his. Levenberg told Holmes not to have any contact with Kimberly or her parents.

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 The following day, Levenberg contacted Kimberly and her parents and asked them

whether they would allow Kimberly to make a pretext phone call to Holmes in an attempt

to obtain an admission from him. After J. expressed concern about such a deceptive

method and his wish that Kimberly not speak with Holmes again, apparently no pretext

call was made. Levenberg took photographs of Kimberly to show how she appeared in

2004.

On August 27, 2004, a felony complaint was issued charging Holmes with two

counts of lewd acts on Kimberly, a child under the age of 14 years (§ 288, subd. (a)).

The complaint also alleged that in committing those offenses Holmes had substantial

sexual conduct with Kimberly within the meaning of section 1203.066, subdivision

(a)(8). However, Holmes apparently was not located and arrested until 2011. In 2012, an

amended information was issued charging Holmes with three counts of lewd acts on

Kimberly, a child under the age of 14 years (§ 288, subd. (a)). The complaint also

alleged that in committing those offenses Holmes had substantial sexual conduct with

Kimberly within the meaning of section 1203.066, subdivision (a)(8). It also alleged

Holmes had one prison prior offense (§§ 667.5, subd. (b), 668).

At trial, the prosecution presented testimony substantially as described above.

Holmes did not present any evidence in his defense. The jury found him guilty on all

three counts of lewd acts (§ 288, subd. (a)). It also found true the allegations he had

substantial sexual conduct with Kimberly in committing the first and third offenses, but

not in committing the second offense. The trial court sentenced Holmes to a total term of

seven years in prison. The court imposed the middle term of six years for counts one,

7
two, and three, to be served concurrently, with an additional one-year consecutive term

for his prison prior offense. Holmes timely filed a notice of appeal.

DISCUSSION

I

CALCRIM No. 318

Holmes contends the trial court prejudicially erred by instructing with CALCRIM

No. 318 that evidence of a witness's statements before trial could be used as evidence of

the truth of the information in those statements. He asserts that although testimony

regarding Kimberly's extrajudicial statements was admissible as nonhearsay, fresh

complaint evidence, the information in her extrajudicial statements could not be

considered substantively by the jury to prove his guilt of the charged offenses and

therefore the court erred by instructing to the contrary with CALCRIM No. 318.

A

Before trial, the prosecution sought admission of testimony by Kimberly's parents

regarding extrajudicial statements she made to them under the fresh complaint doctrine.

The prosecution argued the testimony was admissible as nonhearsay to show she made a

complaint regarding Holmes's conduct and the circumstances surrounding her complaint.

Holmes's counsel did not object to the prosecution's motion, and the trial court granted it.

At trial, Laura, J., Glasner, and Levenberg testified regarding certain extrajudicial

statements Kimberly made to them. The trial court instructed the jury with CALCRIM

NO. 318, as follows:

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 "You have heard evidence of statements that a witness made before
the trial. If you decide that the witness made those statements, you
may use those statements in two ways:

"1. To evaluate whether the witness's testimony in court is
believable; [¶] AND

"2. As evidence [that] the information in those earlier statements . . .
is true."

The jury found Holmes guilty on all three counts and found true two of the three

allegations regarding substantial sexual conduct.

B

Hearsay evidence is "evidence of a statement that was made other than by a

witness while testifying at the hearing and that is offered to prove the truth of the matter

stated." (Evid. Code, § 1200, subd. (a).) Hearsay evidence is inadmissible unless there

exists an exception to the general exclusionary rule. (Evid. Code, § 1200, subd. (b).)

Under the "fresh complaint" doctrine, a trial court may admit nonhearsay evidence

of a complaint made by a victim of a sexual offense. (People v. Brown (1994) 8 Cal.4th

746, 749-750 (Brown).) Brown stated:

"[P]roof of an extrajudicial complaint, made by the victim of a
sexual offense, disclosing the alleged assault, may be admissible for
a limited, nonhearsay purpose--namely, to establish the fact of, and
the circumstances surrounding, the victim's disclosure of the assault
to others--whenever the fact that the disclosure was made and the
circumstances under which it was made are relevant to the trier of
fact's determination as to whether the offense occurred." (Brown,
supra, 8 Cal.4th at pp. 749-750.)

Evidence of a fresh complaint may be relevant because "the circumstances under which

the complaint was made may aid the jury in determining whether the alleged offense

9
occurred. Furthermore, admission of evidence that such a prompt complaint was made

also will eliminate the risk that the jury, if not apprised of that fact, erroneously will infer

that no such prompt complaint was made." (Brown, supra, 8 Cal.4th at p. 761.)

However, the fresh complaint evidence should be "carefully limited to the fact that a

complaint was made, and to the circumstances surrounding the making of the complaint,

thereby eliminating or at least minimizing the risk that the jury will rely upon the

evidence for an impermissible hearsay purpose . . . ." (Id. at p. 762.) "Caution in this

regard is particularly important because, if the details of the victim's extrajudicial

complaint are admitted into evidence, even with a proper limiting instruction, a jury may

well find it difficult not to view these details as tending to prove the truth of the

underlying charge of sexual assault [citation], thereby converting the victim's statement

into a hearsay assertion [citation]." (Id. at p. 763.) Therefore, Brown concluded fresh

complaint evidence is admissible if relevant "so long as its probative value outweighs its

prejudicial effect. (Evid. Code, § 352.)" (Id. at p. 760.)

In People v. Burton (1961) 55 Cal.2d 328, at pages 351 to 352, the court stated:

"[T]he alleged victim's statement of the nature of the offense and the identity of the

asserted offender, without details, is proper. (E.g., People v. Adams (1928), 92 Cal.App.

6, 16 . . . ['that appellant had "ruined her" ']; . . . People v. Lopez (1917), 33 Cal.App. 530,

534 . . . ['that she had had sexual intercourse with her father']; [citation].)" In Burton, the

victim's testimony that her stepfather " 'made me play with his peter' " was permissible as

a statement of the fact of molestation. (Id. at pp. 337, 351; see also People v. Cordray

10
(1963) 221 Cal.App.2d 589, 594 [" 'he had pulled her pants down and he had kissed her

between the legs' "].)

On appeal, we apply the de novo, or independent, standard in reviewing whether a

trial court erred in instructing the jury. (People v. Hamilton (2009) 45 Cal.4th 863, 948;

People v. Berryman (1993) 6 Cal.4th 1048, 1089.)

C

Holmes asserts the trial court erred by instructing with CALCRIM No. 318 that

evidence of a witness's (e.g., Kimberly's) statements before trial could be used as

evidence of the truth of the information in those statements (e.g., to substantively prove

his guilt of the charged offenses) because fresh complaint evidence cannot be used for

that purpose. The People concede, and we agree, the trial court erred by so instructing

the jury.5 Brown stated: "[P]roof of an extrajudicial complaint, made by the victim of a

sexual offense, disclosing the alleged assault [i.e., fresh complaint evidence], may be

admissible for a limited, nonhearsay purpose--namely, to establish the fact of, and the

circumstances surrounding, the victim's disclosure of the assault to others--whenever the

fact that the disclosure was made and the circumstances under which it was made are

relevant to the trier of fact's determination as to whether the offense occurred." (Brown,

supra, 8 Cal.4th at pp. 749-750.) Therefore, the trial court should have modified its

5 However, the People assert Holmes waived any instructional error by not
objecting to it below. We choose to address the merits of his contention because there is
no waiver of instructional error if it affects Holmes's substantial rights (i.e., if it is
reasonably probable he would have obtained a more favorable result absent the
instructional error). (§ 1259; People v. Dunkle (2005) 36 Cal.4th 861, 929.)

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CALCRIM No. 318 instruction to state that Kimberly's extrajudicial statements could be

used only "[t]o evaluate whether the witness's testimony in court is believable." To the

extent the court instructed that those statements could also be used "[a]s evidence that the

information in those earlier statements is true," it erred.

D

Nevertheless, we conclude the trial court's instructional error was harmless under

the applicable state standard for prejudicial error. Contrary to Holmes's assertion, the

court's instructional error did not violate his Sixth Amendment right of confrontation or

his Fourteenth Amendment rights to due process and a fair trial. The Sixth Amendment

to the United States Constitution provides that "[t]he accused shall enjoy the right . . . to

be confronted with the witnesses against him . . . ." In Crawford v. Washington (2004)

541 U.S. 36, the Supreme Court held that under the Sixth Amendment testimonial

statements of witnesses absent from trial are admissible only where the declarant is

unavailable and where the defendant has had a prior opportunity to cross-examine the

declarant. (Id. at p. 59.) Crawford noted: "[W]hen the declarant appears for cross-

examination at trial, the Confrontation Clause places no constraints at all on the use of his

prior testimonial statements. [Citation.] . . . The Clause does not bar admission of a

statement so long as the declarant is present at trial to defend or explain it." (Id. at p. 59,

fn. 9, italics added.) In the circumstances of this case, the Sixth Amendment right of

confrontation therefore did not preclude admission of Kimberly's extrajudicial statements

because she was present at trial and available for cross-examination by the defendant

regarding those statements. (Cf. People v. Green (1971) 3 Cal.3d 981, 989-990 [no Sixth

12
Amendment violation where witness was recalled for further cross-examination regarding

his extrajudicial statements].)

Holmes asserts his Sixth Amendment right was violated because Kimberly's

extrajudicial statements were not offered during her testimony on direct examination by

the prosecutor, thereby improperly requiring him to recall her later for cross-examination.

However, in support of that assertion, he cites only one pre-Crawford case from a foreign

jurisdiction (i.e., Felix v. State (Nev. 1993) 849 P.2d 220, 247). We are not persuaded by

that case or Holmes's argument and conclude the Sixth Amendment right of confrontation

does not require the prosecution to present a witness's extrajudicial statements before or

during direct examination of the declarant. Under Crawford, the Sixth Amendment right

of confrontation does not bar admission of extrajudicial testimonial statements if the

declarant is present at trial and available for cross-examination by the defendant

regarding those statements. (Crawford v. Washington, supra, 541 U.S. at p. 59, fn. 9.)

Although Kimberly testified on direct examination before other witnesses testified

regarding her extrajudicial statements (i.e., Laura, J., Glasner, and Levenberg), she was

present at trial and Holmes had the opportunity to later recall and cross-examine her

regarding those extrajudicial statements. In addition, Holmes was alerted to the

substance of the later testimonies of witnesses regarding her extrajudicial statements

during the pretrial in limine motions. The fact Holmes did not avail himself of that

opportunity did not deprive him of his right of confrontation under the Sixth Amendment.

Therefore, the trial court's error did not violate Holmes's Sixth Amendment right of

confrontation.

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 Holmes also does not persuade us the court's instructional error violated his

Fourteenth Amendment rights to due process and a fair trial. The instructional error did

not deprive him of a fundamentally fair trial or so infuse the trial with unfairness as to

deny him due process of law. (Estelle v. McGuire (1991) 502 U.S. 62, 75.) In our view,

an instruction allowing the jury to consider fresh complaint evidence as hearsay to prove

the truth of the matter stated (e.g., to substantively prove Holmes's guilt of the charged

offenses) is not so egregious as to violate a defendant's federal constitutional rights to due

process and a fair trial.

Because Holmes does not show the trial court's instructional error violated a

federal constitutional right, we apply the state standard rather than the federal standard in

determining the prejudicial effect of that error. Under the state standard for prejudicial

error, the defendant has the burden on appeal to show it is reasonably probable he or she

would have obtained a more favorable outcome absent the error. (People v. Watson

(1956) 46 Cal.2d 818, 836.) In contrast, under the federal standard for prejudicial error,

the error is deemed prejudicial unless the government meets its burden on appeal to show

the error was harmless beyond a reasonable doubt. (Chapman v. California (1966) 386

U.S. 18, 24.) In this context, "probability" does not mean more likely than not, but

merely a reasonable chance and more than an abstract possibility. (Cassim v. Allstate Ins.

Co. (2004) 33 Cal.4th 780, 800; Richardson v. Superior Court (2008) 43 Cal.4th 1040,

1050.) In the context of instructional error, the California Supreme Court has suggested

certain factors for appellate courts to consider in determining an erroneous instruction's

prejudicial effect. (LeMons v. Regents of University of California (1978) 21 Cal.3d 869,

14
876.) LeMons stated: "While there is no precise formula for measuring the effect of an

erroneous instruction [citation], a number of factors are considered in measuring

prejudice: (1) the degree of conflict in the evidence on critical issues [citations]; (2)

whether respondent's argument to the jury may have contributed to the instruction's

misleading effect [citation]; (3) whether the jury requested a rereading of the erroneous

instruction [citation] or of related evidence [citation]; (4) the closeness of the jury's

verdict [citation]; and (5) the effect of other instructions in remedying the error

[citations]." (Ibid.)

Considering the LeMons factors and applying the Watson standard of prejudice

based on our review of the record in this case, we conclude the trial court's error by

instructing with CALCRIM No. 318 that evidence of Kimberly's extrajudicial statements

could be used as evidence of the truth of the information in those statements (i.e., to

substantively prove Holmes's guilt) was harmless. On the first LeMons factor, there was

little, if any, conflict in the evidence on the critical issues in this case. Kimberly testified

that Holmes had sexual intercourse with her on three occasions. The testimonies of

Laura, J., Glasner, and Levenberg regarding Kimberly's extrajudicial fresh complaints to

them could, and presumably was, considered by the jury as corroboration of her trial

testimony. To the extent the jury may have considered their testimony regarding

Kimberly's extrajudicial statements as substantive proof of Holmes's guilt (per the trial

court's erroneous CALCRIM No. 318 instruction), that evidence was cumulative to other

more direct proof of his guilt (i.e., Kimberly's trial testimony). There was no significant

conflict in the evidence on the issue of whether Holmes had sexual intercourse with

15
Kimberly on three occasions. Although Kimberly did not testify in a manner that gave

extensive details differentiating each occasion of lewd acts, the lack of differentiating

details did not show a conflict in the evidence. Rather, it likely showed, at most, that on

each occasion Holmes followed a similar pattern in having sexual intercourse with

Kimberly.

Furthermore, the insignificant discrepancies in the testimonies of various

witnesses regarding events occurring eight years before the trial does not show there was

a conflict in the evidence on the main issue in this case (i.e., whether Holmes engaged in

sexual intercourse with Kimberly on three occasions). For example, Holmes notes that

Kimberly testified she went to Planned Parenthood for a health check-up, whereas J.

testified she went there for birth control. Holmes also notes Kimberly testified she told

Laura about her sexual relationship with him after she told her aunt about it, and Laura

testified Kimberly told her about that relationship before then. None of the discrepancies

cited by Holmes constitutes a significant conflict in the evidence on the major issues in

this case. The discrepancies do not show Kimberly's testimony was not credible or that

the three occasions of her sexual intercourse with Holmes did not occur. Also, the fact

that the jury found Holmes had substantial sexual conduct with Kimberly on only two of

three occasions of sexual intercourse (or other lewd acts) does not show the jury found

her testimony incredible or would have found him not guilty on the second count had the

trial court correctly instructed the jury on the proper use of fresh complaint evidence.

On the second LeMons factor, the prosecutor's closing argument likely had little, if

any, effect on the jury's consideration and/or application of the court's erroneous

16
instruction and the ultimate outcome in this case. As Holmes notes, the prosecutor's

closing argument included a restatement of the trial court's erroneous CALCRIM No. 318

instruction. However, in arguing the weight of the evidence, the prosecutor relied

primarily on Kimberly's trial testimony and argued the jury should "focus on" the

credibility of her testimony by considering her trial demeanor and whether she had any

motive to lie or fabricate her testimony. The prosecutor also argued the fresh complaint

testimony of other witnesses (i.e., Laura, J., Glasner, and Levenberg) corroborated

Kimberly's trial testimony. To the extent the prosecutor also argued their fresh complaint

evidence could be used to substantively prove Holmes's guilt of the charged offenses, she

did not emphasize that erroneous use of fresh complaint evidence and we conclude it did

not significantly exacerbate the effect of the court's erroneous instruction.

On the third LeMons factor, although the jury did not request a rereading (or

further explanation) of the erroneous instruction, it did request, and received, rereadings

of certain testimony. The jury requested, and received, rereadings of the testimonies of

Kimberly, Laura, and Levenberg. Contrary to Holmes's assertion, we conclude the jury's

requests for rereadings of their testimonies do not show it "struggled to decide this case,"

but rather that it was carefully evaluating the evidence to reach a verdict. The jury also

asked to review Glasner's exam and Levenberg's report. The trial court denied those

requests. No prejudice because of the court's erroneous CALCRIM No. 318 instruction

can be reasonably inferred from the jury's requests.

On the fourth LeMons factor, the record does not show the jury's verdict was close.

Although the jury deliberated for about six hours, much of that time was spent sending

17
notes to the trial court, waiting for the court's responses, and listening to rereadings of

witness testimony. Given the fact the jury had to consider three counts of lewd acts and

three allegations of substantial sexual conduct related to those counts, we conclude the

length of the jury's deliberations does not show its verdict was close. The fact the

prosecution's case took only about three hours does not show the jury's verdict was close,

even when comparing the length of the trial to the length of the jury's deliberations. The

fact the jury asked the court for guidance on the allegations of substantial sexual conduct

did not show the jury's verdict was close. The jury asked the court whether it must be

unanimous in its findings of substantial sexual conduct, and whether it could be hung on

that allegation but unanimously find Holmes guilty on the three counts of lewd acts.

Those questions did not indicate the jury was close on the issue of Holmes's guilt on the

charged offenses. The jury's not true finding on the allegation Holmes had substantial

sexual conduct with Kimberly in committing the second lewd act does not show it had

difficulty in reaching a guilty verdict on the second count. Rather, it likely shows the

jury carefully considered the evidence in reaching its verdicts. (Cf. People Villanueva

(2008) 169 Cal.App.4th 41, 54.)

On the fifth and final LeMons factor, at least one other jury instruction tended to

remedy or mitigate the effect of the court's instructional error. The trial court instructed

with CALCRIM No. 226 on how it should evaluate the credibility of a witness. It

instructed the jury that it could believe all, part, or none of a witness's testimony. It

instructed that one factor in determining a witness's credibility was whether the witness

had made a statement in the past consistent or inconsistent with his or her testimony. We

18
believe the court's instruction with CALCRIM No. 226 aided the jury in focusing on the

credibility of Kimberly's trial testimony, thereby minimizing any prejudicial effect of the

court's error in instructing with CALCRIM No. 318 that it could consider her

extrajudicial statements as substantive proof of Holmes's guilt.

Considering the above LeMons factors, we believe the jury's verdict was likely

based on its careful evaluation of the credibility of Kimberly's trial testimony,

corroborated by her fresh complaints made shortly after the three incidents. Furthermore,

the jury likely considered the evidence showing Holmes did not deny to Levenberg his

sexual conduct with Kimberly and did not deny involvement in her purported pregnancy.

Also, according to Levenberg, J. told him Holmes admitted to him (J.) that he had sex

with Kimberly. Based on our review of the record, we conclude it is not reasonably

probable Holmes would have obtained a more favorable result had the trial court not

erroneously instructed with CALCRIM No. 318 that evidence of a witness's statements

before trial could be used as evidence of the truth of the information in those statements

(e.g., to substantively prove his guilt of the charged offenses). The court's instructional

error was harmless and does not require reversal of the judgment. (People v. Watson,

supra, 46 Cal.2d at p. 836.)

II

Abstract of Judgment

Holmes contends, and the People agree, the abstract of judgment must be amended

to accurately reflect the trial court's order that his seven-year prison term is to run

concurrently with his West Virginia prison term. The reporter's transcript from the

19
sentencing hearing shows the trial court stated: "I'm going to order that this [seven-year

term] shall run concurrent to any sentence that he shall receive in West Virginia."

(Italics added.) The court's minutes likewise show it ordered the "[s]entence on this case

is to run concurrent with West Virginia sentence." (Italics added.) However, the abstract

of judgment erroneously indicates that Holmes's sentence is to run consecutive to his

West Virginia prison term. The abstract of judgment must be amended to correctly

reflect the trial court's judgment that his seven-year prison term is to run concurrently

with his West Virginia prison term.

DISPOSITION

The judgment is affirmed. The matter is remanded to the trial court with

directions that it prepare an amended abstract of judgment consistent with this opinion

and forward a certified copy of the amended abstract of judgment to the Department of

Corrections and Rehabilitation.

McDONALD, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.

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