People v. Myers CA1/1

Filed 11/9/15 P. v. Myers CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,
A137426
v.
KENNY RAY MYERS, (Contra Costa County
Super. Ct. No. 05-111599-7)
Defendant and Appellant.

Defendant Kenny Ray Myers appeals from his conviction of committing a lewd
and lascivious act on a child under the age of 14 (Pen. Code, § 288, subd. (a)). He
maintains his rights to due process and a speedy trial were violated by the 19-year delay
between the filing of the complaint and his arraignment. He also claims his attorney
provided ineffective representation by failing to object to alleged misconduct committed
by the prosecutor in his opening statement and the trial court erred in both admitting and
excluding certain evidence. Finally, he contends the cumulative effect of these alleged
errors violated his due process rights. We conclude none of defendant’s claims have
merit, and affirm the judgment.
PROCEDURAL AND FACTUAL BACKGROUND
In November 1992, the People filed a complaint against defendant alleging one
count of committing a lewd and lascivious act on a child under the age of 14, K.H. A
warrant for defendant’s arrest was issued the same day.
In August 2001, the trial court ordered the warrant would “remain out.”

1
 In August, 2011, 19 years after the complaint was filed, defendant was arrested in
Nevada. Following a preliminary examination, the People filed an information in
October, 2011 alleging the same count alleged in the complaint. Defendant filed a
motion to dismiss based on his right to a speedy trial, which the court denied. At the end
of the first trial, the court declared a mistrial after the jury deadlocked 11-1.
At the second trial, K.H., then 29 years old, testified that in the summer of 1992,
defendant was her mother’s boyfriend. K.H. was nine years old at the time. She and her
mother, who died in 2007, had lived in an apartment in Concord, but her mother started
staying at a hotel in Concord because defendant “didn’t have a place [of his own]” and
K.H. and her mother “only had [their] apartment.” Her mother worked across the street
from the hotel at a bank, and defendant worked at a movie theater. K.H. spent the night
at the hotel about five to seven times, and the remainder of the time at her aunt and
uncle’s. She was never alone with defendant until the day of the offense.
Sometime in September of 1992, K.H.’s mother dropped her off after school at the
hotel room and left to return to work. Defendant was there, and K.H. was “supposed to
be there with him until [her] mom got off of work.” Defendant was on the bed, wearing a
towel, and they were watching television. K.H. made a comment about a Madonna
video, and defendant asked if she was ticklish. She answered yes, and defendant said “I
can show you a place that I know you’d probably be ticklish . . . .” K.H. said “Okay.
Where?” Defendant came up behind K.H. and put his hands on her breasts, “on the
nipple area.” K.H. was “kind of frozen,” because “there’s a grownup doing something to
me that I know they’re not supposed to be doing.” Defendant then said “he knew where
else that [she] was ticklish, and he slid her pants down and touched her vagina. It felt to
K.H. as though it lasted “as long as 15 minutes.” Defendant next asked “if he could kiss
[her] down there,” and K.H. said “no.” Defendant “got up and went around to the other
side of the bed,” and his towel fell off, exposing his penis. He picked up the towel and
put it back on, and said “don’t ever tell your mom because they’ll put me in jail.” K.H.
“told him [she] wouldn’t tell her, knowing [she] would tell her, but [she] knew [she]
wasn’t going to say it in front of [defendant].”

2
 K.H.’s mother returned about 15 to 20 minutes later, and the two of them went to a
Laundromat. After they put all the laundry in the washing machines, they sat down
together. K.H. asked her mother “Do you remember when you said that if anybody
touched me in a way they weren’t supposed to that I was supposed to tell an adult?” Her
mother asked “Why? What happened?” K.H. told her about the incident, and was crying
because her mother started crying. Her mother was “very upset,” and took K.H. to a
friend’s apartment.
Sometime in the following week, K.H. gave a statement to a Concord police
officer, Detective Robin Heinemann. Officer Heinemann was still employed by the
Concord Police Department at the time of the trial in 2012. She testified she interviewed
K.H. at her school. K.H. stated defendant had picked her up from school and brought her
back to the Heritage Hotel. Defendant “came out of the bedroom with a towel on, began
asking her some questions about being ticklish, proceeded to tickle her. And then [he]
said, ‘Don’t tell anyone but there’s some ticklish bones on your body,’ and then
proceeded to remove her pants and underpants and rubbed and touched her vagina that
was then exposed for approximately 20 minutes.” K.H. also reported he “put his hand
under her shirt and rubbed her or touched her breasts,” and that the incident ended when
he asked to kiss her vagina and she said no. Officer Heinemann attempted to locate
defendant at the theater where he worked, but was unable to find him.
Officer Heinemann had no further involvement in the case for 19 years. In
preparation for a hearing, she telephoned K.H. in October 2011 and asked her for a
synopsis of the incident. K.H.’s synopsis was consistent with the initial report. Officer
Heinemann then went through the report line by line, asking K.H. if the report was
accurate, and found no inconsistencies.
Defendant testified he worked at the Capri Theater in 1992. He knew K.H.’s
mother but had not seen her for about ten years prior to 1992, when she and her daughter
came to the theater. They talked for a while, and K.H.’s mother offered to let him shower
and sleep in her room at the hotel. The next day, she picked him up and brought him to
the hotel room. She asked defendant to pick up K.H. from school by 4:00 p.m.

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Defendant walked to K.H.’s school that afternoon and picked her up. They returned to
the hotel room, where K.H. watched television. Her mother returned around 5:15 p.m.,
and they did not leave the hotel room that evening. K.H. slept on the floor, and defendant
slept with her mother in the bed.
Defendant testified when he awoke the following morning, K.H. and her mother
were gone. He spent the day in the hotel room again, and again picked up K.H. after
school. They returned to the hotel room, where K.H. did homework and watched
television on the floor. Defendant went into the bathroom to get ready for work that
night. After he finished, he “went to sit on the bed, and as [he] passed [K.H.] [he]
reached down and touched her on the back above the waist, around the kidney area, and
[he] said, ‘Gotcha’.” K.H. “spun around and gave [him] an angry look and [he] could
hear her growl.” He testified he was “just being spontaneous,” and that was the only time
he touched K.H. that afternoon. They had no conversation after that touching incident.
When K.H.’s mother returned to the hotel, she and K.H. left a few minutes later to
go to a Laundromat. K.H.’s mother returned alone to the hotel about an hour and a half
later. Defendant testified “she woke [him] and said that [K.H.] had told her that she’d
been touched inappropriately and she wanted me to tell her about it. And [he] said,
‘Well, uh, I don’t know much about it. Is she okay? And then she said, ‘Well, she
indicated that it was [defendant] that had touched her.’ ” Defendant responded “ ‘you
know me better than that. That’s not in me. I’d never do anything like that.’ . . . ‘You
better talk to her, you know, and straighten this out, because I didn’t—that’s not me.’
[N]othing like that could have happened.” K.H.’s mother was upset and “slightly angry,”
and would not give him a ride to work as he had expected she would. He left the room
and walked to work at the theater.
When defendant arrived at work that night, he was fired. His boss, James
Huffman, told him “You know the rules,” though defendant did not know what he had
done wrong. He testified he knew “the rule was no alcohol on the premises” and that
included not showing up for work intoxicated, but he had never done that.

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 Huffman testified as a rebuttal witness that about a month before he fired
defendant, “his girlfriend came up to the theater screaming and yelling. . . .” Huffman
“had to get her out of the lobby because it was packed. . . . [S]he was screaming and
yelling . . . that [defendant] had did this to her daughter and all . . . she was just
hysterical.” Huffman had seen defendant’s girlfriend before and knew she had a
daughter. He estimated he knew about the relationship for about two months prior to the
incident. Huffman fired him, after giving him a warning, because he had been drinking
before arriving at work, though Huffman would not characterize it as “stone drunk.”
Defendant testified he had been living in Nevada for the past 19 years, but there
were times when he came back and forth from Nevada to California. K.H. testified she
thought she saw defendant once during those 19 years when he came to a church where
she volunteered serving food. Defendant testified it was him. He also admitted he had
two prior convictions for indecent exposure, one in 1975 and one in 1985, but testified
neither involved children.
A jury found defendant guilty as charged, and the court sentenced him to the
midterm of six years.
DISCUSSION
Speedy Trial and Due Process Rights
Defendant contends the 19-year delay between the filing of the complaint and his
arraignment violated his California constitutional speedy trial and due process rights.
Under the California Constitution (Cal. Const., art. I, § 15), a violation of the
speedy trial guarantee may be premised “ ‘on delay occurring after the filing of the
complaint and before the defendant was held to answer the charge in superior court.’
[Citations.]” (People v. DePriest (2007) 42 Cal.4th 1, 27.) In contrast, “for federal
constitutional purposes, attachment of the right to speedy trial occurs only upon ‘ “either
a formal indictment or information or else the actual restraints imposed by arrest and
holding to answer a criminal charge.” ’ [Citation.]” (Id. at p. 26.) Thus, “[u]nlike its
federal counterpart, the speedy trial guarantee under the state Constitution is triggered by
the filing of a felony complaint.” (Id. at p. 27.)

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 However, “ ‘when a defendant seeks dismissal based on delay after the filing of
the complaint and before indictment or holding to answer on felony charges, a court must
weigh “the prejudicial effect of the delay on defendant against any justification for the
delay.” [Citations.] No presumption of prejudice arises from delay after the filing of the
complaint and before arrest or formal accusation by indictment or information [citation];
rather, the defendant seeking dismissal must affirmatively demonstrate prejudice
[citation]. [Citation.]’ ” (People v. DePriest, supra, 42 Cal.4th at p. 27.)
A defendant is similarly required to demonstrate prejudice in connection with a
state due process claim based on delay between the filing of a criminal complaint and
arraignment. “ ‘[R]egardless of whether defendant’s claim is based on a due process
analysis or a right to a speedy trial not defined by statute, the test is the same, i.e., any
prejudice to the defendant resulting from the delay must be weighed against justification
for the delay.’ [Citation.] But we find nothing improper in this convergence when, as
here, the two separate constitutional rights are protecting the same interest.” (People v.
Martinez (2000) 22 Cal.4th 750, 767.)
“[U]nlike other constitutional rights afforded the accused, deprivation of the right
to a speedy trial ‘may work to the accused’s advantage,’ as ‘[d]elay is not an uncommon
defense tactic.’ [Citation.] ‘Thus, unlike the right to counsel or the right to be free from
compelled self-incrimination, deprivation of the right to speedy trial does not per se
prejudice the accused’s ability to defend himself.” (People v. Williams (2013) 58 Cal.4th
197, 233.) The defendant has the burden of demonstrating prejudice, which may be
shown by “ ‘ “loss of material witnesses due to lapse of time [citation] or loss of evidence
because of fading memory attributable to the delay.” ’ [Citation.]” (People v. Cowan
(2010) 50 Cal.4th 401, 430.) “[S]peculation about prejudice because potential witnesses’
memories have failed or because witnesses and evidence are now unavailable is
insufficient to discharge defendant’s burden.” (Shleffar v. Superior Court (1986)
178 Cal.App.3d 937, 946 (Shleffar).) “The prejudice we must consider is the harm to
defendant’s ability to defend himself.” (People v. Conrad (2006) 145 Cal.App.4th 1175,
1184.)

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 “We review for abuse of discretion a trial court’s ruling on a motion to dismiss for
prejudicial prearrest delay [citation], and defer to any underlying factual findings if
substantial evidence supports them.” (People v. Cowan, supra, 50 Cal.4th at p. 431.)
“As the threshold question of whether a defendant has established prejudice occasioned
by the delay is clearly a factual matter to be resolved by the trial court, its decision on
that point will not be overturned by an appellate court if supported by substantial
evidence.” (Shleffar, supra, 178 Cal.App.3d at p. 945.)
Defendant’s primary claim of prejudice here is based on the death of K.H.’s
mother in 2007.1 K.H.’s mother, Kathy, was not a witness to the molestation, but was the
first person K.H. told. Defendant claims she was thus “a uniquely relevant witness” as
the only person who could testify “to what [K.H.] told her, and what [K.H.’s] demeanor
was.” He also asserts “[o]nly Kathy could have testified whether she went to the theater
to find [defendant], as . . . the theater manager testified.”
However, Kathy was not the only person who could testify as to what K.H. told
her or describe K.H.’s demeanor—K.H. testified to both. Moreover, Kathy and K.H.
were interviewed by police within about a week of the incident. The police officer who
interviewed mother and daughter was still with the force 19 years later, and testified at
trial. Additionally, defendant himself testified regarding K.H.’s demeanor immediately
after the incident, admitting K.H. “gave [him] an angry look and [he] could hear her
growl,” after what he described as a “spontaneous” touch to her back. Defendant also
testified Kathy was upset and angry after confronting him, and she refused to give him a
ride to his job at the theater the evening of the incident. And, defendant’s supervisor at
the theater testified Kathy came to the theater looking for defendant, “screaming and
yelling . . . that [defendant] had did this to her daughter and all . . . she was just
hysterical.” It is pure speculation on defendant’s part that the testimony of the victim’s
mother, if still alive, would have contradicted the testimony of K.H., or the officer, or his

1
Defendant maintained in the trial court that “Officer Domko, who took the
initial report, retired and was last known to be in Idaho.” On appeal, he makes no claim
of prejudice based on Officer Domko’s absence.

7
supervisor, or assisted his defense in any way. (See Shleffar, supra, 178 Cal.App.3d
937.)
Defendant also claims his defense was prejudiced because he was unable to locate
any witnesses who were employed by the hotel 19 years ago who could “dispute or
corroborate [K.H.’s] testimony that she saw [him] numerous times at the hotel, and went
swimming in the pool with him and her mother.” K.H. testified she “came into contact”
with defendant “maybe 10 or 15 times” that summer, which included encounters at both
the hotel and the theatre. Defendant admitted he was with K.H. at the hotel on two
different days, and he saw her once at the movie theater. Even if there was a hotel
employee who either saw K.H. and defendant together at the hotel, or never saw them,
defendant has not demonstrated how such a witness could have aided his defense.
Accordingly, defendant has not established any abuse of discretion by the trial
court in refusing to dismiss the case.
Evidence of Prior Crimes
Prior to trial, defendant sought to exclude evidence of his two prior convictions for
indecent exposure. The prosecutor stated he was not seeking introduction under
Evidence Code section 1108,2 but intended to introduce the convictions only as
impeachment evidence on credibility. The trial court ruled “if it’s just for purposes of
impeachment on credibility . . . I think probably it’s appropriate, since it is that old, to
exclude it, especially since the nature of the charge itself . . . is potentially quite
prejudicial and therefore, risks that would be taken as character evidence . . . . So . . . my
tentative thinking, anyway, is to exclude it. But, of course, if the defendant were to
testify in some kind of way to put it in issue, all bets would be off.”

2
Evidence Code section 1108 provides, in part: “In a criminal action in which the
defendant is accused of a sexual offense, evidence of the defendant’s commission of
another sexual offense or offenses is not made inadmissible by Section 1101, if the
evidence is not inadmissible pursuant to Section 352.” (§ 1108, subd. (a).) The section
defines “sexual offense” to include indecent exposure. (Evid. Code, § 1108, subd.
(d)(1)(A); Pen. Code, § 314.) All further undesignated statutory references are to the
Evidence Code.

8
 At trial, defendant testified he told K.H.’s mother after she confronted him about
the molestation that “you know me better than that. That’s not in me. I’d never do
anything like that. . . . Nothing like that could have happened.” The prosecutor then
sought to admit the evidence of the two priors as impeachment.
The trial court admitted the evidence, noting defendant “opened the door to what
otherwise might be excluded under 352 as of marginal relevance . . . . I gave fair notice to
the defendant . . . that depending on what he said it could open the door, and I think he
has. So I’m going to allow [the prosecutor] to question with respect to that conduct.”
The court explained the evidence was “expressly admissible evidence under 1108,
admissible for propensity as an exception to the usual 1101 rule, subject to 352 . . . .
[O]nce the defendant put them in issue it’s not simply for impeachment on the issue of
credibility but for its tendency to undercut what he said about his character.”
Accordingly, the court denied defendant’s request for an instruction limiting the jury’s
consideration of the priors to moral turpitude impeachment and not as propensity
evidence.
Defendant maintains the court erred in admitting evidence of his two prior
convictions, claiming they were not admissible either under section 1108 or for
impeachment.
The Legislature “enacted section 1108 to expand the admissibility of disposition
or propensity evidence in sex offense cases.” (People v. Falsetta (1999) 21 Cal.4th 903,
911 (Falsetta).) “ ‘[S]ection 1108 authorizes the admission of evidence of a prior sexual
offense to establish the defendant’s propensity to commit a sexual offense, subject to
exclusion under Evidence Code section 352.’ [Citation.]” (People v. Hollie (2010)
180 Cal.App.4th 1262, 1273.) In enacting section 1108, the Legislature determined that
“evidence of uncharged sexual offenses is so uniquely probative in sex crimes

9
prosecutions [that] it is presumed admissible without regard to the limitations of . . .
section 1101. [Citations.]” (People v. Yovanov (1999) 69 Cal.App.4th 392, 405.)3
“Evidence of previous criminal history inevitably has some prejudicial effect. But
under section 1108, this circumstance alone is not reason to exclude it. ‘[S]ection 1108
affects the practical operation of [Evidence Code] section 352 balancing “ ‘because
admission and consideration of evidence of other sexual offenses to show character or
disposition would be no longer treated as intrinsically prejudicial or impermissible.
Hence, evidence offered under [section] 1108 could not be excluded on the basis of
[section] 352 unless ‘the probability that its admission will . . . create substantial danger
of undue prejudice’ . . . substantially outweighed its probative value concerning the
defendant’s disposition to commit the sexual offense or offenses with which he is
charged and other matters relevant to the determination of the charge. As with other
forms of relevant evidence that are not subject to any exclusionary principle, the
presumption will be in favor of admission.’ ” [Citation.]’ ” (People v. Loy (2011) 52
Cal.4th 46, 62.)
In considering whether to admit evidence of a prior sexual offense under
section 1108, “trial judges must consider such factors as its nature, relevance, and
possible remoteness, the degree of certainty of its commission and the likelihood of
confusing, misleading, or distracting the jurors from their main inquiry, its similarity to
the charged offense, its likely prejudicial impact on the jurors, the burden on the
defendant in defending against the uncharged offense, and the availability of less

3
Defendant cites People v. Earle (2009) 172 Cal.App.4th 372, 399 (Earle) for the
proposition a “ ‘propensity to commit one kind of sex act cannot be supposed, without
further evidentiary foundation, to demonstrate a propensity to commit a different act.’ ”
Earle considered cross-admissibility under section 1108 in deciding whether an indecent
exposure charge was properly joined with a sexual assault charge. (Earle, at pp. 380–
381.) Given the unrelated nature of the charges, the Earle court concluded only expert
testimony could show a defendant’s commission of indecent exposure showed a
propensity to commit sexual assault. (Id. at pp. 397–398.) Although we question
whether Earle was correctly decided, we need not make that determination because the
instant case differs from Earle.

10
prejudicial alternatives to its outright admission, such as admitting some but not all of the
defendant’s other sex offenses, or excluding irrelevant though inflammatory details
surrounding the offense.” (Falsetta, supra, 21 Cal.4th at p. 917.) “The court’s ruling
under section 1108 is subject to review for abuse of discretion” (People v. Loy, supra, 52
Cal.4th at p. 61), as is its ruling under section 352. (People v. Lucas (2014) 60 Cal.4th
153, 268 [disapproved on another ground in People v. Romero (2015) 62 Cal.4th 1, 53,
fn. 19].)
The trial court initially excluded evidence of defendant’s two prior indecent
exposure convictions on the ground the acts were so remote in time their admission
would be more prejudicial than probative. The court put defendant on notice, however, it
would change its ruling and admit the evidence “if the defendant were to testify in some
kind of way to put it in issue, all bets would be off.” Defendant did just that, testifying
regarding the molestation that he had said “I’d never do anything like that. . . . Nothing
like that could have happened.” The court then allowed evidence of the prior
convictions.
Defendant now contends the prior acts of indecent exposure were not similar
enough to the charged offense to be admissible under section 1108. Under section 1108,
“there is no requirement that the charged and uncharged offenses be so similar that
evidence of the prior acts would be admissible under section 1101. If such strict
similarities were required, ‘section 1108 would serve no purpose. It is enough the
charged and uncharged offenses are sex offenses as defined in section 1108.’ [Citation.]
Nevertheless, it follows that uncharged prior offenses that are very similar in nature to the
charged crime logically will have more probative value in proving propensity to commit
the charged offense.” (People v. Hernandez (2011) 200 Cal.App.4th 953, 966.) Thus,
while similarity of the past offenses to the charged offense is one factor to be considered
in conducting the section 352 analysis required under section 1108 (see Falsetta, supra,
21 Cal.4th at pp. 916–917), it is not a requirement for admission.
Moreover, defendant’s claim that the acts of indecent exposure were not similar to
the charged offense was belied by the evidence. K.H. testified that at the time of the

11
incident, defendant was wearing only a towel. After he stopped touching her, he went to
the other side of the bed and the towel “fell off.” Officer Heinemann testified the police
report she took at the time indicated defendant “ ‘dropped his towel exposing his penis.’ ”
The prior incidents of indecent exposure were thus similar in some respects to the
circumstances of the charged offense.
Additionally, the remaining Falsetta factors weighed in favor of admission.
Evidence of the prior convictions became highly relevant once defendant testified he
would “never do anything like that.” There was a high “degree of certainty” the two
prior acts occurred: the prosecutor made an offer of proof indicating he had records of the
two prior convictions, and defendant testified to that effect. (Falsetta, supra, 21 Cal.4th
at pp. 916–917.) The court allowed impeachment only with the fact of the two prior
convictions, and did not admit “inflammatory details surrounding the offense[s].” (Ibid.)
Finally, while evidence of defendant’s inclination to commit other sex crimes was
damaging to his defense, it was not unduly prejudicial. “ ‘ “Undue prejudice” refers not
to evidence that proves guilt, but to evidence that prompts an emotional reaction against
the defendant and tends to cause the trier of fact to decide the case on an improper basis
. . . .’ ” (People v. Hollie, supra, 180 Cal.App.4th at pp. 1276–1277.)
Defendant also claims it was error to admit evidence of the two priors as
impeachment. Two kinds of impeachment are implicated here: general “moral turpitude”
impeachment and impeachment with facts contrary to defendant’s testimony.
A prior conviction of indecent exposure may be admissible as general moral
turpitude impeachment. (People v. Ballard (1993) 13 Cal.App.4th 687, 696–698.) “A
person who intentionally and lewdly affronts strangers and members of the general
public, with unwelcome and offensive sexual displays of his genitals, is a person of
‘moral depravity’ and ‘ “bad character” ’ with a ‘ “readiness to do evil.” ’ ” (Id. at p.
696.) “ ‘ “ ‘[A] witness’s moral depravity of any kind has some “tendency in reason” . . .
to shake one’s confidence in his honesty.’ ” ’ ” (People v. Robinson (2011) 199
Cal.App.4th 707, 716.)

12
 Evidence of prior convictions may also be admissible as impeachment with facts
contrary to defendant’s testimony. “[I]f past criminal conduct amounting to a
misdemeanor has some logical bearing upon the veracity of a witness in a criminal
proceeding, that conduct is admissible . . . .” (People v. Wheeler (1992) 4 Cal.4th 284,
294–295 [superseded by statute on another ground as stated in People v. Duran (2002) 97
Cal.App.4th 1448, 1459–1460]; see Simons, Cal. Evidence Manual (2015) § 3:46, p.
268.) People v. Cooks (1983) 141 Cal.App.3d 224, is illustrative. In that case, one of the
defendants testified he never possessed a gun. The court allowed impeachment of his
credibility with evidence of a prior misdemeanor conviction for gun possession. The
Court of Appeal affirmed, holding “the reference to the prior conviction was not asserted
as a specific instance of conduct ‘tending to prove a trait of his character’ . . . such as
dishonesty, but was offered and properly admitted to contradict his prior statement that he
never possessed a gun.” (Id. at p. 324.)
Defendant asserts the prior convictions do not contradict his testimony that he
would “never do anything like that” because his statement referred only to a sexual crime
against a child, not sex crimes in general. The court concluded otherwise: “[t]he clear
implication of that to this jury is that he’s not a guy that would ever commit a sexual
offense.” We agree that a reasonable interpretation of the meaning of “anything like
that” certainly included any sex crime. Indeed, allowing defendant’s testimony that he
would “never do anything like that” to go unimpeached by his prior indecent exposure
convictions would have permitted defendant to affirmatively mislead the jury. Thus,
evidence of the prior incidents of indecent exposure was relevant to attack defendant’s
credibility by proving facts inconsistent with his testimony that he would “never do
anything like that.”
In sum, defendant has failed to show any abuse of discretion by the trial court in
admitting into evidence the prior convictions under section 1108 and as impeachment.
Exclusion of Evidence of a Prior Molestation of K.H.
Defendant maintains the trial court also abused its discretion in excluding
evidence K.H. had been molested before. He urges the evidence was relevant because it

13
involved “the exact same acts” and K.H.’s “familiarity with such acts at a young age.”
Thus, he concludes the evidence was relevant to “cast doubt upon the conclusion that
[K.H.] must have learned of these acts through the defendant.”
Generally, the defense may not ask a witness who claims to be the victim of sexual
assault about his or her prior sexual activity. (People v. Mestas (2013) 217 Cal.App.4th
1509, 1513; Evid. Code, § 1103, subd. (c)(1).) Section 782, however, provides a limited
exception—the statute is “designed to protect victims of molestation from ‘embarrassing
personal disclosures’ unless the defense is able to show in advance that the victim’s
sexual conduct is relevant to the victim’s credibility. [Citation.] If, after review, ‘the
court finds the evidence relevant and not inadmissible pursuant to Evidence Code
section 352, it may make an order stating what evidence may be introduced and the
nature of the questions permitted.’ [Citation.] ‘A trial court’s ruling on the admissibility
of prior sexual conduct will be overturned on appeal only if appellant can show an abuse
of discretion.’ ” (People v. Bautista (2008) 163 Cal.App.4th 762, 781–782.)
Defendant sought to introduce evidence of at least two prior incidents in which
K.H. was molested as a child by a female relative “so that the jury will not conclude that
any knowledge of sexual activity must have come from the alleged conduct of
[defendant].” At the section 402 hearing,4 K.H. testified that between the ages of six and
eight, a female relative asked her to touch her breast and vaginal area. In a second
incident, the same relative put her mouth on K.H.’s vagina. K.H. was not certain if there
was a third incident.
The court found these prior incidents were “not particularly relevant to credibility
on the theory that a nine-year-old would not know to be able to describe conduct like this
in a setting where the conduct in the first incident is quite different than the conduct
alleged here. For starters, the perpetrator in the first incident, or incidents, was a female,
not a male. There are obvious differences in anatomy, but there’s also differences in

4
The prosecutor waived the requirement that the defendant bring a new motion
under section 782, and the parties agreed the transcript of the prior section 402 hearing on
the issue at the first trial could be considered by the court.

14
what a child might imagine would be normal and acceptable between a female and a male
based on that prior experience. . . . [¶] There’s also different conduct. There was no oral-
genital contact in this case in the nature of the oral-genital contact that occurred in the
earlier incident. And the touchings were different. [¶] And so I think it’s only of
marginal relevance. . . . [¶] And I think the relevance in the ability to explain and
describe is also attenuated significantly by the fact that 20 years have passed and the
victim is now an adult. So the experiences of an adult in the intervening years and the,
presumably, more knowledgeable witness that will be here, relative to a child witness,
makes that much more attenuated, the relevance. [¶] . . . [O]n the 352 issue, I think that
it—because it’s of marginal relevance, it would be confusing, consumptive of time, and
invite all kinds of speculation by the jury of what was the effect of prior experiences on a
child witness. . . .” The court added “I will say, however, that [the prosecutor], based on
my ruling, you cannot then argue that a child wouldn’t make this up, or how could a child
have imagined this, unless it’s true. You can’t say that.”
Defendant maintains it was error to exclude the evidence, relying on People v.
Daggett (1990) 225 Cal.App.3d 751 (Daggett.) Daggett explained “[a] child’s testimony
in a molestation case . . . can be given an aura of veracity by his [or her] accurate
description of the acts. This is because knowledge of such acts may be unexpected in a
child who had not been subjected to them. In such a case it is relevant for the defendant
to show that the complaining witness had been subjected to similar acts by others in order
to cast doubt upon the conclusion that the child must have learned of these acts through
the defendant. Thus, if the acts involved in the prior molestation are similar to the acts of
which the defendant stands accused, evidence of the prior molestation is relevant to the
credibility of the complaining witness and should be admitted.” (Id. at p. 757.)
The situation in Daggett, however, was entirely different than the situation here.
In that case, the complaining witness had been charged in juvenile court with molesting
two younger children. (Daggett, supra, 225 Cal.App.3d at p. 754.) After the charges
were filed, he accused Daggett of orally copulating and sodomizing him. (Ibid.) There
was evidence the complaining witness had told medical professionals he had been

15
sexually molested as a child. (Ibid.) The court held it was error, in Daggett’s trial, to
exclude evidence of the earlier molestation of the complaining witness without holding a
hearing under section 782. (Ibid.) The court noted the error was compounded when “the
prosecutor argued to the jurors that if they believed [the complaining witness] molested
other children, he must have learned that behavior from defendant. This is the type of
argument the excluded evidence was intended to refute.” (Id. at p. 757.)
In this case, the evidence adduced at the hearing showed the earlier acts of sexual
molestation of K.H. were dissimilar to the charged acts of defendant. The perpetrator in
the earlier incidents was female, and the sexual acts alleged were different. Most notably,
however, K.H. was not a child when she testified at trial; she was a 29-year-old woman.
The trial court forbid the prosecutor from arguing “that a child wouldn’t make this up, or
how could a child have imagined this, unless it’s true.” Thus, there was no danger her
testimony as an adult regarding the acts committed against her as a child would lead the
jury to conclude her knowledge of the sexual acts could only have resulted from her
encounter with defendant.
Accordingly, the trial court acted within its discretion in concluding evidence of
the prior molestations was of extremely marginal relevance, while its admission would be
“confusing, consumptive of time, and invite all kinds of speculation. . . .”
Finally, contrary to defendant’s claim, “exclusion of the evidence of a victim’s
sexual history does not deny the defendant a fair trial. There is no fair trial problem with
exclusion of all such evidence under Evidence Code section 1103. ‘That limited
exclusion no more deprives a defendant of a fair trial than do the rules of evidence
barring hearsay, opinion evidence, and privileged communications.’ [Citation.]
Therefore, because the trial court may properly exclude all such evidence without
violating a defendant’s fair trial rights, there is no merit in the argument that not
admitting some of the evidence under Evidence Code section 782 deprives the defendant
of a fair trial.” (People v. Mestas, supra, 217 Cal.App.4th at p. 1517.)

16
Prosecutorial Misconduct and Ineffective Assistance of Counsel
In his opening statement, the prosecutor stated: “And the defendant molested her.
He stole her innocence in this hotel room.” Defendant asserts this was misconduct,
because it suggested K.H. “had no sexual experience,” was “sexually naive, and could
not have fabricated allegations of specific sexual contact.” He also claims his trial
counsel’s failure to object constituted ineffective assistance of counsel.
Defendant maintains People v. Varona (1983) 143 Cal.App.3d 566 is controlling.
In that sexual assault case, defendant unsuccessfully sought to introduce evidence the
victim was a prostitute who, “in pursuit of her profession . . . walked the night streets, in
th[e] area [where the crime allegedly occurred], to solicit customers.” (People v. Varona,
supra, 143 Cal.App.3d at pp. 569–570.) The defendant averred it was “misconduct for
the prosecutor to argue that there was no proof that the woman was a prostitute when he
had, by his objections, prevented the defense from proving that fact.” (Id. at p. 569.) The
court agreed, noting the prosecutor “not only argued the ‘lack’ of evidence where the
defense was ready and willing to produce it, but he compounded that tactic by actually
arguing that the woman was not a prostitute although he had seen the official records and
knew that he was arguing a falsehood.” (Id. at p. 570.)
In contrast, the prosecutor here did not argue a falsehood. He did not state K.H.
had no sexual experience or had never been sexually molested before. Neither did he
argue that K.H., as a child, could only have knowledge of certain sexual acts because of
the molestation by defendant. “Prosecutors have wide latitude to discuss and draw
inferences from the evidence at trial.” (People v. Lucas (1995) 12 Cal.4th 415, 473.)
The fact that K.H. had been molested before did not mean the nine-year-old had no
innocence left to steal. The prosecutor’s statement was a permissible inference from the
evidence, not misconduct.
“To demonstrate ineffective assistance of counsel, a defendant must show two
things: deficient representation and prejudice resulting from the deficient representation.
The standard for prejudice is whether there is a reasonable probability the defendant
would have obtained a better result absent the deficiency. [Citations.] If there is no

17
showing of prejudice, we need not examine counsel’s performance. [Citation.]” (People
v. Mestas, supra, 217 Cal.App.4th at p. 1518.) Because we have concluded the
prosecutor did not commit misconduct, there can be no prejudice arising from defense
counsel’s failure to object. Moreover, the complained-of comment was very brief, and
the jury was instructed the comments of counsel are not evidence. Thus, even if there
was misconduct, it did not begin to amount to prejudicial misconduct.5
DISPOSITION
The judgment is affirmed.

_________________________
Banke, J.

We concur:

_________________________
Humes, P. J.

_________________________
Margulies, J.

5
Defendant also asserts the cumulative effect of the claimed errors violated his
due process rights. Because we have concluded the trial court did not err, we reject this
claim.

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