Filed 2/11/21 P. v. Joven CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078263
Plaintiff and Respondent,
(Super. Ct. No. VCF316448)
v.
ELOY JOVEN, JR., OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A.
Kalashian, Judge. (Retired Judge of the Tulare County Super. Ct. assigned by the Chief
Justice pursuant to article VI, § 6 of the Cal. Const.)
Cara DeVito, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D.
Cary and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Eloy Joven, Jr. was charged with 10 counts of child molestation
committed against his stepson, as follows: two counts of sodomy with a child 10 years of
age or younger (Pen. Code, § 288.7, subd. (a); counts 1–2),1 four counts of oral
copulation with a child 10 years of age or younger (§ 288.7, subd. (b); counts 3–6), and
four counts of committing a lewd act on a child under the age of 14 (§ 288, subd. (a);
counts 7–10).2 The jury convicted defendant of all counts and as to counts 7 through 10,
found true that defendant had substantial sexual conduct with a victim under 14 years old
for the purpose of precluding probation or a suspended sentence. (§ 1203.066,
subd. (a)(8).) The trial court sentenced defendant to a total determinate term of 12 years
in prison plus a consecutive indeterminate term of 110 years to life in prison.3
On appeal, defendant claims that the trial court erred when it excluded, as double
hearsay, evidence that the victim’s mother told police defendant denied the victim’s
initial disclosure of abuse. Defendant also claims that the trial court committed
instructional error when it omitted a paragraph from CALCRIM No. 200 (duties of judge
and jury), modified CALCRIM No. 332 (expert witness testimony), and failed to instruct
with CALCRIM No. 359 (corpus delicti) and CALCRIM No. 371 (consciousness of
guilt). Finally, defendant claims that cumulatively, the trial errors violated his right to
due process and a fair trial.
1 All further statutory references are to the Penal Code unless otherwise specified.
2 Counts 1 and 2 were based on defendant’s sodomization of the victim the first time and
the last time; count 3 was based on defendant’s oral copulation of the victim; counts 4 through 6
were based on the victim’s oral copulation of defendant the first time, the next time, and the last
time; counts 7 and 8 were based on the victim’s hand on defendant’s penis the first time and the
last time; and counts 9 and 10 were based on defendant’s hand on the victim’s penis the first time
and the last time.
3 Defendant was sentenced to the middle term of six years on count 7, consecutive terms of
two years each on counts 8 through 10, consecutive terms of 25 years to life each on counts 1
and 2, and consecutive terms of 15 years to life each on counts 3 through 6.
2.
The People contend defendant forfeited his claim that the victim’s mother’s
statement was admissible as a prior inconsistent statement because he failed to object
with sufficient specificity, and he forfeited his claims of instructional error because he
failed to object when the court misspoke and he failed to request instruction on corpus
delicti and consciousness of guilt. They also dispute the trial court erred and contend that
any errors were harmless.
We agree with the People that no reversible errors occurred, separately or
cumulatively, and we affirm the judgment.
FACTUAL SUMMARY
I. Prosecution Case
A. Disclosure of Abuse
Defendant and A.V. met in 2008 and married in 2009. When they met, A.V. had
two young sons from her prior marriage, S.B., two years old, and E.B., who was an
infant. A.V. and defendant later had two sons together, V.J. and J.J. Defendant raised
stepsons S.B. and E.B. as his own, although A.V. felt defendant was not as close with
S.B. once V.J. was born. By 2015, there was tension in the marriage, but A.V. and
defendant still lived together with the four boys and A.V. was not contemplating a
divorce.4
On a Saturday evening in March 2015, A.V. and defendant were in the living
room watching television. V.J., five years old, came out of his bedroom where he and
S.B., eight years old, were playing and said in a joking voice, “‘[S.B.] kissed my butt.’”
It did not occur to A.V. that anything “highly inappropriate” had happened because “boys
do[] dumb things,” but she questioned the two boys. S.B. said they were playing a game
and V.J. told S.B. to kiss his butt so S.B. did. It seemed like a game or a joke to A.V. and
4 A.V. and defendant divorced in 2015, following S.B.’s disclosure of abuse.
3.
it did not enter her mind that S.B. might have kissed his brother’s unclothed bottom, so
she told V.J. that the behavior was inappropriate and sent him to his room.
A.V. taught S.B. his “private parts” were his and to let her know if anyone ever
made him feel uncomfortable, but she did not talk to him about inappropriate touching in
detail and he never mentioned anything to her prior to that night. S.B. told A.V. they
were just playing around, but when she said he could not do things like that, he appeared
afraid to her. She told S.B. that what he did was inappropriate and asked him where the
behavior came from. S.B. then “[t]imid[ly]” disclosed that when he, his older cousin,
G.A., and his two younger cousins, A.J. and A.A., were playing outside in the sprinklers,
G.A. made A.J. “put his privates in [S.B.’s] butt” while A.A. watched.
A.V. did not know what to do or think so she asked S.B. to go to his room and she
started to cry. She testified that defendant was there the entire time and heard everything
S.B. said, but he did not say anything. After she broke down crying, defendant held her
and comforted her. Once she calmed down, A.V. told defendant she needed to talk to
S.B. further and went to his room. Defendant followed, saying he would work on the
television in the room.
S.B. was lying on the bottom bunk bed and A.V. laid down next to him. She
testified she was composed and spoke to him again about inappropriate touching. She
told him that he needed to tell her about anything that made him uncomfortable, no
matter who was involved, because she could not protect him otherwise.
S.B. began to speak and said, “‘well.’” Defendant then abruptly scooped him up
and hugged him as if trying to console him. A.V. testified defendant told S.B. it was
okay, and she told defendant that S.B. was trying to talk to her. Defendant again told
S.B. it was okay. A.V. said, “‘No, he wants to tell me something.’” S.B. tried to lift his
head from defendant’s shoulder, and A.V. saw defendant lean back slightly, make a small
nod side-to-side with his head, and put S.B. back on his shoulder. A.V. started to get
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nervous. She told S.B. to tell her and defendant to allow him to speak. S.B. then lifted
his head and said, “Daddy makes me suck his pee-pee sometimes.”
A.V. grabbed S.B. from defendant and screamed at him “to get the fuck out of
[her] son’s room.” After A.V. screamed at him repeatedly, defendant left the room. A.V.
put S.B. in her bedroom and told him to keep the door locked no matter what he heard.
A.V. then went into the living room and screamed at defendant to get out of the house.
He wanted to go outside and talk about it over a cigarette, but he finally left after she
threatened to call police.
After defendant drove off, A.V. went to her room and comforted S.B. They were
both crying, and S.B. disclosed more details regarding what defendant was doing to him.
A.V. then called her brother, M.G., who lived down the street, and he came over. A.V.
told M.G. what S.B. disclosed, and M.G. then spoke with S.B. After A.V. put S.B. to bed
in her room and went to the living room to talk with M.G., he told her it was best to keep
defendant away from S.B. and not involve the police.5
A.V. testified she did not call the police that night because she was in shock, but
she called two days later, on Monday. A.V. and S.B. were interviewed that day by
Officer Skamel for the purpose of determining whether a crime had been committed and
defendant was subsequently arrested at his mother’s house. An assigned detective
arranged for a forensic interview specialist to conduct a Child Abuse Response Team
(CART) interview with S.B., which occurred the next day.
B. S.B.’s CART Interview
During S.B.’s videotaped CART interview, which was played for the jury, S.B.
disclosed engaging in acts of fondling, oral copulation, and sodomy with defendant,
whom he referred to as dad or daddy during the interview and identified by name. S.B.
did not recall when the first incident occurred or what happened, but S.B. thought he was
5 M.G.’s statement was admitted for the limited purpose of showing what A.V. did next.
5.
six or seven years old and in kindergarten, first grade or second grade. He said that
before defendant “started doing that nasty stuff to [him],” defendant was nice and they
did fun things together.
S.B. described several incidents in more detail, including an incident that occurred
when they were watching cartoons together. S.B. said they put their hands in each
other’s “chone-chones,” or underwear, and rubbed each other’s “private,” which meant
penis. He said that sometimes defendant told him to, and sometimes defendant grabbed
his hand and made him.
S.B. recalled another incident when defendant texted A.V. from the bathroom and
told her to have S.B. to bring him some toilet paper. When S.B. did, defendant grabbed
his hand and made him rub defendant’s private. He also asked S.B. if he could rub S.B.’s
private, and he then did so even though S.B. did not want him to.
S.B. said that defendant made him “put [defendant’s] pee-pee inside [his] mouth”
“[a] lot” when there were alone together. S.B. described “[s]ome kind of white stuff” that
would come out of defendant’s private and into his mouth. Sometimes it got on the floor,
the bedding, or defendant’s pants or underwear. S.B. thought it was pee because “[it]
tasted really, really gross,” and he would spit it out in the sink or toilet. He said his
mother was able to smell the white stuff that came out of defendant’s private and she
would wash bedding the next morning. He recalled asking her one time why she was
washing the bedding when she had just washed it the day before and she said she
“smelled something gross on it,” which S.B. thought was the white stuff.
S.B. reported that defendant would ask him, “‘Want to suck my private?’” One
time, S.B. told defendant no but he was too scared to say no the other times. He told
defendant that he wanted to obey God and God “‘doesn’t like that stuff,’” but even
though defendant said it was the last time, defendant kept making S.B. orally copulate
him and kept reaching inside S.B.’s pants and underwear. S.B. said that when he
showered, defendant would put his clothes in defendant’s room and when S.B. would go
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in the room to change, he had to orally copulate defendant. S.B. said that when defendant
was in the bathroom, he felt like running but defendant “would get real angry,” although
he did not know what defendant would have done because he never ran.
S.B. also described an incident in which defendant put white medicine from a tube
on his private and “pushed it really, really hard” into S.B.’s bottom while S.B. was
kneeling on the bathroom cabinetry. S.B. was unable to control his bowels and defecated
on the floor. Afterward, defendant cleaned up the floor and told S.B. to “keep it a
secret.” S.B. said the incidents of sodomy occurred only in the bathroom and although he
could not recall how many times it happened, he thought it was more than 10. Defendant
would say, “‘Don’t tell anybody. Remember, this is our secret.’” S.B. thought the white
medicine, which defendant used “[a] lot” when he sodomized S.B., was called “A plus
D” and his mother used it for his brother’s diaper rash.
S.B. recalled orally copulating defendant one time in defendant’s bedroom, more
than one time in S.B.’s bedroom, and “more than a thousand” times in the kitchen.
During one incident where S.B. was orally copulating defendant, defendant made S.B.
reach around and touch his butt. S.B. recalled being caught only one time, when his
mother walked in on them in the kitchen while he was orally copulating defendant.6 S.B.
said his mother asked defendant what he was doing and then they went into their
bedroom to talk. S.B. could not hear what they were saying but after they came out, no
one said anything to him.
The last incident of abuse occurred the night before S.B. told his mother what was
happening with defendant and, during that incident, he and defendant were sucking each
other’s privates at the same time. He said that only happened on one occasion, and then
he “was brave enough” to tell his mother what defendant was doing to him. He said he
6 A.V. denied walking in on defendant sexually abusing S.B. and said if she had seen that,
she “would have killed [defendant].” At trial, S.B. did not recall any specifics regarding the
kitchen incident.
7.
just wanted defendant to stop and he told defendant he was going to tell his mother.
Defendant shook his head no, but S.B. said he did not care.
S.B. also disclosed one incident of sexual conduct involving his three cousins. He
said that they were playing in the sprinklers and got cold. After they left the sprinklers to
dry off, his older cousin, G.A., came up with the idea. The three of them stared at G.A.,
but after he punched them, or threatened to punch them, A.J. agreed to do it. S.B. said
that A.J. and G.A. then both put their privates in his bottom. S.B. recalled that defendant
was already touching him by then, but he could not remember if the acts of oral
copulation had begun.
C. S.B.’s Trial Testimony
Approximately three and one-half years passed between S.B.’s CART interview
and the trial. S.B. was 12 years old when he testified and he no longer recalled many of
the more specific details he related during his CART interview. S.B. remembered being
interviewed by a police officer and another woman, but he did not remember what he told
them, although he was truthful at the time and told the interviewer everything he could
remember. S.B. no longer recalled the last time defendant abused him and he could not
remember when it started or how old he was, but he said the first time was “[a] long time
ago.”
S.B. was uncomfortable testifying and he tried to forget the abuse, but he said that
defendant “was using his [front] private[s] against [S.B.],” by which S.B. meant
defendant’s penis. S.B. testified that defendant’s penis touched his mouth and his butt,
and that defendant put his penis in S.B.’s butt, which hurt “very bad.” S.B. thought this
occurred five to ten times, and he recalled one incident of sodomy in the bathroom that
caused him to defecate on the floor. S.B. also recalled defendant putting medicine on his
penis prior to sodomizing S.B.
S.B. testified that defendant put his penis in S.B.’s mouth at least five times, but
not more often than he sodomized S.B., and he did not recall saying it happened more
8.
than a thousand times in his CART interview. S.B. recalled defendant reaching inside his
underwear a few times to touch him and defendant making him reach inside defendant’s
underwear to touch defendant. He also recalled one incident in his parents’ bedroom
when defendant told him to lick defendant’s penis, one incident when they orally
copulated one another in his parents’ bedroom, and one incident when defendant moved
S.B.’s hands to defendant’s butt while S.B. was orally copulating defendant. S.B. did not
recall seeing anything come from defendant’s penis during the incidents or feeling
anything in his mouth, but he recalled a gross taste he thought was pee. He also did not
recall if anything got on the sheets or blanket, did not recall his mother complaining
about the smelly sheets, did not recall defendant doing anything to him when he brought
defendant toilet paper, and did not recall what happened the time he took a shower and
forgot his clothes.
S.B. no longer recalled much about the incident in the kitchen, although he said he
remembered telling the interviewer about it. He testified his mother walked in on them
early in the morning, but although something was not right, he did not recall what
defendant had done and he denied that defendant’s penis was in his mouth. He testified
he did not know what his mother saw because she never told him or asked him any
questions. He also did not recall his parents having a conversation afterward while he
watched cartoons.
S.B. testified that the night he told his mother, they were in his bedroom with
defendant. Defendant held him and shushed him, but he told his mother defendant was
doing bad things to him. He recalled defendant was upset, and his mother yelled and
kicked defendant out of the house.
D. SART Examination
Based on S.B.’s disclosure of sodomy during the CART interview, Corporal
Dominguez referred S.B. for a Sexual Assault Response Team (SART) examination with
a registered nurse. The nurse documented a reported history of fondling and oral
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copulation, and noted that S.B. had no visible injuries, but his perirectal skin was dry and
red. Based on the presence of dry, red perirectal skin, the nurse found that S.B.’s exam
was “indeterminate,” meaning she was unable to conclude the “abnormality” was caused
by sexual assault; and “consistent with history.” At the conclusion of the exam, the nurse
made a finding of “[n]onspecific, may be caused by sexual abuse of other mechanisms,”
and she explained that of the other three possible options—“normal …, sexual abuse is
highly suspected, and definite evidence of sexual abuse”—she had never selected the
latter two.
Corporal Dominguez testified he informed the nurse of the sodomy allegation, but
she did not take notes and he was not present when she spoke with A.V. The nurse
explained that her examination was based on the history provided by A.V., who
mentioned fondling and oral copulation, but not sodomy. A.V. was not present during
S.B.’s CART interview and although she said S.B. eventually disclosed to her that
defendant sodomized him, she did not recall when that was and did not think it occurred
the night of the initial disclosure. Regarding lack of visible injury, the nurse explained
that children’s skin is more resilient, they heal quickly, studies have shown only a low
percentage of children show signs of anal or genital trauma from penetration, and the use
of a lubricant makes a difference.
II. Defense Case
A. Defendant’s Testimony
Defendant’s testimony was generally consistent with A.V.’s as to tension in their
marriage the last year, but he denied he made any distinction between his stepsons and
his biological sons in terms of treatment. He also denied he was controlling or
disallowed V.J. and J.J. from visiting A.V.’s grandparents, who lived in the same town.
Defendant described co-parenting the boys with A.V., and coaching V.J.’s and E.J.’s
soccer teams.
10.
Defendant’s testimony was also generally consistent with A.V.’s regarding the
night of S.B.’s initial disclosure. V.J. and S.B. were in V.J.’s bedroom when V.J. ran out
and told them S.B. kissed his butt. Defendant and A.V. summoned S.B. and talked to the
boys about what happened. Defendant said he and A.V. were both upset, and she was
crying because before they sent S.B. to his bedroom, he told them one of his cousins,
G.A., touched him. Defendant consoled A.V. and then they both went to S.B.’s bedroom
because A.V. wanted to talk to S.B.
A.V. laid down on the bed with S.B., who began to cry. Defendant testified S.B.
stretched out his hands to defendant so defendant picked him up to comfort him. Once
defendant calmed S.B. down, S.B. turned to A.V. and said, “‘Dadda is touching me,
too.’” A.V. grabbed S.B. from defendant and told him to get out of the room. He told
A.V. he did not do it, but she told him to get out again and he did.
Defendant went into the living room, sat on the couch and cried. When A.V. came
out and told him to leave the house, he told her he did not do anything and suggested they
go outside to talk. A.V. did not want to talk, however, and he left. Defendant testified
that he did not know what to do and he had never been accused of anything like that. He
said he still views S.B. as his son and that S.B.’s accusations broke his heart; and he
denied ever engaging in sexual misconduct with S.B. or any other child.
B. Expert Witness Testimony
1. Dr. Gomez
Dr. Gomez, a forensic clinical and neuropsychologist whose areas of expertise
include assessment of sex offenders, evaluated defendant for sexual disorders or sexual
deviation, now referred to as paraphilias. Dr. Gomez addressed pedophilia, a common
paraphilic disorder that involves the intense desire to have sex with prepubescent
children; and he described some of the traits and behaviors associated with the disorder,
including that pedophiles mainly possess child pornography, exhibit a noticeably unusual
interest in spending time with children, and usually have more than two or three victims.
11.
Based on his review of relevant reports, interview with defendant and administration of
numerous tests, Dr. Gomez concluded that defendant is of low-average intelligence,
showed no significant impairments, and did not fit the criteria for a sexual disorder,
including pedophilia, or for other disorders such as major depressive disorder and
antisocial personality disorder.
On cross-examination, Dr. Gomez acknowledged that the rate of pedophilia
among offenders is only between one and three percent, and that most child molesters are
one-time offenders who victimize someone in the household.
2. Dr. McAuliff
Dr. McAuliff, a university psychology professor with a law degree and doctorate
in legal psychology, researches children and the legal system, and his areas of expertise
are children’s memory and suggestibility, and forensic interviews. Dr. McAuliff
explained that suggestibility looks at the accuracy of memory and factors that influence
both memory and reporting in children; and forensic interviewing focuses on designing
interviews to maximize accurate information and minimize inaccurate information
obtained from children. He did not interview defendant, but reviewed the police reports
and the CART interviews of S.B. and his brothers.
Dr. McAuliff testified that factors influencing memory in children include age,
repeated questioning by adult authority figures, and cross-contamination from other
sources of information. With respect to age, research focuses on three separate age
groups of zero to five years old, six to 13 years old, and 14 years and older, with the
youngest group being the most suggestible and the oldest group being the least
suggestible, although “[e]ven adults can be influenced by suggestibility.” With respect to
questioning, formal questioning by adult authority figures and repeat questioning are
factors that influence children’s responses, and cross-contamination occurs when
children’s memories, which are imperfect processes to begin with, are influenced through
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use of leading questions, overheard conversations, and exposure to sexualized material or
other sexualized behavior.
Dr. McAuliff explained that leading questions and children’s natural deference
toward adults together create problems in reporting by children. Recommended protocols
include the use of open-ended questions and conducting only one videotaped interview in
a child friendly setting. However, Dr. McAuliff acknowledged that most police officers
and forensic interviewers now get the training they need and do a better job, compared
with past decades. Areas of concern for Dr. McAuliff included “uncontrolled questions”
prior to law enforcement involvement, and he stated that while a poorly done forensic
interview makes a situation worse, a forensic interview done well cannot cure prior
contamination that has occurred.
Defense counsel provided Dr. McAuliffe with the following hypothetical: “If you
have an eight-year-old that is questioned by his mother after a younger brother reported
inappropriate sexual behavior, and that 8-year-old initially reported sexual activity with
cousins, then upon questioning accuses a father of inappropriate touching, do you have
any concerns about that and that protocol?” Dr. McAuliffe responded that the child’s
age, which places him in the middle group in terms of suggestibility, stood out. In
addition, spontaneous disclosure was absent because the child was responding to
questions about potential abuse, and the disclosure of additional information while
responding to questions is a source of potential report contamination with respect to the
origination of details.
Counsel then asked if it would be of concern that the child in the hypothetical was
subsequently questioned by other adults, including police officers, a forensic examiner
and an uncle. Dr. McAuliffe responded that repeat questioning is a concern because there
is potential for contamination every time someone talks to a child, and children’s natural
deference to authority is a concern because children do not speak in narratives and must
13.
be asked a series of questions. As well, potential exposure to sexual behavior with
cousins and exposure to pornography can influence reports.
On cross-examination, Dr. McAuliffe agreed that children are capable of accurate
reporting even when some of the influencing factors he discussed are present, and,
therefore, each situation must be evaluated in context. He also agreed that disclosures of
abuse may often be delayed and may be inconsistent, and that it is common for children
not to report every detail during the initial disclosure. He conceded that the CART
interviews of S.B. and his brothers were predominantly based on open-ended questions
and followed best practices for forensic interviews. However, he opined that S.B.’s
initial disclosure of abuse was not spontaneous or voluntary because S.B. was questioned
three times that evening: the first time regarding the incident with his brother, which
resulted in no disclosure; a second time, which resulted in the disclosure regarding his
cousins; and a third time, which resulted in the disclosure against defendant.
Dr. McAuliffe explained that while the questioning was understandable from a parenting
perspective and did not mean S.B. could not produce accurate information, the fact that
an adult was asking questions that produced the responses meant cross-contamination
existed and created “the chance of inaccuracy.”
C. Other Evidence
G.A. did not testify, but his siblings, A.A. and A.J., did. They recalled playing in
the sprinklers at S.B.’s house, but A.J. denied he ever sodomized S.B. and A.A. denied
ever seeing anything inappropriate. Both testified they would have remembered had
anything like that happened. They also admitted they loved defendant and G.A., and did
not want them to get into trouble.
Defendant’s friend, D.S.; cousin, C.G.; and sister, B.J., who is the mother of G.A.,
A.J. and A.A., testified as character witnesses. They stated that defendant is truthful and
honest. D.S. said defendant was respectful and mannerly around children, and S.G. and
B.J. said they had no hesitation allowing defendant around children.
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M.G., who is A.V.’s brother and the father of two of B.J.’s five children, also
testified. M.G. said S.B. calmly disclosed the inappropriate touching, and A.V. asked
him whether she should call the police, which he viewed as “[e]xtremely” odd. He
denied he told A.V. not to call police and said it seemed “pretty reasonable” to do so.
DISCUSSION
I. Exclusion of A.V.’s Statement to Officer Skamel
A. Background
Officer Skamel met with S.B. and A.V. on March 23, 2015, two days after S.B.’s
initial disclosure. A.V. told Skamel that S.B. stated, “‘Daddy is making me suck his pee
pee and his [sic] is sucking mine too,’” and defendant responded, “‘I did not do
anything.’” Skamel documented A.V.’s statement in her report.
S.B. was the prosecution’s first witness and, during cross-examination, defense
counsel began to ask him about defendant’s denial of the crime. The prosecutor objected
and the trial court sustained her hearsay objection. Defense counsel subsequently asked
S.B., “But before your dad went in the hallway, he said he hadn’t done anything wrong,
had he? Didn’t he?” S.B. responded that he could not hear.
The next day, defense counsel raised the issue of defendant’s denial to A.V.
outside the presence of the jury and argued, “[W]e don’t want the jury to be left with the
impression that there is no response, almost an adopted admission by failing to object,
saying he didn’t do anything. I think that’s why the statement is admissible. [¶] It’s
spontaneous. It’s in response to an accusation, and I think the failure to allow it in is very
dangerous because it almost allows for an argument by the prosecutor or reasoning by the
juror that that’s an adopted admission because he didn’t deny it. It’s a simple, ‘I didn’t
do anything.’ That’s all it was.”
The prosecutor responded that she was not making any argument that there was an
adoptive admission, and the trial court stated its prior ruling would stand.
15.
A.V. testified next and the prosecutor asked her what defendant said after S.B.
disclosed the abuse. A.V. stated she did not recall him saying anything. The prosecutor
asked if it would “be fair to say that he never said, ‘I did it.’” A.V. responded, “He never
once denied what my son said.” The prosecutor asked if A.V. recalled telling Officer
Skamel that defendant told her he did not do it. A.V. did not recall, but agreed that if she
did, it would have been true. The prosecutor then clarified with A.V. that defendant
never admitted to S.B.’s allegation, which A.V. confirmed.
On cross-examination, defense counsel asked A.V. if defendant said anything in
response to S.B.’s disclosure and she said no. Counsel subsequently asked if she recalled
defendant saying, “‘I didn’t do anything,’” and if she recalled telling Officer Skamel he
made that statement; A.V. replied no to both questions. She agreed that if she told
Skamel defendant denied doing anything, that “would have been a better recollection.”
During Officer Skamel’s subsequent cross-examination, defense counsel
attempted to question her about defendant’s statement as related by A.V. and the trial
court sustained the prosecutor’s objection on hearsay grounds.
Defense counsel later raised the issue outside the presence of the jury and argued
that the court precluded him from questioning Officer Skamel about A.V.’s prior
inconsistent statement. He also argued that pursuant to the motion for reconsideration he
filed, defendant’s statement was admissible as an adoptive admission or a spontaneous
statement, and A.V.’s statement to Officer Skamel was admissible as a prior inconsistent
statement. The court reiterated that it had sustained the prosecutor’s objection to double
hearsay and reaffirmed the ruling.
On appeal, defendant pursues his argument that A.V.’s statement was admissible
as a prior inconsistent statement and defendant’s denial was admissible as an adoptive
16.
admission.7 The People concede that some of A.V.’s statements were inconsistent.
However, they contend that because defendant failed to point out which specific
statements were inconsistent, he did not place the trial court and the prosecutor on fair
notice of the basis for his objection, thereby forfeiting review of the claim. Forfeiture
aside, the People contend defendant’s statement of denial does not qualify as an adoptive
admission as it was neither an admission nor offered against defendant.
For the reasons set forth below, we reject the People’s forfeiture argument and
conclude that A.V.’s statement to Officer Skamel was admissible as a prior inconsistent
statement. However, we agree with the People that defendant’s denial of the crime does
not qualify as an adoptive admission. Further, even if we assume error, the exclusion of
this evidence was harmless.
B. Legal Standard
“Hearsay is an out-of-court statement that is offered for the truth of the matter
asserted, and is generally inadmissible.” (People v. McCurdy (2014) 59 Cal.4th 1063,
1108, citing Evid. Code, § 1200; accord, People v. Sanchez (2016) 63 Cal.4th 665, 674.)
“[M]ultiple hearsay is admissible for its truth only if each hearsay layer separately meets
7 Under the hearsay exception for spontaneous statements, “[e]vidence of a statement is not
made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or
explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made
spontaneously while the declarant was under the stress of excitement caused by such
perception.” (Evid. Code, § 1240.) “‘The crucial element in determining whether a declaration
is sufficiently reliable to be admissible under this exception to the hearsay rule is … the mental
state of the speaker. The nature of the utterance—how long it was made after the startling
incident and whether the speaker blurted it out, for example—may be important, but solely as an
indicator of the mental state of the declarant.… [U]ltimately each fact pattern must be
considered on its own merits, and the trial court is vested with reasonable discretion in the
matter.’” (People v. Brown (2003) 31 Cal.4th 518, 541; accord, People v. Blacksher (2011) 52
Cal.4th 769, 817–818.) Defendant does not pursue his argument that his denial to A.V. was a
spontaneous statement, and we find no fault with the trial court’s rejection of that argument
given the nature and context of the statement at issue.
17.
the requirements of a hearsay exception.” (People v. Arias (1996) 13 Cal.4th 92, 149,
citing Evid. Code, §§ 1200, 1201; accord, People v. Anderson (2018) 5 Cal.5th 372, 403.)
The applicable standard of review is well established. “[A] trial court has broad
discretion to determine whether a party has established the foundational requirements for
a hearsay exception (People v. Martinez (2000) 22 Cal.4th 106, 120) and ‘[a] ruling on
the admissibility of evidence implies whatever finding of fact is prerequisite thereto .…’
(Evid. Code § 402, subd. (c).) We review the trial court’s conclusions regarding
foundational facts for substantial evidence. (People v. Phillips (2000) 22 Cal.4th 226,
236.) We review the trial court’s ultimate ruling for an abuse of discretion (People v.
Hovarter (2008) 44 Cal.4th 983, 1007–1008; People v. Martinez, supra, at p. 120),
reversing only if ‘“the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice.”’ (People v.
Brown[, supra,] 31 Cal.4th [at p. ]534.)” (People v. DeHoyos (2013) 57 Cal.4th 79, 132;
accord, People v. Caro (2019) 7 Cal.5th 463, 503; People v. Jackson (2016) 1 Cal.5th
269, 320–321.)
C. Analysis
1. Claims of Error
a. A.V.’s Prior Inconsistent Statement
1) Forfeiture
We turn first to A.V.’s statement to Officer Skamel. Evidence Code section 1235
provides that “[e]vidence of a statement made by a witness is not made inadmissible by
the hearsay rule if the statement is inconsistent with his [or her] testimony at the hearing
and is offered in compliance with [Evidence Code] Section 770.”8 The People
8 Evidence Code section 770 provides: “Unless the interests of justice otherwise require,
extrinsic evidence of a statement made by a witness that is inconsistent with any part of his
testimony at the hearing shall be excluded unless:
18.
characterize defendant’s argument in the trial court as asserting “only that [A.V.] made
an implicitly inconsistent statement [when] she claimed not to remember saying that [he]
said he did not do anything[,]” while he now argues that she “made a directly inconsistent
statement when she testified, ‘He never once denied what my son said.’” (Italics added.)
Although the People do not expand on the issue, the general rule they rely on for
forfeiture is as follows. “Normally, a reviewing court may not consider a claim that the
trial court erroneously excluded evidence unless ‘[t]he substance, purpose, and relevance
of the excluded evidence was made known to the court by the questions asked, an offer of
proof, or by any other means .…’ (Evid. Code, § 354, subd. (a).) However, the rule does
not apply when ‘[t]he evidence was sought by questions asked during cross-examination
or recross-examination.’ (Id., subd. (c).) ‘Normally, if the trial court excludes evidence
on cross-examination, no offer of proof is necessary to preserve the issue for
consideration on appeal.’ (People v. Foss (2007) 155 Cal.App.4th 113, 127.) This
exception applies only to questions within the scope of the direct examination. ‘If the
evidence the defendant seeks to elicit on cross-examination is not within the scope of the
direct examination, an offer of proof is required to preserve the issue.’ (Ibid.)” (People
v. Hardy (2018) 5 Cal.5th 56, 103.)
“‘The reason for the [general] requirement is manifest: a specifically grounded
objection to a defined body of evidence serves to prevent error. It allows the trial judge
to consider excluding the evidence or limiting its admission to avoid possible prejudice.
It also allows the proponent of the evidence to lay additional foundation, modify the offer
of proof, or take other steps designed to minimize the prospect of reversal.’” (People v.
Partida (2005) 37 Cal.4th 428, 434; accord, People v. Anderson, supra, 5 Cal.5th at
p. 403.) The rules do “‘not exalt form over substance,’” however, and “the requirement
“(a) The witness was so examined while testifying as to give him an opportunity to
explain or to deny the statement; or
“(b) The witness has not been excused from giving further testimony in the action.”
19.
must be interpreted reasonably, not formalistically.” (People v. Partida, supra, at p. 434;
accord, People v. Anderson, supra, at p. 403.)
As previously set forth, defendant’s first attempt to introduce evidence regarding
A.V.’s prior inconsistent statement came during his cross-examination of A.V., after she
stated during her direct examination, “He never once denied what my son said.” A.V.
responded during cross-examination that she did not recall defendant denying the crime
and she did not recall telling Officer Skamel he denied the crime; counsel did not attempt
to refresh A.V.’s recollection. Subsequently, during Skamel’s cross-examination,
counsel attempted to introduce the evidence of A.V.’s prior inconsistent statement and
the trial court sustained the prosecutor’s objection on double hearsay grounds. Defendant
filed a motion for reconsideration and the parties argued the issue outside the presence of
the jury, but the court upheld its ruling without elaboration.
Thus, as a threshold matter, defendant’s attempts to elicit evidence of A.V.’s prior
inconsistent statement occurred during cross-examination. Nevertheless, even if we
assume defendant was required to object and make an offer of proof because his question
to Officer Skamel fell outside the scope of direct examination, the trial court and the
prosecutor were well aware that defendant was attempting to overcome the prosecutor’s
objection to A.V.’s out-of-court statement on the grounds of a prior inconsistent
statement and, as to defendant’s denial, either a spontaneous statement or a quasi-
adoptive admission. The record is abundantly clear on this point, and the People’s
assertion that the trial court never had the opportunity to rule on the issue because
defendant never raised it rings hollow. Therefore, we reject the People’s forfeiture
argument.
2) Error
On the merits, we conclude that as to A.V.’s prior inconsistent statement, the trial
court erred. A.V.’s statement to Officer Skamel that defendant denied doing anything is
unquestionably inconsistent with her trial testimony that defendant “never once denied”
20.
S.B.’s accusation against him. Thus, A.V.’s statement to Skamel was admissible as a
prior inconsistent statement under Evidence Code section 1235 and the trial court erred in
sustaining the prosecutor’s objection as to the first layer of hearsay.
b. Defendant’s Denial as Adoptive Admission
1) No Error
We find no error with respect to the trial court’s ruling as to defendant’s statement,
however. Each layer of hearsay must be examined separately for admissibility (People v.
Anderson, supra, 5 Cal.5th at p. 403; People v. Arias, supra, 13 Cal.4th at p. 149), and
we disagree with defendant that under the circumstances of this case, his denial was
admissible as an adoptive admission.
“Evidence of a statement offered against a party is not made inadmissible by the
hearsay rule if the statement is one of which the party, with knowledge of the content
thereof, has by words or other conduct manifested his adoption or his belief in its truth.”
(Evid. Code, § 1221.) “Under this provision, ‘[i]f a person is accused of having
committed a crime, under circumstances which fairly afford him an opportunity to hear,
understand, and to reply, and which do not lend themselves to an inference that he was
relying on the right of silence guaranteed by the Fifth Amendment to the United States
Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the
accusatory statement and the fact of silence or equivocation may be offered as an implied
or adoptive admission of guilt.’ [Citations.] ‘For the adoptive admission exception to
apply, … a direct accusation in so many words is not essential.’ [Citation.] ‘When a
person makes a statement in the presence of a party to an action under circumstances that
would normally call for a response if the statement were untrue, the statement is
admissible for the limited purpose of showing the party’s reaction to it. [Citations.] His
silence, evasion, or equivocation may be considered as a tacit admission of the statements
made in his presence.’” (People v. Riel (2000) 22 Cal.4th 1153, 1189; accord, People v.
21.
Jennings (2010) 50 Cal.4th 616, 661; People v. McDaniel (2019) 38 Cal.App.5th 986,
998.)
Defendant cites no authority for the proposition that because A.V. testified that he
never denied S.B.’s accusation, he was entitled to introduce his statement of denial as an
adoptive admission, or quasi-adoptive admission, under Evidence Code section 1221. It
is clear from the record that the prosecutor, who was aware of the statement in Officer
Skamel’s police report, did not intend to offer evidence of defendant’s silence as an
adoptive admission and she did not do so; she did not argue the theory and the trial court
did not instruct the jury on adoptive admissions. Nevertheless, because A.V. testified
that defendant “never once denied” S.B.’s accusation, that evidence found its way before
the jury.
The parties thereafter skirted around the issue and while the jury may have
concluded that A.V. gave a conflicting statement, the jury remained uninformed that A.V.
told Officer Skamel defendant denied abusing S.B. Therefore, we recognize defendant’s
concern with the state of the evidence on this issue, and we agree A.V.’s testimony that
defendant did not admit any wrongdoing, elicited by the prosecutor in an attempt to
lessen the impact of A.V.’s testimony that defendant did not deny any wrongdoing, was
not particularly curative.
However, Evidence Code section 1221 is of no assistance to defendant. It has
long been recognized that “[i]f the accused responds to the statement with a flat denial,
there is no admission and hence nothing that may be received in evidence.” (People v.
Simmons (1946) 28 Cal.2d 699, 712; accord, People v. McDaniel, supra, 38 Cal.App.5th
at p. 998; People v. Wilson (1965) 238 Cal.App.2d 447, 457; see People v. Whitehorn
(1963) 60 Cal.2d 256, 262 [“[I]f a denial is coupled with other conduct of the accused
which is of evidentiary importance, such as where false and evasive replies are made
together with a denial, the evidence may be received [citations].”].) Defendant’s
statement denying the wrongdoing was plainly not an implied or adoptive admission of
22.
guilt offered against him. (People v. Riel, supra, 22 Cal.4th at p. 1189.) Therefore, the
trial court did not abuse its discretion as to the second layer of hearsay when it rejected
defendant’s adoptive admission argument and excluded his prior denial.
2) Admissibility for Nonhearsay Purpose
We observe that “‘[w]hen evidence that certain words were spoken … is admitted
to prove that the words were uttered and not to prove their truth, the evidence is not
hearsay.’” (People v. Armstrong (2019) 6 Cal.5th 735, 786; accord, Hart v. Keenan
Properties, Inc. (2020) 9 Cal.5th 442, 447; People v. Smith (2009) 179 Cal.App.4th 986,
1003.) “The distinction turns not on the words themselves, but what they are offered to
prove. The concept can prove analytically elusive when[, as here,] the words themselves
also make an assertion. [Citation.] If the words are admitted for a nonhearsay purpose
the jury is not allowed to consider the truth of any substantive assertion, and is often
instructed to that effect.” (Hart v. Keenan Properties, Inc., supra, at p. 448.)
Thus, defendant’s denial of the abuse, related to Officer Skamel by A.V., might
have been admissible to impeach A.V. with her prior inconsistent statement to the extent
defendant’s denial was not offered for the truth of the matter asserted. However, the
record leaves no doubt that the parties and the trial court addressed defendant’s denial in
the context of a hearsay statement; that is, for the truth of the matter asserted.9 As
defendant did not advance a contrary argument either in the trial court or on appeal, any
such claim is forfeited. (People v. Livaditis (1992) 2 Cal.4th 759, 778 [“‘Under Evidence
Code sections 403 and 405, if a hearsay objection is properly made, the burden shifts to
the party offering the hearsay to lay a proper foundation for its admissibility under an
9 During a discussion outside the presence of the jury, defense counsel mentioned the
possibility of a stipulation regarding A.V.’s statement in the police report and the prosecutor said
she would consider one, but that was the extent of their discussion on the record and the jury was
not apprised of A.V.’s statement to Officer Skamel.
23.
exception to the hearsay rule.’”]; see People v. Hovarter, supra, 44 Cal.4th at p. 1029
[arguments not adequately briefed on appeal may be deemed waived].)
2. Prejudice
a. Standard of Review
We also conclude that even if error is assumed, it was harmless. Although
defendant urges that the asserted error violated his constitutional rights to present a
defense and to a fair trial, “routine application of state evidentiary law does not implicate
defendant’s constitutional rights” (People v. Brown, supra, 31 Cal.4th at p. 545, fn.
omitted; accord, People v. Thompson (2016) 1 Cal.5th 1043, 1116), unless the error
renders the trial fundamentally unfair (People v. Merriman (2016) 60 Cal.4th 1, 70;
accord, People v. Partida, supra, 37 Cal.4th at p. 439). Complete exclusion of defense
evidence “theoretically could rise to this level, [but] excluding defense evidence on a
minor or subsidiary point does not impair an accused’s due process right to present a
defense[,]” and “[i]f the trial court misstepped, ‘[its] ruling was an error of law merely;
there was no refusal to allow [the defendant] to present a defense, but only a rejection of
some evidence concerning the defense.’” (People v. Fudge (1994) 7 Cal.4th 1075, 1103;
accord, People v. Rogers (2013) 57 Cal.4th 296, 346–347.)
Such is the case here and, as is evident from the discussion that follows, the
exclusion did not otherwise render defendant’s trial unfair. Therefore, we review
defendant’s claim of error under the state law standard set forth in People v. Watson
(1956) 46 Cal.2d 818, 837, which requires a determination “whether there is a
‘reasonable probability’ that a result more favorable to the defendant would have
occurred absent the error.” (People v. Aranda (2012) 55 Cal.4th 342, 354; accord,
People v. Richardson (2008) 43 Cal.4th 959, 1001; People v. Partida, supra, 37 Cal.4th
at p. 439.)
24.
b. Error Harmless
The dispute in this case centered on whether or not defendant committed the
crimes of which he stood accused rather than on the identity of the perpetrator or any
other issue, and, therefore, the primary focus was necessarily the credibility of S.B.’s
allegations as the complaining witness. His account was compelling. Although he no
longer remembered many of the more specific details by the time of trial, he testified to
incidents of sodomy, oral copulation, and touching by defendant. S.B.’s initial disclosure
to his mother occurred shortly after the last incident of abuse and A.V. reported the
allegations to police two days later. As such, S.B.’s CART interview was
contemporaneous to the ongoing abuse, and his allegations during the interview were not
only fairly detailed in nature but unquestionably involved sexual knowledge that is
unexpected in a child of his age. Specifically, S.B. described oral and anal sex, use of
lubricant to facilitate the sodomy, S.B.’s loss of bowel control on one occasion resulting
from sodomy, and the sight, taste and smell of ejaculate, topics that S.B. was still
uncomfortable describing and, in part, unfamiliar with when he testified at the age of 12.
Further, while defendant testified that he and A.V. had some adult pornographic movies
in their bedroom and S.B. asked about one of the titles once, there was no evidence that
S.B. had been exposed to pornography as an explanation for his knowledge, and
defendant testified he placed the movies out of reach after S.B. asked about the title.
Moreover, because defendant testified, he had the opportunity to, and did, directly
deny he molested S.B. or ever acted inappropriately toward S.B. He also testified that in
response to S.B.’s disclosure that night, he told A.V. he did not do anything, and except
for disputing that he sexually abused S.B., defendant’s description of the events that night
was materially similar to A.V.’s description. Additional evidence that defendant denied
molesting S.B. would not have undermined the credibility of S.B.’s statements regarding
the abuse, and given A.V.’s unenviable position as the mother of a child who had just
disclosed he was being sexually abused by his stepfather, we are skeptical that
25.
introduction of her prior inconsistent statement would have had any measurable impact
on the jury’s evaluation of her credibility. Therefore, we conclude that there is no
reasonable probability that the exclusion of A.V.’s statement that defendant denied
molesting S.B. affected the verdicts. (People v. Aranda, supra, 55 Cal.4th at p. 354;
accord, People v. Partida, supra, 37 Cal.4th at p. 439; People v. Richardson, supra, 43
Cal.4th at p. 1001.)
Defendant relies on the absence of physical evidence inculpating him; the lack of
spontaneity with respect to S.B.’s initial disclosure; S.B.’s lack of recall at trial; the
imaginative nature of S.B.’s disclosures regarding his cousins and his mother walking
into the kitchen while he was orally copulating defendant; Dr. Gomez’s testimony that
defendant did not meet the criteria for pedophilia; the testimony of defendant’s character
witnesses; and the jury’s conduct during deliberations to support his claim of prejudicial
error. These considerations do not persuade us either that the error was of constitutional
magnitude or that it was prejudicial under state law, but we address each in turn because
the arguments also inform assessment of defendant’s claims of instructional error.
As discussed, the main issue was one of witness credibility. A single witness’s
testimony is sufficient to support a verdict and credibility determinations rest with the
trier of fact, but here, S.B.’s initial disclosure to his mother, followed shortly thereafter
by his detailed CART interview, amounted to powerful and compelling evidence,
particularly given the explicit sexual nature of the disclosures viewed in the context of
S.B.’s young age.
The lack of physical evidence in this case is entirely unremarkable. As explained
by the registered nurse who conducted S.B.’s SART examination, attempted DNA
collection occurs in acute cases, which she defined as those in which the exam occurs
within, at most, 48 hours of the assault. S.B.’s case presented as chronic rather than
acute, and the nurse’s testimony established that it would have been fruitless to attempt
DNA collection where the initial report and physical examination occurred days if not
26.
weeks after the last incident of molestation and the victim had subsequently urinated,
defecated, showered, brushed his teeth and changed his clothes. The absence of scarring
or visible injury in a case involving sodomy was also not unusual; the nurse explained
that children’s skin is resilient, they heal quickly, and studies have shown that genital and
anal trauma is visible only in a small percentage of cases involving children.
We also disagree that the circumstances of S.B.’s initial disclosure, CART
interview, or trial testimony undermined his credibility. While S.B.’s disclosure was
prompted by A.V. speaking to him about inappropriate touching after he was admonished
for kissing V.J.’s butt, the disclosure in this context raises no obvious concerns. S.B. was
only eight years old when he disclosed the abuse, which had been ongoing for some time,
and he was 12 years old at the time of trial. Memories fade, even in adults who are better
equipped to understand context and details. Given’s S.B.’s age and the traumatic nature
of the events, which he testified he tried to forget, S.B.’s loss of the more specific details
between his CART interview and trial testimony was not unusual.
As well, we disagree that the evidence suggests S.B. “only imagined” being
molested at his older cousin’s direction. The older cousin’s two siblings testified they
loved both their brother and defendant and did not want either to get in trouble, and their
denial that they were involved in an incident of sexual misconduct is not surprising. In
any event, it was up to the jury to assess the credibility of the witnesses, as stated, and its
verdicts reflect that it believed S.B. While we agree with defendant that it appears
extremely unlikely that A.V. would have walked into the kitchen, seen S.B. orally
copulating defendant, and walked out, we do not agree with defendant that S.B.’s
recollection of this unlikely event had any significant impact on his credibility on the
facts of this case.
This leaves defendant’s character witnesses and the jury’s deliberations.
Defendant presented testimony by relatives and a friend vouching for his good character,
and the jury was tasked with determining how much weight to give that evidence, if any.
27.
Child molestation is a notoriously secretive crime (People v. Falsetta (1999) 21 Cal.4th
903, 918), and, therefore, it is not surprising that defendant’s friend and family members
held him in high regard and believed he was trustworthy. They would not have been
character witnesses otherwise and on the facts of this case, we are not persuaded that the
exclusion of defendant’s denial had any measurable impact on the jury’s evaluation of his
character evidence.
Finally, nothing about the jury’s deliberations gives us any pause, either. During
the evidentiary phase, the trial court accepted a note from one of the jurors that read as
follows: “1. Did [S.B.] have any reoccurring stomach issues? There was no warning
signs not even in hindsight? Why wasn’t this asked? [¶] 2. Does the defendant have
any priors related to this offense? [¶] 3. Why was it said that there was sodomy even by
the witness (victim) and the mother and then retracted by [the] nurse per request [of] the
mother? (Saying first there was sodomy and then there wasn’t?)”
These questions were asked by one juror during the evidentiary phase and,
therefore, they are not reflective of any subsequent struggle with the evidence during
deliberations. At the time the juror handed the note to the bailiff, the prosecutor had not
yet played S.B.’s videotaped CART for the jury. After the note was received, in addition
to playing the CART interview, the prosecutor questioned Corporal Dominguez about
what he told the nurse regarding the abuse allegations and A.V. was recalled to the stand.
She clarified that she may not have known about the sodomy allegations at the time S.B.
was examined by the nurse because he shared details with her over a period of time. She
also testified that prior to disclosing the abuse, S.B. had a history of stomach issues and
migraines, and he would sometimes vomit in the car when it was time to return home
28.
after being with his grandparents.10 These stomach issues ceased after the disclosure of
abuse.
There is nothing in the record that suggests the jury struggled with the evidence
during deliberations or in reaching a verdict. The jury requested the 40-minute CART
interview video and it returned the verdicts after deliberating a total of three and one-half
hours, approximately. Defendant suggests this indicates it was a close case, but we do
not agree. Defendant’s characterization of the credibility contest as “difficult” is
unconvincing, but we note that both cases he cites for this argument involved the
erroneous admission of evidence regarding the witnesses’ prior arrests or convictions and
the reviewing courts concluded the admission was prejudicial on the facts of those cases.
(People v. Anderson (1978) 20 Cal.3d 647, 650–651; People v. Allen (1978) 77
Cal.App.3d 924, 934–935.)
Here there were two starkly contrasting version of events. Defendant either
molested S.B. or he did not, and this case did not involve the improper admission of
inflammatory evidence that possibly influenced the jury’s assessment of defendant’s
credibility. The jury asked for the CART interview tape, which was the most compelling
piece of evidence in terms of the charges and S.B.’s version of events due to its detail,
and if the jury believed S.B., as its verdicts reflect, we find nothing remarkable about a
three-hour deliberation.11
10 We note the trial court expressed discomfort with jurors asking questions because
laypeople are often curious about issues that have no legal significance, but courts have the
discretion to permit written questions from jurors. (Cal. Rules of Court, rule 2.1033; People v.
Ochoa (1998) 19 Cal.4th 353, 418.) In this case, the prosecutor had the opportunity to and did
clarify several of the issues through Corporal Dominguez’s and A.V.’s testimony.
11 Defendant’s reliance on People v. Markus for the proposition that the length of the
deliberations in this case signaled a jury struggle is misplaced. (People v. Markus (1978) 82
Cal.App.3d 477, 482, disapproved on another ground in People v. Montoya (1994) 7 Cal.4th
1027, 1039–1040.) The appellate court’s finding of prejudicial error was tied to the principle
that “[i]t is the intent which exists in the mind of the perpetrator at the moment of entry which
defines burglary.” (People v. Markus, supra, at p. 481.) In that case, the defendant was waiting
29.
Accordingly, we reject defendant’s claim of prejudice. We reiterate that the trial
court did not err in excluding defendant’s denial of the abuse as hearsay but even if we
assume error for the sake of argument, it was unquestionably harmless.
II. Instructional Errors
A. Forfeiture
Next, defendant advances four claims of instructional error, two based on errors
with the reading of instructions and two based on the omission of instructions. Generally,
the failure to object in the trial court forfeits a claim on appeal, but there is an exception
“if the substantial rights of the defendant were affected thereby.” (§ 1259; accord, People
v. Johnson (2016) 62 Cal.4th 600, 638.) Although defendant did not object or request
instruction regarding the issues he now advances on appeal, because he claims that the
errors resulted in the violation of his constitutional rights, we elect to exercise our
discretion to reach the claims on their merits without deciding whether the forfeiture
doctrine applies. (Id. at p. 639.)
B. Standard of Review
We review allegations of instructional error de novo. (People v. Waidla (2000) 22
Cal.4th 690, 733; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) “In criminal
cases, even in the absence of a request, a trial court must instruct on general principles of
law relevant to the issues raised by the evidence and necessary for the jury’s
understanding of the case.” (People v. Martinez (2010) 47 Cal.4th 911, 953.)
“[I]nstructions are not considered in isolation. Whether instructions are correct and
in the car while his companion burglarized a house, his defense was that he was unaware of the
burglary until his companion reentered the car with stolen goods, and the jury had the option of
either convicting him of burglary as a principal or acquitting him. (Id. at p. 480.) Because the
jury was instructed on aiding and abetting, asked a question regarding timing and the formation
of criminal intent, and received misinstruction on that issue in response, the jury’s return of a
guilty verdict shortly thereafter was troubling in the court’s view and precluded a finding of
harmless error. (Id. at pp. 480–482.) The circumstances here are not analogous to those in
People v. Markus.
30.
adequate is determined by consideration of the entire charge to the jury.” (People v. Holt
(1997) 15 Cal.4th 619, 677; accord, People v. Thomas (2011) 52 Cal.4th 336, 356.) “If
the charge as a whole is ambiguous, the question is whether there is a ‘“reasonable
likelihood that the jury has applied the challenged instruction in a way” that violates the
Constitution.’” (Middleton v. McNeil (2004) 541 U.S. 433, 437 (per curiam).) Jurors are
presumed to have understood and followed the trial court’s jury instructions. (People v.
Sandoval (2015) 62 Cal.4th 394, 422.)
C. Analysis
1. CALCRIM No. 200: Duties of Judge and Jury
a. Background
The trial court instructed the jury on duties of the judge and jury pursuant to
CALCRIM No. 200 as follows:
“I’m now going to instruct you on the law. The law requires that I read
these instructions to you verbatim. You’ll also have these written
instructions if you wish to reread any of these instructions. [¶] You must
decide what the facts are. And it’s up to all of you and you alone to decide
what happened based only on the evidence that was presented in this trial.
You must follow the law as I explain it to you, even if you agree with it.
“If you believe that the attorneys’ comments on the law conflicts
with my instructions, you must follow my instructions. Pay careful
attention to all of these instructions and consider them together. If I repeat
any instruction or idea, do not conclude that it is more important than any
other instruction or idea just because I repeated it.
“Some words or phrases used during this trial have legal meanings
that are different from their meanings in everyday use. These words and
phrases will be specifically defined in these instructions. Please be sure to
listen carefully and follow the instructions and definitions that I give you.
Words and phrases not specifically defined in these instructions are to be
applied using their ordinary, everyday meanings.
“Some of these instructions may not apply, depending on your
findings about the facts of the case. Do not assume that just because I gave
a particular instruction that I am suggesting anything about the facts. After
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you have decided what the facts are, follow the instructions that do apply to
the facts as you find them.
“Do not use the Internet in any way in connection with this case
either on your own or as a group. Do not investigate the facts or law or do
any research regarding this case, either on your own or as a group. And do
not conduct any tests or experiments.”
The written pattern instruction for CALCRIM No. 200, provided to the jury during
deliberations, included the following: “Do not let bias, sympathy, prejudice, or public
opinion influence your decision. Bias includes, but is not limited to, bias for or against
the witnesses, attorneys, defendant or alleged victim, based on disability, gender,
nationality, national origin, race or ethnicity, religion, gender identity, sexual orientation,
age, or socioeconomic status.”
Defendant acknowledges multiple minor deviations from a verbatim reading of
CALCRIM No. 200 occurred, but he claims omission of the portion on bias and
sympathy constituted a structural error because it lowered the prosecution’s burden of
proof. The People contend there was no error because the court’s written instruction
controlled and, regardless, the asserted error was not structural and did not result in
prejudice. We agree with the People.
b. Harmless Error
Defendant relies on People v. Murillo (1996) 47 Cal.App.4th 1104, 1107 (Murillo)
for the proposition that given the inability to determine whether the jury read the written
instructions, we must assume on review that that the jury did not do so. Reliance on the
decision in Murillo is misplaced. The decision is ultimately unhelpful to defendant
because the appellate court concluded the trial court’s failure to instruct regarding a
witness who is willfully false in a material part of his or her testimony was harmless
error. (Id. at pp. 1108–1109.) The decision is also distinguishable because the trial court
omitted the instruction in its entirety when it orally instructed the jury on the applicable
law, leaving only the written instruction on the issue. (Id. at pp. 1106–1107.)
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Regardless, we are bound by decisions of our high court (People v. Letner and
Tobin (2010) 50 Cal.4th 99, 197–198), and the California Supreme Court has held that
“[t]he risk of a discrepancy between the orally delivered and the written instructions
exists in every trial, and verdicts are not undermined by the mere fact the trial court
misspoke” (People v. Mills (2010) 48 Cal.4th 158, 200 (Mills); accord, People v. Grimes
(2016) 1 Cal.5th 698, 729). “‘To the extent a discrepancy exists between the written and
oral versions of jury instructions, the written instructions provided to the jury will
control,’” and “on appeal we give precedence to the written instructions .…” (Mills,
supra, at p. 201; accord, People v. Grimes, supra, at p. 729; People v. Phea (2018) 29
Cal.App.5th 583, 606, fn. 18.) This has long been the law. (E.g., People v. Davis (1995)
10 Cal.4th 463, 542; People v. McLain (1988) 46 Cal.3d 97, 111, fn. 2.)
Here, as in Mills, the written instructions were provided to the jury and the written
version of CALCRIM No. 200 included the portion regarding bias and sympathy.
Although the jury was not specifically instructed that the written instructions control, it
was directed to the written instructions should it wish to review any. Moreover, the jury
was instructed on the prosecutor’s burden of proof and on evaluating witness testimony
and conflicting evidence. (CALCRIM Nos. 220, 226, 302.) The latter instructions
included the admonitions to “judge the testimony of each witness by the same standards,
setting aside any bias or prejudice you may have,” and not to “disregard the testimony of
any witness without a reason or because of prejudice or a desire to favor one side or the
other.” In view of these oral instructions and the complete written instructions, there is
no reasonable probability the verdict would have been more favorable to defendant had
the trial court also orally admonished the jury pursuant to CALCRIM No. 200 not to let
bias, sympathy or prejudice influence its decision.
c. Claim of Structural Error
“[A]n instructional error or omission that amounts to the total deprivation of a jury
trial would be structural error, that is, reversible per se.” (People v. Merritt (2017) 2
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Cal.5th 819, 830.) However, “harmless-error analysis applies to instructional errors so
long as the error at issue does not categorically ‘“vitiat[e] all the jury’s findings.”’”
(Hedgpeth v. Pulido (2008) 555 U.S. 57, 61 (per curiam); accord, People v. Aledamat
(2019) 8 Cal.5th 1, 13 [harmless error analysis applies to instruction on legally
inadequate theory of guilt]; People v. Merritt, supra, at p. 831 [harmless error analysis
applies to omission of elements of an offense].) As such, we flatly reject defendant’s
contention that this error, or the other instructional errors discussed next, were structural
in nature.
We also disagree with defendant’s claim that the asserted error is of federal
constitutional magnitude, but even if we applied the federal standard of review articulated
in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), “it is clear beyond a
reasonable doubt that a rational jury would have rendered the same verdict absent the
error.” (People v. Merritt, supra, 2 Cal.5th at p. 831, citing Neder v. United States (1999)
527 U.S. 1, 15–16, 18; accord, People v. Brooks (2017) 3 Cal.5th 1, 70).12
2. CALCRIM No. 332: Expert Witness Testimony
a. Background
Next, defendant claims that the trial court erred in its instruction to the jury on
expert witness testimony pursuant to CALCRIM No. 332. The court instructed the jury
as follows, with the error in italics:
“Witnesses were allowed to testify as experts and to give opinions.
You must consider the opinions, but you’re not required to accept them as
true or correct. The meaning and importance of any opinion are for you to
decide.
“In evaluating the believability of an expert witness, follow the
instructions about the believability of witnesses generally. In addition,
12 “[I]n order to conclude that an instructional error ‘“did not contribute to the verdict”’
within the meaning of Chapman [citation] we must ‘“find that error unimportant in relation to
everything else the jury considered on the issue in question, as revealed in the record”’
[citations].” (People v. Brooks, supra, 3 Cal.5th at p. 70.)
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consider the expert’s knowledge, skill, the person’s training, and education,
the reasons the expert gave for any opinion, and the facts or information on
which the expert relied in reaching that opinion.
“You must decide on whether the information the expert relied upon
is true and accurate. You must disregard any opinion that you find
unbelievable, unreasonable, or unsupported by the evidence.
“An expert witness may be asked a hypothetical question. A
hypothetical question asks the witness to assume certain facts are true and
to give an opinion based on the assumed facts. It’s up to you to decide
whether an assumed fact has been proved.
“If you conclude that an assumed fact is not true, consider the effect
of the expert’s reliance on that fact in evaluating the expert’s opinion.”
(Italics added.)
CALCRIM No. 332 provides, relevant to defendant’s claim, “You may disregard
any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.”
(Italics added.) Again relying on Murillo, supra, 47 Cal.App.4th at page 1107, defendant
argues that the trial court erred when it modified the instruction and informed the jury it
must disregard the evidence, and that we must assume the jury did not read the written
instruction. The People concede the trial court misspoke, but argue the error was
harmless. We agree.
b. Harmless Error
The trial court did not intentionally modify the instruction. Rather, the written
instruction provided to the jury was worded correctly and the court merely misspoke
when it substituted “must” for “may” during its oral instruction. As previously stated, the
written instruction controls (Mills, supra, 48 Cal.4th at p. 201), and “misreading
instructions is at most harmless error when the written instructions received by the jury
are correct” (People v. Box (2000) 23 Cal.4th 1153, 1212, disapproved on another ground
in People v. Martinez, supra, 47 Cal.4th at p. 948, fn. 10).
Furthermore, although generally, the term “may” is permissive and the terms
“shall” and “must” mandatory (People v. Standish (2006) 38 Cal.4th 858, 869; Jones v.
35.
Catholic Healthcare West (2007) 147 Cal.App.4th 300, 307), defendant fails to explain
how the court misled the jury with respect to the law. His assertion that the miswording
precluded the jury from considering his expert witnesses’ opinions and lessened the
prosecution’s burden of proof is unpersuasive.
In evaluating expert witnesses, the jury was expressly instructed to follow the
instruction on the believability of witnesses in general, pursuant to which the jury was
admonished, “In deciding whether testimony is true and accurate, use your common
sense and experience. You must judge the testimony of each witness by the same
standards, setting aside any bias or prejudice you may have. You may believe all, part, or
none of any witness’s testimony.” Plainly, if the jury concluded that an expert’s opinion
on an issue was unbelievable, unreasonable, or unsupported by evidence, it should not
credit that opinion. “‘[M]atter relied on [by an expert] must provide a reasonable basis
for the particular opinion offered, and … an expert opinion based on speculation or
conjecture is inadmissible.’” (Sargon Enterprises, Inc. v. University of Southern
California (2012) 55 Cal.4th 747, 770; accord, People v. Wright (2016) 4 Cal.App.5th
537, 545–546.)
Finally, the error complained of was harmless even under the federal standard of
review. The crux of Dr. Gomez’s testimony was that defendant did not suffer from
pedophilia or any other sexual disorder. However, he explained that among sex
offenders, the rate of pedophilia is extremely low—between one and three percent—and
most child molestation cases involve one-time offenders who victimize someone in their
homes.
Dr. McAuliff identified areas of concern and influence with respect to children’s
memory and suggestibility, and forensic interviews, but he explained that children do not
report in narrative form and information must be obtained through questions and answers.
Furthermore, he acknowledged that police and forensic interviewers are better trained
now; S.B.’s CART interview was based predominantly on open-ended, nonleading
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questions; and the forensic interviewer followed the best practices he outlined in his
testimony.
Viewing the substance of the expert witnesses’ testimony in the context of the
facts in this case, we are certain use of the term “must” rather than the term “may” in the
trial court’s oral instruction to the jury was harmless beyond a reasonable doubt.
3. CALCRIM No. 359: Corpus Delicti
a. Background
S.B. testified that just prior to disclosing the abuse to his mother, defendant said to
him, “‘Sh-sh.’” A.V. testified that just prior to the disclosure, defendant pulled S.B. into
his lap, hugged S.B., told S.B. it was okay, and moved his head slightly from side to side,
at which point she became nervous. There was also evidence that defendant told S.B. to
keep what they were doing a secret, but defendant’s claim on appeal is confined to his
statements the night of the disclosure.
The trial court instructed the jury pursuant to CALCRIM No. 358 on evidence of
defendant’s statement as follows: “You have heard evidence the defendant made an oral
or written statement before the trial. You must decide whether the defendant made any
such statements in whole or in part. If you decide that the defendant made such
statements, consider the statements along with all the other evidence in reaching your
verdict. It’s up to you to decide how much importance to give to the statement. Consider
with caution any statement made by the defendant tending to show his guilt unless the
statement was written or otherwise recorded.”
Defendant claims that the trial court should have also instructed the jury with
CALCRIM No. 359, the pattern instruction on corpus delicti. The instruction provides:
“The defendant may not be convicted of any crime based on
(his/her) out-of-court statement[s] alone. You may rely on the defendant’s
out-of-court statements to convict (him/her) only if you first conclude that
other evidence shows that the charged crime [or a lesser included offense]
was committed.
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“That other evidence may be slight and need only be enough to
support a reasonable inference that a crime was committed.
“This requirement of other evidence does not apply to proving the
identity of the person who committed the crime [and the degree of the
crime]. If other evidence shows that the charged crime [or a lesser included
offense] was committed, the identity of the person who committed it [and
the degree of the crime] may be proved by the defendant’s statement[s]
alone.
“You may not convict the defendant unless the People have proved
(his/her) guilt beyond a reasonable doubt.”
The corpus delicti rule “requires some evidence that a crime occurred, independent
of the defendant’s own statements.” (People v. Ledesma (2006) 39 Cal.4th 641, 721,
citing People v. Alvarez (2002) 27 Cal.4th 1161, 1181; accord, People v. Dalton (2019) 7
Cal.5th 166, 218.) “The principal purpose of the corpus delicti rule is to ensure that a
defendant is not convicted of a crime that never occurred. [Citations.] That purpose is
fulfilled by the admission of evidence sufficient to establish that the crime occurred.”
(People v. Ledesma, supra, at p. 721.)
Defendant did not confess to molesting S.B. or make any admissions, and the
prosecution’s case was founded on S.B.’s statements regarding the acts of sexual
molestation defendant committed against him. There is no danger that in this case the
jury convicted defendant because he shushed S.B. or told S.B. it was okay just prior to
the disclosure of abuse. Therefore, even if we assume error for the sake of argument, we
find no “‘reasonable probability’ that a result more favorable to the defendant would have
occurred absent the error.” (People v. Aranda, supra, 55 Cal.4th at p. 354.)
4. CALCRIM No. 371: Consciousness of Guilt
a. Background
During S.B.’s CART interview, he disclosed that defendant used a “white
medicine” in a tube when sodomizing him. S.B. said it was the medicine his mother used
for his younger brother’s diaper rash and he thought it was A+D. A.V. testified they had
38.
A+D diaper rash cream and A+D ointment in the house. The cream was usually kept in
the diaper bag and the ointment, which defendant used for his own rashes, was kept in
their bathroom. However, the last time she saw the ointment was on March 23, 2015,
which was the day defendant’s family members came to the house while she was out and
removed most of his belongings, prompting her to call police and make a report. Police
did not locate any cream or ointment during the subsequent search of the house. When
defendant testified, he said his family removed his clothing and other belongings, but
denied they took any ointment or lotion.
On appeal, defendant argues that the prosecution “made a very large issue” out of
defendant’s family removing his belongings and the missing ointment, “the inference
being that they sought to suppress what they believed might be harmful evidence against
him.” Defendant cites People v. Terry (1962) 57 Cal.2d 538, 566 for the proposition that
“[w]hile evidence of efforts by a defendant himself to prevent a witness from testifying
are admissible against him, in order to make evidence of such efforts by another person
admissible it must be established that this was done by the authorization of the
defendant,” and he claims that the trial court erred in failing to instruct the jury sua
sponte on consciousness of guilt pursuant to CALCRIM No. 371.
CALCRIM No. 371, the pattern instruction for suppression or fabrication of
evidence as consciousness of guilt provides, in relevant part: “If someone other than the
defendant tried to create false evidence, provide false testimony, or conceal or destroy
evidence, that conduct may show the defendant was aware of (his/her) guilt, but only if
the defendant was present and knew about that conduct, or, if not present, authorized the
other person’s actions. It is up to you to decide the meaning and importance of this
evidence. However, evidence of such conduct cannot prove guilt by itself.”
b. Any Error Harmless
“‘“‘Generally, evidence of the attempt of third persons to suppress testimony is
inadmissible against a defendant where the effort did not occur in his presence.
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[Citation.] However, if the defendant has authorized the attempt of the third person to
suppress testimony, evidence of such conduct is admissible against the defendant.’”’”
(People v. Williams (1997) 16 Cal.4th 153, 200, quoting People v. Hannon (1977) 19
Cal.3d 588, 599, disapproved on another ground in People v. Martinez, supra, 22 Cal.4th
at pp. 762–763.) “‘Whether or not any given set of facts may constitute suppression or
attempted suppression of evidence from which a trier of fact can infer a consciousness of
guilt on the part of a defendant is a question of law.… [T]here must be some evidence in
the record which, if believed by the jury, will sufficiently support the suggested
inference. Furthermore, the determination of whether there is such evidence in the record
is a matter which must be resolved by the trial court before such an instruction can be
given to a jury.’” (People v. Kerley (2018) 23 Cal.App.5th 513, 565, quoting People v.
Hannon, supra, at pp. 597–598; accord, People v. Ramirez (2006) 39 Cal.4th 398, 456.)
“[T]he evidence need not conclusively establish fabrication by others or defense
authorization of the fabrication before the instruction may be given; ‘“there need only be
some evidence in the record that, if believed by the jury, would sufficiently support the
suggested inference.”’” (People v. Kerley, supra, at pp. 565–566, quoting People v.
Alexander (2010) 49 Cal.4th 846, 921; accord, People v. Coffman and Marlow (2004) 34
Cal.4th 1, 102.)
Evidence may be relevant to more than one issue and the introduction of evidence
regarding the missing ointment was not necessarily intended to show consciousness of
guilt through third party suppression of evidence. (People v. Abel (2012) 53 Cal.4th 891,
924–925.) Notably, the prosecutor did not argue that defendant’s family suppressed
evidence, at defendant’s behest or otherwise, and did not mention the missing ointment or
the removal of defendant’s belongings by his family during closing argument. The
People also point out that defense counsel may have elected not to request any instruction
on the issue to avoid drawing further attention to the evidence. Nevertheless, we agree
with defendant that there was more than a mere passing focus on the ointment, its
40.
disappearance from the house and defendant’s family’s conduct. Indeed, over
defendant’s objection, the prosecutor succeeded in admitting the police report made by
A.V. when she found defendant’s family in her house “ransack[ing] it.”
It was uncontested that defendant kept A+D ointment in the bathroom for use on
his own rashes, his family removed most of his personal belongings from the house on
March 23, 2015, A.V. last saw the ointment on that day, and police did not locate the
ointment during their subsequent search. A reasonable jury could infer that defendant’s
family took the ointment when it gathered his personal belongings, but there is no
evidence to support a reasonable inference that his family took the ointment to suppress
evidence, with or without defendant’s authorization. That defendant had the “‘mere
opportunity’” to direct his family is insufficient. (People v. Williams, supra, 16 Cal.4th
at pp. 200–201, quoting People v. Terry, supra, 57 Cal.2d at p. 566.)
Neither party requested instruction on consciousness of guilt shown by
suppression of evidence and the trial court did not raise the issue sua sponte. Defendant
acknowledges that there is generally no sua sponte duty to give a limiting instruction
(People v. Najera (2008) 43 Cal.4th 1132, 1139; accord, People v. Murtishaw (2011) 51
Cal.4th 574, 590), but points out “a possible exception [may exist] in ‘an occasional
extraordinary case in which unprotested evidence … is a dominant part of the evidence
against the accused, and is both highly prejudicial and minimally relevant to any
legitimate purpose’” (People v. Hernandez (2004) 33 Cal.4th 1040, 1051–1052, quoting
People v. Collie (1981) 30 Cal.3d 43, 64; accord, People v. Murtishaw, supra, at p. 590).
He argues that the omission of the instruction here resulted in a miscarriage of justice,
affected his substantial rights, and deprived him of due process and a fair trial. (Cal.
Const., art. VI, § 13; § 1259; People v. Jones (2012) 54 Cal.4th 1, 54 [due process
implicated when error infects entire trial]).
Although we are not persuaded that the evidence in question was dominant and
“‘both highly prejudicial and minimally relevant to any legitimate purpose’” (People v.
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Hernandez , supra, 33 Cal.4th at p. 1052), we need not decide whether any arguable error
occurred because even if we assume that the trial court should have instructed the jury
pursuant to CALCRIM No. 371, omission of the instruction was harmless under either
standard of review. As we have discussed, the critical issue for the jury was the
credibility of S.B.’s allegations. The fact that neither A.V. nor the police were able to
locate the A+D ointment usually kept in the bathroom had no bearing on S.B.’s
credibility given the absence of any dispute that A+D ointment and diaper rash cream
were kept in the household. Therefore, we find beyond a “reasonable doubt that a
rational jury would have rendered the same verdict absent the error.” (People v. Merritt,
supra, 2 Cal.5th at p. 831, citing Neder v. United States, supra, 527 U.S. at p. 18.)
III. Cumulative Error
Finally, defendant claims that cumulatively, the errors committed by the trial court
resulted in prejudice to him. “In examining a claim of cumulative error, the critical
question is whether [the] defendant received due process and a fair trial.” (People v.
Sedillo (2015) 235 Cal.App.4th 1037, 1068; accord, People v. Rivas (2013) 214
Cal.App.4th 1410, 1436–1437.)
We found no error in the exclusion of defendant’s statement denying the abuse but
even assuming error, we found it harmless. We also found defendant’s instructional error
claims harmless, assuming error. Consideration of these alleged errors cumulatively and
under either standard of review does not compel a different result: defendant was not
deprived of a fair trial. (People v. Duong (2020) 10 Cal.5th 36, 75; accord, People v.
Sedillo, supra, 235 Cal.App.4th at p. 1068; People v. Rivas, supra, 214 Cal.App.4th at
p. 1437.)
42.
DISPOSITION
The judgment is affirmed.
MEEHAN, J.
WE CONCUR:
FRANSON, Acting P.J.
SNAUFFER, J.
43.