People v. Morales CA4/1

Filed 6/24/15 P. v. Morales 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, D067486

Plaintiff and Respondent,

v. (Super. Ct. No. FVI901806)

MARTIN ROLAND MORALES et al.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Bernardino County,

John M. Tomberlin, Judge. Affirmed as modified.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and

Appellant Martin Roland Morales.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and

Appellant Carlos Santo-Herrera.

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and

Appellant Crystal Rodriguez.
 Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Peter Quon, Jr. and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and

Respondent.

A jury convicted Martin Roland Morales of two counts of torture (Pen. Code,1

§ 206; counts 1 & 4); two counts of corporal injury to a child (§ 273d, subd. (a); counts 2

& 5); sodomy with a child 10 years of age or younger (§ 288.7, subd. (a); count 3). The

jury also found true the special allegations that Morales personally inflicted great bodily

injury upon the victims in the commission of the corporal injury offenses. (§ 12022.7,

subd. (a); counts 2 & 5.)

Morales admitted a prior strike conviction. (§ 667, subds. (b)- (i).)

The jury also convicted Carlos Santos-Herrera of torture (§ 206; count 6); corporal

injury to a child (§ 273d, subd. (a); count 7); and sodomy with a child 10 years of age or

younger (§ 288.7, subd. (a); count 8).

In addition, the jury convicted Crystal Rodriguez of child abuse. (§ 273a,

subd. (a); count 9.)

The court sentenced Morales to prison for 78 years to life consisting of 14 years to

life for count 1; a consecutive term of 50 years to life for count 3; and a consecutive term

of 14 years to life for count 4. The court also imposed the upper term of 12 years for

counts 2 and 5 and three years for each of the injury enhancements and stayed those

sentences pursuant to section 654.

1 Statutory references are to the Penal Code unless otherwise specified.
2
 The court sentenced Santos-Herrera to prison for 32 years to life consisting of

seven years to life for count 6 and a consecutive indeterminate sentence of 25 years to life

for count 8. The court also imposed the upper term of six years for count 7 and stayed

that sentence under section 654.

The trial court sentenced Rodriguez to four years for count 9.

Under section 1202.05, the court ordered that Morales and Santos-Herrera were

prohibited from visiting with any of the victims.

All three defendants appeal. Morales contends: (1) substantial evidence does not

support his conviction under count 3; (2) the court erred by failing to sua sponte instruct

the jury regarding attempted sodomy; (3) the prosecutor committed prejudicial

misconduct during closing argument; (4) the order prohibiting visitation must be stricken;

and (5) cumulative error warrants reversal.

Santos-Herrera argues: (a) substantial evidence does not support his conviction

under count 8; and (b) he was prejudiced by the admission of evidence regarding child

sexual abuse accommodation syndrome (CSAAS).

Rodriguez maintains the trial court erred in its responses to the jury's questions for

further clarification regarding her duress defense.

Each appellant joins in the other appellants' respective arguments.

We agree that the orders prohibiting visitation must be stricken. In all other

respects, we affirm the judgment.

3
 FACTUAL BACKGROUND

This case concerns the abuse and torture of minors, J. and R. During the time at

issue, R. was 12 year's old. He is the son of Morales and Rodriguez. J. and his mother

lived with Morales, Rodriguez, and their nine children (including R.) in a house in Apple

Valley. Santos-Herrera, Jose Cervantes, and Ismael Frias2 also lived at the Apple Valley

residence.

Because neither Morales nor Santos-Herrera challenge their convictions for torture

and corporal injury, we are spared from having to discuss in detail the sickening

treatment of the poor victims. Suffice it to say, Dr. Amy Young, a child abuse physician

and the associate medical director of the Children's Assessment Center of San Bernardino

(CAC), who examined J., testified that out of the thousands of child abuse victims she

had examined, J. was one of the worst cases she had ever seen. Although R.'s injuries

were not as severe and his treatment in the Apple Valley residence less horrific, he too

had multiple injuries consistent with abuse.

Morales and Santos-Herrera, however, challenge the sufficiency of the evidence

supporting their respective convictions for sodomy. Thus, we will discuss the pertinent

facts below when we address their substantial evidence challenge.

2 Apparently, Cervantes and Frias also took part in the abuse of Johnny. They were
not tried with the three appellants here.
4
 DISCUSSION

I

COUNTS 3 AND 8

Appellants3 contend substantial evidence does not support their respective

convictions for sodomy of a child 10 years of age or younger (§ 288.7, subd. (a); count 3

(Morales) and count 8 (Santos-Herrera)). Additionally, appellants maintain the trial court

erred by allowing the prosecution to present evidence regarding CSAAS. Finally, they

argue the trial court erred by failing to instruct the jury with the lesser included offense of

attempted sodomy. We reject these contentions.

A. Substantial Evidence

1. Evidence Relating to Sodomy Offenses

Sheriff deputies interviewed J. twice. Although he detailed the physical abuse he

endured, he did not mention anything about being touched sexually by Morales or

Santos-Herrera during these interviews.

During his medical examination, J. did not tell Dr. Young that he had been

sodomized or touched sexually in any way. In addition, Dr. Young did not find any

evidence of sexual abuse when she examined J.

J. also was interviewed by a worker at CAC with Detective Roxanne Bessinger

observing. During this third interview, J. reported that Morales, Santos-Herrera, and

Frias "put their wieners in his butt" and Frias also inserted his penis in J.'s mouth.

3 Rodriguez joined both Morales's and Santos-Herrera's arguments, but, as she was
not convicted of sodomy, these arguments do not apply to her.
5
 Almost six weeks after his third interview, J. identified Santos-Herrera from a

photo. At that time, J. told Bessinger that Santos-Herrera "put his wiener in [J.'s] butt."

After Cervantes and Santos-Herrera were arrested, Santos-Herrera's probation

officer requested that Cervantes call Morales. Cervantes did so and told Morales that he

got away from the police and asked Morales to pick him up. Morales replied that he was

not going to pick up Cervantes. Morales told Cervantes that he was scared because he

thought the authorities were going to catch him soon. Morales expressed fear of what

"homies in jail" would do to him because of what he did to J. and because he would be

facing child abuse and child molestation charges. Cervantes explained to his probation

officer that "homies" were the Surenos (Mexican gang members from Southern

California) and that child molestation was a "green light" for anyone to attack or hurt

Morales because of child molestation charges.

Three weeks before trial, J. told the prosecutor that neither Santos-Herrera nor

Frias had done anything to him.

At trial, J. testified that nobody put his "private" in his "bottom." J. could not

remember telling the CAC interviewer that Morales, Santos-Herrera, and Frias "put their

wiener[s] in [his] butt."

Morales called J. as a defense witness. J. testified he was telling the truth when he

testified earlier in the prosecution's case-in-chief that Morales was not mean to him, did

not do mean things to him, and did not hurt him.

6
 2. Standard of Review

The standard of review for a sufficiency of the evidence claim is well established.

We review the entire record in the light most favorable to the judgment to determine

whether it contains substantial evidence--that is, evidence that is reasonable, credible, and

of solid value--from which a reasonable trier of fact could find the defendant guilty

beyond a reasonable doubt. (People v. Steele (2002) 27 Cal.4th 1230, 1249.) "[T]he

substantial evidence rule does not require that the evidence supporting defendant's

conviction be direct evidence. For purposes of the rule, substantial evidence

encompasses circumstantial evidence and any reasonable inferences to be drawn from

such evidence." (People v. Lopez (2013) 56 Cal.4th 1028, 1069-1070; People v.

Lochtefeld (2000) 77 Cal.App.4th 533, 538.) Our assessment is highly deferential to the

verdict in that we presume every supporting fact the jury could have reasonably deduced

from the evidence. (People v. Albillar (2010) 51 Cal.4th 47, 60.) A reversal is not

warranted unless the evidence is insufficient to support the verdict under any hypothesis.

(People v. Bolin (1998) 18 Cal.4th 297, 331.) If the circumstances reasonably justify the

jury's findings, reversal is not warranted merely because the circumstances might also be

reasonably reconciled with a contrary finding. (People v. Nelson (2011) 51 Cal.4th 198,

210.)

Under a substantial evidence review, it is not the province of this court to reweigh

evidence or reassess a witness's credibility. (People v. Lindberg (2008) 45 Cal.4th 1, 27.)

"If the verdict is supported by substantial evidence, we must accord due deference to the

trier of fact and not substitute our evaluation of a witness's credibility for that of the fact

7
finder." (People v. Koontz (2002) 27 Cal.4th 1041, 1078.) "Resolution of conflicts and

inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]

Moreover, unless the testimony is physically impossible or inherently improbable,

testimony of a single witness is sufficient to support a conviction." (People v. Young

(2005) 34 Cal.4th 1149, 1181 (Young); see People v. Rasmuson (2006) 145 Cal.App.4th

1487, 1508 (Rasmuson) ["The testimony of one witness, if believed, may be sufficient to

prove any fact."].)

3. Analysis

Here, appellants insist substantial evidence does not support Morales's conviction

under count 3 and Santos-Herrera's conviction under count 8 for sodomy. "Sodomy is

sexual conduct consisting of contact between the penis of one person and the anus of

another person. Any sexual penetration, however slight, is sufficient to complete the

crime of sodomy." (§ 286, subd. (a); People v. Harrison (1989) 48 Ca1.3d 321, 329.)

We are satisfied that substantial evidence supports the sodomy convictions.

Bessinger testified that J. disclosed to the CAC interviewer that Morales, Santos-Herrera,

and Frias "put their wieners in his butt." J.'s statement was clear and unambiguous. The

testimony of a single witness is sufficient to support a conviction. (Young, supra, 34

Ca1.4th at p. 1181; Rasmuson, supra, 145 Cal.App.4th at p. 1508.) J.'s statement alone,

as recounted by Bessinger at trial, is sufficient to support Morales's and Santos-Herrera's

sodomy convictions.

In addition, other evidence supports the sodomy convictions. Cervantes testified

that during a telephone call, Morales expressed fear of what other Mexican gang

8
members in jail would do to him because of what he did to J. and because he would be

facing child abuse and child molestation charges. At trial, Cervantes explained that

everyone has a "green light" to attack a child molester. Morales's anticipation of child

molestation charges and fear for his life in prison reasonably could have been interpreted

by the jury as a tacit admission of guilt of sexually abusing J. Thus, Cervantes's

testimony also supports Morales's sodomy conviction.

Appellants, however, maintain the evidence falls short of supporting the jury's

verdicts as to counts 3 and 8. They argue that J.'s description of what occurred was

ambiguous and does not show that they penetrated his anus. They point out that J. did

not report any sexual abuse in his first interview and the medical doctor found no signs of

sexual abuse. They also insist that J.'s statements during trial that he was not sexually

abused further undermine the verdicts on counts 3 and 8. We are not persuaded.

As a threshold matter, appellants' arguments merely go to the weight of the

evidence. They essentially ask us to compare J.'s statement against evidence they believe

shows sodomy did not occur. However, we cannot reweigh the evidence. (See People v.

Lindberg, supra, 45 Cal.4th at p. 27.) Nor will we substitute our evaluation regarding J.'s

credibility for the jury's assessment. (People v. Koontz, supra, 27 Cal.4th at p. 1078.)

The fact that J. did not report the sexual abuse in an earlier interview and recanted

his statement that it did occur merely created a question for the jury to decide what to

believe. Moreover, the prosecution provided an explanation for J.'s hesitation to report

9
the sexual abuse or discuss it after he disclosed it.4 There is no indication in the record

that the jury did not properly consider all the evidence in deciding what to believe. In

short, we have no basis to question the jury's conclusion.

Further, although Dr. Young did not find any sign of sexual abuse during her

examination of J., her finding does not negate the commission of sodomy. She explained

that genitals heal very quickly and that the redness, irritation, or injury that may have

been there could be gone by the time a physical examination is conducted. She testified

that "the design [of the anus] is such that it's muscular, and it's meant to dilate, to pass

large stool without causing injury to the body." She added that "[o]ften in cases where

there has been sodomy, you won't see any injury." Also, Dr. Young explained that she

conducted only a visual examination of J.'s anus and did not perform any tests to

determine whether he might have had tears inside his rectum. She testified it was

possible that J. had tears in his rectum and she did not know about them.

In summary, evidence was presented that J. told the CAC interviewer that

Morales, Santos-Herrera, and Frias "put their wieners in his butt." This statement is

clear. The jury was entitled to believe it against the other evidence presented. Both

Morales and Santos-Herrera had the opportunity to convince the jury otherwise. We are

not permitted to second guess the jury on this factual determination. The fact that

evidence exists that might support an opposite conclusion is not of the moment. (See

People v. Nelson, supra, 51 Cal.4th at p. 210.) J.'s statement to the CAC interviewer is

4 In addition to the CSAAS evidence, the prosecution presented evidence that J. was
hesitant to tell what had happened because he did not want to be called a "snitch."
10
sufficient to support the verdicts on counts 3 and 8. (See Young, supra, 34 Ca1.4th at p.

1181; Rasmuson, supra, 145 Cal.App.4th at p. 1508.)

B. CSAAS

Appellants next contend their due process rights to a fair trial were violated when

the trial court allowed Bessinger to answer hypothetical questions tailored to fit the facts

of this case regarding CSAAS. We are not persuaded.

CSAAS testimony is admissible for the purpose of disabusing a jury of

misconceptions it might hold about how child victims react to sexual abuse. (People v.

McAlpin (1991) 53 Ca1.3d 1289, 1300-1301 (McAlpin); People v. Patino (1994) 26

Cal.App.4th 1737, 1744 (Patino).) To safeguard against improper use of CSAAS

evidence, an expert's testimony must be addressed to specific myths or misconceptions

suggested by the evidence that is before the jury. (People v. Housley (1992) 6

Cal.App.4th 947, 955 (Housley).) Additionally, if requested, the trial court must instruct

the jury that such testimony is not proof the victim's allegations are true, and is

admissible only for the purpose of showing that the victim's behavior was not necessarily

inconsistent with conduct normally exhibited by someone who has been molested. (Ibid.)

A prosecutor need not identify the myth or misconception by expressly stating on

the record the evidence that is inconsistent with the finding of sexual abuse. "It is

sufficient if the victim's credibility is placed in issue due to the paradoxical behavior,

including a delay in reporting a molestation." (Patino, supra, 26 Cal.App.4th at

pp. 1744-1745.)

11
 The admissibility of CSAAS evidence is ultimately subject to the discretion of the

trial court, and its decision to admit or exclude the expert testimony "will not be disturbed

on appeal unless a manifest abuse of discretion is shown." (McAlpin, supra, 53 Ca1.3d at

p. 1299.)

At the outset, we note that Santos-Herrera raises the challenge to the CSAAS

evidence admitted at trial. Morales merely joins the argument. Lacking in Santos-

Herrera's opening brief, however, is any citation to the record where inappropriate

hypothetical questions were asked. It is the appellant's duty to support arguments in his

or her briefs by references to the record on appeal, including citations to specific pages in

the record. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856

(Duarte).) Here, appellants leave this court to scour the record in search of the

inappropriate hypothetical questions. This is not our role. "We are not bound to develop

appellants' argument for them." (In re Marriage of Falcone & Fyke (2008) 164

Cal.App.4th 814, 830.)

In his reply brief, Santos-Herrera attempts to correct his mistake and cites to the

record purportedly to support his argument that the prosecution asked hypothetical

questions mirroring the facts of this case. However, he only cites to a single page where

the prosecution was asking any questions. Those questions concerned the five categories

of behavior (secrecy, helplessness, entrapment and accommodation, delayed or

unconvincing disclosure, and retraction) of children who are victims of sexual abuse.

None of the questions the prosecution asked in the portion cited by Santos-Herrera

mentioned any hypotheticals or facts related to the case. The rest of the portion of the

12
transcript cited by Santos-Herrera refers to questions asked by Morales's or Santos-

Herrera's trial counsel. As such, appellants have not shown, with citations to the record,

where the prosecution asked improper hypothetical questions. As such, we deem this

argument waived. (See Duarte, supra, 72 Cal.App.4th at p. 856.)

Moreover, we would not reach a different result if we addressed the issue on the

merits. Bessinger testified that J. did not disclose that Morales and Santos-Herrera "put

their wieners in his butt" until the CAC interview about a month after the authorities

found him at the Apple Valley residence. At trial, J. denied that Morales or Santos-

Herrera sodomized him. Given J.'s delayed disclosure and retraction of his statement at

trial, the trial court properly admitted the CSAAS evidence to dispel any misconception

about how child victims react to sexual abuse. (McAlpin, supra, 53 Ca1.3d at pp. 1300-

1301; Patino, supra, 26 Cal.App.4th at p. 1744.)

In addition, Bessinger did not testify how J.'s behavior in this case could be

assessed according to CSAAS. Instead, Bessinger's testimony about CSAAS was general

and was not described with particular focus on J.'s behavior in this case.

The prosecutor's questions were limited to Bessinger's discussions of child victims

as a class, as supported by her references to literature and experience. The prosecutor

asked Bessinger only general questions about the five behavioral aspects of CSAAS. The

prosecutor never asked her any fact-specific hypotheticals about J., his circumstances, or

his behavior. Nor did the prosecutor seek or elicit Bessinger's opinion as to whether J.

was sodomized. On this record, we are satisfied the court did not abuse its discretion in

admitting Bessinger's testimony about CSAAS.

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 C. Jury Instruction Regarding Lesser Included Offense of Attempted Sodomy

Appellants also argue that the trial court committed prejudicial error when it failed

to instruct the jury regarding the lesser included offense of attempted sodomy. We

disagree.

The law governing a trial court's duty to instruct the jury on lesser included

offenses, and the standard of review that this court applies in reviewing a trial court's

decision regarding whether to give such an instruction, are well established:

"Instructions on lesser included offenses must be given when there is
substantial evidence for a jury to conclude the defendant is guilty of
the lesser offense but not the charged offense. [Citations.]
Substantial evidence is defined for this purpose as 'evidence
sufficient to "deserve consideration by the jury," that is, evidence
that a reasonable jury could find persuasive.' [Citation.] 'In deciding
whether evidence is "substantial" in this context, a court determines
only its bare legal sufficiency, not its weight.' [Citation.] The trial
court's decision whether or not the substantial evidence test was met
is reviewed on appeal under an independent or de novo standard of
review." (People v. Garcia (2008) 162 Cal.App.4th 18, 24-25.)

Appellants argue there existed substantial evidence to support the giving of an

instruction on attempted sodomy. However, they do not point to any evidence that would

support a conviction for attempted sodomy. Instead, they argue that the evidence of

sodomy was weak, including the testimony of Young where she stated a child does not

understand anatomy and might not understand "inside" in the same manner that an adult

would. Yet, absent in the record is any evidence that appellants attempted to sodomize J.,

but were unsuccessful.

In their reply briefs, appellants rely on People v. Ngo (2014) 225 Cal.App.4th 126

(Ngo). Their reliance is misplaced.

14
 In Ngo, the court found that the trial court had a sua sponte duty to instruct the jury

on attempted sexual penetration with a child, as a lesser included offense. (Ngo, supra,

225 Cal.App.4th at pp. 155-157.) In her initial statements to the police, the victim stated

that the defendant touched her, but she was equivocal as to whether he actually

penetrated her. (Id. at p. 157.) The victim's mother testified that she interrupted the

defendant's touching of the victim when she walked into the living room, but she did not

see whether he penetrated her. (Ibid.) The defendant admitted touching the victim, but

denied that he penetrated her. (Ibid.) The court found that the evidence was consistent

with "the possibility that [the] defendant attempted to penetrate [the victim], but that

Mother interrupted the attempt when she walked into the room." (Ibid.) The court

concluded that a reasonable jury could find this evidence persuasive as to attempted

sexual penetration; thus the court had a sua sponte duty to instruct the jury accordingly.

(Ibid.)

In contrast to Ngo, there was no such substantial evidence of attempted penetration

in the instant case. Specifically, the defendant in Ngo admitted touching the victim, but

denied that he penetrated her. (Ngo, supra, 225 Cal.App.4th at p. 157.) The mother and

the victim also stated that the defendant touched the victim, but were not sure whether

defendant penetrated her. (Ibid.) Unlike Ngo, appellants denied touching J. in a sexual

way at all. Moreover, J. told the CAC interviewer that Morales, Santos-Herrera, and

Frias "put their wieners in his butt." Ngo is not instructive here.

Simply, there was no evidence whatsoever to support a jury instruction for the

lesser included offense of attempted sodomy. No argument was made to the jury that

15
Morales and/or Santos-Herrera merely put their respective penises near J.'s anus, but did

not penetrate it. Indeed, Morales and Santos-Herrera never conceded at trial that they

touched J. in any way. Instead, they argued that they did not touch J. in a sexual manner.

II

PROSECUTORIAL MISCONDUCT

Appellants maintain that their sodomy convictions should be reversed because the

prosecutor committed misconduct during closing argument. Specifically, they contend

the prosecutor argued facts that were not in evidence and vouched for a witness. We

disagree.

A. Background

During closing argument, Santos-Herrera's trial counsel accused the prosecution of

coaching J. This was a major theme of the closing:

"Now [the prosecutor] comes to you and asks you to accept J.'s
version of the facts as relayed. I know I'm beating a dead horse, but
this is a dead horse that has to be beat for a minute. That is just
offensive. It's offensive that he's trying to perpetrate this fraud upon
all of you in getting you to accept as true a videotaped interview that
he chose not to show you; right? We will get to -- actually, that's my
next note.

[¶] . . . [¶]

". . . Let's get to the heart of the issue here; right? A little thing
called coaching. We know from J. that he's been in the DA's Office.
He told most definitely three weeks ago.

"Pretty amazing how a kid in only second grade can tell us what the
answer to 12 times 12 is. I was shocked because I had to pull out a
calculator. I went to California public school. I'm not so good with
math. I thought, did that kid just get that right? He did. Of course,

16
 he got nine times ten right. I figured that one out on my own. I was
amazed at that.

"Over the lunch hour, I thought to myself, how did a second-grader
do that? I thought that California public schools, they're teaching
kids higher level math, multiplication, second grade. So I asked the
kid, what's 11 times 11? He told us it was 22. I said, are you sure?
He said, no, it's 11. Are you sure? No, it's 22. I said, okay. Very
good. I didn't want to make the kid feel bad or pick on him. His
answers to 11 times 11 settled that, 11 and 22. Then the next math
question, it was eight times nine. He missed that one too.

"So that gave me the confidence to just come right out and ask the
kid, did [the prosecutor] tell you what math problems he was going
to give you here in court and give you the answers? Yep, he told me
the math problems. I have a thing at home, and I figured them out,
but he told me. We call that coaching. That's coaching a witness.
[¶] . . . [¶] It was a serious part in demonstrating to the court that the
witness told us, yeah, [the prosecutor] coached -- [the prosecutor]
told me the questions he was going to ask. So I had time to have my
answers ready. Tricky, folks. Plain and simple, tricky. It's a magic
show; right?"

In rebuttal argument, the prosecutor addressed the accusations that he coached J.:

"Defense attorney for [Santos-Herrera] makes a big deal about the
fact that a few weeks before trial J. kind of blurted out to me,
[Santos-Herrera] and [Frias] did not do anything to me. Well, we
know that's not true because we know [Frias] did stuff to J. Even
[Frias] confessed to burning and beating J. So you can reasonably
conclude that the reason J. said that is he knows he's coming up for
trial, and he doesn't want to testify. He's scared to death to testify.
He wants to say, they didn't do anything.

"I will say the one somewhat truthful thing that defense attorney
mentioned was his client, [Santos-Herrera], was liked more by J.
than Defendant Morales, at least he said, he's my friend or
something like that. Compared to Morales, [Santos-Herrera] is a
better guy. [Santos-Herrera] didn't abuse him as much as J. -- as
Morales did. So compared to [Morales], [Santos-Herrera] is
something of a lightweight. He's still guilty, but he's not quite as
bad.

17
 "You also -- defense attorney also tried to make it look like I was
coaching J. If you remember what J. said when I asked him, I said,
J., have you and I ever sat down and reviewed the whole case,
showed you police reports, reviewed all the facts? He said, no. That
was true.

"Now, that's not usually the way it goes. Usually the prosecutor
would sit down with the victim and go over the police reports with
an officer present in case the victim blurts out something. I didn't do
that in this case because I didn't want the defense attorney to falsely
accuse me of coaching the victim. Of course, he falsely accused me
of that anyway."

Santos-Herrera's trial counsel objected to the prosecutor's argument on the ground

that the prosecutor stated facts that were not in evidence. Morales's trial counsel objected

on the ground that the prosecutor was testifying. The trial court overruled the objections.

The prosecutor continued responding to the accusations that he coached J. as

follows: "J. did testify that we never sat down and discussed a full interview of the case.

So despite that, I get accused of coaching him. When, in fact, according to the evidence,

I never sat down and reviewed all the facts with J."

B. Law

"Closing argument in a criminal trial is nothing more than a request, albeit usually

lengthy and presented in narrative form, to believe each party's interpretation, proved or

logically inferred from the evidence, of the events that led to the trial. It is not

misconduct for a party to make explicit what is implicit in every closing argument."

(People v. Huggins (2006) 38 Cal.4th 175, 207.)

" '[A] prosecutor is given wide latitude during argument. The argument may be

vigorous as long as it amounts to fair comment on the evidence, which can include

18
reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear

that counsel during summation may state matters not in evidence, but which are common

knowledge or are illustrations drawn from common experience, history or literature.'

[Citation.] . . . [¶] . . . '. . . A prosecutor is held to a standard higher than that imposed

on other attorneys because of the unique function he or she performs in representing the

interests, and in exercising the sovereign power, of the state.' " (People v. Hill (1998) 17

Cal.4th 800, 819-820.)

However, "[a] prosecutor's . . . intemperate behavior violates the federal

Constitution when it comprises a pattern of conduct so egregious that it infects the trial

with such unfairness as to make the conviction a denial of due process." (People v.

Espinoza (1992) 3 Cal.4th 806, 820; People v. Gionis (1995) 9 Cal.4th 1196, 1214.)

"Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is

prosecutorial misconduct under state law only if it involves ' " 'the use of deceptive or

reprehensible methods to attempt to persuade either the court or the jury.' " ' " (People v.

Samayoa (1997) 15 Cal.4th 795, 841.)

Also, a prosecutor may not vouch for the credibility of a witness by referring to

evidence outside the record, or by invoking the prestige or reputation of the district

attorney's office. (People v. Bonilla (2007) 41 Cal.4th 313, 336.)

C. Analysis

Taken out of context, as presented in Santos-Herrera's opening brief, the

prosecutor's comments are problematic. He did discuss witness preparation, outside the

court meetings with the witness, and his usual witness preparation. However, here, these

19
comments do not constitute prosecutorial misconduct because they were properly made

as rebuttal argument. In People v. McDaniel (1976) 16 Cal.3d 156, the defendant

complained that during closing argument the prosecutor committed misconduct by

improperly attempting to shift the burden of proof to the defendant. The court concluded

that "there is no misconduct and note[d], moreover, that even otherwise prejudicial

prosecutorial argument, when made within proper limits in rebuttal to arguments of

defense counsel, do not constitute misconduct." (Id. at p. 177.)

In People v. Mendibles (1988) 199 Cal.App.3d 1277 (Mendibles), defense counsel

improperly implied during closing argument that the prosecutor had influenced the

victims' testimony by coaching them, and the victims had lied throughout the trial. In

response, the prosecutor attempted to explain to the jury that there had not been any

improper coaching of any witness. Rather, the court had ruled that certain topics were

not to be mentioned on the witness stand and this was conveyed to the witnesses. The

defendant complained that such comments by the prosecutor constituted prosecutorial

misconduct because the prosecutor informed the jury by innuendo that the court had kept

evidence of the defendant's guilt from the jury. (Id. at pp. 1312-1313.)

The court concluded there was no prosecutorial misconduct because the

prosecutor's comments constituted appropriate rebuttal argument. (Mendibles, supra, 199

Cal.App.3d at p. 1313.) The court stated that, "Given the highly inflammatory

implications of defense counsel's argument, unequivocally impugning the integrity of the

prosecution, the above rebuttal remarks were 'fairly responsive to argument of defense

counsel and [were] based on the record.' [Citation.] In these circumstances, the

20
prosecutor 'cannot be charged with misconduct if his comments only spill over somewhat

into a forbidden area; the departure from propriety must be a substantial one.' " (Ibid.)

In determining whether there has been a substantial departure from propriety, the

key consideration "is whether there is any undue advantage to the People or disadvantage

to the defendant. This is determined by inquiring whether the response was intended or

formed to invite the jury to draw adverse inferences, was unduly emphasized and related

to central or peripheral areas of determinant factors concerning the defendant's guilt or

innocence." (Mendibles, supra, 199 Cal.App.3d at p. 1313.)

Here, during closing argument, Santos-Herrera's trial counsel opened the door to

the prosecutor's rebuttal argument regarding how the prosecutor prepared J. for trial.

Indeed, defense counsel explicitly accused the prosecutor of attempting to "perpetrate [a]

fraud" and "coaching" J. These accusations warranted a response from the prosecutor.

Logically, any response would involve the prosecutor explaining how he prepared J. and

challenging the accusation that he had coached J. Even though the prosecutor's

comments may have spilled over somewhat into a forbidden area, the departure from

propriety was not substantial. The subject comments were brief and relatively isolated,

particularly as compared to Santos-Herrera's trial counsel's comments vilifying the

prosecutor.

In addition, any potential prejudicial effect from the prosecutor's comments that

might be construed as inferring that the prosecutor vouched for J.'s credibility or referred

to facts outside the evidence (i.e., how he prepared witnesses to testify) was minimized

by the jury instruction that attorneys' arguments are not evidence.

21
 Simply put, J.'s testimony and credibility were critical in this case. Santos-

Herrera's trial counsel accused the prosecutor of coaching J. and trying to trick the jury.

The prosecutor responded, explaining that he did not coach J. Under these

circumstances, we conclude that "[w]hile we do not endorse the cited conduct, it did not

render the trial fundamentally unfair. Nor did it amount to a deceptive or reprehensible

method of persuasion. Accordingly, it did not constitute misconduct under federal or

state standards."5 (People v. Gionis, supra, 9 Cal.4th at pp. 1218-1219.)

IV

DURESS

Rodriguez6 contends the trial court erred in its responses to the two jury requests

for further clarification as to her duress defense. She alleges the court's responses to the

inquiries about the severity and frequency under which she had to be under duress, did

not sufficiently guide the jury's determination of her duress defense. She claims the

court's ambiguous response that the duress had to exist "at the time the crime is

committed" failed to specify whether the crime was her charged offense of child abuse

for failing to protect R. or Morales's offenses against R. We disagree.

5 Appellants also claim the prosecutor's alleged argument of facts not in evidence
violated their rights under the confrontation clause of the United States Constitution. We
are not persuaded. Appellants had opportunity to cross-examine J. during trial and ask
about his pretrial meeting with the prosecutor. Indeed, they did so. We determine there
was no violation of the confrontation clause.

6 Morales and Santos-Herrera join the arguments in Rodriguez's brief that may
accrue to their benefit. Because the duress defense did not apply to Morales or Santos-
Herrera, we do not consider Rodriguez's arguments as to the other appellants.
22
 A. Background

The trial court instructed the jury on the defense of duress pursuant to CALCRIM

No. 3402 [Duress or Threats]:

"The defendant Crystal Rodriguez is not guilty of Child Abuse if she
acted under duress. The defendant acted under duress if, because of
threat or menace, she believed that her life would be in immediate
danger if she refused a demand or request to commit the crime. The
demand or request may have been express or implied.

"The defendant's belief that her life was in immediate danger must
have been reasonable. When deciding whether the defendant's belief
was reasonable, consider all the circumstances as they were known
to and appeared to the defendant and consider what a reasonable
person in the same position as the defendant would have believed.

"A threat of future harm is not sufficient; the danger to life must
have been immediate.

"The People must prove beyond a reasonable doubt that the
defendant did not act under duress. If the People have not met this
burden, you must find the defendant not guilty of Child Abuse."

During deliberations, the jury submitted several questions to the court. The first

and the third questions are not important to our analysis. Instead, we focus on the second

question and the fourth question. Question No. 2 consisted of two parts: "1. Is it

required that Crystal Rodriguez was under duress at every moment of every day for her to

be not . . . guilty of PC 273a(a)? 2. Is the same required for the lesser charge of PC

273a(b)?"

In discussing this jury question, the prosecutor and Rodriguez's trial counsel

agreed the answer to the second part of the question was "Yes."

23
 The trial court asked Rodriguez's counsel how he wanted the court to answer the

first part of the question. Rodriguez's counsel proposed the court answer "No" because

nobody had any idea as to what time frame the jury was referring to. The attorney

commented:

"If you want to get on and on to where the answer goes, if they can
identify when her supposed failure was, if they can identify that time
frame or what specific event occurred that she omitted to act in
conformity to the law, then they would have to determine did the
duress exist at that point based on the totality of the evidence
presented at trial, which answers the question they just asked no."

The prosecutor stated the question could not be answered with a simple "yes" or "no."

The prosecutor then proffered: "Probably the correct answer is to say that to acquit her

based on duress, the duress must apply at the time of the crime. So there must have been

duress at any time she failed to act as required by the law."

Rodriguez's counsel responded, "If that's the answer, I want a unanimity specific

instruction that they unanimously agree that whatever failure occurred there was no

duress at that time." He also noted that the proposed answers were becoming more

complex and beginning to lead the jury to some solution.

The trial court observed that neither party's response was "particularly good." The

court proposed to inform the jury that it was declining to answer the question because the

answer was too complex for a simple "yes" or "no" and that the jury would have to

consider all of the evidence and apply the law as set forth in CALCRIM No. 3402.

Rodriguez's attorney stated that he was not "terribly opposed to some fashioned answer

like that."

24
 While indicating his preferred answer would be to state that duress had to be

present at the time of the crime, the prosecutor commented that he had no objection to the

trial court's proposed answer. Rodriguez's attorney agreed with the prosecutor that duress

had to be present at the time the crime was committed. Rodriguez's attorney also

indicated he tended to agree with the court's proposed answer.

The trial court gave the following answer to the first part of Question No. 2: "The

answer is too complicated to answer 'yes or no.' Please do analyze 3402 and decide if

you need further instruction." Rodriguez's attorney commented, "That's good."

For the second part of Question No. 2, the trial court answered "Yes." Rodriguez's

attorney did not take issue with the response.

Later in deliberations, the jury submitted Question No. 4, which also consisted of

two parts: "1. If a defendant is intermittently under duress, will they [sic] still be guilty

of PC 273a(a)? 2. We've discussed CC3402 for quite a while and are still not all clear

about the severity and frequency of duress discussed in 3402."

The trial court noted that "[t]here is no such thing as frequency of duress." The

court explained, "I think that's a false concept. I think duress has to be present at the time

the crime is committed." Rodriguez's counsel added, "It's dangerous going much further

than that."

Noting that the jury also used the word "intermittently" in its inquiry, the trial

court stated that it was "not going to touch that." The court commented that the word

"intermittent" is clearly different than the word "immediate" in CALCRIM No. 3402.

25
 The trial court proposed to inform the jury that duress had to be present at the time

the crime was committed. Rodriguez's attorney claimed the proposed answer shifted the

prosecutor's burden to prove that Rodriguez was not acting under duress at the time of her

offense. The court disagreed and stated that it was not removing any portion of the jury

instruction or telling the jury to disregard any part of the instruction. The court also

stated that it told the jury to analyze the evidence.

The trial court ultimately answered the question as follows: "The duress must

exist at the time the crime is committed." Rodriguez's counsel's did not object.

B. Law and Analysis

Section 1138 provides in part: "After the jury have retired for deliberation, . . . if

they desire to be informed on any point of law arising in the case, they must require the

officer to conduct them into court. Upon being brought into court, the information

required must be given . . . ." Under that section, the trial court must " 'attempt "to clear

up any instructional confusion expressed by the jury." ' " (People v. Ardoin (2011) 196

Cal.App.4th 102, 128.) "When a jury asks a question after retiring for deliberation,

'[s]ection 1138 imposes upon the [trial] court a duty to provide the jury with information

the jury desires on points of law.' [Citation.] But '[t]his does not mean the [trial] court

must always elaborate on the standard instructions. Where the original instructions are

themselves full and complete, the court has discretion under section 1138 to determine

what additional explanations are sufficient to satisfy the jury's request for information.'

[Citation.] We review for an abuse of discretion any error under section 1138." (People

v. Eid (2010) 187 Cal.App.4th 859, 881-882.)

26
 In addition, "[w]hen the trial court responds to a question from a deliberating jury

with a generally correct and pertinent statement of the law, a party who believes the

court's response should be modified or clarified must make a contemporaneous request to

that effect; failure to object to the trial court's wording or to request clarification results in

forfeiture of the claim on appeal." (People v. Dykes (2009) 46 Cal.4th 731, 802 (Dykes).)

At trial, Rodriguez's counsel agreed with the court's response to Question No. 2. On

appeal, Rodriguez does not challenge the court's response to Question No. 2. Instead, she

focuses on the response to Question No. 4.

Rodriguez asserts that the trial court's response to Question No. 4 left the jury with

insufficient guidance to determine the viability of her duress defense. She claims that the

phrase "at the time the crime occurred" left the jury to guess whether that phrase "referred

to the crime with which [Rodriguez] was charged, i.e., her failure to protect R., or with

respect to Morales' crime(s) against R." The People respond that Rodriguez forfeited this

claim by failing to object at trial or ask for further clarification. Rodriguez counters that

this court can consider the issue because the alleged error affects her substantive rights.

(See § 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.) The People have the

better argument.

Rodriguez's only argument that the trial court improperly responded to the jury's

question is that the response was ambiguous. She does not argue that the trial court's

statement was not generally correct. As such, it is appropriate to apply the forfeiture rule

to this issue. (See Dykes, supra, 46 Cal.4th at p. 802.)

27
 Moreover, even if we were to review the issue on the merits, we are satisfied that

the court did not abuse its discretion in answering Question No. 4. The answer was not

ambiguous.

Question No. 4 indicated that the jury wanted clarification regarding when

Rodriguez had to be under duress for the defense to apply. The instruction on duress

provided the jury with an answer: "The defendant acted under duress if, because of threat

or menace, she believed that her life would be in immediate danger if she refused a

demand or request to commit the crime." In other words, the jury instruction made clear,

that Rodriguez could not be convicted of child abuse, if at the time she committed the

crime, she was acting under duress. The court's response to Question No. 4 simply

echoed the jury instruction: "The duress must exist at the time the crime is committed."

This is a correct statement of the law.

" 'Duress is an effective defense only when the actor responds to an immediate and

imminent danger.' " (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1460 (Hamlin),

quoting People v. Heath (1989) 207 Cal.App.3d 892, 900.) " 'A "phantasmagoria of

future harm" such as a threat of death to be carried out at some undefined time, will not

diminish criminal culpability.' " (Hamlin, supra, at p. 1460, quoting People v. Petznick

(2003) 114 Cal.App.4th 663, 676-677.) Put differently, the duress defense requires the

reasonable belief that threats to the defendant's life are imminent and immediate at the

time the defendant's crime is committed. By responding that the duress must exist at the

time the crime is committed, the trial court provided a correct, legal answer to the jury's

question of whether a defendant would still be guilty if her duress was "intermittent."

28
 Rodriguez was charged with child abuse likely to produce great bodily harm. The

trial court properly instructed the jury as to that crime. Rodriguez's defense at trial was

duress. The jury was properly instructed on duress, whereby it was instructed that

"Rodriguez is not guilty of Child Abuse if she acted under duress." As such, the jury

instructions clearly told the jury that the defense of duress applied to the crime charged

against Rodriguez, not the crimes charged against any of the other defendants. "Jurors

are presumed to be intelligent persons capable of understanding and correlating jury

instructions." (People v. Tatman (1993) 20 Cal.App.4th 1, 11; accord People v. Reliford

(2003) 29 Ca1.4th 1007, 1016.) On this record, we are satisfied the trial court did not

abuse its discretion in responding to Question No. 4.

V

CUMULATIVE ERROR

Appellants also maintain the cumulative effect of the asserted errors rendered the

trial so unfair as to violate their federal and state constitutional rights to due process

warranting reversal of the judgment. We have rejected appellants' claims of error.

Because we hold no errors exist, this cumulative error argument necessarily fails. (See

People v. McWhorter (2009) 47 Cal.4th 318, 377 [no cumulative effect of errors when no

error]; People v. Butler (2009) 46 Cal.4th 847, 885 [rejecting cumulative effect claim

when court found "no substantial error in any respect"].)

29
 VI

ORDERS PROHIBITING VISITATION

Appellants7 claim the section 1202.05 orders prohibiting any visitation between

Morales or Santos-Herrera on the one hand and J. or R. on the other is unauthorized and

must be stricken. They argue that none of their convictions are for any of the offenses

listed in section 1202.05. We agree.

"A claim that a sentence is unauthorized . . . may be raised for the first time on

appeal, and is subject to judicial correction whenever the error comes to the attention of

the reviewing court." (People v. Dotson (1997) 16 Ca1.4th 547, 554, fn. 6.) A sentence

is generally unauthorized where it could not lawfully be imposed under any circumstance

in the particular case. Appellate courts are willing to intervene in the first instance

because such error is clear and correctable independent of any factual issues presented by

the record at sentencing. (People v. Scott (1994) 9 Ca1.4th 331, 354.)

The propriety of a no-visitation order is determined by the authorizing statute.

(People v. Robertson (2012) 208 Cal.App.4th 965, 996 (Robertson).) Section 1202.05,

subdivision (a), provides that when a defendant is sentenced to prison for violating

certain enumerated statutes and a victim is under the age of 18, the court shall enter an

order prohibiting all visitation between the defendant and the victim. The plain language

7 Rodriguez joins in the arguments that are raised in Morales's and Santos-Herrera's
briefs and may accrue to her benefit. Because the trial court did not order that any
visitation between Rodriguez and J. or R. be prohibited pursuant to section 1202.05, we
do not include Rodriguez for purposes of our analysis of the orders prohibiting visitation.
30
of section 1202.05 "includes only child victims of offenses for which a defendant was

sentenced to prison." (People v. Ochoa (2011) 192 Cal.App.4th 562, 564.)

Here, the trial court ordered that any visitation between Morales or Santos-Herrera

and J. or R. be prohibited pursuant to section 1202.05. Morales was convicted of

torturing J. and R. in violation of sections 206, inflicting corporal injury upon J. and R. in

violation of section 273d, and sodomizing J. in violation of section 288.7. Santos-

Herrera was convicted of torturing and sodomizing J. in violation of sections 206 and

288.7. None of these convictions are for any of the offenses listed in section 1202.05,

subdivision (a). Accordingly, section 1202.05 does not provide authority for the no-

visitation orders issued by the court. The orders thus are stricken. (See Robertson,

supra, 208 Cal.App.4th at pp. 996-997.)

DISPOSITION

The orders prohibiting Morales or Santos-Herrera from visiting with J. or R. are

stricken. The superior court is directed to amend the abstracts of judgment to reflect the

striking of these orders and to forward the amended abstracts of judgment to the

Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

31
 HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

AARON, J.

32